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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
MARYLAND WILDLIFE FEDERATION and Route # 40 Advocates, Inc., Appellants, v. Elizabeth H. DOLE, Secretary of the United States Department of Transportation, and Lowell K. Bridwell, Secretary, Maryland Department of Transportation and Emil Elinsky, Division Administrator, Federal Highway Administration for Maryland and Albert Smith, Federal Co-Chairman for the Appalachian Regional Commission and Governor, Harry Hughes, as the Maryland Delegate to the Appalachian Regional Commission and George Turner, as Regional Federal Highway Administrator for Region III, Appellees.
No. 83-1429.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1984.
Decided Oct. 25, 1984.
Harrison L. Winter, Chief Judge, dissented in part and concurred in part and filed opinion.
Charles H. Montange, Washington, D.C., for appellants.
Louisa H. Goldstein, Baltimore, Md. (Dorothy A. Beatty, Robert B. Harrison, III, Asst. Attys. Gen., Stephen H. Sachs, Atty. Gen., of Maryland, Baltimore, Md., on brief) and Ellen J. Durkee, Dept, of Justice, Washington, D.C. (Robert L. Klarquist, Dept, of Justice; F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., J. Frederick Motz, U.S. Atty., Price O. Gielen, Asst. U.S. Atty., Baltimore, Md., on brief), for appellees.
Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and MILLER, District Judge.
Honorable James R. Miller, Jr., United States District Judge for the District of Maryland, sitting by designation.
JAMES R. MILLER, Jr., District Judge.
I.
This case involves the completion of Section I of the National Freeway in Western Maryland. The National Freeway will provide a highway link between the Ohio Valley and the Atlantic Seaboard. (J.A. Vol. II, II.l). It is intended as a part of the program authorized by Congress in 1965 through the Appalachian Regional Development Act (ARDA), 40 U.S.C. App. § 1 et seq. The ARDA establishes a program, administered by the Appalachian Regional Commission, for providing and upgrading basic infrastructure needs of the Appalachian area, including transportation (Appalachian Development Highway Program), id. § 201, so as to promote economic development in that area. Id. § 2. Corridor E of the National Freeway extends from Morgantown, West Virginia to Hancock, Maryland. Corridor E has been completed since 1976 with the exception of two segments, designated as Sections I and II. These two sections are located in Western Maryland.
Section I of the National Freeway extends from Wolfe Mill to M.V. Smith Road in Allegany County, Maryland.
Originally, Sections I and II were considered together. In 1973, a Draft Environmental Impact Statement (DEIS)/Section 4(f) Statement was prepared covering “build and no-build” alternatives for both sections (J.A. Vol. I at 158-71). On December 12 and 13, 1973, the United States Department of Transportation (USDOT), the Federal Highway Administration (FHWA), the Maryland Department of Transportation (MdDOT), and the Maryland State Highway Administration (SHA) held public hearings for discussions of the proposed alternatives. The Final Environmental Impact Statement (FEIS) for Section II was circulated in August, 1976, and a route location was approved by the Federal Highway Administration in June, 1977. Due to an apparent need for further study of affected areas, route selection for Section I was delayed. Maryland Wildlife Federation v. Lewis, 560 F.Supp. 466, 469 (D.Md.1983).
The DEIS discussed and referenced a number of route alternatives for Section I. The major lines discussed were Line A, BF2, and AGEENA. Line A involved upgrading existing U.S. Route 40, widening and adjusting the road and controlling access from local traffic. (J.A. Vol. I at 162-63). Line BF2 was the most southerly route considered in any depth in the DEIS. (Id. at 163-64). Line AGEENA was called the “mid-corridor” alternative to Lines A and BF2. (Id. at 164-65). Other permutations of the routes were considered in the DEIS, but are of no relevance here. At the December, 1973 hearing, the Maryland Department of Natural Resources, through Anthony Abar, Chief of Program Planning and Evaluation for the Department, recommended that Line A in Section I be selected for the design phase. (J.A. Vol. I at 172-80). In 1974, then Secretary Harry R. Hughes of MdDOT announced that Line AGEENA, the middle alternative, would be recommended' by Maryland highway officials to USDOT for design study. Line A was seen by him as displacing too many people and Line BF2 as posing too severe an impact on State forest land. (Id. at 182-182b).
Preparation of an FEIS/4(f) Statement was delayed as a result of concerns expressed by the United States Department of the Interior that the impact on historical sites had been inadequately addressed. Subsequently, the SHA, the FHWA, and the Maryland Historical Trust worked together with the United States Department of the Interior and the United. States Advisory Council on Historic Preservation to identify historic sites and districts in the AGEA, AGBF2, and AGEENA corridors. (Id. at 183-86).
On January 24, 1978, after a preliminary PEIS was circulated, the agencies held a supplemental location public hearing. Meetings with various agencies subsequently occurred with particular expert viewpoints being expressed regarding the proposed routes. (J.A. Vol. I at 191-201). The FEIS/4(f) Statement for Section I was approved by the Federal Highway Administrator on August 7, 1980. That document recommended that the highway be built along alternate route AGBF2. (J.A. Vol. II). Comments on the FEIS, contained in the Appeal Transcript, were received from the Environmental Protection Agency and the United States Department of the Interi- or. (J.A. Vol I at 202-11).
The parties apparently agree that the Regional Administrator of FHWA, with the approval of USDOT, approved the AGBF2 location for Section I in October, 1980.
II.
In September, 1981, the Maryland Wildlife Federation and Route 40 Advocates (hereafter referred to collectively as “MWF”) filed suit against the Secretary of USDOT and other federal and state officials for declaratory, injunctive and other relief. Aiter the district court granted summary judgment for defendants, Maryland Wildlife Federation v. Lewis, 560 F.Supp. 466 (D.Md.1983), this appeal followed.
The issues presented on appeal are: (1) Whether the Secretary of Transportation arid the other defendants failed to comply with section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (current version at 49 U.S.C. § 303 (1983)), and section 18(a) of the Federal-Aid Highway Act, 23 U.S.C. § 138, by failing (a) to determine which alternative route for Section I of the National Freeway System would minimize harm to state forests, recreational areas, and historical sites affected by construction of that segment of highway and (b) to select the route which minimizes the harm; and (2) Whether the Secretary of Transportation and the other defendants failed to comply with section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, by failing adequately to consider the no-build and the Route 40 Upgrade Alternative because of the mistaken belief that these options were precluded by the Appalachian Regional Development Act, 40 U.S.C. App. § 1 et seq.
III.
The term “4(f)” in the present context refers to section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f). Section 4(f) has been repealed but was recodified without substantial change at 49 U.S.C. § 303. Section 18 of the Federal-Aid Highway Act, 23 U.S.C. § 138, is for the purposes of this appeal identical to section 4(f). These statutes will be referred to collectively herein as “§ 4(f).”
Section 4(f) provides clear and specific directives. The Secretary shall not approve any program or project which requires the use of “publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State or local significance” unless “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 23 U.S.C. § 138; 49 U.S.C. § 1653(f); 49 U.S.C. § 303. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). See also Louisiana Environmental Society, Inc. v. Coleman (LES II), 537 F.2d 79, 82 (5th Cir.1976); Monroe County Conservation Council v. Adams, 566 F.2d 419, 422 (2d Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978).
In Overton Park, the Supreme Court considered the standard of judicial review applicable to a determination of whether the Secretary had acted properly in light of § 4(f)'s requirements. A court must determine whether the Secretary was acting within the scope of his authority and then must determine whether the actual choice made was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Overton Park, 401 U.S. at 415-16, 91 S.Ct. at 823. In making this latter finding, the court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. at 416, 91 S.Ct. at 824. “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Id. at 416, 91 S.Ct. at 823. The final inquiry is whether the Secretary’s actions followed the necessary procedural requirements. Id. at 417, 91 S.Ct. at 824. See also Montgomery County v. United States Environmental Protection Agency, 662 F.2d 1040, 1041-42 (4th Cir.1981).
IV.
The appellants allege that the Secretary exceeded the scope of his authority by failing to consider which route would pose the least harm to all the section 4(f) resources impacted by Section I. Recognizing that all the alternatives, except for “no-build,” would require the taking of some 4(f) land, the appellants limit their appeal to the alleged failure by the Secretary to comply with 4(f)(2). (Appellants’ Brief, at 28; Reply Brief at 3).
Subsection (2) of Section 4(f) is implicated when all of the alternatives which are considered would use protected land. LES II, 537 F.2d at 85. “This [Section 4(f)(2) ] requires a simple balancing process which would total the harm to the recrea- • tional area of each alternate route and select the route which does the least total harm.” Id. at 85-86. See also Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 784 (9th Cir.1980). Specifically, the appellants charge that the only balancing which occurred involved the impact of the proposed construction on historical sites and that impacts on other types of protected lands (in particular, Green Ridge State Park) were ignored. (Appellants’ Brief at 29-30).
Secondly, the appellants indicate that, if anything, section 4(f) was intended to emphasize protection for parklands and forests, not for historic sites. (Appellants’ Brief at 30, n. 44).
Thirdly, the appellants contend that the defendants’ position, accepted by the district court, MWF, 560 F.Supp. at 474-75, that the alternates impacted equally on 4(f) property and therefore the Secretary was free to choose among them, was improper.
A. Balancing of Harm
The FEIS/4(f) Statement discussed five alternatives, AGEENA, No-Build, AGEA, U.S. Route 40 Upgrading Proposal, and AGBF2. (J.A. Vol. II at III.6-12, VI. 1-32).
Alternate AGBF2, the southernmost and shortest alignment, is approximately 16.9 miles long and is located two miles south of existing Route 40. Construction of the highway segment along Line AGBF2 requires the taking of 176 acres of forest and parkland from Green Ridge State Forest, will take 81 acres from the Breakneck Road Historical District, will affect 10 historical properties and will take 2 historic sites. AGBF2 will require 24 residential relocations, 1 business relocation, and 4 farm relocations. Stream relocation equaling 400 feet will be necessary. The cost of this alternative will be 159.6 million dollars of which 18.5 million dollars would be spent for mitigation of harmful environmental impacts.
Alternate AGEA is the northernmost alignment. It would substantially follow the existing Route 40, upgrading that roadway to freeway standards. This route would be 19.11 miles long and would cost approximately 101.6 million dollars to construct. This corridor would necessitate the relocation of 78 families, 11 businesses, 3 farms, and 1 non-profit organization. Land from both the Rocky Gap State Park (22 acres) and the Green Ridge State Forest (133 acres) would be taken. In addition, 10 historical sites would be taken, 32 historical properties would be affected, 23 acres from the Breakneck Road Historical District would be taken, and 12 acres from the Flintstone Historical District would be used. This route would also require the relocation of 16,350 feet of streams. This right of way also affects a potential Wild-land. (Id. at III.8, 12).
Alternate AGEENA is the middle alignment. It would require the taking of 310 acres of the Breakneck Historic District, taking 2 historic sites, affecting 14 historic properties. The right of way also would require the taking of 132 acres of Green Ridge State Forest with 11,650 feet of stream relocation being required. This 18.-02 mile route would cost approximately 118.4 million dollars and would require the relocation of 36 families, 4 businesses, 10 farms and 1 non-profit organization. (Id. at III.6, 8, 12).
The No-Build alternate would involve no construction except for normal maintenance to the existing road. (Id. at III.8).
The U.S. Route 40 Upgrade Proposal took two forms. The original alignment for upgrading existing U.S. Route 40 was Alternate A, very similar in location to AGEA. This alternate addressed the upgrading of existing U.S. Route 40 to a fully controlled access highway. This option was described in the DEIS but was originally dropped from further consideration due to the required displacement of 91 dwellings, 15 businesses, 3 farms and 3 non-profit organizations and the relocation of 4 miles of existing streams. In addition to these disadvantages, this proposal would have most of the adverse effects on parkland and historic sites as would the AGEA route.
The second upgrade proposal for U.S. Route 40 was advanced by a group of citizens known as the Coalition for a Fourth Alternate. Due to a detailed feasibility study conducted by the SHA(J.A. Vol. Ill), this proposal of a dual highway with no controlled access was eliminated from consideration. (J.A. Vol. II at III.8-9).
Our review of the record convinces us that the Secretary did indeed consider the impact of the selected route, not just on historical sites as the appellants contend, but on all types of protected property. The Secretary’s 4(f) statement contained in the FEIS (J.A. Vol. II at VI) compares the effects of the build alternatives, and the Alternates portion of the FEIS compares the three alternative routes. (Id. at III). Each of these sections reviews not just the impact on historical sites, but also the impact on parkland and state forests. A comparison chart (id. at III.12) lists for each of the three alternative routes the number of acres of parkland and historical sites affected and the amount of stream relocation required. Another chart (id. at iii-vi) indicates that the effect on water quality would be severe along Line AGEA and moderate for AGBF2. These references to parts of the administrative record are not meant to indicate an agreement with the choice of AGBF2 but to demonstrate that, contrary to the appellants’ contention, the Secretary did consider the effect the proposed alternatives would have on parkland as well as historical sites. While the delay in the submission of an FEIS was caused by the consideration of historical sites, and even though the Department of the Interi- or, after review of the FEIS, concluded that the AGBF2 would be the most disruptive environmentally, these facts do not support an assertion that the effect of the chosen route on parkland was not considered. Rather, they suggest consideration by the Secretary of all types of protected 4(f) property and the. unavoidable result that, when a choice is made, some individuals or agencies may be disappointed.
Obviously, the views of the Department of the Interior should be given great weight, both by the Secretary and by this court. Nevertheless, nothing in the relevant- statutes or authoritative case law gives the Department of the Interior a veto over route selection of a highway in a situation where, as here, any route selected would have some impact on 4(f) property-
B. Priority of Parkland Over Other 4(f) Property
The district court rejected, 560 F.Supp. at 474, the suggestion of appellants that the Supreme Court in Overton Park interpreted section 4(f) as affording parkland greater protection than other types of 4(f) property such as historical sites. We likewise reject that suggestion. The question of the relative importance or priority of one type of 4(f) property over another type was not an issue in Overton Park. While the Supreme Court did say in that case that parkland “as green havens” were of “paramount importance,” 401 U.S. at 412-13, 91 S.Ct. at 821-822, those comments were made in the context of a comparison of 4(f) property with non-4(f) property, rather than in the context of a comparison of different types of 4(f) property with each other.
Furthermore, the Court stated that the words of the statutes themselves were the primary source of enlightenment as to the intent of Congress in enacting section 4(f). 401 U.S. at 412 n. 29, 91 S.Ct. at 821, n. 29. The statutes themselves, 49 U.S.C. § 1653(f), recodified at 49 U.S.C. § 303, and 23 U.S.C. § 138, do not provide any basis for highlighting and preferring one type of protected property over another.
C. Secretary's Choice of Route Not Based on Finding of Equal Harm
Appellants contend that the Secretary’s act of selecting Line AGBF2 was beyond the scope of her authority because there was no demonstration or finding that the alternate routes had a substantially equal impact on section 4(f) properties. If there had been such an administrative finding based upon substantial evidence, the Secretary would have been able to choose freely among the alternatives. As the Fifth Circuit stated in LES II, 537 F.2d at 86:
Therefore, if an alternate would not minimize harm it would not have to be accepted in lieu of the suggested or adopted route. The Secretary would be free to choose between equal damage alternatives____ If the Secretary’s review should result in concluding that the harm is not only similar but substantially equal, the Secretary could freely choose between these suggested routes.
Id. (Emphasis in original).
This situation, in which the alternate routes would do equal damage thereby permitting the Secretary to choose freely among those routes, is one which will, we think, rarely occur. The quantitative weighing of harm to numerous and different types of valued resources is itself difficult, and the relative harm is not likely often to be capable of precise objective measurement.
In the present case, as the appellants suggest, there is no indication in the record that the Secretary found that the harm occurring along each of the proposed routes was equal and that the Secretary then made a choice among equal alternatives. The judiciary should not read into the weighing process of the Secretary a conclusion of equal harm. The focal point for judicial review is the administrative record, not post hoc rationalizations or interpretations. See Louisiana Environmental Society, Inc. v. Dole (LES III), 707 F.2d 116, 119 (5th Cir.1983).
The mere fact, however, that the Secretary did not conclude that the harm caused by the alternative routes would be equal does not necessarily mean that the Secretary’s scope of authority was exceeded. If the Secretary chose the alternative which reasonably could be viewed as the one which minimized harm to the protected property, as required by § 4(f)(2), then the Secretary acted within the scope of her authority. An examination of that determination is made in the next section.
V.
We turn now to the merits of the specific determination made by the Secretary. The appellants contend that the choice of AGBF2 was arbitrary and capricious, an abuse of discretion and otherwise not in accordance with law in that (1) the Secretary failed to weigh all the relevant factors by failing to consider the adverse impact on Green Ridge State Forest, and (2) that the selection of AGBF2 was a clear error of judgment under section 4(f)(2) because it is the most environmentally damaging.
Under the “arbitrary and capricious” standard, the reviewing court must determine whether the selection of AGBF2 was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. As this court has previously stated,
the court is “not [to] make the ultimate decision” but only to see “that the official or agency take a ‘hard look’ at all relevant factors.” This is so because the power of judicial review in this area, is a narrow one to be applied within reason, and in essence is confined to a determination of whether the administrative decision “represented a clear error of judgment.” In making such determination, the court is not to be led into construing the mandating statutes as a device to be used as “a crutch for chronic faultfinding”____ In sum, so long as the court, in its review, observes the rule of reason and practicality and takes a “hard look” at the relevant factors, it performs its obligation under the statutes.
Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398, 400 (4th Cir.1977) (citations omitted). In the same vein, the Ninth Circuit has stated:
even under the exacting § 4(f) requirements, the judicial branch may not “fly speck,” if it appears, in its review, that all factors and standards were considered. Whether or not the reports and studies use the “magic” terminology, there has been a reasonable and thorough review of a voluminous record accumulated over a span greater than ten years, which includes extensive public contribution.
Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir.1982). See also Louisiana Environmental Society, Inc. v. Dole, (LES III), 707 F.2d 116, 122-23 (5th Cir.1983); Monroe County, 566 F.2d at 426.
The burden of proof is on the challenging appellants to establish that the Secretary of Transportation acted improperly in approving the use of protected 4(f) property. Monroe County, 566 F.2d at 422 (and cases cited therein). See also LES III, 707 F.2d at 119.
In an attempt to meet that burden, the appellants contend that the decision to choose route AGBF2 was arbitrary and capricious, because the Secretary failed to consider its adverse impact upon Green Ridge State Forest. Our reading of the record does not support that contention. Section VI of the FEIS/4(f) Statement clearly shows that an analysis was made of the impact of the alternative routes on parkland in general and on Green Ridge State Forest in particular. (J.A. Vol. II at VI.8-12). In addition, mitigation measures for the harm to Green Ridge State Forest were considered and adopted as a part of the proposal for route AGBF2. (Id. at VI.31-32). These sections of the FEIS also indicate that the Secretary did consider, contrary to the appellants’ assertion, the impact of fragmentation of a part of the Green Ridge State Forest. (J.A. Vol. II, v, V.4-5, V.9, V.25-44). In short, the Secretary’s decision will not be found to be inadequate because of a failure to consider an impact on Green Ridge State Forest.
Next, the appellants contend that the selection of route AGBF2 constitutes a clear error of judgment in light of the comments made by the Department of the Interior by letter, dated October 28, 1980, and the Environmental Protection Agency (EPA) by letter of October 20, 1980.
In commenting on the FEIS, the- United States Department of the Interior expressed its view, stating that AGBF2 was “the most environmentally damaging alternative, and that it will cause irreparable harm to the recreational and fish and wildlife values of the Green Ridge State Forest.” The Interior Department preferred a modified AGEA route. The Department based its comments, at least in part, on its view that the AGEA route would use 200 acres less of the proposed total area of Green Ridge State Forest than would AGBF2, that the use by AGEA of Rocky Gap State Park land could probably be limited, that the four miles of stream relocation of AGEA would be less adverse than the impact of the AGBF2 route on seven major high quality streams, that the AGEA route would have less adverse impact on cultural and historic sites than would AGBF2, that the relocation of families and businesses required by the AGEA route would not be so numerous as to fit within the “community disruption ... [of] extraordinary magnitudes” exception stated in Overton Park, 401 U.S. at 413, 91 S.Ct. at 822, as a possible basis for the use of 4(f) property for a highway route, and that mitigation efforts would not be to the degree proposed when the effects of inflation and delay were considered. (J.A. Vol. I at 206-11).
The EPA commented that it had several reservations about the FEIS because it felt that some topics had not been fully discussed. The EPA did not suggest a particular alternative route to AGBF2 (J.A. Vol. I at 202-05), but in 1973 it had said that Line A was the least desirable alternative from an environmental viewpoint. Adm. Record, Exh. 51 at 3.
While there is no doubt that the choice of AGBF2 is one which will have an environmental impact, this court cannot conclude that the Secretary’s choice of AGBF2 is an unreasonable one. Although the Interior Department and the EPA raised several objections to the AGBF2 alternative as presented in the FEIS/4(f) Statement, those agencies did not have a veto over the route to be selected by the Secretary and their comments did not necessarily eliminate the power of the Secretary to give greater weight to other information and views in the administrative record. 23 U.S.C. § 138; 49 U.S.C. § 303(b) (1983) (formerly codified at 49 U.S.C. § 1653(f)) (stating that the Secretary of DOT “shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States” (emphasis added), but making it clear that any determination and subsequent approval is to be made by the Secretary). 49 U.S.C. § 303(c). See also 23 CFR § 790.7(a)(2).
The October 28, 1980 comments by the Department of the Interior were not made within the thirty-day review period allowed by the Council on Environmental Quality’s regulations (40 CFR § 1506.9). The State and Federal highway officials responded to these comments, as far as the record before the court shows, through a notation by a USDOT official, that no action on Interi- or’s comments was then necessary and that Interior would have a representative on the final design team and through a letter to Interior in early 1981. (Admin.Ree., Exh. 240). The factual underpinnings of Interi- or’s opinions expressed in its October 28, 1980 letter were the subject of several sections of the FEIS/4(f) Statement.
The United States Advisory Council on Historic Preservation concluded that route AGBF2 was preferable over the AGEA and the AGEENA alternatives. (J.A. Vol. II at X.G-5). An earlier letter from the Department of the Interior also indicated that AGBF2 was the preferable route in terms of historical preservation. (J.A. Vol. II at X.G-14). The Memorandum of Agreement reached between the Maryland State Highway Administration and the Maryland Department of Natural Resources included extensive mitigation plans including the construction of structures to provide continuity of existing trails for hikers, wildlife, timber management and fire control to minimize the effect of fragmentation of Green Ridge State Forest. (J.A. Vol. II at X.B). The Advisory Council on Historic Preservation also entered into a Memorandum of Agreement to minimize AGBF2’s impact on 4(f) historic property. (J.A. Vol. II at XA). The FEIS also noted that the AGEA route would have required acreage from two historic districts, the Flints tone district and the Breakneck Valley Historic District. (J.A. Vol. II at VI.20). The number of historic sites affected by the AGEA and AGBF2 routes is also incorrectly compared by Interior in the 1980 letter. The letter erroneously states that AGEA affects 10 sites and AGBF2 impacts six when in fact AGEA takes 10 sites and adversely affects 32 others while AGBF2 takes two sites and affects 10 others.
In contrast to the viewpoint expressed by the Department of the Interior, the Maryland Department of Natural Resources and MdDOT concluded that the decision to follow AGBF2 was a decision based upon the joint determination that AGBF2 represented the most appropriate, feasible and acceptable of alignments considered from the viewpoint of service, engineering, and impact on the forest, and the proposed Wild-land area at Polish Mountain. (J.A. Vol. II at X.b-2). The AGEA line would have impacted a part of the Green Ridge State Forest at Polish Mountain which is potential Wildland area. (Id. at VI.8-10).
Appellants argue that the “minimization” prong of section 4(f) cannot be met, even in part, by generalized agreements to mitigate specific adverse environmental impacts of a particular route in the absence of a detailed design plan, citing D. C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir.1972), in support of that proposition. It is true that the District of Columbia Circuit said in that case, involving section 4(f) property, that “[ajbsent a finalized plan for the bridge, it is hard to see how the Department could make a meaningful evaluation of ‘harm,’ ” id., in satisfaction of the requirements of the second prong of section 4(f). That statement by the panel majority was later modified, however, in denying rehearing, when it said:
It is equally well to note, as the Government points out, that in such a project the Secretary must be permitted to make decisions in what might be called a progressive manner — not everything can be pulled together all at once. But when decisions necessary to final approval are made, such as those required with respect to parklands by Section 138 of Title 23, they must be made conditionally and tentatively, subject to readjustment and . reconsideration as the process toward final determination goes forward. And final approval must await and be dependent upon completion of this process.
Id. at 1268.
It is totally unrealistic, as well as in violation of the Federal-Aid Highway Act, to require final design of a proposed highway before, the corridor location of that highway is resolved. The statutory and regulatory scheme contemplates that location approval of a proposed federal-aid highway take place first, 23 U.S.C.’§ 103(d) and (f); 23 CFR § 790.9(e)(2)(i
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer:
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songer_genresp2
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I
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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 second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Alfred PLAYER, Appellant, v. William F. STEINER, Warden, Maryland House of Correction, Appellee.
No. 8171.
United States Court of Appeals Fourth Circuit.
Argued Nov. 15, 1960.
Decided Nov. 17, 1960.
Stephen D. Moses, Baltimore, Md. (Court-assigned counsel), for appellant.
James H. Norris, Jr., Sp. Asst. Atty. Gen. of Maryland (C. Ferdinand Sybert, Atty. Gen. of Maryland, on brief), for ap-pellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
PER CURIAM.
This is an appeal from a denial, without a hearing, of a petition for a writ of habeas corpus by a state court prisoner.
Player was convicted upon a charge of housebreaking, from which no appeal was taken. Later, he filed a petition under Maryland’s Post Conviction Procedure Act, Code 1957, art. 27, § 645A et seq., in which he contended that he had requested his counsel to appeal his conviction, but that he had been denied the opportunity to. obtain new counsel and to take an appeal by actions of the warden in whose custody he was held. This petition was denied after a hearing in which Player was represented by court-appointed counsel.
Player applied to the Court of Appeals of Maryland for leave to appeal, in which he asserted that the evidence did not prove a forceful entry. This was the ground upon which the petition under the Post Conviction Procedure Act was originally filed, but it had been abandoned after consultation by Player with his court-appointed counsel, and by amendment the petition was changed to raise only the question of the asserted denial of the right of appeal from the original conviction. Leave to appeal was denied, therefore, upon the ground that the question of sufficiency of the evidence had not been effectively raised in the Circuit Court for Montgomery County. Player v. Warden, 222 Md. 619, 159 A.2d 852.
Thereafter Player applied to Chief Judge Bruñe of the Court of Appeals of Maryland for a writ of habeas corpus. This petition was transferred for a hearing by a judge of the Supreme Bench of Baltimore City. Judge Warnken, of that Court, dismissed the petition.
At the time of the hearing in the District Court, there had been no application to the Supreme Court of the United States for a writ of certiorari to the Court of Appeals of Maryland to review its decision in the proceedings under the Post Conviction Procedure Act, or to the Supreme Bench of Baltimore City to review Judge Warnken’s denial of a writ of habeas corpus. We are informed that, while this appeal was pending, Player did file an untimely petition in the Supreme Court of the United States for a writ of certiorari to the Court of Appeals of Maryland, and that this petition was denied on October 17, 1960. Player v. Steiner, 81 S.Ct. 108.
From the foregoing, it clearly appears that Player has not exhausted his state remedies. The question he seeks to present here was not presented to the Circuit Court for Montgomery County and his application for leave to appeal upon the ground he now urges was denied by the Maryland Court of Appeals upon the . ground that it had not been presented to> the lower court. After denial of his petition for a writ of habeas corpus by Judge Warnken, he made no effort to have that decision reviewed in any court. The District Court properly denied the petition without a hearing, since it plainly appears that state remedies have not been exhausted. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761.
This appeal was filed without a certificate of probable cause from the District Judge. After considering the record and hearing court-appointed counsel, the members of this Court find no merit in the appeal. The appeal will be dismissed for want of a certificate of probable cause to appeal.
Appeal dismissed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appstate
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff, Appellant, v. Andrzej ROSNER, a/k/a Andrew Rosner, Defendant, Appellee.
No. 5278.
United States Court of Appeals First Circuit.
Heard Oct. 1, 1957.
Decided Oct. 28, 1957.
Arnold Williamson, Jr., Asst. U. S. Atty., Providence, R. I., with whom. Joseph Mainelli, U. S. Atty., Providence, R. I., was on the brief, for appellant.
Paul E. Kelley, Providence, R. I., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
The United States is here appealing from an order admitting appellee, Andrew Rosner, to citizenship under the authority of Sec. 328 of the Immigration and Nationality Act of 1952, 66 Stat. 249 (1952), 8 U.S.C.A. § 1439, which provides in part:
“(a) A person who has served honorably at any time in the armed forces of the United States for a period or periods aggregating three years, and, who, if separated from such service, was never separated except under honorable conditions, may be naturalized without having resided, continuously immediately preceding the date of filing such person’s petition, in the United States for at least five years, and in the State in which the petition for naturalization is filed for at least six months, and without having been physically present in the United States for any specified period, if such petition is filed while the petitioner is still in the service or within six months after the termination of such service.”
The Naturalization Examiner made specific findings of fact that the petitioner entered the United States Army on September 27, 1950; that he was honorably relieved from active duty September 26, 1952 and was transferred to the United States Army Reserve September 27, 1952 of which he continued to be a member until his honorable discharge September 6, 1956. However, the Examiner recommended that the petitioner be denied citizenship because of his failure to establish honorable service in the armed forces for a period or periods aggregating three years as required by the above statute.
The district court found that there was substantially no dispute as to the facts and agreed with the Naturalization Examiner that petitioner had spent two years in the United States Army on an active duty basis and that following that active service was a member of the United States Army Reserve on an inactive basis for slightly less than four years. However, the district court found that Sec. 328 did not require the petitioner to be in active service and that because the petitioner was not discharged from the armed forces until approximately six years after his induction and was subject to recall in the event of an emergency during the entire period while a member of the Reserve, it had been shown that he had, in the words of Sec. 328, “served honorably * * * in the armed forces of the United States for a period or periods aggregating three years. * * *"
The United States now contends that the district court erred in its rejection of the Naturalization Examiner’s recommendation of denial of petitioner’s application for citizenship and in its interpretation of Sec. 328.
In a subsidiary argument first mentioned in its brief and not argued or raised before the district court, the United States now contends that petitioner did not comply with Sec. 328(b) (3) in presenting evidence that he had served in the armed forces the requisite period of time. It appears from the record that the Naturalization Examiner had been furnished with: (1) a certificate as required by the Immigration and Nationalization Service from the Adjutant General but that this certificate indicated the petitioner was given an honorable separation or discharge on September 26, 1952; (2) a certificate from a warrant officer that petitioner had been a member of a Ready Reserve unit entitled 1291st USAR Central Group (Reinforcement) from January 1, 1954 to September 6, 1956, and (3) a certificate signed by the same warrant officer certifying that petitioner was a member of the Ready Reserve (Active Status) who had been inducted September 27, 1950, transferred September 27, 1952 to the Reserve and that he “was Honorably Discharged from the Army of the United States” on September 6, 1956. That the Naturalization Examiner found this evidence sufficient to establish that petitioner had been a member of the United States Army Reserve from September 27, 1952 to September 6, 1956 is firmly indicated by a specific conclusion of law he made to that effect and submitted to the district court. No objection was made during the hearing before the district court that the petitioner had not proved that he had been a member of the Reserve following his separation from active service and prior to his honorable discharge. It is a general rule of law that only in exceptional cases will questions not raised and not properly preserved for review in the court below be noticed on appeal. See Duignan v. United States, 1927, 274 U.S. 195, 200, 47 S. Ct. 566, 71 L.Ed. 996; Hutchinson v. Fidelity Inv. Ass’n, 4 Cir., 1939, 106 F.2d 431, 436.
If the Naturalization Examiner had refused to accept petitioner’s evidence it might well have been possible for the petitioner to obtain a certificate from the Adjutant General better describing his period of service in the armed forces. Cf. McCandless v. Furlaud, 1934, 293 U.S. 67, 55 S.Ct. 42, 79 L.Ed. 202. We, therefore, will not undertake to discuss this contention of the United States which was not only made too late, Parker v. Motor Boat Sales, 1941, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, but is also a technical one which, if granted in this particular case, would only result in the case being heard again after petitioner secured another certificate from the Adjutant General.
The main issue raised in the appellant’s appeal and by the district court’s decision is concerning the definition of the words “served honorably” in Sec. 328. It is to be noted that Sec. 329 of the Act, 66 Stat. 250 (1952), 8 U.S. C.A. § 1440 provides that “(a) Any person who * * * has served honorably in an active duty status” during World War I or World War II may be naturalized even though he has not met some of the usual requirements necessary for eligibility to citizenship. It seems likely that Congress, if it had meant the words “served honorably” in Sec. 328 to require such service to be in an active duty status, would have inserted that requirement specifically in Sec. 328 as it has done in Sec. 329. Moreover, in 67 Stat. 108 (1953), 8 U.S.C.A. § 1440a, which deals with naturalization through active service in the armed forces after June 29, 1950, it is expressly stated that the person petitioning for naturalization must be one who has “actively served” in the armed forces for a period or periods totalling not less than ninety days. Congress has expressly inserted the words “active” or “actively” in reference to the type of military service required in two sections of the statute dealing with the naturalization of aliens who have served honorably in the armed forces. By its omission of any reference to active service, there is a strong inference that Congress meant the type of military service, required under Sec. 328 to be somewhat different than that required by Sec. 329 and 8 U.S.C.A. § 1440a. Moreover, Sec. 328 requires that the petitioner must have been lawfully admitted for permanent residence. Sec. 329 allows aliens to be naturalized even though they may have entered the United States illegally so long as they were in this country at the time of enlistment or induction. Title 8 U.S.C.A. § 1440a allowed aliens coming under its provisions to be naturalized even though they were not admitted for permanent residence providing they had been lawfully admitted and had been physically present within the United States for a single period of at least one year at the time of entering the armed forces. It would not be illogical to contend that Congress intended to require higher standards of military service in Sec. 329 and 8 U.S.C.A. § 1440a in return for allowing aliens who had not been lawfully admitted to the United States for permanent residence the advantage of practically immediate citizenship under the provisions of Sec. 329 and only a one year period of residence under 8 U.S.C.A. § 1440a.
Sec. 328, on the other hand, requires the alien to have been admitted to this country for permanent residence. It further requires a period of three years in military service, unlike Sec. 329, which sets no minimum length on the period of time served during World War I or World War II and 8 U.S.C.A. § 1440a, which requires a period of ninety days in active military service.
In order to further define the status of the petitioner during the period prior to his discharge from the armed forces it is helpful to refer to the language of Congress in setting up the reserve components of the armed forces.
10 U.S.C. § 651 (Supp. IV. 1957) provides in part that:
“(a) Each male person who becomes a member of an armed force before his twenty-sixth birthday shall serve in the armed forces for a total of eight years, unless he is sooner discharged because of personal hardship under regulations prescribed by the Secretary of Defense or, if he is a member of the Coast Guard while it is operating under the Department of the Treasury, by the Secretary of the Treasury. For the purpose of computing service under this subsection, a member of an armed force may count service in the National Security Training Corps as if it were service in the armed forces.
“(b) Each person covered by subsection (a) who is not a Reserve, and who is qualified, shall, upon his release from active duty, be transferred to a reserve component of his armed force to complete the service required by subsection (a).”
10 U.S.C. § 267 provides:
“(a) There are in each armed force a Ready Reserve, a Standby Reserve, and a Retired Reserve. Each Reserve shall be placed in one of those categories.
“(b) Reserves who are on the inactive status list of a reserve component, or who are assigned to the inactive Army National Guard or the inactive Air National Guard, are in an inactive status. Members in the Retired Reserve are in a retired status. All other Reserves are in an active status.”
It thus appears that Congress intended membership in the Reserve to be an integral part of the required eight years service in the armed forces. A clear distinction is made between “active duty” and “service” in the armed forces in § 651(b).
Under our interpretation of the above statutes, the petitioner has served honorably in the armed forces of the United States for a period of more than three years and having complied with this requirement of Sec. 328, his petition for naturalization was properly granted.
A judgment will be entered affirming the order of the district court.
. “The petitioner shall furnish to the Attorney General, prior to the final hearing upon his petition, a certified statement from the proper executive department for each period of his service upon which he relies for the benefits of this section, clearly showing that such service was honorable and that no discharges from service, including periods of service not relied upon by him for the benefits of this section, were other than honorable. The certificate or certificates herein provided for shall be conclusive evidence of such service and discharge.”
. There was uncontradicted testimony by the petitioner before the district court that following his separation from active service on September 26, 1952 he was transferred to a reserve unit stationed in Pennsylvania, and it appears that on his relocating to Rhode Island he was transferred to the reserve unit named in this certificate.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_casetyp1_2-3-3
|
K
|
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 - other civil rights".
Ernestine BENTLEY, Bonnie Collins, Ben Hall and Vera Hall, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. South East Coal Company, Intervenor.
No. 79-1396.
United States Court of Appeals, Sixth Circuit.
Argued May 24, 1979.
Decided March 9, 1981.
Angela Sherbo, Appalachian Research and Defense Fund of Kentucky, Inc., Alva A. Hollon, Jr., Hollon, Hollon & Hollon, Hazard, Ky., for petitioners.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., David A. Fleischer, Washington, D. C., Emil C. Farkas, Director, Region 9, N.L.R.B., Richard A. Fleischer, Cincinnati, Ohio, for respondent.
Before LIVELY and KEITH, Circuit Judges, and BOYLE, District Judge.
Hon. Patricia Boyle, United States District Judge for the Eastern District of Michigan, sitting by designation.
ORDER
Bonnie Collins, Ernestine Bentley, and Vera Hall brought this matter upon a petition for review of a May 24, 1979 order for the NLRB reported at 242 NLRB 95. That decision dismissed a consolidated complaint against South East Coal Co. as being time barred under Section 10(b) of the National Labor Relations Act.
The petitioners are daughters of Ben Hall. Both before and after his retirement from South East Coal Co. in 1954 Ben Hall was an active supporter of the union. In 1962 and 1963 he picketed at the company’s premises during a strike which the union had called against it. Daniel Quillen, vice president in charge of operations of the company, who has done all its hiring since December 1971 was aware of Ben Hall’s membership in and activities on behalf of the union.
In August, 1976, Collins and Bentley filed complaints with the Kentucky Commission on Human Rights, alleging that the company had refused to employ them because of their sex, in violation of the state civil rights law. Their aunt, who had previously filed a similar complaint, was subsequently offered employment by the company under a conciliation agreement. Under that agreement, the company also placed an advertisement in local newspapers, stating that it was an equal opportunity employer, and that it was seeking applications from all qualified persons. The advertisement further stated that all previous applications were considered inactive, and that any past applicants who wished to be considered for employment must reapply.
As a result, Bentley filed an application for employment, dated September 3, 1976, and received by the company on September 16, 1976. Vera Hall filed an application dated September 17, 1976, and received by the company on September 20, 1976. Collins filed an application dated December 8, 1976, and received by the company on December 11, 1976. The application forms stated that all applications would be considered inactive after six months, and that anyone who still wished to be considered for employment after that period would have to reapply.
Company vice-president Quillen interviewed Bentley on September 24, 1976, and Vera Hall on September 29. Quillen decided, on the days the interviews were held, that he would not hire these applicants, and did not subsequently reconsider the decision. He did not interview Collins or reconsider his prior rejection of her. None of the sisters subsequently reapplied for employment.
The Kentucky Commission on Human Rights dismissed the sex discrimination complaint filed by Collins and Bentley in September, 1977. They filed motions for reconsideration, which the Commission denied, indicating that the company had said that it had not hired, and would not hire, Collins and Bentley because their father, Ben Hall, had a pro-union reputation.
On November 22, 1977, Collins filed a charge with the NLRB alleging that the company had discriminatorily refused to hire her. This charge was served on the company on November 23, 1977. On December 5,1977, Bentley filed, and served on the company, a charge alleging that the company had discriminatorily refused to hire her. On March 27, 1978, the Regional Director issued a complaint alleging that, [Sjince on or about May 23, 1977, the company had hired other employees while discriminatorily refusing to hire Collins and Bentley. On May 30, 1978, the complaint was amended to allege that Vera Hall, as well as Collins and Bentley, was discriminatorily denied employment “[Sjince on or about May 23, 1977.”
On the foregoing facts, the Board found, in agreement with the ALJ, that the company had refused, prior to May 23, 1977, to hire each of the three sisters because of their father’s reputation as an active supporter of the union. However, the Board concluded that the general counsel had failed to prove that any discriminatory refusal to hire had occurred on or after May 23, 1977. Accordingly, the Board found that any unfair labor practices occurred more than six months before the filing of the charges herein, and were therefore barred by Section 10(b) of the Act. The Board therefore dismissed the complaint in its entirety.
Our standard for reviewing the Board’s finding of fact here is whether there is substantial evidence to support the Board’s decision. See N. L. R. B. v. Challenge-Cook Bro. of Ohio, Inc., 374 F.2d 147 (6th Cir. 1967). We believe that the Board’s finding that the company refused to hire the petitioners before May 23, 1977, and not after that date, is supported by substantial evidence. Accordingly, the petition for review is denied.
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer:
|
songer_casetyp1_2-3-2
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination".
Hattie PAULK, Plaintiff-Appellant, v. DEPARTMENT OF the AIR FORCE, CHANUTE AIR FORCE BASE, Defendant-Appellee.
No. 86-2687.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 25, 1987.
Decided Sept. 14, 1987.
John H. Otto, Zimmerly, Gadau, Selin & Otto, Champaign, Ill., for plaintiff-appellant.
David H. Hoff, U.S. Attys. Office, Danville, Ill., for defendant-appellee.
Before CUMMINGS and WOOD, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
CUMMINGS, Circuit Judge.
Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint with the Department of the Air Force (“Air Force”) alleging that she was subject to reprisals when Air Force officials failed to carry out an agreement resulting from her previous, successful EEO complaint wherein the Air Force found that she was not selected for a position because of discrimination (she is a black female) and remedied that wrong by putting her in a job similar to the one she had sought. In the instant complaint, plaintiff made a second allegation of harassment because of her race, sex, and previous, successful EEO complaint, but this was dismissed for failure to provide specific information regarding the incidents so as to allow the Air Force to investigate them. The EEOC affirmed the dismissal of her second allegation and issued a right-to-sue letter, and plaintiff filed this action pro se and in forma pauperis in the district court. Plaintiff used a pro se complaint supplied to her by the Clerk of the United States District Court for the Central District of Illinois. The pre-printed form complaint bore on its first page the name of the court and the heading “PRO SE COMPLAINT AGAINST EMPLOYMENT DISCRIMINATION, UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. §§ 2000e-2 AND 2000e-5." The in forma pauperis petition was granted and the complaint was served on May 15, 1985, upon the Air Force by certified mail and upon the United States Attorney by personal service. (Defendant’s Br. 2.)
The government moved to dismiss the action on the basis that it named the wrong party as the defendant. The pro se complaint named the “Department of the Air Force,” the defendant named in the EEO complaint, and not “Casper Weinberger, Secretary of Defense,” the official the district court held to be the proper party under 42 U.S.C. § 2000e-16(c). That section requires that for civil actions seeking judicial review of EEOC decisions, “the head of the department, agency, or unit, as appropriate, shall be the defendant.” 42 U.S.C. § 2000e-16(c). This cryptic phrase provides little guidance to litigants, and, in fact, one court of appeals decided in a similar case that the Secretary of the particular branch of the armed services, here the Secretary of the Air Force, rather than the Secretary of Defense, the official selected by the district court, is the proper party. Rice v. Hamilton Air Force Base, 720 F.2d 1082, 1084 (9th Cir.1983) (proper party for person alleging discriminatory termination from a Navy commissary job is the Secretary of the Navy). The Secretary of the Air Force would appear to be the correct party in this action — the parties do not address the point of which Secretary is the correct party — but we are certain that the Department of the Air Force is the incorrect party.
The district court dismissed the suit because plaintiff named the wrong federal governmental defendant and failed to give actual notice of the suit to the correct party within the thirty-day limitations period. The court noted that after the defendant filed its motion to dismiss, plaintiff attempted to amend her complaint to name the correct party under the relation-back provision of Federal Rule of Civil Procedure 15(c), but it held that plaintiff failed to give actual notice to the proper party within the thirty-day period (Plaintiffs App. 25). The court relied on Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), and Hughes v. United States, 701 F.2d 56 (7th Cir.1982), which hold that for relation back under Federal Rule of Civil Procedure 15(c) to apply, the defendant must receive actual notice, such as service of process, within the applicable limitations period. Neither of those cases dealt with a limitations period as short as the thirty-day period of 42 U.S.C. § 2000e-16(c), and the hardships occasioned by service of the proper defendant within that period cannot be lightly ignored. However, that is the import of Schiavone and Hughes and plaintiff does not argue that the shorter period here warrants some exception from this interpretation of Rule 15(c). We have held that the thirty-day limitations period is jurisdictional as to federal governmental defendants, Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984), because, as a waiver of sovereign immunity, it must be strictly construed. Further, we have held that the naming of one federal governmental entity is not the same for notice purposes as naming another. Hughes, 701 F.2d at 58. Plaintiffs failure to give the correct defendant actual notice within the thirty-day limitations period would bar this action, unless some exception is applicable here.
Plaintiff argues that she named the Department of the Air Force as the defendant because the pro se complaint form directed her to name that entity as the proper party for her civil action. Part III of the form complaint is labeled “PARTIES TO YOUR PRO SE COMPLAINT OF EMPLOYMENT DISCRIMINATION” and section C thereunder states:
C. Defendants) (You should name here the first-named respondent, or else its successor, in the previous EEOC proceeding brought by you or on your behalf).
(Record Item 1; Plaintiffs App. 4). The complaint form further directed pro se litigants in section C, number 5 that “you should name additional defendants only if they were names [sic] as respondents in a previous EEOC proceeding brought by you or on your behalf” Id. (emphasis added). Plaintiff wrote in “Department of Air Force United States,” which was the correct response to the district court’s complaint form, yet contrary to the statutory requirement.
Plaintiff argues that she should not be barred from prosecuting her action. Paulk filed her complaint and in forma pauperis papers within the thirty-day limitations period. She named the wrong defendant, but upon the granting of her motion to proceed in forma pauperis, service was had on both the Air Force and the United States Attorney. Defendant admits this (Br. 2). Service upon the United States Attorney within the limitations period is declared by Rule 15(c) to satisfy that rule’s two requirements for relation back to change a party after the limitations period has expired. Fed.R.Civ.P. 15(c). The rule states:
The delivery or mailing of process to the United States Attorney, or his designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.
The Advisory Committee comments to the 1966 Amendment of Rule 15(c) make clear that this provision was intended for precisely the situation in the present case:
[A]n individual denied social security benefits by the Secretary of Health, Education, and Welfare may secure review of the decision by bringing a civil action against that officer within sixty days. 42 U.S.C. § 405(g) (Supp. Ill, 1962). In several recent cases the claimants instituted timely action but mistakenly named as defendant the United States, the Department of HEW, the “Federal Security Administration” (a non-existent agency), and a Secretary who had retired from the office nineteen days before. Discovering their mistakes, the claimants moved to amend their complaints to name the proper defendant; by this time the statutory sixty-day period had expired. The motions were denied on the ground that the amendment “would amount to the commencement of a new proceeding and would not relate back in time so as to avoid the statutory provision ... that suit be brought within sixty days____” [Citations omitted.]
Relation back is intimately connected with the policy of the statute of limitations. The policy of the statute limiting the time for suit against the Secretary of HEW would not have been offended by allowing relation back in the situations described above. For the government was put on notice of the claim within the stated period — in the particular instances, by means of the initial delivery of process to a responsible government official (see Rule 4(d)(4) and (5)). In these circumstances, characterization of the amendment as a new proceeding is not responsive to the reality, but is merely question-begging; and to deny relation back is to defeat unjustly the claimant’s opportunity to prove his case.
Here the complaint was served on the United States Attorney and thus relation back of the change of governmental parties was appropriate under Rule 15(c). Vernell v. United States Postal Serv., 819 F.2d 108, 110 n. 2 (5th Cir.1987); Edwards v. United States, 755 F.2d 1155, 1157-1158 (5th Cir.1985) (per curiam). This result is consistent with our earlier case of Hughes because there service was not had within the limitations period and thus this provision of Rule 15(c) was inapplicable. Hughes, 701 F.2d at 58-59; see Edwards, 755 F.2d at 1157 (discussing Hughes and noting this distinction). The complaint was not served on the Attorney General of the United States, but this need not be done to allow relation back after the expiration of the limitations period because the notice requirement in this paragraph of Rule 15(c) is stated in the alternative. Vernell, 819 F.2d at 110 n. 2; Edwards, 755 F.2d at 1158. But see Allen v. Veterans Admin., 749 F.2d 1386, 1390 (9th Cir.1984) (preSchiavone case where neither the United States Attorney nor the Attorney General of the United States was served within the limitations period, id. at 1388-1389, but stating in dictum that both must be served to allow relation back under Rule 15(c)). The plain language of Rule 15(c) stating the requirements for relation back calls for this result, and the Supreme Court directed in Schiavone that Rule 15(c) should be interpreted in accord with its plain language. 106 S.Ct. at 2385. Service of process on the United States Attorney gave, pursuant to Rule 15(c), the proper federal governmental defendant notice of the action and of the mistaken naming of the wrong governmental defendant and thus the district court should have granted plaintiff’s request to amend her complaint.
Because plaintiff petitioned for leave to proceed in forma pauperis, see 28 U.S.C. § 1915, the United States Attorney was not actually served with the pro se complaint for more than a month after the complaint was filed and the statute of limitations had run. This delay is fully expectable due to this Circuit’s rule that the district judge may consider whether the complaint is frivolous or malicious before granting leave to proceed in forma pauperis under § 1915(a) and authorizing issuance of the summons and service of the complaint. Jones v. Morris, 777 F.2d 1277, 1279 (7th Cir.1985) (“In this circuit, the district court conducts this inquiry [concerning frivolousness or maliciousness] even before the defendants are served.”); Wartman v. Branch 7, Civil Div., County Court, 510 F.2d 130, 134 (7th Cir.1975) (same). The delay in deciding to grant this motion could easily consume the thirty-day limitations period and make impracticable the filing of in forma pauperis petitions in such suits. Tolling the limitations period during the pendency of such a motion, even when the federal government is the defendant, allows 28 U.S.C. § 1915 and Rule 15(c) to operate harmoniously, instead of denying the benefits of the 1966 Amendment of Rule 15(c) to the very plaintiffs who are most likely to need it. See supra at pp. 81-82 (Advisory Committee comment attributing purpose of 1966 Amendment of Rule 15(c) to assist groups, such as Social Security claimants, that were having difficulties ascertaining the proper governmental defendant).
The in forma pauperis statute and Rule 15(c) interact to allow for tolling during the pendency of the § 1915 motion. This interpretation is analogous to our conclusion in Brown v. J.I. Case Co., 756 F.2d 48 (7th Cir.1985), where we held in a case involving a private defendant that the filing of an application for appointment of counsel along with a right-to-sue letter tolls the limitations period while the counsel request is pending. Similarly, the Sixth Circuit has held that because “the filing, processing and decision of the motion for counsel could consume the entire 30-day period,” the motion for appointment of counsel tolls the statute of limitations until the motion is decided and for a reasonable time thereafter. Harris v. Walgreen’s Distribution Center, 456 F.2d 588, 591-592 (6th Cir.1972). Additionally, an in forma pauperis plaintiff is not chargeable with this delay because it is solely within the control of the district court, and to prevent relation back under Rule 15(c) whenever the district court has not authorized the issuance of summons and service of the complaint within the limitations period would violate equal protection because similar claims would be treated drastically differently only on the basis of the speed with which the court chose to process them. Logan v. Zimmerman Brush Co., 455 U.S. 422, 441-442, 102 S.Ct. 1148, 1160-1161, 71 L.Ed.2d 265 (1982) (separate opinion of Blackmun, J.); id. at 444, 102 S.Ct. at 1162 (Powell, J., concurring in judgment). Therefore, once a plaintiff has filed the complaint and petition to proceed in forma pauperis within the limitations period, the limitations period is tolled for purposes of Rule 15(c) to allow service of summons and the complaint at the later direction of the district court.
Reversed and remanded for further proceedings consistent herewith.
. The record is unclear whether plaintiff filed her pro se complaint within thirty days of receipt of the letter notifying her of final action by the EEOC. 42 U.S.C. § 2000e-16(c). The letter was dated March 8, 1985, plaintiff dated the complaint April 8, 1985, and the complaint was stamped "Filed April 12, 1985.” The date plaintiff received the EEOC letter is unclear. The district court assumed the complaint was timely filed for purposes of deciding the motion to dismiss (Plaintiffs App. 24) and we do the same. The in forma pauperis petition was also filed on April 12, 1985.
. The complaint is Record Item 1 and is reproduced in Plaintiff’s Appendix 1-22.
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer:
|
songer_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. BUSINESS MACHINE AND OFFICE APPLIANCE MECHANICS CONFERENCE BOARD, LOCAL 459 INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Respondent-Appellant.
No. 243, Docket 27317.
United States Court of Appeals Second Circuit.
Argued Dec. 28, 1961.
Decided Feb. 7, 1962.
Everett E. Lewis, New York City (Abramson & Lewis, New York City, and Leonard Greenwald, Donald Grody, New York City, on the brief), for appellant.
Winthrop A. Johns, Assistant General Counsel, National Labor Relations Board, Washington, D. C. (Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Jacques Schurre, Attorney, National Labor Relations Board, Washington, D. C., on the brief), for appellee.
Murray Gartner, New York City (Poletti, Freidin, Prashker & Harnett, New York City, Richard H. Borow, Noel B. Berman, New York City, of counsel), for charging party.
Before MOORE, KAUFMAN and MARSHALL, Circuit Judges.
MARSHALL, Circuit Judge.
This is an appeal from a district court order granting a petition for an injunction filed by a Regional Director of the N.L.R.B. pursuant to section 10 (l) of the National Labor Relations Act, as amended. The petition alleged, and the lower court found, there was reasonable cause to believe appellant Local 459 was engaging in conduct violative of section 8(b) (4) (ii) (B) of the Act.
The evidence disclosed that certain members of appellant employed by Remington Rand Univac Division, Sperry Rand Corporation (Rand), as tabulating service mechanics have been on strike since September, 1961. In the course of this strike, appellant began distributing handbills at the premises of certain businesses which lease equipment, such as tabulators and computors, from Rand. Some, or perhaps all, of this equipment is serviced by Rand employees who are thus performing the struck work. One firm, Macy’s Department Store, also sells consumer products produced by Rand. There is no evidence in the record to indicate whether the other businesses sell Rand products or whether their relations are limited solely to the leasing and servicing of equipment. The handbills appealed to the public not to patronize these firms.
The district judge found there was “reasonable cause,” within the meaning of section 10 (i), to believe the hand-billing violated section 8(b) (4) (ii) (B). Because there is no dispute as to the material facts in evidence and because we are faced solely with questions of law, we need decide only whether the judge below “was wrong, not whether he was ‘clearly’ so.” Empressa Hondurena de Vapores, S. A. v. McLeod, 300 F.2d 222 (2 Cir., Jan. 12, 1962). We believe the injunction should not have been granted because previous Board decisions construing the so-called “publicity proviso” would preclude it from finding an unfair labor practice in this case. Under these circumstances, injunctive relief under section 10 (i) cannot be granted without usurping the function of the Board and violating the congressional intent behind that provision. We must, therefore, reverse.
Prior to the enactment of section 10 (I), federal courts were without jurisdiction to issue injunctions in “labor disputes” under the broad prohibitions of the Norris-LaGuardia Act. Passed in 1932, that statute was a manifestation of strong congressional disapproval of the performance of federal courts in labor disputes. It was believed the temporary-restraining order and preliminary injunction were inappropriate remedies for such use because they often settled the dispute under the guise of merely preserving the status quo. Moreover, Congress believed the federal courts, through the injunctive process, had set themselves up as economic arbiters of labor strife, a function which Congress believed they were institutionally ill-equipped to undertake and which could lead only to the tarnishing of judicial prestige. The Legislature believed the formulation of labor policy was essentially a political question and belonged to it. The statute, therefore, “was prompted by a desire * * * to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer.”
When Congress wrote the Taft-Hartley Act in 1947, however, it believed NorrisLaGuardia to be so broad that certain of the new provisions of section 8(b), creating union unfair labor practices, would be rendered nullities without some use of the injunctive process. Section 10 (l), essentially a compromise measure, was enacted to fill this need. Attempts to restore power to the federal courts to issue injunctions in certain labor disputes upon petition by purely private parties were abandoned because “opposition to restoring the injunctive process * * * seemed to be so strong * * * ” that other provisions of the bill were endangered. One of the principal arguments employed to defeat these attempts was that the federal courts would once again become too deeply involved in labor disputes without the aid of initial adjudication by an expert agency. It is against this background that section 10 (0 must be read.
Section 10(£) was designed by Congress to provide a means by which temporary injunctive relief could be obtained “pending the final adjudication of the Board.” Sen.Rep.No. 105 (80th Cong. 1947), p. 27. H.R.Conf.Rep.No.510 (80th Cong.1947), p. 57. It does not provide relief beyond that stage, for Sections 10(e), (f) specify the procedure to be followed after the Board has rendered a decision. These sections allow temporary relief pending appeal or petition for enforcement, but only in aid of the Board order. Those attempting to upset a decision by the Board cannot obtain such relief pending their appeal. It is clear, therefore, that if the Board holds the present case does not involve an unfair labor practice, the injunction affirmed here must be dissolved forthwith, regardless of whether the charging party decides to appeal.
Because section 10 (l) injunctions have only this limited purpose, a finding of “reasonable cause” must be premised on a belief there is a reasonable possibility of the Board sustaining the unfair labor practice charge. But previous Board decisions preclude it from finding an unfair labor practice here without reversing field, and, needless to say, there has been no showing there will be such a reversal. In Lohman Sales Co., 132 N.L.R.B. No. 67, the Board construed the words “product” or “produced,” as used in the so-called “publicity proviso,” to encompass all forms of labor or service and rejected a literal interpretation which would limit them to actual consumer goods. The Board further indicated it would not construe the proviso to “attach special importance to one form of labor over another.” Under this interpretation, the handbilling here would be protected by the “publicity proviso.” Subsequent cases have consistently adhered to this rationale and have bolstered the assertion of the dissenter in Lohman that “[t]he net result of this interpretation is to sanction the indiscriminate hand-billing of virtually any business.”
The Regional Director, however, believes the anticipation the Board will abandon this rationale “reasonable,” because, in his view, every factual situation yet ruled upon by the Board involved a “direct connection” between services provided by the primary employer and products distributed by the secondary business. He contends there is no such connection here between the tabulators and computors and the products distributed by the handbilled firms. We do not believe, however, the Board decisions in question allow for such a distinction. In Golden Dawn Foods, 134 N.L.R.B. No. 73, the Board was faced with two disputes involving two primary employers and one secondary business. The first dispute involved a refrigeration installation and maintenance contractor who employed non-union workers to install and service the refrigeration equipment in the secondary employer’s super market. The Regional Director contends the refrigeration equipment makes eertain products saleable and is thereby “directly connected” with them. Even if we were able to accept this as a viable distinction, it would not dispose of the other dispute which involved an electrical contractor who did all the electrical work in the building. Here indeed was the Board’s golden opportunity to expound upon the “direct connection” test, for the electricity in the building had no such connection with products distributed by the secondary employer. The Board, however, merely said handbilling in both disputes was protected by the publicity proviso “[f]or the reasons stated in the Lohman Sales case * * * ”. Nor has the Regional Director said why Northwestern Construction of Washington, 134 N.L.R.B. No. 46, is distinguishable on the grounds there is a “direct connection” between construction work on a building and products ultimately sold in that building.
In meeting the issues before us, we must be mindful of a key fact relating to the internal structure of the agency itself. Because the prosecutory and judicial functions have been separated within the Board, the General Counsel (or his representative, here the Regional Director) acts upon his own authority in issuing unfair labor practice complaints and seeking injunctions. If the General Counsel disagrees with the Board’s interpretation of the statute, there is little to stop him from continuing to issue complaints in the hope of having the Board reverse itself. The decision in Golden Dawn indicates the General Counsel in fact did seek to have Lohman overruled. Whether this is such a case or not is irrelevant, for the danger is there. While we must give great weight to a Regional Director’s finding of reasonable cause, we should not usurp the functions of the Board itself in doing so. The preliminary injunction is of critical importance to participants in labor disputes, for it may have as great an effect upon the dispute as the ultimate outcome of the litigation. A careless interpretation of section 10(1), therefore, may make the General Counsel and the federal district courts the actual focal points of unfair labor practice adjudications. But this is precisely the result Norris-LaGuardia and section 10(1) were designed to avoid in their deliberate minimization of the role of the courts in these matters. We must, therefore, defer to the clear purport of Board precedents, whether we believe them right or wrong, and dismiss the petition.
The charging party, Rand, contends the handbills distributed are untruthful and, therefore, not protected by the “publicity proviso.” Because the Regional Director has not relied upon this in his petition or argument, we believe the question governed not by section 10(1), but by the Norris-LaGuardia Act. We lack jurisdiction, therefore, to grant relief. Section 10(1) is operative only upon the filing of a petition by a Regional Director of the Board. This limitation was imposed in order to restrict the potential involvement of federal courts in labor disputes. For that reason, we do not read it to allow consideration of issues not raised by the Regional Director. To do otherwise would not only increase the danger of over-involvement on the part of the federal courts but would also ignore the expertise which section 10 (Í) commands us to attribute to the Regional Director. It is his view of the facts and law the district judge is to evaluate in a section 10 (i) proceeding. The courts are not free to roam at will over every aspect of a labor dispute upon the request of the charging party. We are mindful of the fact the statute allows the charging party to appear by counsel and present relevant testimony. We believe, however, the principal role in these proceedings is to be played by the Regional Director acting in the public interest, and while the charging party is free to aid him in the course of the litigation, the charging party may not substitute itself as the principal complainant. The reversal here is not a bar to a further petition based upon the alleged untruthful nature of the handbills. The only relief available, of course, would be the enjoining of handbills which are untruthful, not, as the charging party seems to contend, an injunction against all handbilling.
Reversed.
. 29 U.S.C.A. § 160 C).
That section provides in part:
“Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B) or (C) of section 158(b) of this title, or section 158(e) of this title or section 158(b) (7) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law: Provided further, That no temporary restraining order shall be issued without notice unless a petition alleges that substantial and irreparable injury to the charging party will be unavoidable and such temporary restraining order shall be effective for no longer than five days and will become void at the expiration of such period. * * * Upon filing of any such petition the courts shall cause notice thereof to be served upon any person involved in the charge and such person, including the charging party, shall be given an opportunity to appear by counsel and present any relevant testimony.”
The order enjoined Local 459 from:
“(a) Continuing its current handbilling at or in the vicinity of the premises, stores or ticket offices operated by Associated Lerner Shops of America, Inc., Macy’s New York, Eastern Air Lines, American Tobacco Company, or any other customer of Remington Rand Univac Division, Sperry Rand Corporation; or
“(b) In any manner or by any means, including handbilling, threatening, coercing or restraining Associated Lerner Shops of America, Inc., Macy’s New York, Eastern Air Lines, American Tobacco Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Associated Lerner Shops of America, Inc., Macy’s New York, Eastern Air Lines, American Tobacco Company, or any other person, to cease doing business with Remington Rand Univac Division, Sperry Rand Corporation.”
. 29 U.S.C.A. § 158(b) (4) (ii) (B).
That section provides in part:
“(b) It shall be an unfair labor practice for a labor organization or its agents—
*****
“(4) * * * (y) threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
$ $ $ $ $
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * *
“ * * * Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.”
. 29 U.S.C.A. §§ 101-115.
Local 753, Milk Wagon Drivers v. Lake Valley Farm Products, Inc., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63 (1940); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012 (1938).
. The Senate report observed:
“It cannot be successfully claimed that the courts have not written into these injunction cases a new law of labor disputes, fitting the law to each particular case, and then enforcing this new law made by the court. * * *
“It is difficult to see how any civilized people could indefinitely submit to such tyrannical procedure. It is not difficult to understand how such cruel laws, made not by any legislature but by a judge upon the bench, should bring our Federal courts into disrepute.” S.Rep. No. 163, 72nd Gong., 1st Sess. 18 (1932).
. Frankfurter & Greene, The Labor Injunction, 201 (1930).
. See Note 4, supra.
In both Houses of Congress the debate over the passage of Norris-LaGuardia focused on the role of the courts. Senator Norris observed:
“[I]t is because we have now on the bench some judges — and undoubtedly we will have others — who lack the judicial poise necessary in passing upon the disputes between labor and capital that such a law as is proposed in this bill is necessary.” 75 Cong.Rec. 4510 (1932).
“This judge-made law has developed in the past 40 years. The judges have themselves enforced the penalties for the violations of the laws made by them * * * It is because of this development of law made on the bench that our federal courts have lost a great deal of respect.” 75 Cong.Rec. 5463 (1932) (Remarks of Representative O’Connor).
. See Notes 4 and 6, supra.
“We are trying to reestablish a system of laws for the government of the courts. We are writing a law binding the courts to a definite course of action with reference to injunctions. We are not disturbing the government of laws but we are taking away from the courts their right to act as if they were a government of men.” 75 Cong.Rec. 4509 (1932) (Representative Oliver).
“The public policy laid down in the bill, I think, is essential, because there should be some standard by which the courts may know, at a time when they are in such confusion, what it is proper to do. I think the most fitting and, in reality, the only proper tribunal to express such a policy is the Congress.” Id. at 5470 (Representative Browning).
. Marine Cooks v. Panama S.S. Co., 362 U.S. 365, 370 n. 7, 80 S.Ct. 779, 783, 4 L.Ed.2d 797 (1960).
. II N. L. R. B. Legislative History of the Labor-Management Relations Act, 1365 (1948) (Remarks of Senator Taft).
. Id. at 1360-1 (Remarks of Senator Morse).
. E.g. Middle South Broadcasting Co., 133 N.L.R.B. No. 165.
. In effect, the Regional Director would have us ignore what was said in Lohman as mere dictum. Even without the subsequent decisions discussed herein, we might well be hard pressed to find it “reasonable” to expect the Board to abandon a rationale recently expressed and clearly designed to govern its consideration of future cases. In any event, we do not believe the lack of a decision precisely on point is by itself sufficient to constitute reasonable cause. Penello v. Local Union No. 59, Sheet Metal Workers, 195 F.Supp. 458, 473 (D.Del.1961).
. The Regional Director’s position in this respect is not abundantly clear. He introduced no evidence to show the relations between Rand and the handbilled firms were limited solely to the leasing and servicing of equipment. Apparently he contends this factor is irrelevant because the handbills made no reference to such products. Because the Board has held in the clearest possible fashion “that the publicity proviso was intended to permit a consumer boycott of a secondary employer’s entire business and not merely a ‘product,’ ” Middle South Broadcasting Co., 133 N.L.R.B. No. 165, we believe such proof was essential to any action premised on the so-called “direct connection” test.
. See generally 2 Davis, Administrative Law §§ 13.01-13.11 (1958).
. The present case is almost a classical example of this. The injunction, coming at the peak of the Christmas season, prevented handbilling at the very time it would have its greatest effect. Our reversal, however, cannot restore the parties to the power relationship existing at that time.
. We express no opinion as to the conflicting interpretations of the statute delineated in Lohman or as to the proper disposition by the Board of the present case. Our decision is limited solely to the role of federal judges issuing injunctions under section 10 (Z). These other issues may be appropriately determined only under section 10(e) and (f).
. We do not hold a district court’s sole inquiry under section 10(Z) is whether anticipation of Board relief is reasonable. We say only that in the absence of such a finding, no relief is obtainable. Having made such finding, however, the court must further find reasonable cause to be-believe that a Board decision finding an unfair labor practice will be enforced by a Court of Appeals. Conversely, the Regional Director must demonstrate some support, both factual and legal, for every element of his case.
. The district judge in this ease was aware of these restrictions and made no findings as to whether the handbills were untruthful.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_abusedis
|
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 civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
John J. LANCELLOTTA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 86-1012.
United States Court of Appeals, First Circuit.
Submitted June 6, 1986.
Decided Sept. 11, 1986.
Barry Best, Rhode Island Legal Services, Inc., Providence, R.I., on brief for plaintiff, appellant.
Everett C. Sammartino, Asst. U.S. Atty., and Lincoln C. Almond, U.S. Atty., Providence, R.I., on brief for defendant, appel-lee.
Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.
COFFIN, Circuit Judge.
Claimant-appellant John Lancellotta sought Social Security disability benefits on the basis of a heart problem, head injury, and nervousness. The Administrative Law Judge concluded that Lancellotta suffered from a severe mental impairment and was incapable of performing his past work, but that he nevertheless was not disabled because there existed significant numbers of low-stress jobs that Lancellotta could do. The Appeals Council denied a request for review, adopting the AU’s decision as the final decision of the Secretary. The district court upheld the Secretary’s determination, and Lancellotta now appeals on the ground that the AU failed to determine whether there were any specific jobs Lancellotta could perform in light of his disability.
Lancellotta, who is 32 years old and lives with his father and brother, completed high school and attended two years of junior college. He has not worked since May 1979 when he suffered a head injury, which apparently led to the mental impairment recognized by the AU. Because the AU found that Lancellotta’s impairment was “severe” within the meaning of 20 C.F.R. § 416.921, and that he could not return to any of his former jobs (busboy/waiter; cashier/clerk; taxicab driver/dispatcher; office manager), the inquiry as to whether Lancellotta was disabled focused on whether there existed, “in significant numbers”, 42 U.S.C. § 1382c(a)(3)(B), other jobs in the regional or national economy that he could nonetheless perform. See 20 C.F.R. § 416.-920(f). The burden of showing the existence of other jobs was on the Secretary. Sherwin v. Secretary of Health and Human Services, 685 F.2d 1, 2 (1st Cir.1982).
Lancellotta submitted several medical reports detailing both physical and emotional ailments, including “severe chest pain”, “severe cardiac neurosis”, “severe anxiety and depression”, “chest pain syndrome and severe anxiety syndrome” and “agoraphobia”. Three doctors concluded that Lancel-lotta was totally incapacitated as a result of anxiety. At a hearing on February 6, 1984, Lancellotta testified that he suffered from dizziness, ringing in his ears, severe anxiety, fatigue, stomach distress, shortness of breath, and ventricular irregularity. He stated that his daily activities were extremely limited, that he feared going outdoors, and that he was incapable of driving. Also appearing at the hearing was a psychiatrist testifying as an impartial medical advisor, and a vocational expert. The medical advisor, Dr. Barron, testified that the reports of physicians who concluded Lancellotta was disabled were not supported by objective medical evidence and that Lancellotta did not suffer from any intellectual deficit or thought disorder. It was Dr. Barron’s opinion that Lancellotta could perform non-stressful work activity. The vocational expert indicated that between 100,000 and 200,000 low-stress jobs exist in the national economy.
Lancellotta’s sole contention on appeal is that the Secretary has failed to meet his burden of showing that Lancellotta is capable of performing any of the low-stress jobs that exist in the national economy. He notes that the testimony most significant to this appeal occurred in two short exchanges between the AU and the two expert witnesses. After Dr. Barron reviewed the medical evidence, the AU asked, “[W]ould it be correct to indicate that the medical record show[s] that the individual could do non-stressful work?,” to which Dr. Barron answered “Ves.” After Dr. Barron’s testimony, the AU asked the vocational expert, Dr. Livneh, “How many jobs would you say there are ... that are sendentary ... and low stress in nature, as well?” Dr. Livneh answered, “I would say, at least, somewhere between 100 and 200,-000 positions — sedentary and low-stress.”
In reaching a determination that “the claimant has been capable of performing low stressful work activity,” the AU relied on Dr. Barron’s testimony, the fact that Lancellotta’s complaints and his treating physicians’ reports do not establish any exertional impairment, and the fact that Lancellotta “actively pursued his claim, consulting several physicians, and an-swerpng] questions clearly and coherently at the hearing.” Because the vocational expert indicated that a significant number of low-stress jobs exist in the national economy, the AU found that Lancellotta was not disabled.
We agree with Lancellotta that the AU’s decision that jobs exist that he can do is not based on substantial evidence. Despite the finding that Lancellotta suffers from a severe mental impairment, and cannot perform his past jobs, the AU did not explain what differences exist between Lancellotta’s prior work and the available “low-stress” jobs that would enable him to perform the latter when he cannot perform the former. The AU made no findings on the nature of Lancellotta’s stress, the circumstances that trigger it, or how those factors affect his ability to work. Although the AU apparently relied upon Lancellotta’s even demeanor at the disability hearing as evidence of his ability generally to work at low-stress jobs, we consider a claimant’s ability to visit doctors and describe his medical problems coherently as insufficient evidence of his ability to work.
Lancellotta illuminates the problem with the ALJ’s conclusions by accurately observing that stress is not a characteristic of a job, but instead reflects an individual’s subjective response to a particular situation. Thus, even if most individuals would not find it particularly stressful to do the jobs listed in the AU’s decision, we have no evidence showing that Lancellotta, who suffers from a severe mental impairment, would react the same way. Without an evaluation of Lancellotta’s vocational abilities in light of his anxiety disorder, there is no basis for the AU’s conclusion that he can perform low stress work.
The Secretary himself has recognized the need to examine an individual’s specific vocational abilities when mental impairments are at issue:
“Where a person’s only impairment is mental, is not of listing severity, but does prevent the person from meeting the mental demands of past relevant work and prevents the transferability of acquired work skills, the final consideration is whether the person can be expected to perform unskilled work. The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base. This, in turn, would justify a finding of disability because even favorable age, education, or work experience will not offset such a severely limited occupational base.” Social Security Ruling 85-15.
See also Social Security Ruling 85-16 (“Consideration of these factors [ability to understand, carry out and remember instructions; respond appropriately to supervision, coworkers and customary work pressures] is required for the proper evaluation of the severity of mental impairments.”); Stokes v. Schweiker, 729 F.2d 932, 935 (3d Cir.1984) (claimant found able to perform work “except employment ‘involving high stress and significant interpersonal relations’ ”; remanded for consideration of vocationally relevant factors listed in SSR 85-16).
The AU here made no findings as to Lancellotta’s ability to perform the basic work-related activities the Secretary has deemed critical to establish an individual’s ability to work. Moreover, we note that the AU concluded that Lancellotta could perform low-stress jobs while even Dr. Barron testified only that he was capable of performing wow-stressful work activity. In light of these deficiences, this case is remanded to the Secretary for an assessment of Lancellotta’s vocational capabilities in light of his mental impairment.
Vacated and remanded.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_lcdisagreement
|
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 court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
FIELD ET al. v. MANS
No. 94-967.
Argued October 2,1995
Decided November 28, 1995
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Thomas, and Ginsburg, JJ., joined. Ginsburg, J., filed a concurring opinion, post, p. 78: Breyer, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 79.
Christopher J. Seufert argued the cause for petitioners. With him on the brief was William J. Schultz.
Alan Jenkins argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, William Kanter, and Bruce G. Forrest.
W. E. Whittington IV, by appointment of the Court, 515 U. S. 1156, argued the cause for respondent. With him on the brief was Geoffrey J. Vitt.
Gary Klein filed a brief for the National Association of Consumer Bankruptcy Attorneys for the United States as amicus curiae urging affirmance.
Justice Souter
delivered the opinion of the Court.
The Bankruptcy Code’s provisions for discharge stop short of certain debts resulting from “false pretenses, a false representation, or actual fraud.” 11 U. S. C. § 523(a)(2)(A). In this case we consider the level of a creditor’s reliance on a fraudulent misrepresentation necessary to place a debt thus beyond release. While the Court of Appeals followed a rule requiring reasonable reliance on the statement, we hold the standard to be the less demanding one of justifiable reliance and accordingly vacate and remand.
I
In June 1987, petitioners William and Norinne Field sold real estate for $462,500 to a corporation controlled by respondent Philip W. Mans, who supplied $275,000 toward the purchase price and personally guaranteed a promissory note for $187,500 secured by a second mortgage on the property. The mortgage deed had a clause calling for the Fields’ consent to any conveyance of the encumbered real estate during the term of the secured indebtedness, failing which the entire unpaid balance on the note would become payable upon a sale unauthorized.
On October 8, 1987, Mans’s corporation triggered application of the clause by conveying the property to a newly formed partnership without the Fields’ knowledge or consent. The next day, Mans wrote to the Fields asking them not for consent to the conveyance but for a waiver of their rights under the due-on-sale clause, saying that he sought to avoid any claim that the clause might apply to arrangements to add a new principal to his land development organization. The letter failed to mention that Mans had already caused the property to be conveyed. The Fields responded with an offer to waive if Mans paid them $10,500. Mans answered with a lower bid, to pay only $500, and again failed to disclose the conveyance. There were no further written communications.
The ensuing years brought a precipitous drop in real estate prices, and on December 10, 1990, Mans petitioned the United States Bankruptcy Court for the District of New Hampshire for relief under Chapter 11 of the Bankruptcy Code. On the following February 6, the Fields learned of the October 1987 conveyance, which their lawyer had discovered at the registry of deeds. In their subsequent complaint in the bankruptcy proceeding, they argued that some $150,000 had become due upon the 1987 conveyance for which Mans had become liable as guarantor, and that his obligation should be excepted from discharge under § 523(a)(2)(A) of the Bankruptcy Code, 11 U. S. C. § 523(a)(2)(A), as a debt resulting from fraud.
The Bankruptcy Court found that Mans’s letters constituted false representations on which petitioners had relied to their detriment in extending credit. The court followed Circuit precedent, however, see In re Burgess, 955 F. 2d 134 (CA1 1992), in requiring the Fields to make a further showing of reasonable reliance, defined as “what would be reasonable for a prudent man to do under those circumstances.” App. 43-44. The court held that a reasonable person would have checked for any conveyance after the exchange of letters, and that the Fields had unreasonably ignored further reason to investigate in 1988, when Mr. Field’s boss told him of a third party claiming to be the owner of the property. Having found the Fields unreasonable in relying without further enquiry on Mans’s implicit misrepresentation about the state of the title, the court held Mans’s debt dischargeable.
The District Court affirmed, likewise following Circuit precedent in holding that § 523(a)(2)(A) requires reasonable reliance to exempt a debt from discharge, and finding the Bankruptcy Court’s judgment supported by adequate indication in the record that the Fields had relied without sufficient reason. The Court of Appeals for the First Circuit affirmed judgment for the Bankruptcy Court’s reasons. Judgt. order reported at 36 F. 3d 1089 (1994).
We granted certiorari, 514 U. S. 1095 (1995), to resolve a conflict among the Circuits over the level of reliance that § 523(a)(2)(A) requires a creditor to demonstrate.
II
The provisions for discharge of a bankrupt’s debts, 11 U. S. C. §§727, 1141, 1228, and 1328(b), are subject to exception under 11 U. S. C. § 523(a), which carries 16 subsections setting out categories of nondischargeable debts. Two of these are debts traceable to falsity or fraud or to a materially false financial statement, as set out in § 523(a)(2):
“(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
“(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—
“(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; [or]
“(B) use of a statement in writing—
“(i) that is materially false;
“(ii) respecting the debtor’s or an insider’s financial condition;
“(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
“(iv) that the debtor caused to be made or published with intent to deceive.”
These provisions were not innovations in their most recent codification, the Bankruptcy Reform Act of 1978 (Act), Pub. L. 95-598, 92 Stat. 2590, but had obvious antecedents in the Bankruptcy Act of 1898 (1898 Act), as amended, 30 Stat. 544. The precursor to § 523(a)(2)(A) was created when § 17(a)(2) of the 1898 Act was modified by an amendment in 1903, which provided that debts that were “liabilities for obtaining property by false pretenses or false representations” would not be affected by any discharge granted to a bankrupt, who would still be required to pay them. Act of Feb. 5,1903, ch. 487, 32 Stat. 798. This language inserted in § 17(a)(2) was changed only slightly between 1903 and 1978, at which time the section was recodified as § 523(a)(2)(A) and amended to read as quoted above. Thus, since 1903 the statutory language at issue here merely progressed from “false pretenses or false representations” to “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.”
Section 523(a)(2)(B), however, is the product of more active evolution. The germ of its presently relevant language was also inserted into the 1898 Act by a 1903 amendment, which barred any discharge by a bankrupt who obtained property by use of a materially false statement in writing made for the purpose of obtaining the credit. Act of Feb. 5, 1903, ch. 487, 32 Stat. 797-798. The provision did not explicitly require an intent to deceive or set any level of reliance, but Congress modified its language in 1960 by adding the requirements that the debtor intend to deceive the creditor and that the creditor rely on the false statement, and by limiting its application to false financial statements. Act of July 12, 1960, Pub. L. 86-621, 74 Stat. 409. In 1978, Congress rewrote the provision as set out above and recodified it as § 523(a)(2)(B). Though the forms of the 1960 and 1978 provisions are quite different, the only distinction relevant here is that the 1978 version added a new element of reasonable reliance.
The sum of all this history is two close statutory companions barring discharge. One applies expressly when the debt follows a transfer of value or extension of credit induced by falsity or fraud (not going to financial condition), the other when the debt follows a transfer or extension induced by a materially false and intentionally deceptive written statement of financial condition upon which the creditor reasonably relied.
Ill
The question here is what, if any, level of justification a creditor needs to show above mere reliance in fact in order to exempt the debt from discharge under § 523(a)(2)(A). The text that we have just reviewed does not say in so many words. While § 523(a)(2)(A) speaks of debt for value “obtained by ... false pretenses, a false representation, or actual fraud,” it does not define those terms or so much as mention the creditor’s reliance as such, let alone the level of reliance required. No one, of course, doubts that some degree of reliance is required to satisfy the element of causation inherent in the phrase “obtained by,” but the Government, as amicus curiae (like petitioners in a portion of their brief), submits that the minimum level will do. It argues that when § 523(a)(2)(A) is understood in its statutory context, it requires mere reliance in fact, not reliance that is reasonable under the circumstances. Both petitioners and the Government note that § 523(a)(2)(B) expressly requires reasonable reliance, while § 523(a)(2)(A) does not. They emphasize that the precursors to §§ 523(a)(2)(A) and (B) lacked any reasonableness requirement, and that Congress added an element of reasonable reliance to § 523(a)(2)(B) in 1978, but not to § 523(a)(2)(A). They contend that the addition to § 523(a) (2)(B) alone supports an inference that, in § 523(a)(2)(A), Congress did not intend to require reasonable reliance, over and above actual reliance. But this argument is unsound.
The argument relies on the apparent negative pregnant, under the rule of construction that an express statutory requirement here, contrasted with statutory silence there, shows an intent to confine the requirement to the specified instance. See Gozlon-Peretz v. United States, 498 U. S. 395, 404 (1991) (“ ‘[WJhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”) (quoting Russello v. United States, 464 U. S. 16, 23 (1983)). Thus the failure of § 523(a)(2)(A) to require the reasonableness of reliance demanded by § 523(a)(2)(B) shows that (A) lacks such a requirement. Without more, the inference might be a helpful one. But there is more here, showing why the negative pregnant argument should not be elevated to the level of interpretive trump card.
First, assuming the argument to be sound, the most it would prove is that the reasonableness standard was not intended. But our job does not end with rejecting reasonableness as the standard. We have to discover the correct standard, and where there are multiple contenders remaining (as there are here), the inference from the negative pregnant does not finish the job.
There is, however, a more fundamental objection to depending on a negative pregnant argument here, for in the present circumstances there is reason to reject its soundness even as far as it goes. Quite simply, if it proves anything here, it proves too much. If the negative pregnant is the reason that § 523(a)(2)(A) has no reasonableness requirement, then the same reasoning will strip paragraph (A) of any requirement to establish a causal connection between the misrepresentation and the transfer of value or extension of credit, and it will eliminate scienter from the very notion of fraud. Section 523(a)(2)(B) expressly requires not only reasonable reliance but also reliance itself; and not only a representation but also one that is material; and not only one that is material but also one that is meant to deceive. Section 523(a)(2)(A) speaks in the language neither of reliance nor of materiality nor of intentionality. If the contrast is enough to preclude a reasonableness requirement, it will do as well to show that the debtor need not have misrepresented intentionally, the statement need not have been material, and the creditor need not have relied. But common sense would balk. If Congress really had wished to bar discharge to a debtor who made unintentional and wholly immaterial misrepresentations having no effect on a creditor’s decision, it could have provided that. It would, however, take a very clear provision to convince anyone of anything so odd, and nothing so odd has ever been apparent to the courts that have previously construed this statute, routinely requiring intent, reliance, and materiality before applying § 523(a)(2)(A). See, e. g., In re Phillips, 804 F. 2d 930 (CA6 1986); In re Martin, 963 F. 2d 809 (CA5 1992); In re Menna, 16 F. 3d 7 (CA1 1994).
The attempt to draw an inference from the inclusion of reasonable reliance in § 523(a)(2)(B), moreover, ignores the significance of a historically persistent textual difference between the substantive terms in §§ 523(a)(2)(A) and (B): the former refer to common-law torts, and the latter do not. The principal phrase in the predecessor of § 523(a)(2)(B) was “obtained property . . . upon a materially false statement in writing,” Act of Feb. 5, 1903, ch. 487, 32 Stat. 797; in the current § 523(a)(2)(B) it is value “obtained by . . . use of a statement in writing.” Neither phrase is apparently traceable to another context where it might have been construed to include elements that need not be set out separately. If other elements are to be added to “statement in writing,” the statutory language must add them (and of course it would need to add them to keep this exception to discharge-ability from swallowing most of the rule). The operative terms in § 523(a)(2)(A), on the other hand, “false pretenses, a false representation, or actual fraud,” carry the acquired meaning of terms of art. They are common-law terms, and, as we will shortly see in the case of “actual fraud,” which concerns us here, they imply elements that the common law has defined them to include. See Durland, v. United States, 161 U. S. 306, 312 (1896); James-Dickinson Farm Mortgage Co. v. Harry, 273 U. S. 119, 121 (1927). Congress could have enumerated their elements, but Congress’s contrary drafting choice did not deprive them of a significance richer than the bare statement of their terms.
IV
“It is . . . well established that ‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’” Community for Creative Non-Violence v. Reid, 490 U. S. 730, 739 (1989) (quoting NLRB v. Amax Coal Co., 453 U. S. 322, 329 (1981)); see also Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318, 322 (1992). In this case, neither the structure of § 523(a)(2) nor any explicit statement in § 523(a)(2)(A) reveals, let alone dictates, the particular level of reliance required by § 523(a)(2)(A), and there is no reason to doubt Congress’s intent to adopt a common-law understanding of the terms it used.
Since the District Court treated Mans’s conduct as amounting to fraud, we will look to the concept of “actual fraud” as it was understood in 1978 when that language was added to § 523(a)(2)(A). Then, as now, the most widely accepted distillation of the common law of torts was the Restatement (Second) of Torts (1976), published shortly before Congress passed the Act. The section on point dealing with fraudulent misrepresentation states that both actual and “justifiable” reliance are required. Id., § 537. The Restatement expounds upon justifiable reliance by explaining that a person is justified in relying on a representation of fact “although he might have ascertained the falsity of the representation had he made an investigation.” Id., §540. Significantly for our purposes, the illustration is given of a seller of land who says it is free of encumbrances; according to the Restatement, a buyer’s reliance on this factual representation is justifiable, even if he could have “walk[ed] across the street to the office of the register of deeds in the courthouse” and easily have learned of an unsatisfied mortgage. Id., § 540, Illustration 1. The point is otherwise made in a later section noting that contributory negligence is no bar to recovery because fraudulent misrepresentation is an intentional tort. Here a contrast between a justifiable and reasonable reliance is clear: “Although the plaintiff’s reliance on the misrepresentation must be justifiable . . . this does not mean that his conduct must conform to the standard of the reasonable man. Justification is a matter of the qualities and characteristics of the particular plaintiff, and the circumstances of the particular case, rather than of the application of a community standard of conduct to all cases.” Id., §545A, Comment b. Justifiability is not without some limits, however. As a comment to § 541 explains, a person is
“required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation. Thus, if one induces another to buy a horse by representing it to be sound, the purchaser cannot recover even though the horse has but one eye, if the horse is shown to the purchaser before he buys it and the slightest inspection would have disclosed the defect. On the other hand, the rule stated in this Section applies only when the recipient of the misrepresentation is capable of appreciating its falsity at the time by the use of his senses. Thus a defect that any experienced horseman would at once recognize at first glance may not be patent to a person who has had no experience with horses.” Id., § 541, Comment a.
A missing eye in a “sound” horse is one thing; long teeth in a “young” one, perhaps, another.
Similarly, the edition of Prosser’s Law of Torts available in 1978 (as well as its current successor) states that justifiable reliance is the standard applicable to a victim’s conduct in cases of alleged misrepresentation and that “[i]t is only where, under the circumstances, the facts should be apparent to one of his knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own.” W. Prosser, Law of Torts § 108, p. 718 (4th ed. 1971) (footnotes omitted); accord, W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 108, p. 752 (5th ed. 1984) (Prosser & Keeton). Prosser represents common-law authority as rejecting the reasonable person standard here, stating that “the matter seems to turn upon an individual standard of the plaintiff’s own capacity and the knowledge which he has, or which may fairly be charged against him from the facts within his observation in the light of his individual case.” Prosser, supra, § 108, at 717; accord, Prosser & Keeton § 108, at 751; see also 1 F. Harper & F. James, Law of Torts §7.12, pp. 581-583 (1956) (rejecting reasonableness standard in misrepresentation cases in favor of justifiability and stating that “by the distinct tendency of modern cases, the plaintiff is entitled to rely upon representations of fact of such a character as to require some kind of investigation or examination on his part to discover their falsity, and a defendant who has been guilty of conscious misrepresentation can not offer as a defense the plaintiff’s failure to make the investigation or examination to verify the same”) (footnote omitted); accord, 2 F. Harper, F. James, & O. Gray, Law of Torts §7.12, pp. 455-458 (2d ed. 1986).
These authoritative syntheses surely spoke (and speak today) for the prevailing view of the American common-law courts. Of the 46 States that, as of November 6, 1978 (the day the Act became law), had articulated the required level of reliance in a common-law fraud action, 5 required reasonable reliance, 5 required mere reliance in fact, and 36 required an intermediate level of reliance, most frequently referred to as justifiable reliance. Following our established practice of finding Congress’s meaning in the generally shared common law when common-law terms are used without further specification, we hold that § 523(a)(2)(A) requires justifiable, but not reasonable, reliance. See In re Vann, 67 F. 3d 277 (CA11 1995); In re Kirsh, 973 F. 2d 1454 (CA9 1992).
It should go without saying that our analysis does not relegate all reasoning from a negative pregnant to the rubbish heap, or render the reasonableness of reliance wholly irrelevant under § 523(a)(2)(A). As for the rule of construction, of course it is not illegitimate, but merely limited. The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects, see Gozlon-Peretz v. United States, 498 U. S., at 404 (noting that a single enactment created provisions with language that differed). Even then, of course, it may go no further than ruling out one of several possible readings as the wrong one. The rule is weakest when it suggests results strangely at odds with other textual pointers, like the common-law language at work in the statute here. See Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 690-691 (1987).
As for the reasonableness of reliance, our reading of the Act does not leave reasonableness irrelevant, for the greater the distance between the reliance claimed and the limits of the reasonable, the greater the doubt about reliance in fact. Naifs may recover, at common law and in bankruptcy, but lots of creditors are not at all naive. The subjectiveness of justifiability cuts both ways, and reasonableness goes to the probability of actual reliance.
V
There remains a fair question that ought to be faced. It makes sense to protect a creditor even if he was not quite reasonable in relying on a fraudulent representation; fraudulence weakens the debtor’s claim to consideration. And yet, why should the rule be different when fraud is carried to the point of a written financial statement? Does it not count against our reading of the statute that a debtor who makes a misrepresentation with the formality of a written financial statement may have less to bear than the debtor who commits his fraud by a statement, perhaps oral, about something other than his bank balance? One could answer that the question does have its force, but counter it by returning to the statutory history and asking why Congress failed to place a requirement of reasonable reliance in § 523(a)(2)(A) if it meant all debtors to be in the same boat. But there may be a better answer, tied to the peculiar potential of financial statements to be misused not just by debtors, but by creditors who know their bankruptcy law. The House Report on the Act suggests that Congress wanted to moderate the burden on individuals who submitted false financial statements, not because lies about financial condition are less blameworthy than others, but because the relative equities might be affected by practices of consumer finance companies, which sometimes have encouraged such falsity by their borrowers for the very purpose of insulating their own claims from discharge. The answer softens the ostensible anomaly.
VI
In this case, the Bankruptcy Court applied a reasonable person test entailing a duty to investigate. The court stated that
“the case law establishes an objective test, and that is what would be reasonable for a prudent man to do under those circumstances. At a minimum, a prudent man, I think, would have asked his attorney, could he transfer it without my consent? And the answer would have to be yes, and then the next question would be, well, let’s see if he’s done it? And those questions simply were not asked, and I don’t think on balance that was reasonable reliance.” App. 43-44.
Because the Bankruptcy Court’s requirement of reasonableness clearly exceeds the demand of justifiable reliance that we hold to apply under § 523(a)(2)(A), we vacate the judgment and remand the case for proceedings consistent with this opinion.
It is so ordered.
Although we observe the distinction between Mans and his corporations, the record before us does not indicate that the parties thought anything should turn on treating them separately. As the case comes to us, Mans is presented as the originator of both debt and misrepresentation.
Here, Mans argues that neither he nor his corporation obtained any extension of credit at the time of the alleged fraud or thereafter. Since this issue was never raised previously and is not fairly subsumed within the question on which we granted certiorari, we do not reach it.
Mr. Field testified in the Bankruptcy Court proceeding that he asked Mans in 1988 about the report of a conveyance and that Mans indicated he had not conveyed the property, App. 14-15, but Mr. Field later testified that he had not confronted Mans on the issue, id., at 26-27. The Bankruptcy Court made no finding about any such conversation.
Compare In re Ophaug, 827 F. 2d 340 (CA8 1987); In re Mayer, 51 F. 3d 670 (CA7 1995); In re Allison, 960 F. 2d 481 (CA5 1992), with In re Burgess, 955 F. 2d 134 (CA1 1992); In re Mullet, 817 F. 2d 677 (CA10 1987).
The one intervening change to the quoted language was that “obtaining property” became “obtaining money or property.” Act of June 22, 1938, 52 Stat. 851.
The 1960 amendments also transferred the language on false financial statements by individuals from §14 (where it barred any discharge) to § 17(a)(2) (where it barred discharge of only the specific debt incurred as a result of the false financial statement). Thus, as of 1960 the relevant portion of § 17(a)(2) provided that discharge would not release a bankrupt from debts that
“are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting [the bankrupt’s] financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive.” Act of July 12,1960, Pub. L. 86-621,74 Stat. 409.
The fact that § 523(a)(2) uses the terra “obtained by” does not avoid this problem, for two reasons. First, “obtained by” applies to both §§ 523(a)(2)(A) and (B); if it supplies the elements of materiality, intent to deceive, and actual reliance it renders § 523(a)(2)(B)’s inclusion of materiality and intent to deceive redundant. More to the point, it renders Congress’s addition of the requirements of actual reliance and intent to deceive to the precursor of § 523(a)(2)(B) (§ 17(a)(2) of the 1898 Act) in 1960 nonsensical, since that provision also had the “obtained by” language. Second, it seems impossible to construe “obtained by” as encompassing a requirement of intent to deceive; one can obtain credit by a misrepresentation even if one has no intention of doing so (for example, by unintentionally writing that one has an annual income of $100,000, rather than $10,000, in applying for a loan).
Although we do not mean to suggest that the requisite level of reliance would differ if there should be a case of false pretense or representation but not of fraud, there is no need to settle that here.
We construe the terms in § 523(a)(2)(A) to incorporate the general common law of torts, the dominant consensus of common-law jurisdictions, rather than the law of any particular State. See Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318, 323, n. 3 (1992); Community for Creative Non-Violence v. Reid, 490 U. S. 730, 740 (1989).
See Polansky v. Orlove, 252 Md. 619, 624-625, 251 A. 2d 201, 204 (1969) (stating that purchaser must show reasonable reliance); Cudemo v. Al and Lou Construction Co., 54 App. Div. 2d 995, 996, 387 N. Y. S. 2d 929, 930 (1976) (referring to justifiable reliance but imposing duty to investigate); Works v. Wyche, 344 S. W. 2d 193,198 (Tex. Civ. App. 1961) (requiring reasonable reliance); Jardine v. Brunswick Corp., 18 Utah 2d 378, 382, 423 P. 2d 659, 662 (1967) (requiring reasonable reliance); Horner v. Ahern, 207 Va. 860, 863-864,153 S. E. 2d 216, 219 (1967) (stating that, if purchaser is given information that would excite suspicions of reasonably prudent man, he has a duty to investigate).
See Beavers v. Lamplighters Realty, Inc., 556 P. 2d 1328, 1331 (Okla. App. 1976) (requiring actual reliance only); Campanelli v. Vescera, 75 R. I. 71, 74-75, 63 A. 2d 722, 724 (1949) (stating that actual reliance is sufficient, notwithstanding relying party’s failure to investigate or verify); Negyessy v. Strong, 136 Vt. 193, 194-195, 388 A. 2d 383, 385 (1978) (stating that actual reliance is sufficient, even if plaintiff might have discovered the wrong but for his own neglect); Horton v. Tyree, 104 W. Va. 238, 242, 139 S. E. 737, 738 (1927) (holding that one to whom a representation is made has the right to rely without any further inquiry); Johnson v. Soulis, 542 P. 2d 867, 872 (Wyo. 1975) (requiring actual reliance only).
See Franklin v. Nunnelley, 242 Ala. 87, 89, 5 So. 2d 99, 101 (1941) (stating that there is no duty to investigate in absence of anything that would arouse suspicion); Thomson v. Wheeler Construction Co., 385 P. 2d 111, 113 (Alaska 1963) (stating that justifiable reliance is the appropriate standard); Barnes v. Lopez, 25 Ariz. App. 477, 480, 544 P. 2d 694, 697 (1976) (holding that purchaser had no duty to investigate); Fausett & Co. v. Bullard, 217 Ark. 176, 179-180, 229 S. W. 2d 490,491-492 (1950) (relying on Restatement of Torts § 540 (1938) (hereinafter Restatement (First)), which applies the same rule as in Restatement (Second) of Torts § 540 (1976)); Seeger v. Odell, 18 Cal. 2d 409, 414-4
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_genresp1
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES v. STATE STREET TRUST CO.
No. 3710.
Circuit Court of Appeals, First Circuit.
Jan. 14, 1942.
Bernard Chertcoff, Sp. Asst, to Atty. .Gen.- (Samuel O. Clark, Jr., Asst, Atty. Gen., and J. Louis Monarch, Sp. Asst, to Atty. Gen., Edmund J. Brandon and George F. Garrity, both of Boston, Mass., ■on the brief), for appellant.
F. H. Nash, of Boston, Mass. (John L. Hall and Maxwell E. Foster, both of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAHONEY, Circuit Judge.
The original plaintiff, hereinafter called •the taxpayer, brought this action to recover income taxes for the year 1930, alleging that the taxes had been assessed and collected illegally on the ground that the Commissioner improperly determined that a certain exchange of stock had resulted in the realization of a capital gain under Section 111(a) of the Revenue Act of 1928, c. 852, 45 Stat. 791, 26 U.S.C.A. Int.Rev.Code, § 111(a). The present •plaintiff is the taxpayer’s executor. The ■district court held that no gain had been •realized on the transaction since the stock received by the taxpayer had no “fair -market value” within the meaning of Section 111(c) of the Revenue Act of 1928, .and gave judgment for the plaintiff. The ■defendant has appealed.
The pertinent facts follow: The taxpayer had acquired 36 shares of the common stock and 2,500 shares of the preferred ■stock of the Massachusetts Utilities Associates at a cost of $77,024.22. About March 5, 1930, she exchanged this stock for 3768 shares of the Class A stock' of International Hydro-Electric System under agreements between New England Power Securities Company and a group of shareholders of the Massachusetts Utilities Associates. These recipients of the Class A Hydro-Electric stock agreed with New England Power Securities Company that: •“None of the Class A stock so acquired by us shall be disposed of without your ■consent for a period of twelve, months from the date hereof.” The taxpayer did •not dispose of her Class A stock during this period nor did she request the permission of the New England Power Securities Company so to do. While the restriction on sale had been removed in two cases, the district judge found that “there were special considerations which led to a waiver of the restriction in two instances * * * no general waiver of the restrictions was obtainable, and * * * in all probability no additional waivers would have been granted.” No reference to the restrictive agreement was made on the share certificates.
The parties stipulated that: “Shares of International Hydro-Electric System Class A stock not involved under the said agreements dated March 4 or March 5, 1930, were sold on the New York Stock Exchange on March 5, 1930, at $44 a share and said price was the fair market value of such shares so sold.” The district judge found: “The International Hydro-Electric System had been organized no earlier than March 25, 1929, and was a comparatively new enterprise. Some time during the year 1929 the Class A shares of International Hydro-Electric System were listed on the New York Stock Exchange, and both before and after March 5, 1930, its unrestricted shares were subject to violent fluctuation. For the year 1930, the high price was $54 and the low $18%in the first half of 1931 the range was from $31 a share to $16% a share.” It was also found that International Flydro-Electric System was one of the top entities in a highly pyramided public utility holding company system; that in December, 1929, 83.3 per cent of the capital structure of the entire system was prior to the Class A stock of International Hydro-Electric System, and that in the year 1930, 84.1 per cent of the capital structure of the entire system was prior to the Class A stock.
The following testimony was found to be true by the District Judge: “First, I think that the company was a new venture. It had been in existence only approximately nine months, approximately a year at the time this transaction took place. Secondly, the company was a highly pyramided holding company. Third, the stock of the company was being continually issued * * * after the payment of Class A dividends' for the nine months ended December 31, 1929, there was only 2.9 per cent gross left over; for the year 1930, only 3.9; and for the year 1931 only 1.9 per cent. * * * Needless to say, that is a very slim equity of earnings being brought down for the payment of a stock.” He held that no capital gain was realized because the restricted Class A shares of International HydroElectric System which the taxpayer received in exchange for her Massachusetts Utilities Associates stock had no fair market value within the meaning of Section 111(c). The government did not urge in its brief or in the oral argument before us that there was error in admitting evidence of the speculative nature of the Class A stock on the ground that such evidence was inconsistent with the stipulation that the selling price of $44 a share on the New York Stock Exchange on March 5, 1930, represented the fair market value of the stock. It did not press any other objections with respect to the admissibility of evidence nor did it challenge any of the findings of the district judge other than his finding that the restricted Class A stock had no fair market value.
The only issue before us is whether the lower court’s finding that the restricted Class A stock had no fair market value should be set aside.
A finding cannot be set aside unless it is clearly erroneous, that is, against the clear weight of the evidence. Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A. following section 723c; Fleming v. Palmer, 1 Cir., 1941, 123 F.2d 749. Perhaps it would be easier to upset the finding in this case than in the ordinary case because here the Commissioner’s determination is presumptively correct, Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623, and the Regulations provide that "only in rare and extraordinary cases does property have no fair market value”. Regulations 74, Article 561. But there are limits to the presumptive correctness of the Commissioner’s determination, Mount v. Commissioner, 2 Cir., 48 F.2d 550, and the force of the Regulations is weakened by Judge Learned Hand’s statement: “* * * ‘fair market value’ is not nearly so universal a phenomenon as to justify such a comment, and the implication is misleading.” Helvering v. Walbridge, 2 Cir., 1934, 70 F.2d 683, 684.
It may be argued that Rule 52 (a) is not applicable here because the existence of a fair market value within the meaning of the statute is a question of ultimate and not primary fact. Consequently, it could be urged upon us that we should substitute our own judgment for that of the district court by analogy to the rule laid down with respect to findings of fact by the Board of Tax Appeals in Bogardus v. Commissioner, 1937, 302 U.S. 34, 58 S.Ct. 61, 82 L.Ed. 32; Helvering v. Tex-Penn Oil Co., 1937, 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755; Helvering v. Rankin, 1935, 294 U.S. 700, 55 S.Ct. 506, 79 L.Ed. 1236. The rule is that on ultimate findings “the court may substitute its judgment for that of the Board”. Helvering v. Tex-Penn Co., supra, 300 U.S. at page 491, 57 S.Ct. at page 574, 81 L.Ed. 755. We do not intend to go into the “baffling problem” of ultimate and primary facts nor shall we attempt to reconcile the cases on this point. It is sufficient to say that we are bound by Elmhurst Cemetery Co. v. Commissioner, 1937, 300 U.S. 37, 57 S.Ct. 324, 325, 81 L.Ed. 491. That case seems to us to hold clearly that the existence of a fair market value is the kind of question on which the judgment of the reviewing court should not be substituted for that of the fact-finding tribunal. Indeed, it goes far beyond that. There the Supreme Court held that the question whether the “values [of real property] should be ascertained by discounting sale prices * * * because of the time which would be required * * * to dispose of the whole” was a question for the Board of Tax Appeals to settle and not the court. The Board of Tax Appeals had found that the real property had a certain value but the Circuit Court of Appeals reversed the Board, adopting a different rule of valuation, namely, that a discount should also be made because of the time which would be required to dispose of the property. The Supreme Court reversed the Circuit Court of Appeals and affirmed the Board, saying, 300 U.S. at page 40, 57 S.Ct. at. page 325, 81 L.Ed. 491:
“This action, we think, amounted to an unwarranted substitution of the Court’s judgment concerning facts for that of the Board. There was substantial evidence, as appears above, to support the latter’s conclusion, and in such circumstances this must be accepted. It is the function of the Board to weigh the evidence and declare the result. We undertook to state the applicable rule in Helvering v. Rankin. * * * ”
It is clear that the issue here, not involving a formulation of a standard of valuation which seems to us to be a question of law, is much more a question of fact than the one which was involved in the Elmhurst case. Of course, here we are dealing with the finding of a district court and Rule 52(a) and not with a finding of the Board of Tax Appeals and the fact-finding rule there applicable. Yet the questions are closely related because the problem here is to determine whether the fact-finding rule with respect to district courts is to be applied and the problem before the Supreme Court in the Elmhurst case was to determine whether the fact-finding rule with respect to the Board of Tax Appeals was to be held applicable.
, The existence of a fair market value was held to be a question of fact in Mistrot v. Commissioner, 5 Cir., 84 F.2d 545. See Regulations 74, Article 561, and Paul & Merten’s, The Law of Federal Income Taxation, Vol. 5, p. 701. We hold that Rule 52(a) is applicable here.
The government does not challenge the findings that International Hydro-Electric System was a comparatively new enterprise; that it was one of the top entities in a highly pyramided public utility holding company system; that its Class A stock was subject to violent fluctuations; that this stock was junior to 83 or 84 per cent of the stock of the entire holding company system; that the margin of earnings covering this Class A stock was very thin, and that the Class A stock here involved could not be sold for a year. Under these circumstances, we cannot say that the district judge’s finding that the stock had no fair market value was clearly erroneous. Nor can we say that he erred in holding that the taxpayer had sustained the burden of discrediting the Commissioner’s determination that the restricted Class A stock had a fair market value.
This case falls within the principle of Helvering v. Tex-Penn Oil Co., supra. There the Supreme Court said:
“The court is also of opinion that the judgments must be affirmed upon the ground that in the peculiar circumstances of this case, the shares of Transcontinental stock, regard being had to their highly speculative quality and to the terms of a restrictive agreement making a sale thereof impossible, did not have a fair market value, capable of being ascertained with reasonable certainty, when they were acquired by the taxpayers.”
The government argues that the stock here involved is not speculative within the meaning of the Tex-Penn case and that, with the speculative element thus out of the case, we are bound by the cases which hold that a restrictive agreement does not deprive stock of a fair market value. While the stock in the Tex-Penn case may have been more speculative than the stock in this case, it does not follow that the district judge committed error in holding that the Class A stock of the Hydro-Electric System was so speculative that, coupled with the restrictive agreement, it had no fair market value. That case also necessarily holds that a district judge would not be in error in considering the effect which a restrictive agreement would have on the existence of the fair market value of a stock.
We hold that the District Judge’s findings cannot be set aside. Therefore, there is no need for us to consider the constitutional point raised by the plaintiff.
The judgment of the District Court is affirmed.
Ҥ 111. Determination of Amount of Gain or Loss.
(a) Computation of Gain or Loss. Except as hereinafter provided in this section, the gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the basis provided in section 113, and the .loss shall be the excess of such basis over the amount realized. 26 U.S.C.A. Int.Rev.Acts, page 376.
“(c) Amount Realized. The amount realized from the sale or other disposition of property shall be the sum of any money received plus the fair market value of the property (other than money) received.”
Paul & Merten’s, The Law of Federal Income Taxation Vol. 5, p. 246.
It should be noted that the principle of the Tex-Penn ease which we are now discussing is different from the other principle laid down in that case on ultimate and primary facts which was mentioned earlier in this opinion.
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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William BALLWANZ, to the Use of Liberty Mutual Insurance Company, Appellant, v. ISTHMIAN LINES, INC., a body corporate, Appellee. ISTHMIAN LINES, INC., a body corporate, Appellant, v. JARKA CORPORATION OF BALTIMORE, Appellee.
No. 8786.
United States Court of Appeals Fourth Circuit.
Argued Jan. 22, 1963.
Decided June 5, 1963.
John J. O’Connor, Jr., Baltimore, Md. (O’Connor , & Preston, Baltimore, Md., .on brief), for appellant, William Ballwanz, to the use of Liberty Mut. Ins. Co.
Southgate L. Morison, Baltimore, Md. (Ober, Williams, Grimes & Stinson, Baltimore, Md., on brief), for appellee-appellant, Isthmian Lines, Inc.
Eugene A. Edgett, Jr., Baltimore, Md., on brief for appellee, Jarka Corp. of Baltimore.
Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and MICHIE, District Judge.
J. SPENCER BELL, Circuit Judge.
The plaintiff, a longshoreman, one of a gang of eight, was engaged in loading a cargo of truck bodies in the ’tween deck area of The S.'S. STEEL WORKER, owned and operated by Isthmian Lines, Inc. The truck bodies were crated in wooden frames measuring between 30 and 35 feet in length, eight feet in width, and four to four and one-half feet in height. To lift them from the pier into the hold, a heavy wire sling was placed under each end of the crate approximately eight feet from the edge. A wooden spreader was placed between the wires of the sling at the top of the crate to prevent the weight of the body exerted on the heavy metal wire from crushing in the crate at the top. The spreaders were four by sixes, eight feet long, and made of oak wood. The ends of the spreaders were notched to prevent the wires from slipping off. When the crates were landed on four by fours placed in the square of the hatch to receive them, the sling would be relieved of its weight and the spreaders would drop down onto the top of the crate. The longshoremen would remove the slack wire cable from the respective ends of the crate and take a half hitch with the wire sling around each end of the spreaders. They did this on instructions relayed to them from up on the deck. The winches would then hoist the wire slings with the spreaders in them out of the hold and proceed to pick up another crate. After this had been done about the third or fourth time, one of the spreaders fell out as the sling was passing up and “dived” back into the hold, striking the plaintiff on the leg, and injuring him. There was no real conflict in the testimony as to how the injury occurred. It was apparent that the wire of the sling was too stiff to hold the wooden spreader securely. The parties’ witnesses differed as to the use of this type of spreader on the water front. ’ The plain.tiff and his coworkers all testified that this was the. first time they had used a spreader which was not bolted or in some other way affixed to the sling so that it would not fall off. The stevedore foreman testified that-this type of spreader was used occasionally. He estimated that ■in five years this type of spreader had 'been used perhaps as often as forty times.
The case was submitted to the jury on special issues which were answered as follows:
“A. Under all the facts of this case, was the SS STEEL WORKER, at the time and place of the casualty complained of, unseaworthy with respect to the loading gear used at the No. 5 hatch?
“Yes.... No X
“B. Under all the facts of this case, was Isthmian Lines, Inc., the Master, or any member of the crew of the SS STEEL WORKER at the time and place of the casualty complained of, negligent?
“Yes X No....
“If your answer to both A and B are ‘No’, it is not necessary to answer the remaining questions.
“If your answer to either A or B is ‘yes’, you should answer the remaining questions.
“C. If you find unseaworthiness or negligence, or both, existed at the time and place of the casualty com- ' plained of, was such unseaworthiness or negligence, or the combination of both, a proximate cause of the injuries sustained by Mr. Ballwanz?
“Yes.... No X
“D. Did any negligence . of the Plaintiff cause or contribute to the accident of which he complains?
“Yes X No......
“If your answer to D is ‘No’ you need not answer ‘E’. If your answer to D is ‘Yes’ you should answer ‘E’.
“E. If you find negligence on the part of Mr. Ballwanz and that such negligence was a proximate cause of the injuries sustained, to what extent or degree percentagewise, did such negligence contribute to the happening of the casualty?
“50%
“F. If your answer to either question A or B and your answer to question C were ‘yes’, at what amount do you fix the damages, apart from any question of contributory negligence?
On the basis of these answers the Court entered judgment for the defendant and the plaintiff appeals.
In the factual context of this case it was error to enter a verdict for the defendant on the basis of the jury’s answers to the special issues submitted. On these issues the jury found the ship to be negligent. No evidence submitted to the jury tended to show the vessel negligent except in one particular and that was with reference to the inadequacy of this equipment and the manner of its use. If the ship was negligent, that negligence consisted of its failure to prohibit the inadequate equipment from being used, or if it was being used improperly then to stop such improper use. No other hypothesis or theory than this was advanced by either counsel or Court until after the jury’s verdict was returned. We agree with the analysis of the trial judge in this respect. In a colloquy with counsel for the shipowner, who was complaining of the absence in the charge of any instruction concerning the negligence of the stevedore company, who was third party defendant, the Court said:
“* * * if you (ship owner) were negligent, your negligence operated — your knowledge of the spreader, operated right up to the moment of the time these men had the choice either to do it in a dangerous way, as you say, or to hand it up. I don’t think any intervening negligence of Jarka, except the negligence in which the plaintiff himself participated, could be an intervening insulating negligence.’’
• In short, the theory upon which the case was tried was that the injury was caused by the negligence of either the ship owner or the plaintiff or both. If in the context of these facts, the ship owner was negligent, as the jury found, then his negligence could not but have been a proximate cause of the accident. That the plaintiff’s negligence contributed 50% to his injury was to be considered in the computation of damages but could not relieve the defendant of his share of the responsibility for the causation of the injury which in fact resulted from the use of this equipment. In fact the jury found both the ship owner and the seaman negligent; but it found that the seaman’s negligence contributed only 50% to the happening of the casualty. In the narrow factual setting of this case, we find the conclusion inescapable that these findings are inconsistent with the finding that the ship owner’s negligence was not at least a proximate cause of the plaintiff’s injury. This inconsistency would not support a judgment for the defendant based upon a speculation that some third person had contributed the remaining 50% of negligence which caused the accident.
In this connection, we also think it was error to charge the jury that they might consider Ballwanz’s failure to “pass up” the spreader by hand instead of “slinging it up” as evidence of contributory negligence on his part. The plaintiff longshoreman was at the bottom of the hierarchy of command and we fail to see how he can be held responsible for the manner of operations of the stevedore company. The defendant ship owner had a general responsibility for the manner in which the loading operations on his vessel were carried out. If it was negligent and dangerous to “sling” the spreaders up instead of passing them up, then this manner of operation had been going on under the general supervision of the ship owner and the particular supervision of the stevedore company for nearly three hours before the injury occurred.
While it is true that an effort must be made to reconcile jury verdicts, nothing in the Seventh Amendment removes the appellate court’s duty to correct errors of law, Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 1355, 366, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962) (dissenting on other grounds). We find, as discussed above, that the-jury’s answers to the special issues submitted to it were irreconcilable.
We are also of the opinion that the Court erred in its charge to the jury in three respects: first, in defining unseaworthiness, its emphasis upon the necessity of finding fault on the part of the vessel could easily have led the jury to confuse the concept of fault with the common law concept of negligence, and second, the Court in its repetitive insistence that the equipment need be only reasonably fit for the purpose for which it was being used grossly de-emphasized the affirmative aspects of the doctrine of seaworthiness as laid down by the Supreme Court. Finally in the factual aspects of this case, it was error to charge the jury that in considering the seaworthiness of the gear they might take into consideration the plaintiff’s failure to complain or to demand additional materials to make it better suited to the purpose for which it was being used.
In its charge to the jury the Court emphasized the fact that unseaworthiness cannot occur without fault of the ship owner. However true it may be as an abstract proposition of law that unseaworthiness in a broad general sense cannot exist without fault on somebody’s part in that it constitutes a breach of one’s duty, it is not a fault in the ordinary everyday use of the term. Certainly no layman would accept as a “fault” many of the conditions which the Court has held to constitute unseaworthiness — by way of illustration, a door knob which comes loose, The H. A. Scandrett, 87 F.2d 708 (2 Cir.1937); a scaffold which breaks because it is made up with defective rope when the ship owner has furnished sound rope, Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); a ladder with a broken rung, Dixon v. United States, 219 F.2d 10 (2 Cir.1955); grease or oil on deck, United States v. Harrison, 245 F.2d 911 (9 Cir. 1957); a shackle with a hidden defect which broke in use, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); a shower without hand rails, Krey v. United States, 123 F.2d 1008, (2 Cir.1941); a transitory condition not called to the attention of the ship owner, Mitchell v. Trawler. Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Gryzbowski v. Arrow Barge Co., 283 F.2d 481 (4 Cir. 1960).
The courts have long recognized this difference between the obligations and responsibilities which the- ship owner owes to the members of the crew of his vessel as compared to an employer on shore side, Socony Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939). Thus the obligation of seaworthiness is absolute in character and is not satisfied by the exercise of reasonable care on the part of the ship owner, nor is it affected by relinquishment of control to another, such as a stevedore employer of a longshoreman. Petterson v. Alaska S. S. Co., 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). Should the jury find unseaworthiness the maritime law would make the defendant liable for any injuries suffered by the plaintiff in this case by reason of the unsafe condition of the loading gear, including the unattached and unsecured wooden spreader, even if the ship owner had no knowledge of the defect and no opportunity to discover it or correct it. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1943); Read v. United States, 201 F.2d 758 (3 Cir. 1953). Thus the Court’s emphasis upon the necessity of finding fault, when considered with reference to the balance -of the charge, was an unjustifiable dilution of the doctrine of seaworthiness as it has been developed by the Supreme Court.
The above error of the Court was emphasized by its subsequent repetitive insistence that the equipment used need be only reasonably fit for the purpose for which it was intended. Thus the Court’s statement:
“It is only obligated to have equipment which is reasonably safe for carrying out the ship’s work, and to determine what is reasonably safe equipment for such purposes, the Jury may consider what is customary in the port at the time of the occurrence and may only find such equipment makes a ship unseaworthy if it creates an unreasonable risk to those performing the work.”
This emphasis of the “negative” aspects of the duty by its use of the terms “reasonably”, “reasonable”, and “unreasonable”, constantly repeated in defining the nature and extent of the duty, diluted and adulterated the character of the warranty of seaworthiness. Interspersed and repeated as they were throughout that portion of the charge devoted to defining and explaining the doctrine of liability for unseaworthiness, these words and phrases were tantamount to suggesting a requirement that the jury must find negligence in order to hold the ship owner liable, an obviously incorrect standard which might well have confused and misled the jury. We repeat that liability for injury resulting from unseaworthiness is not to be based on concepts of negligence. The cases cited above indicate how slight a defect is sufficient to constitute a breach of this warranty of unseaworthiness.
We also think it error for the Court to have charged the jury in this case that in considering the seaworthiness of the vessel they might take into consideration the plaintiff’s failure to complain or to demand additional material to make the equipment better suited for the purpose for which it was being used. In its charge the Court said:
“In connection with the issue of seaworthiness, you may also consider the fact that no complaint was made by the plaintiff or by any of the other members of the gang to the gang carrier or by the gang carrier to the foreman about the spreader, and you may consider that the plaintiff and his fellows did not ask for wire or cord to tie or lash the spreader to the wire sling or cable.
“You should consider the situation of the ship with the main deck and this ’tween deck about seven feet below, and you may consider the fact that the men at the forward end of the crate, instead of sending the spreader up in the way.the men at the rear end did, passed it up just by handing it up onto the top deck, which was seven- feet above them.”
This instruction is strikingly similar to that given by the District Court in Gryzbowski v. Arrow Barge Co., 283 F.2d 481 (4 Cir. 1960), and held improper by this Court.
It is the ship owner’s absolute and nondelegable duty to furnish to seamen and to others to whom that duty is owing a seaworthy vessel. “A longshoreman does not assume the risk of negligence or unseaworthiness and this is so whether his action is based on negligence or unseaworthiness.” Klimaszewski v. Pacific-Atlantic Steamship Co., 246 F.2d 875 (3 Cir. 1957); Palermo v. Luckenback Steamship Co., Inc., 355 U. S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3 (1957), modified, 355 U.S. 910, 78 S.Ct. 337, 2 L.E.2d 271 (1958).
The plaintiff was one of a gang of eight longshoremen working in the hold of the defendant ship. He had no responsibility for, or authority over, any of his fellow workers. His duty was to do his work as he was instructed. He was in no sense obligated to protest against the method of operation which he had been instructed to follow or to devise a safer method, nor was he obligated to call for additional or different equipment. If the doctrine of seaworthiness means anything, it is totally repugnant to the doctrine, of assumption of risk on the part of seamen. The .plaintiff in this case was at the very bottom of the hierarchy cf command, and the effect of the charge was to place too much responsibility upon him for the over-all operations of the stevedore. .The courts have held that where a seaman has a choice between a seaworthy or an unseaworthy part of a ship his use of the latter will not relieve the owner of his responsibility. Palermo v. Luckenback Steamship Co., Inc., supra. Certainly if a seaman may deliberately choose an unseaworthy part of a ship without losing his right of recovery then he is under no obligation to. complain about his orders or to insist on better equipment. Nor do we think that the error was cured by the Court’s later reference to the doctrine of assumption of risk in that part of the charge relating to the issue of plaintiff’s contributory negligence.
In Gryzbowski v. Arrow Barge Co., 283 F.2d 481 (4 Cir. 1960) this Court held the District Court in error in charging that the doctrine of unseaworthiness did not extend to transitory unsafe conditions, citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). Specifically, it held that the District Court was in error in charging the jury that they might consider on the question of seaworthiness the fact that nó one (including the plaintiff) had complained to the ship owner because neither notice of the condition nor lack thereof was material. It also stated “But, in' determining seaworthiness, no significance attaches to the fact that no one complained .of the alleged unsafe condition. Neither notice of the condition or lack thereof was material.” The Court added that such an instruction was in conflict with the Supreme Court’s pronouncement that “what is evolved is a complete divorcement of unseaworthiness liability from concepts of negligence”. .
■ Thus the Court held that the required standard of seaworthiness must be met whether anyone complains or not, and to permit a jury to consider the absence of complaints or demands for other or additional equipment is to detract from the standard required. The Court’s holding that the remainder of the charge set forth a correct exposition of the law cannot be construed as upholding the charge which was given in this case when considered in the context of its facts. Indeed, with the exception of its reference to complaints, no isolated statement of the charge given in this case could be said to be incorrect as a matter of law. It is correct appellate language, but in its overwhelming emphasis on the negative aspects of the doctrine it was well calculated to mislead a jury, and the fact that the jury found the vessel guilty of negligence but the gear to be seaworthy is indicative of that fact.
For the reasons stated herein, the case will be remanded to the District Court with the direction that the plaintiff be awarded a new trial.
Reversed and remanded.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_appfiduc
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
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 total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Mari OTTO, Plaintiff-Appellant, v. Margaret M. HECKLER, Secy., Department of Health & Human Services, Defendant, Howard Jacobson, Defendant-Appellee.
No. 84-6563.
United States Court of Appeals, Ninth Circuit.
Argued Oct. 10, 1985.
Submitted Nov. 19, 1985.
Decided Jan. 28, 1986.
Marc Coleman, Diane L. Middleton, P.C., San Pedro, Cal., for plaintiff-appellant.
Wendy Kets, U.S. Dept, of Justice, Washington, D.C., for defendant-appellee.
Before MERRILL, TANG, and BOO-CHEVER, Circuit Judges.
TANG, Circuit Judge.
Mari Otto, an employee of the Social Security Administration (“SSA”), appeals from an order dismissing her complaints alleging constitutional violations and common law torts committed by her supervisor in conjunction with acts of sexual harassment cognizable as sex discrimination claims under Title VII. Ms. Otto pursued her Title VII complaints in a class action suit settled at the EEOC level, and thus has exhausted her administrative remedies. This appeal raises novel legal questions of whether Title VII remedies for sex discrimination in federal employment preclude redress for constitutional or tortious injuries to a female employee caused by allegedly non-job related conduct of her male supervisor or alternatively whether damages are unavailable because of the doctrine of absolute immunity. We affirm the dismissal of the federal constitutional claims for reasons different from those given by the district court.
FACTS
Mari Otto started working at the Inglewood SSA District in July 1978 as a field representative. Howard Jacobson, the district manager, was Ms. Otto’s immediate supervisor. In June 1981 Ms. Otto complained to her agency that Mr. Jacobson was sexually harassing her, and in August she filed a class action Equal Employment Opportunity (“EEO”) complaint with the Department of Health and Human Services (“HHS”). Later Ms. Otto added claims of retaliatory actions to her complaint and in August 1982, in accordance with HHS procedures outlined in 29 C.F.R. § 1613.215 (1985), HHS administratively denied her individual complaint because it was part of a pending class complaint.
Having been given the option of filing a civil action in federal court, Ms. Otto initiated this action on September 8, 1982. In her amended complaint she named Richard Schweiker, then head of HHS, and Mr. Jacobson, in his capacity as an individual and as a SSA manager, as defendants in both individual and class action claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982) (“Title VII”). She also sought to sue Mr. Jacobson personally for damages resulting from his violations of her constitutional rights and from his tortious conduct. Ms. Otto alleged that Mr. Jacobson violated her fourth amendment right to privacy and her fifth amendment right to equal protection and that he committed a variety of common law torts including assault, invasion of privacy, intentional infliction of emotional distress and defamation. The resulting mental distress allegedly caused Ms. Otto to suffer a miscarriage. The Government filed a motion to dismiss Ms. Otto’s constitutional and tort claims on the ground that Title VII provides the exclusive remedies for sexual harassment, and to dismiss Mr. Jacobson from the suit because the only appropriate defendant in a federal employment Title VII claim is the head of the agency concerned. 42 U.S.C. § 2000e-16(c) (1982).
On February 8, 1983 the district court ruled favorably on the Government’s motions and dismissed Mr. Jacobson from the suit, dismissed all claims except the Title VII claims, and remanded the Title VII class claims to EEOC where they were litigated and settled. On October 19, 1984 the district court entered an order dismissing all remaining claims against all remaining defendants, and on November 16, 1984 Ms. Otto filed a timely appeal with this court seeking review of the dismissal of her constitutional and tort claims against Mr. Jacobson.
DISCUSSION
All the questions raised in this appeal are legal issues reviewable de novo by this court. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc), cert. denied — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The questions presented for our review are whether Title VII provides the exclusive remedies for sex discrimination and, if not, whether Otto has stated claims for relief based on violations of her constitutional rights or on the tor-tious conduct of her supervisor. The district court dismissed Otto’s complaints on the authority of Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976), which held that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.”
A. Title VII Remedies Do Not Preclude Other Judicial Relief.
The fundamental question in this case is whether Otto’s claims of constitutional violations and tortious conduct are claims of discrimination in employment. Both parties agree that Brown means that Title VII provides the exclusive remedy for discrimination in federal employment, and that sexual harassment has been considered sex discrimination since 1977. Barnes v. Costle, 561 F.2d 983, 989 (D.C.Cir.1977). This court followed Brown in holding that Title VII is the sole remedy for a race discrimination claim by a federal employee, but specifically noted that Title VII does not preclude separate remedies for “unconstitutional action other than discrimination.” White v. GSA, 652 F.2d 913, 917 (9th Cir.1981). Having acknowledged that unconstitutional actions may occur along with Title VII statutory violations, this court refused to view a federal employee’s due process claim arising from involuntary resignation caused by sex discrimination as a separately remediable claim because “the factual predicate for [her] due process claim [was] the discrimination which [was] the basis of her Title VII claim.” Nolan v. Cleland, 686 F.2d 806, 815 (9th Cir.1982); accord Clemente v. United States, 766 F.2d 1358, 1364 n. 7 (9th Cir.1985).
Otto argues that her constitutional and tort claims arise from a different factual predicate than her Title VII claims. She maintains that her injuries did not result only from discriminatory employment practices remediable under Title VII, but from acts of intrusion into her privacy, harassment, and defamation which were not job related and which caused personal injuries. She asserts that her constitutional claims arise from non-job related and nonperson-nel actions. The Government contends that Otto’s sole grievance relates to “on-the-job forms of sexual harassment” and thus although White and Nolan may permit damage actions for separate and distinct claims this is not such a case.
Ms. Otto contends that the substantive basis of her tort claims is not “her right to be free from discriminatory treatment at her jobsite” but her “right to be free from bodily or emotional injury caused by another person.” Stewart v. Thomas, 538 F.Supp. 891, 895 (D.D.C.1982). The Government contends that since the allegedly tortious acts were on-the-job forms of sexual harassment they cannot be the basis of a separate claim because they are merely the “predictable ... concomitants of sexual harassment in employment.” The better view is that torts which constitute “highly personal violations[s] beyond the meaning of ‘discrimination’ [are] separately actionable.” Stewart, 538 F.Supp. at 896. We reaffirm our holdings in White and Nolan that Title VII does not preclude all other claims for relief, but we turn now to a more specific consideration of Otto’s constitutional and tort claims.
B. Constitutional Claims.
The Government argues that the constitutional claims are barred by Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), which limited the availability of judicial remedies first provided for constitutional violations in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We do not reach the question of whether Bush bars us from providing a remedy because we find that Otto has not stated a claim for relief under Bivens. We agree with Justice Marshall’s concurring opinion in Bush, that “there is nothing in [this] decision to foreclose a federal employee from pursuing a Bivens remedy where his injury is not attributable to personnel actions which may be remedied under the federal statutory scheme.” Bush, 462 U.S. at 391, 103 S.Ct. at 2418 (Marshall, J., concurring). But we find no constitutional violations in this case. Bivens held that where federal agents violated an individual’s fourth amendment rights, the courts are empowered to provide redress for his injuries in the form of money damages. 403 U.S. at 397, 91 S.Ct. at 2005. But we cannot provide redress without evidence of a constitutional injury caused by a federal agent acting within the parameters of his authority. Taking all of Ms. Otto’s allegations as true, we find that: (1) her supervisor’s job related acts of harassment or defamation produced injuries remediable under Title VII, and (2) her supervisor’s non-job related acts of harassment or invasions of her privacy were not within the parameters of his authority, and thus were not Bivens -type violations.
Ms. Otto argues that her supervisor’s defamatory remarks were sufficiently damaging to rise to the level of a violation of her constitutionally protected liberty interest in her reputation. See Paul v. Davis, 424 U.S. 693, 701-10, 96 S.Ct. 1155, 1160-65, 47 L.Ed.2d 405 (1976). To the extent that the alleged defamation damaged Ms. Otto’s employment or advancement opportunities, her Bivens claim is defeated by the fact that those are precisely the injuries cognizable and remediable under Title VII.
Ms. Otto further contends that her fifth amendment right to equal protection was violated by her supervisor’s conduct. Her reliance on Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) for this argument is unfounded since the Court there provided relief to a female employee discriminated against on the basis of sex by her employer, a member of Congress, only because such employees were not protected by civil service or Title VII provisions. Id. at 247, 99 S.Ct. at 2278. Ms. Otto’s claim of sex discrimination is identical to her Title VII claim, and she has already received relief under those provisions.
Finally, Ms. Otto argues that her supervisor violated her right of privacy by making defamatory remarks about her sexuality, by following her, telephoning her and placing her in fear of sexual abuse. Such facts do not constitute an invasion of the constitutional right of privacy, but rather sound in tort. Her supervisor’s conduct does not amount to a governmental intrusion into the intimacies of married life. Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 1682-83, 14 L.Ed.2d 510 (1965). To the extent Mr. Jacobson intruded into Ms. Otto’s married life, he was acting outside the limits of his authority, and thus did not commit a Bivens -type violation.
C. Tort Claims.
For the very reason Ms. Otto failed to state a Bivens claim for relief, she has stated a claim for relief in tort. Both parties agree that this court’s decision in Miller v. De Laune, 602 F.2d 198, 200 (9th Cir.1979) states the applicable rule that an official of the Government, “acting within the outer perimeter of his or her line of duty, is absolutely immune from state or common-law tort liability.” This rule, first established in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), was further elaborated in Butz v. Economou, 438 U.S. 478, 495, 98 S.Ct. 2894, 2905, 57 L.Ed.2d 895 (1978) where the Court said the rule did not abolish officials’ liability for acts “manifestly beyond their line of duty.” In Otto’s case, the Government contends that all of the conduct in question occurred within the scope of Jacobson’s role as a supervisor, while Otto argues that following her, defaming her and harassing her with telephone calls was not conduct within the scope of his official duties. Taking Otto’s allegations as true, the Barr and Miller immunity is lost because her supervisor adopted means beyond the outer perimeter of his authority. See McKinney v. Whitfield, 736 F.2d 766 (D.C.Cir.1984) (supervisor’s alleged assault and battery of an employee outside the perimeter of duty); accord Bishop v. Tice, 622 F.2d 349 (8th Cir.1980) (federal supervisors exceeded their authority when they defamed and conspired to defraud an employee).
To ascertain whether Jacobson acted within the perimeter of his authority requires resolution of questions of fact “which cannot be resolved at the pleading stage.” Miller, 602 F.2d at 199, quoting Thomas v. Younglove, 545 F.2d 1171, 1173 (9th Cir.1976). Thus, the district court’s dismissal of Ms. Otto’s common law tort claims was not necessarily appropriate.
CONCLUSION
We affirm the district court’s dismissal of Ms. Otto’s federal constitutional claims, not because they are precluded by Title VII, but because she has failed to state a claim under Bivens. We leave to the discretion of the district court the question whether exercise of pendent jurisdiction over the remaining state claims is appropriate under the authority of 28 U.S.C. § 1338(b) (1982), or whether the state tort claims should be dismissed without prejudice. See Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1355-56 (9th Cir.1985).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
WRIGHT et al. v. UNITED STATES.
No. 13888.
United States Court of Appeals Eighth Circuit.
June 21, 1949.
Rehearing Denied July 14, 1949.
WOODROUGH, Circuit Judge, dissenting.
James Royall and M. Gabriel Nahas, Jr., Houston, Tex., for appellant Elmer Lee Wright.
Bert B. Larey, Texarkana, Ark., submitted brief for appellants.
Charles A. Beasley, Jr., Assistant United States Attorney, Fort Smith, Ark. (R. S. Wilson, United States Attorney, and David R. Boatright, Assistant United States Attorney, Fort Smith, Ark., on the brief), for appellee.
Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.
SANBORN, Circuit Judge.
The appellants were charged, by an indictment (based on the Mann Act, 18 U.S. C..A. § 398, 36 Stat. 825, now § 2421, new Title 18 U.S.C.A.), with having on July 18, 1948, knowingly transported in interstate commerce from Houston, Texas, to Texarkana, Arkansas, a certain woman, for immoral purposes. The defendants (appek lants) entered pleas of not guilty, and were tried, convicted and sentenced. By this appeal they challenge the legality of their conviction. They contend: (1) that the evidence was insufficient to support the verdict of the jury; (2) that the court admitted incompetent evidence; and (3) that the court erred in its instructions to the jury. The main contentions of the defendants are that the Government failed to prove (1) that they transported the woman in interstate commerce, and (2) that they had any intent that she should engage in prostitution in Arkansas.
The woman in the case, on July 18, 1948, left Houston, Texas, by automobile and traveled to Texarkana, Arkansas, where a room had been reserved for her at the Savoy Hotel. There she engaged in prostitution. The evidence shows, without dispute, that she was a prostitute, to the knowledge of the defendants; that she was transported by the defendants from Houston, Texas, to Texarkana, Texas; that she walked across the street which constitutes the dividing line between Texas and Arkansas at that point; that, after she left the automobile, the defendants drove, with her traveling bag, to the Savoy Hotel on the Arkansas side of the street, and obtained a room for her there, which she later occupied; that the room had been reserved by telegram from Houston, Texas, for “Mr. and Mrs. W. L. Thomas,” the telegram being signed “W. L. Thomas”; that Wright owned the automobile in which the woman was transported; that he was with Moore in the Savoy Hotel when Moore inquired about the room reservation; that when the Assistant Manager of the hotel stated that ■ he had no reservation for Moore, but had a telegram from Mr. and Mrs. W. L. Thomas from Houston, asking for a reservation, Wright said, “That’s it”; that the Assistant Manager offered them a room with twin beds; that Moore advised him that Wright would not be with him (Moore)- — that Moore’s wife would be with him; that “then he took a double-bedded room”; that when Moore and Wright, together, entered the hotel, Moore asked the bell boy if he needed a girl, and received an affirmative answer; that the woman came to the hotel shortly after the reservation was made, occupied the hotel room reserved for her, and practiced prostitution in the hotel.
The assertion that the evidence did not justify an inference that, prior to the end of the journey, the defendants had formed an intent that the woman should engage in prostitution at the Savoy Hotel in Texarkana, Arkansas, is untenable. The jury was justified in finding that -the defendants intended to do exactly what they did do, which was to enable this woman to practice prostitution at the hotel. That men may be believed -to have intended the natural and necessary consequences of their acts, is too elementary to require discussion or citation of authority; but see Myres v. United States, 8 Cir., 174 F.2d 329. Moreover, the defendants’ own admissions to a Special Agent of the Federal Bureau of Investigation showed that the facts were as the Government contends.
The assertion that the defendants never transported the woman in interstate commerce, because she walked across the street from Texas into Arkansas and to -the Savoy Hotel, is. ingenious, but, in our opinion, unsound. What the Mann Act sought to prevent, or at least to minimize, was the movement in interstate commerce of women and girls for immoral purposes. In the case of Hoke v. United States, 227 U.S. 308, at page 320, 33 S.Ct. 281, at page 283, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas. 1913E, 905, the Court said: “What the act condemns is transportation obtained or aided, or transportation induced, in interstate commerce, for the immoral purposes mentioned.” In Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 197, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168, the Court said: “It [the act] seeks to reach and punish the movement in interstate commerce of women and girls with a view to the accomplishment of the unlawful purposes prohibited. * * * and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.” In Gebardi v. United States, 287 U.S. 112, 118, 53 S.Ct. 35, 36, 77 L.Ed. 206, 84 A.L.R., 370, appears the following: “Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law.”
It is true that the defendants did not physically transport the woman across the boundary line between Texas and Arkansas. She got out of the automobile on the Texas side of the street and was not in the automobile when the defendants delivered her bag to the Savoy Hotel and arranged for her reservation. Neither of the defendants stayed at the Savoy Hotel. They contend that their journey ended in Texas. It cannot be gainsaid, however, that the journey of the woman did not end in Texas, but ended at the Savoy Hotel, in Arkansas, and that the defendants had transported her for virtually the entire distance from Houston.
We have found no case which on its facts is identical with the instant case. We think, however, that, in principle, the case does not differ from that of Mellor v. United States, 8 Cir., 160 F.2d 757, 764, certiorari denied 331 U.S. 848, 67 S.Ct. 1734, 1735, 91 L.Ed. 1858. In that case, the girls involved were not physically transported across a state boundary by the defendants, because, before reaching the boundary, the girls left the automobile and walked across the line. This Court said, page 764 of 160 F.2d:
“ * * * But we will view the trip in its entirety in determining whether there has been a violation of the Mann Act. We must decline to thwart the legislative purpose of Congress in enacting the statute by holding that defendants could escape the penal consequences of their wrongdoing by the simple process of stopping the vehicle at the state line and having the girls step across that imaginary barrier. The trip was from a point near O’Neill, Nebraska, to another point near Moran, Wyoming. If it was taken with an illicit purpose outlined in the statute defendants are guilty. The jury has resolved the issue against defendants.”
See, also, United States v. Mellor, D.C. Neb., 71 F.Supp. 53, 61; and United States v. Jamerson, D.C.N.D. Iowa, 60 F.Supp. 281, 284-285. In the Mellor and Jamer-son cases the women involved re-entered the automobile after having walked across the state line, but we regard that as of no legal consequence. As we see it, the important question, in the instant case, is: Did the defendants deliberately transport, or aid in or bring about the transportation of, the woman in interstate commerce? It will not do to say that the defendants were not charged with aiding her interstate transportation, but only with having physically transported her from the one state to the other. At the time the woman was transported (July 18, 1948) and long prior thereto, § 550, Title 18 U.S.C., 1940 Ed., § 332, c. 321, 35 Stat. 1152, provided: “Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” As restated in § 2(a) of new Title 18 U.S.C.A., effective September 1, 1948, the provision reads: “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” See, Ruthenberg v. United States, 245 U.S. 480, 483, 38 S.Ct. 168, 62 L.Ed. 414; United States v. Hodorowicz, 7 Cir., 105 F.2d 218, 220, certiorari denied 308 U.S. 584, 60 S.Ct. 108, 84 L.Ed. 489, 490, and compare, United States v. Giles, 300 U.S. 41, 48-49, 57 S.Ct. 340, 81 L.Ed. 493.
We have no doubt that one who deliberately aids or deliberately brings about the interstate transportation of a woman for immoral purposes is as guilty of the offense of transporting her as though he had physically and personally carried her across the state line. The question of the guilt or innocence of the defendants in this case was one of fact for the jury.
There is no merit in the defendants’ assertions that the court erred in its rulings on evidence. The defendants, after their arrest, were’ separately interviewed by a Special Agent of the Federal Bureau of Investigation, who testified, at the trial, to their admissions. It is contended that the Agent was improperly permitted to testify to what Wright said about Mooré and to what Moore said about Wright, and that the witness also made some remarks prejudicial to the defendants, which shpuld have been ordered stricken. The court was meticulously careful about confining the testimony of the Special Agent within legitimate bounds. There are two reasons why the court was not required to strike the remarks which are complained of. The first is that they were not prejudicial, and the second is that the court was not requested to strike them.
The defendants assert that the court erred in refusing to give certain requested instructions. We have examined the requests and the charge of the court. The charge we consider entirely accurate, adequate,. and eminently fair. Fortunately, a trial judge, in formulating his charge, is entitled to use his' own language and is not required to let counsel for either, party put word.s into his mouth. If the charge is accurate and gives to the jury all of the law which it needs in order to reach a verdict, that is enough. A charge should be a concise statement of the claims of the parties, the issues of fact which'the jury must decide, and the applicable law. It should not be a compilation of miscellaneous requested instructions.
The defendants did not testify. The court, at their request, instructed’ the jury with respect to the nonprejudicial effect of their failure- to testify. While the instruction was not in the exact words-requested by the defendants, it was adequate. Compare, Affronti v. United States, 8 Cir., 145 F.2d 3, 9.
After the submission of the case, the court gave to the jury, which apparently was having some difficulty, the supplemental charge which,- for many years and in many cases, has been approved by this and other federal appellate courts. In substance, it amounts to an earnest request that the jury decide the case if they conscientiously can do so, and thus save the parties the burden and expense of another trial before another jury with no different or better qualifications. Such a supplemental charge was approved in Hewitt v. United States, 8 Cir., 110 F.2d 1, 10, certiorari denied 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409; Boehm v. United States, 8 Cir., 123 F.2d 791, 812, certiorari denied 315 U.S. 800, 62 S.Ct. 626, 86 L.Ed. 1200; and Bowen v. United States, 8 Cir., 153 F.2d 747, 751-752, certiorari denied 328 U.S. 835, 66 S.Ct. 980, 90 L.Ed. 1611.
The judgments appealed from are affirmed.
In the Reviser's Notes to § 2421, new Title 18 U.S.C. page 2613, it is said:
“Beference to persons causing, procuring, aiding or assisting was deleted as unnecessary because such persons are made principals by section 2 of this title.”
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_direct2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
COMMISSIONER OF INTERNAL REVENUE v. GROMAN.
No. 5779.
Circuit Court of Appeals, Seventh Circuit.
Nov. 30, 1936.
Rehearing Denied Jan. 7, 1937.
Robert H. Jackson, Asst. Atty. Gen., and Sewall Key and Joseph M. Jones, Sp. Assts. to the Atty. Gen., for petitioner.
Egbert Robertson and James C. Spence, both of Chicago, Ill. (Robertson, Crowe & Spence, of Chicago, Ill., of counsel), for respondent.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
EVANS, Circuit Judge.
The Commissioner appeals from a ruling of the Board which held that the stock under consideration, received by respondent, was not taxable to him as gain because received in the course of a reorganization.
The Facts. Respondent was a stockholder in the Metals Refining Company, an Indiana corporation. The Glidden Company is an Ohio corporation. On January 29, 1929, the Glidden Company and all the stockholders of Metals Company entered into an agreement whereby all the stock of the Metals Company was to be transferred to a third company (Metals Refining Co. of Ohio), an Ohio corporation, to be formed by the Glidden Company. The consideration to the stockholders of Metals Company for the trarisfer was '$153,036.66 cash; 5276 shares of 7% prior preferred stock of the Glidden Company at $105 per share; and 5000 shares of 6% cumulative preferred stock of the new company.
Each shareholder of the Indiana corporation, of which respondent was one, received the percentage of this total consideration that his stock holdings bore to the total outstanding stock of said Indiana company. Glidden Company paid cash for the common stock of the new Ohio company. It did not receive any of the preferred stock of this company. The Indiana company was dissolved. Its assets were valued at $1,207,046.66. It is admitted that the cash received by stockholders was taxable and also that respondent’s proportion of the 5000 shares of the preferred stock of the new Ohio Company by him received was not taxable. The issue is limited to respondent’s proportion of 5276 shares of preferred stock of Glidden Company.
Did the Board of Tax Appeals correctly hold that the Glidden Company was a party to a reorganization within the meaning of section 112 (i) (2) of the Revenue Act of 1928?
The pertinent reorganization sections are:
Ҥ 112. (a) General rule. Upon the sale or exchange of property the entire, amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section. * * *
“(b) * * * (3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
“(4) Same — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. * * *
“(5) (c) Gain from exchanges not solely in kind. — (1) If an exchange would be within the provisions of subsection (b) (1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.
“(2) If a distribution made in pursuance of a plan of reorganization is within the provisions of paragraph (1) of this subsection but has the effect of the distribution of a taxable dividend, then there shall be taxed as a dividend to each distributee such an amount of the gain recognized under paragraph (1) as is not in excess of his ratable share of the undistributed earnings and profits of the corporation accumulated after February 28, 1913. The remainder, if any, of the gain recognized under paragraph (1) shall be taxed as-a gain from the exchange of property. * * *
“(i) Definition of Reorganization. As used in this section and sections 113 and 115—
“(1) The term ‘reorganization’ means (A) a merger or consolidation (including the .acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected.
“(2) The term ‘a party to a reorganization5 includes a corporation resulting from a reorganization and includes both corporations in the case of an acquisition by one corporation of at least a majority of the. voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation.
“(j) Definition of control. As used in this section the term ‘control’ means the ownership of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.” (26 U.S.C.A. § 112(a), (b) (3), (4) (c) (1,2) and note (g) (1,2) note, (h) and note.)
The recent decisions of the courts which have passed upon similar questions reject the respondent’s contention that he was within the exemption of the reorganization section. In other words, thq [following cases, while not exactly in point, are persuasive. Bus & Transport Securities Co. v. Helvering, 296 U.S. 391, 56 S.Ct. 277, 80 L.Ed. 292; G. & K. Manufacturing v. Helvering, 296 U.S. 389, 56 S.Ct. 276, 80 L.Ed. 291; Ballwood Co. v. Commissioner (C.C.A.) 84 F.(2d) 733.
Determinative of the question before us is the answer to the question, Was Glidden a party to1 reorganization whereby the Indiana Company transferred its stock to the Ohio Company and the latter paid the stockholders of Indiana Company in cash, preferred stock of Ohio Company, and preferred stock of Glidden Company?
We see no reason for extending the meaning of the term “party” as it appears in section 112 (i) (2) (26 U.S.C.A. § 112 (g) (2) note). To hold otherwise would be to usurp legislative functions. Congress has defined a party to a reorganization so as to permit a taxpayer to avoid what would otherwise be taxable income. It could have refused to allow such deductions altogether. Having exempted “gains” through reorganization, it could and did define reorganizations. In so doing it used the term “a party” referring to those who were in the reorganization. We must hold respondent to the definition which Congress specifically gave to the word “party.” It would, we think, be a forced construction to assume that under such circumstances there were parties other than those defined by the statute. Respondent relies upon the exemption of the statute, but declines to abide by the Congressional definition of essential terms.
The conclusion here reached is confirmed if we view the transaction from another approach. Let us assume that we have a taxpayer who owns stock in a corporation which he sells to another corporation. He is paid partly in cash, chiefly in preferred stock of a third corporation, and the balance in preferred stock of a corporation which buys his stock. The price received is in excess of the cost of the stock to him. Is his gain taxable?
There can be no question about the correctness of an affirmative answer save for an alleged exception or exemption from the tax law due to the reorganization provision of the act. The cash received, of course, is not exempt. The taxpayer does not question the tax upon the cash by him received. The Government concedes the soundness of the taxpayer’s claim of exemption so far as the stock of the acquiring corporation is concerned. In the face of this concession this item like the cash item is out of the picture. As to the stock of a third company, even though it be a parent company, there seems no reason for exempting it any more than could be advanced for exempting the cash. Instead of preferred stock of the third company, it might have been bonds of the third or a fourth company, or real estate or physical personal property. The reason for exempting the stock of the purchasing company does not apply.
Our conclusion, however, is based not upon the reasons for Congressional action, but upon the fact that Congress, in exempting gains derived through the transfer of stock which transfers are but a part of reorganizations, saw fit to define with particularity the terms “reorganization” and “parties to reorganization.” As we apply these definitions to the facts before' us, we are impelled to the conclusion that the Glidden preferred stock was not exempted.
The order is reversed, with directions to proceed in accordance with the views herein expressed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
LANCES et al. v. LETZ.
No. 98.
Circuit Court of Appeals, Second Circuit.
Dec. 2, 1940.
Joseph Rilander, of New York City, for plaintiffs-appellants.
William J. Dowd, of New York City (Hornidge & Dowd, of New York City, on the brief), for defendant-respondent.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The parties here are competitors in the business of manufacturing and marketing sculptural “bras” or brassieres. We have to determine whether or not an incipient controversy between them had become so dead by the time this action was brought as not to furnish a case for a declaratory judgment.
On February 4, 1939, defendant’s attorney addressed a letter to the plaintiff Edith Lances — with ydiom the other plaintiffs do business under the firm name of Edith Lances Brassieres — asserting that the-cut of plaintiffs’ brassiere was an infi-ingement of defendant’s patent No. 1,942,250 and stating that the purpose of the letter was “to inform you of the fact that Miss Letz will adopt any and all legal means and procedure provided by the civil law to restrain the infringement of her patent, and for the recovery of any damages which she has sustained or may sustain in connection with such infringement by anyone.” The letter continued: “However, in view of the circumstances, if you would prefer to take up the subject matter on a basis amicable both to you and to Miss Letz, I would appreciate hearing from you.” Plaintiffs’ response to this opening was decidedly reserved. On March 22, their attorney wrote defendant’s counsel that the garments manufactured by his clients did not infringe any claims of the patent, that plaintiffs’ article in question was in public use prior to defendant’s patent application, that defendant copied the plaintiffs’ brassiere, and that they had “still other evidence” to show that defendant’s claims were “entirely invalid” because of prior art. And this letter closed: “If you should care to take this matter up with me further, I will be glad to have you call upon me.” On July 6, new counsel for defendant addressed plaintiffs’ attorney, calling attention to the previous correspondence as to "the alleged infringement” and saying, “Our client is anxious to litigate this matter but in view of the statements in your letter, we would prefer to have a conference with you on the question of noninfringement and invalidity before proceeding, if you will please assemble for our inspection the material mentioned in your letter of March 22nd. Trusting to see you at an early date, we are,” etc.
And so the inspection was duly had on August 28, but by still another attorney on behalf of the defendant, who avers that his only duty was to look and report back, which he did. Plaintiffs assert, by affidavit of their counsel, that this latest attorney agreed to “let me know within a week or two his client’s disposition in this matter.” There being complete silence from defendant or anyone representing her, plaintiffs commenced this action on November 17, 1939,- to test the validity of defendant’s patent by way of a declaratory judgment. The district court dismissed the action on summary judgment after answer was filed, stating that whether or not a controversy between the parties was initially disclosed, it was not -shown to have continued to the date of commencement of the suit.
We believe it a fair interpretation of the remedial provisions of the declaratory judgment statute, 28 U.S.C.A. § 400, and of Federal Rule of Civil Procedure 57, 28 U.S.C.A. following section 723c, that one cannot so brashly initiate a controversy by such extensive threats of litigation as were here involved and then avoid the risk of judicial adjudication by mere nonaction. One of the situations where the declaratory judgment is most helpful is that of patent litigation where a threat of suit for infringement has been made and not pressed for the attention of a court. “This has had a, most beneficial effect in curing what had become a racket. For patentees, none too sure of the validity of their patents, had often notified customers or licensees of their rivals or competitors of their intention to bring suit against all who dealt in the product in question.” Borchard, Declaratory Judgments, 9 Brooklyn L.Rev. 1, 30, 1939; cf. Leach v. Ross Heater & Mfg. Co., 2 Cir., 104 F.2d 88, 91; E. I. Du Pont De Nemours & Co. v. Byrnes, 2 Cir., 101 F.2d 14; Zenie Bros. v. Miskend, D.C.S.D.N.Y., 10 F.Supp. 779; Mitchell & Weber, Inc. v. Williamsbridge Mills, D.C.S.D.N.Y., 14 F.Supp. 954; 45 Yale L.J. 160, 1935, 1287, 1936. And when the threat of action is made, we do not believe plaintiffs must go further and show that infringement notices have already been sent to the trade; the position of peril and insecurity for plaintiffs already exists. Borchard, Judicial Relief for Peril and Insecurity, 45 Harv.L.Rev. 793, 1932; Borchard, Declaratory Judgments, 1934, 5, 307.; 45 Yale L.J. at 163; Caterpillar Tractor Co. v. International Harvester Co., 9 Cir., 106 F.2d 769, at page 773; Interstate Cotton Oil Refining Co. v. Refining, Inc., D.C.Nev., 22 F.Supp. 678.
Here the initial threat was even emphasized when defendant continued to maintain her position through successive counsel. Defendant asserts that all these movements were only exploratory, that the changes in counsel came because the first ones were not patent experts and the second were in the enviable position of being too busy to make the inspection tour in person, and that the lack of further affirmative action on her part showed that the controversy was not being pressed. But there certainly was nothing in the situation, so far as the plaintiffs knew or were informed, to make unreasonable a conclusion on their part that she was lying in ambush to use her claim of patent infringement when it would be most damaging. In truth, she does not even disclaim this possible maneuver in her answer herein, for she simply states, rather disingenuously, that, after receiving the report of her attorney, she “determined temporarily to do nothing further in the matter until she could consult again with” her lawyers (the ones who were previously too busy to act) “and secure their opinion.” And she adds that she “does not know” whether or not the plaintiffs’ brassieres are an infringement of her patent and that she “has relied wholly in this matter” upon these attorneys. Since her answer was filed, these attorneys have given way to yet new counsel. We think the time has come when this lady must either repudiate her original claims or consent to an adjudication of them.
Reversed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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.
ARMAND’S SUBWAY, INC., Appellant-Cross-Appellee, v. DOCTOR’S ASSOCIATES, INC. and Mr. and Mrs. Robert J. Galliano, Appellees-Cross-Appellants.
Nos. 78-1616, 78-1617.
United States Court of Appeals, Fourth Circuit.
Argued June 4, 1979.
Decided Aug. 30, 1979.
James L. Kurtz, Washington, D. C. (Alvin L. Newmyer and Howard A. Libby, Washington, D. C., on brief), for appellant and appellee Armand’s Subway, Inc.
Frank J. Thompson, Stamford, Conn. (Donald L. Dennison, Dennison, Dennison, Messerole & Pollach, Arlington, Va., on brief), for appellees and appellants Doctor’s Associates, Inc. and the Gallianos.
Before HALL and PHILLIPS, Circuit Judges, and DUMBAULD, Senior District Judge.
Edward Dumbauld, Senior United States District Judge for the Western District of Pennsylvania, sitting by designation.
DUMBAULD, Senior District Judge.
This case involves the impact of the Lanham Trademark Act of July 5, 1946, 60 Stat. 427, 15 U.S.C. 1051 et seq., upon the geographical areas within which the parties are entitled to use the names “Subway” and “Armand’s Subway” in connection with their respective sandwich shops or restaurants.
Before that legislation trademark protection was part of the law of unfair competition, and the trade, not the mark as such, was protected. Hence the right to protection was limited to areas where it had been used and the claimant of the mark had carried on business. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412-20, 36 S.Ct. 357, 60 L.Ed. 713 (1916).
After the Lanham Act, nationwide protection was extended to registered marks, regardless of the area in which the registrant actually used the mark, because under 15 U.S.C. 1072 registration constituted constructive notice to competing users. Dawn Donut Co. v. Hart's Food Stores, 267 F.2d 358, 362 (C.A.2, 1959). However, as held in that case, the protection is only potential in areas where the registrant in fact does not do business. A competing user could use the mark there until the registrant extended its business to the area. Thereupon the registrant would be entitled to exclusive use of the mark and to injunctive relief against its continued use by prior users in that area. Ibid., 360, 365.
After a mark has become incontestable after five years’ continuous use after registration (15 U.S.C. 1065), registration becomes conclusive evidence of the registrant’s exclusive right to use the mark except where one of seven specified “defenses or defects is established,” including, inter alia, “That the mark . . . was adopted without knowledge of the registrant’s prior use and has been continuously used . from a date prior to registration . Provided, however, That this defense or defect shall apply only for the area in which such continuous prior use is proved.”
Registration does not become incontestable with respect to a party whose prior use within a particular area dates from a time prior to publication of registrant’s mark pursuant to the Lanham Act. In such a case the prior user has exclusive use in the area where it has done business before the publication by registrant. 15 U.S.C. 1065; Wrist-Rocket Mfg. Co. v. Saunders Archery Co., 578 F.2d 727, 731 (C.A.8, 1978); Holiday Inns, Inc. v. Holiday Inn, 364 F.Supp. 775, 785 (D.S.C.1973), aff’d 498 F.2d 1397 (C.A.4, 1974).
We proceed to application of these rules to the facts in the case at bar, as found by the District Court in a non-jury trial. The evidence adduced was conflicting and far from uniformly clear and credible, but for present purposes we may consider the following facts to have been established.
Plaintiff first used the mark “Subway” in August, 1968, in connection with its first restaurant in Washington, D. C. Since April 8, 1969, it has used the mark “Armand’s Subway,” not “Subway” simpliciter. Plaintiff holds an incontestable registration, issued September 29, 1970, for the mark “Armand’s Subway.”
Defendant began operating in Bridgeport, Connecticut, in 1965 under the name “Pete’s Submarines.” Soon it adopted the name “Subway,” systematically changing all its signs accordingly beginning in August, 1967. Defendant’s business is limited to “submarine sandwiches;” plaintiff also serves hamburgers and other items. Defendant’s advertising and decor emphasizes the theme of subway transportation, naming sandwiches IRT, BMT, and for other well-known subway systems.
Defendant filed an application for registration of “Subway” on May 13, 1974. On December 11, 1974, the Patent Office rejected the application because of conflict with plaintiff’s registration. This was the occasion of defendant’s first knowledge of plaintiff’s use of the mark. Defendant amended its application so as to provide for concurrent use. [See 15 U.S.C. 1052(d)]. The proceeding before the Patent Office is in abeyance pending decision of the instant litigation. Defendant declared its willingness to cease use of the mark in the Washington area. After knowledge of plaintiff’s registration, defendant expanded out of Connecticut, and by means of franchising, operates approximately 125 stores, in many States. Plaintiff has not expanded outside of the Washington area. In 1976 and 1977 (after knowledge of plaintiff’s registration), defendant established several outlets in the Washington area.
In view of the foregoing facts and legal rules, it would seem that defendant is entitled to exclusive use of the mark “Subway” in the Connecticut area. Similarly plaintiff is entitled to exclusive use of the mark “Armand’s Subway” in the Washington area. Plaintiff by virtue of prior registration is also entitled to nationwide use of that mark, unless such use in Connecticut would generate “confusion” with defendant’s rights based upon prior use of its mark there; but in no case would plaintiff be entitled to injunctive relief except in the area actually penetrated by plaintiff. Defendant’s expansion would be vulnerable if plaintiff should expand (assuming that infringement by reason of “confusion” were found to arise in the contested area).
The District Court, after correctly pointing out that the statutory test for trademark infringement under 15 U.S.C. 1114(1) is whether defendant’s use of a mark is “likely to cause confusion, or to cause mistake, or to deceive,” went on to inquire whether there would be “likelihood of confusion” arising from defendant’s use of the mark “Subway” in competition with plaintiff’s mark “Armand’s Subway.”
In reaching a negative answer to this question the District Court relied upon the assumption that “in sandwich language ‘Subway’ really refers to what some call a ‘Submarine Sandwich’ . . . ‘Armand’s’ is the name customers refer to. One would not go to ‘Armand’s’ and ask for an ‘Armand’s Subway Hamburger’ . but would ask for a hamburger, just as having gone to Armand’s because one liked his subway sandwiches, would ask for a subway . . . ” The District Court thus concluded also that plaintiff had “abandoned any right to the name ‘SUBWAY’ alone — if it could have established an exclusive right to such a name — and it cannot now complain of the use by another. In fact, one who had used it prior to plaintiff.”
The District Court accordingly held:
1. That the «mark “SUBWAY” is not subject to a registration under the evidence in this case.
2. That the use of the mark “SUBWAY” does not infringe upon the registered mark “ARMAND’S SUBWAY,” and would not confuse.
3. That Doctor’s was the first and pri- or use of the mark “SUBWAY.”
4. That even if it be conceded that there was any improper use of the registered mark “ARMAND’S SUBWAY” by using the mark “SUBWAY” in the District and Arlington, Doctor’s, having been the first user of the mark “SUBWAY,” plaintiff would only be entitled to injunc-tive relief upon a showing that there is confusion by the use of the mark, or that it interfered with plaintiff’s use and rights, and if and when such is shown, an injunction would only be proper in this case to enjoin use of such mark in Washington and Arlington.
5. The complaint is therefore DISMISSED.
On appeal plaintiff contends that injunc-tive relief should have been granted, upon the ground that defendant’s mark is likely to cause confusion, and hence infringement of plaintiff’s mark.
Both parties assign as error (and correctly, in our opinion) the trial judge’s conclusion that “Subway” refers merely to a “submarine sandwich.” From this it would follow that plaintiff’s mark is really merely the name “Armand’s.” It would also follow that defendant can not use “Subway” as a trade mark, because of its generic nature. This prejudges the outcome of defendant’s pending registration proceeding before the Patent Office (which is held in abeyance pending decision of the case at bar). These views of the trial judge prevented appropriate consideration and evaluation of the issue whether there was conflict or confusion between the respective marks “Armand’s Subway” and “Subway.”
It seems plain, however, that “Subway” could be (and, defendant urges, is) used in a fanciful manner suitable for trademark protection, based upon the literal meaning of the word as a transportation agency, a theme defendant emphasizes in advertising and decor. This can be demonstrated by assuming that instead of “Subway” a name were taken from another form of transportation, such as “Riverboat” or “Stagecoach.” Might there not be possible confusion between the marks “Riverboat” and “Armand’s Riverboat?” It should be noted that defendant objected to the use of the name “Saratoga Subway” by a competitor in Connecticut.
Accordingly the case must be remanded for appropriate determination of this issue, which is vital to the question of infringement. Perhaps it would be advisable for the District Court to stay its hand entirely with respect to the instant litigation until the Patent Office has determined whether defendant is entitled to registration of its mark “Subway” and if so under what conditions. The decision of the Patent Office, as well as stipulations and admissions by the parties in connection with the proceeding there, might simplify the remaining problems and perhaps entirely eliminate some matters (hopefully the whole litigation) from the necessity of subsequent judicial determination.
Remanded for appropriate proceedings in accordance with this opinion.
. In No. 78-1616 plaintiff, Armand’s Subway, Inc., is appellant; in No. 78-1617 defendants, Doctor’s Associates, Inc. and Mr. & Mrs. Robert J. Galliano, have appealed. For simplicity (the Gallianos being franchisees of Doctor’s in the Washington area) we shall speak of “defendant” in the singular.
. For an earlier opinion in the same case see 516 F.2d 846 (C.A.8. 1975).
. In delineating geographical areas for trademark use, whole States are the usual unit. Wrist-Rocket, supra, 578 F.2d at 732; Hanover Star Milling Co., supra, 240 U.S. at 416, 36 S.Ct. 357. This may be a historical survival of the origin of trademark protection as part of the law of unfair competition. Perhaps individual areas less than statewide might be appropriate under certain circumstances. The sandwich shops in the instant case draw walk-in trade from a small surrounding area. The manufacture of brick is another local industry, where high transportation costs limit penetration of a wide market.
. Injunctive relief under 15 U.S.C. 1116 must conform to “the principles of equity.” Also, infringement requires that use of the mark “is likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. 1114(l)(a). Hence if the District Court, by application of appropriate criteria, finds that use of “Subway” by defendant, in the Washington area does not cause “confusion,” plaintiff would be entitled to no relief whatever in that area. Future in-junctive relief in other areas to which plaintiff might expand would also be precluded by absence of “confusion” between the marks.
. Subsidiary contentions were advanced, which in view of our disposition of the case, need not be discussed: (1) that injunctive relief should have been granted to enforce defendant’s agreement to abandon use of its mark in the Washington area; (2) that it was error to hold that, if there were any infringement, relief should be confined to the Washington area; (3) that defendant’s conduct was unfair competition and violated 15 U.S.C. 1125(a) prohibiting “false designation of origin;” and (4) that plaintiff should have been granted monetary damages and attorneys’ fees.
. This is the sole issue raised by defendant’s appeal.
. With respect to the sandwich business.
. There actually is a Riverboat Room at the William Penn hotel in Pittsburgh. The name “Chuck Wagon” is also in current use.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. ST. REGIS PAPER COMPANY, Defendant-Appellant.
No. 62, Docket 29746.
United States Court of Appeals Second Circuit.
Argued Sept. 20, 1965.
Decided Jan. 19, 1966.
J. Joseph Smith, Circuit Judge, dissented.
Horace R. Lamb, New York City (Le-Boeuf, Lamb & Leiby, H. Richard Wach-tel, James H. Durand, New York City, on the brief), for defendant-appellant.
James F. Buckley, Atty., U. S. Dept, of Justice (Donald F. Turner, Asst. U. S. Atty. Gen., Lionel Kestenbaum, Atty., U. S. Dept, of Justice, Robert L. Wright, Acting Asst. Atty. Gen., Robert B. Hum-mel, Atty., Dept, of Justice, Washington, D. C., on the brief), for plaintiff-appellee.
Dunnington, Bartholow & Miller, New York City, Briggs & Morgan, St. Paul, Minn., on the brief of Bemis Bros. Bag Co. as amicus curiae, in support of defendant-appellant.
Before MOORE, SMITH and ANDERSON, Circuit Judges.
. Moreover, while § 5(1) was briefly mentioned in the report of the House committee which added § 16 to the FTCA and in the report of the conference committee on the amendment as finally passed, neither report mentioned § 16. See H.R.Rep. No. 1613, 75 Cong., 1st Sess. 4 (1937) ; H.R.Rep. No. 1774, 75th Cong., 3d Sess. 9-11 (1938). Also, the records of the FTC, which strongly supported the amendment, are silent with respect to- the intended relationship between § 5(1) and § 16. Finally, the legislative history of the finality and civil penalty provisions added to the Clayton Act in 1959,15 Ü.S.C. § 21(g), (1), which were patterned after the FTCA, contains little discussion of the civil penalty method of enforcing Commission orders and contains no explanation of the failure to include in the Clayton Act a certification provision similar to § 16 of the FTCA. See H.R.Rep. No. 580, 86th Cong., 1st Sess. (1959); 2 U.S.Code Cong. & Admin. News, S6th Cong., 1st Sess. pp. 1808-1816 (1959). It was assumed by some, however, that a certification procedure would normally be used. Hearings on H.R. No. 432 Before the House Committee on the Judiciary, 86th Cong., 1st Sess. 1, 17 (1959).
MOORE Circuit Judge.
In 1959 the Federal Trade Commission (FTC) issued a consent cease and desist order prohibiting appellant, St. Regis Paper Co. and 16 other manufacturers of multiwall paper shipping sacks, from engaging in certain concerted pricing practices. During the years 1962, 1963 and 1964, the Antitrust Division of the United States Justice Department convened two grand juries in the United States District Court for the Eastern District of Missouri to investigate possible violations of the Sherman Act, 15 U.S.C. §§ 1, 2, by appellant and others, arising out of their pricing practices. No indictment, however, was returned against any party. Thereafter, the Attorney General, at the request of the FTC and in reliance on information obtained during the three-year grand jury investigation commenced the present suit in the United States District Court for the Southern District of New York to recover civil penalties under Section 5(1) of the Federal Trade Commission Act (FTCA), 15 U.S.C. 45(l), in the amount of $230,000 for the alleged violation by appellant of the 1959 FTC consent cease and desist order.
Subsequently, appellant moved to dismiss the complaint asserting that the district court lacked subject matter jurisdiction since the FTC had not, in accordance with its usual practice, certified the case to the Attorney General pursuant to Section 16 of the FTCA, 15 U.S.C. § 56. Appellant contended that the requirements of Section 16 were jurisdictional and that the Attorney General had no power to proceed under Section 5(1) absent an FTC certification. The district court denied the motion, finding that the Section 16 certification procedure was not “so essential a part of the statutory scheme” that congressional intent would be frustrated if the Attorney General proceeded under Section 5(1) without it. The court concluded that Section 16 merely defines an administrative function of the FTC, “a method to be used by * * * [it] in the normal course of discharging its duty,” which does not affect the power of the Attorney General to institute civil penalty suits under Section 5(1). United States v. St. Regis Paper Co., 240 F.Supp. 36, 38 (S.D.N.Y.1965).
Upon appellant’s motion, the district court amended its decision to conform to the requirements of the Interlocutory Appeals Act, 28 U.S.C. § 1292(b). Thereupon, appellant applied to this court for leave to appeal and the application was granted April 7, 1965.
This appeal very possibly raises for the first time the question of whether Section 16 of the FTCA, which provides that whenever the FTC has reason to believe that anyone subject to a Commission cease and desist order is liable to a penalty under Section 5(1) of the FTCA, “it shall certify the facts to the Attorney General, whose duty it shall be to cause appropriate proceedings to be brought” to enforce Section 5(1), constitutes an absolute limitation on the Attorney General’s power to commence suits for civil penalties under Section 5(1). Appellant contends that Section 16- and Section 5(1) of the FTCA must be read and applied together, and points out that this is the first civil penalty suit in which the Attorney General has proceeded under Section 5(1) on his own motion. The Government, while conceding that civil penalty suits are customarily initiated by FTC certification, regards that procedure as merely a convenient means for informing the Attorney General of possible violations of the Commission’s orders. It contends that Section 5(1) fully empowers the Attorney General to initiate civil penalty suits on the basis of independently obtained information, regardless of the Commission’s view concerning the alleged violation of its order, and asserts that the courts have implicitly recognized the jurisdictional completeness of Section 5(1). The question of the interrelationship between Section 5(0 and Section 16, however, was not raised in any case cited by the Government, see United States v. American Greetings Corp., 168 F.Supp. 45 (N.D. Ohio), aff’d 272 F.2d 945 (6th Cir. 1958); United States v. Piuma, 40 F. Supp. 119 (S.D.Cal.), aff’d 126 F.2d 601 (9th Cir. 1941); United States v. Hindman, 179 F.Supp. 926 (D.N.J.1960), nor has it been raised in any case litigated to date under the FTCA.
It is generally recognized that whether procedural requirements such as those set forth in Section 16 of the FTCA are mandatory cannot be determined by merely examining the form of the statute involved, i. e., by a mere literal reading of the law, but “can only be determined by ascertaining the legislative intent. If a requirement is so essential a part of the plan that the legislative intent would be frustrated by a noncompliance, then it is mandatory.” Vaughn v. John C. Winston Co., 83 F.2d 370, 372 (10th Cir. 1936); Van Keppel v. United States, 206 F.Supp. 42 (D.Kan.1962). See generally 3 Sutherland, Statutory Construction §§ 5801-5826 (3d ed. 1943). Unfortunately, the legislative history of Sections 16 and 5(1) is sparse and unilluminating and, thus, sheds little light on their intended relationship. Both provisions were enacted as part of the 1938 Wheeler-Lea Amendment to the FTCA which was aimed primarily at broadening the FTC’s jurisdiction by granting it power to regulate “unfair or deceptive acts or practices in commerce” in addition to “unfair methods of competition in commerce,” and at eliminating the cumbersome procedures for the enforcement of FTC cease and desist orders by providing that they would become final unless an appeal were taken within the statutory time period provided. 15 U.S.C. §§ 45(a), (g). Both Section 5(1) and Section 16 were introduced into Congress and included in the 1938 amendment with little explanation or elaboration in hearings or debates. **See Austera, Five Thousand Dollars a Day, ABA Section of the Antitrust Law 285, 289 (1962). The Government urges, however, that a remark made by Congressman Lea while discussing the relation between Section 16 and Section 14 of the FTCA, 15 U.S.C. § 54, which provides for fines and imprisonment for false advertising in violation of 15 U.S.C. § 52(a), to the effect that the Attorney General could prosecute violations of that section on his own motion, without awaiting FTC certification, demonstrates that certification is equally dispensable with respect to Section 5(1) civil penalty suits. We do not feel that this expression of opinion has any significance for the problem presented here. The Government’s position fails to recognize the fundamental difference in kind between the rule of conduct enforced under Section 5(1) — a cease and desist order issued by the FTC in an adjudicatory proceeding or with the consent of the party proceeded against, and the rule of conduct enforced under Section 14(a) a federal criminal statute. While it is reasonable to presume that when Congress enacts a criminal statute it intends to authorize the Attorney General to enforce the statute on his own motion, i. e., public policy favors the unencumbered enforcement of criminal laws, no such presumption of public policy operates here where the authority of the Attorney General to punish violations of FTC cease and desist orders is at issue.
Since there is no direct evidence of congressional intent with respect to the relation between Section 5(1) and 16, it must be ascertained by examining the purposes and objectives of the FTCA as a whole in terms of objective criteria, i. e., the relevant inquiry is “how, one supposes, it [the legislative scheme] * * * would appear to a ‘reasonable’ interpreter.” Bishin, The Law Finders: an Essay in Statutory Interpretation, 38 So.Cal.L.Rev. 1, 3 (1965). We regard the view that Section 5(1) fully empowers the Attorney General to initiate civil penalty suits as inconsistent with the grant of far-reaching and exclusive regulatory power to the FTC in Section 5 of the FTCA, 15 U.S.C. § 45(1). It is highly unlikely that Congress intended to grant the Attorney General plenary power to punish violations of Commission orders in view of the fact that when it enacted Sections 5(a) and (b) -of the FTCA, 15 U.S.C. § 45(a), (b), it granted the FTC exclusive authority to enforce the proscription against unfair methods of competition and deceptive acts or practices in commerce and, also, granted the FTC exclusive authority to issue orders to cease and desist from such practices. The duty and responsibility for determining what business practices fall within the purview of Section 5 and for determining whether cease and desist orders issued to eliminate the anti-competitive effects of those practices have been complied with or violated was delegated solely to the FTC. While one objective of the 1938 Wheeler-Lea amendment, including Section 5(1), was to “streamline” the procedure for enforcing the Commission’s cease and desist orders, it is nowhere indicated that Congress by providing a civil penalty enforcement procedure intended to transfer the responsibility for interpreting and investigating violations of such orders to the Attorney General.
It must be kept in mind that the “Federal Trade Commission Act is not a revenue-raising or penal measure,” Quaker Oats Co. Trade Reg. Rep. (FTC Complaints, Orders, Stipulations, 1961-1963) [[15858 at 20651 (April 25, 1962) (Elman, Comm., dissenting), but is one “in which Congress, to make its policy [to preserve and promote competition] effective, has relied upon the initiative of administrative officials and the flexibility of the administrative process.” United States v. Morton Salt Co., 338 U.S. 632, 640, 70 S.Ct. 357, 363, 94 L.Ed. 401 (1950). The fact that the FTC has the exclusive power and expertise to formulate policy in its efforts to maintain competition and regulate unfair business practices commands the conclusion that Congress intended it to have the exclusive power to implement that policy by initiating civil penalty suits under Section 5(1). It is sufficient that the Attorney General has a kind of veto power in that he can refuse to prosecute cases certified to him when, in reliance on his own legal expertise, he considers the evidence insufficient to warrant prosecution.
In support of its contention that Section 16 does not affect the power of the Attorney General to commence suits for civil penalties under Section 5(1) the Government relies heavily on decisions which have construed allegedly analogous statutory requirements as non-jurisdictional. In United States v. Morgan, 222 U.S. 274, 32 S.Ct. 81, 56 L.Ed. 198 (1911), the United States sought to prosecute a drug dealer for violation of Section 44 of the Pure Food & Drug Act of June 30, 1906, 34 Stat. 768 (repealed —its modern counterpart is the Federal Food, Drug & Cosmetic Act, 21 U.S.C. §§ 301-392) which provided that any dealer who shipped adulterated or mis-branded goods in interstate commerce was guilty of a misdemeanor. It was contended that the suit was improper since a provision in the act requiring the Department of Agriculture to provide potential defendants with a hearing prior to certifying facts to the Attorney General for prosecution of alleged violations of the Act had not been complied with. Since another sectioil of the Act expressly empowered the Attorney General to prosecute violations of the Act upon the complaint of a state health officer, the Court concluded that Congress did not intend the hearing procedure to be mandatory. See also United States v. Dot-terweich, 320 U.S. 277, 278-279, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (relied on Morgan for similar construction of Section 305 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 335). In United States v. Gris, 247 F.2d 860 (2d Cir. 1957), this court held that the Congressional authorization of the Federal Communications Commission to request the Attorney General to prosecute violations of the Federal Communications Act, 47 U.S.C. §§ 501, 605, did not affect his power to prosecute violations on his own motion. In both Morgan and Gris, the court refused to impose limitations on the general power of the Attorney General to enforce federal criminal statutes in the absence of a more explicit direction from Congress. These cases clearly cannot be relied on to guide our construction of Section 16 of the FTCA, for we are not concerned either with the scope of the Attorney General’s authority to enforce federal criminal statutes or with the effect of a statutory provision authorizing an administrative agency to initiate prosecutions of such statutes on his power to prosecute. (Admittedly, the Attorney General has the primary responsibility for enforcing federal criminal laws.) Rather, we are concerned with the extent of his authority to prosecute violations of FTC cease and desist orders which the Commission has the primary responsibility for issuing and interpreting. Moreover, in contrast to the legislative scheme set forth in the Pure Food & Drug Act of June 30, 1906, dealt with by the Court in United States v. Morgan, supra, Section 16 of the FTCA constitutes the exclusive penalty enforcement provision provided by Congress for Section 5(1). In Section 16, which specifically refers to Section 5(1), Congress prescribed the circumstances under which civil penalty actions for violations of Commission orders shall be commenced and the officer of the United States who shall prosecute them and in Section 5(1) it prescribed the amount of the penalty and the appropriate manner for filing a suit.
Our conclusion that Sections 16 and 5(1) were intended to be mutually inter-dependent disposes of the Government’s attempt to invoke the plenary authority of the Attorney General to prosecute all civil actions in which the United States is interested, 28 U.S.C. § 507(a) (2), (b) as a basis for permitting him to initiate suits under Section 5(1). The general duty of United States Attorneys to conduct litigation on behalf of the United States can be invoked only in the absence of statutory directions delineating the circumstances under which civil actions can be instituted, i. e., “ ‘except as otherwise provided by law’,” 28 U. S.C. § 507(a), such as those set forth in Section 16 of the FTCA. E. g., United States v. State of California, 332 U.S. 19, 27-29, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947); see United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964 (1956).
In determining the effect— mandatory or directory — to be given Section 16, it is not only appropriate for this court to examine the nature and objectives of the FTCA as a whole but “a significant consideration * * * is a comparison between the results to which each such construction would lead.” Holbrook v. United States, 284 F.2d 747, 752 (9th Cir. 1960); 3 Sutherland, supra, |[ 5806. Concurrent surveillance and enforcement of FTC cease and desist orders by the Commission and the Attorney General would necessarily involve the possibility of conflicting interpretations of such orders. Thus, such a system could result in stultifying the Commission’s implementation of its policies, for the Attorney General in proceeding under Section 5(1) might well pass adversely on practices considered perfectly proper by the Commission and which, as a result of the FTC’s compliance procedures, may have been undertaken with the Commission’s consent. Moreover, the situation might arise where a penalty suit threatens injury to competition, i. e., a small company or a new entrant into a highly competitive or highly concentrated market might be prevented from effectively competing in that market by the payment of a large penalty and litigation expenses. If the Commission were not able to exercise control over the situation and effect compliance with its order through some means other than a civil penalty suit, it could not effectively perform its regulatory function. In addition, to require the Commission to relinquish control over a carefully formulated order at the instant it is issued would defeat the purpose of granting it wide discretion in determining the type of order best suited to combat the competitive ills it uncovers, FTC v. National Lead Co., 352 U.S. 419, 428, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957); cf. FTC v. Mandel Bros., 359 U.S. 385, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959); see generally Comment, 29 U.Chi.Law Rev. 706 (1962), to wit, “to exercise a special competence in formulating remedies to deal with problems in the general sphere of competitive practices,” FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081 (1952). It is readily apparent that broad discretion and exclusive authority to select ■ the means for enforcing the Commission’s orders is a necessary corollary of its wide discretion and exclusive power to formulate the order being enforced. Thus, appellant’s position, namely, that the certification procedure provided for in Section 16 should be considered the exclusive means for initiating civil penalty suits authorized in section 5(1) is entirely consistent with the responsibilities of the Commission and the regulatory function it is expected to perform.
To relinquish jurisdiction to the Attorney General after the issuance of a cease and desist order would he most unrealistic, for the Commission alone knows the scope of its orders and has been “provided with staffs to institute proceedings and to follow up decrees and police their obedience * * * [which] are expected to * * * take the lead in following through to effective results.” United States v. Morton Salt Co., 338 U.S. 632, 640, 70 S.Ct. 357, 363, 94 L.Ed. 401 (1950). In recognition of the fact that “the public interest expressed in the Act is not secured simply by collecting fines and penalties,” Quaker Oats Co. Trade Reg. Rep. (FTC Complaints, Orders, Stipulations 1961-1963) ¶ 15858 at 20651 (Elman, Comm., dissenting), and to implement “the basic objective of the Commission, not to exact penalties, but to secure compliance,” Austern, supra 323, the Commission has developed practices and procedural rules designed to effect voluntary compliance with its orders. Mr. Morehouse, FTC Assistant General Counsel in charge of compliance, described the practice of the Commission prior to certifying a case to the Attorney General in the following manner:
We never yet have requested a certification without notifying the respondent that he is considered to be in violation and affording him an opportunity, if he wishes, to come in and discuss the matter in the Compliance Division * * * In other words, we don’t immediately jump down his throat. We * * * see if we can get together and get him to amend his practices so that he can conform to what we think is the requirement of the order * * * [Moreover,] respondent is afforded an opportunity to submit, along with what I send up to the Commission for Certification, a full statement * * * of his position to the Commission.
Hearing on H.R. 432 Before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess. 20-23 (1959). See also FTC Annual Report 1961 55-58.
The Commission’s compliance report procedure supplements this practice by providing those subject to the Commission’s orders guidance with respect to future conduct, i. e., advance approval or disapproval of particular business practices, and constitutes “a dedicated effort to help businessmen, both large and small, to bring their practices into compliance with the law, without resort to litigation.” Remarks of FTC Chairman Paul Rand Dixon before the Senate Appropriations Committee, reported in 5 Trade Reg. Rep. fl 50119 at 55125 (1965). Each respondent named in an order is required to file with the FTC within sixty days after its service a written report setting forth the manner in which compliance will be effected. The FTC reviews the reports and advises “each respondent whether the actions set forth therein constitute compliance with the Commission’s order.” FTC Rules of Procedure § 3.26(a), 16 C.F.R. § 3.26(a) (Supp. 1965). In addition, those subject to FTC orders can request advice from the Commission as to whether certain conduct will conform to the terms of an order and the Commission “[o]n the basis of facts submitted, as well as other information available to [it] * * * will inform the respondent whether or not the proposed course of action, if pursued, would constitute compliance with its order." FTC Rules of Procedure § 3.26(b), 16 C.F.R. § 3.26(b) (Supp.1965).
On the other hand, the Attorney General has no staff of experts continually checking on compliance with FTC orders. Since he has no authority to enforce the FTCA and has no influence or role to play in the formulation of cease and desist orders issued thereunder, his office is simply not equipped or designed to intelligently police the Commission’s orders or to develop and maintain a broad, consistent policy in this area. As the Supreme Court has noted “the Commission alone is empowered to develop-that enforcement policy best calculated to achieve the ends contemplated by Congress * * Moog Indus., Inc. v. FTC, 355 U.S. 411, 413, 78 S.Ct. 377, 379, 2 L.Ed.2d 370 (1958). Were the Attorney General permitted to concurrently review with the FTC the validity of the business practices of those subject to the Commission’s orders, the value of the Commission’s practices and rules designed to promote voluntary compliance and avoid the rigors of litigation would be greatly impaired. No respondent couiu ever reach an understanding with the Commission without also seeking the approval of the Attorney General. In addition, a system of dual surveillance and enforcement would unjustly hamper those subject to orders by creating uncertainty and doubt as to what course of action to follow. Congress could not have intended such a result because reason and experience dictate that businessmen operating under the terms of a Commission order “should be relieved insofar as possible of uncertainties with regard ‘to their enterprises and investments and a clear path indicated which they can travel without anxiety.’ ” Note, 38 Ind.L.J. 377, 379 (1963). Under present practice, once the Commission accepts a proposed method of compliance, it is highly unlikely that it will, without notice or opportunity to discontinue the previously approved conduct, initiate a civil penalty suit for violation of the order. See FTC Rules of Practice § 3.26(c), 16 C.F.R. § 3.26(c) (Supp. 1965); cf. Vanity Fair Paper Mills, Inc. v. FTC, 311 F.2d 480, 488 (2d Cir. 1962). Adoption of the Government’s position would deal a serious blow to the reasonable expectations of those who consented to cease and desist orders with the FTC upon the understanding that the compliance procedures and certification practice followed by the FTC would remain in effect for the duration of the order. Thus, it is reasonable to conclude, along with appellant, that Section 16 was designed to protect persons and businesses subject to the Commission’s orders from unwarranted penalty suits and to provide them, in conjunction with the judiciary, with the specialized experienced guidance of the Commission. The fact that a respondent can adequately defend against ill-founded civil penalty actions by the timely utilization of the Federal Rules of Civil Procedure does not justify the Attorney General’s invocation of the judicial process in the first instance. Certainly pre-certification screening by the FTC, required by Section 16, eliminates to a large extent the possibility that unnecessary time and money will be expended in litigation by those subject to Commission’s orders and the public.
Additionally, a system of dual surveillance and enforcement of FTC orders would in all probability jeopardize the Commission’s vitally important consent order procedure, FTC Rules of Practice § 2.1-2.4, 16 C.F.R. § 2.1-2.4 (Supp. 1965), since under such a system cease and desist orders would not provide reliable guidance. Businessmen could hardly be expected to consent to orders to cease and desist knowing that the Attorney General could disregard the Commission’s interpretation of the negotiated order and invoke Section 5(1) on his own motion.
Thus, it is apparent that the circumstances here are in no way similar to those which confronted the court in United States v. Hinman Farms Prods. Inc., 156 F.Supp. 607 (N.D.N.Y.1957) relied on by the Government. There, a suit to collect moneys allegedly owing to the Market Administrator for failure to make payments required by a regulation issued by the United States Department of Agriculture was opposed on the ground that the defendant had not been granted a prior administrative hearing as assertedly required by Section 8a(7) of the Agricultural Marketing Agreement Act, 7 U.S.C. § 608a. The court found that the authorized hearing procedure was merely intended to provide the Agriculture Department with an alternative means for investigating possible violations of its regulations and that no hearing was necessary where a violation had been discovered through other means. The court reasoned that the practicalities of the situation, i. e., under the defendant’s view of Section 8a(7) each refusal by a milk handler to make payments would require a hearing, militated against treating the hearing requirement as a condition precedent to a suit for payment. Id. at 610. Contrariwise, the practicalities of effectively and fairly enforcing the Commission's cease and desist orders, discussed above, militate in favor of treating the requirements of Section 16 as a jurisdictional prerequisite to a Section 5(1) civil penalty suit.
Finally, the fact that the certification procedure has in the past been rigidly adhered to by the Commission and the Attorney General attests to the desirability of restricting the interpretation and enforcement of the Commission’s orders to the Commission. This suit marks the first time in the 27-year history of the 1938 amendments in which the Attorney General has proceeded under Section 5(J) without FTC certification pursuant to Section 16. While agency practice does not constitute conclusive proof of legislative intent, consistent adherence to the certification procedure indicates, at the very least, that the Commission and the Attorney General consider it an extremely effective and practical means for enforcing the Commission orders. This is evidenced by the fact that “in forwarding civil penalty cases to the Attorney General for filing in the U. S. District Court, the * * * [Compliance] Division prepares all necessary pleadings and a trial memorandum, and attorneys of the Division usually participate in and often conduct the trials.” 1962 FTC Ann.Rep. 61-62; see 1961 FTC Ann.Rep. 55, 58.
The Government notes, however, that the Commission in a letter to the Justice Department during the pendency of this appeal, stated that it does not view certification as jurisdictional, see Letter from FTC to James Buckley, Attorney, Department of Justice, June 28, 1965, and urges that the FTC’s construction of the act which it administers is entitled to substantial weight. Under the circumstances, we do not agree. The significance of this recent expression of opinion is not only undermined by years of agency practice to the contrary but it is important to note that the practical reason for disregarding Section 16 here and probably for the above-mentioned view of the FTC, is a recent Third Circuit decision which held that the FTC, while conducting a compliance investigation, cannot obtain access to information produced at a grand jury investigation conducted by the Attorney General. In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962). Thus, it is unlikely that the FTC could have obtained access to the matters which occurred before the Missouri grand jury that investigated the pricing practices of appellant and it would have had to conduct a separate investigation to ascertain whether appellant had violated the 1959 order. But, as the Third Circuit noted, the quality of the FTC investigation would not have been impaired by its lack of free access to grand jury evidence since the FTC has plenary power to investigate compliance with its orders and to subpoena witnesses and documents. Id. at 444. In sum, we cannot sanction the abdication of the Commission’s duties and responsibilities under the FTCA, especially its duty to predicate certification on a reasonable belief that an order has been violated, for the sake of an administrative shortcut. There is no merit in the Government’s in terrorem argument that to require a Commission investigation of possible violations of its orders where the Attorney General, as here, is in possession of the relevant evidence would serve no useful purpose and would unduly burden the Government by duplicating investigative effort. The fact that duplication might occur in the sense that the same evidence would be examined by both Government bodies is irrelevant. The crucial point is that the Commission’s judgment concerning the legal consequences of the evidence investigated cannot be duplicated, and it is that judgment which Congress intended should form the sole basis for utilizing the civil penalty enforcement mechanism provided in Section 5(1).
To conclude, we hold that Congress intended Section 16 of the FTCA to be jurisdictional, not directory, and that its requirements must be satisfied by the FTC prior to the commencement of a civil penalty suit by the Attorney General under Section 5(J). This view of the interrelationship between Sections 5(J) and 16 is both fair and reasonable in view of the Commission’s extensive investigative powers; experience and pre-occupation with trade regulation; and close relation to its cease and desist orders, evidenced by its compliance report procedures and pre-cer-tification practice. Additionally, it yields the most effective mechanism- — • free from uncertainty and the threat of inter-governmental conflict — for effectuating the objectives and purposes of the FTCA.
The decision of the district court is reversed, and the case is remanded for disposition consistent with this opinion.
. During October 1962 the Antitrust Division of the United States Justice Department,' pursuant to regular liaison procedure, notified the FTC of the pending grand jury investigation. On July 30, 1963 the Chairman of the Commission at its request sent a copy of the 1959 order to the Attorney General and requested him to “initiate appropriate proceedings under Section 16 of the Federal Trade Commission Act * * * looking to the recovery of civil penalties should your examination of the results of the * * * investigation indicate a violation of the Commission’s order.”
. § 5(1) of the Act, 15 U.S.C. § 45(Z) provides in pertinent part that:
Any person, partnership, or corporation who violates an order of the Commission to cease and desist after it has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $5,000 for each violation, which shall accrue to the United States and may be recovered in a civil action brought by the United States.
Bight other civil penalty suits were simultaneously commenced in the United States District Court for the Southern District of New York against other manufacturers of multiwall paper shipping sacks that had consented to the 1959 cease and desist order. The aggregate amount of penalties claimed in all the actions, including this one, is $865,000.
. § 16 of the Act, 15 U.S.C. § 56 provides that:
Whenever the Federal Trade Commission has reason to believe that any person, partnership or corporation is liable to a penalty under section 54 of this title or under
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_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.
LEESONA CORPORATION, Appellant, v. COTWOOL MANUFACTURING CORPORATION, JUDSON MILLS DIVISION, Deering Milliken Research Corporation, and Whitin Machine Works, Appellees.
No. 8684.
United States Court of Appeals Fourth Circuit.
Argued Jan. 23, 1963.
Decided March 19, 1963.
See also 308 F.2d 895.
Robert F. Conrad, Washington, D. C. (Raymond P. DeMember, and Watson, Cole, Grindle & Watson, Washington, D. C., on brief), for appellant.
Frederic P. Houston, New York City (James D. Poag, and Price & Poag, Greenville, S. C., Melvin Liebowitz and Otterbourg, Steindler, Houston & Rosen, New York City, on brief), for Deering Milliken Research Corp., appellee.
Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge.
Arbitration provided for in a patent license covering machinery and processes has been temporarily stayed by the District Court from enforcement by appellant licensor who was seeking thereby to recover royalties of the licensee on products made with an assertedly infringing process and machine. The suspension is effective until the conclusion of a current suit instituted by the licensor against the alleged infringers. The licensor maintains here that neither the pendency of the suit, nor its outcome, may preclude licensor from a decision of the infringement and royalty issue by arbitration. It is both a contractual right based on the license, licensor asserts, and one secured also by the United States Arbitration Act, 9 U.S.C. §§ 1-14.
But we uphold the decree as a temporary injunction auxiliary to the defense of the licensor’s suit. The order was one within the discretion of the trial judge and we find no misuse of his responsibility.
Licensor is the Leesona Corporation, the owner of three patents (the patent) covering certain textile machinery and processes. Licensee is Schwarzenbach Huber Company. The license, dated June 17, 1955, permits licensee itself to make the machines, or have them made, as well as to manufacture the products under the patented process. The arbitration clause is in these words:
“Any dispute or controversy arising under, out of, or relating to this agreement shall be submitted to arbitration in accordance with the rules at the time prevailing of the American Arbitration Association, New York City, New York, U.S.A. The decision of the arbitrators shall be final and binding upon the parties hereto and shall be available to the parties hereto as the basis for judgment in any of the United States, at the instance of the party entitled to any award given by the said arbitrators.”
The primary, accused infringer is Deering Milliken Research Corporation. In 1957 it obtained the exclusive right to allow the use in the United States of a process and machine devised and constructed in France and competing with the process and machine of licensor Lee-sona. Thereafter Whitin Machine Works obtained the exclusive right to manufacture and distribute the French machine in the United States. Deering and Whit-in approved use of the French machine by Leesona’s licensee Huber who then put it into productive operation. Thus Huber was at the same time a licensee of Lee-sona and a holder of use-rights on the French machine from Deering and Whit-in.
Leesona charges first that the French process and machine are an infringement of its patent. It then claims, as initially noted, that Huber is using the French process and machine to turn out products protected by the Leesona patent. On this basis Leesona predicates its claim against Huber and invokes the arbitration clause of the license agreement.
Before the claim for arbitration was asserted, Leesona had commenced the present suit in the United States District Court for the Western District of South Carolina against Cotwool Manufacturing Corporation, an affiliate of Deering. It averred infringement by Cotwool in using, under permit of Deering and Whitin, one of the French machines at its South Carolina plant. Whitin then began an action in the Federal District Court in Massachusetts for a declaratory judgment to the effect that Leesona’s patent was invalid. Later, Deering and Whitin were made parties defendant to Leesona’s South Carolina action.
At the instance of Whitin and for the convenience of the parties the District Court severed Leesona’s complaint as against Whitin and transferred that part of the litigation to the Massachusetts Federal District Court. The South Carolina Court simultaneously suspended further proceedings in the action as against Deering and Cotwool. We heretofore approved the severance, transfer and suspension. Leesona Corp. v. Cotwool Manufacturing Corp., 308 F.2d 895 (4 Cir. 1962).
With the issue of infringement thus before the Massachusetts District Court, the District Judge in South Carolina believed the arbitration demanded by licen-sor Leesona of licensee Huber should be stayed until a determination of the litigation in Massachusetts, inasmuch as the arbitrator would have the same question before him.
Leesona argues that .the Court had no authority so to interfere with the contractual right and obligation established by the license as between Leesona and Huber. It urges that the intent of the parties to save expense and time by providing for arbitration in lieu of suit to resolve their differences has been thwarted. It acknowledges the accepted practice of enjoining related suits to enforce a patent until its validity has been adjudged in an action pending between the principal parties to determine that question. Telephonics Corp. v. Lindly & Co., 291 F.2d 495 (2 Cir.1961); International Nickel Co. v. Martin J. Barry, Inc., 204 F.2d 583, 585-586 (4 Cir.1953). Nevertheless this course is not appropriate here, Leesona continues, first because the parties have expressly contracted otherwise, and secondly, because the underlying reason for the procedure is absent, the court decision in Massachusetts having no binding effect in the arbitration between licensor and licensee. Leesona also emphasizes its objection to the decree by stressing that the stay was granted at the instance of Deering, not of licensee Huber who was not a party to the suit.
The answer to this argument, however, is that the decree does not abrogate the arbitral clause and in no degree passes upon its validity or efficacy. Access to arbitration is not barred but only intermitted. The injunction is no more than it has been denominated, a “stay”, altogether ancillary and temporary. That a contractual clause for arbitration is subject to suspension by injunction has been recognized. Amazon Cotton Mills Co. v. Duplan Corp., 245 N.C. 496, 96 S.E.2d 267, 270 (1957). The injunction is clearly incident to the defense of Leesona’s suit.
In these circumstances the issuance of an injunction — whether considered interlocutory or final — is something within the judgment of the chancellor. He balances the equities: the injury to applicant if the decree is not allowed, and the injury to the opponent if the restraint is granted. If he acts with concern for the rights of both parties upon a reasonable foundation, his determination will not be disturbed.
The District Court quite comprehensively considered all of the arguments of Leesona. However, it believed them outweighed by other consequences which might reasonably be expected to follow immediate pursuit of arbitration. On this subject, District Judge Wyehe said:
“In view of the identity of the infringement issue, it seems likely that continued prosecution of the arbitration proceeding may cause irreparable injury to Research [Deering], to Whitin and to Schwarzenbach [Huber], Before this action is concluded, customers and prospective customers of Research [Deering] and Whitin (who are also licensed under the [French machine] patents in suit), fearing arbitration proceedings and litigation, may turn from ‘FT [French] Machines’ to competitive machinery and a later decision by this Court favorable to Research [Deering] and Whitin could not repair the damage.
“The arbitration decision cannot be set aside for errors of law or fact. Consequently, a prior unfavorable decision by the arbitration panel would bind Whitin’s customer (and Research’s [Deering’s] licensee) Schwarzenbach [Huber] despite a later decision by this Court in favor of Research [Deering] and Whitin. The result would be an anomalous situation wherein Schwarzenbach [Huber] would have to pay royalties to Leesona for ‘FT [French] Machine’ production although this Court would have held that the licensed patents do not cover ‘FT [French] Machines’.”
True, delay will result, but it is noteworthy that the demand for arbitration, as the District Judge remarks, was not presented by Leesona until its litigation had been pending for more than a year. Again, a staunch, practical reason exists for the delay: the ruling of the Federal Court in Massachusetts upon infringement will be highly persuasive, if not dispositive, in the decision of the arbitrator.
The principles we have discussed are expounded with clarity in Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 591-592, 88 L.Ed. 754 (1944), by Mr. Justice Douglas:
“We are dealing here with the requirements of equity practice with a background of several hundred years of history. Only the other day we stated that ‘An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.’ Meredith v. Winter Haven, 320 U.S. 228, 235 [64 S.Ct. 7, 88 L.Ed. 9]. The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. * * * ”
See also Rackley v. Board of Trustees, 310 F.2d 141 (4 Cir.1962); Smith v. Staso Milling Co., 18 F.2d 736, 738 (2 Cir.1927); 7 Moore, Federal Practice 1686-87 (2 ed. 1955).
The District Judge has closely adhered to these fundamentals and his decree is not without warrant in equity and justice.
Nor do we feel that in holding the arbitration in abeyance the decree breaches the Arbitration Act, 9 U.S.C. §§ 1-14. The District Court, to repeat, has not declined to recognize or enforce the arbitration provision. It has merely postponed resort to that remedy until termination of litigation commenced by Leesona. If after judicial settlement of that controversy Leesona still desires arbitration, it remains available.
The Act does not oust the jurisdiction of the court. Equity may still prevent premature use of the clause. The statute itself envisages exertion by the court of equitable checks and balances; supervision of the arbitration by the court is expected. See Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319, 117 A.L.R. 299 (4 Cir.1938); American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6 Cir.1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L. Ed. 1074 (1949); Fremont Cake & Meal Co. v. Wilson & Co., 86 F.Supp. 968 (D. Neb.1949), aff’d, 183 F.2d 57 (8 Cir. 1950); cf. Shanferoke Coal & Supply Corp. v. Westchester Serv. Corp., 293 U.S. 449, 452-453, 55 S.Ct. 313, 79 L.Ed. 583 (1935).
We find no fault in the decree on review.
Affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp1_2-3-2
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination".
Margaret FISHER, Plaintiff, Appellant, v. Walter FLYNN, etc., et al., Defendants, Appellees.
No. 79-1005.
United States Court of Appeals, First Circuit.
Argued April 2, 1979.
Decided May 8, 1979.
Gerard J. Clark, Cambridge, Mass., for plaintiff, appellant.
Herbert D. Friedman, Boston, Mass., with whom Morris M. Goldings and Hawkes & Goldings, Boston, Mass., were on brief for defendants, appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Plaintiff, charging sex discrimination in the termination of her employment at Bridgewater State College as an assistant professor of psychology, appeals from the dismissal of her complaint based on Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2 and 42 U.S.C. § 1983 against the Chairman of the Board of Trustees of Massachusetts State Colleges, the Chancellor of the Division of State Colleges, Bridgewater State College, Bridgewater’s president, the head of its psychology department, and an associate professor of psychology. We agree with the district court that plaintiff failed to allege facts sufficient to state a claim upon which relief may be granted.
We quote the relevant paragraphs of the complaint with respect to the alleged reasons for plaintiff’s termination.
“15. The . . . termination was caused solely by discriminatory matters of those who affected the termination decision at the defendant College.
“16. Some part of the above-mentioned discriminatory nature was the refusal by the plaintiff to accede to the romantic advances of [the department chairman].
“17. All of the above are part of a larger pattern and practice of discrimination based on gender at the defendant College.
“18. All of the above is in contravention of the defendant’s [sic] rights as guaranteed by Title VII of the 1964, as amended, 42 U.S.C. § 2000d [2000e] et seq.”[]
Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation. See Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir. 1977); Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976). Paragraphs 15, 17, and 18 are plainly of the invalid conclusory variety, merely reflecting plaintiff’s subjective characterization of defendants’ motives and actions. Only paragraph 16 identifies specific conduct allegedly in violation of 42 U.S.C. § 1983 and/or Title VII — conditioning plaintiff’s employment on acquiescence to romantic advances. Much of plaintiff’s argument was directed at establishing that such conduct violates Title VII and/or 42 U.S.C. § 1983. Were we to follow the circuits which have so held, Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044 (3d Cir. 1977); Barnes v. Costle, 183 U.S. App.D.C. 90, 561 F.2d 983 (1977); Garber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir. 1977), a matter we need not now decide, we would still conclude plaintiff has failed to state a claim upon which relief may be granted because she has not set forth sufficient facts which, if true, would indicate employment was in fact conditioned on acquiescence to romantic advances. Plaintiff has not alleged a sufficient nexus between her refusal to accede to the romantic overtures and her termination. She has not alleged that the department chairman had the authority to terminate her employment or effectively recommend the same and we cannot so assume. See Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169, 172 (1st Cir. 1978) , vacated on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (peer-review system for screening requests-^ for tenure and promotion); Trustees of Boston University v. NLRB, 575 F.2d 301, 305 (1st Cir. 1978), petition for cert. filed, 47 U.S.L.W. 3097 (Aug. 22, 1978) (No. 78-67) (chairperson’s recommendations on appointment and reappointment made after consultation with all tenured members of department).
At oral argument plaintiff’s counsel took the position that plaintiff need not allege any link between the chairman and those with authority to hire and fire, that this was a matter for discovery. We disagree. In the circumstances of this case where the wrong complained of is termination based on an improper criterion, we do not see how plaintiff could satisfy the “but for” causation required in impermissibly motivated termination cases, cf. Givhan v. Western Line Consolidated School District. —— U.S. --, --, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Rosaly v. Ignacio, 593 F.2d 145, at 148 (1st Cir. 1979), without alleging facts which would at least indicate defendant chairman had some input in the termination decision. Far from alleging a “but for” causation, plaintiff’s complaint, paragraph 16, indicates that her rebuff of the chairman’s alleged advances merely constituted “some part” of the reason for her termination. Thus, even if we were to assume that vicarious liability may be imposed on some or all of the other defendants, we would first need to conclude the chairman played some role in the termination decision. Plaintiff has not alleged the necessary facts to establish this predicate. For all that appears, the romantic overtures were but an unsatisfactory personal encounter with no employment repercussions and consequently not actionable. See Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044, 1048 (3d Cir. 1977) (distinction noted between sexual advances of an individual or personal nature and those having direct employment consequences); Heelan v. Johns-Manville Corp., 451 F.Supp. 1382, 1388 (D.Colo.1978) (Title VII should not be interpreted to reach sexual relations which arise during the course of employment but which have no substantial effect on employment).
Plaintiff next argues the district court erred in supposedly denying her leave to amend her complaint. No motion to amend was, however, filed; the record, including the docket, is entirely silent on either the making or denial of such a motion. We refuse to review a matter of this nature in the absence of its having been tendered below.
Affirmed.
. A third, pendent count based on common law defamation was also dismissed.
. Plaintiff does not object to the dismissal of the Title VII count against the first, second, and fourth defendants.
. Plaintiff’s 42 U.S.C. § 1983 count is premised on the same conduct as the Title VII count.
. Plaintiff has not alleged that the other defendants condoned, knew, or should have known of the chairman's alleged advances. Compare Garber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir. 1977) (complaint alleged an employer policy or acquiescence in a practice of compelling female employees to submit to the sexual advances of male supervisors), Miller v. Bank of America, 418 F.Supp. 233 (N.D. Cal. 1976) (in absence of specific factual allegations describing an employer policy, which in its application imposes or permits a consistent, as distinguished from an isolated, conditioning of employment on acquiescence in sexual advances, no Title VII claim stated), and Munford v. James T. Barnes & Co., 441 F.Supp. 459, 466 (E.D.Mich. 1977) (employer not automatically vicariously liable for discriminatory acts of supervisors (dicta)). But see Barnes v. Costle, 183 U.S.App.D.C. 90, 100, 561 F.2d 983, 993 . (1977) (employer is generally chargeable with Title VII violations occasioned by supervisory personnel) and Heelan v. Johns-Manville Corp., 451 F.Supp. 1382, 1389 (D.Colo.1978) (not necessary to prove an employer policy or practice endorsing sexual harassment). On the contrary, during oral argument plaintiffs counsel stated he did not know whether or not the other defendants knew of the chairman’s alleged advances and took the position that such is not an essential allegation but rather is a matter for discovery.
. Plaintiffs counsel suggests that an oral motion to amend may have been made below. However, as he did not handle the case below, he is without personal knowledge. Defense counsel represented to this court during argument that no such oral motion to amend had been made. It would be grossly unfair to defendants as well as subversive of proper judicial procedures for us to presume on such a flimsy foundation that a motion was made. Counsel may not impeach the record by his oral statement; the proper mode would be by proceedings under Fed.R.App.P. 10(e) before the district court. We must abide by the record as it stands. See Hobart v. O'Brien, 243 F.2d 735, 744 (1st Cir.), cert. denied, 355 U.S. 830, 78 S.Ct. 42, 2 L.Ed.2d 42 (1957); 9 Moore’s Federal Practice ¶ 210.08, at 1639 (2d ed. 1948).
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
BROOKS TOWERS CORPORATION et al., Plaintiffs-Appellants and Cross-Appellees, v. The HUNKIN-CONKEY CONSTRUCTION COMPANY and Federal Insurance Company, Defendants-Appellees and Cross-Appellants.
Nos. 71-1094, 71-1095.
United States Court of Appeals, Tenth Circuit.
Feb. 1, 1972.
Geoffrey M. Kalmus, New York City (Nickerson, Kramer, Lowenstein, Nessen & Kamin, New York City; Gorsuch, Kir-gis, Campbell, Walker & Grover, Denver, Colo., on the brief), for plaintiffs-appellants and cross-appellees.
Warren O. Martin, Denver, Colo. (Berge, Martin & Clark, Denver, Colo., on the brief), for defendants-appellees and cross-appellants.
Before PICKETT, HILL and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
This appeal is taken by Brooks Towers Corporation, hereinafter called the Owner, and its co-plaintiffs, Central Bank and Trust Company and the First National Bank of Denver, lending institutions, from the $786,386.24 judgment awarded the Hunkin-Conkey Construction Company and Federal Insurance Company, hereinafter called the Contractor, upon its counterclaim for damages representing the balance due under a contract for the construction of Brooks Towers, a 42-story commercial and apartment building in Denver. The Contractor has filed a cross-appeal.
This diversity suit involved a two-week trial to the Court without jury.
The Contract — Contentions—Court Findings
The original construction contract price was $7,600,000.00. Pertinent provisions, for purposes of this opinion, became operative on June 8, 1966, when work commenced. They are:
“Within fifteen months after acceptance (June 8, 1966) of said notice to proceed
“(a) commercial and office space is to be substantially completed as a shell area and be ready for customization by others in accordance with plans and specifications,
“(b) garage floor areas shall be substantially completed with 20% of said garage area being reserved for Contractor storage and usage,
“(c) approximately 175 apartment suites on a contiguous block of lower floors shall be substantially completed and ready for final decoration by others,
“Substantial completion of the entire Work shall be accomplished in eighteen (18) months after acceptance of said notice to proceed.”
Substantial completion was defined as meaning “when the Work is ready for occupancy for its intended purposes, except for customization for tenants and ‘punch list’ items to be completed by Contractor.” By its terms, unless relieved by excusable delays, substantial completion should have been accomplished by December 8, 1967. The Contract provided further that:
“If the Contractor is delayed at any time in the progress of the Work by any act or neglect of the Owner, the Architect, or any employee, agent or contractor of either, or by deletions, alterations, or additions ordered in the Work, or by labor disputes, fire, accidents, severe weather conditions, unusual delay in transportation or any other causes beyond the Contractor’s control, then the times herein fixed for the completion of the Work shall be extended for a period equivalent to the time lost by reason of any one of the causes aforesaid. The Contractor shall promptly notify the Owner in writing of the facts relating to any of the above described causes of delay and Contractor’s estimate of the revised dates of completion of the Work.” (Emphasis ours.)
The Owner contends that it is entitled to damages by reason of failure of the Contractor to meet either the partial completion or substantial completion dates in the contract schedule. It contends that the building was not completed until November of 1968. The Owner seeks damages for lost rentals, additional interest payments charged, defective work, temporary housing of tenants and other losses.
The Contractor counterclaimed, alleging that by reason of excusable delays the building was substantially completed on June 1, 1968. The Contractor sought a total judgment of $1,029,947.93.
The trial court found that: (1) the Owner, at pretrial, asserted that the Contractor was required to complete the building in December, 1967, and that it was not completed until November, 1968; (2) the parties agreed upon a procedure with respect to changes in the work (deletions, alterations, or additions) which involved, in each instance, a “Quotation” from the Contractor setting forth the number of additional calendar days to be extended beyond the original Contract period for completion of the work, directed to the Owner’s Architect, who approved extensions of time total-ling 185 calendar days; (3) in addition to the extensions of time approved by the Owner’s Architect, the Contractor was entitled to 30 calendar days by reason of labor disputes and severe weather conditions; and (4) that substantial completion of the work occurred on June 8, 1968, except for noncustomized apartment units on floors 40 and 41 which were not completed until October 11, 1968, but that the Owner did not 'offer evidence of any loss of rental damage thereby. The Court had previously ruled that the Owner was entitled to a set-off of $28,170.00 representing the measure of damages for failure of the Contractor to comply with Bulletin 15 relating to work to be performed on concrete balconies.
Partial and Substantial Completion
The Owner complains that the trial court erred in failing to make any findings relating to “partial completion”, i. e., the occupancy aimed for within the 15 month period. The parties understood that both the “partial” and “substantial” completion schedules were extremely tight and that the construction schedule required clockwork precision in order to accomplish these objectives. These schedules were strictly tied to the original plans and specifications.
Max Ratner, the Owner’s Architect, acknowledged that major changes were made from the original plans and specifications, with particular reference to the third floor and the upper floors. These changes affected both structural and mechanical engineering changes. Ratner acknowledged that many of the changes affected the sequence of the work, thus creating delays. The Contractor had undertaken a “critical path scheduling” study before submitting its bid on this project. This involves breaking a construction job down into its smallest working components and scheduling the work in proper sequences. The importance of meeting a “critical path schedule” is evident. Chat Paterson, Vice-President of the Owner, testified that the Owner, too, relied upon its own critical path schedule.
There is substantial evidence in this voluminous record that: (a) “partial completion” was accomplished through the 20th floor by December 11, 1967, some three months behind the contract schedule; (b) the major change relating to the third floor had occurred during this time; and (c) the Contractor had requested some 78 days extension of time, relating entirely to changes in the scope of the work which, together with delays during the first 15 months resulting from strikes and weather conditions, are justified in this record.
The trial court properly treated and considered damages only in relation to the “substantial completion” covenants of the Contract. The Court found that substantial completion was not required of the Contractor until July 1, 1968. We hold that this finding is supported by substantial evidence.
Extensions of Time
The overriding dispute in this case involves the extensions of time which the Contractor was entitled to. The trial court found that the Owner’s Architect, Ratner, had approved extensions of 185 days, exclusive of 30 days delay resulting from labor disputes and severe weather conditions — or a total of some 215 days extension.
The Owner contends that the Contractor was not entitled to any extensions of time beyond some 30 days resulting from labor disputes and severe weather conditions. In justification, the Owner argues that: (a) the extensions requested were for customization work, the accomplishment of which was not germane to substantial completion; (b) this customization work, for the most part, was not performed until after the date on which the Court found that substantial completion had occurred; and (c) the extensions of time were understood by the parties to be concurrent and not tacked onto one another.
We first observe that all references in the Contract referred to as “customization” work were those in the original plans and specifications, not customization work resulting from changes effected after the Contract was executed.
There is a most damaging vacuum in this record reflecting upon the Owner. The Owner contends that its Architect, Max Ratner, had no authority to grant extensions of time. Pointing to the Contract language designating the Architect as the Owner’s agent to “review and act” in an advisory capacity for the Owner relating to construction changes, the Owner disavows the Architect’s authority to grant extensions of time. Thus, the Owner argues that the Contractor did not notify the Owner of claims for additional time except for some 30 days delay resulting from strikes and severe weather conditions.
Extension of Time Procedure
The parties effected a specific procedure for Change Orders from the original plans and specifications. The Owner’s Architect issued a “Bulletin” detailing a change directed to the Contractor requesting a “Quotation” from the Contractor. This was, in legal effect, a call for a bid. The Contractor would then issue a “Quotation” setting forth a change in Contract price, if any, together with a specific request for additional days to complete the Contract as a result of the changes. The record reflects that the Contractor requested extensions of some 300 days involving about 80 formal “Quotations” and some 30 Field Order Changes. The “Quotations” were, in legal effect, offers on the part of the Contractor to undertake the requested changes, subject to specific price changes, if any, and additional days to complete the work. These “Quotations” were submitted direcly to Ratner, the Architect, and reviewed by Chat Paterson, Vice-President of the Owner, and one Kromer, an on-the-job architect employed by Ratner. Kromer testified that he and Ratner jointly agreed on each Quotation. He and Ratner both testified that they were in a position only to recommend extensions to the Owner, but that the ultimate determination was between the Owner and the Contractor. But Ratner also said that the decisions on the Quotations would be made by the Owner and “ratified” by him. Herbert Wasserman, an officer of the Owner, testified that he was in “constant” contact with Ratner and Paterson concerning contract price changes and that he did review some Quotations. The Quotation forms were prepared by the Contractor. Each contained a portion for approval or disapproval for execution by the Owner, as follows:
APPROVAL
The undersigned hereby approves the above proposal for Item(s)_ above for a total net increase/decrease/no change in the contract price of - Dollars ($--). Item(s) (of calendar days) above are not approved. You are requested to prepare an amendment of the Agreement dated May 5, 1966 in accordance with the foregoing.
MAX RATNER, ARCHITECT
By -
Dated _
In every instance Ratner completed that portion of the Approval dealing with the change in contract price. In a few instances Ratner expressly allowed or disallowed extensions of time. In the great majority of the Quotations Ratner did not make any entries relating to extensions. He testified that by not acting, he indicated his disapproval, or, perhaps more accurately, that the extensions were matters to be determined by the Owner and the Contractor. The Contractor relied upon the lack of express disapproval as a grant of the requests for extensions. After Ratner returned the “Quotation” forms to the Contractor, an amendment or “Change Order” reflecting .the deletions, alterations or additions was prepared by the Contractor and thereafter executed by the Contractor. Paterson then executed on behalf of the Owner. The two interim Denver lending banks also executed them. The “Change Orders” did not refer to extensions of time.
The trial court found that Ratner was authorized by the Owner to act as its architect and agent in supervising the work, in issuing the Bulletins for changes, and in approving or disapproving the Quotations including the extensions of time. The trial court found that the extensions of time approved by Ratner totalled 185 calendar days. We agree.
Lacking express disapproval as contemplated on the face of the form, the Contractor relied upon Ratner’s inaction as approval. Here the silence can be attributed to both Ratner and Paterson, the Owner’s representatives on the job. When the relations between the parties justify the offeror’s expectation of a reply or where a duty exists to communicate either an acceptance or rejection, silence will be regarded as an acceptance. Laredo Nat. Bank v. Gordon, 61 F.2d 906 (5th Cir. 1932); Suitter v. Thompson, 225 Or. 614, 358 P.2d 267 (1960); Tanenbaum Textile Co. v. Schlanger, 287 N.Y. 400, 40 N.E.2d 225 (1942); and Lechler v. Montana Life Ins. Co. of Helena, Mont., 48 N.D. 644, 186 N.W. 271 (1921).
We do not find any inconsistency on the part of the Contractor in directing requests for extensions of time resulting from labor disputes and severe weather conditions to the Owner’s Denver office rather than to the Architect. These requests did not relate to deletions, alterations or additions in the building plans and specifications.
The procedure established by the parties constituted confirmation by the Owner of the authority exercised by Ratner and Paterson. Rogers v. Beiderwell, 175 Kan. 223, 262 P.2d 814 (1953); Davis v. Bush & Lane Piano Co., 124 Or. 585, 265 P. 417 (1928); Sando v. Kalberg, 138 Wash. 247, 244 P. 576 (1926); Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060 (1915).
Customization
The Owner insists that of the 185 days of extensions allowed by the Court based upon Change Orders, all but 43 days dealt with “customization” work only. Applying Article 2 of the Contract, the Owner thus argues that substantial completion of the work should have been accomplished on or about February 24, 1968.
It is true that a great deal of the work changes related to “customization”. It is also true that many of the Change Orders bore dates as late as June of 1968. There is substantial evidence, however, that most of the work reflected by these Change Orders had been completed pri- or to date of their execution. Kromer, who was employed by Ratner, issued Construction Progress Estimates. He testified that the building was 97.3 percent completed on May 31, 1968, and 98.3 percent completed on June 30, 1968. There is a great deal of evidence of delay in execution of the Change Orders by the Owner and the interim lending institutions.
The Owner’s argument that the Contractor was not entitled to extensions of time resulting from “customization” Change Orders is without merit. The contract reference to “customization” related only to that type of work reflected in the original plans and specifications. The parties were aware that changes could affect the program work schedule.
The testimony of Richard N. Green, a Construction Consultant, is corroborative of Ratner’s grant of some 185 days extensions and significant in relation to the “clockwork” scheduling of work components required to accomplish the original contract completion schedules. Green’s study took into consideration the plans and specifications, the computerized Critical Path Scheduling program, all Bulletins, formal Change Orders, Field Change Orders, related correspondence, Daily Progress Reports and Monthly Pay Requests. He computed some 394 days involving requests for extensions. He eliminated those of an “overlapping” nature and those which were not critical. He did not consider delays resulting from labor disputes or severe weather conditions. He arrived at a total of 180 days extension of time to which the Contractor was entitled.
There were unexplained delays on the part of the Owner relating to approval of Change Orders, selections of customization items such as ceramic tile, fixtures and accessories, color selections, etc. These delays did in fact change the scope of the work. Indecision on the part of the Owner with respect to tenant paint color selections was such, as early as July or August of 1967, that painters were moving from one floor to another in the building, completely out of program sequence. Some important work had to be re-done because the original plans and specifications did not comply with city codes.
The Cross Appeal
The Contractor appeals from the trial court’s allowance of a $28,170.00 set-off against the Contractor for non-compliance with the standard required under Bulletin #15 relating to balcony finishes on apartments above the 17th floor. There is substantial evidence to support the Court’s finding in this regard. The Contractor contends that there was no admissible evidence of damages.
At the time of trial the defects in the concrete finish had not been rectified. The Owner sought bids covering the claimed defects, a schedule of which was submitted to the Contractor. The record reflects that the lowest bid received was predicated upon an inspection and submittal by a Mr. R. W. Graves, who was not available to testify at trial. However, a Mr. McHenry of the same firm did testify. He updated the Graves bid by 7%. He testified at some length concerning the bids. The Contractor did not offer any evidence regarding the costs of repairs. We hold that although the bids admitted in evidence were hearsay, they were admissible under the Business Records Act, 28 U.S.C. § 1732(a). Hearsay may have affected the weight of these documents, but not their admissibility. The Court’s set-off was predicated upon the lowest bid.
We affirm the trial court’s judgment against the Owner. We deny the Contractor’s cross-appeal from the trial coui't’s allowance of a set-off of $28,170.-00 to the Owner representing repairs to the concrete balconies.
Each party shall bear its own costs in this appeal.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_adminaction
|
026
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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.
MONTANA et al. v. CROW TRIBE OF INDIANS et al.
No. 96-1829.
Argued February 24, 1998
Decided May 18, 1998
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scaua, Kennedy, Thomas, and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part and dissenting in paid, in which O’Connor, J., joined, post, p. 719.
Clay R. Smith, Solicitor of Montana, argued the cause for petitioners. With him on the briefs were Joseph P. Mazurek, Attorney General, James K Torske, Carter G. Phillips, Paul E. Kalb, and Christine A. Cooke.
Robert S. Pelcyger argued the cause and filed a brief for respondent Crow Tribe of Indians.
Jeffrey A. Lamken argued the cause for the United States. With him on the brief were Solicitor General Waxman, As sistant Attorney General Schiffer, Deputy Solicitor General Kneedler, and James C. Kilbourne
Briefs of amici curiae urging reversal were filed for the State of New York et al. by Dennis C. Vacco, Attorney General of New York, Barbara G. Billet, Solicitor General, John W. McConnell, Deputy Solicitor General, and John B. Curdo, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Limgren of California, Robert A. Butterworth of Florida, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Heidi Heitkamp of North Dakota, Mark W. Barnett of South Dakota, Jan Graham of Utah, William H. Sorrell of Vermont, Richard Cullen of Virginia, Christine O. Gregoire of Washington, and William U. Hill of Wyoming; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.
Justice Ginsburg
delivered the opinion of the Court.
This case originated in 1978 when the Crow Tribe sought to enjoin the State of Montana and its counties from taxing coal extracted from mines held by the United States in trust for the Tribe. Having succeeded in that endeavor, the Tribe and the United States now seek to recover coal-related taxes once paid to the State and counties by Westmoreland Resources, Inc., a nontribal enterprise that mined coal under a lease from the Tribe. We hold that the restitution sought for the Tribe is not warranted.
H-i
J>
Just north of the northern surface boundary of the Crow Reservation in Montana lies the “ceded strip,” approximately 1,137,500 acres of land that was originally part of the reservation. The Tribe ceded the tract to the United States in 1904 for settlement by non-Indians. Act of Apr. 27, 1904, ch. 1624, 33 Stat. 352; see Ash Sheep Co. v. United States, 252 U. S. 159 (1920). Surface interests in the eeded strip were thereafter conveyed to non-Indians, but the United States holds rights to minerals underlying the strip in trust for the Tribe. Since 1904, the State and the Counties of Big Horn, Treasure, and Yellowstone have exercised full legal authority and responsibility for public services on the eeded strip, and the Tribe has not exercised civil jurisdiction over this area. See Crow Tribe v. Montana, 650 F. 2d 1104, 1107 (CA9 1981) (noting the Court of Appeals’ understanding, in Little Light v. Crist, 649 F. 2d 683, 685 (CA9 1981), that “the ceded area is not a part of the reservation”).
In 1972, with the approval of the Department of the Interior and pursuant to the Indian Mineral Leasing Act of 1938 (IMLA), 52 Stat. 347, 25 U. S. C. § 396a et seq., Westmoreland Resources, a non-Indian company, entered into a mining lease with the Tribe for coal underlying approximately 31,000 acres of the eeded strip. After executing the 1972 lease, Westmoreland signed contracts with its customers, four Midwest utility companies, allowing Westmoreland to pass on the cost of valid taxes to the utilities. Westmore-land began mining the coal in the spring of 1974.
In November 1974, Westmoreland and the Tribe renegotiated the 1972 lease. The renegotiated royalties were recognized at the time as being among the highest in the United States. Crow Tribe v. United States, 657 F. Supp. 573, 587 (Mont. 1985); see App. 376 (testimony of Westmoreland’s president that the renegotiated royalty was “by far the highest royalty that was being paid in the nation”). A settlement agreement attending the 1974 renegotiation stated that the Tribe found the amended lease and associated documents “satisfactory in that they provide the financial, economic and social protections that the Tribe deems necessary.” Id., at 44. The amended lease and the royalties for which it provided had an extendable term of ten years, running from June 14,1972. Id., at 8. Pursuant to the lease, Westmore-land paid the Tribe almost $18 million in royalties through October 1983. Crow Tribe v. United States, 657 F. Supp., at 588.
In July 1975, the State imposed a severance tax and a gross proceeds tax on all coal produced in Montana, including coal underlying the reservation proper and the ceded strip. See Mont. Code Ann. §§ 15-23-701 to 15-23-704, 15-35-101 to 15-35-111 (1979). The severance tax rate applicable to the ceded strip coal was 30 percent of the contract sales price of the coal extracted; the gross proceeds tax rate was approximately 5 percent of the contract sales price. During the relevant periods, Westmoreland paid approximately $46.8 million in severance taxes to the State and $11.4 million in gross proceeds taxes to Big Horn County. Westmoreland paid these taxes without timely pursuit of the procedures Montana law provides for protests and refunds. App. to Pet. for Cert. 37; see also Tr. of Oral Arg. 13-14. The company subsequently agreed, in exchange for $50,000, to dismiss with prejudice any claim of entitlement to a refund of the severance or gross proceeds taxes it had paid to the State or Big Horn County. App. to Pet. for Cert. 37; see also App. 294-296.
In January 1976; some six months after the State imposed its coal taxes, the Tribal Council adopted an ordinance setting out a Crow Tribal Coal Taxation Code. Id., at 79-86. The Tribe’s code imposed a 25 percent severance tax on “all persons engaged in or carrying on the business of coal mining within the boundaries of the Crow Indian Reservation].” Id., at 81; see also id., at 97-98. Reservation boundaries, as described in the code, included the coal beneath the ceded strip. Id., at 81. Under the Tribe’s constitution, the tax adopted by the Tribal Council was subject to review by the Department of the Interior. Id., at 329.
In January 1977, the Department approved the Tribe’s code “to the extent that it applied to coal underlying the Crow Reservation proper.” Id., at 98. Because of a limitation in the Tribe’s constitution, however, the Department “disapproved the tax to the extent that it applied to the Crow Tribe’s coal in the ceded strip.” Id., at 153; see also id., at 217-218, 329, In 1982, the Tribe again enacted a tax for coal mined on the ceded strip, and again the Department rejected the tax. See Crow Tribe v. Montana, 819 F. 2d 895, 897 (CA9 1987). According to the Superintendent of the Crow Agency, Bureau of Indian Affairs, the Department continued to withhold permission for extension of the Tribe’s tax to the ceded area because the Tribe’s constitution “disclaimed jurisdiction outside the boundaries of the reservation.” App. 218. The Tribe endeavored to amend its constitution to satisfy the Department’s objection; it did not petition for court review of the Department’s refusal to approve extension of the Tribe’s tax to the ceded strip.
B
The Tribe brought a federal action against Montana and Montana counties in 1978, seeking declaratory and injunctive relief against imposition of the State’s severance and gross proceed taxes on coal belonging to the Tribe. The State’s taxes, the Tribe alleged, were preempted by the IMLA and infringed on the Tribe’s right to govern itself. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted. Crow Tribe v. Montana, 469 F. Supp. 154 (Mont. 1979). The Court of Appeals for the Ninth Circuit reversed. 650 F. 2d 1104 (1981), amended, 665 F. 2d 1390 (1982) (Crow I). It held that the Tribe’s allegations, if proved, would establish that the IMLA preempted Montana’s taxes, 650 F. 2d, at 1113-1115, and that the taxes impermissibly infringed upon the Tribe’s sovereignty, id., at 1115-1117.
While the Ninth Circuit trained on the nonmonetary claim the Tribe was then pursuing, one for declaratory and injunc-tive relief to stop the imposition of Montana’s taxes, the Court of Appeals noted: “As to the taxes already paid by Westmoreland ... it is true that the Tribe has not paid any of the taxes and is apparently not entitled to any refund if the tax statutes are declared invalid.” Id., at 1113, n. 13. The Ninth Circuit further observed that the Tribe’s own attempt “to tax its lessees’ coal production was partially frustrated by the Secretary of the Interior’s refusal to sanction the Tribe’s tax ordinances insofar as they applied to coal production on the ceded strip.” Id., at 1115, n. 19.
In July 1982, after the Crow I decision, the Tribe and Westmoreland entered into an amended lease agreement, approved by the Interior Department that September. Under the amended arrangement, Westmoreland agreed to pay the Tribe a tax equal to the State’s then-existing taxes, less any tax payments Westmoreland was required to make to the State and its subdivisions. See App. 135-141; see also id., at 329-330. The 1982 agreement achieved, prospectively, the federal permission the Tribe had long sought. It allowed the Tribe to have an approved tax in place so that, if successful in the litigation against Montana, the Tribe could claim for itself any tax amounts Westmoreland might be ordered to pay into the District Court’s registry pendente lite. Correspondingly, the agreement enabled Westmoreland to avoid double taxation, present and future, and it absolved the company from any tax payment obligation to the Tribe for the 1976-1982 period. App. to Pet. for Cert. 32-35.
In November 1982, in keeping with their amended lease agreement, the Tribe and Westmoreland jointly filed a motion to deposit severance tax payments into the District Court’s registry, pending resolution of the controversy over Montana’s authority to tax coal mined at the ceded strip. Id., at 32. In January 1983, the District Court granted the motion. Thereafter, Westmoreland paid the Montana severance tax into the court’s registry in lieu of paying the State. The District Court granted the same interim relief, in November 1987, for the gross proceeds tax. Id., at 35, 36. In ordering the registry deposits, which ultimately would be paid over, with interest, to the prevailing party (Montana or the Tribe), the District Court recalled the Ninth Circuit’s observation that “the Tribe is apparently not entitled to any refund of taxes previously paid by Westmoreland to Montana.” App. 213 (citing Crow I, 650 F. 2d, at 1113, n. 13). The provisional remedy attended to that concern; it “preserve[d the District Court’s] power ... [to give post-1982] tax moneys to their rightful owner after a trial on the merits.” App. 215.
In June 1983, the United States intervened on behalf of the Tribe to protect its interests as trustee of the coal upon which Montana’s taxes were levied. Trial took place in January 1984, after which the District Court concluded that federal law did not preempt the State’s taxes on coal underlying the ceded strip. Crow Tribe v. United States, 657 F. Supp. 573 (Mont. 1985). The Ninth Circuit again reversed. Crow Tribe v. Montana, 819 F. 2d 895 (1987) (Crow II). Montana’s taxes, as applied to the ceded strip coal, the Court of Appeals held, were both “preempted by federal law and policies,” as reflected in the IMLA, and “void for interfering with tribal self-government.” Id., at 903. Explaining its decision, the Ninth Circuit stressed these considerations: The Tribe had a vital interest in the development of its coal resources, id., at 899, 901; the State’s taxes had “at least some negative impact on the . . . marketability [of the Tribe’s coal],” id., at 900; Montana’s coal tax exactions were not “narrowly tailored” to serve only the State’s “legitimate” interests, id., at 902. Montana appealed, and this Court summarily affirmed. 484 U. S. 997 (1988).
When the case returned to the District Court in 1988, the Tribe sought an order directing release of the funds held in the court’s registry. Montana did not object but, in a new twist, Westmoreland did. The company, for the first time in this protracted litigation, asserted that neither Montana nor the Tribe qualified for receipt of the funds. Montana was out because the Ninth Circuit had declared the State’s taxes preempted. The Tribe, according to Westmoreland, did not have a valid tax law in place even in the years following 1982 — the fund deposit period — for want of proper Interior Department approval. Therefore, Westmoreland urged, the company should receive back all deposited funds.
Rejecting Westmoreland’s novel claim of entitlement to the deposited funds, the District Court observed that the Ninth Circuit, in Crow I, 650 F. 2d, at 1117, and Crow II, 819 F. 2d, at 898, had characterized the minerals underlying the ceded strip as a “ ‘component of the Reservation land itself.’ ” App. 286. It follows, the District Court next said, that the tax approved for the reservation proper in 1977, see supra, at 703, covered the strip as well, and the Interior Department had erred in ever opining otherwise, App. 286. As to Westmoreland’s operations on the strip, the District Court further stated, the Crow tax had been modified by the 1982 agreement amending the lease. Id., at 287; see supra, at 704-705. That 1982 Tribe-Westmoreland accord controlled, the District Court concluded, rendering the amount deposited payable to the Tribe, and not to Westmoreland. Shortly thereafter, the District Court ordered distribution of funds in its registry to the United States, as trustee for the Tribe. App. 288-291.
Having secured exclusively for the Tribe’s benefit West-moreland’s post-1982 tax payments once held in the District Court’s registry, the United States and the Tribe commenced the fray now before us.. Filing amended complaints against Montana and Big Horn County, they invoked theories of as-sumpsit and constructive trust in support of prayers to recover some $58.2 million in state and county taxes paid by Westmoreland prior to the 1983 and 1987 orders directing deposits into the court’s registry. App. to Pet. for Cert. 243-260. These complaints alleged that, because the State and Big Horn County had collected taxes from Westmoreland in violation of federal law, it would be unjust and inequitable to allow them to retain the funds. In “equity and good conscience,” the United States and the Tribe urged, Montana should pay over for the benefit of the Tribe all moneys illegally collected, together with interest thereon. .See id., at 249-250,258-259. Neither the Tribe nor the United States requested, as additional or alternate relief, recovery for the Tribe’s actual financial losses attributable to the State’s taxes.
Montana moved for summary judgment, arguing, inter alia, that any refund right that may have existed belonged to Westmoreland, as payer of the taxes in question. Id., at 72. The District Court, in December 1990, denied Montana’s motion on the ground that full airing of the parties’ positions was in order. Id., at 67-85.
On Montana’s application, the District Court certified for interlocutory appeal, pursuant to 28 U. S. C. § 1292(b), the question whether summary judgment for the State was properly denied. Id., at 61-66. The Ninth Circuit, in 1991, initially granted permission for the interlocutory appeal, but one year later, in 1992, dismissed the appeal as improvidently granted. Crow Tribe v. Montana, 969 F. 2d 848 (Crow III). In dismissing the appeal, the Ninth Circuit commented that the “sole issue” presented was whether the Tribe and the United States, although they did not pay the Montana taxes, were nevertheless positioned to state a claim for relief in assumpsit and constructive trust. That issue, the Ninth Circuit said, “was already addressed” in Crow II. The Court of Appeals then recited passages from Crow II indicating why that court had determined that “The state tax[es] threatened] Congress’ overriding objective of encouraging tribal self-government and economic development.’” 969 F. 2d, at 848-849 (quoting Crow II, 819 F. 2d, at 903).
C
The District Court conducted a trial in April and May 1994 to determine whether coal taxes paid by Westmoreland to Montana and its counties in the years 1975-1982 unjustly enriched the State and its subdivisions at the expense of the Tribe. In detailed findings and conclusions, that court explained why, in its judgment, the disgorgement remedy sought by the Tribe was not appropriate. App. to Pet. for Cert. 17-38, 42-54.
The Tribe’s case rested on three principal points: first, the fact, settled in Crow I, that the coal underlying the ceded strip was a mineral resource of the Tribe; second, the federal policy favoring tribal self-government and economic development; finally, the Ninth Circuit’s preemption decision. Critical to the preemption decision, the District Court recognized, was the Court of Appeals’ determination that “Montana’s coal taxes burdened the Tribe’s economic interests by increasing the costs of production by coal producers, which reduced royalties received by the Tribe.” App. to Pet. for Cert. 45 (citing Crow II, 819 F. 2d, at 899).
Counterbalancing the Tribe’s case, the District Court observed first that the State and its subdivisions, not the Tribe, provided “[pjublic services to residents and businesses on the [c]eded [sjtrip, many of which facilitate the mining of coal.” App. to Pet. for Cert. 47; see supra, at 701,703, n. 5. Key to the District Court’s reasoning, however, was the respective taxing authority of State and Tribe.
In a decision rendered two years after the Ninth Circuit’s Crow II preemption decision, this Court held that both State and Tribe may impose severance taxes on on-reservation oil and gas production by a non-Indian lessee. Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163 (1989). Cotton Petroleum indicated that Montana’s taxes on ceded strip coal were invalidated, not because the State lacked power to tax the coal at all, but because the taxes at issue were “extraordinarily high.” Id., at 186-187, n. 17.
The Tribe’s exercise of taxing authority, on the other hand, required approval from the Secretary of the Interior, and that approval had not been obtained in the relevant period, 1976-1982. See supra, at 703-704. In 1988, the District Court had determined that the Interior Department’s refusal to approve the Tribe’s tax on the ceded strip was an error, see supra, at 707, but the presence of the state taxes did not cause that error. App. to Pet. for Cert. 36. Rather, the Department initially questioned the Tribe’s authority to tax on the ceded strip and later pointed to the Tribe’s noneompli-anee with the proper procedures for amending its constitution to impose the tax. Id., at 36-37.
Accorded weight in the District Court’s evaluation, West-moreland would not have paid coal taxes to the Tribe prior to 1983, for Interior Department approval was essential to allow pass-through to the company’s customers. Id., at 35. Furthermore, under the 1982 lease agreement, see supra, at 704-705, the Tribe and Westmoreland stipulated that Westmoreland would have no tax liability to the Tribe for the 1976-1982 period. App. to Pet. for Cert. 36. Moreover, the deposited funds, Westmoreland’s post-1982 tax payments, had been turned over in full to the United States for the benefit of the Tribe. Ibid.; see supra, at 705-707.
The District Court further noted that Westmoreland did not timely endeavor to recover taxes paid to the State and counties, and that the Tribe did nothing to prompt West-moreland to initiate appropriate proceedings for refunds. App. to Pet. for Cert. 50-51. In that regard, the District Court recalled the Court of Appeals’ statement in Crow I that “ ‘as to the taxes already paid by Westmoreland,... the Tribe ... is apparently not entitled to any refund if the tax statutes are declared invalid.’” App. to Pet. for Cert. 53 (quoting Crow I, 650 F. 2d, at 1113, n. 13).
Concerning the negative effect of Montana’s taxes on the marketability of coal produced in Montana, the District Court entertained additional evidence, supplementing the evidence offered ten years earlier. Westmoreland’s president testified that “he could not identify any utility contracts lost during the relevant time period due to Montana’s coal taxes,” App. to Pet. for Cert. 29, and the parties’ economic experts presented conflicting testimony on the impact of Montana’s taxes on the sale of Montana coal. The District Court described the conflicting positions, but made no findings on the matter. Id., at 29-30.
Satisfied that the factors justifying preemption did not impel the disgorgement relief demanded by the Tribe, that under Cotton Petroleum, the State could impose a reasonably sized severance tax, and that the State, though enriched by Westmoreland’s tax payments, did not gain that enrichment unjustly at the expense of the Tribe, the District Court refused to order that Montana coal taxes collected between 1975 and 1982 be remitted to the Tribe.
The Ninth Circuit again reversed the District Court’s judgment; in a per curiam opinion, the Court of Appeals read its prior opinions to require the relief the Tribe demanded, i. e., an order directing the State and county to disgorge approximately $58.2 million in coal taxes paid by Westmoreland to Montana and its subdivisions before Westmoreland began making payments into the District Court’s registry. 92 F. 3d 826, amended, 98 F. 3d 1194 (1996) (Crow TV). Acknowledging “the absence of traditional requirements for relief under theories of assumpsit or constructive trust,” 92 F. 3d, at 828, the Court of Appeals remanded for entry of the disgorgement order. That court left to the District Court only the “unresolved requests] for prejudgment interest [and attorney’s fees].” Id., at 830-831.
In the Ninth Circuit’s view, the District Court had not adhered to the “law of this case,” id., at 828, and had therefore abused its discretion, id., at 830. In particular, the Court of Appeals faulted the District Court for giving undue weight to the fact that Westmoreland rather than the Tribe had paid the taxes, id., at 828-829, and to the fact, made plain by this Court in Cotton Petroleum, 490 U. S., at 176-187, that “similar [state] taxes are not always preempted,” Crow IV, 92 F. 3d, at 829. Further, the Ninth Circuit discounted the public services Montana provided at the ceded strip because “the State would have provided such services even if the Tribal coal had not been mined.” Ibid. Finally, the Court of Appeals attributed to the District Court a finding that Westmoreland “would have paid the tribal tax even without [the Interior Department’s] approval because [Westmore-land] agreed to do so in its 1982 lease.” Id., at 830; see also ibid. (‘Westmoreland was willing to pay coal taxes to the Tribe as early as 1976, so there was no reason for the [District Court] to distinguish between the taxes collected before and after 1982.”).
We granted certiorari, 522 U. S. 912 (1997), and now reverse the judgment of the Court of Appeals.
II
A
The petition for certiorari presents the question whether the Tribe — or the United States as its trustee — may recover state and county taxes imposed on and paid by the Tribe’s mineral lessee, Westmoreland, a party who has forfeited entitlement to a tax refund. Taxpayer Westmoreland, it is undisputed, did not qualify for a refund because the company failed to pursue protest and claim procedures within the time Montana law prescribes. Further, Westmoreland entered into a settlement with the State and the county relinquishing any claim it might have had for return of the tax payments in question. See supra, at 702.
As a rule, a nontaxpayer may not sue for a refund of taxes paid by another. See, e. g., Furman Univ. v. Livingston, 136 S. E. 2d 254, 256, 244 S. C. 200, 204 (1964); Krauss Co. v. Develle, 236 La. 1072, 1077, 110 So. 2d 104, 106 (1959); Kesbec, Inc. v. McGoldrick, 278 N. Y. 293, 297, 16 N. E. 2d 288, 290 (1938); cf. United States v. California, 507 U. S. 746, 752 (1993). The Ninth Circuit evidently had that rule in mind when it noted, in Crow I, that the Tribe “is apparently not entitled to any refund” of taxes Westmoreland had paid to Montana. 650 F. 2d, at 1113, n. 13.
The Tribe now maintains, however, that the disgorgement remedy approved by the Ninth Circuit does not fall within the “refund” category. The Tribe suggests two ways of analyzing its claim. First, Westmoreland was liable for tax payments, but it paid the wrong sovereign; the Tribe, not the State, should have been the recipient of those payments. Second, the State’s taxes adversely affected the Tribe’s economy by reducing the demand for the Tribe’s coal and the royalties the Tribe could charge;
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
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.
LAWYERS TITLE INS. CO. v. LAWYERS TITLE INS. CORPORATION.
No. 7329.
United States Court of Appeals for the District of Columbia.
Decided Oct. 16, 1939.
Rehearing Denied Nov. 30, 1939.
Writ of Certiorari Denied April 8, 1940.
See-U.S. -, 60 S.Ct. 806, 84 L.Ed. -.
Louis M. Denit, Thomas Searing Jackson, and J. Richard Earle all of Washington, D. G, for appellant.
H. Cecil Kilpatrick, of Washington, D. G, and Andrew D. Christian, of Richmond, Va., for appellee.
Before GRONER, Chief Justice, and MILLER and RUTLEDGE, Associate Justices.
RUTLEDGE, Associate Justice.
The appeal is from a judgment dismissing the bill after hearing on the merits as to both law and facts. The parties will be designated as they stood below. Plaintiff sought an injunction restraining defendant from using its corporate name for doing the business of insuring real estate titles in the District of Columbia. The corporate names of plaintiff and defendant are identical except for the difference between the words “company” and “corporation”.
Plaintiff is a District corporation, organized in 1896 under the name “Lawyers Title and Guaranty Insurance Company”. In 1922 the name was changed formally by omitting the words “and Guaranty”. From 1896 to 1922 plaintiff conducted its business, principally certification of titles, entirely independently. In the latter year it made a “working agreement” with two other District title companies, previously competitors, the District Title Insurance Company and the Washington Title Insurance Company, as plaintiff’s president testified, to reduce operating 'costs and give customers greater financial responsibility. The three companies undertook to elect identical officers, occupy a single building, pool equipment, including records (title to those then existing was not affected), issue joint certificates of title, contribute specified sums as working capital, and share profits (and losses) in stipulated percentages (40% to plaintiff) after paying all expenses, including salaries. The agreement provided for termination by vote of shareholders owning two-thirds of the capital stock of any one of the companies. A majority of the stock of each corporation now is held by a fourth, the Consolidated Title Company. The contract appears to embody all of the elements essential to constitute a partnership among the constituent companies, effective, if valid, perpetually except at the will of the holding corporation, Consolidated Title Company.
The contract became effective January 1, 1923, and has been carried out continuously since that date in accordance with its terms. The work involved in certifying titles is done on behalf of all the companies by a single staff with a single plant in a single office. The “cooperating” corporations have identical officers (except directors, who interlock to some extent) and identical employees who are “jointly” paid; maintain (since 1922) a single set of records and indices; collect “jointly” all fees for title certificates and premiums for insurance; keep these in a “joint” bank account, from which they pay “joint” expenses and distributive shares of profits. The latter go to the constituent companies, which keep separate bank accounts from which each pays its own dividends and expenses, principally taxes and license fees.
There is no formal “partnership” name, but in doing business with the public the corporate name of each'constituent has become merged in either a full combination or some abbreviation of the three corporate names. Whether in the combination or an abbreviation, the name appearing first is that of the District Title Insurance Company. Plaintiff’s name appears in second place, between the other two. This order is followed on printed forms of certificates of title, policies, letterheads, etc., and in official signatures which are made by a single “joint” officer. No separate forms for each company appear to exist. The office building signs are: “1413 The District Lawyers Washington Title Insurance Companies”. The findings of fact state that plaintiff and its associates are called generally by the public, “The District Title Company”, “The District Title Insurance Company”, “The District Title Companies”, “The District Title Insurance Companies”, “The District Lawyers and Washington”, or the “D. L. & W.”; that plaintiff is not referred to in business circles as “The Lawyers Title Insurance Company”, and that there is no evidence that plaintiff ever acquired a reputation under that name alone.
Prior to 1935, plaintiff’s associate, the District Title Insurance Company, qualified to do business in Virginia as a foreign corporation. It does not appear that this business is conducted in any way differently from that done in the District. Presumably, therefore, it is done on behalf of plaintiff pursuant to the “working agreement”.
Defendant was incorporated in Virginia in 1925, has its home office in Richmond, and has qualified to do business in seventeen states and in the District. Its business consists exclusively in insurance of titles, not in issuance of certificates. Prior to 1935 it issued policies on property in the District, but only on certificates issued by local title companies, some by plaintiff. Defendant attempted to induce plaintiff to become its agent in the District, but plaintiff declined. Failing to find another satisfactory agent, defendant qualified in the District in 1935, and on June 13, 1938, opened its own office less than a block distant from plaintiff’s. It is admitted that qualification and entry by plaintiff’s associate in Virginia had some, but not controlling, influence in causing defendant to qualify to do business in the District.
The trial court found that defendant’s entrance into the District was “in the process of the natural and logical development of its business”, not only for expansion but to give more efficient service to existing customers; that the location of its office was selected, not to divert business unfairly from plaintiff, but because of its nearness to offices of real estate brokers and others having title business; that defendant did not choose its name originally in order to lure business from plaintiff (in fact at that time it had no intention of competing with plaintiff); and that defendant has done all that reasonably could be required of it to prevent confusion of identity with plaintiff.
Evidence sustaining the latter finding shows that on defendant’s office door, letterheads, forms, signs, advertising and telephone listings, it has added to the statement of its corporate name distinguishing matter, such as “Home Office — Richmond, Virginia Washington Branch”. Similarly disting-nishing identification is made orally in answering telephone calls. Distinctive type, color and arrangement, not similar to those used by plaintiff, are employed in signs, letterheads, forms, etc.
The court found further that title certificates and policies are obtained in Washington principally by real estate brokers and lawyers for their clients, and by banks, insurance companies, loan and trust companies and building associations, all of whom are experienced in title matters, will not be misled by the similarity of names, and constitute a discriminating clientele; that there is no evidence disclosing any injury to plaintiff by defendant’s conduct; and that there is no reasonable probability that plaintiff will suffer injury on account of confusion of identity with defendant, in view of the dissimilarity in publicity created by defendant.
Pursuant to these findings, the court denied relief to plaintiff and dismissed the bill on three grounds: (1) that plaintiff has not shown such similarity of names by which it and defendant are known publicly as to deceive plaintiff’s customers and divert their business to defendant; (2) that defendant has done all that reasonably could be required to prevent confusion of identities; and (3) that the services in question are rendered to a discriminating clientele. who will not be misled by “any fortuitous similarity” of the corporate names.
We think the findings of fact are sustained by the evidence and that the judgment was right.
The corporate names may be regarded as identical. The stated objects and the enterprises carried on overlap, even in the technical sense, since plaintiff is authorized to issue and to a very limited extent does issue policies of insurance. Further, although there are important technical differences between insuring titles and certifying them, the practical effect of extending title insurance is to curtail certification. The businesses are highly competitive and plaintiff seeks to ward off danger threatening its entire operations.
The case involves no deliberate attempt by one competitor to simulate another of crafty scheme for luring away business by deception. Both parties have conducted themselves honorably and with regard for high conceptions of business ethics. Their subjective attitudes, if material, are not fraudulent or dishonest. The naked question is whether plaintiff has an exclusive right, by virtue of prior appropriation in this jurisdiction, to use the name which each has acquired lawfully and with honest purpose.
The decision below was based on principles applicable in a case presenting issues of unfair competition, in which considerations relating to deception of the public and injury, actual or probable, to plaintiff’s business determine the scope of the right and of the remedy applied to protect it.
.Plaintiff contends, however, that it has acquired in its name a more absolute right, unqualified by necessity for showing such injury or danger of public confusion. Defendant’s right to do business in the District is not, and could, not well be, disputed. But if defendant does so, plaintiff asserts, in effect, that it must use a new name, different from that in which it has been incorporated and with which it has built good will in many places. It is the name, therefore, and not merely the business which is done in it, to which plaintiff claims exclusive title and use. Prior in tempore prior [et solus] in jure est summarizes plaintiff’s view.
The basis of the claim is not clear in respect to either the source or the extent of the right. Whether created as an implied grant from the bare act of incorporation or from that combined with use in trade, questions arise as to the nature and scope of the asserted monopoly of words. Is it a sort of “absolute property”, effective to exclude others, without regard to abandonment by the prior appropriator, use by others prior to the incorporation, the presence or absence of competition or possible infringement of good will by the later comer, or, competition existing, to special circumstances overcoming or minimizing probability of public confusion by the merely nominal identity? In other words, is there an exclusive preemption, invariable with time and circumstance, more absolute than the landowner’s freedom from invasion or the trade-mark owner’s privilege against infringement? Or, on the other hand, is the right less extensive and invariable, dependent on considerations of fair play in business, relative to the total situation and taking account of all its factors, not referable to and defined by the single fact of nominal identity? Whether on some formalistic conception of property, presumably implied from the act of incorporation, or, what is the same thing, of unfair competition coupled with a conclusive presumption of unfairness and of injury from the identity of names, plaintiff asserts -that such identity of itself is conclusive against use by any later comer. It claims, therefore, a protection broader and more enduring than that conferred by the trade-mark statutes or by the law of unfair trade.
We find no authority to sustain a right so absolute. No statute confers it in specific terms. Nor does mere incorporation do so by implication. Ordinarily, that creates rights in the name which may be called broadly, and therefore ambiguously, “property rights”. These include the capacity to take and hold property, to contract, to sue and be sued, and to perform other legal acts in the corporate name as well as to be known by it in the purely nominative sense, without reference to any function of excluding others. Further, under ordinary circumstances, a corporation acquires rights in its name which are to some extent exclusive. A prior incorporator may enjoin a later one from assuming an identical or confusingly similar name. The same relief, however, is given to the owner of the name of an unincorporated business. If the first incorporator’s name is assumed by another before timely objection is interposed, the assumption ordinarily stands, but use by the second comer in a manner injurious to the first or confusing to the public is enjoined, provided the enjoiner does not wait too long, and subject usually to clarification of identity by addition of sufficiently distinguishing matter in the latecomer’s public use of the common name. Similar protection is given to trade-marks and trade names against piracy by subsequent incorporation. A domestic corporation may require a foreign one entering later similarly to distinguish itself and vice versa, but if this is done, generally cannot exclude it.
Some of the opinions speak in terms of “property” as the basis for the exclusion, others in the language of unfair competition with a conclusive presumption of public confusion and of injury to the prior appropriator’s business in cases of nominal identity. The larger number frankly assimilate corporate names to trade-marks or to trade names, with results varying somewhat according to the classification adopted but in respects not material here. Frequently “property” and unfair trade conceptions are intermingled.
Whether one or another approach is taken, and except possibly when the issue is prevention of assumption, relief is granted under circumstances, upon considerations and subject to limitations equally applicable either to trade-marks or to trade names. Either confusion of the public or injury to the plaintiff’s business, actual or probable, generally both, will be found implicit in the facts. That these are the unstated assumptions underlying the asserted existence of “property” is shown both by the form of relief ordinarily granted, and the limitations of fact under which it is given.
The limitations thus measuring the scope of legal protection are consistent with a foundation encompassed by preventing or repairing damage caused by confusing or deceptive use in trade. They are not consistent with any notion of absolute property created merely by incorporation and effective to exclude others regardless of time and circumstance. Neither on authority nor on principle do we find that corporate names are given or need protection greater than that accorded to trade-marks and trade names. Such protection (or any degree of exclusion) is irrelevant to the purely nominative function. The exclusive function has significance only in relation to trade. If a competitive or other use is fair in respect to a trademark or a trade name, we do not see upon what principle it can be deemed unfair in relation to an identical corporate name. For purposes of exclusion its function is not different from that of trade-marks and trade names, namely, to identify source in trade and to build good will toward it. In the absence of trade, present or prospective, and corresponding good will, this function is as meaningless for corporate names as for trade-marks and trade names. Though each protects reasonable expectations for future trade, none serves or should serve solely to exclude others without possible benefit to the originator. Each has unique protections or occasions for protection, but the distinctions are vanishing in the expanding conceptions of unfair trade. With that expansion, sharp and ’ technical differentiations disappear, though need for some important distinctions may remain. Nevertheless no form, of earmarking source or product has buttressed itself beyond the reach of equitable limitation. We see no reason for holding that corporate names should be permitted to do so. The considerations dictating the limitations applied in protecting them appear, on the whole, to be related as intimately and extensively to fair play in business as those relating to trademarks and trade names. If they are effective to confine the limits of “property” to reasonable use and benefit in the one class of cases, they should be also in the other. Although “property” may be admitted to exist, whether in a trade-mark, a trade name or a corporate name, that is true, broadly speaking, whenever economic interests are protected by legal process, but only to the extent that they are so protected.
The question remains whether, on principles of unfair trade, defendant’s use of its name in the District should be enjoined at plaintiff’s suit. Generally the prior appropriator may enjoin use of an identical name by a subsequent arrival. Normally the latter seeks an unfair advantage, a “free ride” on another’s established good will; he is subjectively guilty and objectively deceptive. Usually his only purpose is to create confusion as to source, and benefit by it. Ordinarily any other name would serve as well, except to deceive. In such circumstances little evidence of injury, actual or probable, is needed — the mere identity makes it practically inevitable. From this fact comes the idea that a conclusive presumption of unfairness and injury exists. On such facts the presumption should be conclusive. Fair trade protection requires it.
But the presumption is founded on duplication of a name which is the core of another’s good will. In the absence of such good will or its attachment to the name, all reason for the presumption and the consequent exclusion falls. If there is no good will or reasonable prospect for it, relief is denied. If either exists, but not in connection with the name simulated, the same result should follow. Had .plaintiff, therefore, built and maintained its good will exclusively or distinctively about its present corporate name, authority would support the existence of the asserted presumptions and entitle it to relief, despite the hardship on defendant and its freedom, subjectively, from deceptive intention But plaintiff has not done so. For purposes of trade as distinguished from internal functions, principally distribution of earnings, it has submerged its identity, its good will and the distinctiveness of its corporate name in those of the combination in which, since 1922, it has lived, moved and had its being. Plaintiff would have us regard the situation as if there were three distinct enterprises, with corresponding separate good wills and corporate names. , The fact is to the contrary. There are one enterprise and one good will. Corresponding to them is an identification of the corporate owners which amounts to merger in the public mind, if not in the technical law of corporate entities. Both by the terms of the working agreement and by its subjection to domination of the holding corporation, plaintiff is bound to do business, not separately and distinctively, but always in conjunction with its corporate associates. Plaintiff and its associates have exchanged sole ownership of separate enterprises and corresponding individual good wills andidentifications for undivided shares in a single business, good will and reputation. It is that consolidated good will, reputation and public 'identification which are entitled to protection from confusion by the operations of others.
It is not material that the remaining enterprise, with its good will and public identification, is owned by three corporations; or that the corporate owners retain separate identities to receive shares in the profits and distribute them among their shareholders; or that each retains its distinctive name for the nominative purposes of corporate existence and internal management. Basically this is no more than any partner or joint adventurer does. Nor does it matter that plaintiff’s name remains in use as one of three in a combination of names in which the surviving enterprise conducts its business. If plaintiff’s name were the sole one so employed, or perhaps the predominant or principal one used, fair trade principles might afford relief. But the' business is not known distinctively to the public by plaintiff’s name. It occupies only a secondary position in the commonly accepted conglomerate. The dominant name is that of the District Title Insurance Company. Such variation as occurs naturally emphasizes this name and correspondingly minimizes plaintiff’s. Though none were dominant, the combination would not be identical with, or, in the circumstances here, confusingly similar to any one of its components separately used. By analogy to a partnership of natural persons, a firm name composed of those of the partners, as “Smith, Jones, Brown & Co.”, is not identical with the individual name of the partner, Jones. The good will, the business reputation and the identification of the firm are distinct from those of the individual member. So here the conglomerate uniformly designates and identifies plaintiff, not separately or independently, but always in conjunction with others. Exclusive right arises only from distinctive use. Whatever plaintiff’s rights might have been had it established or maintained distinctive identification in its separate name for purposes of trade, it has not done so, and to confuse such an identification with one such as has been created here is to confuse a part with the whole. The established identification, in none of its forms, is identical with defendant’s name. Between the two the probability' of confusion is remote. Plaintiff has abandoned the right of exclusive use of its name by conducting its business in this manner.
The probability of confusion is reduced further by the experienced and discriminating character of the clientele to which defendant and the plaintiff’s combination appeal, and by the care defendant has taken to add distinguishing matter to its name in publicity and solicitation. Occasional misunderstanding may occur despite these precautions. But there is nothing to show probability of more than that, and in itself that does not justify the drastic relief here sought. The advantage to plaintiff, except to exclude a competitor, which it is not entitled to do, would be slight; the detriment to defendant great-. Further distinguishing identification is not asked, nor does it appear to be necessary at this time.
A further reason for denying relief is that, if granted, it would restrain defendant, in effect, from competing in its name not only with plaintiff, but also with each of plaintiff’s corporate associates, neither of which has any semblance of right to such protection otherwise than by virtue of its association with plaintiff. The injunction would accomplish too much. The incorporation laws were not intended to permit a single enterprise by mere incorporation to preempt three, if not four, distinct corporate names. Nor is it the function of a court of equity to employ its remedies to enable such an enterprise to use each of its available names as a sword for conquering territory of competitors, and as a shield to protect its own from invasion. To do so would extend the boundaries of unfair trade beyond borders heretofore established or presently desirable.
We have made no point of the fact that plaintiff’s name appears to be composed of generic words, which could not be registered as a trade-mark and which considerable authority indicates cannot be. appropriated exclusively by incorporation. Nor do we think it material that defendant is a foreign corporation competing with domestic ones, since the District of Columbia has no statute placing the former on a peculiar basis and we deem the case to be governed by conceptions of unfair trade, which make no distinction in this respect between domestic and foreign companies.
Plaintiff’s disability, if peculiar, is the result of its own peculiar action. It has had the benefit of the “working agreement”. Likewise, it must accept the burdens incident to it.
Affirmed.
Plaintiff and its associates, as well as the public, use these designations.
In view of the original form of plaintiff’s name, including the words “and Guaranty” until 1922, when the “working agreement” gave rise to the combined forms of designation. Some correspondence is addressed to plaintiff in its own name, but much of that referred to in evidence was written by plaintiff’s officers or directors, or concerns with which they are associated. In a few instances mail intended for defendant has been delivered to plaintiff. Of. note 49, infra. Plaintiff’s internal dealings, i. e., those involving communications with its shareholders, as in regard to dividends, financial reports, etc., are made in its own name, as, of course, are payments of its taxes, etc. The overwhelming evidence, however, sustains the finding that plaintiff is not known generally by the public purchasing title service as a separate, independent concern doing business in its present and separate corporate name.
Evidence of actual injury hardly could have been produced, since the bill was filed less than a month after the Washington branch office was opened.
During four and one-half years, 1934-1938, plaintiff and its associated corporations issued 39,445 certificates of title and 1,349 insurance policies.
Defendant places some emphasis upon the technical differences in liability, asserting also that its business is insurance and that of plaintiff the practice of law. Important as such differences may be for other purposes, they cannot negative the very real competitive consequences of each type of activity for the other.
The conception of unfair trade no longer is limited to competition in the sale of identical or similar products. “Any act committed by the junior corporation which would cause damage to the credit, or reputation for integrity and fair dealing of the senior corporation, if committed by the latter, would injure it if the public, because of the similarity of tile names, should attribute such act to the senior corporation.” Standard Oil Co. of New Mexico, Inc. v. Standard Oil Co. of California, 10 Cir., 1932, 56 F.2d 973, 977, and authorities cited, particularly in note 1. Cf. Ralston Purina Co. v. Saniwax Paper Co., D.C.W.D.Mich., 1928, 26 F.2d 941; 6 Fletcher Cyc. Corp. (Perm.Bd.) § 2432; Nims, Unfair Competition and Trade-Marks (3d Ed.1929) § 9a.
Cf. Handler & Pickett, Trade-Marks and Trade Names (1930) 30 Col.L.Rev. 168, 759 at 769-777; Annotation 66 A. L.R. 948, 954-957. But see Eastern Const Co., Inc. v. Eastern Engineering Corp., 1927, 246 N.X. 459, 159 N.E. 397, 399. Apparently the absence of subjectively fraudulent motive cannot overcome a confusing effect created by identity or similarity of name; but the presence of one conduces to aid the court in finding that such an effect exists.
Cf. Nims, op. cit supra note 5, c. 2; and notes 30-32, infra.
Cf. note 12, infra.
Cf. note 24, infra.
Act of Feb. 20, 1905, 33 Stat. 724, c. 592, 15 U.S.C.A. § 81 et seq. Section 5 forbids registration of a “mark which consists merely in the name of an individual, firm, corporation, or association, not written, printed, impressed, or woven in some particular or distinctive manner or in association with a portrait of the individual”. 34 Stat. 1251, c. 2573 (1907). Cf. The Asbestone Co. v. Philip Carey Mfg. Co., 1914, 41 App.D.C. 507; Mansfield Tire & Rubber Co. v. Ford Motor Co., 1915, 44 App.D.C. 205; Howard Co. v. Baldwin Co., 1919, 48 App.D.C. 437. It has been asserted that Congress had the common law principles of unfair competition in mind when it enacted the Trade-Mark Act. Sutherland, J., in American Steel Foundries v. Robertson, 1926, 269 U.S. 372, 381, 46 S.Ct. 160, 162, 70 L.Ed. 317, a dictum going so far as to confine the power of Congress to legislate regarding “the substantive law of trade-marks” to the supposedly prevailing general law of unfair competition.
The District has no statute, such as is common elsewhere [cf. 6 Fletcher Cyc. Corp. (Perm.Ed.) 12 notes 56 et seq.; 66 A.L.R. 948, 951], prohibiting incorporators to adopt a name identical with that of an existing corporation or so similar as to mislead or cause confusion to the public. It is questionable whether such acts do more than codify, for purposes of incorporation, the common law of unfair trade [cf. (1932) 20 Calif.L.Rev. 633, 634 n. 8; notes 12, 14, 22 and 32, infra] or have application to foreign corporations. They are obviously akin to Section 5 of the TradeMark Act (cf. the preceding note) in protecting the corporate name.
“It cannot be the law that three or more persons may, either under our general corporation law or by special act of the Legislature, become incorporated by any name which they may select for the purpose of engaging in some branch of trade or manufacture, and thereby, without engaging in the business of buying, selling, of manufacturing the article or product named in its charter, acquire a perpetual monopoly in the corporate name.” [Italics supplied] Blackwell’s Durham Tobacco Co. v. American Tobacco Co., 1907, 145 N.C. 367, 59 S. E. 123, 126, 127. To the same effect are Grand Lodge v. Graham, 1896, 86 Iowa 592, 65 N.W. 837, 31 L.R.A. 133; Rodseth v. Northwestern Marble Works, 1915, 129 Minn. 472, 152 N.W. 8S5, Ann.Cas.l917A, 257; Waterman Co. v. Modern Pen Co., 1914, 235 U.S. 88, 35 S.Ct. 91, 59 L.Ed. 142. Cf. 6 Fletcher Cyc. Corp. (Perm.Ed.) § 2425 notes 38-40 (distinguishing cases arising under the statutes referred to in the preceding note and those not involving legislation), also §§ 2426, 2429 n. 84, and 2419 n. 51; Nims, op. cit. supra note 5, § 83; (1932) 20 Calif.L.Rev. 633 n. 4; 66 A.L.R. 948, 953. “The name is not imposed by the law, but is chosen by the incorporators. With that selection the sovereignty of the state has nothing to do. * * * The sovereign by the act of incorporation adjudges neither the legality of the business proposed, nor of the name assumed.” The Peck Brothers & Co. v. Peck Bros. Co., 7 Cir., 1902, 113 F. 291, 300,62 L.R.A. 81, certiorari denied, 1902, 187 U.S. 643, 23 S.Ct. 843, 47 L.Ed. 346; 6 Fletcher, supra, § 2415.
Incorporation, like registration of a trade-mark, should preempt the name (if it is susceptible to preemption; cf. notes 32 and 53, infra) for a reasonable period in which to allow business to begin. Cf. Drugs Consolidated, Inc., v. Drug Incorporated, 1929, 16 Del.Ch. 240, 144 A. 656. To this extent incorporation and registration take the place of user in the case of a trade name. Preemption for such a period is not the equivalent of perpetual monopoly without use in trade.
Broadly such uses, though nonexclusive, may be considered “property”, since others cannot deprive the corporation; of them. Cf. notes 16 and 47, infra.
Either pursuant to statute (cf. note 11, supra) or possibly in the absence of one [cf. 6 Fletcher Cyc. Corp. (Perm. Ed.) § 2419 n. 58]. Authority actually sustaining the specific point is surprisingly small [cf. id. § 2419 notes 58, 59 and 61; (1932) 20 Calif.L.Rev. 633], probably because incorporation usually can be completed before preventive proceedings can be instituted. Some conflict appears as to injunctive interference with the statutory officer’s determination of similarity (6 Fletcher, supra, § 2419 notes 61 and 62), but in any event it is reviewable judicially (id. § 2419 notes 67 and 68). Protection against trade-mark registration has been much more clear-cut. Cf. the decisions of this court cited in note 10, supra.
Dyment v. Lewis, 1909, 144 Iowa 509, 123 N.W. 244, 26 L.R.A.,N.S., 73; Children’s Bootery v. Sutker, 1926, 91 Fla. 60, 107 So. 345, 44 A.L.R. 698; Pettes v. American Watchman’s Clock Co., 1903, 89 App.Div. 345, 85 N.Y.S. 900; Eastern Outfitting Co. v. Manheim, 1910, 59 Wash. 428, 110 P. 23, 35 L.R. A.,N.S., 251.
See the authorities cited in 6 Fletcher Cyc. Corp. (Perm.Ed.) §§ 2422, 2424 n. 17; 66 A.L.R. 948, 1022 et seq.
See note 47, infra.
Cf. John B. Stetson Co. v. Stephen L. Stetson Co., Ltd,, 2 Cir., 1936, 85 F. 2d 586, certiorari denied, 1936, 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446; Waterman Co. v. Modern Pen Co., 1914, 235 U.S. 88, 35 S.Ct. 91, 59 L.Ed. 142; Federal Securities Co. v. Federal Securities Corp., 1929, 129 Ore. 375, 276 P. 1100, 66 A.L.R. 984; Investor Pub. Co. of Mass. v. Dobinson, C.C.S.D.Cal.1897, 82 F. 56; Chickering v. Chickering & Sons, 7 Cir. 1914, 215 F. 490; Farmers’ Loan & Trust Co. v. Farmers’ Loan & Trust Co. of Kansas, Sup.Ct.1888, 21 Abb.N. C. 104, 1 N.Y.S.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Shirley J. HARRIS, Appellant, v. UNITED STATES of America, Appellee.
No. 9354.
United States Court of Appeals Tenth Circuit.
Oct. 17, 1967.
Rehearing Denied Nov. 24, 1967.
Sid White, Oklahoma City, Okl., for appellant.
John E. Green, Oklahoma City, Okl., for appellee.
Before PHILLIPS, JONES and LEWIS, Circuit Judges.
Of the Fifth Circuit, sitting by designation.
PER CURIAM:
Shirley J. Harris has appealed from a judgment forfeiting an automobile and its tools and appliances on a libel filed under 26 U.S.C.A. §§ 7302 and 7323, which charged they were property unlawfully possessed for intended use in violating the provisions of the internal revenue laws of the United States and had been so used. Appellant has not filed a brief. On oral argument, counsel for appellant appeared and belatedly asserted that the record in a subsequent criminal proceeding would show the use of the vehicle on a particular occasion was the result of entrapment by federal officers. Counsel admitted that in such proceeding the defense of entrapment failed and the defendant was convicted.
The trial court in the libel proceeding found that the vehicle was unlawfully possessed for intended use in violation of the internal revenue laws of the United States and had been so used.
The record is wholly devoid of any evidence of entrapment and the findings of possession, intended use and actual use of the vehicle in violating the internal revenue laws of the United States are amply supported by the evidence.
Hence, the judgment must be and it is affirmed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
Charles W. HARRIS, Jr., Plaintiff-Appellant, v. LOCKHEED AIRCRAFT CORPORATION, Defendant-Appellee.
No. 76-1725.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 30, 1977.
Decided Feb. 28, 1978.
B. Stewart Jenkins, Crutchfield, Moore & Jenkins, Chattanooga, Tenn., for plaintiff-appellant.
Charles W. Lusk, Jr., Hall, Haynes, Lusk & Foster, Chattanooga, Tenn., for defendant-appellee.
Before PHILLIPS, Chief Judge, and PECK and KEITH, Circuit Judges.
PHILLIPS, Chief Judge.
This appeal involves the amount of retirement benefits to be paid to employees of the Lockheed Aircraft Corporation at the plant in Chattanooga, Tennessee. District Judge Timothy S. Hogan held that the Chattanooga employees are entitled only to benefits provided by their own collective bargaining agreement. Appellant in this class action for declaratory judgment contends that the Chattanooga employees are entitled to more liberal benefits negotiated by another union and its locals at other Lockheed plants.
We affirm.
Lockheed purchased its Chattanooga plant on February 11, 1966, from Wheland Division of Gordan Street, Inc. At the time of the purchase, a collective bargaining agreement was in effect between Wheland and Local Union No. 176 of the International Union, Allied Industrial Workers of America, AFL-CIO (AIWA) (hereinafter sometimes referred to as Local 176). Local 176 continued to represent the employees of the Chattanooga facility after the purchase by Lockheed. By an exchange of letters on January 20, 1966, and January 25, 1966, shortly before the Lockheed purchase, Lockheed agreed that it would assume and be bound by the provisions of the then existing collective bargaining agreement between Wheland and Local 176 of the AIWA.
During the fall of 1967, negotiations were conducted between Local 176 and Lockheed in regard to amendments and changes to the collective bargaining agreement (hereinafter sometimes referred to as the agreement), effective November 13, 1967, through July 31, 1970. Although the agreement noted that “the Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees” (hereinafter sometimes referred to as Retirement Plan) would be extended to employees at the Chattanooga plant, a separate “Agreement for a Retirement Plan” was entered into by the parties on the same date regarding the Retirement Plan. This second agreement of November 13, 1967, provided in part:
[T]he provisions of said Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees as that plan is in effect on December 25, 1967, shall be made available, effective December 25, 1967, with the exceptions provided below for amendment of said Retirement Plan as it applies to employees covered by the collective bargaining agreement of November 13, 1967, between the Company and the Union.
* * * * * *
This Agreement shall, for its duration, constitute the sole Agreement between the Company and the Union with respect to a retirement plan and a medical benefit plan.
* * * * * *
This Agreement shall remain in effect for the same period as the collective bargaining agreement of November 13,1967, between the Company and the Union and may be opened for modification, amendment, or termination at the same time and under the same conditions as provided for in said collective bargaining agreement of November 13, 1967.
In order to implement the benefits of the retirement plan agreements between Local 176 of the AIWA and Lockheed, the Board of Directors of Lockheed adopted an amendment, effective December 25,1967, to the “Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees.” This amendment was attached to a booklet entitled “Lockheed Retirement Plan for Hourly Employees” distributed to employees at the Chattanooga plant.
Desiring to avoid labor disruption as the July 31, 1970 termination date approached, Lockheed and Local 176 began extensive collective bargaining negotiations in the spring of 1970. The district court found that the subject of improving retirement benefits was raised by the Union and was the subject of conscious and serious negotiations between the Union and the employer. This finding is fully supported by the record.
During the 1970 negotiations, Lockheed contended that the costs incurred by it in improving retirement benefits would be substantially higher than the benefit that would be realized by a majority of the Chattanooga employees. Judge Hogan made findings of fact that, after extensive negotiations, “the union dropped the pension retirement change matter”; that the Union and Lockheed “in 1970 considered and rejected what the plaintiffs in this case seeks”; and that the 1970 collective bargaining agreement did not contain any provision for increased retirement benefits.
The argument of appellant focuses, not on the agreements between Local 176 and AIWA and Lockheed, but on agreements between Lockheed and other unions. Of the estimated 30,000 workers in Lockheed plants over the world, only the approximately 150 workers at the Chattanooga plant are represented by the International Union, Allied Industrial Workers of America, AFL-CIO (AIWA). Most of the Lockheed employees at other plants are represented by the International Association of Machinists and Aerospace Workers (hereinafter referred to as IAM & AW).
During the period between November 13, 1967, and August 1,1970, numerous individual local unions of the IAM & AW at Lockheed locations around the world negotiated agreements with Lockheed improving the retirement benefits specified in the “Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees.” In spite of the fact that those agreements were entered into between Lockheed and the particular local union negotiating the increased retirement benefits, appellant contends that Lockheed has only one retirement plan and that when one union negotiates an increase in retirement benefits for its members, the increased benefits should be available to Lockheed employees at all locations.
We agree with the district court that appellant’s contention is without merit. Although Lockheed has only one retirement plan, entitled “Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees,” appellant’s argument fails to take into account the fact that local unions representing employees at individual Lockheed plants have negotiated separately for the benefits that their own union members will receive under the Lockheed retirement plan.
The district court found that during the years 1968 and 1969, Lockheed entered into at least 18 separate agreements with different locals pertaining to increasing retirement benefits. Although many of these agreements were substantially identical, each agreement referred exclusively to the individual local union negotiating the agreement. From the standpoint of the local unions, it was clear that each of them bargained for the increased retirement benefits of its own members; otherwise, 18 separate agreements would not have been necessary. Judge Hogan said in its findings of fact:
It is difficult to understand why it would be necessary for each separate union to enter into a separate agreement if the plaintiffs’ interpretation of the agreement is correct — i. e., that an amendment negotiated by one union applied to all.
Generally, a certified union is authorized to bargain only for those employees in the appropriate bargaining unit. See Local 620, Allied Industrial Workers of America, AFL-CIO v. N. L. R. B., 375 F.2d 707, 710 (6th Cir. 1967). See also N. L. R. B. v. Security-Columbian Banknote Co., 541 F.2d 135 (3rd Cir. 1976); N. L. R. B. v. Food Employers Council, Inc., 399 F.2d 501 (9th Cir. 1968); 29 U.S.C. § 159(b) (1973).
The agreements entered into between Lockheed and Local 176 of the AIWA indicate that the parties intended that the retirement benefits remain as specified in the November 13, 1967 “Agreement for a Retirement Plan” and the amendment to the retirement plan effective December 25, 1967. This 1967 agreement stated that modification, amendment or termination of the agreement would be under the same conditions as the other agreement of November 13, 1967, the formal collective bargaining agreement. Although the formal agreement required a 60 to 90 day written notice by either party of its desire to alter the agreement, no modification notice was given by either party regarding the “Agreement for a Retirement Plan.”
The district court found that the August 1,1970 collective bargaining agreement recognized that the 1967 Agreement for a Retirement Plan governed appellant’s retirement benefits. We agree with the district court that “this is basically a simple contract case” and that the contract is not ambiguous. Assuming that the agreement between Lockheed and Local 176 was ambiguous, this court has said in Rudd-Meliki-an, Inc. v. Merritt, 282 F.2d 924, 928 (6th Cir. 1960):
A contract is to be construed as a whole so as to ascertain and give effect to the true intent of the parties, and the circumstances under which the contract was executed and the conduct of the parties thereafter can be considered by the Court in determining what their intention was, without it being a violation of the parol evidence rule. * * *
In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is given great weight by the Court, not to vary the terms of the written instrument, but to make definite that which the wording of the contract has left indefinite (citations omitted).
The actions of the parties and the language of the 1970 agreement convinced Judge Hogan that the retirement plan as it existed December 25, 1967, governed the amount of retirement benefits to which employees at the Chattanooga plant are entitled, and that “the amendments to the retirement plan negotiated by other unions at other facilities did not apply to the plaintiff” and other employees at the Chattanooga plant. We conclude that the findings of fact of Judge Hogan are not clearly erroneous, Fed.R.Civ.P. 52(a), and that his conclusions of law are correct.
Affirméd.
. Of the Southern District of Ohio, sitting by designation.
. The agreement provided that it would be renewed automatically from year to year after July 31, 1970, unless at least 60 days and no more than 90 days before the termination of the agreement, either party notified the other of their intent to amend, add to or terminate the agreement.
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_treat
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WESTERN MEAT PACKERS, INC., Respondent.
No. 8084.
United States Court oí Appeals Tenth Circuit.
Sept. 7, 1965.
Margaret M. Farmer, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and Melvin Pollack, Washington, D. C., were with her on the brief), for petitioner.
Harold B. Wagner, Denver, Colo., for respondent.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.
The National Labor Relations Board seeks enforcement of its order requiring respondent to bargain collectively with the Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 634, AFL-CIO, as the duly designated bargaining representative of respondent’s employees. The order provides for other customary remedial requirements and is based upon a Board finding that respondent violated section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain collectively with the Union on or after April 25, 1963. Resistance to enforcement of the subject order is centered around the contention that the Union has never been validly designated as, and is not, the bargaining agent for respondent’s employees.
Respondent is a processor of meat and meat products with principal place of business at Grand Junction, Colorado. On March 12, 1962, the Union filed a representation petition with the Regional Director of the Board seeking certification as the bargaining agent for respondent’s employees. Upon being informed by the Director that the Board lacked jurisdiction because respondent was engaged in purely intrastate business, this petition was withdrawn. The Union then filed a similar petition with the Industrial Commission of Colorado seeking, under the compulsion of the Colorado Labor Peace Act, an election to determine a collective bargaining representative. In compliance with the petition, the Colorado Commission conducted such Ian election on April 11,1962. The Union [lost this election.
On July 2, 1962, respondent received a federal meat inspection license and thereafter made out of state sales in excess of $110,000 per annum, thus becoming engaged in interstate commerce on and after such date. However, in October 1962 the Union again petitioned the Colorado Industrial Commission to conduct an election pursuant to the provisions of the Colorado Labor Peace Act. Such election was held on October 30 and 31, 1962, the Union won, and on November 5, 1962, the Colorado Commission certified the Union as the bargaining representative for respondent’s employees.
From November 29, 1962, until about September 16, 1963, the parties engaged in on-again off-again bargaining sessions and negotiated successfully upon some proposals. On the latter date (some two months after the last previous contact between the parties) respondent’s manager informed the Union that because the company was now engaged in interstate commerce, and for other reasons, a new election should be held and if the Union was successful a contract would be negotiated. The instant charge was almost immediately filed by the Union and, after a full hearing, the Board found that respondent had violated the National Labor Relations Act by refusing to bargain. The finding is dependent upon the validity of the Board’s conclusion that the Union was the lawful bargaining representative of respondent’s employees on and after October 31, 1962, the date of the second election conducted by the Colorado Industrial Commission.
Although the National Labor Relations Act has provided a formal mode for selection and rejection of bargaining agents through Board conducted elections, it does not provide that a union’s majority status may not be established by other means. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72, 76 S.Ct. 559, 100 L.Ed. 941. The Board, accordingly, has credited the results of state-conducted elections where such elections contained no irregularities and were sheltered by procedural safeguards of secrecy and fairness. The West Indian Co., 129 NLRB 1203; Bluefield Produce & Provision Co., 117 NLRB 1660; Olin Mathieson Chemical Corp., 115 NLRB 1501; T-H Products Co., 113 NLRB 1246. In its present petition the Board proceeds from the premise that the second state-conducted election was properly managed and properly reflected the will of respondent’s employees and did, therefore, establish a bargaining agent which the Board could jurisdictionally recognize. We do not think the Board’s decision gives proper recognition to the mandate of See. 9(c) (3) of the Act which has fixed the spacing of elections. Section 9(c) (3) provides in pertinent part:
“No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.”
The first state election, conducted April 11, 1962, was admittedly valid both procedurally and jurisdiction-ally. Respondent was then engaged only in intrastate commerce and the Board had specifically denied its own jurisdiction because of that fact. But the second state election, conducted six months later, was valid only in the sense that it was fairly conducted and not in direct contravention of state law. This election was not held by agreement or consent. Nor was it jurisdictionally valid for respondent was then engaged in interstate commerce and exclusive jurisdiction of its labor relations lay in the National Labor Relations Act and with the Board. San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; Garner v. Teamsters, Chauffeurs, etc. Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228. While the Board has at least once accorded validity, despite preemption, to a consent election conducted by an outside governmental agency (Department of Labor of the Virgin Islands) it has at the same time recognized the impact of Sec. 9(c) (3) in its decision, West Indian Co., 129 NLRB 1203, and has only accorded the same effect to the results of state elections as it would to an election conducted by the Board itself. T-H Products Co., 113 NLRB 1246. In the case at bar the second state election was not by consent but upon Union petition; and had that petition been directed to the Board it would have admittedly been denied as prohibited by the 12-month election spacing period compelled by Sec. 9(c) (3) after the first and valid election of April 11. We hold that the Board, having jurisdiction, cannot compel recognition of a bargaining agent selected without the parties’ consent through indirect procedures which the Board could not directly initiate under the provisions of the National Act.
We also find wanting the argument of Board’s counsel that respondent has waived the right to question the effect of the state certification of the Union by bargaining with the Union. The de-cisión of the Board is not premised upon waiver but upon what we hold to be an erroneous conclusion that the second state election was valid. Nor does the record contain evidence of an intentional relinquishment of a known right; to the contrary, the alleged unfair labor practice occurred while respondent was unadvised by counsel and under the shadow of state compulsion.
Enforcement is denied.
. Now codified as 80-4-1 to 22, Colo.Rev.Statutes, 1963.
. The Colorado Labor Peace Act provides in part: “The fact that one election has been held shall not prevent the holding of another election among the same group of employees, provided that it appears to the commission that sufficient reason therefor exists.” 80-4r-5(4), Colo.Rev. Statutes, 1963.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Plaintiff-Appellee, v. James INENDINO, Defendant-Appellant.
No. 80-2519.
United States Court of Appeals, Seventh Circuit.
Argued May 13, 1981.
Decided July 28, 1981.
Rehearing and Rehearing En Banc Denied Nov. 2,1981.
Jeffrey B. Steinback, Chicago, 111., for defendant-appellant.
Jeffrey M. Johnson, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
Before SWYGERT, Senior Circuit Judge, NICHOLS, Judge, and BAUER, Circuit Judge.
. The Honorable Philip Nichols, Jr., Judge, United States Court of Claims, is sitting by designation.
SWYGERT, Senior Circuit Judge.
This appeal presents a question of first impression in this circuit which concerns the extent of a district court’s jurisdiction over a Rule 35 motion for reduction of sentence. We affirm the district court’s holding that it does not have jurisdiction to consider new evidence offered in a motion to reconsider denial of a Rule 35 motion filed beyond the 120-day limit in the rule.
On February 11, 1980, defendant-appellant James Inendino pled guilty to two counts of an indictment that charged a series of loansharking offenses. He was sentenced on March 14, 1980, to five years’ imprisonment on one count and five concurrent years of probation on the other. On June 30, 1980, 108 days after sentence was imposed, the court received a letter from Inendino, in which he requested the court to consider his letter as a motion to reduce sentence under Rule 35. Inendino attached as supporting exhibits several letters from, among others, his wife, his pastor, and his probation officer. After the Government filed its response, the court denied Inendi-no’s motion on July 15,1980, 123 days after sentencing.
On August 26, 1980, 165 days after sentence was imposed, Inendino filed a motion for reconsideration of his earlier motion, to which he attached new evidence relating to his prison behavior and adjustment that had not been included in the original motion. After having heard oral argument on this motion, the court on September 22, 1980, 192 days after sentencing, held that because the motion for reconsideration was filed more than 120 days after sentencing, it could consider only that evidence which had been presented with the original motion. It therefore denied the reconsideration motion for the reasons stated in its order denying the first motion.
Inendino does not appeal the denial of his original Rule 35 motion, which could not be overturned absent a clear abuse of discretion; nor does he argue that the court abused its discretion in denying his motion for reconsideration. He contends here only that the district court erred as a matter of law in holding that it could not consider the new evidence presented with the second motion.
Rule 35 does not refer to any time period during which a defendant must make his motion to reduce sentence. It imposes instead a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional, United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979) (dictum), and it may not be extended at the discretion of the district court. The purpose of the rule is to protect the district court from recurrent requests from defendants to reconsider their sentence and to prevent the courts from becoming an alternative to the Parole Commission as a means of release from custody. The rule also recognizes the natural tendency of judges to become more lenient as the evidence of wrongdoing presented at trial becomes more remote.
Despite the framing of the time limitation as one on the judge’s ability to act and not on the defendant’s ability to file the motion, courts have inferred an extension of jurisdiction for a reasonable period of time beyond the 120 days in order to consider a motion filed within that time period. The courts have created this exception so that defendants would not be penalized for delays that may result from a judge’s absence, incapacity or preoccupation with, an overcrowded calendar. Inendino argues that because the courts have judicially so altered Rule 35, the 120-day limit is not a strict delineation of jurisdiction. If courts have a reasonable time beyond 120 days to decide a timely-filed motion, he reasons, then they should also be able to consider a motion to reconsider a denial of a timely-filed motion.
The reasoning behind this extension of time does not apply to the situation in this case. While the exception was created to protect defendants from delays beyond their control, the blame for the lapse in time in this case rests squarely on defendant’s shoulders. He did not file his original Rule 35 motion until 108 days after sentencing, which did not leave the district court much time to consider it. The court acted with commendable speed, as it received a Government response and ruled on the motion within fifteen days. Furthermore, three of the four principal pieces of evidence that were presented with the motion to reconsider were available at the time of the original motion and could have been discovered with due diligence by that time.
For the above reasons, and for the salutary effects described above, supra p. 109, of a definite termination of jurisdiction, courts have held that a subsequent motion cannot revitalize a Rule 35 motion that had been filed on time and denied. In United States v. Hetrick, 644 F.2d 752 (9th Cir. 1980), the court held that the district court did not have jurisdiction to consider a motion for reconsideration filed beyond the 120-day limit and therefore reversed an order reducing defendant’s sentence. The court declared, id. at 756, “The timely filing of a Rule 35 motion does not give a district court jurisdiction to entertain subsequent, untimely Rule 35 motions. The second motion will not be deemed to relate back to the first motion.” See United States v. United States District Court, 509 F.2d 1352 (9th Cir.), cert. denied, sub nom. Rosselli v. United States, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975).
One of the purposes of Rule 35 is to permit defendants to present new evidence not available at the time of sentencing, and a defendant may do so in motion to reconsider denial of a Rule 35 motion, but that evidence must be presented within the 120-day limit established in the rule. A defendant can easily avoid a situation such as occurred in this case by filing his Rule 35 motion within the first sixty days after sentencing. The court would then have adequate time to decide the motion before the expiration of its jurisdiction, and the defendant would probably even have time to file a motion for reconsideration within the 120-day time period.
We therefore affirm the district court’s holding that it did not have jurisdiction to consider the new evidence presented in the untimely motion to reconsider its denial of Inendino’s Rule 35 motion.
AFFIRMED.
. Rule 35, Fed.R.Crim.P., reads in relevant part:
The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.
. Specifically, the indictment alleged a conspiracy to conduct the affairs of an enterprise through the collection of unlawful debts, 18 U.S.C. § 1962(c) and (d), the making and collection of extensions of credit by extortionate means, 18 U.S.C. §§ 892 and 894, and obstruction of justice, 18 U.S.C. § 1503.
. These sentences are to run consecutively to other consecutive sentences imposed for two separate convictions in 1978. Inendino must first serve a five-year sentence for his involvement in a scheme to defraud a life insurance company of a half-million dollars. This sentence will be followed by a 20-year term imposed under the Dangerous Special Offender Statute, 18 U.S.C. § 3575 (1976). See United States v. Inendino, 463 F.Supp. 252 (N.D.Ill. 1978), aff'd, 604 F.2d 458 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979).
. These materials included a Bureau of Prisons memorandum from the Bureau’s Springfield Medical Center, dated October 22, 1979; a recommendation for meritorious good time from the Metropolitan Correctional Center, dated September 30, 1978; a United States Government memorandum, dated June 26, 1980; and a Bureau of Prisons extra good time recommendation, dated July 14, 1980. Only the last item was unavailable to Inendino at the time of the original motion.
. The court’s order read in relevant part,
Regarding Defendant Inendino’s motion for reconsideration of the denial of his earlier Rule 35 motion, because this motion was filed more than 120 days after the Defendant’s sentence was imposed, the court has jurisdiction to review only those portions of it which relate to the arguments and evidence presented previously, [citations omitted] That being so, because consideration cannot be given to the new materials he has presented, Defendant Inendino’s motion for reconsideration is denied for the reasons stated in this court’s prior order.
. See, e. g., Government of Virgin Islands v. Gereau, 603 F.2d 438, 443 (3d Cir. 1979).
. See n.2, supra.
. See also United States v. Braasch, 542 F.2d 442 (7th Cir. 1976); United States v. Mariano, 646 F.2d 856 (3d Cir. 1981); United States v. DeLutro, 617 F.2d 316 (2d Cir. 1980); United States v. Isaacs, 392 F.Supp. 597 (N.D.Ill.1975); Quinn v. Hunter, 162 F.2d 644 (7th Cir. 1947).
. Fed.R.App.P. 45(b).
. United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir. 1975); United States v. United States District Court, 509 F.2d 1352, 1356 (9th Cir. 1975). See 8A Moore’s Federal Practice— Criminal Rules j| 35.02[1], n.4 (1980 ed.) (“Some limitation on the court’s power seems to be necessary, for after a lapse of time the peculiar ability of the court to determine sentence gives way to the presumably greater competence, and knowledge, of penal authorities.”).
. See, e. g., United States v. Stollings, supra; United States v. Mendoza, 565 F.2d 1285 (5th Cir.), modified, 581 F.2d 89 (1978); United States v. Williams, 573 F.2d 527 (8th Cir. 1978); United States v. Leyvas, 371 F.2d 714 (9th Cir. 1967).
. See also United States v. Dansker, 581 F.2d 69, 72 (3d Cir. 1978).
. United States v. Ginzburg, 398 F.2d 52 (3d Cir. 1968) (en banc), cert. denied, 403 U.S. 931, 91 S.Ct. 2252, 29 L.Ed.2d 709 (1971).
. Inendino also moved to have his sentence modified to the extent allowable under 18 U.S.C. § 4205(b)(2). Because motions to modify sentences under that statutory section are governed by Rule 35, United States v. Regan, 503 F.2,d 234, 237-38 (8th Cir. 1974), that motion was as untimely as his Rule 35 motion. We therefore affirm its denial as well.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Aundra O. MAGEE, Defendant-Appellant.
No. 78-5089.
United States Court of Appeals, Sixth Circuit.
Submitted Oct. 13, 1978.
Decided Nov. 2, 1978.
John D. O’Connell, Detroit, Mich. (Court-appointed-CJA), for defendant-appellant.
James K. Robinson, U. S. Atty., Ellen Ritteman, Detroit, Mich., for plaintiff-appellee.
Before WEICK and EDWARDS, Circuit Judges, and LAWRENCE, District Judge.
Honorable Alexander A. Lawrence, United States District Judge for the Southern District of Georgia, sitting by designation.
PER CURIAM.
Appellant Magee seeks reversal after a conviction by a jury on one count of smuggling goods into the United States, in violation of 18 U.S.C. § 545 (1976), and an additional count of conspiracy to do so under 18 U.S.C. § 371 (1976).
The evidence at trial showed that Magee, traveling in a car driven by one Jenkins, sought to enter the United States from Canada after Jenkins had told the customs inspector that they had nothing to declare. On inspection, $1,400 worth of clothes, which Magee admitted he had purchased in Canada, were discovered.
Appellant’s principal argument on appeal is that the regulation of the Customs Service was so overbroad and vague as to deny him due process. Our review of the statute, 18 U.S.C. § 545 and two regulations, 19 C.F.R. § 148.11 and 19 C.F.R. § 123.3, indicates no such lack of specificity or overbreadth.
Further, the District Judge did not err in admitting statements of Magee’s co-conspirator, Jenkins, and there was ample evidence to corroborate defendant’s own admissions.
The judgments of conviction are affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
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.
SHAPERO v. KENTUCKY BAR ASSOCIATION
No. 87-16.
Argued March 1, 1988
Decided June 13, 1988
Brennan, J., announced the judgment of the Court and delivered the opinion of the Court with respects to Parts I and II, in which White, Marshall, Bláckmun, Stevens, and Kennedy, JJ., joined, and an opinion with respect to Part III, in which Marshall, Blackmun, and Kennedy, JJ., joined. White, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined, post, p. 480. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 480.
Donald, L. Cox argued the cause for petitioner. With him on the briefs was Mary Janice Lintner.
Frank P. Doheny, Jr., argued the cause for respondent. With him on the brief was Joseph L. Lenihan
Briefs of amici curiae urging affirmance were filed for the Academy of Florida Trial Lawyers by C. Rufus Pennington III; for the American Bar Association by Robert MacCrate, Michael Franck, and George Kuhlman; for the Association of Trial Lawyers of America by Jeffrey Robert White; and for the Florida Bar by Barry Richard and Ray Ferrero, Jr.
Justice Brennan
announced the judgment of the Court and delivered the opinion of the Court as to Parts I and II and an opinion as to Part III in which Justice Marshall, Justice Blackmun, and Justice Kennedy join.
This case presents the issue whether a State may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.
hH
In 1985, petitioner, a member of Kentucky’s integrated Bar Association, see Ky. Sup. Ct. Rule 3.030 (1988), applied to the Kentucky Attorneys Advertising Commission for approval of a letter that he proposed to send “to potential clients who have had a foreclosure suit filed against them.” The proposed letter read as follows:
“It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them.
“You may call my office anytime from 8:30 a. m. to 5:00 p. m. for FREE information on how you can keep your home.
“Call NOW, don’t wait. It may surprise you what I may be able to do for you. Just call and tell me that you got this letter. Remember it is FREE, there is NO charge for calling.”
The Commission did not find the letter false or misleading. Nevertheless, it declined to approve petitioner’s proposal on the ground that a then-existing Kentucky Supreme Court Rule prohibited the mailing or delivery of written advertisements “precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public.” Ky. Sup. Ct. Rule 3.135(5)(b)(i). The Commission registered its view that Rule 3.135(5)(b)(i)’s ban on targeted, direct-mail advertising violated the First Amendment — specifically the principles enunciated in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985) — and recommended that the Kentucky Supreme Court amend its Rules. See App. to Pet. for Cert. lla-15a. Pursuing the Commission’s suggestion, petitioner petitioned the Committee on Legal Ethics (Ethics Committee) of the Kentucky Bar Association for an advisory opinion as to the Rule’s validity. See Ky. Sup. Ct. Rule 3.530; n. 1, supra. Like the Commission, the Ethics Committee, in an opinion formally adopted by the Board of Governors of the Bar Association, did not find the proposed letter false or misleading, but nonetheless upheld Rule 3.135(5)(b) (i) on the ground that it was consistent with Rule 7.3 of the American Bar Association’s Model Rules of Professional Conduct (1984). App. to Pet. for Cert. 9a.
On review of the Ethics Committée’s advisory opinion, the Kentucky Supreme Court felt “compelled by the decision in Zauderer to order [Rule 3.135(5)(b)(i)] deleted,” 726 S. W. 2d 299, 300 (1987), and replaced it with the ABA’s Rule 7.3, which provides in its entirety:
‘“A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term ‘solicit’ includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.’” 726 S. W. 2d, at 301 (quoting ABA, Model Rule of Professional Conduct 7.3 (1984)).
The court did not specify either the precise infirmity in Rule 3.135(5)(b)(i) or how Rule 7.3 cured it. Rule 7.3, like its predecessor, prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. We granted cer-tiorari to resolve whether such a blanket prohibition is consistent with the First Amendment, made applicable to the States through the Fourteenth Amendment, 484 U. S. 814 (1987), and now reverse.
II
Lawyer advertising is in the category of constitutionally protected commercial speech. See Bates v. State Bar of Arizona, 433 U. S. 350 (1977). The First Amendment principles governing state regulation of lawyer solicitations for pecuniary gain are by now familiar: “Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Zauderer, supra, at 638 (citing Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 566 (1980)). Since state regulation of commercial speech “may extend only as far as the interest it serves,” Central Hudson, supra, at 565, state rules that are designed to prevent the “potential for deception and confusion . . . may be no broader than reasonably necessary to prevent the” perceived evil. In re R. M. J., 455 U. S. 191, 203 (1982).
In Zauderer, application of these principles required that we strike an Ohio rule that categorically prohibited solicitation of legal employment for pecuniary gain through advertisements containing information or advice, even if truthful and nondeceptive, regarding a specific legal problem. We distinguished written advertisements containing such information or advice from in-person solicitation by lawyers for profit, which we held in Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), a State may categorically ban. The “unique features of in-person solicitation by lawyers [that] justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain,” we observed, are “not present” in the context of written advertisements. Zauderer, supra, at 641-642.
Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public. See, e. g., Bates, supra (newspaper advertising); id., at 372, n. 26 (equating advertising in telephone directory with newspaper advertising); In re R. M. J., supra (mailed announcement cards treated same as newspaper and telephone directory advertisements). Thus, Ohio could no more prevent Zauderer from mass-mailing to a general population his offer to represent women injured by the Daikon Shield than it could prohibit his publication of the advertisement in local newspapers. Similarly, if petitioner’s letter is neither false nor deceptive, Kentucky could not constitutionally prohibit him from sending at large an identical letter opening with the query, “Is your home being foreclosed on?,” rather than his observation to the targeted individuals that “It has come to my attention that your home is being foreclosed on.” The drafters of Rule 7.3 apparently appreciated as much, for the Rule exempts from the ban “letters addressed or advertising circulars distributed generally to persons . . . who are so situated that they might in general find such services useful.”
The court below disapproved petitioner’s proposed letter solely because it targeted only persons who were “known to need [the] legal services” offered in his letter, 726 S. W. 2d, at 301, rather than the broader group of persons “so situated that they might in general find such services useful.” Generally, unless the advertiser is inept, the latter group would include members of the former. The only reason to disseminate an advertisement of particular legal services among those persons who are “so situated that they might in general find such services useful” is to reach individuals who actually “need legal services of the kind provided [and advertised] by the lawyer.” But the First Amendment does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable.
The court below did not rely on any such theory. See also Brief for Respondent 37 (conceding that “targeted direct mail advertising” — as distinguished from “solicitation” — “is constitutionally protected”) (emphasis in original). Rather, it concluded that the State’s blanket ban on all targeted, direct-mail solicitation was permissible because of the “serious potential for abuse inherent in direct solicitation by lawyers of potential clients known to need specific legal services.” 726 S. W. 2d, at 301. By analogy to Ohralik, the court observed:
“Such solicitation subjects the prospective client to pressure from a trained lawyer in a direct personal way. It is entirely possible that the potential client may feel overwhelmed by the basic situation which caused the need for the specific legal services and may have seriously impaired capacity for good judgment, sound reason and a natural protective self-interest. Such a condition is full of the possibility of undue influence, overreaching and intimidation.” 726 S. W. 2d, at 301.
Of course, a particular potential client will feel equally “overwhelmed” by his legal troubles and will have the same “impaired capacity for good judgment” regardless of whether a lawyer mails him an untargeted letter or exposes him to a newspaper advertisement — concededly constitutionally protected activities — or instead mails a targeted letter. The relevant inquiry is not whether there exist potential clients whose “condition” makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility. Cf. Ohralik, supra, at 470 (Marshall, J., concurring in part and concurring in judgment) (“What is objectionable about Ohralik’s behavior here is not so much that he solicited business for himself, but rather the circumstances in which he performed that solicitation and the means by which he accomplished it”).
Thus, respondent’s facile suggestion that this case is merely “Ohralik in writing” misses the mark. Brief for Respondent 10. In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference. Our decision in Ohralik that a State could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as “a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud.” Zauderer, 471 U. S., at 641. See Ohralik, 436 U. S., at 457-458, 464-465. Second, “unique . . . difficulties,” Zau-derer, supra, at 641, would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is “not visible or otherwise open to public scrutiny.” Ohralik, 436 U. S., at 466. See also ibid. (“[I]n-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession”) (footnote omitted). Targeted, direct-mail solicitation is distinguishable from the in-person solicitation in each respect.
Like print advertising, petitioner’s letter — and targeted, direct-mail solicitation generally — “poses much less risk of overreaching or undue influence” than does in-person solicitation, Zauderer, 471 U. S., at 642. Neither mode of written communication involves “the coercive force of the personal presence of a trained advocate” or the “pressure on the potential client for an immediate yes-or-no answer to the offer of representation.” Ibid. Unlike the potential client with a badgering advocate breathing down his neck, the recipient of a letter and the “reader of an advertisement. . . can ‘effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes,’” Ohralik, supra, at 465, n. 25 (quoting Cohen v. California, 403 U. S. 15, 21 (1971)). A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded. In short, both types of written solicitation “con-ve[y] information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney.” Zauderer, supra, at 642. Nor does a targeted letter invade the recipient’s privacy any more than does a substantively identical letter mailed at large. The invasion, if any, occurs when the lawyer discovers the recipient’s legal affairs, not when he confronts the recipient with the discovery.
Admittedly, a letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent. It could, in certain circumstances, lead the recipient to overestimate the lawyer’s familiarity with the case or could implicitly suggest that the recipient’s legal problem is more dire than it really is. See Brief for ABA as Amicus Curiae 9. Similarly, an inaccurately targeted letter could lead the recipient to believe she has a legal problem that she does not actually have or, worse yet, could offer erroneous legal advice. See, e. g., Leoni v. State Bar of California, 39 Cal. 3d 609, 619-620, 704 P. 2d 183, 189 (1985), summarily dism’d, 475 U. S. 1001 (1986).
But merely because targeted, direct-mail solicitation presents lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected commercial speech. See In re R. M. J., 455 U. S., at 203. The State can regulate such abuses and minimize mistakes through far less restrictive and more precise means, the most obvious of which is to require the lawyer to file any solicitation letter with a state agency, id., at 206, giving the State ample opportunity to supervise mailings and penalize actual abuses. The “regulatory difficulties” that are “unique” to in-person lawyer solicitation, Zauderer, supra, at 641 — solicitation that is “not visible or otherwise open to public scrutiny” and for which it is “difficult or impossible to obtain reliable proof of what actually took place,” Ohralik, supra, at 466-do not apply to written solicitations. The court below offered no basis for its “belie[f] [that] submission of a blank form letter to the Advertising Commission [does not] pro-vid[e] a suitable protection to the public from overreaching, intimidation or misleading private targeted mail solicitation.” 726 S. W. 2d, at 301. Its concerns were presumably those expressed by the ABA House of Delegates in its comment to Rule 7.3:
“State lawyer discipline agencies struggle for resources to investigate specific complaints, much less for those necessary to screen lawyers’ mail solicitation material. Even if they could examine such materials, agency staff members are unlikely to know anything about the lawyer or about the prospective client’s underlying problem. Without such knowledge they cannot determine whether the lawyer’s representations are misleading.” ABA, Model Rules of Professional Conduct, pp. 93-94 (1984).
The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements. See Bates, 433 U. S., at 379; id:, at 387 (Burger, C. J., concurring in part and dissenting in part) (objecting to “enormous new regulatory burdens called for by” Bates). As a general matter, evaluating a targeted advertisement does not require specific information about the recipient’s identity and legal problems any more than evaluating a newspaper advertisement requires like information about all readers. If the targeted letter specifies facts that relate to particular recipients (e. g., “It has come to my attention that your home is being foreclosed on”), the reviewing agency has innumerable options to minimize mistakes. It might, for example, require the lawyer to prove the truth of the fact stated (by supplying copies of the court documents or material that led the lawyer to the fact); it could require the lawyer to explain briefly how he or she discovered the fact and verified its accuracy; or it could require the letter to bear a label identifying it as an advertisement, see id., at 384 (dictum); In re R. M. J., supra, at 206, n. 20, or directing the recipient how to report inaccurate or misleading letters. To be sure, a state agency or bar association that reviews solicitation letters might have more work than one that does not. But “[o]ur recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.” Zauderer, 471 U. S., at 646.
Ill
The validity of Rule 7.3 does not turn on whether petitioner’s letter itself exhibited any of the evils at which Rule 7.3 was directed. See Ohralik, 436 U. S., at 463-464, 466. Since, however, the First Amendment overbreadth doctrine does not apply to professional advertising, see Bates, 433 U. S., at 379-381, we address respondent’s contentions that petitioner’s letter is particularly overreaching, and therefore unworthy of First Amendment protection. Id., at 381. In that regard, respondent identifies two features of the letter before us that, in its view, coalesce to convert the proposed letter into “high pressure solicitation, overbearing solicitation,” Brief for Respondent 20, which is not protected. First, respondent asserts that the letter’s liberal use of underscored, uppercase letters (e. g., “Call NOW, don’t wait”; “it is FREE, there is NO charge for calling”) “fairly shouts at the recipient . . . that he should employ Shapero.” Id., at 19. See also Brief in Opposition 11 (“Letters of solicitation which shout commands to the individual, targeted recipient in words in underscored capitals are of a different order from advertising and are subject to proscription”). Second, respondent objects that the letter contains assertions (e. g., “It may surprise you what I may be able to do for you”) that “statte] no affirmative or objective fact,” but constitute “pure salesman puffery, enticement for the unsophisticated, which commits Shapero to nothing.” Brief for Respondent 20.
The pitch or style of a letter’s type and its inclusion of subjective predictions of client satisfaction might catch the recipient’s attention more than would a bland statement of purely objective facts in small type. But a truthful and non-deceptive letter, no matter how big its type and how much it speculates can never “shou[t] at the recipient” or “gras[p] him by the lapels,” id., at 19, as can a lawyer engaging in face-to-face solicitation. The letter simply presents no comparable risk of overreaching. And so long as the First Amendment protects the right to solicit legal business, the State may claim no substantial interest in restricting truthful and nondeceptive lawyer solicitations to those least likely to be read by the recipient. Moreover, the First Amendment limits the State’s authority to dictate what information an attorney may convey in soliciting legal business. “[T]he States may not place an absolute prohibition on certain types of potentially misleading information ... if the information may also be presented in a way that is not deceptive,” unless the State “assert[s] a substantial interest” that such a restriction would directly advance. In re R. M. J., 455 U. S., at 203. Nor may a State impose a more particularized restriction without a similar showing. Aside from the interests that we have already rejected, respondent offers none.
To be sure, a letter may be misleading if it unduly emphasizes trivial or “relatively uninformative fact[s],” In re R. M. J., supra, at 205 (lawyer’s statement, “in large capital letters, that he was a member of the Bar of the Supreme Court of the United States”), or offers overblown assurances of client satisfaction, cf. In re Von Wiegen, 63 N. Y. 2d 163, 179, 470 N. E. 2d 838, 847 (1984) (solicitation letter to victims of massive disaster informs them that “it is [the lawyer’s] opinion that the liability of the defendants is clear”), cert. denied, 472 U. S. 1007 (1985); Bates, supra, at 383-384 (“[Advertising claims as to the quality of legal services . . . may be so likely to be misleading as to warrant restriction”). Respondent does not argue before us that petitioner’s letter was misleading in those respects. Nor does respondent contend that the letter is false or misleading in any other respect. Of course, respondent is free to raise, and the Kentucky courts are free to consider, any such argument on remand.
The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The Attorneys Advertising Commission is charged with the responsibility of “regulating attorney advertising as prescribed” in the Rules of the Kentucky Supreme Court. Ky. Sup. Ct. Rule 3.135(3) (1988). The Commission’s decisions are appealable to the Board of Governors of the Kentucky Bar Association, Rule 3.135(8)(a), and are ultimately reviewable by the Kentucky Supreme Court. Rule 3.135(8)(b). “Any attorney who is in doubt as to the propriety of any professional act contemplated by him” also has the option of seeking an advisory opinion from a committee of the Kentucky Bar Association, which, if formally adopted by the Board of Governors, is reviewable by the Kentucky Supreme Court. Rule 3.530.
Rule 3.135(5)(b)(i) provided in full:
“A written advertisement may be sent or delivered to an individual addressee only if that addressee is one of a class of persons, other than a family, to whómi R is also sent or delivered at or about the same time, and only if it is not prompted or precipitated by a specific event or occurrence involving or relating'to the addressee or addressees as distinct from the general public.”
We reject respondent’s request that we dismiss or affirm this case because “the Supreme Court of Kentucky granted Shapero precisely the relief which he requested.” Brief for Respondent 11. The court below did, as petitioner prayed, “declare . . . rule [3.135(5)(b)(i)] void,” Motion for Review of Advisory Opinion E-310, No. 86-SC-335 (Sup. Ct. Ky.). The court’s ultimate disposition, however, was to adopt a new Rule with the same defect that petitioner identified in the old ope and to “affirm the decision of the Ethics Committee to deny [petitioner’s] request” for approval of his letter. 726 S. W. 2d 299, 301 (1987). Petitioner surely cannot be said to have prevailed below.
Nor does the fact that petitioner never leveled his constitutional challenge specifically against Rule 7.3 mean that this case presents “federal constitutional issues [that were] raised here for the first time on review of [a] state court decisio[n],” Cardinale v. Louisiana, 394 U. S. 437, 438 (1969). The parties briefed and argued the constitutionality of a categorical ban on targeted, direct-mail advertising, and the court below plainly considered and rejected those arguments as it adopted Model Rule 7.3. See 726 S. W. 2d, at 300.
We also decline respondent’s invitation to dismiss this case in order to avoid interference with ongoing state judicial proceedings. See Younger v. Harris, 401 U. S. 37 (1971). Once the court below rendered its final judgment in this case, there was no longer any pending state judicial proceeding.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Victoria VAN NIEUWENHOVE and Jeanne Van Nieuwenhove, Plaintiffs-Appellants, v. The CUNARD STEAM-SHIP CO., Limited, etc., Defendant-Appellee.
No. 11130.
United States Court of Appeals, Seventh Circuit.
Oct. 19, 1954.
George C. Rabens, Isadore I. Feinglass, Chicago, Ill., for appellants.
Daniel M. Healy, Walter C. Healy, Chicago, for appellee.
Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.
FINNEGAN, Circuit Judge.
In this appeal plaintiffs ask us to reverse an order, entered below, setting aside a jury verdict awarding damages of $5,000 to Victoria Van Nieuwenhove and $1,000 to Jeanne Van Nieuwenhove, respectively. At the close of plaintiffs’ evidence and after all the evidence, defendant, The Cunard Steam-Ship Co., Limited, a foreign corporation, moved for a directed verdict. In his order, setting aside that verdict and entering judgment for the defendant, the trial judge stated that defendant’s motion for a directed verdict should have been granted. We agree.
During a rough sea, Jeanne Van Nieuwenhove and Victoria Van Nieuwenhove sustained injuries when a ladder came out of slots in the bulkhead of their stateroom and fell on Jeanne who was pitched with the ladder and a chair on to Victoria. Prior to this episode, Victoria had moved the same ladder from its position adjacent to the double-decker berths, where she had previously used it to reach her upper berth. Victoria shifted this ladder from bedside to bulkhead at Jeanne’s request; that she, Jeanne, could get out of the lower bed. There were prongs on the ladder top for the purpose of hanging it in slots on the bulkhead. No evidence that the ladder, metal prongs or hooks, clip, or slots were unsafe or defective appears in this record.
Certainly in the state of this record the trial judge was not bound to send plaintiffs’ flimsy case to the jury. Yet he followed allowable practice by reserving his decision under Rule 50, Fed.Rules Civ.Proc., 28 U.S.C.A., on defendant’s motion for a directed verdict. By taking post-verdict action he saved these parties expense of another trial if we had disagreed with the entry of judgment for the defendant. But this judgment, and trial judge’s action, can be verified by a survey of the evidence since it utterly fails to show that plaintiff were injured by defendant’s negligence. Even when we construe this evidence in a light most favorable to plaintiffs, accept as true all of their evidence, together with all reasonable inferences reasonably deducible therefrom, one conclusion emerges diametrically opposed to plaintiffs’ right to recover. Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. In our opinion this verdict was not predicated upon substantial evidence.
We think it was correct for the trial judge to deny plaintiffs’ motion to amend their complaint after verdict and judgment. Their proposed amendment would simply supply opinions of the pleader and his conclusions of law in an effort to bridge the hiatus in the non-existent chain of causation. Such an amendment is neither invited, nor authorized under the liberality manifested by Fed.R.Civ.Proc. 15, 28 U.S.C.A. Apex Smelting Co. v. Burns, 7 Cir., 1949, 175 F.2d 978, 981.
The judgment appealed is affirmed.
Affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
WYOMING CONSTRUCTION COMPANY, a Wyoming corporation; and Monolith Portland Midwest Company, a corporation, Appellants, v. WESTERN CASUALTY AND SURETY COMPANY, a corporation; Forgey Construction Company, a Wyoming corporation; and Orrin B. Forgey, Russell Forgey, Chas. S. Chapin and W. J. McNamara, individually and as co-partners doing business as Forgey Brothers, Appellees.
No. 5991.
United States Court of Appeals Tenth Circuit.
Jan. 26, 1960.
Rehearing Denied Feb. 24, 1960.
Norman Elliott and Joseph Enright, Los Angeles (Loomis, Lazear & Wilson, Cheyenne, Wyo., Corthell & King, Laramie, Wyo., and Enright & Elliott, Los Angeles, Cal., were with them on the brief), for appellants.
William H. Brown and Edward E. Murane, Casper, Wyo. (Brown, Healy, Drew, Apostolos & Barton; Murane, Bostwick & McDaniel, and Donald E. Chapin, Casper, Wyo., were with them on the brief), for appellees.
Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
Appellee-plaintiff, The Western Casualty and Surety Company, a compensated surety on a construction contract performance bond, brought this action for indemnity to recover its costs in completing the contract after default by its principal.
The United States, acting through the Bureau of Reclamation, Department of the Interior, contracted with S. J. Groves & Sons Company for the construction of the Big Sandy Dam and Dike in western Wyoming. Groves subcontracted the earth embankment and riprap on the dam to Forgey Construction Company which, in turn, subcontracted the riprap work to Wyoming Construction Company. Western was the surety on the performance bond given by Wyoming to Forgey. Wyoming failed to complete and performance was taken over by Western. During the period involved, Wyoming became a wholly-owned subsidiary of appellant Monolith Portland Midwest Company. The jury verdict, in favor of Western and against Wyoming and Monolith, was for $74,677.33 to which the court added $25,701.45 as interest and entered judgment for $100,378.78. ******This appeal is from that judgment.
Wyoming contends that Western is not entitled to indemnity because an antecedent default of Forgey relieved Wyoming of its obligation to perform and such default and its effect were known to Western. All pertinent contracts required completion of performance by November 29, 1951. The riprap work of Wyoming had to follow the placing of embankment by Forgey but could advantageously proceed as the embankment rose in height. On the contract termination date Forgey had placed more than 90% of the embankment materials and Wyoming had placed less than 10% of the riprap. The breach by Forgey, upon which Wyoming relies, is the failure of Forgey to complete the embankment by November 29, 1951.
The issue as to whether Wyoming was excused from performance because of the alleged breach by Forgey was submitted to the jury under adequate instructions and the jury by its verdict adverse to Wyoming on all issues necessarily found that the conduct of Forgey did not excuse Wyoming. Substantial evidence in the record sustains such conclusion.
There were four principal stages in the riprap operation covered by the Forgey-Wyoming subcontract. The material had to be quarried at a site about 26 miles from the dam, crushed to the right size, hauled by truck to the dam, and placed on the dam. Wyoming delayed in carrying out preparatory work such as building an access road and opening the quarry with the result that it did not start placing riprap until about the end of August 1951, when the embankment was more than 60% complete. An employee of Wyoming testified that at no time after Wyoming began operations in August was there unavailable an area for the placement of riprap. The inability of Wyoming to put on riprap as fast as the dam went up was due to inadequate crushing and loading equipment and to the lack of trucks for hauling.
The testimony of Wheeler, the president of Wyoming until June 1952, was that in September 1951 he, as the responsible executive of that company, decided that it would be impossible to complete by the contract date and that it would be necessary to work through the winter. The record shows that no failure of Forgey to complete the preliminary work hindered or delayed Wyoming and that Wyoming made no effort to keep up with the progress of Forgey. These facts, coupled with extensions of the termination date obtained with the assistance and acquiescence of Wyoming, require the conclusion that no default of Forgey relieved Wyoming of its duty to perform. The situation in which Wyoming found itself was the result of its own acts.
Wyoming next urges that the extensions of the date for completion of performance were material alterations of the contract which discharged the surety. In support of this contention it points out that construction work in western Wyoming is more costly in winter periods because of severe weather conditions and that the contract contemplated the work would be completed before the winter season.
The contracts involved all provided for an extension of the performance date. Chapin, an officer of Forgey, testified that prior to the execution of the ForgeyWyoming contract he and Wheeler discussed the possibility “that this job would go into the winter or the following spring.” As early as September 1951 Wheeler refused to commit more of the Wyoming equipment to the job because he then realized that winter work would be required. The matter of extension of performance time was discussed in correspondence between the Bureau, Groves, Forgey, Wyoming, and Western as Wyoming’s surety. There is no evidence that any party, except the Bureau, was opposed to any extensions. The Bureau granted extensions, the last until July 17, 1952.
The failure to perform on time did not terminate the contract. We are not concerned at this point with possible rights to damages for delay but with the issue of whether the extensions relieved the surety of liability. Western was a compensated surety. It knew from its own investigations that the job would not be completed on the contract termination date. As Wyoming had but 9.9% of its work done on the termination date it was to the advantage of both Wyoming and Western to have the date extended. Neither was harmed thereby. Whatever additional costs there might have been to Wyoming were the result of Wyoming’s conduct in failing to keep apace with Forgey.
This is not an action by an obligee to collect from a surety. Rather, it is an action by a surety which has performed in the place of its principal and which seeks to collect from its principal under a written contract of indemnity. That contract authorized the surety “to consent, from time to time, to any extensions, modifications, changes or alterations of, or additions to, said contract, * * While no formal written consent was executed, the conduct of Western is consistent only with consent to the extensions.
The equities of the situation cry out against Wyoming. By starting late and using inadequate equipment it failed to keep abreast with the progress of Forgey. It led all parties to believe that by winter work it would catch up with Forgey and complete the riprap^ promptly after the completion of the embankment. It did not object to the extensions but instead aided in their procurement. It failed to do the job it had contracted to do. Now, after the work has been completed by its surety and the surety seeks indemnity, Wyoming asserts that the situation which resulted from its wrong relieves it of liability to its surety. Such argument does not commend itself to the court. A party may not take advantage of its own wrong.
The other claimed material alterations of the Forgey-Wyoming contract relate to the advance by Forgey to Wyoming of part of the purchase price of a crusher and numerous advances on a yardage basis to pay lease truckers. These advances were made by Forgey because of the financial condition of Wyoming. They were credited against payments to Wyoming when those payments became due. Granting that in some circumstances an advance payment may be a material alteration of a contract, such is not the case here and even if it were, Western knew of the payments and did not object to them. As the acts of Western were consistent only with a disposition to continue the suretyship relation, it waived whatever right it might have had to take advantage of the changes in payment. The advances were to the benefit of Wyoming. That company may not now hide behind its own acts and use the consequences thereof to avoid liability under the indemnity agreement.
Wyoming further says that Western breached its duty to act in good faith. We have no doubt that a surety must act in good faith in its dealings with its principal. In the situation here, Wyoming knew the facts at least as well as its surety. The legal rights and obligations arising from those facts were known to both. There is no evidence of misrepresentation, concealment, overreaching, or undue persuasion on the part of Western. To the contrary, Western acted with candor and patience and gave Wyoming every opportunity to perform its contract.
Only one facet of the bad-faith charge merits comment. Wyoming says that Western acquiesced in Forgey’s notice of default and did not assert the antecedent breach and material alteration defenses which were available. A sufficient answer is that such defenses, for reasons heretofore stated, were not available to either the principal, Wyoming, or to the surety, Western. Each, by its actions, had lost its right to assert those defenses, if either or both ever had such right. Be that as it may, the conditions existing at the time of the Forgey default notice and demand show that if there was any bad faith it was on the part of Wyoming, not on the part of Western.
As of May 31, 1952, Forgey was 99% complete and Wyoming 34%. In mid-June, Wyoming stopped the placement of riprap, stacked its machinery and equipment, and laid off its employees other than supervisors. The work was at a standstill. By letter dated June 27, 1952, Forgey gave Wyoming a notice of default stating that it, Forgey, would take over the work on July 2, 1952. At the same time, Forgey notified Western to perform under its bond.
A meeting attended by all interested parties was held on July 14, 1952. Wyoming, then under the domination and control of Monolith, refused to finish the job and Western assumed the responsibility of completion. At the time no protest was made by either Wyoming or Monolith. The subsequent formal protest, which did not state any substantiating grounds, did not detract from the good faith of Western. Here again the equities are with Western, which performed, and against Wyoming, which defaulted.
Monolith asserts that as it is a corporate entity, separate and distinct from Wyoming, it may not be held for the breach by Wyoming of a contract to which it, Monolith, was not a party.
Western relies upon the so-called instrumentality rule under which it says that Wyoming is to be regarded as a department or agent of Monolith with the result that Monolith is responsible for the defaults of Wyoming.
In Taylor v. Standard Gas & Electric Co., 10 Cir., 96 F.2d 693, 703-705, this court said that the instrumentality rule is not yet defined “with a degree of certainty that it can be applied as a precise yardstick in the admeasurement of legal rights,” and referred to ten circumstances which are important and controlling if present in the proper combination. The Taylor decision was reversed by the United States Supreme Court in Taylor v. Standard Gas & Electric Co., 306 U.S. 307, at page 322, 618, 59 S.Ct. 543, at page 550, 83 L.Ed. 669, the Supreme Court saying, that the instrumentality rule is not properly speaking a rule “but a convenient way of designating the application, in particular circumstances of the broader equitable principle that the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when so to do would work fraud or injustice.”
In a recent case arising in Colorado, Fitzgerald v. Central Bank and Trust Company, 10 Cir., 257 F.2d 118, 120, this court said that the conditions in which the fiction of separate corporate existence may be disregarded, or the corporation treated as the alter ego of its members, necessarily vary according to the circumstances and “in general terms that the doctrine is an equitable one appropriate for application to prevent fraud, injustice, or wrong.” Applicability of this rule in Wyoming is established by Caldwell v. Roach, 44 Wyo. 319, 12 P.2d 376, 380-381, where it was said that “the legal entity of a corporation will be disregarded whenever the recognition thereof in a particular case will lead to injustice.”
At the time of the execution of the Forgey-Wyoming contract the stock in Wyoming, with unimportant exceptions, was owned by Wheeler and his wife. Wyoming supplied gypsum to Monolith. The Monolith contract was profitable to Wyoming, which did not allocate to the Big Sandy job equipment used on its gypsum production project.
In the fall of 1952 Wyoming was having financial trouble. It applied to Monolith for help. On January 14, 1952, Monolith advanced $25,000 which Wheeler, the president of Wyoming, considered an advance on a $75,000 open line of credit. On the same date all of Wyoming’s stock was assigned to Monolith or its nominees with a repurchase option if the indebtedness was repaid. It was not repaid and the option was not exercised.
As part of the January 14 transaction in which Monolith advanced the $25,000, Wyoming took appropriate corporate action to surrender completely its power to conduct its own business without the approval of Monolith.
Although Wheeler was continued as president of Wyoming until May 1952, his efforts to complete the Forgey contract were frustrated by the Monolith control. Monolith, which in January had advanced funds to Wyoming, refused additional financing. A Monolith employee, acting as an officer of Wyoming, shut down the job. When the meeting was held to determine what should be done about the completion of the Forgey contract, the Monolith employees who were acting as officers of Wyoming phoned their Monolith superiors for directions before stating the Wyoming position to proceed no further on the contract.
The assumption of ownership and control of Wyoming was to the advantage of Monolith because of the gypsum contract which Monolith had made “through desperation” when it lost its prior source of supply and which was profitable to Wyoming. The decision to proceed no further with the Forgey contract was a detriment to Western as it was obligated under its performance bond. The facts justify the conclusion that Monolith was using Western and its property to the sole advantage of Monolith. That advantage was served by the abandonment of the Forgey contract.
Monolith emphasizes that there was no evidence of fraud but it is enough if the disregard of the corporate entity is required to prevent^ Jnjustiee. The issue was submitted to the jury under instructions, which, when taken as a whole and considered in their entirety, fairly and adequately set out the controlling principles. There was substantial evidence from which the jury could find that Monolith controlled and dominated Wyoming in the interests of Monolith and with full knowledge of the situation caused Wyoming to default on the Forgey contract with resulting detriment to Western. The verdict of the jury is sustained. It would be inequitable and unjust to permit Monolith to escape the con sequences of its conduct.
Wyoming and Monolith say that the trial court erred in permitting the filing of the amended complaint which joined Monolith as a defendant. Amendments to pleadings are within the sound discretion of the trial court and should be granted freely as justice requires. The impropriety of the allowance of amendment here is said to arise from the fact that any action against Monolith was barred by the applicable Wyoming statute of limitations. The theory is that the four-year statute covering non-contract, fraud and tort actions applies. On written contracts Wyoming has a ten-year statute, on oral contracts, either express or implied, an eight-year statute, and on actions for relief not otherwise limited a ten-year statute. The only statute which would operate to bar the action against Monolith is the four-year statute. That does not apply because the action is on a written contract and Monolith is liable under the instrumentality theory approved by the Supreme Court in the Taylor case.
Wyoming contends that the amended complaint should not have been permitted because Western had violated an earlier order in aid of discovery. The situation is that the trial court ordered Western to make more specific answers to certain interrogatories. Supplemental answers were made and there was no objection of lack of specificity. The point is without merit.
Error is predicated on the submission of two interrogatories to the jury in accordance with Rule 49(b), F.R. Civ.P. The court advised the parties well in advance that it would submit these interrogatories. No objection was made. The verdict was consistent with the answers to the interrogatories. By failure to object the parties have waived the right to protest now. In any event the interrogatories were fair and pertinent and did not prejudice the rights of any parties.
Various complaints are made against the instructions. A careful reading of the instructions convinces us that, considered as a whole, they fairly and adequately presented the issues and the controlling law to the jury. We find nothing therein which merits comment.
To the jury verdict assessing Western’s damages at the sum of $74,677.33, the trial court added $25,701.45 as interest from January 23, 1953, the day when Western submitted to Wyoming an itemized statement of its expenses in completing the Big Sandy project. The award of interest is contested on the grounds that the amount due under the indemnity contract was unliquidated and that the court was without power to add interest to the verdict.
The contract was made and performed in Wyoming. This diversity action was brought in the United States District Court for the District of Wyoming. The law of that state controls to determine the right to interest.
The applicable Wyoming statute allows 7% interest on money due under a written instrument which does not specify the interest rate. Wyoming has held that under this statute interest may not be allowed on unliquidated claims.
The itemized statement submitted by Western to Wyoming on January 23, 1953, showed the amount due to be $82,228.81. This was later reduced to $74,677.33 by adjustments favorable to Wyoming and secured through the diligence of Western. These credits could have been obtained by Wyoming if it had then paid Western. The fact that the adjustments were made by Western does not convert the claim into one which was not liquidated. Wyoming was aided, not hurt, by the additional credits.
The attack by Wyoming on the necessity of certain expenses does not change the character of the claim. The fact that a claim is disputed does not preclude the recovery of interest. The indemnity contract provided that the surety should be reimbursed for all expenses incurred in good faith whether necessary or not. Through an abundance of caution and without objection by any party, the trial court submitted to the jury the question of the necessity of the expenses, and the jury returned a verdict for the exact amount which Western claimed. To permit a party to escape payment of interest by contesting the validity of a claim is to destroy the right to interest.
In allowing interest the trial court acted on the authority of American Surety Co. of New York v. Carbon Timber Co., 8 Cir., 263 F. 295. This was a Wyoming case in which a surety on a timber contract sued for indemnity. The trial court denied interest and the court of appeals reversed saying that the amount was ascertained under and by virtue of specific authority of the indemnity contract and was a liquidated debt within the purview of the Wyoming statute. Wyoming and Monolith distinguish the American Surety Co. case on the ground that it was a trial to the court whereas here the trial was to a jury. The distinction is unimportant.
In Leet v. Joder, 75 Wyo. 225, 295 P.2d 733, 740, a denial of interest after jury verdict was upheld on the ground that in the circumstances of that case the right to interest was a question of fact for the jury rather than one of law for the court. After reviewing pertinent authorities, the court said that the power of a court to add interest to a verdict is based on the assumed failure of the jury to grant the plaintiff that to which he is entitled as a matter of law and that a court may not add interest when interest is a part of the damages or when it is impossible to ascertain whether the jury had included interest in the award on an unliquidated contract or claim.
This case does not come within either inhibition of the Leet decision. The jury was not instructed on the matter of interest. The verdict was for the exact amount claimed due under the indemnity contract. There is nothing to suggest that interest was included in the amount of the verdict. Indeed, the record is entirely to the contrary. This was an action on a written contract and does not involve the portion of the Wyoming statute considered in the Leet case. As in the American Surety case the right to interest followed as a matter of law and did not involve any question of fact.
Affirmed.
. Wyoming brought in as third-party defendants Forgey Construction Company and Orrin B. Forgey, Bussell Forgey, Chas. S. Chapin and W. J. McNamara, individually and as co-partners doing business as Forgey Brothers. The jury verdict was in favor of the third-party defendants. In this appeal the judgment in favor of the third-party defendants is not contested.
. The subcontract covered both “blanket materials and riprap." The operations are so connected that herein reference will be made only to riprap.
. In the Forgey-Wyoming contract it was provided that there might be no extension without the written consent of Forgey. The absence of such written consent may not be raised by Wyoming and it is not asserted by any other party. Neither Wyoming nor Forgey objected to the extensions and by their conduct acquiesced therein.
. Barnard-Curtiss Company v. United States, 10 Cir., 257 F.2d 565, 568 and authoritios cited in note 10, certiorari denied 358 U.S. 906, 79 S.Ct. 230, 3 L.Ed. 2d 227.
. Restatement of the Law, Security, § 129(2), p. 346, states the rule to be that where the principal (Wyoming) and the creditor (Forgey) without the surety’s consent agree to an extension, a compensated surety is discharged only to the extent that it is harmed by the extension.
. Wettlin v. Jones, 32 Wyo. 446, 234 P. 515, 517, 236 P. 247. Cf. R. H. Stearns Co. of Boston, Mass. v. United States, 291 U.S. 54, 61, 54 S.Ct. 325, 78 L.Ed. 647.
. See 72 C.J.S. Principal and Surety §§ 133-134, pp. 622-627.
. Trinity Universal Insurance Company v. Gould, 10 Cir., 258 F.2d 883, 886.
. Ibid.
. Schoonover, the chief engineer of Monolith, testified: “* about .1950 or 1951, I don’t recall the exact year when the U. S. gypsum plant at Laramie shut down and we were immediately forced to go out and find a source of gypsum. At that time Mr. Wheeler located a gypsum quarry for himself with the thought in mind of selling gypsum, so through desperation we bought gypsum from the Wyoming Construction Company.” It was not until 1953 or 1954 that Monolith located its own gypsum deposit.
. At the time of the stock assignment, the Wyoming stock had a book value of $98,-000.
. Rule 15(a) F.R.Civ.P., 28 U.S.C.A.; Zeigler v. Akin, 10 Cir., 201 F.2d 88, 90.
. 1945 Wyo.Comp.Stat. § 3-506.
. Id. § 3-504.
. Id. § 3-505.
. Id. § 3-509.
. T. & M. Transp. Co. v. S. W. Shattuck Chemical Co., 10 Cir., 158 F.2d 909, 910; North Drive-In Theatre Corporation v. Park-In Theatres, Inc., 10 Cir., 248 F. 2d 232, 237.
. 1945 Wyo.Comp.Stat. § 39-1104.
. In re Johnson’s Estate and Guardianship, 78 Wyo. 173, 320 P.2d 429, 433; Hancock v. Johnson, 69 Wyo. 503, 244 P.2d 285, 289; Dawson, Corbett and Shelp v. Lieurance & Canfield Const. Co., 68 Wyo. 465, 235 P.2d 457, 464-466.
. The most important credit resulted from the action of Western in securing remission of penalties by the Bureau.
. North Drive-in Theatre Corporation v. Park-In Theatres, Inc., supra, 248 F.2d at page 237; T. & M. Transp. Co. v. S. W. Shattuck Chemical Co., supra, 158 F.2d at page 911.
. The pertinent instruction was: “Now^ there are some items that are raised here as to whether an airplane was necessary in the completion of a job. There is; other evidence that there was too much overtime paid, and I am sure that evidence is all clear in your mind. If you find for the Casualty Company then you shall take into consideration whether the $74,677 was the amount which they incurred in eomi>leting the job, less any expenses which you feel were unnecessary in the completion of the job.”
. The language of the Supreme Court of Wyoming in Wyoming R. Co. v. Leiter, 25 Wyo. 286, 169 P. 1, 2, is appropriate and we quote: “The argument amounts-to this: That plaintiff could not pay because it did not know the amount due-for the reason that it objected to the-amount found due. A very handsome-method of avoiding the payment of interest on one’s debts!”
. Neither party requested such an instruction.
. There reliance was placed on the provision allowing interest “on money * * due, and withheld by unreasonable delay of payment.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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sc_lcdisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the 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.
KENNERLY et al. v. DISTRICT COURT OF THE NINTH JUDICIAL DISTRICT OF MONTANA et al.
No. 5370.
Decided January 18, 1971
Per Curiam.
This case arises on petition for certiorari from a judgment of the Supreme Court of Montana. The petition for certiorari and the motion to proceed in forma pauperis are granted. For reasons appearing below, we vacate the judgment of the Supreme Court of Montana and remand the case for further proceedings not inconsistent with this opinion.
Petitioners are members of the Blackfeet Indian Tribe and reside on the Blackfeet Indian Reservation in Montana. The tribe is duly organized under the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 25 U. S. C. § 461 et seq. In July and August of 1964, petitioners purchased some food on credit from a grocery store located within the town limits of Browning, a town incorporated under the laws of Montana but located within the exterior boundaries of the Blackfeet Reservation.
A suit was commenced in the Montana state courts against petitioners on the debt arising from these transactions. Petitioners moved to dismiss the suit on the ground that the state courts lacked jurisdiction because the defendants were members of the Blackfeet Tribe and the transactions took place on the Indian reservation. The lower state court overruled the motion and petitioners, pursuant to Montana,rules of procedure, petitioned the Supreme Court of Montana for a “writ of supervisory control” to review this lower court ruling. The State.Supreme Court took jurisdiction and affirmed.
Prior to the passage of Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U. S. C. §.§ 1321-1326 (1964 ed., Supp. V), discussed infra, state assumption of civil jurisdiction — in situations where Congress had not explicitly extended jurisdiction — was governed by § 7 of the Act of August 15, 1953, 67 Stat. 590. Section 7 of that statute provided:
“The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act [referring to §§ 2 and 4, see n. 1, supra], to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.”
Pursuant to this statute, the Montana Legislature enacted Chapter 81, Laws of 1963* (§§ 83-801, 83-806, Montana Rev. Codes Ann. (1966)), extending criminal, but not civil, jurisdiction'over Indians of the Flathead Indian Reservation. But Montana never took “affirmative legislative action” — concerning either civil or criminal jurisdiction — with respect to the Blackfeet .Reservation.
However, on November 20, 1967, the Blackfeet Tribal Council adopted Chapter 2, Civil Action, § 1, as part of the Blackfeet Tribal Law and Order Code, which provides, in relevant part:
“The Tribal Court and the State shall have concurrent and not exclusive jurisdiction of all suits wherein the defendant is a member of the Tribe which is brought before the Courts. . . .”
The Montana Supreme Court relied on this pre-1968 Tribal Council action as an alternative basis for the assertion of state civil jurisdiction over the instant litigation. In Williams v. Lee, 358 U. S. 217 (1959), a non-Indian brought suit against a Navajo Indian for a debt arising out of a transaction which took place on the Navajo Reservation. The Arizona State Supreme Court upheld the exercise of jurisdiction and we reversed. In the instant case, the Montana Supreme Court attempted to reconcile its result with Williams on the theory that the transfer of jurisdiction by unilateral tribal action is consistent with the exercise of tribal powers of self-government. 154 Mont. 488, 466 P. 2d 85.
The Court in Williams, in the process of discussing the general question of state action impinging on the affairs of reservation Indians, noted that “[essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” 358 U. S., at 220. With regard to the particular question of the extension of state jurisdiction over civil causes of action by or against Indians arising in Indian country, there was, at the time of the Tribal Council resolution, a “governing Act of Congress,” i. e., the Act of 1953. • Section 7 of that statute conditioned the assumption of state jurisdiction on “affirmative legislative action” by the State; the Act made no provision whatsoever for tribal consent, either as a necessary or sufficient condition to the assumption of state jurisdiction. Nor was the requirement of affirmative legislative.action an Idle choice of words; the legislative history of the 1953 statute shows that the requirement was intended to assure that state jurisdiction would not be extended until the jurisdictions to be responsible for the portion of Indian country concerned manifested by political action their willingness and ability to discharge their new responsibilities. See H. R. Rep. No. 848, 83d Cong., 1st Sess., 6, 7 (1953); Williams, supra, at 220-221. Our conclusion as to the intended governing force of § 7 of the 1953 Act is reinforced by the comprehensive and detailed congressional scrutiny manifested in those instances where Congress has undertaken to extend the civil or criminal jurisdictions of certain States to Indian country. See n. 1, supra.
In Williams, the- Court went on to note the absence of affirmative congressional .action, or affirmative legislative action by the people of Arizona within the meaning of the 1953 Act. 358 U. S., at 222-223. Here it is conceded that Montana took no affirmative legislative'action with respect to the Blackfeet Reservation. The unilateral action of the Tribal Council was insufficient to vest Montana with ' jurisdiction over Indian country under the 1953 Act.
The remaining question is whether the pre-1968 manifestation of tribal consent by tribal council action can operate to vest Montana with jurisdiction under the provision of the Civil Rights Act of 1968. Title IV of the 1968 statute repealed § 7 of the 1953 Act and substituted a new regulatory scheme for the extension of state civil and criminal jurisdiction to litigation involving Indians arising in Indian country. See 25 U. S.- C. §§ 1321-1326 (1964 ed., Supp. V). Section 402 (a) of the Act, 25 U. S. C. § 1322 (a) (1964 ed., -Supp. V), dealing with civil jurisdiction, provides:
“The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians'or to which Indians are parties which arise in the areas of Indian, country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.”
Section 406 of the Act, 25 U. S. C. § 1326 (1964 ed., Supp. V), then provides:
“State jurisdiction acquired pursuant to this sub-chapter with respect to criminal offensés or civil causes of action, or with respect to both, shall be applicable in Indian country only where the- enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. The Secretary of the Interior shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the tribal council or other governing body, or by 20 per centum of such enrolled adults.”
We think the meaning of these provisions is clear: the tribal consent that is prerequisite to the assumption of state jurisdiction under, the provisions of Title IV of the Act must be manifested by majority vote of the enrolled Indians within the affected area of Indian country. Legislative action by the Tribal Council does not comport with the explicit requirements of the Act.
Finally, with regard to the 1968 enactment, this case presents no question concerning the power of the Indian tribes to place time, geographical, or other conditions on the “tribal consent” to state exercise of jurisdiction. Rather, we are presented solely with a question of the procedures by which “tribal consent” must be manifested under the new Act. Thus the suggestion made in dissent that, under today’s disposition, “[t]he reservation Indians must now choose between exclusive tribal court jurisdiction on the one hand and permanent, irrevocable state jurisdiction on the other,” is incorrect.
The judgment of the Supreme Court of Montana is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
For example, § 4 of the Act of August 15, 1953, 67 Stat. 589, 28 U. S. C. § 1360 (a), extended jurisdiction over civil causes of action arising in Indian country to which Indians are parties to five States. The statute is illustrative of the detailed regulatory scrutiny which Congress has traditionally brought to bear on the extension of state jurisdiction, whether civil or criminal, to actions to which Indians are parties arising in Indian country. ' See also § 2 of the Act, 67 Stat. 588, 18 U. S. C. § 1162, extending criminal jurisdiction to the same States over offenses involving Indians committed in Indian country. Montana was not one of the five States accorded civil and criminal jurisdiction under these sections of the statute.
As discussed infra, § 403 (b) of the Civil Rights Act of 1968, 82 Stat. 79, 25 U. S. C. § 1323 (b) (1964 ed., Supp. V), repealed § 7 of the Act of 1953. But § 403 (b) provides: “such repeal shall not affect any cession of jurisdiction made pursuant to [§ 7] prior to its repeal.” Further, §§ 402 and 406 of the 1968 Act, which govern the assumption of civil jurisdiction by States, appear to cover only States not presently having such jurisdiction.
The instant litigation commenced aft.er the passage .of the 1968 Act. However, since the Tribal Council action preceded the 1968 Act — and under the state court’s reasoning vested, the State with jurisdiction'at that point in time — we must consider the validity of the State’s assertion of jurisdiction under the 1953 Act as well as the 1968 Act.
The Montana Supreme Court also sought to distinguish Williams outright on the ground that the plaintiff in that case had, at one point,.secured a writ of attachment on Indian-owned livestock on the Navajo Reservation, bringing into play'special federal' protective policies with regard to Indian livestock. However, the Arizona Supreme Court judgment under review in Williams had set aside the writ of attachment on the very basis relied upon by the Montana Supreme Court in its opinion in this case ás a distinguishing ground. Williams v. Lee, 83 Ariz. 241, 247-248, 319-P. 2d 998, 1002-1003 (1958). Respondent in Williams did not seek review of that portion of the judgment; and, of course, the Court’s opinion in Williams makes no reference to the attachment.
But see n. 2, supra.
The plain meaning of the statute is reinforced by the legislative history. Title IV of the 1968 Act was offered and principally sponsored by Senator Ervin of North Carolina as part of an amendment by way of a substitute to H. R. 2516, which eventually became part of the Civil Rights Act of 1968. See 114 Cong. Rec. 393-395. In discussing Title IV, Senator Ervin stated, id., at 394:
“This title repeals section 7 [of the 1953 Act] and authorizes States to assert civil and criminal jurisdiction in Indian country only after acquiring the consent of the tribes in the States by referendum of all- reservated Indians.”
See also S. Rep. No. 721, 90th Cong., 1st Sess., 32 (1967) (additional views,jof Sen. Ervin). Senator Ervin’s proposals were eventually adopted as an amendment to' the Dirksen amendment to the 1968 Act. See 114 Cong. Rec. 5836-5838.
The dissent’s rebutting footnote infers from the express allowance for selective state exercise of jurisdiction a congressional intent to exclude selective tribal consent, to state exercise of jurisdiction. That inference is so obviously not compelled by either the language or structure of 25 U. S. C. § 1322 (a) (1964 ed., Supp. V), the full text of which is quoted above, that we think no further response is needed. We reiterate, however, that with respect to the 1968 enactment, today’s decision is concerned solely with procedural mechanisms by which tribal consent must be registered.
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_circuit
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J
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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.
NEW YORK LIFE INS. CO. v. TOLBERT.
No. 527.
Circuit Court of Appeals; Tenth Circuit.
Jan. 5, 1932.
Henry McAllister, of Denver, Colo. (Louis H. Cooke, of New York City, on the brief), for appellant.
Erskino R. Myer, of Denver, Colo. (Norton Montgomery, of Denver, Colo., on the brief), for appellee.
Before COTTERAL and PHILLIPS, Circuit Judges, and POLLOCK, District Judge.
COTTERAL, Circuit Judge.
The appellant issued a poliey, dated August 23, 1928, for $10,000, to Don A. Tolbert, naming his wife, the appellee, as his beneficiary, in consideration of an annual premium of $363, for the period of one year from said date, and a like payment each year thereafter. He died on December 30, 1929. After proofs of the death were furnished by the appellee to the company and payment of the insurance was refused, she brought this suit on the policy. The cause was tried upon an agreed statement of tho facts. The question involved was whether, by virtue of the premiums paid, the poliey was in force at the death of the insured. The District Court ruled it was and rendered judgment for the appellee. The company appeals and assigns the judgment as error, contending the poliey had lapsed before his death, for nonpayment of the necessary premium.
The application for the insurance was dated August 14, 1928, and stipulated that it should not take effect “unless and until the poliey is delivered to and received by the applicant and tho first premium thereon paid in full during his life time.” Tho policy was both dated and executed on August 23, 1928. It contained these provisions: ’
“This contract is made in consideration of the application therefor and of the payment in advance of the sum of $363.00', tho receipt of which is hereby acknowledged, constituting tho first premium and maintaining this Policy for the period terminating on the Twenty-third day of August, Nineteen Hundred and Twenty-nine, and of a like sum on said date and every Twelve calendar months thereafter during the life of tho Insured. * * *
“This Policy takes effect as of the Twenty-third day of August, Nineteen Hundred and Twenty-eight, which day is the anniversary of tho Poliey.”
Tho policy recites the contract was to consist of tho poliey and the application 'therefor, and was to he deemed as made and payable in Colorado. There were provisions that grace of one month was allowed for tho payment of every premium after 1ho first; it might be paid annually, semiannually, or quarterly in advance; the payment was not to maintain tho policy beyond tho time the next payment should become due (except as to certain benefits), and the poliey was incontestable after two years from date of issue except for nonpayment of premium.
Tho poliey was sent to the soliciting agent; he delivered it to the insured on September 1, 1928, and on that date the first payment of premium was made.
On August 16, 1929, the insured wrote the company the premium of $363 was due on August 23, 1929, he wished to make quarterly payments, and asked the amounts due on that plan. On his request, the company agreed to quarterly payments of $96.30 each, specifying that the terms and conditions of the policy, including its anniversary date, should remain unchanged. On September 21, 1929, he wrote the company, remitting $96.30 by a special delivery letter, in order to reach the company on September 23. The company issued its receipt to him, reciting the due date of the premiums as August 23, 1929. He wrote the company on November 24, 1929, stating his quarterly premium of $96.30 was due, he could not afford those payments for the next few months, and he would like to split the poliey “up to where my payments would not exceed $40.00 per quarter, and have option (if possible to arrange it) of going back later on and paying up the difference.”
On November 27, 1929, the company replied, suggesting that, if he could not pay the premiums every three months, the insurance be reduced by a form inclosed to $5,000 at a quarterly premium of $48.15, adding that the last day of grace of the November premium would expire December 23, and asking a remittance of $48.15 on the changed basis, on or before that date. On December 5, 1929, the company wrote him it would be pleased to receive the changed form, with cheek for $48.15, the quarterly premium on the new basis, on or before December 23, the last day for the payment of the November 23d quarterly premium. On December 13, 1929, the company wrote him it had not received the quarterly premium of $48.15, reminding him that December 23 was the last grace day for payment of the November 23d premium, and urging such payment by that date.
On December 18, 1929, he wrote the company that conditions compelled him to lapse the poliey, but he wished some arrangement, if possible, for reinstatement, as he expected to have $200 or $300 in March or April, for payment on premiums.
On December 23, 1929, the company replied that, if he became able later to take up a part of the policy or fully pay the premiums, it would advise him of the requirements for re-instatement.
There were no further communications between the parties. The inquiry is whether the poliey had lapsed at the death of the assured on December 30, 1929, or was still in force. It is obvious the decisive point is the date on which the premium fell due; in other words, the anniversary date of the policy. If it was on August 23, as appellant claims, then, as the premium was paid only for a year and a quarter and up to November 23, 1929, and one month of grace being added, the poliey lapsed on December 23, 1929, which was seven days before the death of the assured. But if, as appellee claims, the premium date and the anniversary of the poliey was September 1, then the poliey was in force until one day after his death.
In our opinion, the premium due date was August 23, because the policy expressly provided that the insurance was made in consideration of the first premium carrying the poliey until August 23, 1929, and of a like sum on said date each year thereafter, and, further, that August 23 was the anniversary of the poliey. True, the application recited that the insurance should not take effect unless the policy should be delivered and received by the applicant and the first premium should be paid. And counsel for appellee, insisting there is a conflict in these provisions, invoke the settled rule, where there is ambiguity in an insurance contract it should be resolved in favor, of the assured. But there was no such conflict of agreement with regard to the due date of the premiums and the anniversary of the poliey. The poliey fixed those dates and the application merely annexed a condition precedent to the liability of the insurance company and not to the existence of the policy. Hurt v. N. Y. Life Ins. Co. (C. C. A.) 51 F.(2d) 936.
The question whether there is a conflict between like terms of a policy and an application has been decided in, many eases. It is thoroughly settled by the authorities that there is none, and that the policy alone embodies the contract of the parties. The principle was reaffirmed in the Eighth circuit as late as December 1, 1931, in New York Life Ins. Co. v. Silverstein, 53 F.(2d) 986, where the precedents cited were Mc-Campbell v. New York Life Ins. Co. (C. C. A.) 288 E. 465, McConnell v. Prov. Sav. Life Assur. Soc. (C. C. A.) 92 F. 769, and Sellars v. Cont. Life Ins. Co. (C. C. A.) 30 F.(2d) 42. It is unnecessary to cite the numerous decisions to the same effect.
But if it be assumed the contract of these parties was ambiguous, the premium due dates and the anniversary of the poliey were as fixed by the policy. One reason is that the poliey rather than the application then controls. N. Y. Life Ins. Co. v. Silverstein, supra; N. Y. Life Ins. Co. v. Cohen (D. C.) 48 F.(2d) 903. Another reason is that the correspondence of the insured showed he clearly understood those dates, and this construction of the contract with which the company agreed is not only entitled to great weight, but it is also the best indication of the meaning of the contract. Brooklyn L. Insurance Co. v. Dutcher, 95 U. S. 269, 24 L. Ed. 410; Manhattan Life Ins. Co. v. Wright (C. C. A.) 126 F. 82; Candelaria v. Col. N. L. Ins. Co., 60 Colo. 340, 153 P. 447; Mut. Life Ins. Co. v. Hill, 193 U. S. 551, 24 S. Ct. 538, 48 L. Ed. 788. But, as heretofore stated, no such ambiguity existed. As was aptly ruled by-Judge Sanborn in Standard L. & A. Ins. Co. v. McNulty (C. C. A.) 157 F. 224, 226, a rule of construction “ought not to be permitted to have the effect to make a plain agreement ambiguous, and then to interpret it in favor of the insured.”
Counsel for the appellee contend that by the laws of Colorado the policy was in force at the death of the insured. We do not find any provision therein which justifies that contention. We advert to statutes cited which appear to bear on the subject.
Section 2528, Comp. Laws 1921, prohibits discrimination between insurants of the same class, ete., or in other terms and conditions. Session Laws, 1927, c. 115, p. 450, provides that a policy shall by its terms constitute the entire contract; no statement by the assured shall avoid the policy unless contained in a written application indorsed upon or attached to the policy; and there shall be a grace of one month for the payment of every premium after the first year. Only one of these provisions is pertinent, and it is that the policy shall constitute the contract. But the application was made a part of the policy in suit, and, furthermore, if it were not so, the appellee may not claim it had any force as a part of the contract.
It is argued that, as the policy authorized a grace of one month for the payment of every premium after the first, and the statute reads “for the payment of every premium after the first year,” the insurance was valid from September 1 to December 1, 1929, plus one month, or up to December 31, 1929. But this is a misconception, which arises from the erroneous assumption that the statute refers to years dating from the delivery of the policy instead of years which by the contract followed the dates of the policy and of the premium payments.
The insistence that the policy permits any discrimination between insurants is without support in any of the terms of the policy in suit. The remaining contentions based on the state law are not deemed to possess merit.
Many cases are cited by counsel for appellee to sustain her claim. Generally, the facts upon which they proceed are so vitally different from those shown here that the citations are not in point. It would be a vain effort to analyze them and point out the difference. It may not be amiss, however, to notice McMaster v. New York Life Ins. Co., 183 U. S. 25, 22 S. Ct. 10, 46 L. Ed. 64, on which appellee relies. In that case, the understanding of the assured and agent of the company was that payment of one year’s premium obtained insurance for thirteen months. That period had not expired at the death of the assured. It was held the company might not maintain the. insurance ran from the earlier date of the application and lapsed before his death, when it appeared the agent had inserted in the application, without the knowledge or consent of the assured, a request that the policies be dated and take effeet on the date of the application; and it was further held that the plaintiff was not estopped to deny the insurance was forfeited in thirteen months from that date. It is obvious the case is inapplicable, and the courts have distinguished it. Forch v. West L. I. Co., 157 Ill. App. 244; Johnson v. Mut. Benefit L. Ins. Co. (C. C. A.) 143 F. 950; Tigg v. Register L. & A. Ins. Co., 152 Iowa, 720, 133 N. W. 322; Pladwwll v. Trav. Ins. Co., 134 Misc. Rep. 205, 234 N. Y. S. 287; Wilkie v. N. Y. Life Ins. Co., 146 N. C. 513, 60 S. E. 427; McCampbell v. N. Y. Life Ins. Co. (C. C. A.) 288 F. 465; Wilkinson v. Commonwealth L. Ins. Co., 176 Ky. 833, 197 S. W. 557, 6 A. L. R. 769.
It was certainly competent for the parties to this insurance to agree upon the dates of the policy and of the premium payments. Mut. Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102; Whitney v. Union Cent. L. Ins. Co. (C. C. A.) 47 F.(2d) 861. Accordingly, the policy lapsed on December 23, 1929, before the death of the insured, for the nonpayment of premium required by the contract of the parties. New York Life Insurance Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789; Klein v. Insurance Co., 104 U. S. 88, 26 L. Ed. 662; Lincoln Nat. Life Ins. Co. v. Hammer (C. C. A.) 41 F.(2d) 12.
The District Court therefore erred in rendering judgment for the appellee. The appellant should have prevailed. The judgment is reversed, and the cause is remanded, with direction to render judgment dismissing the action, and taxing all costs to appellee. Howbert v. Penrose (C. C. A.) 38 F.(2d) 577, 68 A. L. R. 820.
Reversed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_r_fiduc
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CONSUMERS POWER CO. v. NASH et al. SAME v. McDERMlTT et al.
Nos. 10447, 10448.
Circuit Court of Appeals, Sixth Circuit.
Dec. 8, 1947.
Maxwell F. Badgley, of Jackson, Mich. (Brownell & Gault, of Flint, Mich., and W. R. Roberts, of Jackson, Mich., on the brief; Bisbee, McKone, Badgley & Mc-Inally and Maxwell F. Badgley, all of Jackson, Mich., of counsel), for appellant.
Elmer H. Groefsema, of Detroit, Mich. (Elmer, H. Groefsema, of Detroit, Mich., on the brief), for appellees.
Before SIMONS, ALLEN and MARTIN, Circuit Judges.
SIMONS, Circuit Judge.
The appeal record tells the tragic story of a gas explosion in and about the home of George Nash, near Flint, Michigan, on Jan. 19, 1946. The house and its contents were completely destroyed by fire and all persons in it were severely burned,— some fatally. Mrs. Nash, her daughter Annette, and Mrs. McDermitt, a visiting neighbor, died as the result of burns and injuries received. George Nash, aged three, and Clarence Colter, received burns necessitating numerous skin grafts; Georgette Nash was less seriously burned, and Mr. McDermitt was burned in attempting his wife’s rescue. Nine law suits resulted which were consolidated for trial, and the ju'ry returned a verdict for each plaintiff. Two appeals were lodged, one seeking to set aside the verdicts in favor of the members of the Nash family, and the other to set aside the verdicts for McDermitt. The appeals were consolidated, with a single record, and argued together.
The appellant had restored gas service to the Nash home on or about January 19, 1946, using an old service line which had been underground for almost 17 years, had been unused since April 10, 1933, and disconnected from the main line since April 20, 1944. There was substantial evidence that the service line was in bad order; that the appellant did not make a sufficient test of its condition; and had failed to correct impairment after it knew, or should have known, that gas was escaping. It was sufficient to take the case to the jury upon the issue of appellant’s negligence. It is unnecessary to cite authority for the rule that we will not weigh the evidence or determine the credibility of witnesses. If a generally injurious resu.lt should have been foreseen as reasonably probable, the appellant was responsible for the injuries which followed, even though it could not have foreseen the precise manner in which the explosive gases might be vitalized. Reasonable apprehension of danger constitutes both the criterion of liability and of the causal relation between negligence and injury if there is no intervening efficient independent cause. This has been so thoroughly discussed by us in Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193, that we need add nothing to what was there said, except to observe that Michigan law is in full accord. Kruis v. Grand Rapids etc. R. Co., 190 Mich. 105, 155 N.W. 742.
Decision might well be rested on the stated principles except that a single contention of the appellant gives us pause. It is the rule in Michigan that one seeking recovery for negligence must not only show that the defendant was negligent but that he himself was free from contributory negligence. Faustman v. Hewitt, 274 Mich. 458, 264 N.W. 863; Collar v. Maycroft, 274 Mich. 376, 264 N.W. 407; Pulford v. Mouw, 279 Mich. 376,272 N.W. 713; Slingerland v. Snell, 283 Mich. 524, 278 N.W. 672. In death cases, however, there is a presumption that the decedent was exercising due care, though where there is an eyewitness to the accident the presumption disappears and the question of the plaintiff’s contributory negligence is at large upon the proofs. Foote v. Huelster, 272 Mich. 194, 261 N.W. 296; Faustman v. Hewitt, supra; Collar v. Maycroft, supra.
Clarence Colter, who survived the explosion and fire, was available in court at the time of the trial. He was ten years old at the time of the accident and eleven when the case was tried. It is the appellant’s contention that because he was in the house at the time of the explosion he was therefore an eyewitness,. and as the only party capable of testifying to the activities of the injured and deceased persons during the period immediately preceding the accident, he should have been called by the plaintiffs in order to sustain the burden of proof which rested upon them to show that they and their decedents were free from-negligence, and, this not having been done, the case in respect to all injured adults failed and the court should have granted the appellant’s motion for a directed verdict.
In evaluating this contention it becomes necessary to consider the scope of the Michigan doctrine. In Teipel v. Hilsendegen, 44 Mich. 461, 7 N.W. 82, Mr. Justice Cooley, as early as 1891, conceding that absence of contributory negligence is part of the plaintiff’s case, observed that if the facts and circumstances show negligence from which injury followed as a direct and proximate consequence and do not show any contributory nagligence, a prima facie case is made out for the jury. It is not necessary that absence of contributory negligence should be shown beyond cavil or question, and if the circumstances are such that reasonable minds might draw different conclusions respecting plaintiff’s fault, he is entitled to go to the jury upon the facts. In Cole v. Railway Co., 81 Mich. 156, 45 N.W. 983, the failure of an eyewitness to testify did not entitle defendant to a directed verdict. Later cases have held that the question of contributory negligence is always a question of fact for the jury, Thurkow v. City of Detroit, 292 Mich. 617, 291 N.W. 29; that freedom from negligence may be deduced from circumstances, Burghardt v. Railway, 206 Mich. 545, 173 N.W. 360, 5 A.L.R. 1333; and that contributory negligence, as a matter of law, cannot be imputed from failure to anticipate unlawful acts, Sanderson v. Barkman, 264 Mich. 152, 249 N.W. 492.
The rule that in a death case there may be no verdict for the plaintiff if there is an eyewitness available who has not been called, seems to have been developed primarily in automobile collision cases, and the appellant’s references are almost solely to such cases. It would appear to be a rule of necessity applicable to dangerous modern instrumentalities in the hands of the general public. Reason appears to support the rule, for observation may throw light on the conduct of the decedent for whom the presumption would otherwise be of avail, and injustice be averted. Presumptions are but generalizations from experience and must give way to evidence, when living witnesses may intelligently speak. The sensory impressions of eyewitnesses to an automobile collision, where time interval between fault and injury is frequently measurable, permit a judgment to be formed both as to primary and contributory negligence. It is difficult to comprehend, however, in what respect the impressions of one injured by the instantaneous and unexpected explosion of gases, can aid court or jury to appraise causes or conduct. We have found no case that extends the eyewitness rule to an accident caused by an explosion. Peplinski v. Kleinke, 299 Mich. 86, 299 N.W. 818, does not so hold. There were no eyewitnesses to the accident there involved and the case was decided upon the presumption that the decedent was exercising due care for her own safety.
We do not conceive that Erie RR Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, in requiring us to follow local law, compels expansion of local doctrine to situations beyond the ambit of prior adjudication, nor that we are compelled to seek what Cardozo called “certainty in the word, the outward sign,” and are precluded from seeking “something deeper, a certainty of ends and aims.” We are not convinced that the Michigan rule requires us to consider as an eyewitness one unable to record impressions of value as to negligence when a victim of the force of explosive gases suddenly released.
Another reason contributes to our conclusion. Appellant’s counsel, with fertile speculation, catalogs possible acts or omissions which might have led to the concentration of explosive gases other than the negligence of the appellant, or have evidenced lack of due care on the part of one or more of the injured persons, and urges that young Colter might have supplied evidence in that respect. The possibilities are mainly limited to the basement of the Nash home, and there is no evidence that the boy was in the basement during the period preceding the explosion. Finally, it is not conceivable that a boy of ten, with no experience in a home supplied with gas, could have known, even if he smelled gas, that its concentration had reached a dangerous stage, or have been able to form a judgment as to whether others had sensed such concentration. We are of the view that the question of contributory negligence was an issue for the jury upon the facts, and that we are bound by its verdict.
The damages awarded to some of the plaintiffs were undoubtedly large, but the injuries were grave. It is not the province of this court to determine whether the verdicts were excessive,—that question lay with the court below upon a motion for new trial. Grand Trunk Western RR v. Heatlie, 6 Cir., 48 F.2d 759. Decision rested in the sound discretion of the district judge who saw and heard the witnesses and observed the injuries of those who survived. We are not persuaded that it was abused. No other prejudicial error properly reserved for review is perceived.
The judgments are affirmed.
“Jurisprudence,” an address to the New Nathan Cardozo” 1947, p. 9. York Bar. “Selected Writings of Benjamin
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_casetyp1_1-3-1
|
D
|
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 - federal offense".
Michael Robert SHAFFER, Appellant, v. UNITED STATES of America, Appellee.
No. 19624.
United States Court of Appeals Fifth Circuit.
Oct. 17, 1962.
Rehearing Denied Nov. 26, 1962.
Frank P. Fullerton, Joseph A. Calamia, El Paso, Tex., for appellant.
Frederick J. Morton, Asst. U. S. Atty., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., M. H. Raney, Asst. U. S. Atty., El Paso, Tex., for ap-pellee.
Before TUTTLE, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.
PER CURIAM.
This is an appeal from a felony conviction for an “assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse * *.” 18 U.S.C.A. § 113(c). The question involved here is whether the evidence is sufficient to support the trial Court’s finding that the admitted assault was “with intent to do bodily harm.” Under the statute this element distinguishes a felony from a misdemeanor. 18 U.S.C.A. § 113(e). We hold that the evidence is sufficient.
At the time of the offense, the defendant, a PFC in the United States Army, was confined in the Stockade at Ft. Bliss, Texas. While out on detail with two other prisoners and accompanied by a guard carrying a 12 gauge sawed-off shotgun, the defendant snatched the gun from the guard and pumped a shell into the chamber. Holding the gun in both hands and waving it back and forth, the defendant asked the other prisoners if they desired to go with him. They replied negatively. Defendant then made his escape after telling the guard and the other prisoners to remain in the latrine for five minutes or he would shoot their heads off.
The Court below found that the loaded gun was a dangerous weapon. Not even the defendant could quarrel with this obvious fact. Certainly an instrument of this sort which is capable of inflicting grave bodily harm or death is a dangerous weapon.
Obviously, the defendant here did not have a legal justification or excuse for his actions. He was confined in an Army “jail.” To effectuate his escape, he brandished a loaded gun in the presence of others and threatened them with bodily harm should they make any effort to stop him.
There can be no real question of proof of an “assault.” The proof of malice is not a necessary ingredient of an assault. Neither is it necessary that there actually be an attempt to commit a battery. It is sufficient if, viewed from the standpoint of the victim, there is an apparent intent to commit a battery coupled with a present ability to do so. These facts were present here.
The only possible question is whether there is sufficient evidence to support the finding that the defendant had the requisite “intent to do bodily harm” to his guard or the other prisoners. This is not to be measured by the secret motive of the actor or some undisclosed purpose merely to frighten, not to hurt. This is to be judged objectively from the visible conduct of the actor and' what one in the position of the victim might reasonably conclude. The present ability of the defendant to fire the gun, the fact that he pumped a shell into the chamber, flourished the apparently loaded gun in the presence of the others, and threatened some or all that he would shoot unless they did his bidding was quite ample for the trier to conclude that unless the threat alone was enough, the defendant intended bodily harm.
Affirmed.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Martin RADOVICH, Libelant-Appellant, v. CUNARD STEAMSHIP CO., Ltd., Respondent-Impleading Petitioner-Appellee, v. JOHN T. CLARK & SON and Gourock Ropework Co., Ltd., Respondents-Impleaded.
No. 342, Docket 29867.
United States Court of Appeals Second Circuit.
Argued April 25, 1966.
Decided July 18, 1966.
Kaufman, Circuit Judge, dissented.
Chester A. Hahn, New York City (Sylvia Miller, New York City, on the brief), for libelant-appellant.
William J. Brennan, New York City (Lord, Day & Lord, New York City, on the brief), for respondent-impleading petitioner-appellee.
Joseph Arthur Cohen, New York City (Alexander, Ash & Schwartz, New York City; Sidney A. Schwartz, New York City, on the brief), for respondent-impleaded-appellee John T. Clark & Son.
Before SMITH, KAUFMAN and FEINBERG, Circuit Judges.
FEINBERG, Circuit Judge:
This is an appeal by libelant Martin Radovich from a decree of the district court dismissing his libel for personal injuries against the shipowner, Cunard Steamship Co., Ltd. For the reasons indicated below, we reverse.
Radovich, a longshoreman, was working aboard Cunard’s R.M.S. Mauretania on the morning of July 2, 1961, helping to unload cargo. Radovich was on deck as an “extra man,” participating in the discharge of automobiles through a hatch. An “extra man” holds a guide line attached to the car to keep it from striking anything on deck as it is carried through the air. Cunard supplied a standard 3% inch, three-strand rope for the “Burton” fall, which controls horizontal motion of the cargo. The longshoremen fixed the rope in a single purchase, in which a single length is connected to the wire fall, which controls vertical movement. In a double purchase, two pulleys and two lengths of rope are used, decreasing the speed of the operation but increasing the strength of the rigging. The unloading began with the removal of several small foreign cars; after an hour and a half, the longshoremen attempted to unload a much heavier (3,600 pound) sedan. The car was lifted through the hatch and moved across the deck toward the pier. At a point above the railing, the Burton fall rope parted and the car fell; its sustaining bridle struck and injured Radovich, who was knocked to the deck. The rope supplied by Cunard was new, unused, and without latent defect. Claims of negligence and unseaworthiness were held unfounded by the trial court, and the libel was dismissed. Cunard had impleaded libelant’s employer, John T. Clark & Son, and was awarded litigation expenses as against this stevedoring company because of the longshoremen’s negligence in using a single purchase.
Radovich argues first that his proof that the rope snapped suddenly in the midst of the ordinary performance of the operation raised a presumption under the doctrine of res ipsa loquitur that the rope was insufficient for its intended purpose, and Cunard did not adduce sufficient evidence to explain away or rebut this presumption. This statement of the res ipsa doctrine is faulty in a number of respects, but it is unnecessary to dwell on this point. It suffices to say that the trial judge found that the rope was new, unused, and without latent defect and broke solely because too great a strain was placed upon it and that these findings are clearly supported by the evidence.
Radovich’s other claim is more substantial. The trial judge found that the sedan was too heavy for the single purchase, that the sole reason the rope parted was that the longshoremen tried to lift the car without re-rigging the gear, and that a double purchase would have been effective. Accepting this finding arguendo, Radovich concludes that this proves unseaworthiness. The trial court reasoned that the use of the single purchase was the cause of the accident and, being an act, the cause was not a condition (unseaworthiness), but rather was operational negligence by the longshoremen. The cases in this circuit do make a distinction between operational negligence and an unseaworthy condition negligently created, denying the ship’s liability in the former case. The distinction was recently re-affirmed in Norfleet v. Isthmian Lines, Inc., 355 F.2d 359 (2d Cir. 1966), and Skibinski v. Waterman S.S. Corp., 360 F.2d 539 (2d Cir. 1966).
The difference between operational negligence and unseaworthiness has been questioned in this circuit and is not accepted in some other jurisdictions. The difficulty lies in defining when negligent conduct ends and an unseaworthy condition begins. The court below characterized the distinction as “metaphysical” and a quick glance at some of our cases engenders sympathy for a trial judge attempting to reconcile them. Thus, in Grillea v. United States, 232 F.2d 919 (2d Cir. 1956), a leading case on this point, the wrong hatch cover was placed over a pad-eye “only a short time” before libelant, a longshoreman, stepped on it and it gave way beneath him. This was held (2-1) to constitute a condition of unseaworthiness. On the other hand, in Puddu v. Royal Netherlands S.S. Co., 303 F.2d 752, 756 (2d Cir.) (per curiam en banc), cert. denied, 371 U.S. 840, 83 S.Ct. 67, 9 L.Ed.2d 75 (1962), also frequently cited on this issue, a boom buckled while a rain tent was being raised and the falls of a winch were being stretched to a dangerously large angle. This court affirmed (7-2) a finding that no condition of unseaworthiness had been created. In Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2d Cir. 1950), cert. denied, 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343 (1951), the manner of hooking up two bridles to lift a heavy piece of metal was unsafe and rendered the ship’s gear unseaworthy. In Skibinski v. Waterman S.S. Corp., supra, plaintiff was injured because an open-mouth cargo hook without any locking device was used to lower a ladder which fell upon plaintiff; this court affirmed (2-1) a finding that the ship was unseaworthy. In Massa v. C. A. Venezuelan Navigacion, 332 F.2d 779 (2d Cir.), cert. denied, 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 186 (1964), this court affirmed a finding that pallets hooked to a loading mechanism were reasonably fit, even though tongs had been placed in the wrong holes. In Spinelli v. Isthmian S.S. Co., 326 F.2d 870 (2d Cir.) (per curiam), cert. denied, 377 U.S. 935, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964), the trial judge found that a winch was not defective and that the accident happened because a stevedore changed from loads of six pipes on a winch to loads of nine pipes, thus creating too much of a strain on the winch; this court affirmed a finding that there was no unseaworthiness. In Reid v. Quebec Paper Sales & Transp. Co., 340 F.2d 34 (2d Cir. 1965), this court affirmed (2-1) a finding that a ladder, which a fellow-worker failed to secure, rendered the ship unseaworthy.
If anything emerges from these cases other than the difficulty of apply' ing the act-condition (or operational negligence-unseaworthiness) dichotomy, it is that the findings of the trier of fact should be left undisturbed, if the law to be applied to the facts is properly understood. Thus, Puddu, Spinelli, Massa, Reid, Skibinski, and Strika were all affirmances of the trier of fact (the jury in the last case; the judge in the others). We believe that when the jury is properly instructed as to the law, the findings on the issue of whether operational negligence had given way to a condition of unseaworthiness should ordinarily be left undisturbed, even though a different jury might reach a contrary result. Since this assumes a correct impression of the governing law by the trier of fact, when the instructions are improper, the verdict cannot stand. Norfleet v. Isthmian Lines, Inc., supra. Similarly, while there may be less leeway for inconsistent results when the trier of fact is a judge, see Mamiye Bros. v. Barber S.S. Lines, Inc., 360 F.2d 774 (2d Cir. 1966), here too the finding should ordinarily stand unless the court manifests an incorrect conception of the applicable law.
Applying these standards to this case, it is clear that Judge Cashin felt himself bound by two cases he considered indistinguishable from his own: Puddu v. Royal Netherlands S.S. Co., supra, and Spinelli v. Isthmian S.S. Co., supra. Thus, he stated:
In substance, this case is indistinguishable from the Puddu and Spinelli cases, supra. Too much stress was placed on serviceable equipment and that directly resulted in the injury to the libellant. In this Circuit such an act is operational negligence— it does not create an unseaworthy condition.
However, those cases did not preclude a finding of unseaworthiness by the court below. In Puddu and Spinelli, as indicated above, the issue was whether the (judge-made) findings of the trial court were clearly erroneous. By the same token, these cases did not hold that a contrary finding would have been clearly erroneous. If anything, Strika and Skibinski, supra, would seem closer to this case than Puddu and Spinelli. In both, unseaworthiness was based upon the type of loading mechanism used by longshoremen (in Strika, two bridles, instead of one, to lift a heavy piece of metal, and in Skibinski, an open-mouth (“S” shaped) cargo hook to lower a ladder). Both cases are strikingly similar to the instant case where use of a single strand of rope in a lifting operation, rather than a double strand, created a dangerous condition. Cf. Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959) (winch safety catch adjusted beyond the tolerance of the load). Therefore, since the court incorrectly regarded itself as bound to apply the operational negligence doctrine, we reverse. Upon retrial, the court can focus on the key issues of precisely what the act of “operational” negligence was, and whether that negligent act had come to a stop before the injury occurred. For example, there is a difference between an unsafe plan of operation, which creates a dangerous condition from the beginning of its execution, and a faulty execution of a proper plan. In determining the “act” of negligence, the trial court would have to decide whether use of the single-purchase to lift the 3,600 pound sedan was such a negligent plan which created the dangerous condition immediately upon its inception.
While we feel that the single-purchase was inappropriate and unreasonable for the use it was applied to, and that at the time the lifting of the heavier sedan began a condition of unseaworthiness already existed, we would not necessarily reverse a contrary determination on these key issues by a trial court not mistaken as to its power under the applicable law. Our dissenting brother does not want to “inflict on the district court the impossible task of dealing with words and phrases that are like beads of quicksilver.” If by this he means the distinction between operational negligence and an unseaworthy condition, we agree, as indicated above, that it is difficult to draw the line between them. A position that it is impossible to do so with fairness and reason in fact poses the question of whether the distinction should not be dispensed with altogether. However, we leave that issue for another day; we simply hold today that the facts in the instant case allow a finding of actionable unseaworthiness, and that any impression gleaned from our prior decisions that such a finding is impermissible is erroneous.
Reversed and remanded for proceedings consistent with this opinion.
. Cunard had also attempted to implead Gourock Ropework Co., Ltd., the alleged supplier of the rope used by the longshoremen. However, the claim against Gouroek was abandoned because Cunard was unable to serve process upon it.
. See Note, The Doctrine of Unseaworthiness in the Lower Federal Courts, 76 Harv.L.Rev. 819, 827-28 (1963).
. See Reid v. Quebec Paper Sales & Transp. Co., 340 F.2d 34, 37 (2d Cir. 1965). (“One does not have to be unduly cynical to look askance at this distinction, for every act of negligence, no matter how short-lived, creates an unsafe condition for those exposed to it.”)
. Ferrante v. Swedish Am. Lines, 331 F.2d 571 (3d Cir.), cert. dismissed, 379 U.S. 801, 85 S.Ct. 10, 13 L.Ed.2d 20 (1964); Scott v. Isbrandtsen Co., 327 F.2d 113 (4th Cir. 1964). Contra, Billeci v. United States, 298 F.2d 703 (9th Cir. 1962). See also Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548 n. 11, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).
. In Grillea, the trier of fact apparently did not reach the issue.
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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sc_respondent
|
137
|
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.
CATERPILLAR INC. v. LEWIS
No. 95-1263.
Argued November 12, 1996
Decided December 10, 1996
Kenneth S. Getter argued the cause for petitioner. With him on the briefs were Michael R. Feagley, John E. Muench, Charles Rothfeld, Leslie W. Morris II, James B. Buda, and William F. Maready.
Leonard, J. Stayton argued the cause for respondent. With him on the brief were Paul Alan Levy and Alan B. Morrison
Patrick W. Lee filed a brief for the Product Liability Advisory Council, Inc., as amicus curiae urging reversal.
Justice Ginsburg
delivered the opinion of the Court.
This case, commenced in a state court, involves personal injury claims arising under state law. The case was removed to a federal court at a time when, the Court of Appeals concluded, complete diversity of citizenship did not exist among the parties. Promptly after the removal, the plaintiff moved to remand the case to the state court, but the District Court denied that motion. Before trial of the case, however, all claims involving the nondiverse defendant were settled, and that defendant was dismissed as a. party to the action. Complete diversity thereafter existed. The case proceeded to trial, jury verdict, and judgment for the removing defendant. The Court of Appeals vacated the judgment, concluding that, absent complete diversity at the time of removal, the District Court lacked subject-matter jurisdiction. of
The question presented is whether the absence of complete diversity at the time of removal is fatal to federal-court adjudication. We hold that a district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered.
I
Respondent James David Lewis, a resident of Kentucky, filed this lawsuit in Kentucky state court on June 22, 1989, after sustaining injuries while operating a bulldozer. Asserting state-law claims based on defective manufacture, negligent maintenance, failure to warn, and breach of warranty, Lewis named as defendants both the manufacturer of the bulldozer — petitioner Caterpillar Inc., a Delaware corporation with its principal place of business in Illinois — and the company that serviced the bulldozer — Whayne Supply Company, a Kentucky corporation with its principal place of business in Kentucky.
Several months later, Liberty Mutual Insurance Group, the insurance carrier for Lewis’ employer, intervened in the lawsuit as a plaintiff. A Massachusetts corporation with its principal place of business in that State, Liberty Mutual asserted subrogation claims against both Caterpillar and Whayne Supply for workers’ compensation benefits Liberty Mutual had paid to Lewis on behalf of his employer.
Lewis entered into a settlement agreement with defendant Whayne Supply less than a year after filing his complaint. Shortly after learning of this agreement, Caterpillar filed a notice of removal, on June 21,1990, in the United States District Court for the Eastern District of Kentucky. Grounding federal jurisdiction on diversity of citizenship, see 28 U. S. C. § 1332, Caterpillar satisfied with only a day to spare the statutory requirement that a diversity-based removal take place within one year of a lawsuit’s commencement, see 28 U. S. C. § 1446(b). Caterpillar’s notice of removal explained that the case was nonremovable at the lawsuit’s start: Complete diversity was absent then because plaintiff Lewis and defendant Whayne Supply shared Kentucky citizenship. App. 31. Proceeding on the understanding that the settlement agreement between these two Kentucky parties would result in the dismissal of Whayne Supply from the lawsuit, Caterpillar stated that the settlement rendered the case removable. Id., at 31-32.
Lewis objected to the removal and moved to remand the case to state court. Lewis acknowledged that he had settled his own claims against Whayne Supply. But Liberty Mutual had not yet settled its subrogation claim against Whayne Supply, Lewis asserted. Whayne Supply’s presence as a defendant in the lawsuit, Lewis urged, defeated diversity of citizenship. Id., at 36. Without addressing this argument, the District Court denied Lewis' motion to remand on September 24, 1990, treating as dispositive Lewis’ admission that he had settled his own claims against Whayne Supply. Id., at 55.
Discovery, begun in state court, continued in the now federal lawsuit, and the parties filed pretrial conference papers beginning in July 1991. In June 1993, plaintiff Liberty Mutual and defendant Whayne Supply entered into a settlement of Liberty Mutual’s subrogation claim, and the District Court dismissed Whayne Supply from the lawsuit. With Caterpillar as the sole defendant adverse to Lewis, the case proceeded to a six-day jury trial in November 1993, ending in a unanimous verdict for Caterpillar. The District Court entered judgment for Caterpillar on November 23, 1993, and denied Lewis’ motion for a new trial on February 1, 1994.
On appeal, the Court of Appeals for the Sixth Circuit accepted Lewis’ argument that, at the time of removal, Whayne Supply remained a defendant in the case due to Liberty Mutual’s subrogation claim against it. App. to Pet. for Cert. 8a. Because the party lineup, on removal, included Kentucky plaintiff Lewis and Kentucky defendant Whayne Supply, the Court of Appeals observed that diversity was not complete when Caterpillar took the case from state court to federal court. Id., at 8a-9a. Consequently, the Court of Appeals concluded, the District Court “erred in denying [Lewis’] motion to remand this case to the state court for lack of subject matter jurisdiction.” Id., at 9a. That error, according to the Court of Appeals, made it necessary to vacate the District Court’s judgment. Ibid.
Caterpillar petitioned for this Court’s review. Caterpillar stressed that the nondiverse defendant, Whayne Supply, had been dismissed from the lawsuit prior to trial. It was therefore improper, Caterpillar urged, for the Court of Appeals to vacate the District Court’s judgment — entered after several years of litigation and a six-day trial — on account of a jurisdictional defect cured, all agreed, by the time of trial and judgment. Pet. for Cert. 8. We granted certiorari, 517 U. S. 1133 (1996), and now reverse.
II
The Constitution provides, in Article III, §2, that “[t]he judicial Power [of the United States] shall extend ... to Controversies . . . between Citizens of different States.” Commencing with the Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78, Congress has constantly authorized the federal courts to exercise jurisdiction based on the diverse citizenship of parties. In Strawbridge v. Curtiss, 3 Cranch 267 (1806), this Court construed the original Judiciary Act’s diversity provision to require complete diversity of citizenship. Id., at 267. We have adhered to that statutory interpretation ever since. See Carden v. Arkoma Associates, 494 U. S. 185, 187 (1990). The current general-diversity statute, permitting federal district court jurisdiction over suits for more than $50,000 “between . . . citizens of different States,” 28 U. S. C. § 1332(a), thus applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant.
When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court, 28 U. S. C. § 1441(a), provided that no defendant “is a citizen of the State in which such action is brought,” § 1441(b). In a case not originally removable, a defendant who receives a pleading or other paper indicating the postcommencement satisfaction of federal jurisdictional requirements — for example, by reason of the dismissal of a nondiverse party — may remove the case to federal court within 30 days of receiving such information. § 1446(b). No case, however, may be removed from state to federal court based on diversity of citizenship “more than 1 year after commencement of the action.” Ibid.
Once a defendant has filed a notice of removal in the federal district court, a plaintiff objecting to removal “on the basis of any defect in removal procedure” may, within 30 days, file a motion asking the district court to remand the case to state court. § 1447(c). This 30-day limit does not apply, however, to jurisdictional defects: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Ibid.
I — l I — < H-I
We note, initially, two givens in this case as we have accepted it for review. First, the District Court, in its decision denying Lewis’ timely motion to remand, incorrectly treated Whayne Supply, the nondiverse defendant, as effectively dropped from the case prior to removal. See App. 55. Second, the Sixth Circuit correctly determined that the complete diversity requirement was not satisfied at the time of removal. App. to Pet. for Cert. 8a-9a. We accordingly home in on this- question: Does the District Court’s initial misjudgment still burden and run with the case, or is it overcome by the eventual dismissal of the nondiverse defendant? decisions in
come Petitioner Caterpillar relies heavily on our decisions in American Fire & Casualty Co. v. Finn, 341 U. S. 6 (1951), and Grubbs v. General Elec. Credit Corp., 405 U. S. 699 (1972), urging that these decisions “long ago settled the proposition that remand to the state court is unnecessary even if jurisdiction did not exist at the time of removal, so long as the district court had subject matter jurisdiction at the time of judgment.” Brief for Petitioner 8-9. Caterpillar is right that Finn and Grubbs are key cases in point and tend in Caterpillar’s favor. Each suggests that the existence of subject-matter jurisdiction at time of judgment may shield a judgment against later jurisdictional attack. But neither decision resolves dispositively a controversy of the kind we face, for neither involved a plaintiff who moved promptly, but unsuccessfully, to remand a case improperly removed from state court to federal court, and then challenged on appeal a judgment entered by the federal court.
In Finn, two defendants removed a case to federal court on the basis of diversity of citizenship. 341 U. S., at 7-8. Eventually, final judgment was entered for the plaintiff against one of the removing defendants. Id., at 8. The losing defendant urged on appeal, and before this Court, that the judgment could not stand because the requisite diversity jurisdiction, it turned out, existed neither at the time of removal nor at the time of judgment. Agreeing with the defendant, we held that the absence of federal jurisdiction at the time of judgment required the Court of Appeals to vacate the District Court’s judgment. Id., at 17-18. ■
Finn's holding does not speak to the situation here, where the requirement of complete diversity was satisfied at the time of judgment. But Caterpillar points to well-known dicta in Finn more helpful to its cause. “There are cases,” the Court observed, “which uphold judgments in the district courts even though there was no right to removal.” Id., at 16. “In those cases,” the Finn Court explained, “the federal trial court would have had original jurisdiction of the controversy had it been brought in the federal court in the posture it had at the time of the actual trial of the cause or of the entry of the judgment.” Ibid.
The discussion in Finn concentrated on cases in which courts held removing defendants estopped from challenging final judgments on the basis of removal errors. See id., at 17. The Finn Court did not address the situation of a plaintiff such as Lewis, who chose a state court as the forum for his lawsuit, timely objected to removal before the District Court, and then challenged the removal on appeal from an adverse judgment.
In Grubbs, a civil action filed in state court was removed to federal court on the petition of the United States, which had been named as a party defendant in a “cross-action” filed by the original defendant. 405 U. S., at 700-701; see 28 U. S. C. § 1444 (authorizing removal of actions brought against the United States, pursuant to 28 U. S. C. § 2410, with respect to property on which the United States has or claims a lien). No party objected to the removal before trial or judgment. See Grubbs, 405 U. S., at 701. The Court of Appeals nonetheless held, on its own motion, that the “inter-pleader” of the United States was spurious, and that removal had therefore been improper under 28 U. S. C. § 1444. See Grubbs, 405 U. S., at 702. On this basis, the Court of Appeals concluded that the District Court’s judgment should be vacated and the case remanded to state court. See ibid.
This Court reversed. Id., at 700. We explained:
“Longstanding decisions of this Court make clear . . . that where after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it been filed in that court.” Id., at 702.
We concluded that, “whether or not the case was properly removed, the District Court did have jurisdiction of the parties at the time it entered judgment.” Id., at 700. “Under such circumstances,” we held, “the validity of the removal procedure followed may not be raised for the first time on appeal.” Ibid, (emphasis added). Grubbs instructs that an erroneous removal need not cause the destruction of a final judgment, if the requirements of federal subject-matter jurisdiction are met at the time the judgment is entered. Grubbs, however, dealt with a case removed without objection. The decision is not dispositive of the question whether a plaintiff, who timely objects to removal, may later successfully challenge an adverse judgment on the ground that the removal did not comply with statutory prescriptions.
Beyond question, as Lewis acknowledges, there was in this case complete diversity, and therefore federal subject-matter jurisdiction, at the time of trial and judgment. See Brief for Respondent 18-19 (diversity became complete “when Liberty Mutual settled its subrogation claim with Whayne Supply and the latter was formally dismissed from the case”). The case had by then become, essentially, a two-party lawsuit: Lewis, a citizen of Kentucky, was the sole plaintiff; Caterpillar, incorporated in Delaware with its principal place of business in Illinois, was the sole defendant Lewis confronted. Caterpillar maintains that this change cured the threshold statutory misstep, i. e., the removal of a case when diversity was incomplete. Brief for Petitioner 7,13.
Caterpillar moves too quickly over the terrain we must cover. The jurisdictional defect was cured, i. e., complete diversity was established before the trial commenced. Therefore, the Sixth Circuit erred in resting its decision on the absence of subject-matter jurisdiction. But a statutory flaw — Caterpillar’s failure to meet the § 1441(a) requirement that the case be fit for federal adjudication at the time the removal petition is filed — remained in the unerasable history of the case.
And Lewis, by timely moving for remand, did all that was required to preserve his objection to removal. An order denying a motion to remand, “standing alone,” is “[o]bviously . . . not final and [immediately] appealable” as of right. Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574, 578 (1954). Nor is a plaintiff required to seek permission to take an interlocutory appeal pursuant to 28 U. S. C. § 1292(b) in order to avoid waiving whatever ultimate appeal right he may have. Indeed, if a party had to invoke § 1292(b) in order to preserve an objection to an interlocutory ruling, litigants would be obliged to seek § 1292(b) certifications constantly. Routine resort to § 1292(b) requests would hardly comport with Congress’ design to reserve interlocutory review for “ ‘exceptional’ ” cases while generally retaining for the federal courts a firm final judgment rule. Coopers & Lybrand v. Livesay, 437 U. S. 463, 475 (1978) (quoting Fisons, Ltd. v. United States, 458 F. 2d 1241, 1248 (CA7), cert. denied, 405 U. S. 1041 (1972)).
Having preserved his objection to an improper removal, Lewis urges that an “all’s well that ends well” approach is inappropriate here. He maintains that ultimate satisfaction of the subject-matter jurisdiction requirement ought not swallow up antecedent statutory violations. The course Caterpillar advocates, Lewis observes, would disfavor diligent plaintiffs who timely, but unsuccessfully, move to check improper removals in district court. Further, that course would allow improperly removing defendants to profit from their disregard of Congress’ instructions, and their ability to lead district judges into error.
Concretely, in this very case, Lewis emphasizes, adherence to the rules Congress prescribed for removal would have kept the case in state court. Only by removing prematurely was Caterpillar able to get to federal court inside the one-year limitation set in § 1446(b). Had Caterpillar waited until the case was ripe for removal, i. e., until Whayne Supply was dismissed as a defendant, the one-year limitation would have barred the way, and plaintiff’s choice of forum would have been preserved.
These arguments are hardly meritless, but they run up against an overriding consideration. Once a diversity case has been tried in federal court, with rules of decision supplied by state law under the regime of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), considerations of finality, efficiency, and economy become overwhelming.
Our decision in Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826 (1989), is instructive in this regard. Newman-Green did not involve removal, but it did involve the federal courts’ diversity jurisdiction and a party defendant whose presence, like Whayne Supply’s in this case, blocked complete ' diversity. Newman-Green proceeded to summary judgment with the jurisdictional flaw — the absence of complete diversity — undetected. See id., at 828-829. The Court of Appeals noticed the flaw, invited the parties to address it, and, en banc, returned the case to the District Court “to determine whether it would be prudent to drop [the jurisdiction spoiler] from the litigation.” Id., at 830. We held that the Court of Appeals itself had authority “to dismiss a dispensable nondiverse party,” although we recognized that, ordinarily, district courts are better positioned to make such judgments. Id., at 837-838., “[Requiring dismissal after years of litigation,” the Court stressed in Newman-Green, “would impose unnecessary and wasteful burdens on the parties, judges, and other litigants waiting for judicial attention.” Id., at 836. The same may be said of the remand to state court Lewis seeks here. Cf. Knop v. McMahan, 872 F. 2d 1132, 1139, n. 16 (CA3 1989) (“To permit a case in which there is complete diversity throughout trial to proceed to judgment
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_dissent
|
0
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES, Plaintiff-Appellee, v. Evan Raymond DALE, Defendant-Appellant.
No. 11427.
United States Court of Appeals Seventh Circuit.
May 26, 1955.
John J. Hoban, East St. Louis, 111., for appellant.
C. M. Raemer, U. S. Atty., East St. Louis, 111., and Edward G. Maag, Asst. U. S. Atty., East St. Louis, III., for appellee.
Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
DUFFY, Chief Judge.
This is a petition by defendant to be enlarged upon bail pending an appeal to this Court from his conviction under the provisions of Title 18 U.S.C. § 1951, known as the Anti-Racketeering Act. Defendant was tried before a jury upon an indictment containing three counts.
In the first count defendant and another were charged with conspiracy to obstruct interstate commerce by extorting $1,030,000 “by calling and conjuring up strikes, causing labor disputes, work stoppages, and difficulties in connection with the construction of” the power plant being constructed at Joppa, Illinois, “under various pretexts and claims of right but not actually for the purpose of obtaining legitimate labor objectives * * This count charged the attempted extortion from Ebasco Services, Inc. and Electric Energy, Inc. and the officers and agents of both. Ebasco Services, Inc. was the contractor, and Electric Energy, Inc. was the owner of the power plant being erected which was to furnish electric power for an atomic energy plant in Kentucky.
The second count charged the defendant and another with attempting to extort $1,030,000 from the same victims as alleged in count one. The third count charged the defendant alone with obstructing interstate commerce by extortion by extorting $7,500 from Maxon Construction Company, a sub-contractor under Ebasco Services, Inc.
The jury found the defendant guilty on all three counts and the District Judge sentenced defendant Dale to imprisonment for 15 years on each count, said sentences to run concurrently, and he imposed a fine of $10,000.00. Judge Wham refused defendant’s petition to be enlarged upon bail pending appeal, referring to Dale as a “menace” because of his threats to his community and his disloyalty to his Union.
Defendant concedes that there is ample evidence in the record from which the jury could conclude that the defendant threatened economic loss in the form of labor trouble if defendant’s demands for money were not met. Testimony at the trial also showed that defendant Dale asserted to his victims that 15 years ago he had been a chauffeur for a gangster, Blackie Perazzo of Chicago, and that by reason of Perazzo’s murder, it had been necessary for Dale to leave Chicago. He also told his victims that 15 years previously he had exchanged his shovel for a blackjack and had been using it effectively ever since, and bragged about his control over 38,000 laborers in southern Illinois, Indiana and Kentucky. Dale asserted to his victims that if they did not perform business in the “customary manner” trouble usually developed, and that one contractor failed to do business in the “customary manner” and seven men were killed. Defendant boasted that he had been indicted for murder but that the State’s Attorney who had procured the indictment was defeated at the next election by the labor vote controlled by defendant. Dale asserted to his victims that the job never would be completed unless they did business in the “customary manner” and that an example of what would happen if they failed to do so was a job where there had been 87 work stoppages. Dale explained to his victims that to insure labor peace it was customary to pay him 1% of the contract price in cash.
Rule 46(a) (2) Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: “Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. * * * ” Defendant contends a substantial question is involved because he claims that the Anti-Racketeering Act does not punish as extortion the obtaining of money or other valuable consideration by “fear” of mere economic reprisal. Secondly, defendant contends that there is not sufficient evidence in the record to support the charge that defendant was guilty of extortion by inspiring fear of physical violence. Defendant’s third point is that he was denied his constitutional rights because about a year prior to the time of the trial he was required to submit to inquisition before a Missouri grand jury at which time questions were directed to him with reference to certain labor practices at Joppa, Illinois.
We consider first defendant’s principal contention that a substantial question is here presented for review because “fear” of economic loss is insufficient to support a conviction under the Anti-Racketeering Statute. Defendant says: “This question appears never to have been directly decided in any court.” In making this claim defendant’s counsel is clearly in error. The most recent case is Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied 75 S.Ct. 604. That Court, after pointing out that the Anti-Racketeering Act does not curtail legitimate labor activities, and after setting forth the same contentions made by the defendants there as made by the defendant here, stated, 219 F.2d at page 189: “Defendants have cited no authority sustaining their position. We conclude that ‘fear’ as defined in the extortion section of the Anti-Racketeering Act should be given its ordinary meaning, and consequently ‘fear’ would include fear of economic loss.” The Court also pointed out that in Nick v. United States, 8 Cir., 122 F.2d 660, 138 A.L.R. 791, the only threat that Nick had made was to have his operators strike, and the only fear there involved was the fear of economic loss. Nevertheless, the Court there sustained the conviction under a statute where the wording was similar to the statute under which the defendant, in the instant case, was prosecuted.
Other cases where courts have held fear of economic loss and injury is sufficient under the extortion section of the Anti-Racketeering Act are United States v. Compagna, 2 Cir., 146 F.2d 524, and Hulahan v. United States, 8 Cir., 214 F.2d 441. We find no authority to the contrary. We do not think a substantial question is presented on this point.
Defendant seems to concede that if he had used threats which inspired fear of physical violence and extorted or attempted to extort money by reason thereof, such conduct would be within the scope of the Anti-Racketeering Act. At least one count of the indictment herein made such a charge and defendant was found guilty thereof. Defendant now says that there was not sufficient evidence in the record to support that charge. Although we do not have the record before us, defendant here admits that witnesses (which the jury was entitled to believe) testified to threats made by defendant as hereinbefore set forth. We think such threats would naturally and logically inspire fear of physical violence. As the sentences imposed where to run concurrently the burden was upon petitioner to show error as to each count. Ex parte Cohen, 9 Cir., 191 F.2d 300, certiorari denied Cohen v. United States, 342 U.S. 947, 72 S.Ct. 551, 96 L.Ed. 704. See also United States of America v. Wheeler, 7 Cir., 219 F.2d 773, 774; United States v. Kelley, 7 Cir., 186 F.2d 598, 602, certiorari denied 341 U.S. 954, 71 S.Ct. 1004, 95 L.Ed. 1375, and United States v. Perplies, 7 Cir., 165 F.2d 874, 877. The petitioner has not met this burden.
The remaining point relied on by defendant is that the trial court erred in denying defendant’s belated motion to dismiss the indictment. This motion was presented on the second day of the trial and claimed that defendant was subpoenaed and testified before a grand jury in the State of Missouri, and that at said time he did not have an attorney, nor was he advised of his privilege against self-incrimination. Although we think there is no merit to defendant’s contention, see Thompson v. United States, 7 Cir., 10 F.2d 781, certainly his objection to the indictment was not timely made. The indictment had been filed many months before the date of the trial. Defendant was represented by competent counsel. No showing is made that defendant claimed his privilege. His objection comes too late. United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687; Rule 12, Federal Rules of Criminal Procedure, 18 U.S.C.A.
The attitude of this Court has been extremely liberal for granting petitions for enlargement upon bail pending appeal. However, we consider this an exceptional case. First, we are convinced that no substantial question is presented which should be determined by this Court. Second, if defendant were released on bail there would be a temptation, at least, for defendant to absent himself. The government points out that the defendant is presently under six indictments in the Eastern District of Illinois charging 37 violations of the Anti-Racketeering Act; that he is under an indictment in the Eastern District of Missouri charging offenses under the same statute, and that he is also under indictment in the Southern District of Illinois on the charge of evading more than $150,000 in income tax. Undoubtedly the District Court considered these numerous charges might be a temptation for the accused to seek a more hospitable climate.
Applications for release upon bail pending appeal have been denied in similar cases. In Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied, 75 S.Ct. 604, the defendant’s motion for enlargement upon bail was denied by both the trial court and by the Court of Appeals for the Eighth Circuit. Thereafter, on May 5, 1954, Mr. Justice Clark of the Supreme Court likewise denied the application. Likewise in United States v. Callanan, D.C., 113 F.Supp. 766, defendant and four others were convicted of conspiracy under the Anti-Racketeering Act and of substantive offenses under that Act. Callanan was sentenced to imprisonment for 12 years under each count, and bail was denied him by the District Court pending appeal. Application was made by Callanan to the United States Court of Appeals for the Eighth Circuit which petition was there denied, 223 F.2d 171, following which Callanan applied to the Justices of the Supreme Court, but enlargement upon bail was denied him during the October Term, 1954.
Petition for enlargement upon bail is
Denied.
. Some of the Court opinions refer to this section as the “Hobbs Act”. The original Anti-Racketeering Act of 1934, 48 Stat. 979, was re-enacted with amendments in 1946, 60 Stat. 420.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
BLENHEIM CO., Ltd., v. COMMISSIONER OF INTERNAL REVENUE.
No. 4830.
Circuit Court of Appeals, Fourth Circuit.
Feb. 25, 1942.
Richard H. Wilmer, of New York City (Joseph C. White and Thomas F. Boyle, both of New York City, on the brief), for petitioner.
Hubert L. Will, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge:
This is a petition for the review of a decision of the United States Board of Tax Appeals determining a deficiency in petitioner’s income tax liability for the calendar year 1934 in the sum of $1,691.77, and a penalty in the sum of $422.94. The decision of the Board is reported in 1940, 42 B.T.A. 1248.
Petitioner is a foreign corporation organized under the laws of the Colony of Newfoundland. On June 15, 1935, it filed a personal holding company surtax return on Form 1120H, for the calendar year 1934, with the Commissioner of Internal Revenue, at Baltimore, Maryland. This return showed the following items:
1. Net income (as defined m
Title I of the Revenue Act of 1934)..........$( 1,445.37)
2. Dividends on stock of
domestic corporations subject to taxation under Title I of the Revenue Act of 1934 (from Schedule A)... 11,626.12
3. Total of Items 1 and 2.. $ 10,180.75
Less:
6. Losses from sale or ex-
change of capital assets (disallowed by section 117(d) of the Revenue Act of 1934).... $ 144,594.24
8. Total of Items 4 to 7____$ 144,594.24
9. Adjusted Net Income
(Item 3 minus Item 8) $(134,413.49)
Thereafter, the Commissioner sent numerous letters to the petitioner and to its representatives both in the United States and in Canada, requesting that a normal income tax return (Form 1120) be prepared and filed, from which the total net income figure of $1,445.37 reported in the surtax return could be independently computed by the Commissioner. Harold P. Cornell was the petitioner’s secretary resident in the United States. It was his duty to prepare and file Federal income tax returns on petitioner’s behalf, and he did prepare and filed the above mentioned Form 1120H. However, he believed that no normal tax return on Form 1120 was required under the Internal Revenue Laws, because he thought Form 1120H contained all the information which would have been set forth on Form 1120, and because he also thought that the return on Form 1120 would show that petitioner did not have any net income subject to tax for the calendar year 1934.
For these reasons, Cornell did not file a timely return on Form 1120. However, it is not without note that Cornell had prepared other returns for domestic corporate taxpayers on Form 1120 for 1934, even though he had not prepared any such returns for a foreign corporation for that year. Moreover, he had prepared Form 1120 returns for foreign and domestic corporations for years prior to 1934, including returns for the petitioner.
After having received no response whatever to his numerous letters, the Commissioner of Internal Revenue, on April 28, 1938, prepared a normal tax return on Form 1120 for the petitioner. This was done pursuant to the authority granted in section 3176 of the Revised Statutes, as amended 26 U.S.C.A. Int.Rev.Code § 3612. The return showed gross income of $11,-626.12, consisting of dividends on stock of domestic corporations subject to taxation under Title I of the Internal Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 664 et seq., no deductions, net income of $11,-626.12, and a tax due of $1,598.59. A notice of this deficiency was duly mailed to petitioner on May 18, 1938.
The petitioner prepared and filed a normal tax return on Form 1120 for 1934 on August 9, 1938, at which time it did not know that the Commissioner had filed a return for it under § 3176 of the Revised Statutes. We pause to note that the return was filed four years after the date on which the return was due. In any event, the return was filled out in full in the usual fashion and showed a deficiency in income of $1,445.37, and no tax due. The attached schedules contained breakdowns of dividends and interest, petitioner’s securities transactions, and other detailed information.
The items of gross income received by petitioner from sources within the United States were as follows: dividends received from domestic corporations, $11,626.12; and gain derived from the sale of 2,500 shares of Pacific Gas & Electric Company common stock, $677.65. During the calendar year 1934, petitioner sustained losses on sales of securities which were capital assets within the meaning of Section 117(b) of the Internal Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 707, in the amount of $167,437.18. Petitioner’s ordinary and necessary expenses incurred in connection with earning income from sources within the United States during the calendar year 1934 totaled $1,283.77.
The Board of Tax Appeals held that petitioner’s failure to file its normal income tax return (Form 1120) until after the Commissioner had filed a return for it under the authorization of section 3176 of the Revised Statutes, deprived petitioner of any deductions it might ordinarily be entitled to claim in the computation of its normal income tax; and that the 25% penalty imposed by section 291 of the Internal Revenue Act of 1934, 26 U.S.C.A. Int.Rev. Acts, page 750, for a late filing was also applicable.
Accordingly, and pursuant to a computation by the Commissioner of Internal Revenue which was accepted by petitioner, the Board of Tax Appeals found (1) a deficiency in income tax for the year 1934 in the sum of $1,691.77; (2) a penalty thereon in the sum of $422.94 and (3) no defimsncy in personal holding company surtax for the year 1934.
Petitioner has duly appealed from the first two determinations of the Board. We are of the opinion that the Board was correct in each instance.
Petitioner is a foreign corporation and therefore subject to the special provisions of the Internal Revenue Act of 1934 applicable to such corporations. Of particular significance is section 233 of that Act which conditions the legislative grant of deductions and provides:
“Allowance' of deductions and credits
“A foreign corporation shall receive the benefit of the deductions and credits allowed to it in this title [chapter] only by filing or causing to be filed with the collector a true and accurate return of its total income received from all sources in the United States, in the manner, prescribed in this title [chapter] ; including therein all the information which the Commissioner may deem necessary for the calculation of such deductions and credits.” (Italics ours.)
26 U.S.C.A. Int.Rev.Code, § 233.
It is true that this section contains no reference to a time element. Nevertheless, we feel that the so-called normal tax return filed by petitioner on Form 1120 was not a sufficient or timely compliance with Section 233 to entitle the petitioner to the deductions claimed therein. See, decided by this Court, Boone County Coal Corporation v. United States, 4 Cir., 1941, 121 F.2d 988.
Let us review the chronology and effect of petitioner’s acts. On June 15, 1935, petitioner filed its personal holding company surtax return on Form 1120H. Examination of this return reveals that the first figure there reported is “Net income (as defined in Title I of the Revenue Act of 1934)”, which is the last or final figure on the regular corporate income and excess profits tax return, Form 1120. Since dividends from domestic corporations were subject to surtax, although not subject to normal tax, the second income figure called for in the surtax return is the total of such dividends.
In petitioner’s Form 1120H return, its net income was stated to be a red figure of $1,445.37. The Commissioner was, consequently, without any information as to the manner in which this amount was computed since the petitioner had not filed the normal return which would have revealed exactly how this figure was reached. Extended efforts by the Commissioner to get petitioner to file a Form 1120 return voluntarily were unsuccessful. Accordingly, the Commissioner was forced by petitioner’s inactivity and uncooperative attitude to prepare a return for petitioner, in which no deductions were allowed.
Shortly thereafter, on May 18, 1938, the Commissioner sent a notice of deficiency to petitioner based on the return. On August 9, 1938, the date on which the petition was filed with the Board, petitioner filed with the Collector at Baltimore, Maryland, a Form 1120 return which showed no tax due. This return for the first time presented the Commissioner with a breakdown of petitioner’s income and claimed deductions. But even this belated return was not entirely accurate. For example, it omitted an item of income realized on the sale in the United States of 2,500 shares of Pacific Gas & Electric Company common stock, while it included interest received from a foreign corporation, which did .not constitute income from a source within the United States under Section 119 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 709. In addition, a deduction of $50.00 for Newfoundland taxes was erroneously taken.
The difficulty here encountered by the Commissioner in attempting to ascertain the petitioner’s correct income tax is a striking example of the many administrative problems inherent in the application of the federal income tax to foreign corporations. This has prompted Congress to impose special conditions on such corporations. Indeed, unless a foreign corporation is induced voluntarily to advise the Commissioner of all of its income attributable to sources within the United States and of the exact .nature of all deductions from such income, the Commissioner may never learn even of the corporation’s existence, and, in any event, he will probably be unable to determine the correct amount of its taxable income.
The situation is pregnant with possibilities of tax evasion. In express recognition of this fertile danger to the orderly administration of the income tax as applied to foreign corporations, Congress conditioned its grant of deductions upon the timely filing of true, proper and complete returns. This is in addition, of course, to the 25% penalty provided by Section 291 of the 1934 Act for both foreign and domestic corporations which either file no return or a late return unless “reasonable cause” for the failure to file a timely return is shown. 26 U.S.C.A. § 291.
That Congress intended the condition in Section 233 to be strictly applied is apparent both from the use of the limitation “only” and from the fact that the “reasonable cause” exception relating to the 25% penalty was not included in Section 233.
This conclusion finds further support in the legislative history of Section 217 of the Revenue Act of 1918, 40 Stat. 1069, which allowed nonresident aliens the benefit of certain deductions and credits upon complying with specified conditions. The statute reads:
“Nonresident Aliens — Allowance Of Deductions And Credits
“Sec. 217. That a nonresident alien individual shall receive the benefit of the deductions and credits allowed in this title only by filing or earning to be filed with the collector a true and accurate return of his total income received from all sources corporate or otherwise in the United States, in the manner prescribed by this title, including therein all the information which the Commissioner may deem necessary for the calculation of such deductions and credits: * * . (Italics ours.)
It will thus be noted that Section 233 relating to foreign corporations, which made its first appearance in the Revenue Act of 1928, 26 U.S.C.A. Int.Rev.Acts, page 419, is almost verbally identical with this section governing nonresident aliens which has been a part of the revenue laws since 1918. The application of Section 217 of the 1918 Act is clear. From the outset the Treasury Regulations have expressly provided that no deductions were allowable to nonresident aliens unless an accurate and complete return was filed, and the filing of the return by the Commissioner fixed the tax liability. Article 311 of Treasury Regulations 45 provides:
“Allowance of deductions and credits to non-resident alien individual. — Unless a non-resident alien individual shall render a return of income as required in article 404, the tax shall be collected on the basis of his gross income (not his net income) from sources within the United States. Where a non-resident alien has various sources of income within the United States, so that from any one source or from all sources combined the amount of income shall call for the assessment of a surtax, and a return of income shall not be filed by him or on his behalf, the Commissioner will cause a return of income to be made and include therein the income of such nonresident alien from all sources concerning which he has information, and he will assess the tax and collect it from one or more of the sources of income within the United States of such nonresident alien, without allowance for deductions or credits." (Italics ours.)
The foregoing regulation states specifically that deductions are allowable to a nonresident alien only if a return is filed, and, if no return has been filed at the time the Commissioner prepares a return for the taxpayer, the tax shall be assessed with no allowance for deductions. Congress may be presumed to have adopted this longstanding administrative construction when it enacted and reenacted Section 233. Brewster v. Gage, 1930, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457, Morgan v. Commissioner, 1940, 309 U.S. 78, 626, 60 S.Ct. 424, 84 L.Ed. 585, 1035.
The conclusion that the preparation of a return by the Commissioner a reasonable time after the date it was due terminates the period in which the taxpayer may enjoy the privilege of receiving deductions by filing its own return, is consistent not only with the intention of Congress as evidenced by the legislative history of Section 233, but also with considerations of sound administrative procedure and the generally accepted rule concerning the number of returns which may be filed.
This terminal date, which the Board of Tax Appeals first adopted in Taylor Securities v. Commissioner, 1939, 40 B.T.A. 696, is directed against those foreign corporations which instead of being induced voluntarily to advise the Commissioner of their domestic operations, might find their interests best served by filing no return whatever, and then waiting until such time, if any, as the Commissioner discovers their existence and acquires sufficient information about their income on which to base a return. Unless they are precluded from then obtaining the deductions and credits under such circumstances, such foreign corporation can, if detected, come in for the first time after the Commissioner has made a return and suffer no economic loss other than the general 25% late filing penalty which applies to domestic as well as foreign corporations.
Without prescribing an absolute and rigid rule that whenever the Commissioner files a return for a foreign corporation the taxpayer is completely and automatically denied the benefit of deductions or credits, we yet hold that the facts of the instant case justify a disallowance of deductions which petitioner might otherwise have been entitled to claim, had it filed a timely return in compliance with the statutory requirement.
This necessity for requiring strict compliance with the provisions granting deductions and credits to nonresident aliens and foreign corporations has been generally recognized. In Gladstone Co. v. Commissioner, 1937, 35 B.T.A. 764, appeal dismissed by the Second Circuit Court of Appeals without opinion, June 24, 1938, the Board held that a foreign corporation which had filed a late return was not entitled to deductions for dividends received since it had failed to show the breakdown of the dividends in Schedule H of the return. Said the Board, 35 B.T.A. at page 768:
“Petitioner did not fill in schedule H, nor give the information there sought. Deductions are not a matter of right but of legislative grace and statutory grant, and the taxpayer must bring himself strictly within the provisions of the statute to be entitled to them. Petitioner here, we think, ignored the very purpose of section 233, which provides that the return shall include information deemed necessary by the Commissioner, and not having given such information, did not bring itself within the requirements of the statute and the deduction must be denied. To hold otherwise would render the entire provisions of the statute a nullity." (Italics ours.)
In the light of the foregoing quotation, it seems clear that petitioner’s contention that the filing of a Form 1120H surtax return satisfied the requirement of filing a Form 1120 return is without merit. Section 233 specifies a “true and accurate return” filed “in the manner prescribed in this title [chapter]”. That can relate only to the normal tax return, Form 1120, required by Sections 52, 53, 26 U.S.C.A. Int.Rev.Acts, page 683. The personal holding company return on Form 1120H does not contain all the information which the Commissioner "deems necessary” for the calculation of deductions and credits in respect of normal tax liability.
In the instant case, for example, the 1120H return provided the Commissioner with no information not already in his possession since the only detailed information contained therein was the breakdown of dividends from domestic corporations. The corporation information returns for the year 1934 filed by domestic corporations contain all information on dividend payments in excess of $300. Since all of the payments here were in excess of that amount, the Commissioner was undoubtedly informed in respect to them entirely apart from the return on Form 1120H.
In addition, there is no requirement in a return on Form 1120H for a schedule showing “Reconciliation of Net Income and Analysis of Changes in Surplus”, nor is there provision for the schedule “Balance Sheets”. Form 1120H also requires only 17 items, while Form 1120 requires 27. Petitioner’s net income figure of $1,445.37, reported as Item 1 on Form 1120H, is Item 27 on Form 1120, arrived at after consideration of the prior 26 items. It was only natural, therefore, that the Commissioner, presented with this isolated net income figure (which was a red figure indicating a minus amount) should request further information as to just how this result was computed.
It would also seem clear that the normal tax and the surtax, here in dispute, are separate and distinct taxes. Revenue Act of 1934, Title 1, Title 1A, 26 U. S.C.A. Int.Rev.Acts, pages 664 et seq., 757 et seq.; cf. Taylor Securities, Inc., v. Commissioner, 1939, 40 B.T.A. 696. And the Revenue Act itself undoubtedly contemplates the filing of separate returns for these taxes. See Sections 52, 53, 54 and 351 of the Revenue Act of 1934, 26 U.S.C. A. Int.Rev.Acts, pages 683, 684, 757. Moreover, the Board of Tax Appeals has consistently held that the filing of a Form 1120 return does not excuse the failure to file a Form 1120H return. Collateral Mortgage and Investment Co. v. Commissioner, 1938, 37 B.T.A. 630; Rotorite Corporation v. Commissioner, 1939, 40 B.T.A. 1304, reversed on other grounds, 7 Cir., 1941, 117 F.2d 245; Noteman v. Welch, 1 Cir., 1939, 108 F.2d 206.
Therefore, the single surtax return filed by petitioner was insufficient for normal tax purposes, and the sanction provided by section 233 must accordingly be applied. Gladstone Co., Ltd., v. Commissioner, 1937, 35 B.T.A. 764. This is in accord with the well accepted principle of tax law controlling the election of filing of returns by taxpayers, namely, that the federal income tax procedure provides for and contemplates the filing of only one return by a taxpayer for a single tax period and any subsequent return is a nullity. Buttolph v. Commissioner, 7 Cir., 1928, 29 F.2d 695; Grant v. Rose, D.C.N.D.Ga. 1928, 24 F.2d 115, affirmed, 5 Cir., 1930, 39 F.2d 338; Morris v. Commissioner, 2 Cir., 1930, 40 F.2d 504. Cf. Scaife Co. v. Commissioner, 62 S.Ct. 338, 86 L.Ed. -, decided by U. S. Supreme Court, December 22, 1941; Helvering v. Lerner Stores Corp., 62 S.Ct. 341, 86 L.Ed.-, decided by U. S. Supreme Court, December 22, 1941.
Petitioner also contends that the Commissioner, in preparing the return, should have allowed the dividends as deductions, citing Ardbern Co., Ltd., v. Commissioner, 4 Cir., 1941, 120 F.2d 424. There the taxpayer attempted to file a return with a revenue agent who refused to accept the return and failed to advise the taxpayer that the return should correctly be filed with the Collector of Internal Revenue at Baltimore. Thereafter, the Commissioner filed his own return under Section 3176, Revised Statutes, allowing no deductions even though he had knowledge before he prepared the return and before he issued the deficiency notice of certain deductions to which the taxpayer was entitled. Subsequently, the taxpayer did file a return with the Collector and we held that, under those facts, the taxpayer was entitled to the deductions as a matter of “elementary justice”. Judge Northcott carefully stated, at page 426 of 120 F.2d: “ * * * at least, [the] taxpayer should be allowed such deductions when, upon the assessment of a deficiency against him, he shows that pri- or to its assessment he attempted in good faith to file a return in which such deductions were claimed. * * * The return made by the Commissioner was clearly not based upon the best available information.” (Italics ours.)
A substantially different factual situation is presented in the case before us. Here the Commissioner prepared a return only after he had unsuccessfully made repeated requests to the taxpayer to do so, and only after the taxpayer had flouted all of these requests. Then, after the Commissioner had assessed a deficiency on the basis of his return, but only then, the petitioner filed its petition for review by the Board and also a return.
Unless the deductions are here denied, Section 233 will become a meaningless provision, for if, after the Commissioner has earnestly attempted to obtain a return by the taxpayer and has waited a reasonable time before filing his own return, the taxpayer may still enjoy the privilege of all deductions and credits, there is then no inducement to foreign corporations voluntarily to file timely returns. In the absence of demonstrable fraud, they will, by self-serving uncooperative conduct, suffer no loss other than the general late filing penalty which is applicable to domestic as well as foreign corporations. Such a construction of the statute would put a premium on tax evasion and would reduce the administration of the tax laws to mere idle activity.
Section 291 of the Revenue Act of 1934 provides:
“Failure to File Return
“In case of any failure to make and file a return required by this title, within the time prescribed by law or prescribed by the Commissioner in pursuance of law, 25 per centum of the tax shall be added to the tax, except that when a return is filed after such time and it is shown that the failure to file it was due to reasonable cause and not due to willful neglect no such addition shall be made to the tax. * * * ” (26 U.S.C.A. Int.Rev.Acts, page 750.)
Since the taxpayer advanced no adequate reason to explain why the Form 1120 return was not made and filed in accordance with Section 233 of the Revenue Act of 1934, the taxpayer is clearly liable for the penalty provided in Section 291. Noteman v. Welch, 1 Cir., 1939, 108 F.2d 206. “It does not matter why he failed to file a return.” Harry D. Kremer v. Commissioner, 1934, 31 B.T.A. 566.
We, accordingly, affirm the decision of the Board of Tax Appeals.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
FLEMING, Temporary Controls Administrator, v. PANTZER LUMBER CO.
No. 9124.
Circuit Court of Appeals, Seventh Circuit.
June 13, 1947.
William Rabinovitz, of Sheboygan, Wis., and Ralph Drought, of Milwaukee, Wis., for appellant.
David London, Director, Albert M. Dreyer, and Abraham II. Mailer, Sp. Attys., all of Washington, D. C., Isadore L. Kovitz and Jacob Cohen, both of Chicago, III., and William E. Remy, Deputy Commissioner for Enforcement, of Washington, D. G, for appellee.
Before EVANS, MAJOR, and MIN-TON, Circuit Judges.
EVANS, Circuit Judge.
This is an O.P.A. over-the-ceiling price case, wherein defendant attacks a judgment entered against it, on the ground that the waste wood which it was able to sell because of unusual wartime conditions, was not "lumber” under Maximum Price Regulations 290 and 215. Defendant denies violation of either Regulation. The trial court concluded the waste wood which defendant sold was lumber subject to Maximum Price Regulations. It entered a judgment for $8292.94 and costs, in favor of the Government. The amount of the judgment was one and a half time the excess of the sales price over the ceiling price.
Upon the trial, testimony was received to the effect that Pantzer Lumber Company, a Wisconsin retail lumber company, doing business at Sheboygan, Wisconsin, bought Sitka spruce lumber from a dealer in the West and processed the spruce into tent poles pursuant to a contract which it had with the Government. The residue which the defendant had after this operation is the subject of this controversy.
Ordinarily, this residue is waste and not sold. But due to scarcity of wood during the war, a toy manufacturer was found who was willing to purchase this residuum, upon its being further processed in defendant’s mill, according to specifications as to width and thickness, though not as to length of pieces.
This residuum was sold to the purchaser, chiefly .by lineal foot measure, but sometimes by the board foot. The purchaser would not take it as it came from the fabrication of the tent poles, but required further “exact processing.” After processing, this product was called, moldings or dimension stock.
Regulation 215 covers sales through distribution yards of softwood lumber. Regulation 290 covered Sitka spruce lumber sales. It covers “all Sitka spruce lumber, whether the grades, sizes and specifications are specifically named in the price tables in Article V or not.” Article V sets forth various grades, specifications and sizes including boards, planks, small timbers, No. 1 dimensions, floorings, and ladder stock, bu-t does not mention the product here in issue.
Sec. 11 of Article V provides
“(a) If a seller wishes to sell a grade which is not specifically priced in the price table, or wishes to make an addition for special workings, specifications, services, or other extras for which additions are not specifically permitted, he must apply to the Lumber Branch, Office of Price Administration, Washington 25, D. C., for a maximum price. * * *
* * * * * *
“(d) On any sale involving a ‘non-listed’ price or addition contemplated by paragraph (a) of this section, if the seller, for any reason, shall have failed to apply for approval of a maximum price under paragraph (a), the maximum price for the item sold shall be $15.00 per 1000 board feet, which maximum price shall include all allowances or additions for grade, size, conditions, special workings, specifications or other extras.”
The administrative interpretation defines “lumber” thus
“Mill trims. Short lengths not specially priced, sold on the basis of grade or other specification for use in the manufacturing of toys, small boxes, novelties, etc., are lumber and are subject to the special pricing provision under the applicable .mill regulation.”
It is the Government’s contention that (1) the trial court correctly concluded the wood in controversy was lumber; (2) the administrative definition is entitled to great weight; (3) the measure of damages used by the trial court was correct.
The Government claims that since the residuum was not specifically covered by the Regulation, defendant had the burden of applying to Washington for a ceiling price and having failed to do so, the Regulation figure of $15 per thousand (plus specific items) is controlling.
Defendant’s position is earnestly and cogently presented. It is: (1) In no event is this processed waste wood lumber under the language of the Regulations. (2) The product of its finishing mill or mill work shop is not subject to Regulations governing wholesale or retail lumber distribution centers or planing mills. (3) Even, for the purpose of the argument, if the residuum falls under any regulation, it could only come within Regulation 290, Condition 20, Table 5, covering “cut stock” which provides that for such cut stock “Special cut-up stock to specified sizes use R/L price of grade specified.” Under this provision defendant calculates the permissible maximum to be $118.32 per thousand board feet and it actually charged less than $100. per thousand board feet.
Defendant’s witnesses stressed various factors going to make up their respective concepts of “lumber” and when wood ceased to be lumber, — such as any processing, processing which renders the piece of wood fit for the purpose intended, size, or smallness of piece of wood, whether the wood is of standard measurements; whether sold on lineal or board foot measure.
The trial court found the residuum, reprocessed and sold by defendant, to be used' in the manufacture of toys “constituted' lumber within the meaning of that term”' as used in the Regulations. On eleven sales from August 2, 1944 to January 18, 1945, defendant received $9,538.66 in payment,, which the court found to be $5528.63 over the legal price chargeable.
A study of the able briefs leave us not a little perplexed as to the scope of coverage-of O.P.A.’s M.P.R. 290 and 215. We have concluded that with such a sharp difference-of opinion as to what was meant by the term “lumber” — whether it meant simply boards, sawed from the trees, or covered processed boards — compelled our search of the Regulations in their entirety, not simply the isolated quotations given us.
A reading of the whole text leaves us in no doubt whatsoever that the Regulations. did not intend to cover merely rough lumber or boards per se — they patently intended to cover boards of multitudinous varieties, in all stages of processing and with all kinds of special work performed on them.
Notwithstanding the detailed specificity of the Regulations, it happened that the particular wood product under consideration was not covered. The ingenuity and enterprise of defendant converted a waste material into a saleable product — a most worthy activity, either in war or peace time. Its omission from specific inclusion i,n the Regulations occurred because theretofore it had not been sold, or had not been sold frequently enough for the trade, or for the Administration to take cognizance of it in formulating the Regulations. While engaged in a highly worthy work, defendant was nevertheless amenable to the O.P.A. Regulations. The Country was at war. The activities of all sorts of industry were controlled by this far-reaching governmental agency. It was deemed necessary by Congress for the protection of the citizen against price extortion and to help win the war. Harshness seems frequently to have followed the application of the Regulations of the O.P.A. to certain situations. On the other hand, the application of these same Regulations saved the •consumer from exorbitant prices and no doubt justified the action of Congress in thus creating so powerful an agency in time of war.
In the situation before us, the serious •consequences which have been visited upon •defendant could and would have been avoided, had it applied to the Administrator and secured a ceiling price higher than the $1'5 maximum which applied if the seller failed to obtain a ruling on its permissible maximum.
It was to remedy just such a situation as this exceptional one that Sec. 11, of Art. V of Regulation 290, above-quoted, requiring the seller to apply for an administrative determination of the proper price, was promulgated, and an arbitrary price named where the seller failed to make such application.
We are not persuaded by defendant’s defense, a plausible afterthought, not raised on the trial, that even though it could by a far-fetched construction be subject to Regulation 290, it still was under the maximum there provided inasmuch as table 5, covering “Sitka Spruce Finish and Clears” has a provision on “cut stock” according to which calculation it was selling under the maximum. According to defendant’s own testimony, the wood used was “shop or better”, and Table 9, covers that sort of material, but contains no category covering the particular wood here in question.
The facts were presented to the District Judge who made findings on the evidence received. If this were strictly a factual issue we would be bound by such finding.
We conclude, therefore, that defendant had the duty of applying to the Administrator, for the ascertainment of a maximum price at which it could sell this product, and failing so to do, was automatically limited to the $15. maximum provided for failure to apply for such determination.
The judgment is affirmed.
put through the molding machino.
wood partially fabricated and which will be further fabricated in another operation; ordinarily under 6' length; “smaller sizes cut to exact dimensions.”
Random Lengths.
Computed thus: B and better 8/4 x 3" grain (per table 5, M. P. R. 290) $37.-00 per M.B.M.; and then adding: for extra thickness to 12/4, $5., for sanding, $10; for freight and tax per M.P.R. 215, $18.75, for handling charge, per M.P.R. 215, $5., 10% markup, per M.P.R. 215, $10,57, for surfacing, per M.P.R. 215, $2.00, making a total of $118.32.
Mr. Sine, a lumber manufacturer representative testified:
“Q. Now, Mr. Sine, if, in your opinion, these tent poles were no longer considered lumber because they had gone through a certain processing method, what is your opinion as to the small pieces of residue which went through, also, a processing method? A. It definitely is not lumber.”
Mr. Wilbur, lumber dealer and millwork manufacturer testified:
“Q. After these pieces of residue are machined and you say they would be called, either molding or cut dimension, would they be called lumber? A. No, sir.
“Q. Why not? A. Because the sizes¡ are usually — some of the sizes may not-be in the lumber grading rules as, standard lumber or even in the price regulations and are used for different purposes, usually, than most lumber is used, * * *
“Q. At what point does it cease to be-lumber in the standards of the trade? A. When it becomes non-standard in size.”'
Mr. Hauter, lumber company employee-testified:
“Q. And is this offal which is cut into-certain stock — in your opinion is that lumber? A. No, sir, that is not lumber. Lumber is stock which is standard sizes, sold as lumber, recognized by the trado as standard sizes.”
Regulation 215 (7 F.R. 2094). Sec. 1425.8(b) (2) “Kind purchased (grade, size, whether rough of dressed and how dressed * * “Maximum prices.”
Sec. 1425.14(4) (c) “An Addition to the maximum prices established * * * may bo charged for the workings as follows, when the working is performed by the distribution yard itself * * *. (d) Additions for working, specifications, .services, or other extras, not expressly provided for herein shall be subject to the * * * (G. M. P. R.) * *
Regulation 290, 8 F.R. 39. Sec. 1381.-452(3) (b). “This regulation covers all Sitka spruce lumber * * * whether •the grades, sizes and specifications are specifically named in the price tables * * * or not.”
See. 1381.455. “What the invoice must contain — (b) * * * Any working specification or extra which affects the maximum price must be mentioned. $ sj: »
Sec. 1381.457. “Grades and classes of Sitka spruce lumber not specifically priced * * * are nevertheless subject to this regulation.” Table Y “Working Charges. 10. Standard surfacing; add $2.00 per M. to rough price. * * * 11. Sanding. * * 12. Nosing and special patterns not covered. Add $5. * * *y>
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
JOHNSTON v. UNITED STATES.
No. 10779.
Circuit Court of Appeals, Ninth Circuit.
Oct. 10, 1944.
Clarence L. Gere, of Seattle, Wash., for appellant.
J. Charles Dennis, U. S. Atty., and G. D. Hile, Asst. U. S. Atty., both of Seattle, Wash., for appellee.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
STEPHENS, Circuit Judge.
In December of 1939 defendant Johnston was indicted and adjudged guilty, upon the entry of his plea of guilty, for robbing the mail and endangering the life of a mail custodian by the use of a dangerous weapon in violation of 18 U.S.C.A. § 320. He was sentenced to imprisonment for twenty-five years. In March of 1944 he made the within motion, before the United States District Court which had presided over the original hearing, to vacate the judgment and sentence on the ground that the indictment failed to state a federal offense and consequently that the trial" court lacked jurisdiction over the matter. The motion was denied, and defendant appeals.
The challenged indictment alleged in part that defendant did “rob and take from the person, possession and in the presence of one FI. F. McElhaney, Clerk in Charge of Contract Station No. 59, a branch of the United States Post Office at Seattle, Washington, without the consent of the said H. F. McElhaney, and against his will, certain monies which were then and there in the lawful charge, control and custody of the said H. F. McElhaney in his official capacity and character as Clerk in charge of said Contract Station No. 59, a branch of the United States Post 'Office at Seattle, Washington, to-wit, the'sum of Twenty-two and 94/100 Dollars * * * being postage stamp funds of the said Contract Station No. 59 * * * ”
According to defendant’s argument the indictment is fatally defective in failing specifically to charge that the money taken by him was property of the United States since the statute under which the indictment was framed, 18 U.S.C.A. § 320, is limited to robbery in connection with “mail matter, money, or other property of the United States.” Defendant contends that under the standard contract between the Postmaster General and a branch post office the latter is not supplied with postage stamp funds by the government, that the indictment herein merely charged custody and control, as to the money stolen, by the clerk of a contract station in his official capacity, that necessary allegations in a criminal indictment cannot be supplied by implication, intendment or recital, and that therefore an allegation of the ownership by the United States of the money taken, essential to the statement of a federal offense, is lacking.
The indictment alleged that the money taken was at the time of the robbery in the lawful custody of a certain clerk in his official capacity as clerk in charge of a branch of the United States Post Office. We believe that such an averment of possession in an agent of the United States under the authority of his official position is the equivalent of an averment of ownership by the United States. See dictum in Hubbard v. United States, 9 Cir., 1935, 79 F.2d 850, 852; Hoback v. United States, 4 Cir., 1922, 284 F. 529, 532.
Our decision herein need not be based alone- on our interpretation of the allegation of possession, for we may consider herein all implications of the language used in the indictment. In Elder v. United States, 9 Cir., 1944, 142 F.2d 199, 200, this court recognized that necessary facts could be drawn by reasonable inference from the allegations of an indictment where that document was not challenged in the trial court but was questioned for the first time on appeal from a conviction in the trial court. Hagner v. United States, 1932, 285 U.S. 427, 433, 52 S.Ct. 417, 76 L.Ed. 861. The same rule applies in the instant case where the indictment was not contested until the present motion to vacate the judgment was made more than four years after judgment and sentence.
The allegation in the indictment herein as to the custody of the money stolen together with the declaration that the money constituted postage stamp funds of the branch post office we think raises a reasonable inference that the money was property of the United States. Under various pertinent statutes, postal revenues, including sums received by reason of keeping a branch office, constitute public money belonging to the United States, 39 U.S.C.A. §§ 42 and 46, 5 U.S.C.A. § 380; the Postmaster General is given authority to establish branch offices and to make rules and regulations for the government thereof, 39 U.S.C.A. § 158, and to enter into contracts for the conduct of such offices, 39 U.S.C.A. § 161.
Under the general procedure established by the postal regulations in effect at the time the robbery herein was committed — of which regulations we take judicial notice, Caha v. United States, 1894, 152 U.S. 211, 221, 14 S.Ct. 513, 38 L.Ed. 415-postmasters issued stamp supplies to clerks in charge of contract stations within the amounts of the bonds of the clerks and received in return fixed credit receipts; the supplies appeared on the records of the postmasters as stock on hand; money received from the sale of such stamp supplies was used to purchase additional supplies; periodic inventories were taken of both supplies and cash in the custody of employees of contract stations, Postal Laws and Regulations of 1932, § 152, subdivision 4.
The provision for the “purchase” of additional supplies does not necessarily mean a transfer for cash of stamp supplies by the government to clerks of contract stations and a resultant transfer of title. The definition of the word “purchase” in Funk & Wagnalls’ “New Standard Dictionary” (1940) applicable here is: “3. Law. (1) To acquire (property) by one’s own act or agreement, as distinguished from the act or mere operation of law.” Other provisions of the postal regulations cannot be reconciled with a change of. ownership theory, such as the requirement that stamp supplies originally shall be issued only within the amount of the branch clerk’s bond, and strict requirements for the keeping of stamps and funds in safes (Regulations, § 106, subdivision 4). Clearly, the regulations are inconsistent with the view that stamps and funds are property of clerks in charge of contract stations and therefore property in which the United States has no interest. Further, as has heen seen, the branch clerk invests no money of his own for such supplies but is issued the initial supply upon his fixed credit receipt which is secured to the government by the manager’s bond.
Nothing appears in the postmaster-branch office contract relied upon by defendant contradictory to government ownership of funds in the possession of the clerk in charge of a contract station, even should we assume the right to take judicial notice of it.
The indictment alleges a federal offense, and defendant-appellant’s motion to vacate the judgment and sentence based thereon was properly denied.
Affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. 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".
STONE et al. v. HOLLY HILL FRUIT PRODUCTS, Inc., et al.
No. 6254.
Circuit Court of Appeals, Fifth Circuit.
March 9, 1932.
Robert R. Milam, of Jacksonville, Fla., for appellants.
A. G. Turner, of Tampa, Fla., R. B. Huffaker and M. H. Edwards, both of Bartow, Fla., and Ellis F. Davis, of Kissimmee, Fla., for appellees.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
SIBLEY, Circuit Judge.
The amended stockholders’ bill of Edith L. Stone and four others owning altogether about 2 per cent, of the capital stock of Holly Hill Fruit Products, Inc., which was brought against the corporation and certain officers accused of misconduct and prayed for injunction, a receiver and general relief, was dismissed on motion of the corporation, and complainants appeal.
One ground of the motion was that the bill complains of corporate mismanagement and does not show that the complaining stockholders had exhausted their remedies within the corporation. The bill, filed a few days after the annual stockholders’ meeting, alleges that in that meeting the officers had made no sufficient statement of the current corporate affairs and had, with the purpose of concealing their mismanagement, refused reasonable information asked by and for the complainants; that the directors had since re-elected an improper person as president, who with another director and a relative of the president as treasurer had been and still were an operating committee to whom the business was intrusted, and that the president was virtually in sole control; that excessive salaries were paid the president, treasurer, and others, while debts due by the .corporation to customers for their fruit went unpaid, and debts due to the corporation by the president and his relatives and by companies controlled by him went uncollected; that the business was at a low ebb and the corporation about to become insolvent. These are grievances not peculiar to the complainants but affect alike all stockholders, and being primarily wrongs done to the corporation injure the complainants only indirectly as stockholders. The remedy for them lies in the first instance with the directors chosen by the stockholders to manage the corporate affairs. All the matters complained of existed and were known at the stockholders’ meeting. The complainants should have appeared before the seven directors then chosen and urged their objection to the re-election of the president and treasurer; and should have informed them of the mismanagepient by the operating committee, of the nonpayment to customers, of the exeessiveness of the salaries paid to officers, and asked such further information about the business as they desired and were entitled to. The president was the only director drawing a salary. Only one other director was on the operating committee. No sufficient reason is alleged why the other five could not have been expected to act with fairness and honesty. That some resided at a distance is no excuse for not first seeking redress at their hands. Corbus v. Gold Mining Co., 187 U. S. at page 465, 23 S. Ct. 157, 47 L. Ed. 256. If it had been distinctly alleged that all four of the directors who are joined as defendants were so involved as to make application to them obviously futile, there should have been an effort made through the stockholders to control or supplant them. It is not alleged that there is any wrong combination of a majority of the stockholders, but only that they live at a distance, are ignorant of the situation, and send their proxies to the president. The plain remedy for that would be to seek another stockholders’ meeting, after informing the other stockholders of the situation and asking them to withdraw their proxies and to attend. A stockholder, in taking stock in the ordinary corporation, submits, within the charter limits, to a guidance of the corporate affairs according to the will of the owners of a majority of the stock and through the directors whom the majority choose. The minority have a right to have the majority exercise their judgment, and to exercise it honestly and not fraudulently, but have no right to have a court substitute their own ideas and wishes for those of the majority, and that in advance of any refusal of the majority to hear and decide on the matter at issue. Minority stockholders may not in the absence of sudden emergency ask a court of equity to interfere in the management of their corporation until they have earnestly and unsuccessfully sought redress from the Board of Directors, and where appropriate also from the stockholders in meeting, unless they can show sufficient reasons for not doing so. This is implied in the provisions of Equity Rule 27 (28 USCA § 723). For defect in this respect a bill will be dismissed. Wathen v. Jackson Oil & Refining Co., 235 U. S. 635, 35 S. Ct. 225, 59 L. Ed. 395; Corbus v. Gold Mining Co., 187 U. S. 463, 23 S. Ct. 157, 47 L. Ed. 256; Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827; Dimpfel v. Ohio & Mississippi R. R. Co., 110 U. S. 209, 3 S. Ct. 573, 28 L. Ed. 121; Memphis v. Dean, 8 Wall. at page 73, 19 L. Ed. 326. The general averment that complainants had objected to the president does not meet the particular requirements of the rule. There is alleged no dominance of the board of directors or of the stockholders by those whose personal interests are adverse to the relief sought by the bill such as to make it evidently futile to expect fair consideration within the corporation, as there was in Doctor v. Harrington, 196 U. S. 579, 25 S. Ct. 355, 49 L. Ed. 606, and Delaware & Hudson Co. v. Albany & Susquehanna R. R. Co., 213 U. S. 435, 29 S. Ct. 540, 53 L. Ed. 862. It has been made to appear that pending this appeal the president, about whom the bill most earnestly complains, has gone out of office, so that this part of the controversy has become moot. We affirm the judgment dismissing the bill without prejudice to the filing of another after due effort and failure to obtain relief through corporate channels.
Judgment affirmed.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
DAVIS v. UNITED STATES.
No. 8113.
Circuit Court of Appeals, Fifth Circuit.
Oct. 29, 1936.
Clifford E. Hay, of Thomasville, Ga., and Lee W. Branch, of Quitman, Ga., for appellant.
T. Hoyt.Davis, H. G. Rawls, Asst. U. S. Atty., and A. Edward Smith, Asst. U. S. Atty., all of Macon, Ga.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
Rehearing denied Dee. 12, 1936. Writ of certiorari denied 57 S. Ct. 433, 81 L. Ed. —,
SIBLEY, Circuit Judge.
The indictment contains fifteen counts, of which the first was stricken on demurrer and the others held good. The verdict was guilty on counts 12, 13, 14, and IS, and not guilty on counts 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. The judge sentenced generally to imprisonment in a penitentiary for two years and to pay a fine of $100. The twelfth count charged a conspiracy, and by itself would support the sentence. It will suffice to examine the trial as touching this count. While it is assigned as error that the evidence did not warrant the verdict, no motion to the court for an instructed verdict appears so as to raise that question. We have, however, looked into the evidence far enough to see that there was substantial evidence of guilt and mainly a question of the veracity of witnesses. A demurrer questioned count 12 as not sufficiently specific, and a motion to arrest judgment asserted that it was so constructed as not to charge any overt acts and that the verdict was so repugnant to itself as to be void.
The twelfth count charges a conspiracy on a named date in the Valdosta Division of the Middle District of Georgia between the defendant and other named persons “unlawfully within the jurisdiction aforesaid to transport, sell and transfer certain distilled spirits,, to-wit whiskey, the immediate container of which should not and did not then and there have affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal revenue taxes imposed on such spirits; and unlawfully within the jurisdiction aforesaid to remove, deposit and conceal certain goods and commodities, towit a large quantity of whiskey, ' for and in respect of which a tax is imposed, with intent to defraud the United States of such tax; and unlawfully within the jurisdiction aforesaid to carry on the business of a retail liquor dealer without having first paid the special tax as required by law; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States. Overt Act One. In furtherance of the said conspiracy and to effect the object thereof the said defendant on or about the 11th day of March, 1934, in Thomas County, within the Valdosta Division of the Middle District of Georgia, did receive from the said Henry W. Grimsley $60.00 in money.” Five other overt acts are similarly charged. The special demurrers complain that sufficient details of the conspiracy are not given, nor any facts to identify the transportation, possession, or sale of the liquor or the container of the liquor, or when, where, or by whom the whisky was removed or concealed, or in what way defendant was carrying on a retail liquor business, seeing that Georgia is a dry state and no such business there could Be taxed by the United States; the allegations of the overt acts are averred to be insufficient as not showing how they were in furtherance of the conspiracy. We think the conspiracy, which is the gist of the offense, is sufficiently stated. The time, place, and persons concerned are set forth, and the purpose of it is alleged to be unlawfully to do acts in reference to whiskywhich the court judicially knows would be a violation of three statutes of the United States, it being indeed alleged that the acts were contrary to the form of the statute. A greater particularity is not necessary and may be impossible. It may be that no particular whisky in any particular containers was contemplated in forming the conspiracy, but any whisky in any sort of containers that might come to hand. Overt acts need not be pleaded with the fullness that would be necessary if they were themselves charged as crimes. They need not in themselves be criminal-. The mere receipt of money ordinarily is- not, but, if done to further an unlawful conspiracy, it completes that crime. The indictment need not explain how the money was to be used or how its receipt tended to carry out the conspiracy. ■ That is matter of proof. The allegations are sufficient on their face. Gantt v. United States (C. C.A.) 108 F. 61. If the defendant was really in doubt as to what transactions were to be proven against him, he should have asked a bill of particulars. We see no indication of surprise in the trial.
Arrest of judgment was sought on the ground that the twelfth count is closed by the words “contrary to the peace and dignity of the United States,” and that the-sentences headed “Overt Act One,” “Overt Act Two,” etc., are no parts of the count, so that no overt acts are charged in it and by consequence no crime. We think that all that is included between the heading “Count Twelve” and the heading “Count Thirteen” is plainly a part of count 12'. The defendant in demurring so thought, for he “demurs to alleged Overt Acts One, etc., of ’ count twelve.” The words “contrary to the peace and dignity of the United States” are not essential to an indictment, Frisbie v. United States, 157 U.S. 160, 161, 15 S.Ct. 586, 39 L.Ed. 657, and their insertion at an unusual place will not invalidate it.
The repugnancy in the verdict grows-out of the fact that counts 13, 14, and 15-allege substantive offenses of possessing unstamped whisky, selling it, and carrying, on a retail liquor business without a license alleged, in general terms, and the jury found the defendant* guilty of them; whereas in prior counts the very same offenses were alleged in the same terms except a difference of a few weeks in the date, and the verdict was not guilty on them. The argument is that 'on such general counts-proof relating to any and all dates within the statute of limitations would be admissible, so that a verdict of not guilty acquits of all such acts within the statute of limitations and might be pleaded as a former acquittal. But these are counts in a single indictment submitted in one trial. There is but one jeopardy, so that a second jeopardy is not involved. Nor can former acquittal be urged; indeed, the way the verdict reads the conviction came first. We think the reasonable construction of the whole verdict is that the jury, having first convicted the defendant of these three offenses on the thirteenth, fourteenth, and fifteenth counts, declined to convict him again on the other equivalent counts. Compare Seiden v. United States (C.C.A.) 16 F.(2d) 197; Steckler v. United States (C.C.A.) 7 F.(2d) 59; Macklin v. United States (C.C.A.) 79 F.(2d) 756, 757. After all, the twelfth count has no twin. There is no acquittal opposing the conviction on it. We find no sufficient reason for reversal, and the judgment is affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Benjamin CLAYTON, doing business under the fictitious name and style of Refining, Unincorporated, Petitioner, v. Honorable Wilson WARLICK, District Judge of the United States District Court for the Western District of North Carolina, Respondent.
No. 7148.
United States Court of Appeals Fourth Circuit.
Argued March 22, 1956.
Decided April 9, 1956.
Charles M. Thomas, Washington, D. C. (John M. Robinson, Charlotte, N. C., and Barron F. Black, Norfolk, Va., on the brief), for petitioner.
James B. Craighill, Charlotte, N. C., for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
This is an application for a writ of mandamus or prohibition to restrain Honorable Wilson Warlick, District Judge for the Western District of North Carolina from entering an order in accordance with an opinion he has rendered, transferring a patent infringement suit from the Western District of North Carolina to the Northern District of Illinois. Plaintiff is a resident of Houston, Texas, and has no place of business in the Western District of North Carolina. The federal court of that district has jurisdiction of the cause under an allegation that the defendant is guilty of infringement and has an established place of business within the district. Defendant is incorporated under the laws of Illinois and has its principal place of business in the Northern District of that state, where its main offices, principal laboratories, main research staff and principal records are located.
The suit for infringement was originally instituted in the Eastern District of Virginia, but upon motion to dismiss or remove being made and, upon the judge’s intimating that he would grant the motion, Clayton v. Swift & Co., 132 F.Supp. 154, plaintiff dismissed that suit and instituted one in the Western District of North Carolina. Defendant made a motion there under 28 U.S.C. § 1404(a) to remove the case to the Northern District of Illinois for the convenience of parties and witnesses and in the interest of justice. Affidavits were filed in support of and against the motion, and Judge Warlick filed a memorandum opinion finding the facts and stating that he would grant it. The pertinent facts are set forth in the memorandum as follows:
“It is evident that the trial of the case will be largely technical and will require the testimony of experts as witnesses who are technically trained and who supposedly know what they are talking about. The patent involves certain processes successful in refining vegetable matter. I am told that defendant has been paying royalties to the plaintiff over the whole of the period since the patent was granted to his predecessor in title. The trial will involve the extension of the life of the patent beyond its seventeen year period, and accordingly the proposed rights and the factors that such will likely cover will require a great amount of technical testimony, and obviously will involve many witnesses on both sides and will require much research and likely many tests. This undoubtedly will necessitate the use of the facilities which each side possesses in either the Chicago or the New York area.
-» # * * *
“I am therefore of the opinion that to try this case in Charlotte would convenience no- one. The witnesses for each side would have to come there. Records would likewise have to be brought along. Each one concerned would travel hundreds of miles and inconvenience after inconvenience would naturally come about. Charlotte, though a grand city, has nothing in common with this trial. Hence I conclude that a more convenient trial of the issues can be had and all parties and witnesses more nearly convenienced and the interest of justice better served, by transferring the cause to the United States District Court for the Northern District of Illinois, Eastern Division. This I consequently do. It is so ordered.”
Plaintiff frankly admits that he desires to try his case in this Circuit because of our decision in Proctor & Gamble Mfg. Co. v. Refining, Inc., 4 Cir., 135 F.2d 900. He contends that a contrary view of the patent law controlling a vital aspect of the case is taken by the Court of Appeals of the 7th Circuit, as evidenced by the decision of that court in Weatherhead Co. v. Drillmaster Supply Co., 7 Cir., 227 F.2d 98; and, while admitting that it would be more convenient to the parties to try the case in Chicago, he contends that he has the right to choose the forum and that, in view of the alleged conflict in decision on the patent law between the circuits, it was an abuse of discretion on the part of the District Judge to order the case removed and thus deprive him of the benefit of trying the case in a circuit where the law has been decided in his favor.
As the suit might have been brought in the Northern District of Illinois, there can be no question as to the power of the court to order it removed to that district under 28 U.S.C. § 1404(a), which 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.”
And it is well settled that an order entered under this statute is an interlocutory order from which no appeal lies. That question was before us in Jiffy Lubricator Co. v. Stewart-Warner Corp., 4 Cir., 177 F.2d 360, 361, where we said:
“The motion to dismiss must be granted on the ground that the order transferring the case is not a final order from which an appeal lies under 28 U.S.C.A. § 1291. As was said by the Supreme Court in Arnold v. United States for Use of W. B. Guimarin & Co., 263 U.S. 427, at page 434, 44 S.Ct. 144, at page 147, 68 L.Ed. 371: ‘It is well settled that a case may not be brought here by writ of error or appeal in fragments, that to be reviewable a judgment or decree must be not only final, but complete, that is, final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction.’ ” (citing cases.)
See also Clinton Foods v. United States, 4 Cir., 188 F.2d 289.
What applicants are seeking is to review by application for mandamus an interlocutory order from which Congress has not seen fit to grant a right of appeal. This may not be done. In Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, we dealt with an attempt to use a writ of prohibition to review an interlocutory order refusing to dismiss a patent infringement suit on the ground that defendant did not reside or have a regular and established place of business within the district. There, as here, a question of venue was involved and, if the interlocutory order was erroneous, a great loss of time and money might result from its not being promptly reversed. We held, nevertheless, that there was no power in this court to review it by mandamus or prohibition, saying:
“It is admitted that the order denying the motions is not a final order and that petitioner cannot appeal from it. See Beury v. Beury, 4 Cir., 222 F.2d 464; E. I. Du Pont De Nemours Co., Inc., v. Hall, 4 Cir., 220 F.2d 514. We think it equally clear that writ of prohibition cannot be used as substitute for an appeal in such a case. Until Congress amends the statute so as to permit appeals from interlocutory orders of this character, we do not think that appellate courts should attempt to circumvent the law by the use of writs of prohibition or mandamus. In re Sylvania Electric Products, Inc., 1 Cir., 220 F.2d 423; Gulf Research & Development Co. v. Leahy, 3 Cir., 193 F.2d 302, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Gulf Research & Development Co. v. Harrison, 9 Cir., 185 F.2d 457. Cf. C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F.2d 410, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695.”
We made the same holding in the case of Southern Railway Co. v. Madden, 4 Cir., 224 F.2d 320, where an interlocutory order, which we thought erroneous, had been entered granting a new trial confined to the issue of damages, and in Atlantic Coast Line R. Co. v. Sonenshine, 4 Cir., 226 F.2d 220, where an interlocutory order had been entered granting plaintiff a new trial on the issue of damages in the face of a contention by defendant that it was entitled to a judgment n. o. v. on the ground that no liability had been established and that the new trial would involve needless delay and expense. In the Madden case we said:
“It is clear that the order which we are asked to review is not a final order in the case and hence is not appealable. And we do not think that the statute which allows appeal only from final orders, except in a limited class of cases, can be evaded by the simple device of asking this court to issue one of its extraordinary writs, such as certiorari, or mandamus or prohibition. Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718; Hartford Accident & Indemnity Co. to Use of Silva v. Interstate Equipment Corporation, 3 Cir., 176 F.2d 419, certiorari denied 338 U.S. 899, 70 S.Ct. 250, 94 L.Ed. 553; United States Alkali Export Ass’n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554.”
In the case of E. I. Du Pont De Nemours Co., Inc. v. Hall, 4 Cir., 220 F.2d 514, we pointed out that cases of the sort dealt with above illustrated the wisdom of the recent proposal approved by the Judicial Conference of the United States that the statute relating to interlocutory appeals be amended so as to grant a limited right of review of interlocutory orders, but adding: “The amendment of the statute, however, is a matter for Congress, not for the courts”. It seems manifest that, if an interlocutory order involving error of law, may not be reviewed by mandamus or otherwise, review may not be had of one which involves merely an exercise of discretion. All of this is in accord with the rule laid down by the Supreme Court in United States Alkali Export Ass’n v. United States, 325 U.S. 196, 202-203, 65 S.Ct. 1120, 1124, where it was said:
“The traditional use of such writs both at common law and in the federal courts has been, in appropriate cases, to confine inferior courts to the exercise of their prescribed jurisdiction or to compel them to exercise their authority when it is their duty to do so. In re Chetwood, 165 U.S. 443, 462, 17 S.Ct. 385, 392, 41 L.Ed. 782 (citing Tidd’s Prac. 398, and Bac. Ab., Certiorari); Whitney v. Dick, supra, 202 U.S. [132] 139, 140, 26 S.Ct. [584] 587, 50 L.Ed. 963; Ex parte [Republic of] Peru, supra, 318 U.S. [578] 583, 63 S.Ct. [793] 796, 87 L.Ed. 1014, and cases cited. It is evident that hardship is imposed on parties who are compelled to await the correction of an alleged error at an interlocutory stage by an appeal from a final judgment. But such hardship does not necessarily justify resort to certiorari or other of the extraordinary writs as a means of review. In such cases appellate courts are reluctant to interfere with decisions of lower courts, even on jurisdictional questions, which they are competent to decide and which are reviewable in the regular course of appeal. In re Tampa Suburban R. Co., supra [168 U.S. 583, 18 S.Ct. 177, 42 L.Ed. 589]; Ex parte Harding, 219 U.S. 363, 369, 31 S.Ct. 324, 325, 55 L.Ed. 252; Roche v. Evaporated Milk Ass’n, supra, 319 U.S. [21] 30, 31, 63 S.Ct. [938] 943, 944, 87 L.Ed. 1185, and cases cited; cf. Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85. The writs may not be used as a substitute for an authorized appeal ; and where, as here, the statutory scheme permits appellate review of interlocutory orders only on appeal from the final judgment review by certiorari or other extraordinary writ is not permissible in the face of the plain indication of the legislative purpose to avoid piecemeal reviews. Roche v. Evaporated Milk Ass’n, supra, 319 U.S. 30, 63 S.Ct. 943, 87 L.Ed. 1185, and cases cited; and see Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783.”
We see no reason why this rule should not apply where mandamus is sought to review an interlocutory order entered under 28 U.S.C. § 1404(a). The Supreme Court did not find it necessary to decide the question in Norwood v. Kirkpatrick, 349 U.S. 29, 33, 75 S.Ct. 544, 99 L.Ed. 789, just as we did not find it necessary in Clinton Foods v. United States, 4 Cir., 188 F.2d 289, and the expressions of the various circuits are in hopeless conflict. It is argued that review by mandamus is necessary to allow review by the Court of Appeals of che circuit of the- transferring court; but there is no reason why a review by the Court of Appeals of the circuit to which the case is transferred is not sufficient. The only power to issue the writ is that contained in the “all writs” statute, 28 U.S.C. § 1651, which makes the writ available in aid of jurisdiction, and the jurisdiction on appeal can be protected as well by the latter as by the former. This was considered by Judge Learned Hand in Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866, 869, where he said:
“We do not believe that our power to protect our own jurisdiction extends to protecting it as against the jurisdiction of another federal court of equal jurisdiction, or that a suit- or has any legally protected interest in having his action tried in any particular federal court, except in so far as the transfer may handicap his presentation of the case, or add to the costs of trial.
“ * * * There are therefore at least plausible grounds why we should issue the writ. On the other hand, whatever power of review we may have, the Court of Appeals for the Seventh Circuit has the same; and that court will be in a much better position than we to pass upon at least the first of the two questions involved; i. e., the extent to which any review of the transfer will be open upon appeal from a final judgment against the plaintiff. It is true that the same considerations would determine the answer, whether we, or the Seventh Circuit, decide it; but it does not follow that the decision would be the same in each court; and, since the absence of any relief upon appeal from final judgment is so critical in the decision, surely it is appropriate for that court to decide it, which will decide the appeal itself.”
Of course mandamus or prohibition will lie to compel the district judge to exercise his discretion under the statute or to prevent his transferring the case to a district to which, as a matter of law, it is not transferable and, so far, except in one case, the relief granted has not gone beyond this, although in some cases where the writ has been denied, the denial has been based on the ground that no abuse of discretion has been shown. There is strong reason, however, why mandamus or prohibition should not be held to afford a right of review where the judge has exercised the power conferred upon him by law and the only question is whether he has properly exercised or has abused that power. As was well said by Judge Goodrich, speaking for the Third Circuit, in All States Freight v. Modarelli, 3 Cir., 196 F.2d 1010, 1011:
“The second danger which threatens the usefulness of Section 1404 (a) comes from the appellate courts. It is settled in this Circuit and elsewhere that an order either making a transfer or refusing a transfer is not appealable. Now the effort is being made both in this court and elsewhere to substitute for appeal a review by mandamus whenever the losing party on a motion to transfer wants an advance review of the ruling on this point.
“We think that this practice will defeat the object of the statute. Instead of making the business of the courts easier, quicker and less expensive, we now have the merits of the litigation postponed while appellate courts review the question where a case may be tried.
“Every litigant against whom the transfer issue is decided naturally thinks the judge was wrong. It is likely that in some cases an appellate court would think so, too. But the risk of a party being injured either by the granting or refusal of a transfer order is, we think, much less than the certainty of harm through delay and additional expense if these orders are to be subjected to interlocutory review by mandamus.
“We do not propose to grant such review where the judge in the district court has considered the interests stipulated in the statute and decided thereon. * * *
“ * * * we cannot escape the conclusion that it will be highly unfortunate if the result of an attempted procedural improvement is to subject parties to two lawsuits: first, prolonged litigation to determine the place where a case is to be tried; and, second, the merits of the alleged cause of action itself.”
See also In re Josephson, 1 Cir., 218 F.2d 174, 183, where Chief Judge Magruder, speaking for the Court of Appeals of the First Circuit, quoted the above language with approval and added:
“Accordingly, we serve notice that in the future, except in really extraordinary situations the nature of which we shall not undertake to formulate in advance, we shall stop such mandamus proceedings at the very threshold, by denying leave to file the petition for a writ of mandamus.”
The Court of Appeals of the Fifth Circuit expressed the same view in Ex parte Chas. Pfizer & Co., Inc., 5 Cir., 225 F.2d 720, 721, 722, where the court said:
“There is some judicial support for the view that a Court of Appeals has no power under § 1651(a) to grant mandamus to review an interlocutory order of transfer. See the concurring opinion of Judge Swan in Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, 332, citing De Beers Consol. Mines v. United States, 325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566. The Eighth Circuit has held that mandamus will not lie to review an order entered under § 1404(a). Carr v. Donohoe, 8 Cir., 1953, 201 F.2d 426.
“In the majority opinion of Judge Frank in Ford Motor Co. v. Ryan, supra (182 F.2d 332), it was held that mandamus would lie to review orders of transfer, and that the District Judge must guess and the Court of Appeals ‘should accept his guess unless it is too wild’. By order of the majority of the Court a Writ of Mandamus was issued directing a District Judge to enter an order of transfer in Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 7 Cir., 1955, 220 F.2d 299. The more restrictive view is that mandamus does not lie where the. District Judge has considered the interest stipulated in the statute and made an order in the exercise of his discretion. Atlantic Coast Line R. Co. v. Davis, 5 Cir., 1950, 185 F.2d 766; All States Freight v. Modarelli, 3 Cir., 1952, 196 F.2d 1010; In re Josephson, 1 Cir., 1954, 218 F.2d 174. It is our opinion that, in the absence of a failure of the District Court to correctly construe and apply the statute, or to consider the relevant factors incident to ruling upon a motion to transfer, or unless it is necessary to correct a clear abuse of discretion, a Court of Appeals should not entertain motions for Writs of Mandamus to direct District Courts to enter or vacate orders of transfer under § 1404(a).”
See also the decision of the Court of Appeals of the Second Circuit in Torres v. Walsh, 2 Cir., 221 F.2d 319, 321, where the court said it was not called upon to act except in a “ ‘really extraordinary cause’ ” and quoted with approval the statement of Judge Learned Hand in Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., supra, “ ‘We do not believe that our power to protect our own jurisdiction extends to protecting it as against the jurisdiction of another federal court of equal jurisdiction’
The correct rule to be applied, we think, is the same as that applied in the case of other interlocutory orders, i. e., where the judge has exercised a power conferred upon him by law, mandamus may not be availed of to review the exercise of the power in the face of the restriction placed by Congress on the review of interlocutory orders. The distinction which we think applicable was that drawn by the Supreme Court in De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566, where the court said:
“When Congress withholds interlocutory reviews, § 262 [now 28 U.S.C. § 1651] can, of course, not be availed of to correct a mere error in the exercise of conceded judicial power. But when a court has no judicial power to do what it purports to do — when its action is not mere error but usurpation of power — the situation falls precisely within the allowable use of § 262.”
See also the concurring opinion of Judge Swan in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 332, and the decision of the Court of Appeals of the Second Circuit in Ward Baking Co. v. Holtzoff, 2 Cir., 164 F.2d 34, 36 where the court said:
“Section 262 of the Judicial Code, 28 U.S.C.A. § 377, [now 28 U.S.C. § 1651] cannot be availed of to correct a mere error in the exercise of conceded juicial power, but may be used to prevent usurpation of power, if ‘the lower court is clearly without jurisdiction.’ ”
If we assume, however, that the court has jurisdiction to review by writ of mandamus orders of transfer entered under 28 U.S.C. § 1404(a) for abuse of discretion on the part of the judge, we think it clear that there was no abuse of discretion in ordering the case here transferred. Unquestionably it would be more convenient to litigants and witnesses to try the case in Chicago rather than in Charlotte, and the same law, the federal patent law, will be applied wherever it is tried. We are not impressed by the argument that such transfer should be denied because of an alleged conflict of decision between this Circuit and the Seventh on an important question of law involved in the case. If there be such conflict, this presents a matter for consideration by the Supreme Court on application for certiorari, not for consideration by a district judge on application for transfer under 28 U.S.C. § 1404(a). We have no sympathy with shopping around for forums. As we said in Carbide & Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 4 Cir., 140 F.2d 47, 49, “the courts of one District or Circuit must be presumed to be as able and as well qualified to handle litigation as those in another.”
Application denied.
. Paramount Pictures v. Rodney, 3 Cir., 186 F.2d 111; Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873. See also C-O-Two Fire Equip. Co. v. Barnes, 7 Cir., 194 F.2d 410.
. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949; Shapiro v. Bonanza Hotel Co. Inc., 9 Cir., 185 F.2d 777; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766.
. Chicago Rock Island & Pacific R. Co. v. Igoe, 7 Cir., 220 F.2d 299.
. Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329; Nicol v. Koscinski, 6 Cir., 188 F.2d 537; Ex parte Chas. Pfizer & Co., 5 Cir., 225 F.2d 720; General Portland Cement Co. v. Perry, 7 Cir., 204 F.2d 316; Goodman v. Clancy, 2 Cir., 195 F.2d 235.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_origin
|
C
|
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.
Richard O.J. MAYBERRY, Appellant, v. George PETSOCK, Superintendent.
No. 85-3537.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) May 18, 1987.
Decided June 15, 1987.
Rehearing and Rehearing In Banc Denied July 9, 1987.
Richard O.J. Mayberry, pro se .
Robert E. Colville, Dist. Atty., Kenneth J. Benson, Asst. Dist. Atty., Office of the Dist. Atty., Pittsburgh, Pa., for appellee.
Before SLOVITER, BECKER and GARTH, Circuit Judges.
A brief for appellant was filed by Thomas J. Michael, Pittsburgh, Pa., court appointed counsel. Counsel’s unopposed motion to withdraw thereafter was granted.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Facts
Petitioner Richard O.J. Mayberry appeals from an order of the District Court for the Western District of Pennsylvania dismissing his petition for a writ of habeas corpus for failure to exhaust state remedies. An examination of the lengthy procedural history of this case is necessary to our disposition of this appeal.
On December 9, 1966, following a tumultuous trial in state court in Allegheny County, Pennsylvania, petitioner Mayberry and two co-defendants, Dominick Codispoti and Herbert Langnes, were found guilty by a jury of prison breach and holding hostages in a penal institution, based on acts which occurred while they were Pennsylvania state prisoners. On the day of sentencing, December 12, 1966, Mayberry filed a motion for a new trial which alleged thirty-nine grounds of error. See App. at 158— 162. Although Pennsylvania rules of criminal procedure have been interpreted to require that post-verdict motions be decided before sentencing, Pa.R.Crim.P. 1123 (comment); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372, 373 (1975), the trial judge, Judge Fiok, proceeded to sentence Mayberry without ruling on his post-trial motion. Mayberry was sentenced to consecutive terms of imprisonment of fifteen to thirty years for hostage holding and five to ten years for prison breach. On the same day, Judge Fiok found Mayberry guilty of eleven counts of criminal contempt of court for his conduct during the trial. Mayberry was sentenced to consecutive terms of imprisonment of eleven to twenty-two years on the contempt charges. The contempt charges were the subject of numerous appeals and are not at issue in the current petition for a writ of habeas corpus.
In addition to his new trial motion filed in the trial court, Mayberry filed a timely appeal on January 12, 1967 to the Pennsylvania Superior Court of his convictions and sentences for prison breach and hostage holding. The record indicates that following the filing of his appeal in January 1967, Mayberry filed seven petitions for continuances in his appeal pending before the Superior Court, the last one granted March 25, 1970, and continuing the appeal until November 1970. App. at 167. In each of the five petitions for continuance that May-berry included in his appendix, there is reference to the pending undecided new trial motion, and all but one petition requested that a continuance be granted in order to allow the new trial motion to be decided before the appeal was decided. App. at 89-112. The Commonwealth did not object to any of the continuances. On November 13, 1970, apparently after the period covered by the last petition for continuance, the Superior Court entered a judgment of non pros on the appeals. No reference to the petitions for continuance or to the pending new trial motion was made in the judgment of non pros. App. at 114-15.
On December 7, 1970, Mayberry filed a petition with the Superior Court to remove the judgment of non pros. The petition alleged that by placing him in solitary confinement and denying him access to legal papers, the state prison authorities interfered with and obstructed his attempt to file a brief or a new petition for a continuance of the pending appeal. App. at 120-21. Mayberry’s petition also stated that his post trial motions had not yet been decided. App. at 119. By letter dated January 27, 1971, from Assistant District Attorney Carol Mary Los (now Judge Mansmann of this court), Mayberry was informed that the Commonwealth had no objection to the removal of the non pros judgment. App. at 80-81. The Superior Court took no action on Mayberry’s petition to remove the judgment of non pros for four years until, on March 12, 1975, it denied the petition without an opinion. App. at 115.
The Commonwealth asserts that Mayberry’s post-trial motions were resolved by an order signed by Judge Fiok on January 27, 1975. The order pointed to by the Commonwealth is titled “Order of Court Nunc Pro Tunc”, states that an earlier Order entered on December 29,1967 “has become lost or misplaced”, and denies the “respective motions” of Mayberry and his co-defendants nunc pro tunc to December 29, 1967. App. at 30-31. Mayberry contends that the nunc pro tunc order was never docketed in the Pennsylvania courts and that he never received a copy of the order.
Mayberry also avers in his habeas corpus petition that he filed a petition with the Pennsylvania trial court for post-conviction relief on October' 9, 1970. The purported petition alleges that Mayberry was prevented by prison officials from pursuing his appeal, that he was prevented from communicating with his attorney, and that he was being prevented by prison officials from proceeding with his new trial motion. App. at 169-74. The Commonwealth asserts that the post-conviction petition was never filed with the Pennsylvania courts.
Mayberry filed a petition for habeas corpus on October 23, 1984 in the United States District Court for the Western District of Pennsylvania alleging five grounds for relief: denial of his due process rights caused by the delay of the trial court in failing to rule on his new trial motion and in failing to rule on his post-conviction petition; denial of his due process rights because the trial court’s failure to rule on the new trial motion and post-conviction petition obstructed his right to appeal; denial of due process by the trial court’s sentencing him prior to ruling on the new trial motion; denial of due process based on the thirty-nine grounds for error alleged in his post-trial motion filed in state court; and denial of due process by state officials’ obstruction of his right to appeal. App. at 9-10. Mayberry’s habeas petition acknowledges that the allegations of unconstitutional delay in ruling on his new trial motion and post-conviction petition and sentencing prior to ruling on the new trial motion claims have not previously been presented to the Pennsylvania courts. He alleges, however, that he has “no available remedy in the state courts.” App. at 9.
The petition for habeas corpus was referred to a magistrate who recommended that the petition be dismissed for failure to exhaust state remedies. The magistrate stated, “there is no doubt that on January 29, 1975, the Court of Common Pleas entered an order in which it held that the order of December 29, 1967 had been lost or misplaced, and directed that the motion for a new trial be denied as of December 29, 1967.” App. at 48. The magistrate concluded that because Mayberry had not appealed that decision, he had failed to exhaust his state remedies. App. at 48-50. With respect to the post-conviction petition, the magistrate credited the Commonwealth’s assertion that no petition was ever filed, and concluded that “even if this were not the case, the fact that almost fifteen years has elapsed since Mayberry alleges he filed the petition, and the fact that the petitioner has not attempted to have the matter resolved, defies belief where an individual such as Mayberry who has extensive experience in the judicial system is the principal litigant.” App. at 50. The district court adopted the magistrate’s Report and Recommendation and dismissed May-berry’s petition. App. at 64.
II.
Exhaustion
As a general rule, a state prisoner must exhaust state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). The requirement is not a mere formality. It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner’s federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). An exception, however, is made where the petitioner has no opportunity to obtain redress in the state court or where the state corrective process is so deficient as to render any effort to obtain relief futile. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam); see also 28 U.S.C. § 2254(b). Mayberry alleges that this exception applies to his petition.
In finding that Mayberry failed to exhaust, the magistrate relied on the undisputed fact that Mayberry failed to appeal the nunc pro tunc order of January 29, 1975 denying his new trial motion. May-berry argues that he could not have appealed from the order denying his new trial motion because neither the order purportedly signed on December 29, 1967 nor the nunc pro tunc order of January 29, 1975 was in fact filed. Mayberry points to the letter from then Assistant District Attorney Carol Mary Los (now Judge Mansmann) dated January 27, 1971, stating that she had been informed by the Clerk of Court’s office that it could not find any record of the disposition of Mayberry’s post-trial motions. App. at 80. Mayberry argues that this letter proves that no order was ever entered in 1967, and that this casts doubt on the 1975 nunc pro tunc order generally. Mayberry argues that the nunc pro tunc order was never docketed in the state courts and that he never received a copy of the order and thus, that he could not have appealed from it.
We note that the district court made no determination that Mayberry’s motion for a new trial was denied on December 29, 1967, as the state court’s order states and as the Commonwealth argued in the district court. The Commonwealth produced no contemporaneous evidence showing entry of such an order. It does not appear on the trial court docket. App. at 116a. Nonetheless, it is irrelevant whether the new trial motion was denied in 1967 if the nunc pro tunc order was filed in 1975 and Mayberry failed to perfect his appeal therefrom. We agree with the Commonwealth that the “Order of Court Nunc Pro Tunc” which is reproduced in the appendix and which is stamped “Received January 30, 1975” by the Chief Minute Clerk Criminal Division in the Court of Common Pleas of Allegheny County is indisputable evidence of the filing of such an order. App. at 31. Moreover the notation “Copies sent” on the order at least places upon Mayberry the burden of proving that a copy was not sent to him.
Mayberry argues that a statement in a footnote of this court’s opinion in Codispoti v. Howard, 589 F.2d at 138 n. 5, suggests otherwise. In that case, we reviewed the procedural history relating to Mayberry’s co-defendant, Codispoti, and concluded that Codispoti’s new trial motion had not been disposed of by the time of our decision in that case. We referred to a letter to Codispoti from the Allegheny County Clerk of Courts dated August 6, 1975 (several months after the nunc pro tunc order), which stated that no disposition had yet been made of Codispoti’s new trial motion. Id. at 138 n. 5. However, there is no suggestion in Codispoti that the Commonwealth argued there, as it does here, that Codispoti’s new trial motion was disposed of by the nunc pro tunc order. The statement in Codispoti, standing alone, is insufficient to overcome the “presumption of regularity” accorded state court proceedings. See Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed.2d 1461 (1938); United States ex rel. McCloud v. Rundle, 402 F.2d 853, 857 (3d Cir.1968), cert. denied, 398 U.S. 929, 90 S.Ct. 1822, 26 L.Ed.2d 92 (1970). See also Ford v. Strickland, 696 F.2d 804, 811 (11th Cir.), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Accordingly, Mayberry’s failure to appeal from the nunc pro tunc order denying his new trial motion and his failure to appeal from the Superior Court’s denial of his petition to remove the judgment of non pros in his direct appeal would constitute a failure to exhaust state remedies which would bar habeas relief unless Mayberry can show that he was excused from exhaustion.
III.
Allegations of State Obstruction
Mayberry sought to make such a showing by claiming in the district court that he was obstructed by state officials from pursuing his appeal. App. at 9. The Supreme Court has suggested, without elaboration, that failure to exhaust state remedies will not bar federal habeas corpus review where state officials have interfered with a habeas petitioner’s utilization of state remedies. In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), the Court so stated first in discussing the petitioners’ failure to appeal (“Of course, federal habeas corpus is allowed where time has expired without appeal when the prisoner is detained without opportunity to appeal because of lack of counsel, incapacity, or some interference by officials. ” Id. at 485-86, 73 S.Ct. at 422 (emphasis added)), and then in discussing the petitioners’ failure to use the state’s remedy for collateral relief (“A failure to use a state’s available remedy, in the absence of some interference or incapacity, such as is referred to [in cases involving denial of counsel], bars federal habeas corpus.” Id. at 487, 73 S.Ct. at 422 (emphasis added)). The Court also suggested last term that “some interference by officials” which “made compliance impractical” would constitute cause, under the cause and prejudice standard to excuse procedural default. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986) (citing Brown v. Allen, 344 U.S. at 486, 73 S.Ct. at 422).
Although several circuits have acknowledged that such “interference” by officials would be a basis for excusing exhaustion of state remedies, see Litchfield v. Tinsley, 281 F.2d 486, 488 (10th Cir.1960), State v. Gladden, 240 F.2d 910, 911-12 (9th Cir. 1957), we have found only one case where a federal court actually proceeded to consider the merits of a state prisoner’s unexhausted claim after finding that it was “the policy of the State administrative authorities to refuse prisoners the right to send petitions to any court.” United States ex rel. Bongiorno v. Ragen, 54 F.Supp. 973, 976 (N.D.Ill.1944), aff'd, 146 F.2d 349 (7th Cir.), cert. denied, 325 U.S. 865, 65 S.Ct. 1194, 89 L.Ed. 1985 (1945). We agree that if a prisoner could establish that the activities of the state authorities made the prisoner’s resort to the state procedures in effect unavailable, exhaustion would be excused.
Mayberry’s petition for a writ of habeas corpus asserts that he did not appeal from the denial of his petition to lift the non pros judgment because “Prison officials obstructed and prevented me from filing appeal briefs and held me incommunicado, and stole my records and files while transferring me from one solitary confinement cell to another all over Pennsylvania.” App. at 9. In the post-conviction petition, which the Commonwealth contends was never filed in state court, Mayberry alleges that “The authorities at the state prison at Huntingdon obstruct me in my right to appeal my convictions by holding me incommunicado from my attorney, withholding my personal legal papers and correspondence.” App. at 171. Mayberry’s petition for habeas corpus alleges as a ground for relief “denial of my right to due process of law by state officials obstruction of my right to appeal as set forth in my post-conviction petition.” App. at 10. Mayberry argued in his Memorandum of Law filed in support of his petition filed in the district court that his direct appeal was obstructed “by the prison authorities holding [me] incommunicado and denying [me my] right of access to the courts.” App. at 180. Similarly, Mayberry alleged in his motion for discovery, not ruled on by the district court, that “the prison authorities at the Western Penitentiary, the State Prison at Huntingdon, the State Prison at Dallas, ... have obstructed petitioner’s right of appeal.” App. at 193. In response to the Commonwealth’s motion to dismiss May-berry’s petition as a delayed petition under Rule 9(a) of the Rules Governing Habeas Corpus cases, Mayberry pointed to “the action of the prison authorities at Western Penitentiary and in the Bureau of Correction of Pa., in confiscating my legal papers and law books, holding me incommunicado, denying me access to the courts, transferring me from one solitary confinement cell to another in prisons all over Pennsylvania, and stealing my records and files.” App. at 38.
IV.
Sufficiency of Allegations
We will assume arguendo that if Mayberry could establish the facts alleged, this would excuse exhaustion. We must decide whether these allegations, many made under penalty of perjury, entitled Mayberry to a hearing, or at least to the discovery he sought in the district court.
As a general rule in dealing with the merits of a petition for habeas corpus, where there are material facts in dispute which if proven would entitle a petitioner to relief and the petitioner has not been afforded a full and fair evidentiary hearing in state court, either at the time of trial or in a collateral proceeding, a federal habeas court must hold an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Bibby v. Tard, 741 F.2d 26, 30 (3d Cir. 1984). However, “[t]his is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing.” Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 1632, 52 L.Ed.2d 136 (1977). Just as bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing, see Wacht v. Cardwell, 604 F.2d 1245, 1246 n. 2 (9th Cir. 1979), neither do they provide a basis for imposing upon the state the burden of responding in discovery to every habeas petitioner who chooses to seek such discovery. Under Rule 6(a) of the Rules Governing Habeas Corpus Cases Under § 2254 the district court has discretion to decide the extent to which discovery is appropriate. The Advisory Committee Note to Rule 6 makes clear that prior court approval is required to prevent abuse. Moreover, Rule 2(c) of the Rules Governing Habeas Corpus Cases expressly provides in part that the petitioner “shall set forth in summary form the facts supporting each of the grounds” specified in the petition, (emphasis added). Thus, notice pleading is not countenanced in habeas petitions. See Blackledge, 431 U.S. at 75 & n. 7, 97 S.Ct. at 1629 & n. 7 (quoting Advisory Committee Note to Rule 4). Unless the petition itself passes scrutiny, there would be no basis to require the state to respond to discovery requests. See Rule 4 of the Rules Governing Habeas Corpus Cases (“If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal”).
These rules and the judicial interpretation thereof have developed in the context of determinations made on the merits of a habeas petition rather than on whether non-exhaustion can be excused. We see no reason why allegations on the latter issue should be governed by any lesser standard than allegations on the merits. Just as “[h]abeas corpus is not a general form of relief for those who seek to explore their case in search of its existence,” Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir.1970), so also discovery and an evidentiary hearing should not be available to a habeas petitioner who claims relief from the exhaustion rule unless the petitioner sets forth facts with sufficient specificity that the district court may be able, by examination of the allegations and the response, if any, to determine if further proceedings are appropriate. See generally Blackledge v. Allison, 431 U.S. at 81-82 & n. 25, 97 S.Ct. at 1632-33 & n. 25 (citing Moorhead v. United States, 456 F.2d 992, 996 (3d Cir.1972)).
In this case, the record indicates that the Commonwealth did not respond in the district court to Mayberry’s allegation in the petition that he was obstructed from pursuing his appeal. Moreover, the district court did not address Mayberry’s ostensible excuse for failure to exhaust and hence it never considered whether Mayberry’s allegations of obstruction as an excuse for non-exhaustion were sufficiently specific to warrant discovery and/or an evidentiary hearing. We hold that this was error. While a district court may ultimately decide that a petitioner’s allegations of obstruction are not sufficient to create an issue of fact of obstruction as an excuse for failure to exhaust, the court should not ignore such allegations altogether.
Although we could remand for consideration of the allegations of obstruction, since the record before us contains the petition and supporting papers filed in the district court, it will be more efficient if we review them to determine their sufficiency. In this connection, we note in passing that the Commonwealth which answered Mayberry’s attorney’s brief chose not to respond in this court to Mayberry’s pro se brief, filed after his attorney withdrew, in which the allegations of obstruction are made. Thus, this record contains no response by the Commonwealth either in the district court or here to Mayberry’s allegations of obstruction by state officials. Our decision to address the issue does not signify approval of the Commonwealth’s failure to provide us with assistance.
In Mayberry’s habeas petition, his allegations of state obstruction are vague and general. For example, although he contends that the state officials withheld his legal papers, he does not state who withheld such papers, when and where they were withheld, whether those papers consisted of putative appeal papers, or whether they were incoming papers to which he was not given access. Similarly he contends that state officials refused to allow him to prepare or file appeal briefs. Again he states nothing with respect to the identity of the person or persons, and more particularly when this conduct took place. The timing is of particular relevance. All of Mayberry’s exhibits, such as the affidavits of other prisoners, are dated in 1970. Since these were years before the January 29, 1975 nunc pro tunc order, even if they could be viewed as providing some support for his allegations of obstruction, an issue we do not reach, they provide no support for any allegations of obstruction from the dates in 1975 when Mayberry would have been required to appeal from the nunc pro tunc order and from the Superior Court’s order refusing to lift the judgment of non pros in his direct appeal. Mayberry’s allegations that he has been moved in response to the filing of the habeas petition are similarly irrelevant to the issue of his failure to exhaust by appealing from the nunc pro tunc order entered January 29, 1975.
In short, neither Mayberry’s allegations of state obstruction nor the material in the appendix makes a sufficient showing on the exhaustion issue to warrant a court to direct the state to respond to Mayberry’s request for discovery or to embark on an evidentiary hearing. Therefore, although the district court failed to consider the issue, we hold that the district court did not err in its ultimate disposition dismissing Mayberry’s petition for failure to exhaust.
V.
Conclusion
In summary, Mayberry failed to exhaust state remedies in that he failed to appeal from the nunc pro tunc order of January 29, 1975 denying his new trial motion or from the Superior Court’s denial of his petition to remove the judgment of non pros in his direct appeal. We hold that a habeas petitioner may be excused from exhausting state remedies by showing that obstruction by state officials prevented pursuit of those remedies. We also hold, however, that the allegations of exhaustion must be at least as specific with respect to the facts allegedly excusing exhaustion as is required for allegations alleging constitutional deprivation as the basis for the habeas petition. Mayberry’s allegations of obstruction do not rise to the necessary level and for the reasons set forth above, we will affirm the district court’s order of dismissal.
. We have previously described the outrageous conduct of Mayberry and his co-defendants during the course of the trial. See Codispoti v. Howard, 589 F.2d 135, 137-38 (3d Cir.1978).
. The magistrate mentioned, but does not appear to have relied on, Mayberry’s failure to appeal to the Pennsylvania Supreme Court from the Superior Court’s denial of his motion to lift the non pros. Had Mayberry appealed or filed a petition for allocatur to the Pennsylvania Supreme Court alleging the same constitutional violations that he alleged in his petition in the Superior Court, he would have exhausted his state remedies. See Chaussard v. Fulcomer, 816 F.2d 925, 928 (3d Cir. 1987).
. Although not necessarily bearing on Mayberry’s attempts to pursue his appeals after the denial of his new trial motion and petition to remove the judgment of non pros in 1975, we note that Mayberry repeatedly asserted in his petitions for continuance of his appeal in the Superior Court and his petition to remove the judgment of non pros that he was being obstructed by state officials from pursuing his appeals. App. at 108, 112-13, 120.
. The Commonwealth’s answer to Mayberry’s petition states that Mayberry alleged only four grounds as bases for relief. App. at 17-18. It does not mention the fifth ground alleged by Mayberry, "Denial of my right to due process of law by state officials obstruction of my right to appeal as set forth in my postconviction petition." App. at 10. Nor does the Commonwealth’s answer respond to Mayberry’s explanation for his failure to appeal the adverse action on his petition to remove the judgment of non pros that, "prison officials obstructed and prevented me from filing appeal briefs and held me incommunicado and stole my records and files while transferring me from one solitary confinement cell to another all over Pennsylvania.” App. at 9.
. Some of the material included in Mayberry’a appendix, which was allegedly attached to various petitions, is of questionable legitimacy. For example, he included as Exhibit 1 to his petition to the Superior Court to remove the judgment of non pros, "a photocopy of a letter dated November 10, 1970 written by the Honorable Frederick B. Smillie to the Secretary of Welfare of Pennsylvania.” See App. at 121. We note, however, that this alleged "photocopy” does not contain any letterhead or signature. See App. at 125A. Even if we were to assume that the letter was legitimate, its date makes it irrelevant for consideration for the purpose of our inquiry, i.e. failure to exhaust after January 29, 1975.
. We need not reach the dispute between May-berry and the Commonwealth over whether a post-conviction petition for relief was filed. The magistrate’s report states, "despite the petitioner’s allegations to the contrary, the records of the Clerk of the Common Pleas Court, do not contain any showing that a post-conviction [petition] was ever filed by the petitioner,” App. at 50. Even if Mayberry had filed a post-conviction petition in 1970, as he alleges, the state court's failure to rule on that could not excuse Mayberry from falling to appeal from the 1975 nunc pro tunc order. Because Mayberry’s allegations with respect to state obstruction vis-a-vis his alleged post-conviction petition are no more specific than the similar allegations regarding his failure to appeal the other orders, his filing of such a petition vel non would not affect the disposition of this appeal.
We have considered and rejected, either on the merits or as not relevant, all the remaining arguments raised in Mayberry’s brief. We note however that Mayberry’s contention that the district court erred in failing to permit him to expand the record is moot, since we have reviewed all of the items included in his pro se appendix in the course of our de novo consideration.
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_state
|
56
|
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".
COMMISSIONER OF INTERNAL REVENUE v. STOKES.
No. 5448.
Circuit Court of Appeals, Third Circuit.
July 31, 1935.
Frank J. Wideman, Asst. Atty. Gen., and Sewall Key and Arnold Raum, Sp. Assts. to Atty. Gen., for petitioner.
Frederick H. Knight and Henry Gross, both of Philadelphia, Pa. (Morgan, Lewis & Bockius, of Philadelphia, Pa., of counsel), for respondent.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Writ of certiorari granted 56 S. Ct. 308, 80 L. Ed. —.
DAVIS, Circuit Judge.
This case involves the income tax liabilities of the taxpayer, Francis J. Stokes, for the years 1929 and 1930.
In 1928, the taxpayer executed a trust agreement whereby he transferred certain securities to the trustee to use the income therefrom for the maintenance, education, and support of his several minor children. The agreement directed the trustee, as each child became twenty-one years of age, or died prior to that time, to transfer the equal share of the fund of that child to the wife of the 'taxpayer, or if she should not be living, to the taxpayer himself, and if neither should be living, to other persons for the purposes therein expressed.
The trust agreement further provided that:
“Third: I direct that Lelia W. Stokes, during the continuation of this trust, may at any time by a written request to the trustee, receive such securities or sums of money under said trust as she may desire.
“Should, however, the said Lelia W. Stokes, die prior to the termination of this trust, then I reserve to myself the right to draw upon the principal of said trust as herein conferred upon her.”
The Commissioner determined that the income derived from the trust fund in 1928 and 1930 was taxable to the settlor and not the trustees. The Board of Tax Appeals reversed the assessment, and the Commissioner came here on petition to review the order of the Board.
There must be no misunderstanding of the issue here involved. It is not a question of the power of Congress to provide that under such facts as are before the court the income of the trust is taxable to the settlor (Burnet v. Wells, 289 U. S. 670, 53 S. Ct. 761, 77 L. Ed. 1439; DuPont v. Commissioner, 289 U. S. 685, 53 S. Ct. 766, 77 L. Ed. 1447), but it is a question of whether or not Congress has given statutory authority to tax the income derived from the fund to the settlor.
The Commissioner contends that the income of the trust is taxable to the settlor under sections 166 and 167 of the Revenue Act of 1928 (26 USCA §§ 2166, 2167).
These sections provide:
“166. Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor.”
“167. Where any part of the income of a trust may, in the discretion of the grantor of the trust, either alone or in conjunction with any person not a beneficiary of the trust, be distributed to the grantor or be held or accumulated for future distribution to him, or where any part of the income of a trust is or may be applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in section 23 (n) [section 2023 (n)], relating to the so-called ‘charitable contribution’ deduction), such part of the income of the trust shall be included in computing the net income of the grantor.”
There is nothing in the provisions of those sections which applies to the situation here. Of course, the purpose of those statutes was to outlaw evasions of tax liability through the medium of trusts, but the Commissioner may not tax transactions which the terms of the statute do not include even though his failure to do so may decrease tax liability.
Under the terms of the trust agreement, the settlor has no power to revest in himself any part of the corpus of the trust. He irrevocably divested himself of it and can never come into possession of it except upon a contingency that may never occur.
No part of the income from the trust may, in the discretion of the grantor, either alone or in conjunction with any other person, not the beneficiary of the trust, be distributed to the grantor or held or accumulated for future distribution to him. The trust agreement puts it beyond his reach. He thus divested himself of title to the fund and the income derived from it and has .no power or control over it. Consequently he has relieved himself from liability to be taxed upon the income:
The facts of this case do not fall within the provisions of section 166. As a matter of fact, the Commissioner relies on it without argument. The section applies to revocable trusts, where the settlor is vested with the power to revoke the trust “at any -time during the taxable year.” Duke v. Commissioner, 23 B. T. A. 1103, 1104, order affirmed in 62 F.(2d) 1057 (C. C. A. 3); Id., 290 U. S. 591, 54 S. Ct. 95, 78 L. Ed. 521; Schweitzer v. Commissioner, 75 F.(2d) 702, 706 (C. C. A. 7) ; Sydney R. Bliss, 26 B. T. A. 962; Regulations 74, Article 881.
Section .167 refers to trusts in which the settlor retains an interest in the income. There is nothing in the trust agreement here giving the settlor the right either to any of the income of the trust or to have it accumulated for his benefit. The Commissioner again argues that the income was used to free him from obligations, and therefore it was substantially and factually his income. This is refuted by the agreement itself.
Further, section 161 (b), Revenue Act 1928, 26 USCA § 2161 (b), expressly provides that the tax shall be computed on the net income of the trust and paid by the trustee except as provided in sections 166 and 167.
The Commissioner also relies to some degree upon section 162 (b) of the Revenue Act of 1928, 26 USCA § 2162 (b).
He says that the taxpayer can be considered a “beneficiary in fact” of the trust under the provisions of section 162 (b), since the purpose of the trust was to relieve the taxpayer of his legal obligation to care for and support his minor children. But the trust agreement puts the settlor outside the terms of that section of the statute, and he cannot be brought within it by judicial legislation. If the settlor is liable for taxes, it is because the statute when fairly construed brings him within its provisions, and not'because he has established a trust which confers upon him or his family a benefit not made taxable by the terms of the statute. The word “beneficiary,” as there employed, has its usual and ordinary meaning, and the statute merely provides that the trustee shall be allowed a deduction for income which is to be distributed currently to the beneficiaries of the trust.
The question here cannot be resolved by the same arguments that were used fin Burnet v. Wells, supra. In that case, the facts fell directly within the provision of the statute that the settlor should be taxed for income of a trust used to pay insurance premiums on his life. The language of the statute was broad enough to fit the facts and the real question was a constitutional one.
It is possible to distinguish Willcuts v. Douglas, 73 F.(2d) 130, 131 (C. C. A. 8), on the facts of that case but not on the language used by the court. Schweitzer v. Commissioner, supra. But we agree with the court in the Schweitzer Case, in that part of its opinion wherein it said: “* * * we feel constrained to disagree with it [Willcuts v. Douglas] if the income is charged to him merely because it directly benefited him by discharging his obligaLion. To so hold we think would directly conflict with sections 161 (b) and 167 of the statutes. The argument that a reversal of this cause will open the door for increased tax evasion is quite persuasive, but in view of the Board’s prior rulings in this respect, it would seem that the door has. been open for some time, and Congress has failed to close it.”
The order of the Board of Tax Appeals is affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_respond1_1_4
|
D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
AUDITOR OF PUBLIC ACCOUNTS OF ILLINOIS v. IZATT.
No. 10810.
United States Court of Appeals Seventh Circuit.
July 1, 1953.
Latham Castle, Atty. Gen., and William C. Wines, Asst. Atty. Gen., Raymond S. Sarnow, A. Zola Groves and Edward M. White, Asst. Attys. Gen., of counsel, for appellant.
Maurice J. Walsh and Morris A. Haft, Chicago, Ill., for appellee.
Before DUFFY, FINNEGAN and SWA1M, Circuit Judges.
FINNEGAN, Circuit Judge.
On February 19, 1952, The Auditor of Public Accounts of the State of Illinois, for the use of the People of the State of Illinois, filed suit in the United States District Court for the Northern District oí Illinois, Eastern Division, against Dearborn Packing Company, an Illinois Corporation, and Russell A. Izatt, its president, Julius Lopin, its treasurer, and Alvin Rubens, its secretary. The plaintiff-appellant sought to recover damages for overcharges paid by the State of Illinois to certain of the defendants, under the provisions of the Defense Production Act of 1950, Title 4, sec. 409(c), 64 Stat. 811, 50 U.S.C.A.Appendix, § 2109 (c). Each of the individual defendants moved for the dismissal of the counts in the complaint seeking recovery against him upon the following grounds:
“A — The complaint does not disclose in any manner, shape or form any right in the plaintiff to maintain its action herein, nor does the complaint show or allege any obligation or duty (owed) by this defendant to the plaintiff.”
“B — The action was not commenced within one year from the date of the occurrence of the alleged violations set forth in plaintiff’s complaint; that section 2109 title 50 United States Code Annotated (App.) paragraph (c) restricts a plaintiff entitled to bring an action under such section to the commencement of a good cause of action within one year from the date of the occurrence of the alleged violation of such act.”
“C — This defendant moves the court pursuant to the general law, to dismiss the complaint filed herein against him on the ground that said complaint is substantially insufficient in law on its face.”
On November 25, 1952, the trial court allowed the motions of the individual defendants to dismiss the complaint and ordered that they be dismissed from the action. The plaintiff prosecutes this appeal to reverse such finding and order. The cause is still pending in the District Court against the corporate defendant, Dearborn Packing Company.
It is sufficient for the purposes of this appeal to say that the complaint charged that the defendant corporation acting through the individual defendants, as its officers and agents, agreed to sell and .actually did sell to the State of Illinois meat and meat products, and that the State bought and paid overceiling prices for such products to be used and consumed by inmates of State institutions.
The sole question presented by this record is: Are the officers, of the corporation that makes sales at overceiling prices, and who actually participate in and bring about such sales, liable as individuals, with the corporate seller, under the Defense Production Act of 1950 ?
The section of the Defense Production Act of 1950 involved in this proceeding is subsection (c) sec. 409 of the Act of September 8, 1950, 64 Stat. 811, as amended, 50 U.S.C.A.Appendix, § 2109(c). It now reads as follows:
“If any person selling any material or service violates a regulation or order prescribing a ceiling or ceilings, the person who buys such material or service 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. In any action under this subsection, the seller shall be liable for ■reasonable attorney’s fees and costs as determined by the court, plus whichever of the following sums is greater: (1) 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, but in no event shall such amount exceed the amount of the overcharge, or the overcharges, plus $10,000 or (2) an amount not less than $25 nor more than $50 as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges if the defendant proves that the violation of the regulation or order in question was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation. For the purposes of this section the word ‘overcharge’ shall mean the amount by which the consideration exceeds the applicable ceiling.”
The legislative history of the cited provision of Defense Production Act of 1950 will be of material assistance in the solution of the problem presented by this proceeding. The subsection (c) finds its origin in and is taken from the Emergency Price Control Act of June 30, 1942, 56 Stat. 34, Title [I, sec. 205, subsection (e) of that Act provides that if any person selling a commodity violated a regulation prescribing a maximum price the person who buys such commodity for use or consumption, other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is greater, plus reasonable attorney’s fees and costs as determined by the court. “For the purposes of this section the payment or receipt of rent for defense-area housing * * * shall be deemed the buying or selling of a commodity”.
We have italicized the provisions authorizing the buyer to bring an action in order to emphasize the fact that as originally written the subsection did not designate positively the person or persons against whom the buyer might proceed in his action. The inference, of course, was plain that the action should be against the person or persons who sold the commodity in violation of the regulation prescribing the maximum price.
On June 30, 1944, Title II, sec. 205, subsection (e) of the Emergency Price Control Act of 1942 was amended so as to read:
“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.
“In such action the seller shall be liable for reasonable attorney’s fees and costs as determined by the court plus whichever of the following sums is the greater (1) such amount not more than 3 times the amount of the overcharge or the overcharges upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50 as the court in its discretion may determine: Provided, however, that such amount shall be the amount of the overcharge or overcharges or $25 whichever is greater if the defendant proves that the violation of the regulation order or price schedule in question was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation.
“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.” 58 Stat. 640.
We have again italicized portions of the subsection to emphasize that this amendment of 1944 pointed out that the suit of the overcharged buyer should be brought “against the seller on account of the overcharge.”
On September 8, 1950, the Defense Production Act of 1950, as heretofore cited, was passed, 64 Stat. 798, et seq., 50 U.S.C.A. Appendix, § 2061, et seq. The former subsection (e), sec. 205, title II of the Emergency Price Control Act of 1942 was placed therein as sec. 409, subsection (c) of title IV, 50 U.S.C.A.Appendix, § 2109(c). It was amended on July 31, 1951, 65 Stat. 136, by striking therefrom the provisions limiting the recovery in a suit by an overcharged purchaser to the amount of the overcharge plus $10,000, and also by adding subsections (d) and (e). These additions are immaterial to the consideration of the question presented by this record.
The foregoing resume of the history of the legislative enactment known as title IV, sec. 409, subsection (c), of the Defense Production Act of 1950, 50 U.S.C.A. Appendix, § 2109(c) establishes in our opinion that since the Act of June 30, 1944, the buyer of a commodity, for which a maximum price has been prescribed, who has been overcharged in his purchase thereof, may bring a civil action for damages for such violation of the prescribed maximum price against the seller of the commodity and against the seller alone. The subsection does not give such a purchaser the right to sue the clerk or other agent of the seller. In' the case at bar, the purchaser, The State of Illinois, having purchased the meat and meat products involved for use and consumption by the patients or inmates of State institutions, and having paid a price over and above the prescribed maximum for such commodity, is entitled under the terms of the subsection to sue the Dear-born Packing Company, the seller, for the damages provided, for in the Defense Production Act. The agents and officers of the seller are not, under the terms of the statute, liable to respond for s.uch damages in such an action.
This precise question, so far as we are able to determine, has not been passed upon by any federal court of appellate jurisdiction. However, cases in the District Courts of the United States in New York, California and Missouri have also reached our conclusion. See Bowles v. Cardinal Cutlery Corp., D.C.N.Y., 69 F.Supp. 435; Porter v. Schaefer, D.C.Cal., 69 F.Supp. 1013; and United States v. Koch Bros., Mo., 109 F.Supp. 540. Compare also the opinion in Cochran v. Nelson, 1946, 26 Wash.2d 82, 17-3 P.2d 769, where the point is considered and passed upon.
In our historical resume we have included the provisions of the Emergency Price Control Act of .1942, 56 Stat. 34, and its amendment in June 1944, 58 Stat. 640, in reference to' suits for treble damages arising from the payment or receipt of excess rent for defense area housing accommodations. Such provisions are not found in the Defense Production Act of 1950, because on June 30, 1947, 61 Stat. 193, 50 U.S.C.A.Appendix, § 1881 et seq. an act relating to maximum rent on housing accommodations was passed by Congress which embodied the provisions of the Emergency Price- Control Act, as amended in 1944.
The Act of 1947, 61 Stat. 199, provides that any person who demands, accepts or receives any rent payment in excess of the maximum prescribed under the Act snail be liable to the person from whom he demands, accepts or receives such rent, etc. In other words, the language of the act is very different from that used in reference to the purchase of commodities above ceiling prices in the Emergency Price Control Act. Anyone who demands, accepts or receives rent in excess of the prescribed maximum is liable to the person from whom he demands, accepts or receives the excess rent. On the other hand, as we have heretofore pointed out, the purchaser of a commodity for a price in excess of the maximum prescribed may recover in a civil action for damages against only the seller of such commodity.
Consequently, cases involving treble damages for rent violations have been disregarded as having no decisive value in the solution of the problem presented by this record.
The judgment of the District Court is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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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.
Samuel ALEXANDER, Petitioner-Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent-Appellee.
No. 732, Docket 78-2007.
United States Court of Appeals, Second Circuit.
Argued May 9, 1978.
Decided Aug. 7, 1978.
Benjamin I. Cohen, New York City (Poletti, Freidin, Prashker, Feldman & Gartner, Stanley Futterman, New York City, of counsel), for petitioner-appellant.
Tyrone Mark Powell, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.
Before WATERMAN, INGRAHAM and MANSFIELD, Circuit Judges.
Of the United States Court of Appeals for the Fifth Circuit, sitting by designation.
WATERMAN, Circuit Judge:
This is an appeal from a judgment order of the United States District Court for the Western District of New York, Curtin, J., denying without an evidentiary hearing a petition seeking the issuance of a writ of habeas corpus. Assigned counsel has done an admirable job briefing and arguing this appeal but, inasmuch as we find no error in Judge Curtin’s decision or reasoning, we affirm.
On August 24, 1971 a Brooklyn, New York supermarket was robbed and the assistant manager, Thomas Higgins, was shot to death during the course of the robbery. At about 6:30 a. m. on September 8, 1971, the police arrested one Robert Smith for the murder of Higgins and upon his arrest Smith immediately confessed and implicated Alexander, the petitioner-appellant here, in the robbery and murder. Acting upon the information so received and other information as well, the police, with Smith present to identify the apartment where Alexander resided, went directly to Alexander’s apartment and arrested him there at approximately 7:30 a. m. As he was being taken into custody, Alexander, who in view of a number of previous arrests was probably well-acquainted with what should be done in such a situation, instructed his wife to call his attorney. The police officer told Alexander’s wife that Alexander would be taken to the 73rd Precinct. Upon arrival at the 73rd Precinct stationhouse, contrary to standard practice, Alexander was not immediately booked but was instead taken to a detention cell. At about 10:30 a. m. one of the arresting officers, a Detective Schneider, took Alexander to a bathroom. Upon returning to the detention pen, while walking through the police locker room, Alexander indicated that he wished to discuss his situation with the officer. Detective Schneider then read Alexander his Miranda rights, among which were included his rights to be represented by an attorney, to have counsel present during any interrogation, and to have an attorney appointed for him if he could not afford one. As Alexander was being advised of each distinct right, Detective Schneider asked Alexander whether Alexander understood each of these rights. Each time he was so asked, Alexander nodded his head in the affirmative. After being advised of his rights, Alexander was asked whether he still wished to make a statement without counsel being present. After again indicating that his response was in the affirmative, Alexander asked “What am I here for?” In response the detective stated that Alexander was being held “for the Bohack killing.” Alexander thereupon exclaimed: “My gun wasn’t popping. Gene’s was.” He thereby implicated himself in the robbery and murder at the supermarket in Brooklyn. When Detective Schneider notified a second officer, Detective Cambridge, as to what had occurred, the latter entered the locker room and again informed Alexander of his Miranda rights. Again choosing to waive those rights, Alexander once more implicated himself in the crime by telling Detective Cambridge: “All right, you have got me and you have got the little guy. I know the little guy gave me up.” After further probing the officer’s knowledge concerning the circumstances surrounding the commission of the crime, Alexander further stated, in substance, according to Detective Cambridge, that “[t]wo of Gene’s regular partners had to go south for a funeral, and Gene said to me and the little guy we didn’t have to do anything, one of us would stand by the door and the other would take the registers.”
Following ten hours during which he might have received only a minimal amount of food or drink while being held in the detention cell but during which time he had not been subjected to any further interrogation, Alexander was again questioned on September 8, this time at 9 p. m. that evening by Assistant District Attorney DiBenedetto. The state prosecutor again read Alexander all of his Miranda rights. Alexander was then asked if he understood each right and in each instance he replied “Yes.” Alexander then asked, “You said that if I wanted an attorney present, that’s my right to have an attorney present[?]” DiBenedetto responded, rather obliquely, that Alexander himself could decide whether he wished to provide any answers to any of the prosecutor’s questions. An off-the-record discussion followed and immediately thereafter, Alexander said: “Pop your questions.” This the assistant district attorney forthwith proceeded to do. In response to DiBenedetto’s questions, Alexander gave an extremely comprehensive statement which fully implicated him in the robbery and murder at the Bohack’s supermarket in Brooklyn.
Alexander was finally booked at 11 p. m. that same evening and he was arraigned on a felony murder charge the following day. Indictment followed on September 11, 1971. On September 15, 1971, counsel was appointed to represent him.
In accordance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), a pretrial hearing (hereinafter the “Huntley hearing”) on Alexander’s motion to suppress the two incriminating statements he had made to the detectives and the detailed confession he had made to the assistant district attorney was held from February 15, 1972 through February 22, 1972 before Justice Joseph Mollen of the New York State Supreme Court, Kings County. At the close of this protracted hearing, Alexander sought to reopen the record so that he could introduce the testimony of two additional witnesses, that of his wife and that of his father-in-law, German, both of whom had been previously unavailable because they had been attending the out-of-state funeral- of a member of the family. In refusing to permit Mrs. Alexander to corroborate her husband’s testimony that he had been beaten at the time of his arrest, Justice Mollen stated that the wife’s testimony would have been merely cumulative to that given by Alexander and would not have been relevant to the issue of voluntariness inasmuch as there was no indication that petitioner had confessed as a result of the alleged blows inflicted by the police at the time of Alexander’s apprehension at his apartment at about 7:30 a. m. on the morning of September 8, 1971. See note 1 supra. As to the proffered testimony of Alexander’s father-in-law that, upon appearing at the 73rd Precinct house during the day of September 8, 1971, he had been informed that Alexander was not at the stationhouse, when, in fact, Alexander was being held in a detention cell upstairs, Justice Mollen ruled that such testimony would be hearsay and “would not [, in any event,] have any real bearing on the issues before the Court” in the Huntley hearing.
The state trial court judge then read into the record his detailed findings of fact and conclusions of law. Justice Mollen found that Alexander had been adequately advised of his Miranda rights and had knowingly and intelligently waived them. The judge also found that all of Alexander’s statements were fully voluntary and that “no force, no duress, no coercion, no violence” had been used by the police or the prosecutor to compel Alexander to make any statements to the detectives or to the assistant district attorney.
Alexander’s trial in the New York State Supreme Court, Kings County, on a charge of felony murder commenced on February 28,1972. On the second day of trial Justice Mollen reversed his earlier determination, made at the Huntley hearing, and ruled that the first statement Alexander had made to the police in the locker room on the morning of the 8th of September would be excluded inasmuch as Alexander’s “nodding” after each question posed to him by Detective Schneider might not have been an adequate enough indication of an intention to waive his Miranda rights. The second statement, that which was made to Detective Cambridge immediately following the initial statement to Detective Schneider, was not introduced by the prosecution during its case-in-chief, and the state trial judge refused to allow the statement to be introduced at the end of the government’s case inasmuch as Justice Mollen found that Alexander could not, at that point anyway, have conducted an effective cross-examination. However, the third statement, the statement made to Assistant District Attorney DiBenedetto, was received. On March 3, 1972, Alexander was convicted, as charged, of the felony murder and, as a result of his conviction, was eventually sentenced to a prison term of 20 years to life. The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment of conviction in a short per curiam decision, see People v. Alexander, 45 App.Div.2d 1023, 358 N.Y. S.2d 68 (2d Dep’t 1974), confining its discussion to Alexander’s contention that he had not waived his right to counsel at the time he spoke to the assistant district attorney. Rejecting the claim, the Appellate Division expressly ruled that DiBenedetto’s nonresponsive answer had not been coercive or deceptive and the court therefore concluded that the answer did not impact upon what was otherwise a clear waiver of Alexander’s right to counsel. On October 25, 1974, the New York Court of Appeals denied leave to appeal.
On February 11, 1975 Alexander filed with the United States District Court for the Western District of New York a pro se petition seeking the issuance of a writ of habeas corpus. In February 1976 counsel was appointed to represent Alexander and an amended habeas corpus petition was filed with the district court on March 24, 1976. After an independent review of the transcript of the Huntley hearing, the trial transcript, the briefs and other records of trial and appeal, United States District Judge John T. Curtin, in a decision dated November 4, 1977, concurred in the state trial court’s findings. Judge Curtin recognized that the findings of the state court are presumptively correct and, inasmuch as his own review of the record of the Huntley hearing had not disclosed any reason for ignoring the state trial court judge’s determinations, the federal district judge accorded them the standard deference to which they are statutorily entitled; indeed, Judge Curtin indicated that Justice Mollen’s findings were amply supported by the record made during the Huntley hearing. Judge Curtin thus concurred in the state trial judge’s conclusion that under the “totality of the circumstances” test, Alexander’s statements were neither coerced nor obtained by means of physical violence. Accordingly, Judge Curtin determined that no purpose would be served by holding a further evidentiary hearing in the federal court to determine whether Alexander’s statements had been extracted from him through the use of physical coercion. The federal district judge also determined that the state trial court was correct in its ruling regarding the exclusion of the testimony that would have been given by Alexander’s wife. Judge Curtin also seems to have accepted as true the facts to which Alexander claims German would have testified. Finally, the district judge rejected all of Alexander’s claims based upon alleged abridgements of his fifth and sixth amendment rights.
Following Judge Curtin’s issuance of a certificate of probable cause, Alexander filed a notice of appeal from the district court’s decision denying the petition for the issuance of a writ of habeas corpus.
Alexander advances two grounds upon which he claims the state trial court judge should have suppressed his third confession. He argues first that that confession was inadmissible on fifth amendment grounds because it was involuntary, and he contends, in the alternative, that it should have been excluded on sixth amendment grounds since it was procured in derogation of Alexander’s right to counsel. We discuss these claims seriatim.
Alexander’s claim that his third confession was involuntarily extracted from him in violation of his fifth amendment rights need not detain us long. In his detailed findings of fact and conclusions of law the state trial judge explicitly found that under the totality of the circumstances Alexander’s confession to Assistant District Attorney DiBenedetto was voluntary. This finding of fact is, of course, entitled to a presumption of correctness, 28 U.S.C. § 2254(d); accord, Tanner v. Vincent, 541 F.2d 932, 937 (2d Cir. 1976), cert. denied, 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d 782 (1977), unless one of the eight exceptions specified in 28 U.S.C. §§ 2254(d)(l)-(8) can be shown to exist or unless Alexander can bear “the burden of establishing by convincing evidence that the findings of fact by the state court are erroneous.” Tanner v. Vincent, supra, 541 F.2d at 937 (emphasis supplied). Alexander does not predicate his appeal on a direct attack to any substantial extent on Justice Mollen’s finding of voluntariness. Instead, relying upon three of these eight exceptions Alexander argues that the state trial court’s finding that his third confession, the one given to the state prosecutor, was a voluntary confession should not be presumed to be a correct finding. First, Alexander contends that, inasmuch as the state trial court judge made no specific and explicit finding that the third confession was not fatally “tainted” by the first confession, “the merits of the factual dispute were not resolved in the State court hearing.” 28 U.S.C. § 2254(d)(1). Second, he asserts that he was not afforded a full and fair hearing in the Huntley hearing conducted by the state court, see 28 U.S.C. §§ 2254(d)(2), (6), because the state trial court judge refused to reopen that hearing to allow Alexander’s wife and father-in-law to give the testimony to which we have already referred.
We find that these exceptions to the presumption of correctness do not apply here. Alexander places himself between the proverbial rock and a hard place in attempting to capitalize on the state trial court’s failure to make a specific finding (as a prelude to its finding that Alexander’s third confession was voluntary) that the third confession was not tainted by the initial statement given to Detective Schneider. On the one hand, if the claim that there was a fatal taint constitutes a separate and distinct claim (apart from the more general claim that his confession was involuntary) upon which an explicit finding should have been made in order for the state trial court’s determination to be entitled to the statutorily prescribed presumption of correctness, then Alexander may not present this issue to us because it was not presented as a distinct claim in either the state courts or in the federal district court below. As to the failure to preserve the claim in the state courts, the claim would not have been exhausted, United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 331 (1971); as to the latter failure, we sit as an appellate court to review the actions of the federal trial courts and we do not consider claims not raised below. Jennings v. Casscles, 568 F.2d 229, 233-34 (2d Cir. 1977); United States ex rel. Springle v. Follette, supra, 435 F.2d at 1384. On the other hand, if as is more likely, the “taint” claim is not a separate claim at all but is, instead, a claim encompassed within the broader claim that the third confession was involuntarily given, then the issue of possible taint must have been subsumed within the broader issue of whether Alexander’s confession to DiBenedetto was voluntary, and we have no reason to doubt that the state trial court judge, in adhering at trial to his pretrial ruling that the third confession was voluntary, did so rule while being fully cognizant of the well-recognized principles proscribing prosecutorial use of the fruit of the poisonous tree. In this connection we note that even if Alexander’s first statement to the police officers on the morning of the 8th of September was taken in violation of his Miranda rights, which the state trial court judge somewhat cryptically intimated was not so, the third confession could nonetheless still be voluntary in view of the totality of the circumstances, see, e. g., Tanner v. Vincent, supra, 541 F.2d at 936; Jennings v. Casscles, supra, 568 F.2d at 232-33, and, under these circumstances we would hold, if need be, that the confession given to the state prosecutor was indeed a voluntary one despite what we may assume arguendo was Alexander’s earlier ineffectual waiver of his Miranda rights.
We also reject Alexander’s claim that we should ignore the presumption of the correctness of the state court’s findings inasmuch as the state court supposedly did not afford Alexander a full and fair hearing on the issue of the voluntariness of his confession to DiBenedetto. The state trial court judge found, Judge Curtin agreed with him, and we agree with both of them, that Mrs. Alexander’s proposed testimony, which would have been confined to a statement that she had observed her husband being beaten at the time of his arrest at their apartment, would not have affected the judge’s conclusion that the third confession was voluntarily given. In view of her obvious bias and because Alexander and Smith had already testified to that very thing, it is clear that her testimony had no substantial probative value on the question of whether the police had physically abused Alexander at the time of his arrest. With reference to German’s proposed testimony that the desk sergeant at the 73rd Precinct denied that Alexander was being held there, it is true that such testimony conceivably might have been of somewhat more utility in establishing Alexander’s case than Mrs. Alexander’s testimony would have been, since it could have been taken as some possible indication that the police were intentionally and malevolently attempting to conceal Alexander’s whereabouts so that they could “drill him” until he had confessed. Yet, Justice Mollen, the state trial court judge presiding at Alexander’s suppression hearing and trial, clearly stated that in the context of the other substantial evidence before him, German’s proposed testimony would not have affected his ultimate conclusion that the third confession was voluntary. Although we do not agree with the state court judge that German’s testimony that the desk sergeant denied that Alexander was at the 73rd Precinct stationhouse would have been hearsay, the state judge, despite his belief that the evidence would be inadmissible, did alternatively determine that German’s testimony would not, in any event, have affected the judge’s conclusion that Alexander’s statement to DiBenedetto was voluntary. In view of Justice Mollen’s careful marshaling of the evidence on the issue of whether Alexander’s third confession was voluntary, and in view of the deference which we are statutorily required to pay to the state court’s findings of fact, we must conclude that there is no ground here for our disputing the state court judge’s conclusion that German’s testimony would not have affected the ultimate result the judge reached as to whether Alexander’s third confession was voluntary.
Finally, we note that there is ample evidence in the record of the Huntley hearing to support Justice Mollen’s ultimate finding of fact that Alexander’s statement to the assistant district attorney was voluntary. To be sure, Alexander testified that he had been physically abused by the police officers while being held at the station-house, but Justice Mollen specifically found that Alexander, whom the judge diagnosed as being afflicted with “selective amnesia,” was not a credible witness. And, of course, the state court judge, sitting as the assessor of the credibility of witnesses and as the finder of fact, was indeed entitled to discredit Alexander’s testimony and that of any other witness and hence to find, as he did find, that Alexander had not been subjected to any physical abuse, either upon his arrest or at any time during his detention at the 73rd Precinct stationhouse. Absent any physical violence there are still some potentially troubling aspects to a just resolution here. Nevertheless, what the record as a whole seems to disclose is that while Alexander was not enjoying the aecommodations or amenities that a visiting foreign dignitary might expect as a public guest, his ordeal at the stationhouse was apparently not so severe that he could not give voluntarily a comprehensive and coherent confession to Assistant District Attorney DiBenedetto after 12 or 13 hours in custody. We must also keep in mind that our role here, as an appellate court, is more limited than that of the federal district court which, in turn, must play a more limited role in this collateral proceeding than it would if it were hearing the evidence and finding the facts on a truly de novo basis. We therefore hold, as did Judge Curtin, that under the circumstances here the state court’s determination that Alexander’s third confession was voluntary is entitled to the usual presumption of correctness and, in view of the lack of any convincing countervailing evidence, Tanner v. Vincent, supra, 541 F.2d at 937, we agree that that determination was correct.
We turn now to Alexander’s contention that his third confession should have been suppressed because it was extracted from him in violation of his sixth amendment right to counsel. Relying upon Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), Alexander claims that his “being held incommunicado violated his sixth amendment right to counsel.” He further contends, placing substantial reliance on the recent case of Brewer v. Williams, 430 U.S. 387, 397-98, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), that under the circumstances surrounding his detention on September 8 the state cannot demonstrate that Alexander voluntarily waived his right to counsel. In his decision below, however, Judge Curtin found, as did the Appellate Division of the Supreme Court of the State of New York, see People v. Alexander, 45 App.Div.2d 1023, 358 N.Y.S.2d 68 (2d Dep’t 1974), on Alexander’s direct appeal from his conviction in state court, that Alexander had not been deprived of his sixth amendment right to counsel. On the basis of the findings made by the state trial court judge and also on the basis of the record of the suppression hearing in the state trial court, it would be difficult to reach any other conclusion.
Justice Mollen made several specific findings of fact which we find are pertinent to our consideration of Alexander’s claimed sixth amendment violation and which are entitled -to the usual presumption of correctness. In particular, the state trial judge found that before each of his confessions on the 8th of September, Alexander had been carefully and fully apprised that he had a right to talk to a lawyer, to have a lawyer present during the police interrogation and to have a lawyer appointed to represent him if he could not afford a lawyer. Moreover, while at the stationhouse, Alexander was advised that he had a right to make a phone call. It is, moreover, evident from the record that Alexander understood that he had a right to consult with an attorney and that he voluntarily relinquished that right. For instance, when arrested and taken to the stationhouse, Alexander was not in an atmosphere completely foreign to him, for by his own admission he had been arrested on a number of previous occasions. At the suppression hearing in state court Alexander admitted, furthermore, that on the day he was apprehended he understood his rights. Yet, despite his knowledge of the constitutional rights he possessed, Alexander, whom the state trial judge found had not been subjected to any coercion at any time while he was at the stationhouse, never requested consultation with an attorney. Instead, on three occasions he voluntarily made incriminating remarks and, in view of his extremely detailed and precise responses during the third confession, it seems clear that, as Justice Mollen specifically found, Alexander “had no problem whatsoever in knowing what he was saying; he spoke with clarity which would indicate that there was no merit to defense contentions made during the course of the hearing that the defendant, either because of his drug habit or for any other reason, was unable to understand the proceedings.”
Alexander’s reliance on Escobedo to support his theory that his sixth amendment rights were violated inasmuch as he was held “incommunicado” and prevented from seeing his attorney is clearly misplaced, for the facts in Escobedo are a far cry from the facts present here which we have already outlined. Specifically, Escobedo had already retained an attorney prior to his interrogation at the stationhouse. The police, however, refused to permit Escobedo to speak to his previously retained attorney despite the fact that the lawyer was at the stationhouse and was requesting to speak to his client and notwithstanding the defendant’s request, repeated at numerous times during the course of his interrogation, to speak to his attorney. Moreover, while Escobedo was repeatedly requesting to see his attorney, Escobedo’s interrogators audaciously told him that his attorney “didn’t want to see him.” 378 U.S. at 481, 84 S.Ct. 1758. Finally, the police did not advise Escobedo of his constitutional right to consult with counsel prior to making any statements and to have counsel present while he was being interrogated. Here, although, concededly, there was an unfortunate mix-up at the 73rd Precinct stationhouse when Alexander’s father-in-law was told by the desk sergeant that Alexander was not there, Alexander’s wife had been told where he was being taken. And in contrast to the facts in Escobedo at no time from Alexander’s arrival at the stationhouse until his confession to DiBenedetto later that evening did any attorney appear at the stationhouse or call the stationhouse requesting to speak to Alexander; Alexander, while in detention, was repeatedly and carefully warned of his constitutional right to counsel and, most significantly, at no time before or during his various discussions with the police officers or the prosecutor at the stationhouse did he, despite his undeniable familiarity with his right to counsel, protest that he wished to consult with an attorney. To be sure, as have the courts who have previously dealt with this case, we surely do not commend or condone all the actions of the state prosecutor or of the local police, such as the arresting officers’ failure to inform the desk sergeant at the 73rd Precinct that Alexander was being held there. Yet, our dissatisfaction with some of these specific, yet isolated, objectionable acts of the police or the prosecutor does not inevitably lead us to conclude, and we do not conclude, that Alexander was being held “incommunicado.”
The facts here belie any claim by Alexander that he did not waive his right to counsel. We do not agree that the circumstances surrounding Alexander’s detention and interrogations are similar enough to those in Brewer v. Williams for that recent Supreme Court decision to be of any assistance to Alexander here. There, the Supreme Court refused to find that, in the context of an egregious police interference with an existing attorney-client relationship, a waiver of the right to counsel had occurred. Again, a comparison of the circumstances there with those here is instructive and shows that in no way are the two situations comparable. There, where judicial proceedings against the defendant had already commenced, the defendant, who was a recent escapee from a mental institution, had even prior to his arrest been consulting regularly with counsel; in fact, it was the attorney who had advised the defendant to surrender in the first place. Moreover, the police not only knew that the defendant was represented by counsel (indeed, two attorneys were advising him) but the police had actually agreed with the defendant’s principal attorney that they would not question the defendant unless counsel were present. Despite this express agreement, and notwithstanding the defendant’s express and implied assertions of his right to counsel during the time he was alone with the police, one of the police officers admitted that the police deliberately began to manipulate the defendant so that he would make as many incriminating remarks as possible before speaking to his attorney. The facts surrounding Alexander’s detention at the 73rd Precinct station-house do not, to put it simply, even begin to approach the affirmative and inexcusable police disregard of an existing attorney-client relationship that was so evident in Brewer. With full knowledge of his right to consult with an attorney, Alexander of his own free will chose, for whatever reason, to abstain from any exercise of that right and he must now accept the consequences of that entirely volitional decision.
We thus conclude that the record here, and the detailed and specific findings of fact which the state trial court judge made on the basis of that record, establish to our satisfaction as they also established to the satisfaction of the federal district judge below that Alexander’s motion to suppress his confession to Assistant District Attorney DiBenedetto was properly denied. The confession was uncoerced and so was Alexander’s decision to make that confession without benefit of prior or contemporaneous consultation with counsel.
Affirmed.
APPENDIX
By Mr. DiBenedetto:
[Alexander] A. (answer continued) Pop your questions.
Q. Sam, on August 24, 1971, a few weeks ago were you at a Bohack Supermarket somewhere in Brooklyn? A. August 24th, — I don’t know if that’s the correct date or not. I do know I was in Bohack Supermarket. I don’t know if it was the 24th, 25th, or 23rd.
Q. Where was this Bohack Supermarket located? A. Brooklyn, Flatbush section.
Q. Tell me who you were with and how you got there? A. There was three other fellows besides myself.
Q. Who were you with? A. Pete.
Q. Do you know Pete’s name? A. I know him as Pete.
Q. Is that Edward Williams? A. The guy out there?
Q. Yes. A. That’s his name.
Mr. DiBenedetto: Let the record indicate that Pete is otherwise known as Edward Williams.
By Mr. DiBenedetto:
Q. Who else? A. Bob.
Q. Bob Smith, Robert Smith? A. Yes, Robert Smith and Gene.
Q. Do you know Gene’s last name? A. I was told here his last name was Twitty. The Detective told me his last name when I was here.
Q. Do you know where Gene hangs out or lives? A. I know they hang out on Atlantic and Saratoga.
Q. How did you meet these guys that day? A. He approached me.
Q. Who approached you? A. Gene approached me. He asked, “If I was game to make some money?” I asked him, “What type of money, and what type of game?” I asked what you have to do to “Make this quick money?” He said, “He had a place in mind,” and he told me, “What I had to do, if I go along with him.” 1
Q. What did you have to do? A. \He wanted me to stand up to the door, and don’t let nobody out of the store. Anybody who comes in to let them in, but not to let\ nobody out.
Q. What did you do? A. We went in the supermarket, and he told me — he said “You stand by the door.”
Q. You went to Bohack Supermarket. How did you get there? A. We drove there.
Q. Whose car? A. Pete’s car.
Q. What kind of car was it? A. It was a dark burgundy, or maroon — black top.
Q. Do you know what make it was? A. A Dodge. I don’t know the model.
Q. And whose car was that? A. Pete’s.
Q. That’s Edward Williams? A. Yes.
Q. And what happened when you guys got there? A. Gene, myself, and Bobby— the three of us went in the Supermarket.
Q. Where did you park? A. I don’t know the name of the street, but we parked around the corner from the Supermarket.
Q. And what happened when you got out of the car? A. Gene told Bobby — he said, “When I tell you to — open the register,” and he said, “Sam, you go to the door,” and he said, “I’ll lock the manager up — assistant manager.” He said that he would lock him up. He said, “When we finish, everybody is going to leave — to go out of the place and leave.”
Q. Did you have a gun at the time? A. Yes, I had a pistol.
Q. Where did you get the gun from? A. Gene gave it to me.
Q. Where did Gene get the gun from? A. I don’t know.
Q. Did any of you go to the trunk of the car? A. Oh, yes. He got them out of the car. I thought you meant where he got them before that. He got them out of the car.
Q. Out of the trunk, or where? A. I think it was in the trunk.
Q. Do you know who opened up the trunk? A. No, I don’t remember.
Q. How many guns were there? A. Two guns.
Q. Do you know what kind or what caliber? A. I had a — I think it was a twenty-two, and the other one was a twenty-two — frame.
Q. Was it a revolver or an automatic? A. It was like a Derringer, pretty small— you know. Actually I didn’t see Gene’s gun. He said, “He had a twenty-two also.”
Q. Was his a revolver or an automatic? A. I guess you can call it a revolver.
Q. You had a gun? A. Yes — we entered the Supermarket.
Q. And? A. He told me when I got in the Supermarket — he said, “He told me like I was shopping — get a cart like I was shopping.” I got a cart, and I walked around the store a couple of times.
Q. Yes? A. And he called me in the store. He had two or three guys with him.
Q. Who was this? A. Gene — he had two or three guys with him.
Q. Who were these two or three guys with him? A. These were employees of the store.
Q. Did he have a gun out at the time? A. Yes, he had a gun out. He said, “Go to the door.”
Q. Yes? A. I went to the door, and this kid Bobby — I don’t know what he said. He said something to Bobby. What exactly, I don’t know. Bobby went over to the register, and someone asked one of the fellows— standing near the counter. I think he worked in there also, and Bobby said, “We’re holding the place up.” And one of the guys said, “Gene” — about four, about three or four people went over to the safe.
Q. Do you know where this safe was? A. It was in front of the store.
Q. From where you were standing, at the store door, could you see the safe? A. The safe was to my right — I don’t know, about — I can’t estimate here, because it’s too short — from the door where I was standing.
Q. How far away was it approximately? A. About twenty-five to thirty feet, I guess.
Q. Were you by the door? What was Gene doing at the safe? A. Gene — one of the guys was trying to open the safe. He was hollering.
Q. What was Gene hollering? A. He said, “Open the safe, you know — After the kid emptied the register, I went over and said to Gene, “Let’s go.”
Q. And what
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_petitioner
|
069
|
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.
EICHEL v. NEW YORK CENTRAL RAILROAD CO.
No. 480.
Decided December 16, 1963.
Arnold B. Elkind and Richard C. Machcinski for petitioner.
Gerald E. Dwyer for respondent.
Per Curiam.
Petitioner, who had been employed by respondent New York Central Railroad for 40 years, brought this action against respondent under the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., in the District Court for the Southern District of New York. The complaint alleged that in 1960, as a result of respondent’s negligence, petitioner suffered a permanently disabling injury. The jury returned a verdict of $51,000 for petitioner and the District Court entered judgment in accordance with that verdict. Respondent offered evidence that petitioner was receiving $190 a month in disability pension payments under the Railroad Retirement Act of 1937, 50 Stat. 309, as amended, 45 U. S. C. § 228b (a) 4. This evidence was offered for the purpose of impeaching the testimony of petitioner as to his motive for not returning to work and as to the permanency of his injuries. The trial court excluded the evidence in response to the objection of petitioner’s counsel. The Court of Appeals for the Second Circuit reversed, holding it prejudicial error to exclude the evidence of the disability pension, and remanded “for a new trial, limited, however, to the issues of injury and resulting damages . . . .” 319 F. 2d 12, 14. The court affirmed the judgment “as to the determination of negligence.” Ibid. We grant certiorari and reverse the judgment of the Court of Appeals.
Respondent does not dispute that it would be highly improper for the disability pension payments to be considered in mitigation of the damages suffered by petitioner. Thus it has been recognized that:
“The Railroad Retirement Act is substantially a Social Security Act for employees of common carriers. . . . The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer.” New York, N. H. & H. R. Co. v. Leary, 204 F. 2d 461, 468, cert. denied, 346 U. S. 856.
Respondent argues that the evidence of the disability payments, although concededly inadmissible to offset or mitigate damages, is admissible as bearing on the extent and duration of the disability suffered by petitioner. At the trial counsel for respondent argued that the pension would show “a motive for [petitioner’s] not continuing work, and for his deciding not to continue going back to work after the last accident.” On the basis of this argument the Court of Appeals concluded that the disputed evidence should have been admitted because: “Its substantial probative value cannot reasonably be said to be outweighed by the risk that it will . . . create substantial danger of undue prejudice through being considered by the jury for the incompetent purpose of a set-off against lost earnings.” 319 F. 2d, at 20.
We disagree. In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. Moreover, it would violate the spirit of the federal statutes if the receipt of disability benefits under the Railroad Retirement Act of 1937, 50 Stat. 309, as amended, 45 U. S. C. § 228b (a) 4, were considered as evidence of malingering by an employee asserting a claim under the Federal Employers’ Liability Act. We have recently had occasion to be reminded that evidence of collateral benefits is readily subject to misuse by a jury. Tipton v. Socony Mobil Oil Co., Inc., 375 U. S. 34. It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner’s receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact. We hold therefore that the District Court properly excluded the evidence of disability payments. Accordingly, the judgment of the Court of Appeals is reversed and the case remanded for proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Douglas concurs in the result.
See Sinovich v. Erie R. Co., 230 F. 2d 658, 661; Page v. St. Louis S. R. Co., 312 F. 2d 84, 94. See also Gregory and Kalven, Cases and Materials on Torts (1959), pp. 480-482; McCormick, Damages (1935), p. 310, n. 2; Comment, 38 Mich. L. Rev. 1073.
Cf. McCormick, Evidence (1954), c. 19; 2 Wigmore, Evidence (1940), § 282a.
See Kalven, The Jury, the Law, and the Personal Injury Damage Award, 19 Ohio St. L. J. 158, 169.
See notes 1-3, supra.
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_usc1sect
|
460
|
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 16. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
SAVE THE DUNES COUNCIL, INCORPORATED, Plaintiff-Appellant, v. Manuel LUJAN, Jr., individually and as Secretary of the Interior, Defendant-Appellee.
No. 89-2412.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 22, 1990.
Decided April 10, 1990.
Rehearing and Rehearing En Banc Denied May 11, 1990.
Edward W. Osann, Jr., Chicago, Ill., Patrick A. Parenteau, Washington, D.C., Donald J. Evans, Evans & Evans, Valparaiso, Ind., for plaintiff-appellant.
Andrew B. Baker, Jr., Asst. U.S. Atty., Office of the U.S. Atty., Paul A. Rake, Douglas B. Stebbins, Charles W. Webster, Eichhorn, Eichhorn & Link, Hammond, Ind., Jeffrey P. Kehre, Jacques B. Gelin, Dept, of Justice, Land & Natural Resources Div., Washington, D.C., for defendant-appellee.
Paul A. Rake, Charles W. Webster, Eich-horn, Eichhorn & Link, Hammond, Ind., for amicus curiae, Northern Indiana Public Service Co.
Before CUMMINGS, FLAUM, and RIPPLE, Circuit Judges.
. As originally filed, the present appeal named William P. Clark as defendant-appellee. Pursuant to Fed.R.App.P. 43(c)(1), we have substituted his successor at the Department of the Interi- or as the appropriate defendant-appellee in this proceeding.
PER CURIAM.
This is a mandamus action brought by the Save the Dunes Council, Inc. (“Council”) to compel the Secretary of the Interior (“Secretary”) to purchase Crescent Dune owned by amicus curiae Northern Indiana Public Service Company (“Nipsco”).
In August 1978 the Secretary filed suit in the court below to condemn part of the Crescent Dune, namely, Tract No. 96-101 of area III-B. Nipsco objected to the condemnation, which supposedly had been authorized by Congress in 16 U.S.C. § 460u-12. However, this 1976 provision required the Secretary to acquire the entire Crescent Dune within two years for $800,-000. On September 7, 1983, Nipsco and the United States submitted a stipulation and joint motion to dismiss the condemnation suit on the ground that the land was “no longer required by the plaintiff.” This prompted the Council on October 19, 1983, to seek mandamus to compel the Secretary to acquire Tract No. 96-101 of the Crescent Dune for the Indiana Dunes National Lake Shore. On April 10, 1986, the district court granted the Council’s motion for preliminary injunction and ordered the Secretary to withdraw the stipulation and joint motion to dismiss filed in the condemnation proceeding. Approximately two months thereafter, the Secretary filed a motion to vacate the preliminary injunction and to dismiss the mandamus proceeding. This motion was granted on May 8, 1989, causing the Council to file the present appeal.
The Council is a not-for-profit corporation whose primary purpose has been the preservation of the Indiana Dunes for public use and enjoyment. The Secretary is in charge of administering the National Park Service, including the national park known as the Indiana Dunes National Lake Shore. The Council lobbied successfully for the passage of the following 1976 statute:
The Secretary shall acquire the area on the map referred to in section 460u of this title as area III-B [the Crescent Dune] within two years from the effective date of this section [October 18, 1976] only if such area can be acquired for not more than $800,000, exclusive of administrative costs of acquisition, as adjusted by the Consumer Price Index: Provided, That the Secretary may not acquire such area by any means after two years from the effective date of this section.
16 U.S.C. § 460u-12.
The statute was meant to add the entire Crescent Dune to the National Park which had been established in 1966. In the Senate Report covering the above statute, the Crescent Dune was described as follows:
This is a highly scenic sample of dunes shoreline, with crescent-like formation of the beach that makes a pleasant little bay frequently used for swimming. There are impressive saddle-shaped dunes, 80 feet high, behind the beach that serve as a buffer between the scenic Mount Baldy area to the west and the NIPSCO generating plant.
S.Rep. No. 1189, 94th Cong. 2d Sess. 12 (1976), reprinted in U.S.Code Cong. & Admin.News 1976, 5636-5637.
This area was meant to be used for a boat anchorage and for beach use.
In acting for the district court, the magistrate explained why the Council was being denied mandamus. He pointed out that the Secretary was only authorized to acquire the entire area III-B (not just Tract No. 96-101) and then only if it could be acquired for not more than $800,000. At the same time that it passed the statute authorizing the purchase, Congress had received an estimate valuing the property at $1,762,000. S.Rep. No. 1189, 94th Cong. 2d Sess. 12 (1976), U.S.Code Cong. & Admin. News 1976, 5636-5637. Therefore it was obvious that Congress’ enactment of this legislation was unrealistic since the Crescent Dune could not be purchased for $800,000. Indeed another independent appraiser in the following year estimated the fair market value of this property at $1,109,750. Government Br. 20 n. 12. Therefore, as the magistrate concluded, objectively speaking, “there could be no dispute that the Secretary did not have the authority under the statute to acquire” area III-B. Furthermore, on its face the statute did not permit the Secretary to purchase less than the entire area III-B.
Since Congress did not authorize the acquisition of the Crescent Dune for more than $800,000 and since it was impossible to acquire it for $800,000, the Secretary had discretion to abort his August 1978 condemnation action. Therefore mandamus will not lie. United States v. 36.96 Acres of Land, 754 F.2d at 860; Flynn v. Shultz, 748 F.2d 1186, 1194 (7th Cir.1984), certiorari denied, 474 U.S. 830, 106 S.Ct. 94, 88 L.Ed.2d 77. While we sympathize with the Council’s aim to enlarge the Indiana Dunes National Lake Shore by adding area III-B, its remedy is to seek an amendment to 16 U.S.C. § 460u-12. We are not empowered to effectuate that relief.
The judgment for the defendant is affirmed.
. The fact that any prospective purchase of the land would be beyond the “within two years" requirement of the statute is not at issue here, having been resolved in the Council’s favor in an earlier proceeding. Council App. at A6 n. 1.
. In its principal brief before us, the Council advocates compelling the Secretary to purchase the entire area III-B, not just Tract No. 96-101 (Br. 7-8, 16).
.Prior aspects of this litigation are described in United States v. 36.96 Acres of Land, 754 F.2d 855 (7th Cir.1985), certiorari denied sub nom. Save the Dunes Council, Inc. v. United States, 476 U.S. 1108, 106 S.Ct. 1956, 90 L.Ed.2d 364, where we affirmed the district court’s denial of the Council's motion to intervene in the condemnation action.
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 16? Answer with a number.
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
Walter HILDEBRAND, Libelant-Appellant-Appellee, v. UNITED STATES of America, Respondent-Appellee-Appellant.
No. 242, Docket 23367.
United States Court of Appeals, Second Circuit.
Argued April 20, 1955.
Decided July 27, 1955.
Sterling & Schwartz, New York City, for libelant-appellant-appellee; Marvin Schwartz, New York City, of counsel.
J. Edward Lumbard, Jr., U. S. Atty., New York City, for respondent-appellee-appellant; Tompkins, Boal & Tompkins, Arthur M. Boal, New York City, of counsel.
Before FRANK, MEDINA and HINCKS, Circuit Judges.
PER CURIAM.
As to the issues of unseaworthiness and contributory negligence, raised by the respondent’s cross-appeal, we affirm on Judge Dawson’s findings and opinion. 134 F.Supp. 514. The findings which the respondent attacks are not clearly erroneous. And under our recent holding in Poignant v. United States, 225 F.2d 595, it is of no moment that the un-seaworthy condition causing the harm may have arisen after the voyage commenced.
Both libelant and respondent, by appeal and cross-appeal, complain of the trial judge’s award of damages. But the findings on the issue of damages are also ones of fact, Lukmanis v. United States, 2 Cir., 208 F.2d 260, which we cannot disregard unless we are satisfied that they are clearly erroneous, Pedersen v. United States, 2 Cir., 224 F.2d 212 (decided June 9, 1955). Quite clearly, the award here may not be so characterized.
Affirmed as to both appeals.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appnatpr
|
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 "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.
UNITED STATES of America, Plaintiff-Appellee, v. Eugene SMALDONE, aka Checkers, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eugene Louis SMALDONE, aka Young Gene, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guy McNULTY, aka Mickey, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Melvin Daniel HANNERS, aka Mel, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leo Edward LANE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dennis Michael VALLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael J. VALLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Josef Richard ERNER, aka Rick, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank Joseph GARCEO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry Anthony VILLANO, Defendant-Appellant.
Nos. 72-1854 thru 72-1863.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 23,1973.
Decided Oct. 12, 1973.
Rehearing Denied in No. 73-1857 Oct. 25, 1973.
Rehearing Denied in Nos. 72-1854, 72-1855, 72-1858, 72-1860, 723861 and 72-1863 Oct. 26, 1973.
John J. Flynn, Phoenix, Ariz. (Flynn, Kimerer, Thinnes & Galbraith and Richard L. Parrish, Phoenix, Ariz., on the brief, for defendants-appellants Eugene Smaldone, Eugene Louis Smaldone and Harry Anthony Villano; Leland S. Huttner, Denver, Colo., on the brief, for defendant-appellant Melvin Daniel Hanners; Paul E. Vranesic, II, Denver, Colo., on the brief, for defendant-appellant Josef Richard Erner), for defendants-appellants Eugene Smaldone, Eugene Louis Smaldone, Melvin Daniel Hanners, Josef Richard Erner, Leo Edward Lane, and Harry Anthony Villano.
Richard T. Spriggs, Denver, Colo., for defendant-appellant Josef Richard Erner.
H. D. Reed, Denver, Colo., for defendant-appellant Michael J. Valley.
Walter L. Gerash, Denver, Colo. (Gerash & Gerash, and Louis M. Fischer, Denver, Colo., on the brief), for defendant-appellant Dennis Michael Valley.
Leland S. Huttner, Denver, Colo., for defendant-appellant Melvin Daniel Hanners.
Morris W. Sandstead, Jr., Boulder, Colo., for defendants-appellants Guy McNulty and Frank Joseph Garceo. .
Richard J. Spelts, Asst. U. S, Atty., Denver, Colo. (James L. Treece, U. S. Atty., and W. Allen Spurgeon, Asst. U. S. Atty., with him on the brief), for plaintiff-appellee.
Before LEWIS, Chief Judge, LARAMORE, Judge, Court of Claims, and McWILLIAMS, Circuit Judge.
Of the United States Court of Claims, sitting by designation.
LEWIS, Chief Judge.
This was a criminal prosecution brought on a three-count indictment filed in the United States District Court for the District of Colorado. Counts I and II of the indictment charged fifteen defendants with knowingly and wilfully conducting, financing, managing, supervising and directing an illegal gambling business contrary to Colorado law and in violation of 18 U.S.C. §§ 1955 and 2.
Count I covered the time period October 16, 1970 to on or about June 30, 1971 and named eight defendants. Count II covered the time period August 1, 1971 to on or about January 31, 1972 and named thirteen defendants. On count I the jury convicted appellants Eugene Louis Smaldone (Young Gene), Guy McNulty, and Melvin Daniel Hanners. On count II the jury convicted appellants Young Gene, McNulty, Eugene Smaldone (Checkers), Leo Edward Lane, Dennis Michael Valley (Dennis), Michael J. Valley (Mike), Josef Richard Erner, Frank Joseph Garceo, and Harry Anthony Villano. In this consolidated appeal under 28 U.S.C. § 1291 there are ten appellants, two of whom were convicted on both counts of the indictment.
I
THE EVIDENCE
Title 18 U.S.C. § 1955 states: (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
(b) As used in this section—
(1) “illegal gambling business” means a gambling business which—
(i) is a violation of the law of a State or political subdivision in which it is conducted;
(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
(2) “gambling” includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.
(3) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.
At trial the government attempted in each of the two counts to link five or more persons including some of the appellants to an illegal gambling business which was in operation “in excess of thirty days or [had] a gross business revenue of $2000.00 in any single day.” In an attempt to meet the necessary elements of section 1955 the following evidence was produced at trial:
A widespread bookmaking operation involving a number of people iñ the Denver, Colorado area was in operation between October 16, 1970 and January 31, 1972. The government introduced evidence showing that at the apex of this operation was Checkers Smaldone with Young Gene Smaldone and Michael Torneo (severed from the original trial) acting as the central bookmakers. The illegal gambling business centered around bookmaking, on certain sporting events including college and professional football, basketball, baseball, and horse-racing. Because of the seasonal nature of sporting events the indictment was divided into two counts. The first count covered gambling activities beginning with the fall of 1970 and ending June 30, 1971. The second count commenced with the start of the 1971 football season and ended January 31, 1972.
The bookmaking operation encompassed a number of different conductors including: (1) runners (individuals who handled payoffs and collected from betting customers); (2) phone men (the middlemen who received bets from customers and exchanged betting information such as the “line” or point spread); (3) relay or pickup men (higher echelon functionaries who received and consolidated betting information from phone men, enabling phone men to then destroy any tangible evidence) ; (4) bookkeepers (men who acted as accountants for the gambling operation) and (5) managers (those individuals in supervisory and ownership positions). The purpose of having various categories of conductors was to insulate the more important individuals from the actual operation, and to maintain secrecy through limited encounters between participants,
The gambling operation was of a complex nature. Generally, bets were made at a ratio of 11 to 10 with the odds in favor of the bookmaker. The customer could pyramid his bets by selecting as necessary winners a number of teams, called a parlay, or by reducing or enlarging the point spread established by the “line.” A point spread or “line,” which often was the basis of betting on football games, was given to customers who were usually also assigned “code numbers.”
Weekly sports schedules listing games chronologically by starting times commencing on the east coast and moving west were distributed to participants. These schedules not only identified the teams involved but provided code numbers for the teams and blank boxes for scoring. Though published for sports enthusiasts, these special schedules were very helpful to the gambling operation in keeping track of numerous wagers and improving the exchange of information. With the help of sophisticated sports schedules, bets were placed with phone men and, after the relay men consolidated the various wagers, they were passed on to “management.” The customer would then have his account tallied on a weekly basis, at which time he would either receive his winnings or pay his losses.
The various conductors were paid according to their importance within the organization. Some were provided salaries plus expenses including attorney’s fees, bonds, and fines if apprehended by the police. Others were given a percentage of the profits from the customers with whom they dealt and of course the owners of the operation shared in the profits generated by the total gambling enterprise.
A. Count I.
Under count I the government offered evidence showing that the three appellants — Young Gene, McNulty and Hanners — jointly operated a gambling business with at least seven other conductors during the fall and winter of 1970-71. The government produced an array of witnesses including four who played personal roles in the alleged gambling operation. The thrust of their testimony revealed a number of links between various participants in a single gambling operation under the direction of Young Gene.
Larry Laningham, one of the government’s major witnesses, testified that he had been hired by Young Gene and McNulty to be a “runner” in a bookmaking organization. Laningham was later elevated by Young Gene to be a relay man and eventually took over as a bookkeeper for the operation. Laningham stated that at various times during the count I period he had contact with all of the appellants as they pursued various aspects of the gambling operation. He also linked the appellants to each other and to other conductors.
The testimony of other witnesses painted the picture of a gambling organization that included a number of participants at various levels and with various degrees of involvement. The gambling activity generally centered around Young Gene Smaldone with appellants McNulty and Hanners playing lesser roles in the total scheme. Evidence was introduced showing that McNulty used Laningham as a driver on collections after hiring him through Young Gene. McNulty also regularly received a number of schedules from Young Gene through Laningham, and turned any money collected in excess of that paid to customers over to Young Gene through Laningham. Witnesses also testified to having placed bets with McNulty.
Appellant Hanners received bets from a number of customers, and at least on two occasions, personally conveyed this information to Laningham who in turn entered these items in a central set of books he was keeping for Young Gene. Laningham also delivered schedules to Hanners, and received money for Young Gene from Hanners. At trial, evidence seized from Hanners’ car was introduced which included, among sports schedules and other items, bookmaking notes containing the names “Mickey,” “Gene Smaldone,” and “Mike Torneo.”
The common ingredient in the' gambling operation was Young Gene Smaldone. Young Gene had hired Don Nelson as a phone man through McNulty. Nelson testified that for -a period of time he regularly received calls from Hanners, McNulty, Torneo and others from whom he received bets and disseminated information. The bets from the customers of these individuals were then relayed to Young Gene. During this period of time Young Gene also acted as the distribution source for sports schedules which were delivered or sent to various conductors. Other testimony showing that Young Gene was deeply involved in the running of a gambling operation included his instructions to Laningham to keep the “figures” in a central set of books and his participation along with Frances Smaldone and Mike Torneo in actually reviewing the total “figures” received from other participants.
B. Count II.
Count II covers the 1971-72 sporting season and involves a much larger gambling operation than that depicted in count I. Besides the nine individuals appealing their count I convictions, testimony at trial indicates that at least eight other conductors were involved in some aspect of the bookmaking operation, The government attempted to show that Checkers Smaldone was “chairman of the board” while Young Gene and Mike Torneo assumed positions as principal administrative officers in the business. Collections for the operation were handled by appellants Mc-Nulty, Dennis Valley, Lane, Garceo and Mike Valley while appellants Garceo, Villano, Erner and Mike Valley at various times assumed duties as phone men.
Six individuals who claimed intimate acquaintance with the operation, among a number of prosecution witnesses, testified for the government including Larry Laningham and Linda Torneo, the wife of Mike Torneo. Linda Torneo was deeply involved in the gambling business during the short period that she lived with her husband. She testified to being in the homes and apartments of a number of the appellants, including the Smaldones, when various phases of the bookmaking operation were being pursued. She described in great detail the types of activities she undertook, and with whom, as well as what she observed others do. Laningham at first continued under the same terms as those he received during the count I period. But, Laningham slowly phased out of doing “figures,” then relay, and subsequently devoted his time to working with customers for his 20%-80% split. This meant that he was eventually not as involved with the total span of the operation as in the count I period and the initial stages of the count II period.
Testimony of Laningham, Mrs. Torneo and others was offered to show that Checkers Smaldone took bets and gave out “line” information at his home and, on one occasion, transacted business over a public telephone in a Pueblo, Colorado restaurant. He was usually in the presence of several other conductors including Young Gene. Linda Torneo further testified that Checkers would often call the Torneo home seeking information regarding the gambling enterprise. Checkers was generally assisted by Young Gene in the bookmaking transactions and in keeping the “figures.” Young Gene also acted as the distributor for the sports schedules used by various conductors. And, on several occasions Young Gene met with individuals indebted to the gambling operation in order to set up repayment schedules.
Evidence was offered at trial showing that appellant McNulty lived with the Smaldones between November 1971 and January 1972 at which time he did some collection and phone work for the business. Appellant Lane was also involved in collecting money for the operation. In addition, testimony was given that Lane often disseminated sporting schedules to various conductors and participants in the bookmaking operation. Por example, Mrs. Torneo testified that Lane, Mrs. Lane, Mike Torneo and herself spent an evening preparing a list of betting customers and sending schedules to these customers. Lane also had a subscription to large quantities of sports schedules but abruptly canceled his subscription when the indictment in this case was returned.
Appellants Dennis and Mike Valley were closely connected with the activities of Mike Torneo. Dennis was often seen with Torneo and evidence was offered to show that on more than one occasion he helped Torneo do the “figures.” Dennis also helped negotiate a 20 %- 80% participation arrangement with Dr. Clifford Emily and later assisted Emily with his customers after Emily was hurt in an auto accident. Dr. Emily also worked with Dennis’ brother, Mike Valley, who provided Emily with “line” information and on several occasions delivered schedules to Emily’s office. Mike Valley was subsequently caught by police at a phone site and his records were seized. The police, acting in Mike Valley’s stead, then took 13 phone calls from customers representing approximately $10,350 in wagers. Mike was later released on bond and, according to the testimony of several individuals, again joined his brother Dennis in personally meeting Emily’s customers while Emily was convalescing.
Evidence was also offered at trial showing that appellants Erner and Garceo acted as phone men for the gambling operation. They leased a telephone in a witness’ apartment for a four- to six-week period beginning in the fall of 1971. The phone was to be available while the witness was at work and on Saturdays and Sundays. The witness observed Erner in her apartment two or three times during this period. Also, both Mrs. Torneo and Laningham testified that they received relay information from Erner. In addition to renting the telephone with Erner, appellant Garceo used a private telephone, installed in the rear of a doctor’s office, to receive betting information. Garceo obtained permission to use the phone at which time he explained the bookmaking operation to the doctor, and then proceeded to use the telephone for at least two weeks to give out “line” information and take bets. In October 1971 Garceo was apprehended by the police at a phone site along with incriminating sports schedules and other bookmaking notations.
Garceo was replaced at the doctor’s office phone site by appellant Villano. Villano worked at the doctor’s office for another two weeks giving out and receiving bookmaking information. Laningham also testified to meeting Villano at the doctor’s office several times during this period. Villano was arrested upon the execution of a search warrant at the phone site of the doctor’s office at which time a number of bookmaking articles were seized. At trial an F.B.I. expert calculated that the minimum wagers found on those items seized in the doctor’s office were approximately $12,300.
Testimony was also offered at trial as to the average dollar volumes in wagers under the two counts. Laningham, testifying as to the count I period, stated that he handled about $45,000 weekly during the 1970 football season, $25,000 weekly for the 1970-71 basketball season and $25,000 weekly for the 1971 baseball season. Phone man Lockwood testified that he averaged $2,000 to $4,000 each weekday and $15,000 on weekends during the count I period. One customer acknowledged placing $15,000 weekly bets during the 1970 football season. As for the count II period, Laningham further testified that he averaged $12,-000-$15,000 in wagers each week. Jeremiah Sullivan stated that from August through November 1971 he handled an increasing monetary volume in wagers until he reached an average of $35,000 per week in November. In addition, the records seized pursuant to three search warrants showed that an average of $10,000-$12,000 in wagers was being placed with particular phone men during the count II period.
II
THE APPEAL
The ten appellants have raised a number of issues on appeal. The majority of their contentions are applicable to all appellants, but several issues have specific impact on individual appellants. Those issues of general import therefore will be treated initially, leaving the specific concerns until last.
A. The Constitutionality of 18 U.S.C. § 1955.
Appellants base their challenge to the constitutionality of 18 U.S.C. § 1955 on three grounds: (1) the statute, absent an allegation in the indictment and proof of some interstate commerce nexus, is violative of the tenth amendment; (2) the statute deprives citizens of equal protection of the laws; and (3) it invites double jeopardy. We believe these contentions to be without merit.
Today we join five other circuits in upholding 18 U.S.C. § 1955 as a valid and constitutional exercise of congressional power under the Commerce Clause of the United States Constitution. See United States v. Hunter, 7 Cir., 478 F.2d 1019; United States v. Becker, 2 Cir., 461 F.2d 230; United States v. Riehl, 3 Cir., 460 F.2d 454; United States v. Harris, 5 Cir., 460 F.2d 1041; Schneider v. United States, 8 Cir., 459 F.2d 540. Appellants’ argument that the statute as written is unconstitutional because it exceeds the power given to Congress to control activities which affect interstate commerce is foreclosed by the Supreme Court’s ruling in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686. Perez upheld the constitutionality of a federal statute prohibiting “loan sharking,” 18 U.S.C. § 891, et seq., on the basis that activities within a regulated class of activities which do not exceed the reach of federal power under the Commerce Clause need not be shown, in each individual case, to affect interstate commerce. The Court noted that:
[L]oan sharking in its national setting is one way organized interstate crime holds its guns to the heads of the poor and rich alike and syphons funds from numerous localities to finance its national operations. 402 U.S. at 157, 91 S.Ct. at 1362.
This statement applies with equal force to illegal gambling as prohibited by section 1955. We are bolstered in this belief by numerous investigative reports including the President’s Commission on Law Enforcement and Administration of Justice which stated that “gambling is the greatest source of revenue for organized crime.” President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 188 (1967). Congress relied heavily on the President’s Report when enacting Title VIII of the Organized Crime Act of 1970, Pub.L. 91-452, of which section 1955 is an integral part. The legislative history of the Act is replete with other examples furnished Congress concerning the detrimental impact that illegal gambling has on interstate commerce. 2 U.S.Code Cong, and Admin.News, 1970, pp. 4007-4091. We therefore conclude that Congress acted well within the bounds of the Commerce Clause and requirements laid down in Perez when enacting section 1955.
Appellants also urge that section 1955 is unconstitutional because it denies equal protection of the law through its unequal geographical enforcement. As the law now stands gambling activity conducted in one state may be a federal offense, while the same activity in another state may be sanctioned by the law. Yet, we find that section 1955 is not repugnant to the due process clause of the fifth amendment merely because of this variation in state laws. The Supreme Court answered the argument that Congress’ exercise of its power over commerce must be uniform when it stated:
So far as uniformity is concerned, there is no question that the act uniformly applies to the conditions which call its provisions into play — that its provisions apply to all the States, — so that the question really is a complaint as to the want of uniform existence of things to which the act applies, and not to an absence of uniformity in the act itself. ... [I]t is obvious that the argument seeks to engraft upon the Constitution a restriction not found in it; that is, that the power to regulate conferred upon Congress obtains subject to the requirement that regulations enacted shall be uniform throughout the United States. James Clark Distilling Co. v. Western Maryland Ry., 242 U.S. 311, 327, 37 S.Ct. 180, 185, 61 L.Ed. 326, 339.
Section 1955 adheres to the Supreme Court requirements in language and administration because it uniformly applies throughout the United States. See also Schneider v. United States, 8 Cir., 459 F.2d 540; United States v. Sacco, N.D.Cal., 337 F.Supp. 521; United States v. Aquino, E.D.Mich., 336 F.Supp. 737; cf. Turf Center Inc. v. United States, 9 Cir., 325 F.2d 793.
Finally, it is suggested that section 1955 is an unconstitutional invitation to double jeopardy because it establishes a separate federal offense by incorporating within its provisions all state statutes which prohibit gambling. Appellants argue that under § 1955 a defendant is, in actuality, being tried twice under the same statute. They contend that § 1955, because of its assimilatory nature, is violative of the requirements laid down in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. In Ashe it was held that a single sovereign cannot prosecute for separate offenses occurring in a single event where the result of the first prosecution undeniably establishes the innocence of the accused in the second charge. Such is not our case. Here we have the federal government as a separate sovereign prosecuting individuals for violation of federal law. It is well settled in the law that neither conviction nor acquittal in a federal or state court bars a prosecution in a court of another jurisdiction involving or arising from the same transaction or event. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729. This rule is dispositive of appellants’ double jeopardy claim.
B. The Validity of the Colorado Gambling Statutes.
Appellants’ second major assignment of error is that Colorado Revised Statutes §§ 40-10-7, 8, and 9 (1963) were repealed on June 30, 1972 and therefore cannot provide the basis for a federal prosecution commencing by indictment on July 14, 1972. The three pertinent Colorado statutes made it a misdemean- or to maintain a gambling parlor, keep a gaming table, or wager upon games.
Title 1 U.S.C. § 109 is dispositive of this issue when it states:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.
As 1 U.S.C. § 109 indicates, whether or not any liability incurred prior to repeal of a statute is to be abated depends upon the applicable repealing act. Colorado Revised Statute 40-1-103 (1972) requires all offenses committed prior to July 1, 1972, the effective date of the New Colorado Criminal Code, to be prosecuted under statutes in effect prior to July 1, 1972. Because the Colorado statute does not obviate prosecutions for illegal activities occurring before July 1, 1972, 1 U.S.C. § 109 operates to nullify any abatement of the indictment and subsequent prosecution in this case. See also Pipefitters Local Union No. 562 et al. v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11; United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480; Faubion v. United States, 10 Cir., 424 F.2d 437.
Appellants also contend that Colorado Revised Statute 40-10-8 (1963) is constitutionally infirm and any assimilation of this statute by 18 U.S.C. § 1955 must be grounds for reversal. It is well settled in the law that Congress may adopt as federal laws the laws of a state, and such is not an unconstitutional delegation of congressional authority. United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282. In this particular instance Congress has assimilated by reference Colorado’s gambling statutes (now repealed), only one of which is challenged for vagueness although conviction rested upon all three statutes. We need not deal with this issue on its merits. Conviction in this case stands upon more than one statute, abrogating any necessity of addressing the constitutional challenge. In United States v. Levine, 10 Cir., 457 F.2d 1186, this court refused to explore a constitutional challenge to one statute because the appellants had been convicted under two statutes, one of which was not being questioned. The court in Levine stated that it “should not decide abstract, hypothetical or contingent questions or any constitutional question in advance of the necessity of its decision.” Levine, supra at 1189. Such necessity does not exist in this case. See Dickenson v. Davis, 10 Cir., 245 F.2d 317.
C. The Denial of Severance and a Change of Venue.
Appellants Checkers, Young Gene, McNulty, Hanners, Lane, Dennis Valley, Erner and Garceo all petitioned the district court to be severed or granted a separate trial which was denied. They now complain that failure to sever prejudiced the trial result because the jury was unable to afford each appellant an independent determination of his guilt or innocence. We do not agree. It has been affirmed by this court many times that Fed.R.Crim.P. rule 14 leaves the question of severance to the sound discretion of the trial judge. United States v. Cooper, 10 Cir., 464 F.2d 648; United States v. Jorgenson, 10 Cir., 451 F.2d 516, cert. den., 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793; United States v. Fairchild, 10 Cir., 435 F.2d 972. Furthermore, a severance may be granted only where a defendant has shown that he would be clearly prejudiced by a joint trial. Lowther v. United State's, 10 Cir., 455 F.2d 657. The record on appeal shows that the district court would consistently caution the jury when proffered evidence was admissible only against certain defendants. Also, during the course of the trial the court strictly limited the admissibility of evidence to specific defendants against whom the evidence was tendered. The record further shows an absence of inconsistent defenses which mitigates against the need for severance. United States v. Mallory, 10 Cir., 460 F.2d 243; United States v. Troutman, 10 Cir., 458 F.2d 217. Accordingly we find no abuse of discretion by the trial court in its denial of the motions to sever.
Appellants also assert that trial error was committed when the district court refused to grant a change of venue. Checkers and Young Gene claim that the name Smaldone is so closely associated with crime and violence in the Colorado area that any possibility of a fair trial was nonexistent. The other appellants allege that a change of venue was necessary in order that they might escape the phenomenon of guilt by association. As with the question of severance, we are bound to give great deference to the discretion of the trial court, absent clear abuse, when reviewing motions for a change in venue. Fed.R.Crim.P. rule 21; Dennis v. United States, 10 Cir., 302 F.2d 5; Wheeler v. United States, 10 Cir., 382 F.2d 998. The record reveals an exhaustive voir dire examination by the court of prospective jurors concerning possible prejudice. And there was nothing which occurred during actual selection of the jurors to indicate that they would render anything other than a fair and impartial verdict. Therefore, the totality of facts contained in this record does not warrant reversal.
D. The Selection of a Jury.
Ninety-seven prospective jurors were summoned by the trial court, twenty-two of whom were immediately dismissed upon indicating that they had read or heard of some of the defendants. The jury panel was then drawn from a venire of individuals who manifested no prior knowledge of the defendants or their activities. Appellants now assert, in direct contradiction to their jury prejudice claim, that a full and fair hearing was unavailable from the jury because the empaneling process eliminated a class of people — “those with the intellectual capability and curiosity to read the newspapers.” This assertion is spurious. The trial court was consistent in its attempts to protect the appellants from reaping the consequences of possible prejudice.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_source
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
THURBER v. COMMISSIONER OF INTERNAL REVENUE.
No. 3093.
Circuit Court of Appeals, First Circuit.
July 14, 1936.
J. Robert Sherrod, of Washington, D. C. (O. H. Chmillon and Miller & Chevalier, all of Washington, D. C., on the brief), for petitioner for review.
Morton K. Rothschild, Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the Commissioner.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
This case involves personal income taxes assessed for the year 1930 under the Revenue Act of 1928 (45 Stat. 791).
The first point in controversy is whether the combination of the old Guaranty Savings Bank of Nashua, N. H., with the Second National Bank of that city, was “a merger or consolidation” within the meaning of section 112 of the act referred to (26 U.S.C.A. § 112 and note), ¿o that no taxable gain or loss arose from the exchange of shares. The Commissioner held that the combination was not a merger or consolidation, but was a sale of the assets of the Savings Bank to the National Bank. He accordingly imposed a tax on the gain accruing to the stockholders in the Savings Bank from the exchange of shares. His action was affirmed by the Board of Tax Appeals, four members dissenting; and the taxpayer has appealed.
The banks in question were independent institutions which had been in business many years. In the fall of 1929 committees appointed by each agreed in recommending to the stockholders a merger of the two institutions. The National Bank had at that time capital stock of $150,000. The plan of merger as outlined by the committees was that the National Bank should continue in business, should double its capital stock by the issue of 1,500 new shares for distribution to the stockholders of the Savings Bank, and should take over the business, good will, assets, deposits, and liabilities of the Savings Bank; that the Savings Bank should reduce its assets before merging by distributing to its shareholders by way of a special dividend certain shares of stock which it owned in the Pullman Company and the Nashua Manufacturing Company and also $1.33 per share in cash representing the accrued dividend at the usual rate on its shares to the' date when the combination became effective; that all the stock of the Savings Bank should be turned over to the National Bank and be paid for by it at the rate of three shares of its own stock for four shares of the Savings Bank’s stock; that the National Bank on taking over the assets of the Savings Bank should assume all the latter’s liabilities; and that the Savings Bank should thereupon be dissolved.
Before this plan was voted upon by the stockholders it was discovered that the law required new stock of a National Bank to be paid for in cash. The plan was therefore .modified so that the National Bank on receiving transfers of all the stock of the Savings Bank should give to the trustees, who acted for the stockholders in the Savings Bank and by whom the shares were actually surrendered, its cashier’s check for the agreed price of the shares, viz., $467,947.74, and that the recipients of the check should immediately endorse it back to the National Bank in return for . 1500 shares of the capital stock of the National Bank which they would distribute to the former stockholders of the Savings Bank, in the ratio stated. The plan as modified was duly approved by the stockholders in both institutions, and was carried out. All the assets of the Savings Bank, including real estate, cash, securities, etc., were transferred to the National Bank; and the National Bank duly assumed all the liabilities of the Savings Bank to its depositors and all other persons, and took over its business.
• In the formal notices to and votes of the stockholders the transaction is referred to as a “sale” of the assets of the Savings Bank to the National Bank. But in a letter accompanying the formal notices it was said that the meeting was called “for the purpose of authorizing and approving the consolidation of this bank with the Second National Bank”; and the expression “consolidated bank” is used, referring to the continuing institution. (Italics supplied.) In another letter to the stockholders in which the transaction was also referred to as a sale, it was said to be, “in connection with the proposed consolidation of this bank with the Second National Bank.” (Italics supplied.) In letters accompanying the formal notices to the stockholders of the National Bank the same idea is repeatedly expressed, viz., that the transaction was a "consolidation” of the two banks.
The Comptroller of the Currency appears to have been fully informed about the whole transaction and it was arranged and carried out with his knowledge and approval. There is no controversy about the facts. They are covered by stipulation and by undisputed testimony. That there was a definite plan by all párties in interest to merge or consolidate the two banks, and that the plan was in substance carried out, seems to us too clear for further discussion.
T.he government contends that the decision by the Board of Tax Appeals that the combination of the two banks was not a merger or consolidation, but a sale, was a finding of fact and therefore is not reviewable. But as all the material facts are agreed to or are undisputed, the legal effect of them, whether sale or merger, is a
question of law, or a mixed question of law and fact, on which the decision by the Board is subject to review. Helvering v. Rankin, 295 U.S. 123, at page 131, 55 S.Ct. 732, 79 L.Ed. 1343. See, too, Starr v. Commissioner (C.C.A.4) 82 F.(2d) 964, April 6, 1936; General Utilities Co. v. Helvering, 296 U.S. 200, at page 207, 56 S.Ct. 185, 80 L.Ed. 154. The government also contends that there was no merger or consolidation because all the assets of the Savings Bank were not transferred to the National Bank, as required by the statutes; and the Board of Tax Appeals so found and ruled.
The Board of Tax Appeals said:
“If a given transaction in strictness can be designated as either a merger or a consolidation, it is a reorganization within the meaning of the definition, and the words in parenthesis are unimportant. If, however, a particular transaction, which in strictness cannot be designated as either a merger or consolidation, nevertheless partakes of the nature of a merger or consolidation, it must be tested by the words in the parenthesis to see whether or not it is a reorganization within the meaning of the statute.”
“The National Bank did not acquire ‘substantially all the properties’ of the State Bank.”
“Since the National Bank did not acquire substantially all of the. properties of the State Bank, the transaction was not a ‘reorganization’ within the meaning of the parenthetical part of the definition. The case of Howard v. Commissioner (C.C.A.) 56 F.(2d) 781, affirming 20 B.T.A. 207, is not in point, since in that case substantially all the properties were acquired.”
“However, the fact that the National Bank did not acquire substantially all of the properties of the State Bank would be immaterial if the transaction was one which in strictness could be designated as either a merger or a consolidation.”
The assets, the omission of which was held by the Board of Tax Appeals to have prevented a merger, are the shares in the Pullman Company and the Nashua Manufacturing Company and the $1.33 accrued dividend. The special dividend by which these were distributed was voted on May 20, 1930. The combination of the banks became effective on June 2, 1930. This objection to the merger view seems to us entirely unfounded. We do not doubt that the assets of a corporation which is to be merged may, by agreement of the persons concerned, be reduced by distribution to its stockholders before the merger takes place, so that the stock at the time when the merger is consummated will have the value which the merger contemplates. There is an explicit finding that this was the purpose of the special dividend just referred to. The statute means that all free assets of the corporation at the time of the actual merger shall be transferred to the new corporation; and this was done in the present case. The Board erred in its understanding of the statute. The case comes within it.
The Board of Tax Appeals in reaching its conclusion that “in strictness” (as it says) there was no merger disregarded the obvious understanding of the parties that a merger or consolidation was being effected and did -not consider the transaction as a whole. In effect the Board picked out a single step in á transaction involving a series of steps and, without looking at anything else, held that the entire transaction was a sale. This method of dealing with the question was inconsistent with previous decisions by the Board and by the courts and seems to us to be clearly wrong. Prairie Oil & Gas Co. v. Motter, 66 F.(2d) 309, 311 (C.C.A.10); Howard v. Commissioner (C.C.A.) 56 F.(2d) 781; George Woodward v. Commissioner, 23 B.T.A. 1259. The transaction should have been viewed as a whole, as the Commissioner himself had insisted and the Board .of Tax Appeals had held in the Howard Case. Helvering v. Minnesota Tea Co., 296 U.S. 378, 56 S.Ct. 269, 80 L.Ed. 284. In Irving v. United States, 44 F.(2d) 246 (Ct.Cl.) the court looked through an issue and exchange of checks very similar to what took place here and held that the transaction constituted “a stock dividend” for purposes of tax liability. The characteristics of mergers or consolidations are clearly stated in Cortland Specialty Co. v. Commissioner (C.C.A.) 60 F.(2d) 937 (referred to and approved in Pinellas Ice Co. v. Commissioner, 287 U.S. 462, at page 470, 53 S.Ct. 257, 77 L.Ed. 428) and need not be repeated. The test is whether there was “some continuity of interest on the part of the transferor corporation or its stockholders.” A. N. Hand, J., 60 F.(2d) 937, 940. Whether “the seller acquired a definite and substantial interest in the purchaser.” McReynolds, J., Helvering v. Minnesota Tea Co., 296 U.S. 378, at page 386, 56 S.Ct. 269, 272, 80 L.Ed. 284. See, too, Sage v. Commissioner (C.C.A.2) 83 F.(2d) 221, April 6, 1936.
The present case is precisely within these statements. The upshot of what was done was that the National Bank took over the business assets and liabilities of the Savings Bank together with all its capital stock and paid for them with 1,500 shares of its own new stock which was' distributed to the former stockholders in the Savings Bank, and gave them a 50 per cent, interest in the National Bank. The stockholders in the dissolved corporation became owners of one-half the stock in the consolidated company continuing the business. If this was not a merger or consolidation “in strictness,” it is not easy to imagine what would be one. For purposes of taxation mergers meeting the requirements of the revenue acts will be recognized as such whether they are made under the provisions of the banking law, or not. Pinellas Ice Co. v. Commissioner, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428.
As to the taxability of the special dividend of Pullman Company and Nashua Manufacturing Company and $1.33 in cash : This dividend was declared in connection with the merger as a liquidation pro tanto of the assets of the Savings Bank and it should be taxed on that basis.
The decision of the Board of Tax Appeals is vacated, and the case is remanded to the Board for further proceedings not inconsistent with this opinion.
Revenue Act of 1928, c. 852, 45 Stat. 791:
“§ 112. Recognition of gain or loss “(a) General rule. Upon the sale or exchange of property the entire amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section.
“(b) Exchanges solely in kind— * *
“(3) Stock for Stock on Reorganization.
“No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization. * * a=
“(c) Gain from exchanges not solely in kind—
“(1) If an exchange would be within the provisions of subsection (b) (1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.
“(2) If a distribution made in pursuance of a plan of reorganization is within the provisions of paragraph (1) of this subsection but has the effect of the distribution of a taxable dividend, then there shall be taxed as a dividend to each distributee such an amount of the gain recognized under paragraph (1) as is not in excess of his ratable share of the undistributed earnings and profits of the corporation accumulated after February 28, 1913. The remainder, if any, of the gain recognized under paragraph (1) shall be taxed as a gain from the exchange of property. * * *
“(i) Definition of Reorganization. As used in this section and sections 113 and 115—
“(1) The term ‘reorganization’ means (A) a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation).” 26 U.S.C.A. § 112 and note.
“§ 115. Distributions by Corporations— * *
“(e) Distributions in liquidation.
“Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock, and amounts distributed in partial liquidation of a corporation shall be treated as in part or full payment in exchange for the stock. The gain or loss to the distributee resulting from such exchange shall be determined under section 111, but shall be recognized only to the extent provided in section 112.” 26 U.S.C.A. § 115 note.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_jurisdiction
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B
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
William J. HARRELL, Patricia Parker, and Karen Schamm, Plaintiffs-Appellees, v. UNITED STATES of America, LTJG Atkin, Defendants-Appellants.
Nos. 88-3494, 88-3606.
United States Court of Appeals, Eleventh Circuit.
June 14, 1989.
Thomas J. Donlon, Trial Atty., Torts Branch, Civil Div., U.S. Dept, of Justice, Barbara L. Herwig, Dept, of Justice, Wendy Keats, Washington, D.C., for U.S.
Anthony J. LaSpada, Joseph A. Eustace, Jr., George P. Kickliter, Tampa, Fla., for plaintiffs-appellees.
Before HILL and EDMONDSON, Circuit Judges, and GARZA , Senior Circuit Judge.
Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
HILL, Circuit Judge:
I. FACTS
The plaintiffs brought this suit against the United States and an individual Coast Guard officer, Lieutenant Junior Grade Thomas Atkin, for damages allegedly arising from the December 1985 arrest, search and detention of the plaintiffs for suspected drug violations on the high seas.
In December 1985, plaintiffs were sailing in the Bahamas aboard the vessel the Great Escape. On or about December 15, 1985, the vessel was boarded by a Jamaican Defense Force vessel and set free because no violations were found. On December 17, plaintiffs’ vessel was stopped and boarded by officers of the United States Coast Guard cutter COURAGEOUS. No violations were found, and the vessel was given a complete clearance in writing.
The next day, December 18, plaintiffs’ vessel was approached by the Naval warship EDWARD G. McDONNELL. Aboard the Naval vessel was a Coast Guard Tactical Law Enforcement Team (TACLET) under the command of Lt. Atkin. Plaintiffs invited the TACLET aboard. Plaintiffs then informed the TACLET that they had pulled some packages out of the water about 3:00 p.m. that day and had unsuccessfully attempted to radio the COURAGEOUS about them. The TACLET examined the packages which turned out to be ten bales of marijuana totalling 200 pounds. Plaintiffs were placed under arrest, read their rights, and subjected to a pat down search while still aboard their vessel. Two weapons, a rifle and a pistol, were also found aboard plaintiffs’ vessel.
Plaintiffs were taken aboard the Naval warship, separated, and subjected to strip searches. The search of plaintiff Harrell, a male, was conducted in a closed helicopter hanger in the presence of a few other men. The search of the two women was conducted by Lt. Atkin in a closed bathroom in the presence of the senior medical corpsman because no female crew members were on board. After the searches were completed, all three plaintiffs were handcuffed, to a chain connecting the bunk beds where they were placed.
The next day, December 19, plaintiffs were transferred to the COURAGEOUS. On December 20, the commanding officer of the COURAGEOUS released the plaintiffs and their vessel. No charges were ever filed against the plaintiffs with regard to the marijuana seizure.
The plaintiffs filed this action against the United States and Lt. Atkin after exhausting their administrative remedies. Plaintiffs sought damages against the United States under the Suits in Admiralty Act, 46 U.S.C.App. § 741 et seq., the Public Vessels Act, 46 U.S.C.App. § 781 et seq., and the Federal Tort Claims Act, 28 U.S.C. § 2674. They sought damages against Lt. Atkin personally for alleged constitutional torts and maritime torts.
Lt. Atkin moved to dismiss or in the alternative for summary judgment, alleging absolute and qualified immunity. By order dated February 25, 1988, the district court denied the motion on the basis that Lt. Atkin’s actions were insufficiently discretionary to permit him to invoke either type of immunity.
Lt. Atkin submitted a renewed motion for summary judgment, asserting that the district court lacked jurisdiction over the claims against him because a suit against the United States under the Suits in Admiralty Act is plaintiffs’ exclusive remedy for the claims alleged and, in addition, urging the court to reconsider its denial of official immunity as a matter of law. By order dated April 25, 1988, the district court refused to reconsider the denial of immunity, but granted Lt. Atkin leave to refile the motion for summary judgment on the statutory exclusive remedy question.
Lt. Atkin filed a timely notice of appeal from the April 25 order and was granted an extension of time to file a notice of appeal from the February 25 order, which he then timely filed. The district court then stayed consideration of the statutory exclusivity question pending resolution of the immunity issue on appeal. This court has now consolidated the appeals.
II. DISCUSSION
The issues before us on appeal are (1) whether this court has subject matter jurisdiction over this appeal, and (2) whether the district court erred in denying Lt. Atkin’s motion for summary judgment on the grounds of qualified immunity. We address each issue in turn.
A. Subject Matter Jurisdiction
In his initial brief, Lt. Atkin states that this court has jurisdiction over his appeal under 28 U.S.C. § 1291. He cites Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) wherein the Supreme Court held that the denial of a claim of qualified immunity which turns on an issue of law is deemed a final decision of the district court immediately appealable under section 1291. In response, the plaintiffs attempt to distinguish this case from Mitchell by arguing that the district court’s ruling turned on a question of fact instead of a question of law and by arguing that factual disputes concerning the parties’ conduct remain. In reply, Lt. Atkin argues that the level of discretion necessary for the application of a particular immunity doctrine is manifestly a question of law for which immediate appeal is clearly available. We agree and find that we have subject matter jurisdiction to decide the appeal.
B. Qualified Immunity
A government official performing a discretionary function is entitled to qualified immunity from personal liability when the acts complained of violate no clearly established law of which a reasonable person should have been aware at the time he acted. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Lt. Atkin argues that the actions alleged in this case—the arrest, search and detention of the plaintiffs—are typical actions and decisions taken by a law enforcement officer in the performance of his duties. Moreover, appellant argues that his actions were within the limits of clearly established law, thus entitling him to immunity with respect to the constitutional torts.
Lt. Atkin cites numerous cases from the Supreme Court and this circuit which have held that the ordinary functions of law enforcement officers, such as are involved here, are sufficiently discretionary as to entitle them to qualified immunity under Harlow, without the need to analyze the level of discretion involved. We find that Lt. Atkin’s actions in arresting, searching and detaining the plaintiffs were sufficiently discretionary as to entitle him to qualified immunity for the alleged constitutional torts, provided that these actions violated no clearly established law of which a reasonable person should have been aware at the time he acted. We note that the question we address is whether a reasonable Coast Guard officer in the same circumstances as Harrell and knowing what Harrell knew could have concluded that his actions did not violate any clearly established statutory or constitutional rights of the plaintiffs. Parker v. Williams, 862 F.2d 1471, 1476 (11th Cir.1989); see Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987). We find that a reasonable officer could have so concluded.
With respect to the stop of the vessel, this court has held that the Coast Guard has the power to stop and board an American flag vessel anywhere on the high seas, even in the absence of any particularized suspicion of criminal activity. United States v. Purvis, 768 F.2d 1237, 1238 (11th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986). Once the TACLET boarded plaintiffs’ vessel, they found plaintiffs in possession of 200 pounds of marijuana. Assuming plaintiffs version of the facts is true, that they did find the marijuana floating in the water and attempted to contact Coast Guard authorities, there is no evidence that Lt. At-kin knew any of this at the time he acted. We find that plaintiffs’ possession of the marijuana provided sufficient probable cause to arrest, without requiring Lt. Atkin to investigate further to determine actual criminal intent. See United States v. Everett, 719 F.2d 1119 (11th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1311, 79 L.Ed.2d 709 (1984) (intent not necessary to establish probable cause to arrest; passing of counterfeit note itself provides sufficient probable cause to arrest); see also 21 U.S. C. § 955 (it is unlawful to possess a controlled substance aboard any vessel entering or departing the United States or the customs territory of the United States).
With respect to the strip searches, Lt. Atkin argues that he conducted the searches pursuant to written Coast Guard policy. The admiral commanding the Coast Guard district to which Lt. Atkin was assigned had issued a written directive stating that “where it is anticipated that prisoners will remain on board for longer than 24 hours or overnight, strip searches shall normally be conducted, since past experiences under these circumstances establish reasonable suspicion that weapons or contraband may be secreted on arrestees.” Plaintiffs were found in possession of 200 pounds of marijuana as well as a rifle and a pistol. They were to be held in custody aboard a Naval warship. We do not find that Lt. Atkin acted unreasonably in conducting the strip searches of the plaintiffs.
With respect to the reasonableness of plaintiffs’ detention, we find that plaintiffs’ overnight detention aboard the McDON-NELL, for a period not more than 14 hours, was not clearly unlawful under the established law of this circuit. Purvis, 768 F.2d at 1238-39 (detention of suspected drug traffickers in handcuffs and confinement aboard Coast Guard vessel performing routine patrols for four days before landing to seek a magistrate for arraignment was not unlawful).
Lt. Atkin appears not to have violated the constitution at all; but, if he did, we have no reluctance to say that a reasonable officer in Lt. Atkin’s position would have believed his actions were lawful. This is sufficient for immunity, and we find Li Atkin entitled to qualified immunity as to the constitutional torts.
The same considerations which apply to the constitutional claims demonstrate Lt. Atkin’s entitlement to qualified immunity for the alleged non-constitutional maritime torts.
III. CONCLUSION
For the reasons stated above, we REVERSE the order of the district court and REMAND with instructions to dismiss the claims against Lt. Atkin on the grounds of qualified immunity.
REVERSE and REMAND.
. However, the district court dismissed plaintiffs’ first amendment claim on the basis that plaintiffs had failed to allege facts to support it.
. Lt. Atkin also argues that he is entitled to qualified immunity for the non-constitutional maritime torts but that this issue has no continuing importance in this litigation for two reasons. First, the Suits in Admiralty Act is plaintiffs’ exclusive remedy. We note that the district court has stayed the consideration of the statutory exclusivity question pending resolution of the immunity issue on appeal. Second, the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694 (to be codified at 28 U.S.C. § 2679) requires substitution of the United States as the exclusive defendant for common law tort suits against federal officials acting within the scope of their employment. In view of our resolution of the immunity issue, we need not address the question of substitution. We will address the applicability of qualified immunity to the non-constitutional torts later in the opinion.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
ARNOLD PRODUCTIONS, INC., Plaintiff-Appellant, v. FAVORITE FILMS CORPORATION, and Nationwide Television Corporation, Defendants-Appellees.
No. 10, Docket 25995.
United States Court of Appeals Second Circuit.
Argued Sept. 28, 1961.
Decided Feb. 6, 1962.
See also 291 F.2d 94.
Samuel Gottlieb, New York City (Harry Giesow, Gainsburg, Gottlieb, Levitan & Cole, New York City, on the brief), for plaintiff-appellant.
Harold J. Sherman, New York City (Fitelson & Mayers, New York City, on the brief), for defendant-appellee Favorite Films Corp.
Winfield E. Aronberg, New York City, for defendant-appellee Nationwide Television Corp.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges..
LUMBARD, Chief Judge.
Arnold Productions, Inc., the owner of two motion pictures, “Hangmen Also-Die” and “It Happened Tomorrow,” on May 27, 1947 entered into a distribution-agreement with Favorite Films Corp., which granted Favorite “the sole and exclusive right to reproduce, lease, license, sub-license, exhibit, rent, distribute and exploit [the films] * * * for reissue-purposes, for a period of seven (7) years,” and similar rights for the same-period “to lease, license, sub-license, rent, distribute and exploit [the films] * * *• through and by television.” In return Favorite agreed “to use its best efforts-diligently and in good faith to exploit the-said photoplays and to obtain as wide a distribution thereof and as many exhibitions and bookings thereof as possible.”It was further provided that “This agreement is personal and cannot be assigned by the Licensee voluntarily, by operation of law or otherwise, without the consent in writing of the Licensor first obtained.” Favorite was to retain 62% percent of the receipts from the exploitation of the films, and Arnold was to receive the remainder.
On March 14, 1949, Favorite entered into an agreement with Nationwide Television Corp., co-defendant in this action, constituting Nationwide its “sole and exclusive agent for the television distribution of the films” on terms substantially the same as those of the Arnold-Favorite contract. Nationwide, in turn, orally subleased the television distribution rights to its wholly-owned subsidiary, Film Equities Corp., which was subsequently succeeded by another subsidiary of Nationwide called Unity, Inc. These subsidiaries handled the actual distribution of the films and accounted directly to Favorite, retaining 25 percent of all proceeds.
This is a diversity action brought by Arnold, a Delaware corporation, against Favorite and Nationwide, both New York corporations; New York law applies. Arnold claims that Nationwide was guilty of fraud against it, and that Favorite broke the contract in failing to use its “best efforts” in television distribution and in delegating the television distribution to Nationwide; it also seeks an accounting from Favorite. No question is raised of Favorite’s performance of that part of the contract covering the reissue of the films for theatre showings. Judge Murphy, in his opinion reported at 176 F.Supp. 862, granted judgment for Nationwide and for Favorite, except to the extent of requiring Favorite to account for its receipts from the licensing of the two films since the date of the last financial report to Arnold in 1955. We affirm the judgment.
Arnold’s only claim against Nationwide appears to be that it conspired with Favorite to defraud Arnold by withholding records relating to the licensing of the films and refusing to return the films on receipt of Arnold’s notice of termination of the contract. We agree with Judge Murphy that there was no evidence whatsoever suggesting any fraudulent intent on Nationwide’s part.
Arnold’s first claim against Favorite is that it committed a breach of the “best efforts” clause in that the methods of distribution used were not the most remunerative possible. It claims that its revenues would have been greater had the films been marketed individually rather than as parts of packages also including less desirable films owned by others. We see no reason to upset Judge Murphy’s finding of fact that there was no proof that individual promotion would have been more profitable or his alternative finding that in any event the claimed injury was not shown with sufficient definiteness to permit any calculation of damages, cf. Broadway Photoplay Co. v. World Film Corp., 225 N.Y. 104, 121 N.E. 756 (1919).
Second, Arnold argues that it was error for the court below to limit the accounting it required of Favorite to those proceeds received from the exploitation of the films since it had last rendered Arnold an account. Arnold claims that Favorite should be compelled to account to it for all receipts from the films during the entire period of their contractual relationship. We see no reason to impose such a requirement. Indeed, we see no justification for even the limited accounting granted by the court below. “Even though an accounting were required to ascertain the amount of damages, that fact would be insufficient to support a claim for equitable relief unless a fiduciary relationship were shown * * *” Terner v. Glickstein & Terner, Inc., 283 N.Y. 299, 28 N.E.2d 846 (1940). The relationship between Arnold and Favorite was one of simple contract. Arnold could, by means of familiar dis-covery devices, obtain any information in the hands of Favorite or others it needed to establish its allegations as to damages. Because there is no objection by Favorite, however, we do not disturb the allowance below of a limited accounting.
Arnold’s third assignment of error, and that with which we are here primarily concerned, is that Favorite violated the contract by delegating its performance to Nationwide rather than handling the distribution itself as agreed. We find no error in Judge Murphy’s holding that Favorite did not assign the contract to Nationwide or abandon its duties under it, and thus committed no breach.
It is clear that Favorite did not technically “assign” its contract in its entirety, but merely delegated a part (the extent of which we shall presently discuss) of its duties. Favorite did not purport to divest itself of its ultimate responsibility to Arnold. Although it made Nationwide its “sole and exclusive agent,” it maintained certain supervisory powers over it. It reserved “the right to designate * * * a Representative, to whom you agree to submit for approval or rejection, each and all of your proposed license or sub-license agreements with respect to the Photoplays,” and it appointed its president as such representative. Thus there was no breach of the specific covenant against assignment. Rather the question is whether the delegation of performance deprived Arnold of any right to Favorite’s own services which it may have acquired explicitly from the provision that “this agreement is personal” or implicitly from the “best efforts” clause and the inherent nature of the contract.
We do not find it necessary to consider whether New York would impose the same implied duty of personal service upon a contracting corporation as it would on an individual under the same circumstances, or whether this contract by its explicit terms gave Arnold the right to demand Favorite’s own services. Even if we assume that only Favorite was to give the performance called for by the contract, which was the “exploitation” of the films and the “obtaining” of bookings, we do not believe that this performance excluded such use of Nationwide’s services as Favorite made. The contract must be interpreted in light of what the record reveals about the practices of the business in which the parties were engaged, and especially what it reveals about the general understanding and course of dealings between them.
It is significant that under this contract Favorite’s duties with respect to reissue of the two films to theatres were exactly the same as the television distribution duties here in question. There is no dispute that it was understood that little if any of the actual theatre distribution (possibly that in New York City, at the most) was to be done by Favorite itself; most was to be delegated to various “franchise holders” in various parts of the country, who were to do the actual work of selling films to local exhibitors. There is no indication that Favorite’s supervision over these franchise holders was any greater than its supervision over Nationwide’s television distribution. Favorite maintained the right to reject any agreements suggested by Nationwide, and there was sufficient evidence that on occasion its president actually did so with respect to television distribution to justify Judge Murphy’s finding that there was no abdication of responsibility. There is no suggestion that Arnold was endangered by lack of financial responsibility on Nationwide’s part, or in any other way not having to do with the quality of the performance it received. In any event, the concession that under the same contract distribution through franchise holders was contemplated is sufficient to foreclose any inference that Favorite’s employees were expected to do all television distribution personally. There is, indeed, testimony which would support a finding that throughout most of the term of the contract Arnold acquiesced in Favorite’s delegation of sales duties.
Affirmed.
. Since Nationwide, Film Equities and Unity all had common ownership and common personnel, we shall treat them as one entity, as did the court below.
. “In a contract for a sales agency, the personal performance of the agent is practically always a condition precedent to the duty of the principal and employer,” and the agent cannot discharge his obligation by furnishing a substitute. 4 Corbin, Contracts 444-45 (1951); see, Paige v. Faure, 229 N.Y. 114, 127 N.E. 898, 10 A.L.R. 649 (1920); cf. Nassau Hotel Co. v. Barnett & Barse Corp., 162 App.Div. 381, 147 N.Y.S. 283 (1st Dept. 1914), aff’d mem., 212 N.Y. 568, 106 N.E. 1036 (1914). Plaintiff has made no claim that Favorite’s duty should be determined by principles of actual agency, and we see no reason to treat tbe duty as more than contractual.
. There is some reason to believe that the New York courts would not permit such an implication in the case of a corporation. Wetherell Bros. v. United States Steel Co., 200 F.2d 761 (1 Cir. 1953); New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 180 N.Y. 280, 293, 73 N.E. 48, 52 (1905); New England Iron Co. v. Gilbert Elevated Ry. Co., 91 N.Y. 153, 166-167 (1883).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Charles S. KRAVITZ, Appellant.
No. 83-1484.
United States Court of Appeals, Third Circuit.
Argued Jan. 24, 1984.
Resubmitted Pursuant to Rule 12(6) on Sept. 26, 1984.
Decided Oct. 3, 1984.
Rehearing and Rehearing En Banc Denied Oct. 29, 1984.
Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Gary S. Glazer (argued), Asst. U.S. Attys., Philadelphia, Pa., for appellee.
Alan J. Hoffman (argued), Edward S. Warded, Carl W. Hittinger, Edmunds J. Brokans, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., Stanford Shmukler (argued), Philadelphia, Pa., for appellant.
Before GIBBONS, Circuit Judge, and ATKINS, District Judge.
Honorable C. Clyde Atkins, United States District Judge for the Southern District of Florida, sitting by designation. Judge Becker heard argument in this case, but did not participate in its final disposition.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Charles Kravitz appeals from a judgment of sentence imposed following his conviction for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (1982) (“RICO”) and the Travel Act, 18 U.S.C. § 1952 (1982). He contends that his conviction should be set aside, and that in any event the court erred in ordering forfeiture of his interest as a stockholder in American Health Programs, Inc. (AHP). We hold that his objections to the RICO and Travel Act convictions are without merit, and that the forfeiture order was proper. Thus we affirm.
I.
Kravitz, a dentist, was the sole stockholder of AHP, a corporation engaged in the health care delivery business. In order to obtain a renewal of a contract for dental and other services with the Philadelphia Fraternal Order of Police (FOP), Dr. Kravitz made three cash payments totalling $7,000 between May 14, 1982 and June 4, 1982 to Robert Hurst, President of the FOP. He also made one payment of $1,000 to Michael Lutz, Secretary of the FOP. Both Hurst and Lutz were at the same time working undercover with the F.B.I. Kravitz was indicted for violation of RICO and the Travel Act, 18 U.S.C. §§ 1952, 1961-1963 (1982). The predicate offenses for the RICO violation were the briberies of Hurst and Lutz. Kravitz was tried before a jury and convicted on one RICO count and one Travel Act count. On the RICO count, Kravitz was sentenced to four years incarceration and a $25,000 fine.
After the jury returned a guilty verdict on the RICO count, several questions were prepared for submission to the jury. Under Rule 31(e) of the Federal Rules of Criminal Procedure, if an “indictment ... alleges an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.” The government proposed the following questions:
(1) Did the defendant own any shares of stock in American Health Programs?
(2) Did he maintain this interest in violation of the racketeering laws?
(3) Shall such shares of stock be forfeited to the United States?
(4) Did the defendant hold a position in American Health Programs which gave him a source of influence over the company?
(5) Did he use the position to conduct the affairs of American Health Programs through a pattern of racketeering activity?
(6) Shall the defendant be required to forfeit his position to the United States?
The jury answered questions 1, 2, 4, and 5 affirmatively, and thereby found that Kravitz had used his ownership position in AHP to engage in a pattern of racketeering activity. Despite the conclusion such responses would seem to compel, the jury answered questions 3 and 6 in the negative. Although it was the government that originally prepared the questions, prior to their submission, it attempted to withdraw questions 3 and 6. Although the court submitted the questions over the government’s objections, it specifically reserved for argument whether those questions, if answered negatively, were binding on the court. The district court subsequently decided that they were not. The court refused to follow the jury’s recommendation and ordered forfeiture of Kravitz’s stock and position in AHP.
II.
Appellant raises three arguments on appeal on the forfeiture issue: (1) even if the forfeiture of property held in violation of RICO is mandatory, it was for the jury to decide the extent of the property used to conduct racketeering; (2) having had questions 3 & 6 submitted to the jury, appellant acquired a sixth amendment right to trial by jury on those issues; and (3) forfeiture was in violation of the eighth amendment’s ban against disproportionate sentencing.
A.
A primary question presented by this appeal is whether forfeiture under section 1963 is mandatory upon a finding that the appellant’s property was used to promote racketeering. We conclude, as have all other courts to decide the question, that forfeiture is mandatory. See United States v. Hess, 691 F.2d 188, 190 (4th Cir.1982); United States v. Godoy, 678 F.2d 84, 88 (9th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 390, 78 L.Ed.2d 334 (1983); United States v. L’Hoste, 609 F.2d 796, 809-11 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980).
Several factors compel that conclusion. The first is the plain meaning of the language employed in section 1963(a), stating that “[w]hoever violates any provision of section 1962 ... shall forfeit to the United States” the illegally used interests. As the Fifth Circuit pointed out in L’Hoste, although there are occasions where “shall” has been interpreted to vest discretionary, rather than mandatory, authority to act, the wording of the statute is the most persuasive evidence of Congressional intent. L’Hoste, supra, 609 F.2d at 810. Nor does the legislative history ever discuss forfeiture in discretionary terms, see, e.g., H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. 57, reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4033; S.Rep. No. 91-617, 91st Cong., 1st Sess. 160 (1969). The wording of the remaining penalties established under section 1963(a) also supports a mandatory interpretation of forfeiture: section 1963(a) states that a defendant “shall be fined not more than $25,000 or imprisoned not more than twenty years, or both ” (emphasis added). Thus, where Congress intended for the penalty to be optional, as in the choice between fine or imprisonment, they specified that there was such a choice. The section’s wording provides no choice regarding the imposition of forfeiture.
Moreover, a literal reading of section 1963(a) is consistent with RICO purposes. The criminal forfeiture provision was viewed as an innovative means of addressing the spread of organized crime that has infiltrated so many aspects of American society. Of foremost concern during Congressional hearings on RICO was the weakness of current efforts at curtailing the spread of organized crime to legitimate business endeavors. For instance, the Senate Judiciary Committee’s report quoted the Attorney General’s testimony that:
While the prosecutions of organized crime leaders can seriously curtail the operations of the Cosa Nostra, as long as the flow of money continues, such prosecutions will only result in a compulsory retirement and promotion system as new people step forward to take the place of those convicted.
S.Rep. No. 91-617, 91st Cong. 1st Sess. 78 (1969). The report stated that forfeiture as a penalty for the criminal offense—although disfavored throughout American history, id. at 79—was an innovative approach which could provide the linchpin in the renewed effort against organized crime:
Title IX recognizes that present efforts to dislodge the forces of organized crime from legitimate fields of endeavor have proven unsuccessful. To remedy this failure, the proposed statute adopts the most direct route open to accomplish the desired objective. Where an organization is acquired or run by defined racketeering methods, then the persons involved can be legally separated from the organization, either by the criminal law approach of fine, imprisonment and forfeiture, or through a civil law approach of equitable relief broad enough to do all that is necessary to free the channels of commerce from all illicit activity.
Id.
In light of RICO’s central goal of inhibiting organized crime’s infiltration of legitimate business, it is certainly not likely that forfeiture was viewed by its drafters as an optional penalty. At the least, a mandatory interpretation of section 1963(a)’s forfeiture would promote, rather than discourage, RICO’s intended purpose. Indeed, it is consistent with RICO’s own construction clause, Pub.L. No. 91-452, § 904(a), 84 Stat. 922, 947 (1970), which states that the statute “shall be liberally construed to effectuate its remedial purposes.”
When Congress has opted to provide for discretionary forfeiture, it has done so expressly. Thus, under the Internal Revenue Laws there is district court discretion to remit or mitigate the forfeiture. 18 U.S.C. § 3617 (1982). The Organized Crime Control Act itself elsewhere contains a permissive, rather than mandatory, forfeiture provision. In establishing penalties for illegal gambling, Congress provided that “[a]ny property ... used in violation of the provisions of this section may be seized and forfeited to the United States.” 18 U.S.C. § 1955(d) (1982).
Finally, we note that where Congress did provide for the remission or mitigation of the forfeiture order, it vested that decision-making authority with the Attorney General, not the federal courts. Section 1963(c) explicitly incorporates “[a]ll provisions of law relating to the ... remission or mitigation of forfeitures for violation of the customs laws ... ”; it also imposes upon the Attorney General “[s]uch duties as are imposed upon the collector of customs ... with respect to the disposition of property....” Under the customs laws, it is the Attorney General who has the authority to grant remission or mitigation. See, e.g., United States v. One 1970 Buick Riviera, Ser. 494870H910774, 463 F.2d 1168, 1170 (5th Cir.), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972). Moreover, courts have uniformly held that the remission decision of the Attorney General is not open to judicial review. Id. at 1170. Therefore, since 1963(c) vests the Attorney General with the powers given him under the customs laws, we conclude that any petition for remission or mitigation must be brought before the Attorney General, and that the federal courts have no authority to modify or review that decision. Cf. United States v. Huber, 603 F.2d 387, 397 (2d Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980) (the Attorney General’s power to seize the property upon the terms and conditions set by the court provides for limited judicial modification of the forfeiture order). The role of the federal courts is thus limited under RICO to entry of judgment in accord with the jury’s answers to the interrogatories, submitted pursuant to Rule 31(e) of the Federal Rules of Criminal Procedure.
B.
Kravitz also argues, without explanation or citation, that he “acquired” a right to trial by jury by virtue of the court’s submission of the questions, pursuant to Rule 31(e). This argument has several flaws. Since section 1963 is mandatory, not even the district court has the authority to refrain from ordering forfeiture. Surely the court cannot delegate to the jury authority which it itself has not been given by the governing statute. No theory is offered to explain how a defendant acquires a right to sentencing by the jury when the applicable criminal statute, section 1963 of RICO, makes no such provision. Although a criminal statute may provide for juror participation in sentencing, the right to trial by jury does not compel such participation. Cf. United States v. Wilson, 506 F.2d 521, 522-23 (9th Cir.1974); United States v. Del Toro, 426 F.2d 181, 184 (5th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 58 (1970) (function of jury is to determine facts and guilt or innocence; function of judge is to impose sentence).
Kravitz also challenges the forfeiture on eighth amendment grounds. He argues that forfeiture constitutes a disproportionate penalty because AHP’s contract with the FOP expired prior to indictment. Since AHP was no longer providing services pursuant to the illegally secured contract, Kravitz would have us accept that the taint upon the property had dissipated, and thus that the order of forfeiture was cruel and unusual punishment, in violation of the eighth amendment.
Kravitz’s eighth amendment argument completely ignores the nature of RICO’s forfeiture provision. Forfeiture under RICO is an in personam penalty designed as part of the punishment for the criminal offense committed. United States v. Cauble, 706 F.2d 1322, 1349 (5th Cir.1983), cert. denied, — U.S. - 104 S.Ct. 996, 79 L.Ed.2d 229 (1984); United States v. Huber, 603 F.2d 387, 396 (2d Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). It is simply incorrect that the termination of the criminal conduct bars the imposition of punishment. Although in personam forfeiture is not commonly used in our system of jurisprudence, see United States v. Cauble, supra, 706 F.2d at 1345, it is nonetheless a legitimate weapon in the enforcement of our criminal laws and, as with any punishment for criminal conduct, may be imposed despite the cessation of the criminal conduct charged in the indictment. Cf. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 444, 77 S.Ct. 1325, 1329, 1 L.Ed.2d 1469 (1957) (forfeiture of obscene materials in an in rem proceeding is “a legal remedy sanctioned by the long history of Anglo-American law” (citations omitted)).
Although Kravitz raises the point rather indirectly, he also suggests that forfeiture constitutes a disproportionate punishment because appellant’s racketeering activities were, at most, a minor or remote part of AHP’s medical practice. Appellant relies on two Second Circuit decisions, United States v. Huber, 603 F.2d 387, 396-97 (2d Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), and United States v. Walsh, 700 F.2d 846, 857 (2d Cir.), cert. denied, — U.S. -, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983). In Huber, the Second Circuit, in dicta, suggested that the eighth amendment may place limitations upon the forfeiture of property used to promote racketeering. The same suggestion was made in Walsh. Neither Huber nor Walsh, however, invalidated a forfeiture on eighth amendment grounds, nor conclusively stated that such a challenge would succeed. The Huber court merely stated that the remission and mitigation provisions of section 1963 could prevent eighth amendment problems, which might arise if the property to be forfeited was used only incidentally by the defendant to promote his racketeering.
Moreover, even if the eighth amendment does provide an outer limit upon the RICO’s forfeiture provision — a point we need not decide today — it is clear that in this case the ordered forfeiture is proportionate to the illegal racketeering activity. In the instant case, the property seized was used to promote Kravitz’s racketeering scheme — as the Huber court suggested, “keyed to the magnitude of a defendant’s criminal enterprise,” Huber, supra, 603 F.2d at 397—and certainly was as integral to the racketeering schemes as in other cases where forfeiture was imposed under RICO. See, e.g., United States v. L’Hoste, 609 F.2d 796 (5th Cir.1980), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980) (defendant’s stock interest in his company ordered forfeited due to use of company to secure government contracts through illegal kickbacks).
The judgment of the district court will be affirmed.
. Kravitz had argued that: (1) the predicate acts underlying his federal convictions were manufactured by the government; (2) he did not violate the Pennsylvania commercial bribery statute, 18 Pa.Cons.Stat.Ann. § 4108 (Purdon 1983), and therefore did not commit the required predicate offenses for RICO & Travel Act convictions; (3) he was prejudiced by the trial court’s failure to instruct the jury regarding his theory of the case; (4) the trial court impermissibly amended the grand jury’s indictment by dismissing that portion relating to securing the AHP-FOP contract in 1979; and (5) he was denied a fair trial due to the court’s failure to take adequate measures to prevent jury exposure to in-trial publicity.
. Prior to submission of the questions, a stipulation was reached that Kravitz was the sole stockholder of AHP.
. Although the customs statutes, 19 U.S.C. §§ 1613, 1618, vest that authority with the Secretary of the Treasury, Executive Order No. 6166 (June 10, 1933) transferred the remission and mitigation authority to the Attorney General when the forfeiture is ordered in a judicial proceeding. One 1970 Buick, supra, 463 F.2d at 1170, n. 2.
. Kravitz also argues that the jury’s refusal to order forfeiture amounted to an evaluation that only a small per cent of AHP was used to promote racketeering. Therefore, he says, assuming the mandatory nature of forfeiture under § 1963(c), forfeiture was improperly ordered. Kravitz’s characterization, however, amounts to nothing more than legerdemain. The jury clearly stated, in answers 2 and 5, that Kravitz’s interest in AHP, both as stockholder and officeholder, were maintained in violation of the racketeering laws. They did not decide that little or none of AHP was used to promote racketeering. They merely decided, for reasons unknown, that despite this illegal use of his company, forfeiture was not the proper remedy. Since we have held that RICO imposes mandatory forfeiture to the extent that the property is determined to have been used for racketeering, Kravitz’s argument must fail.
. Of course, the defendant can apply to the Attorney General for remission or mitigation. No application has been made to date in the instant case.
. Kravitz has also argued in his original brief on appeal that forfeiture violated the eighth amend- • ment because he hid, prior to indictment, his stock interest in AHP trust. In his reply brief it appears that appellant waived his "divestiture” argument, stating that at sentencing "appellant conceded that his stock interest was subject to forfeiture despite the transfer.”
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_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.
PASADENA CITY BOARD OF EDUCATION et al. v. SPANGLER et al.
No. 75-164.
Argued April 27-28, 1976
Decided June 28, 1976
RehNquist, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, White, BlachmuN, and Powell, JJ., joined. Marshall, J., filed a dissenting opinion, in which BreNNAN, J., joined, past, p. 441. SteveNS, J., took no part in the consideration or decision of the case.
Phil C. Neal argued the cause for petitioners. With him on the briefs were Lee G. Paul, Peter D. Collisson, Robert G. Lane, Philip B. Kurland, and Alan L. Unikel.
Fred Okrand argued the cause and filed a brief for respondents Spangler et al. Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, and Brian K. Landsberg
Briefs of amici curiae urging affirmance were filed by Vilma S. Martinez and Morris J. Boiler for the Mexican American Legal Defense and Educational Fund; by Nathaniel R. Jones, William L. Taylor, Paul R. Dimond, William E. Caldwell, Norman J. Chach-kin, Thomas D. Barr, John W. Douglas, J. Harold Flannery, Albert E. Jenner, Jr., Milan C. Miskovsky, Whitney North Seymour, and Chesterfield Smith for the National Association for the Advancement of Colored People et al.; by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Drew S. Days III, and Melvin Leventhal for the N. A. A. C. P. Legal Defense and Educational Fund, Inc.; by Ralph J. Moore, Jr., Richard M. Sharp, David Rubin, Peter T. Galiano, and Horace Wheatley for the National Education Assn, et al.; and by Nathaniel S. Colley for the Western Regional Office, National Association for the Advancement of Colored People, et al.
Raymond B. Witt, Jr., filed a brief for the Board of Education of Chattanooga, Tenn., as amicus curiae.
Mr. Justice Rehnquist
delivered the opinion of the Court.
In 1968, several students in the public schools of Pasadena, Cal., joined by their parents, instituted an action in the United States District Court for the Central District of California seeking injunctive relief from allegedly unconstitutional segregation of the high schools of the Pasadena Unified School District (PUSD). This action named as defendants the Pasadena City Board of Education, which operates the PUSD, and several of its officials. Before the defendants had filed an answer, the United States moved to intervene in the case pursuant to Title IX, § 902, of the Civil Rights Act of 1964, 78 Stat. 266, 42 U. S. C. § 2000h-2. The District Court granted this motion. Later, however, the court granted defendant Board’s motion to strike those portions of the United States’ complaint in intervention which sought to include in the case other areas of the Pasadena public school system: the elementary schools, the junior high schools, and the special schools. This ruling was the subject of an interlocutory appeal, see 28 U. S. C. § 1292 (a)(1), to the Court of Appeals for the Ninth Circuit. That court reversed the District Court and ordered the United States’ demand for systemwide relief reinstated. 415 F. 2d 1242 (1969). No further review of this decision was sought.
Following remand from this decision, the District Court held a trial on the allegations that the Pasadena school system was unconstitutionally segregated. On January 23, 1970, the court entered a judgment in which it concluded that the defendants’ educational policies and procedures were violative of the Fourteenth Amendment. The court ordered the defendants “enjoined from failing to prepare and adopt a plan to correct racial imbalance at all levels in the Pasadena Unified School District.” The defendants were further ordered to submit to the District Court a plan for desegregating the Pasadena schools. In addition to requiring provisions for the assignment of staff and the construction and location of facilities, the District Court ordered that
“[t]he plan shall provide for student assignments in such a manner that, by or before the beginning of the school year that commences in September of 1970 there shall be no school in the District, elementary or junior high or senior high school, with a majority of any minority students.” 311 F. Supp. 501, 505 (1970).
The court went on to retain
“jurisdiction of this cause in order to continue to observe and evaluate the plans and the execution of the plans of the Pasadena Unified School District in regard to the hiring, promotion, and assignment of teachers and professional staff members, the construction and location of facilities, and the assignment of students.” Ibid.
The defendant school officials voted to comply with the District Court’s decree and not to appeal. They thereupon set out to devise and submit the plan demanded by the District Court. In February the defendants submitted their proposed plan, the “Pasadena Plan,” and on March 10, 1970, the District Court approved the plan, finding it “to be in conformance with the Judgment entered herein January 23, 1970.” App. 96. The “Pasadena Plan” was implemented the following September, and the Pasadena schools have been under its terms ever since.
In January 1974, petitioners, successors to the original defendants in this action, filed a motion with the District Court seeking relief from the court’s 1970 order. Petitioners sought four changes: to have the judgment modified so as to eliminate the requirement that there be “no school in the District, elementary or junior high or senior high school, with a majority of any minority students”; to have the District Court’s injunction dissolved; to have the District Court terminate its “retained jurisdiction” over the actions of the Board; or, as an alternative, to obtain approval of petitioners’ proposed modifications of the “Pasadena Plan.”
The District Court held hearings on these motions and, on March 1, 1974, denied them in their entirety. In an opinion filed May 3, the court discussed its reasons for refusing the relief requested by petitioners. 375 F. Supp. 1304 (1974). Petitioners appealed to the Court of Appeals for the Ninth Circuit. A divided panel of that court affirmed the District Court, 519 F. 2d 430 (1975), but all three members of the panel expressed substantial reservations about some of the District Court’s actions and the implications of some portions of its orders as they bore on the future operations of the Pasadena schools. Judges Ely and Chambers were apparently satisfied that the District Judge would heed the reservations expressed in their separate opinions, however, and they were content to affirm the District Court’s order and remand the case. Judge Wallace dissented from the affirmance. Because the case seemed to present issues of importance regarding the extent of a district court’s authority in imposing a plan designed to achieve a unitary school system, we granted certiorari. 423 U. S. 945 (1975). We vacate the judgment of the Court of Appeals and remand the case to that court for further proceedings.
I
We must first deal with petitioners’ contention that there no longer exists any case or controversy sufficient to support our jurisdiction. Petitioners assert that all the original student plaintiffs have graduated from the Pasadena school system, and that since the District Court never certified this suit as a class action pursuant to Fed. Rule Civ. Proc. 23, the case is moot. Respondents advance several theories why it is not moot.
Counsel for the individual named respondents, the original student plaintiffs and their parents, argue that this litigation was filed as a class action, that all the parties have until now treated it as a class action, and that the failure to obtain the class certification required under Rule 23 is merely the absence of a meaningless “verbal recital” which counsel insists should have no effect on the facts of this case. But these arguments overlook the fact that the named parties whom counsel originally undertook to represent in this litigation no longer have any stake in its outcome. As to them the case is clearly moot. And while counsel may wish to represent a class of unnamed individuals still attending the Pasadena public schools who do have some substantial interest in the outcome of this litigation, there has been no certification of any such class which is or was represented by a named party to this litigation. Except for the intervention of the United States, we think this case would clearly be moot. Sosna v. Iowa, 419 U. S. 393 (1975); Indianapolis School Comm’rs v. Jacobs, 420 U. S. 128 (1975).
The case did not remain an individual private action seeking to desegregate the Pasadena schools, however. The United States intervened in this case pursuant to 42 U. S. C. § 2000h-2. That section provides that “the United States shall be entitled to the same relief as if it had instituted -the action.” The meaning of this provision is somewhat ambiguous, and there is little legislative history to shed any light upon the intention of Congress. But we think the statute is properly read to authorize the United States to continue as a party plaintiff in this action, despite the disappearance of the original plaintiffs and the absence of any class certification, so long as such participation serves the statutory purpose, and that the presence of the United States as a party ensures that this case is not moot.
II
Petitioners requested the District Court to dissolve its injunctive order requiring that there be no school in the PUSD with a majority of any minority students enrolled. The District Court refused this request, and ordered the injunction continued. The court apparently based this decision in large part upon its view that petitioners had failed properly to comply with its original order. This conclusion was in turn premised upon the fact that although the School Board had reorganized PUSD attendance patterns in conformity with the court-approved Pasadena Plan, literal compliance with the terms of the court’s order had been obtained in only the initial year of the plan’s operation. Following the 1970-1971 school year, black student enrollment at one Pasadena school exceeded 50% of that school’s total enrollment. The next year, four Pasadena schools exceeded this 50% black enrollment figure; and at the time of the hearing on petitioners’ motion some five schools, in a system of 32 regular schools, were ostensibly in violation of the District Court’s “no majority of any minority” requirement. It was apparently the view of the majority of the Court of Appeals’ panel that this failure to maintain literal compliance with the 1970 injunction indicated that the District Court had not abused its discretion in refusing to grant so much of petitioner’s motion for modification as pertained to this aspect of the order. We think this view was wrong.
We do not have before us any issue as to the validity of the District Court's original judgment, since petitioners’ predecessors did not appeal from it. The District Court’s conclusion that unconstitutional segregation existed in the PTJSD; its decision to order a systemwide school reorganization plan based upon the guidelines which it submitted to the defendants; and the inclusion in those guidelines of the requirement that the plan contain provisions insuring that there be no majority of any minority in any Pasadena school, all became embodied in the 1970 decree. All that is now before us are the questions of whether the District Court was correct in denying relief when petitioners in 1974 sought to modify the “no majority” requirement as then interpreted by the District Court.
The meaning of this requirement, as originally established by the District Court, was apparently unclear even to the parties. In opposing the petitioners’ request for relief in 1974, counsel for the original individual plaintiffs and counsel for the Government jointly stipulated that they were aware “of no violations of the Pasadena Plan up to and including the present.” These parties were, of course, aware that some of the Pasadena schools had “slipped out of compliance” with the literal terms of the order. The stipulation was based upon the fact that the plaintiffs never understood the District Court’s order to require annual reassignment of pupils in order to accommodate changing demographic residential patterns in Pasadena from year to year, as the Government candidly admits in its brief here. Brief for United States 16 n. 22.
Petitioners have argued that they never understood the injunction, or the provisions of the plan which they drafted to implement that order, to contain such a requirement either. But at the hearing on petitioners’ motion for relief the District Court made it clear that its understanding of the decree was quite different from that of the parties. In response to the arguments of petitioners’ counsel, the judge stated that his 1970 order “meant to me that at least during my lifetime there would be no majority of any minority in any school in Pasadena.” App. 270.
When the District Court’s order in this case, as interpreted and applied by that court, is measured against what this Court said in its intervening decision in Swann v. Board of Education, 402 U. S. 1 (1971), regarding the scope of the judicially created relief which might be available to remedy violations of the Fourteenth Amendment, we think the inconsistency between the two is clear. The District Court’s interpretation of the order appears to contemplate the “substantive constitutional right [to a] particular degree of racial balance or mixing” which the Court in Swann expressly disapproved. Id., at 24. It became apparent, at least by the time of the 1974 hearing, that the District Court viewed this portion of its order not merely as a “starting point in the process of shaping a remedy,” which Swann indicated would be appropriate, id., at 25, but instead as an “inflexible requirement,” ibid., to be applied anew each year to the school population within the attendance zone of each school.
The District Court apparently believed it had authority to impose this requirement even though subsequent changes in the racial mix in the Pasadena schools might be caused by factors for which the defendants could not be considered responsible. Whatever may have been the basis for such a belief in 1970, in Swann the Court cautioned that “it must be recognized that there are limits” beyond which a court may not go in seeking to dismantle a dual school system. Id., at 28. These limits are in part tied to the necessity of establishing that school authorities have in some manner caused unconstitutional segregation, for “[ajbsent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis.” Ibid. While the District Court found such a violation in 1970, and while this unappealed finding afforded a basis for its initial requirement that the defendants prepare a plan to remedy such racial segregation, its adoption of the Pasadena Plan in 1970 established a racially neutral system of student assignment in the PUSD. Having done that, we think that in enforcing its order so as to require annual readjustment of attendance zones so that there would not be a majority of any minority in any Pasadena public school, the District Court exceeded its authority.
In so concluding, we think it important to note what this case does not involve. The “no majority of any minority” requirement with respect to attendance zones did not call for defendants to submit “step at a time” plans by definition incomplete at inception. See, e. g., United States v. Montgomery Board of Education, 395 U. S. 225 (1969). Nor did it call for a plan embodying specific revisions of the attendance zones for particular schools, as well as provisions for later appraisal of whether such discrete individual modifications had achieved the “unitary system” required by Brown v. Board of Education, 349 U. S. 294, 300 (1955). The plan approved in this case applied in general terms to all Pasadena schools, and no one contests that its implementation did “achieve a system of determining admission to the public schools on a nonracial basis,” id., at 300-301.
There was also no showing in this case that those post-1971 changes in the racial mix of some Pasadena schools which were focused upon by the lower courts were in any manner caused by segregative actions chargeable to the defendants. The District Court rejected petitioners’ assertion that the movement was caused by so-called “white flight” traceable to the decree itself. It stated that the “trends evidenced in Pasadena closely approximate the state-wide trends in California schools, both segregated and desegregated.” 375 F. Supp., at 1306. The fact that black student enrollment at 5 out of 32 of the regular Pasadena schools came to exceed 50% during the 4-year period from 1970 to 1974 apparently resulted from people randomly moving into, out of, and around the PUSD area. This quite normal pattern of human migration resulted in some changes in the demographics of Pasadena’s residential patterns, with resultant shifts in the racial makeup of some of the schools. But as these shifts were not attributed to any segrega-tive actions on the part of the petitioners, we think this case comes squarely within the sort of situation foreseen in Swann:
“It does not follow that the communities served by [unitary] systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.” 402 U. S., at 31-32.
It may well be that petitioners have not yet totally achieved the unitary system contemplated by this quotation from Swann. There has been, for example, dispute as to the petitioners’ compliance with those portions of the plan specifying procedures for hiring and promoting teachers and administrators. See 384 F. Supp. 846 (1974), vacated, 537 F. 2d 1031 (1976). But that does not undercut the force of the principle underlying the quoted language from Swann. In this case the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena’s public schools. No one disputes that the initial implementation of this plan accomplished that objective. That being the case, the District Court was not entitled to require the PUSD to rearrange its attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity. For having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.
At least one of the judges of the Court of Appeals expressed the view that while all of the petitioners’ contentions which we have discussed might be sound, they were barred from asserting them by their predecessors’ failure to appeal from the 1970 decree of the District Court. But this observation overlooks well-established rules governing modification of even a final decree entered by a court of equity. See Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856); United States v. Swift & Co., 286 U. S. 106 (1932); System Federation v. Wright, 364 U. S. 642 (1961). In the latter case this Court said:
“There is also no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen. Thé source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief.” Id., at 647.
Even had the District Court’s decree been unambiguous and clearly understood by the parties to mean what that court declared it to mean in 1974, the “no majority of any minority” provision would, as we have indicated previously, be contrary to the intervening decision of this Court in Swarm, supra. The ambiguity of the provision itself, and the fact that the parties to the decree interpreted it in a manner contrary to the interpretation ultimately placed upon it by the District Court, is an added factor in support of modification. The two factors taken together make a sufficiently compelling case so that such modification should have been ordered by the District Court. System Federation v. Wright, supra.
There is little real dispute among the parties with our observations thus far. Indeed, as the Government points out, each of the judges of the Court of Appeals disapproved both the District Court’s statement regarding its lifetime commitment to the “no majority of any minority” rule and the substance of that rule itself, to the extent that either indicated a continuing, rigid insistence upon some particular degree of racial balance. Brief for United States 37. The Government adds that these disapprovals were, in its view, quite proper, and it concludes they were sufficient to remove the “no majority of any minority” requirement from this case.
It is here that we disagree with the Government. Violation of an injunctive decree such as that issued by the District Court in this case can result in punishment for contempt in the form of either a fine or imprisonment. Federal Rule Civ. Proc. 65 (d) concomitantly provides that “ [e] very order granting an injunction and every restraining order shall ... be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained . . . .” Because of the rightly serious view courts have traditionally taken of violations of injunc-tive orders, and because of the severity of punishment which may be imposed for such violation, such orders must in compliance with Rule 65 be specific and reasonably detailed.
Because of related concern that outstanding injunctive orders of courts be obeyed until modified or reversed by a court having the authority to do so, this Court has held that even though the constitutionality of the Act under which the injunction issued is challenged, disobedience of such an outstanding order of a federal court subjects the violator to contempt even though his constitutional claim might be later upheld. United States v. Mine Workers, 330 U. S. 258 (1947). The Court has likewise held that a State is constitutionally free to adopt a similar rule respecting punishment as contempt of violation of injunctive orders issued by its courts. Walker v. City of Birmingham, 388 U. S. 307 (1967). In both of these cases this Court quoted its own statement in the earlier decision of Howat v. Kansas, 258 U.S. 181 (1922):
“It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.” Id., at 190.
There is necessarily a counterpart to this well-established insistence that those who are subject to the commands of an injunctive order must obey those commands, notwithstanding eminently reasonable and proper objections to the order, until it is modified or reversed. That counterpart is that when such persons heed this well-established rule and prosecute their remedy first by a motion to modify in the issuing court and then, failing there, by appeal of that court’s denial of their motion, they are entitled in a proper case to obtain a definitive disposition of their objections. Here a majority of the Court of Appeals for the Ninth Circuit in separate opinions strongly intimated that the District Court erred in refusing to amend the “no majority of any minority” provision of its order, but the Court nonetheless affirmed the order of the District Court denying in toto the motion to modify that order.
Petitioners have plainly established that they were entitled to relief from the District Court’s injunction insofar as it required them to alter school attendance zones in response to shifts in demographics within the PUSD. The order of the District Court which was affirmed by the Court of Appeals equally plainly envisioned the continuation of such a requirement. We do not think petitioners must be satisfied with what may have been the implicit assumption of the Court of Appeals that the District Court would heed the “disapproval” expressed by each member of the panel of that court in his opinion. Instead, we think petitioners were entitled on this phase of the case to a judgment of the Court of Appeals reversing the District Court with respect to its treatment of that portion of the order.
Ill
Because the case is to be returned to the Court of Appeals, that court will have an opportunity to reconsider its decision in light of our observations regarding the appropriate scope of equitable relief in this case. We thus think it unnecessary for us to consider petitioners’ other contentions: that the District Court’s 1970 injunction should in all respects be dissolved; that the District Court’s jurisdiction over the PUSD should be terminated; or that petitioners’ suggested modifications of the Pasadena Plan should be accepted as an alternative to the present plan. The record in this case reflects the situation in Pasadena as it was in 1974. At oral argument the Solicitor General discussed the Government’s belief that if, as petitioners have represented, they have complied with the District Court’s order during the intervening two years, they will probably be entitled to a lifting of the District Court’s order in its entirety. Tr. of Oral Arg. 28-31. And while any determination of compliance or noncompliance must, of course, comport with our holding today, it must also depend on factual determinations which the Court of Appeals and the District Court are in a far better position than we are to make in the first instance. Accordingly the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
So ordered.
Mr. Justice Stevens took no part in the consideration or decision of this case.
In addition to several other factors, Judge Ely cited the fact that the defendants had been found in violation of the District Court’s 1970 order as supplying evidence that the court “could rightly determine that the ‘dangers’ which induced the original determination of constitutional infringements in Pasadena have not diminished sufficiently to require modification or dissolution of the original Order.” 519 F. 2d 430, 434 (1975). Judge Chambers, concurring in the result, relied only upon the fact that petitioners had apparently not yet complied with what he viewed as the “continuing duty to homogenize” imposed upon them by the District Court’s 1970 order. Judge Chambers thought that as soon as the PUSD was brought in compliance with that order, the mandatory injunction should be terminated. Id., at 440.
Id., at 433 n. 3.
There is some disagreement whether petitioners, or their predecessors at least, understood the District Court’s order in the same manner as it was interpreted in 1974. There are some suggestions in the record that petitioners may have made some attempts to stay in compliance with the “no majority of any minority” guideline as demographic patterns in Pasadena changed. But there are no factual assessments in the record as to the understanding of the petitioners, and they have argued before us that their reading of the 1970 order was the same as that of the plaintiffs. However this factual issue might be resolved, we think petitioners were not foreclosed from challenging the District Court’s decree as interpreted and applied in 1974. See infra, at 437-438.
See 519 F. 2d, at 440 (opinion of Chambers, J.); cf. n. 1, supra.
Counsel for the original plaintiffs has urged, in the courts below and before us, that the District Court’s perpetual “no majority of any minority” requirement was valid and consistent wtih Swann, at least until the school system achieved “unitary” status in all other respects such as the hiring and promoting of teachers and administrators. Since we have concluded that the case is moot with regard to these plaintiffs, these arguments are not properly before us. It should be clear from what we have said that they have little substance.
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_numappel
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
PUBLICKER INDUSTRIES, INC. and Continental Distilling Corporation, Appellants, v. ROMAN CERAMICS CORPORATION.
No. 78-2400.
United States Court of Appeals, Third Circuit.
Argued June 4, 1979.
Decided Aug. 8, 1979.
Harold Cramer, Anthony E. Creato (argued), Jeffrey Cooper, Mesirov, Gelman, Jaffee, Cramer & Jamieson, Philadelphia, Pa., for appellants.
Meyer J. Myer (argued), Chicago, Ill., David H. H. Felix, Philadelphia, Pa., Myer New Berlin & Braude, Chicago, Ill., for appellee.
Before ADAMS and ROSENN, Circuit Judges, and LAYTON, District Judge.
Honorable Caleb R. Layton, 3rd United States District Judge for the District of Delaware, sitting by designation.
OPINION OF THE COURT
ROSENN, Circuit Judge.
In contemplation of the American Bicentennial celebration, Publicker Industries, Inc. (“Publicker”) conceived of the idea of putting four-fifths of a quart of whiskey in miniature ceramic replicas of the Liberty Bell and retailing the “patriotic product” for $19.99 each. Continental Distilling Corp. (“Continental”), Publicker’s wholly-owned subsidiary, became involved in the implementation of this idea, and Roman Ceramics Corporation (“Roman”) agreed to supply the uniquely-shaped containers at prices ranging between $6.35 and $6.55 per bottle. A snag in the plan developed when Roman discovered a similarity between 40,-000 of the bottles it had manufactured and the original design it was copying: each of the bottles, like the Liberty Bell itself, had a crack in its side rendering it unsuitable to hold liquor. Unsuccessful efforts to find a suitable disposition of these defective bottles led to a suit by Publicker and Continental against Roman in the United States District Court for the Eastern District of Pennsylvania. The district court entered judgment in favor of Roman, and Publicker and Continental appealed. Because the district court did not make certain critical findings, we will vacate the judgment and remand the case for further proceedings.
Although the design for the bottles was originally drawn in 1975 by Publicker and Roman, the actual purchase orders came from Continental. Roman had been manufacturing the bottles and billing Continental for several months when the problem arose. Roman discovered and advised Continental in January 1976 that 40,000 bottles were defective and unusable as whiskey containers. Letters were exchanged, the effect of which culminated in a dispute. Roman contended that Continental agreed to purchase the defective bottles at $2.50 each, and Continental claimed no agreement had been reached. In May, Continental suggested that Roman dispose of the bottles elsewhere, but Roman responded that there was a firm contract and billed Continental for $100,000. The bottles remained undelivered and in Roman’s possession.
In August 1976, Roman began direct negotiations with Publicker concerning the disposition of the bottles. A new agreement was reached in September 1976, under which Publicker agreed to purchase the 40,-000 defective bottles at $1.00 each and to purchase 12,000 new bottles at $6.55 each. Publicker paid Roman $40,000, but subsequently learned that approximately 1200 of the defective bottles had been sold by Roman to an outside party. Publicker viewed this as a breach of its contract with Roman justifying rescission and demanded that the $40,000 be returned. Roman refused. Thereupon, Publicker and Continental sought a judgment in this proceeding in the amount of $40,000 and a declaration that the contract to purchase 12,000 additional bottles had been rescinded.
Roman, incorporated in Delaware with its principal place of business in Illinois, moved to dismiss the suit because of lack of diversity between it and Continental. Continental has its principal place of business in Pennsylvania but is incorporated in Delaware. (Publicker is incorporated and has its principal place of business in Pennsylvania.) The district court dismissed the motion without prejudice for failure to comply with the local rule concerning notice. Rather than renew the motion, Roman chose to file an answer and counterclaim. In its answer, Roman again controverted the jurisdictional allegation, made in plaintiffs’ complaint, that Roman was incorporated in Illinois, and stated that it was incorporated in Delaware. The counterclaim averred that the plaintiffs’ original contract to purchase the bottles at $2.50 each was still valid, and that an invoice in the amount of $9,864.30 for bottles previously shipped remained unpaid. (The unpaid invoice is not in issue on this appeal.) After reduction for the $40,000 already paid, the counterclaim sought damages of $69,864.30 plus interest.
The district judge, following a bench trial, entered judgment for the defendant against both plaintiffs on the original claim and the counterclaim. In so doing, he made the following findings:
1) The September 1976 contract had been rescinded and the parties were relieved from any obligations under it.
2) The January 1976 contract was still binding on the parties.
3) Roman did not breach the January contract. by selling approximately 1200 bottles to outside parties.
4) The plaintiff corporations acted as “alter egos for each other” and could be treated interchangeably, “as one in the same.”
5) Plaintiffs were obligated to pay the price set forth in the January contract of $100,000, less $40,000 already paid, and less $3,259 received by Roman for the 1200 bottles, together with certain other adjustments.
Thu3, the court entered judgment for the defendant and against both plaintiffs in the amount of $73,047.17.
Plaintiffs then filed a motion to vacate the judgment or in the alternative to amend it, alleging in part that the lack of complete diversity required the court to dismiss the action. The trial judge vacated the judgment, dismissed Continental from the suit in all respects, and reentered the judgment in full in favor of Roman against Publicker.
Publicker and Continental filed this appeal, contending that the district court erred: 1) in failing to dismiss the suit entirely for want of complete diversity; 2) in treating Continental and Publicker as alter egos, thereby imposing liability on Publicker for the January contract; 3) in not holding that the September contract was a novation which extinguished all rights and obligations under the January agreement; 4) in not holding that Roman’s sale of 1200 bottles to outside parties permitted Publicker to rescind the contracts; and 5) in calculating damages. We affirm the court’s decision as to 1), 3) and 4) and reverse and remand for further proceedings on issues 2) and 5).
It is undisputed that the district court acted properly in dismissing Continental as a party. The court’s authority stems from Fed.R.Civ.P. 21 which provides: “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Continental was a nondiverse party and could not have remained in the lawsuit. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978).
Publicker contends, however, that a dismissal of Continental required a dismissal of the entire suit. It argues that if complete diversity is lacking, then the court has absolutely no jurisdiction over the action. We see this view of the district court’s power under Fed.R.Civ.P. 21 as too restrictive. The court may dismiss a nondiverse party in order to achieve diversity even after judgment has been entered. See Finn v. American Fire & Casualty Co., 207 F.2d 113 (5th Cir. 1953), cert. denied, 347 U.S. 912, 74 S.Ct. 476, 98 L.Ed. 1069 (1954); Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003 (E.D.Pa.1975), aff’d without opinion, 530 F.2d 966 (3d Cir. 1976). And although the district court is precluded from retaining diversity jurisdiction by dismissing a nondiverse party if that party is indispensable under Fed.R.Civ.P. 19, it has not been contended that Continental is an indispensable party with respect to the claims between Roman and Publicker.
Publicker argues next that it was improper for the district court to treat Continental and Publicker as “alter egos for each other” and “as one in the same,” and thereby to impose liability on Publicker based on the January agreement between Continental and Roman. According to Publicker, there is insufficient evidence in the record to support the district court’s application of the alter ego theory to pierce the separate corporate entities of Publicker and Continental. In addition, Publicker argues that the district court’s decision to treat Publicker and Continental interchangeably for purposes of contractual liability is inconsistent with, and contradicted by, the court’s dismissal of Continental from the lawsuit— which was necessarily predicated on the ground that Continental is a separate, dispensable party — in order to preserve diversity jurisdiction.
In delivering his oral opinion, the district judge made the following statement concerning Publicker’s liability for the January contract:
I will note for the record that thus far I have spoken of the plaintiffs interchangeably, and I did that deliberately. I rule that on the present record there is no basis for distinguishing between the two. There is nothing in the record to show that they are indeed separate entities, that they are not alter egos for each other. Because of the way they worked interchangeably throughout this transaction, I treat them as one in the same; and the finding on the counterclaim is against both plaintiffs.
Although it is not readily apparent what legal principles were relied upon by the district court in reaching its conclusion that the plaintiffs may be treated interchangeably, the foregoing statement suggests that the court may have disregarded Continental’s separate corporate existence by the application of the alter ego theory to pierce the corporate veil. This tool of equity is appropriately utilized “when the court must prevent fraud, illegality, or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability for a crime.” Zubik v. Zubik, 384 F.2d 267, 272 (3d Cir. 1967), cert. denied, 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968); accord, Chengelis v. Cenco Instruments Corp., 386 F.Supp. 862 (W.D.Pa.), aff’d without opinion, 523 F.2d 1050 (3d Cir. 1975). The burden of proof on this issue rests with the party attempting to negate the existence of a separate entity. United States v. Standard Beauty Supply Stores, Inc., 561 F.2d 774 (9th Cir. 1977).
The trial court made no findings that the circumstances normally required for application of the alter ego theory were present here. Apparently recognizing the lack of such evidence, Roman has not attempted to support this theory on appeal. In the district court, it failed to allege the perpetration of fraud, illegality, or injustice by means of Continental’s separate existence. Thus, the district court could not have disregarded Continental’s corporate form under the alter ego theory.
Moreover, even were there sufficient evidence to support a determination that Publicker and Continental are to be treated as one and the same, either under the alter ego theory or under some less precise notion that the corporations simply acted interchangeably and in disregard of their corporate separateness, it is not at all evident that that determination could coexist with the trial court’s decision to dismiss Continental and thereby preserve diversity jurisdiction. If Publicker and Continental are so intimately related to one another with respect to their dealings with Roman as to justify the imposition of liability on Publicker for Continental’s contractual undertaking, then Continental may well be a real party in interest to this suit, and might not fairly be disregarded for purposes of ascertaining whether there is diversity jurisdiction.
It is not clear completely, however, whether the district court actually relied on an alter ego theory, or whether instead it invoked the term “alter ego” loosely, for want of a more precise legal concept to convey its impression that the plaintiffs were jointly involved in the transactions leading up to the January contract with Roman and were jointly and severally obligated by it. A legal framework might be provided by the principles of agency, in that it might be concluded that Publicker and Continental created mutual agencies in one another with respect to their dealings with Roman. The underpinnings of this approach are described in Restatement (Second) of Agency § 27 (1958):
[Ajpparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal, which reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.
Under the agency theory, then, it could be argued that Continental, acting both on its own behalf and under apparent authority from Publicker, bound Publicker as well as itself to the January contract with Roman. If established, this determination would permit Roman to sue Publicker alone, since obligors that are jointly liable may be sued independently, thereby obviating a dismissal for lack of complete diversity.
The evidence which indicates that Publicker may have created a reasonable belief in Roman that Continental was acting as agent for Publicker is as follows:
1) Negotiations for the purchase of bottles were initiated in the first instance by Publicker.
2) Design of the bottle was worked out with Publicker.
3) Although the initial order arrived on Continental stationery, it was signed by George Berman, Director of Purchasing for both Publicker and Continental.
4) Additional correspondence came from both Publicker and Continental.
5) Harold Roman, President of Roman testified that he treated the plaintiff companies as one and the same and that he believed Publicker had purchased the 40,000 bottles.
However, because the district court made no findings under an agency theory and because we cannot discern any other ground upon which the district court’s conclusion that the plaintiffs were one and the same for purposes of this suit may be upheld, we are constrained to remand the case to allow the trial judge to make the necessary findings and to explain the legal underpinnings of his determination.
Publicker’s third contention is that the court erred in imposing liability under the January contract because all obligations under that agreement were discharged by the September contract. It argues that the new agreement was a novation, which has the effect of extinguishing all rights and duties under a prior contract. See Restatement of Contracts § 424 (1932). On the other hand, Roman contends that the September agreement was an accord executory which discharges the earlier contract only after performance by the parties of the new obligations. Although eschewing the use of formal legal terms, the district court apparently agreed with Roman by concluding that, “having reneged on the settlement agreement, plaintiff is bound by the original agreement? to purchase the 40,000 defective bottles at $2.50 each.”
The distinction between these two principles of novation and accord was considered in In re Kellett Aircraft Corp., 173 F.2d 689, 693 (3d Cir. 1949), where this court, quoting from Wyatt v. New York, O. & W. R. Co., 45 F.2d 705, 708 (2d Cir.) cert. denied, 283 U.S. 829, 51 S.Ct. 353, 75 L.Ed. 1442 (1930) said:
Ordinarily an executory contract constituting an accord is not a bar to an action upon the original claim; ‘satisfaction’ that is, full performance of the contract of accord, is also necessary. If the parties so intend, the contract of accord may itself be taken as a satisfaction and discharge of the original claim; but the intention must be clear, and the presumption is otherwise.
To determine whether a contract acts as a novation or an accord executory, intent of the parties is the key:
It is frequently difficult to determine whether a new agreement is a substituted contract operating as an immediate discharge, or is an accord executory the performance of which it is agreed shall operate as a further discharge. It is wholly a question of intention, to be determined by the usual processes of interpretation, implication, and construction.
6 Corbin on Contracts § 1293 at 190 (1962). See Westinghouse Electric Supply Co. v. Fidelity and Deposit Co., 560 F.2d 1109, 1113 (3d Cir. 1977); Slaughter v. Philadelphia National Bank, 417 F.2d 21, 27 (3d Cir. 1969).
Novation is an affirmative defense and when raised on a counterclaim, as here, the plaintiff has the burden of proving that the parties intended to discharge the earlier contract. See Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612, 617 (1967). A review of the events and records concerning the September agreement, however, reveals no evidence of the parties’ intention to supplant the January contract. Thus, we conclude that the district court’s holding that Publicker’s failure to perform the September agreement left the January contract in full force is not clearly erroneous.
The fourth issue raised on this appeal is that Roman’s sale of 1200 bottles to an outside party was either a material breach of contract or the basis for a claim of misrepresentation, permitting Publicker to rescind the September agreement and entitling it to a return of the $40,000 already paid to Roman.
In dismissing this contention, the district court was willing to assume that Roman had initially agreed to refrain from selling the bottles to outside parties. However, the court noted, on May 7 Continental wrote Roman and stated that “it might be advisable to look into the possibility of your own disposition at this late date, but with the reservation of checking with us first for total agreement as to whether we will take over or not.” The trial judge interpreted the letter as follows:
As far as I am concerned, the inference which is inescapable from this is twofold: No. 1, that the plaintiffs were seeking ways out of any contractual arrangement which they had with the defendant; and No. 2, they certainly did not have any strong objection to the defendant disposing of these bottles if that would reduce the plaintiffs’ exposure to any claim for breach of contract.
We do not believe that this finding of fact is clearly erroneous, and the court was therefore correct in concluding that Roman’s sale of the bottles did not relieve Publicker from its obligations, if any, under the January agreement.
Finally, Publicker challenges the district court’s calculation of damages. The district judge’s computation was as follows: 40,000 bottles at $2.50 each or $100,000, less the amount of $3,259 received by Roman for the previous sale of 1200 bottles, and $9,864.30 due on an open account, or $106,-605.30. From this sum, he deducted $40,000 previously paid, and added interest from the date of the original judgment for a final judgment in the sum of $74,142.46. Unfortunately, the court did not indicate the legal basis for its damage calculation. Roman claims, however, that the proper authority for the remedy of recovery of the original contract price can be found in U.C.C. § 2-709:
(1) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price
(a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and
(b) of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.
The statute allows an aggrieved seller to recover the contract price in any one of three instances:
(1) when the goods have been accepted by the buyer, or
(2) when the goods have been lost or damaged within a reasonable time after risk of loss had passed to the buyer, or
(3) when goods have been identified to the contract and the seller is unable to resell them.
The first two situations obviously do not apply to this case. The third would be applicable only if Roman was unable to resell the bottles at a reasonable price. But the district court made no finding on this point. The only evidence in the record relating to this issue appears to be a letter to Roman from an outside party dated December 21, 1976, offering to purchase the bottles at $.40 each for a total of $16,000. As the record now stands, we are unable to determine whether or not this would constitute a reasonable price. If $.40 per bottle is not a reasonable price and the court determines that Roman made a reasonable effort to sell the bottles or that such effort would have been unavailing, then, and only then, could Roman recover the January contract price of $2.50 per bottle. Because we are unable to make this determination, we must remand this case to allow the district court to make additional findings on this issue as well.
In conclusion, the judgment will be vacated and the case remanded to the district court to make findings on whether, in its dealings with Roman, Continental was acting as Publicker’s agent and to determine whether Publicker should be held liable under the January contract between Continental and Roman. If the court determines that Publicker is liable, then the necessary findings must be made to support the calculation of damages under the appropriate provision of the Uniform Commercial Code.
Each party shall bear its own costs.
. The district court could have sua sponte dismissed the suit or discharged Continental as a party. Ray v. Bird & Son Asset Realization Co., 519 F.2d 1081, 1082 (5th Cir. 1975); Fed.R. Civ.P. 21. Its failure to do so is especially puzzling given that,
It is . . well established that when jurisdiction depends upon diverse citizenship the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived.
Thomas v. Board of Trustees, 195 U.S. 207, 211, 25 S.Ct. 24, 25, 49 L.Ed. 160 (1904). See also Carlsberg Resources Corp. v. Cambria Sav. & Loan Ass’n, 554 F.2d 1254, 1256 (3d Cir. 1977).
. Continental has not challenged its dismissal from this action on appeal. The joint brief filed with Publicker raises issues relevant only to the judgment against Publicker. We see no reason for Continental’s participation in this appeal.
. The denial of a federal court remedy where an adequate one exists in state court would fall far short of an injustice that would permit piercing the corporate veil.
. Cf. Leach Co. v. General Sani-Can Manufacturing Corp., 393 F.2d 183, 186 (7th Cir. 1968) (court disregards separate entities without clearly specifying whether it was relying on alter ego or agency theories, or on fact that parties themselves simply disregarded their separateness).
. Cf. Miller & Lux, Inc. v. East Side Canal & Irrigation Co., 211 U.S. 293, 29 S.Ct. 111, 53 L.Ed. 189 (1908) (Court determines existence vel non of diversity jurisdiction by looking at real party in interest, not at collusively created formal party). On the rare occasions in which courts have been urged to disregard the corporate existence of a wholly owned subsidiary, by application of an alter ego, theory or otherwise, so that diversity jurisdiction may be retained over a case, they have declined to do so, primarily on policy grounds. See Glenny v. American Metal Climax, Inc., 494 F.2d 651, 654-55 (10th Cir. 1974); Lang v. Colonial Pipeline Co., 266 F.Supp. 552, 557-58 (E.D.Pa.) aff'd per curiam 383 F.2d 986 (3d Cir. 1967).
. See, e. g., Jett v. Phillips & Associates, 439 F.2d 987, 990 (10th Cir. 1971). See generally, 7 C. Wright & A. Miller, Federal Practice and Procedure § 1613 (1972).
. Even if the September contract were labeled a novation, the district court would have had the power to enforce the antecedent agreement as a restitutionary remedy. See 6 Corbin on Contracts § 1293 at 196.
. If U.C.C. § 2-709 does not apply, then U.C.C. § 2-708(1) probably would. Section 2-708(1) allows recovery for the difference between the market price at the time and place for tender and the unpaid contract price. Additional findings would have to be made by the district court in order to calculate damages under this provision.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_appel1_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
O. D. BRATTON et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. O. D. BRATTON and Dorothy Bratton, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. J. Ross HOLCOMB, Jr., Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Frank A. CONKLING and Eula W. Conkling, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. James A. HOLCOMB and Lou H. Holcomb, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Nolah D. HOLCOMB, Respondent.
Nos. 14062-14067.
United States Court of Appeals Sixth Circuit.
Oct. 31, 1960.
Lowell W. Taylor, Memphis, Tenn. (Hubert A. McBride and John J. Dog-gett, Jr., Memphis, Tenn., on the brief), for 0. D. Bratton.
Arthur I. Gould, Dept, of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, — A. F. Prescott and Arthur I. Gould, Attys., Dept, of Justice, Washington, D. C., on the brief), for Commissioner of Internal Revenue.
Before MILLER, CECIL and WEICK, Circuit Judges.
PER CURIAM.
The controversy here involves the tax consequences of distributions made to the shareholder-creditors of a closed corporation, upon its dissolution and liquidation. The shareholders were creditors in varying amounts for salaries and commissions owing to them by the corporation.
In the liquidation, the corporation undertook to distribute assets to its shareholders for their capital interests prior to the satisfaction of their claims as creditors. The corporation then handled the shareholders’ claims as creditors by selling its mill and related equipment and certain inventories in exchange for long-term, instalment, negotiable, interest bearing promissory notes of the purchasers secured by a mortgage on the property sold by the corporation to them. The corporation transferred the notes and mortgage to a bank with authority to collect the payments on the notes and make distribution to the shareholder-creditors. The purchasers assumed the indebtedness owing to the shareholder-creditors, but agreed to pay it only out of the instalments due on the notes. The shareholder-creditors released the corporation from said indebtedness and agreed to look to the notes secured by the mortgage.
The real dispute, between the parties, relates to the manner in which the notes should be treated for tax purposes. Taxpayers claim that the notes should not be considered as a distribution in cash and that they should be taxed only on the actual instalments paid on the notes as and when received by them from the bank. Taxpayers insist that the notes were never delivered to them and that they have neither title to or possession of the notes.
The Commissioner on the other hand maintains that the notes should be taxed at their full face value in 1952 at the time when they were transferred to the bank.
The Tax Court determined that the transfer of the notes to the bank was in reality for the benefit of the taxpayers and that the bank in collecting the in-stalment payments and distributing them to taxpayers was acting as their agent. The Tax Court further held that the notes should be taxed at their full face value at the time of the assignment to the bank since there was no proof that their fair value was any less, citing Loyer v. Commissioner, 6 Cir., 1952, 199 F.2d 452. The Tax Court further held that the value of the notes represented ordinary income to the taxpayers to the extent of the corporate indebtedness owing to them, and that any sums received in excess thereof were taxable as capital gains to the extent that they exceeded the basis for their shares of stock.
We think there was substantial evidence to support the findings of fact and conclusions of the Tax Court. They are binding on this Court unless clearly erroneous. Commissioner of Internal Revenue v. Spermacet Whaling & Shipping Co., 6 Cir., 281 F.2d 646.
The decisions of the Tax Court may be justified on another ground. Where the note of a third person is accepted by a creditor, it ordinarily operates as a payment and discharge of the indebtedness. Southworth v. Thompson, 1872, 57 Tenn. 10, 17; Union Bank of Tennessee v. Smiser, 1853, 33 Tenn. 501. Our case is stronger because the shareholder-creditors here actually released the corporation and agreed to look solely to the notes for the payment of their indebtedness. There was a substitution of a new debtor in the place of an old one and this constituted a novation. Russell v. Centers, 153 Ky. 469, 473, 155 S. W. 1149; Crabb et al. v. Cole, 19 Tenn. App. 201, 84 S.W.2d 597.
The decisions of the Tax Court are affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_respond2_1_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
In re COHEN et al.
(Circuit Court of Appeals, Third Circuit.
February 19, 1926.
Rehearing Denied March 20,1926.)
No. 3418.
Bankruptcy <s=>467 — Master’s failure to make findings held not reviewablo on appeal from valid order setting aside order granting discharge improperly obtained.
Failure of master, to whom, bankrupt’s offer of composition had been referred, to make findings of fact which creditor desired to use in opposition to discharge, held not reviewable on appeal from concededly valid order setting aside order improperly obtained granting discharge.
Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.
In the matter of the bankruptcy of Abraham S. Cohen and another, individually and as copartners doing business as the Army & Navy Salvage Company. From an order accompanying the disposition of contempt proceedings against H. H. Weinberger and others, attorneys for bankrupts, vacating an order granting discharge which had been improperly obtained, the Endicott-Johnson Corporation, a creditor, appeals.
Appeal dismissed.
Harold Remington, of New York City, for appellant.
Furst & Furst, of Newark, N. J., for appellee Van Cleve.
Collins & Corbin and Harry E. Walburg, all of Jersey City, N. J., for appellees Weinberger.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
At the hearing, it was plain that this motion to dismiss the appeal could be allowed on formal defects in the appellate proceeding. We endeavored, however, to ascertain the bearing of the motion on the highly confused record. In doing this, we heard the entire case on the merits. Desiring to quiet the appellant’s concern, we shall so decide it.
A statement of the facts will, we think, dispose of the ease. Somewhat disentangled, they are these:
Cohen and Janes, bankrupts, made an offer of composition which the court referred to a special master for report on its allowance or disallowance. With an eye to future proceedings for discharge and with the purpose of developing in the composition proceedings evidence for use in the discharge proceedings — on the theory that what is a bar to composition is equally a bar to discharge — a creditor (the appellant) opposed the confirmation. The master reported in favor of confirmation but in doing so he did not make findings which the creditor desired for future use. Before the report was confirmed the creditor obtained from the court an order remanding the reference to the master with directions to complete his work by making findings. While the matter was pending, the court by order permitted the bankrupts to withdraw their offer of composition. Their estates were then settled and distribution made by final dividends. The controversy, however, went on. The court set aside its order permitting the withdrawal of the offer of composition but made an order confirming in part a later report of the master denying composition. Then the bankrupts filed a petition for discharge. This was opposed by the creditor who, still desiring fact findings on the evidence produced in the composition proceedings for use in the discharge proceedings, moved for an order to make the master find facts. The court made such an order, staying the discharge proceedings. Notwithstanding one judge of the court had ordered a stay of the discharge proceedings pending the completion of the composition proceedings, the master made a report recommending the .discharge, and counsel for the bankrupts — innocently, they say — went to another judge and obtained from him an order confirming the master’s report and granting the discharge. In contempt proceedings which followed, these counsel were first adjudged guilty and then exonerated. Accompanying the disposition of the contempt proceedings the court entered an order vacating the order of discharge which had been thus improperly en tered. From the last order this appeal was taken. .
. It should be noted that the appellant’s action, preliminary and final, was all the time in opposition to the bankrupts’ discharge. Yet by the order vacating the order allowing their discharge the proceeding for discharge was opened, and the appellant got what it wanted, and what it needed, in order effectively to oppose the discharge. We discover no error in this order appealed from —indeed, none is charged. Reversal is distinctly not wanted. The matter of which the appellant complains is not the order appealed from but the refusal of the master to finish the composition proceedings and furnish it' with the evidence it desires for use against the discharge. The order of reference to the master, which is truly interlocutory, and his action thereunder are matters which have not been brought before us by this appeal; nor can they be reached through appeal from a coneededly valid order. They are still in the bankruptcy court where they remain to be disposed of by that court — wholly without prejudice from the order we now make that the appeal be
Dismissed.
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:
|
sc_jurisdiction
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
GRISWOLD et al. v. CONNECTICUT.
No. 496.
Argued March 29-30, 1965.
Decided June 7, 1965.
Thomas I. Emerson argued the cause for appellants. With him on the briefs was Catherine O. Roraback.
Joseph B. Clark argued the cause for appellee. With him on the brief was Julius Maretz.
Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour and Eleanor M. Fox for Dr. John M. Adams et al.; by Morris L. Ernst, Harriet F. Pilpel and Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.; by Alfred L. Scanlon for the Catholic Council on Civil Liberties, and by Rhoda H. Karpatkin, Melvin L. Wulf and Jerome E. Caplan for the American Civil Liberties Union et al.
Mr. Justice Douglas
delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven — a center open and operating from November 1 to November 10, 1961, when appellants were arrested.
They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.
The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54 — 196 of the General Statutes of Connecticut (1958 rev.). The former provides:
“Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”
Section 54-196 provides:
“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”
The appellants were found guilty as accessories and fined .$100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme Court of' Errors affirmed that judgment. 151 Conn. 544, 200 A. 2d 479. We noted probable jurisdiction. 379 U. S. 926.
We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship. Tileston v. Ullman, 318 U. S. 44, is different, for there the plaintiff seeking to represent others asked for a declaratory judgment. In that situation we thought that the requirements of standing should be strict, lest the standards of “case or controversy” in Article III of the Constitution become blurred. Here those doubts are removed-by reason of a criminal conviction for serving married couples in violation of an aiding-and-abetting statute. Certainly the accessory should have standing to assert that the pífense which he is charged with assisting is not, or cannot constitutionally be, a crime.
This case is more akin to Truax v. Raich, 239 U. S. 33, where an employee was permitted to assert the rights of his employer; to Pierce v. Society of Sisters, 268 U. S. 610, where the owners of private schools were entitled to assert the rights of potential pupils and their parents; and to Barrows v. Jackson, 346 U. S. 249, where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the covenantors because she had conveyed her property to Negroes, was allowed to raise the issue that enforcement of the covenant violated the rights of prospective Negro purchasers to equal protection, although no Negro was a party to the suit. And see Meyer v. Nebraska, 262 U. S. 390; Adler v. Board of Education, 342 U. S. 485; NAACP v. Alabama, 357 U. S. 449; NAACP v. Button, 371 U. S. 415. The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.
Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U. S. 183, 195) — indeed the freedom of the entire university community. Sweezy v. New Hampshire, 354 U. S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U. S. 109, 112; Baggett v. Bullitt, 377 U. S. 360, 369. Without those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
In NAACP v. Alabama, 357 U. S. 449, 462, we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid “as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.” Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U. S. 415, 430-431. In Schware v. Board of Bar Examiners, 353 U. S. 232, we held'it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man’s “association with that Party” was not shown to be “anything more than a political faith in a political party” (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.
Those cases involved more than the “right of assembly” — a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U. S. 353. The right of “association,” like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 516-622 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 630, as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred in Mapp v. Ohio, 367 U. S. 643, 656, to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev.- 216 (1960).
We have had many controversies over these penumbral rights of “privacy and repose.” See, e. g., Breard v. Alexandria, 341 U. S. 622, 626, 644; Public Utilities Comm’n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U. S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The’ very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Reversed.
The Court said in full about this right of privacy:
“The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.” 116 ü. S., at 630.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
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.
PETERS v. HOBBY et al.
No. 376.
Argued April 19, 1955.
Decided June 6, 1955.
Thurman Arnold and Paul A. Porter argued the cause for petitioner. With them on the brief were Abe Fortas and Milton V. Freeman.
Assistant Attorney General Burger argued the cause for respondents. With him on the brief were Attorney General Brownell, Assistant Attorney General Tompkins, Assistant Attorney General Rankin, Samuel D. Slade and Benjamin Forman.
Briefs of amici curiae urging reversal were filed by Joseph A. Fanelli and Leo F. Lightner for the Engineers and Scientists of America; Herbert Monte Levy and Morris L. Ernst for the American Civil Liberties Union; and Arthur J. Goldberg, Thomas E. Harris and Joseph L. Ranh, Jr. for the Congress of Industrial Organizations.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This action was instituted by petitioner in the District Court for the District of Columbia. The principal relief sought is a declaration that petitioner’s removal and debarment from federal employment were invalid. Prior to trial, the District Court granted the respondents’ motion for judgment on the pleadings. The judgment was affirmed, one judge dissenting, by the Court of Appeals for the District of Columbia Circuit, relying on its decision in Bailey v. Richardson, 86 U. S. App. D. C. 248, 182 P. 2d 46, sustained here by an equally divided vote, 341 U. S. 918. We granted certiorari, 348 U. S. 882, because the case appeared to present the same constitutional question left unresolved by this Court’s action in Bailey v. Richardson, supra.
I.
The basic facts are undisputed. Petitioner is a professor of medicine, specializing in the study of metabolism, at Yale University. For several years prior to 1953, because of his eminence in the field of medical science, he was employed as a Special Consultant in the United States Public Health Service of the Federal Security Agency. On April 10, 1953, the functions of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare, headed by respondent Hobby. Petitioner’s duties required his presence in Washington from four to ten days each year, when called upon by the Surgeon General, to render advice concerning proposals to grant federal assistance to various medical research institutions. This work was not of a confidential or sensitive character and did not entail access to classified material. Petitioner was compensated at a specified per diem rate for days actually worked.
At the time of his removal, petitioner was employed under an appointment expiring on December 31, 1953.
On March 21, 1947, Executive Order 9835 was issued by the President. It provided that the head of each department and agency in the Executive Branch of the Government “shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency.” Toward that end, the Order directed the establishment within each department or agency of one or more loyalty boards “for the purpose of hearing loyalty cases arising within such department or agency and making recommendations with respect to the removal of any officer or employee ... on grounds relating to loyalty . . . .” The order also provided for the establishment of a central Loyalty Review Board in the Civil Service Commission. The Board, in addition to various supervisory functions, was authorized “to review cases involving persons recommended for dismissal ... by the loyalty board of any department or agency . . . The standard for removal prescribed by the Order was whether, “on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.” This standard was amended on April 28, 1951. As amended, the standard to be applied was whether, “on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States.”
In January 1949, Joseph E. McElvain, Chairman of the Board of Inquiry on Employee Loyalty of the Federal Security Agency, notified petitioner that derogatory information relating to his loyalty had been received. Accompanying McElvain’s letter was a detailed interrogatory relating to petitioner’s associations and affiliations. Petitioner promptly completed the form and returned it. Shortly thereafter, McElvain advised petitioner that the Agency Board had determined that no reasonable grounds existed for belief that petitioner was disloyal.
In May 1951, following the amendment of the removal standard prescribed by Executive Order 9835, the Executive Secretary of the Loyalty Review Board advised McElvain that petitioner’s case should be reopened and readjudicated pursuant to the amended standard. Three months later, the Acting Chairman of the Loyalty Review Board informed McElvain that a panel of the Loyalty Review Board had considered petitioner’s case and had recommended that it be remanded to the Agency Board for a hearing. Acting on the Loyalty Review Board’s recommendation, McElvain sent petitioner a letter of charges. Sixteen charges were specified, relating to alleged membership in the Communist Party, sponsorship of certain petitions, affiliation with various organizations, and alleged association with Communists and Communist sympathizers. In his reply, made under oath, petitioner denied that he had ever been a member of the Communist Party and set forth information concerning the other charges.
On April 1 and 2, 1952, the Agency Board conducted a hearing on petitioner’s case in New Haven, Connecticut. The sources of the information as to the facts bearing on the charges were not identified or made available to petitioner’s counsel for cross-examination. The identity of one or more of the informants furnishing such information, but not of all the informants, was known to the Board. The only evidence adduced at the hearing was presented by petitioner. He testified under oath that he had never been a member of the Communist Party and also testified concerning the other charges against him. He did not refuse to answer any question directed to him. Petitioner’s testimony was supported by the testimony of eighteen other witnesses and the affidavits and statements of some forty additional persons. On May 23, 1952, McElvain notified petitioner that the Agency Board had determined that, on all the evidence, there was no reasonable doubt as to petitioner’s loyalty.
Thereafter, on April 6, 1953, petitioner was advised by the Loyalty Review Board that it had determined to conduct a “post-audit” of the Agency Board’s determination and, to this end, “hold a hearing and reach its own decision.” The hearing was held on May 12, 1953, in New Haven, before a panel of the Board consisting of respondents Hessey, Amen, and King. Once again, as at the previous hearing, the only evidence adduced was presented by petitioner. In his own testimony, petitioner denied membership in the Communist Party, discussed his political beliefs and his motives for engaging in the activities and associations which were the subject of the charges, and answered all questions put to him by the Board. In support of petitioner’s testimony, five witnesses stated their long acquaintance with petitioner and their firm conviction of petitioner’s loyalty. In addition to this evidence, the record before the Board contained information supplied by informants whose identity was not disclosed to petitioner. The identity of one or more, but not all, of these informants was known to the Board. The information given by such informants had not been given under oath. The record also contained the evidence adduced by petitioner at the previous hearing. On this record, the Board determined that “on all the evidence, there is a reasonable doubt as to Dr. Peters’ loyalty to the Government of the United States.”
By letter of May 22, 1953, the Chairman of the Board advised petitioner of the Board’s finding. The letter further stated that respondent Hobby had been notified of the decision and that petitioner had “been barred from the Federal service for a period of three years from May 18, 1953, and any and all pending applications or existing eligibilities are cancelled.” The order of debarment was made by the Board on behalf of the Civil Service Commission, composed of respondents Young, Moore, and Lawton. Following his removal and after an unsuccessful attempt to obtain a rehearing, petitioner brought the instant suit, naming each of the respondents as a defendant.
II.
In his complaint, petitioner contends that the action taken against him was “in violation of Executive Order 9835 and the Constitution of the United States . . . .” In support of his contention that the action violated the Executive Order, he makes the allegation, among others, that the Loyalty Review Board “exercised power beyond its power 'to make advisory recommendations ... to the head of the . . . agency’, as defined by Executive Order 9835, Part III, § 1a . . . .” On the constitutional level, petitioner complains chiefly of the denial of any opportunity to confront and cross-examine his secret accusers. He alleges that his removal and debarment deprived him “of liberty and property without due process of law in that they branded him as a person disloyal to his country, arbitrarily, without basis in fact, and without a fair procedure and hearing.” In addition, he alleges that “The imposition of the penalty of ineligibility for government service constituted a violation of the prohibition against bills of attainder and ex post facto laws by punishing the plaintiff by declaring him ineligible to serve the Government without a judicial trial or a fair administrative hearing . . . .” Finally, petitioner alleges that his removal and debarment, solely on the basis of his political opinions, violated his right to freedom of speech.
In this Court, petitioner urges us to decide the case on the constitutional issues. These issues, if reached by the Court, would obviously present serious and far-reaching problems in reconciling fundamental constitutional guarantees with the procedures used to determine the loyalty of government personnel. Compare Wieman v. Updegraff, 344 U. S. 183; United States v. Lovett, 328 U. S. 303; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123. And note this Court’s division in Bailey v. Richardson, supra. We find, however, that the case can be decided without reaching the constitutional issues.
From a very early date, this Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 136. Applying this rule to the instant case, we must at the outset determine whether petitioner’s removal and debarment were effected in accord with Executive Order 9835. On consideration of this question, we conclude that the Loyalty Review Board’s action was so patently in violation of the Executive Order — in fact, beyond the Board’s delegated jurisdiction under the Order — that the constitutionality of the Order itself does not come into issue.
The power of the Loyalty Review Board to adjudicate individual cases is set forth specifically in § 1a of Part III of the Order:
“The Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. Such cases may be referred to the Board either by the employing department or agency, or by the officer or employee concerned.”
Similarly, § 3 of Part II, which prescribes the procedures to be followed in loyalty cases under the Order, provides:
“A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency . . . and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission’s Loyalty Review Board, hereinafter provided for, for an advisory recommendation.”
The authority thus conferred on the Loyalty Review Board was limited to “cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency . . . .” And, even as to these cases, the Loyalty Review Board was denied any power to undertake review on its own motion ; only the employee recommended for dismissal, or his department or agency, could refer such a case to the Loyalty Review Board.
In petitioner's case, the Board failed to respect either of these limitations. Petitioner had been twice cleared by the Agency Board and hence did not fall in the category of “persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency.” Moreover, petitioner’s case was never referred to the Loyalty Review Board by petitioner or the Agency. Instead, the Loyalty Review Board, acting solely on its own motion, undertook to “hold a hearing and reach its own decision.” On both grounds, the Board’s action was plainly beyond its jurisdiction unless such action was authorized by some other provision in the Order.
Section 1 of Part III also provides :
“b. The Board shall make rules and regulations, not inconsistent with the provisions of this order, deemed necessary to implement statutes and Executive orders relating to employee loyalty.
“c. The Loyalty Review Board shall also:
“(1) Advise all departments and agencies on all problems relating to employee loyalty.
“(2) Disseminate information pertinent to employee loyalty programs.
“(3) Coordinate the employee loyalty policies and procedures of the several departments and agencies.
“(4) Make reports and submit recommendations to the Civil Service Commission for transmission to the President from time to time as may be necessary to the maintenance of the employee loyalty program.”
Acting under subsection (b), the Board promulgated detailed regulations, effective December 14, 1947, elaborating its powers under the Order. The regulations distinguished between two types of proceedings in individual cases. The first dealt with appeals from adverse decisions. The second, described in Regulation 14, claimed for the Board a very different function. As amended on January 22, 1952, Regulation 14 provided:
“Post-audit and review oj files, (a) The Board, or an executive committee of the Board, shall, as deemed necessary from time to time, cause post-audits to be made of the files on loyalty cases decided by the employing department or agency, or by a regional loyalty board.
“(b) The Board or an executive committee of the Board, or a duly constituted panel of the Board, shall have the right, in its discretion to call up for review any case decided by any department or agency loyalty board or regional loyalty board, or by any head of an employing department or agency, even though no appeal has been taken. Any such review shall be made by a panel of the Board, and the panel, whether or not a hearing has been held in the case, may affirm the procedural method followed and the action taken, or remand the case with appropriate instructions to the agency or regional loyalty board concerned for hearing or for such further action or procedure as the panel may determine.
“(c) If a panel reviews a record on post-audit and reaches the conclusion that the determination made below does not fully recognize that it is of ‘vital importance’ as set forth in Executive Order 9835 ‘that persons employed in the Federal service be of complete and unswerving loyalty to the United States/ then the panel may call up the case for a hearing, and after such hearing may affirm or reverse the original determination or decision. Nevertheless, it must always be remembered that while it is important that maximum protection be afforded the United States against infiltration of disloyal persons into the ranks of its employees, equal protection must be afforded loyal.employees from unfounded accusations of disloyalty.”
In undertaking to “hold a hearing and reach its own decision” in petitioner’s case, the Board relied on Regulation 14 as the source of its authority.
This regulation, however, is valid only if it is “not inconsistent with the provisions of this order.” The Board’s “post-audit” function, when used to survey the operation of the loyalty program and to insure a uniformity of procedures in the various loyalty boards, might well be justified under the Board’s powers to “Advise all departments and agencies on all problems relating to employee loyalty” and “Coordinate the employee loyalty policies and procedures of the several departments and agencies.” But the regulation did not restrict the “post-audit” function to advice and coordination. Rather, it purported to allow the Board “to call up for review any case . . . even though no appeal has been taken” and to hold a new hearing and “after such hearing [to] affirm or reverse the original determination or decision.” The Board thus sought to do by regulation precisely what it was not permitted to do under the Order. Although the Order limited the Board’s jurisdiction to appeals from adverse rulings, the regulation asserted authority over appeals from favorable rulings as well; and although the Order limited the Board’s jurisdiction to appeals referred to the Board by the employee or his department or agency, the regulation asserted authority in the Board to adjudicate individual cases on its own motion. To this extent the regulation must fall. See, e. g., Addison v. Holly Hill Fruit Products, 322 U. S. 607, 616-618, and Federal Communications Commission v. American Broadcasting Co., 347 U. S. 284, 296-297.
Our interpretation of the language of the Order is confirmed by The Report of the President’s Temporary Commission on Employee Loyalty, released by the President on March 22, 1947, simultaneously with the Order. Four months before, the Commission had been established “to inquire into the standards, procedures, and organizational provisions for (a) the investigation of persons who are employed by the United States Government or are applicants for such employment, and (b) the removal or disqualification from employment of any disloyal or subversive person.” In conducting its investigation, the Commission sought suggestions from 50 selected government agencies. The replies revealed general agreement “that the employing agency be responsible for the removal of its own employees.” But a substantial number of the replies indicated:
“(1) that there should be established an independent over-all centralized authority acting solely for and on behalf of the President in the matter of the removal of disloyal employees; or (2) that the original hearing in loyalty cases should be within the employing agency, subject to a right of appeal to a centralized agency established with a power to review de novo; or (3) that the overall agency be established with advisory powers only.”
Of these three proposals, the first was flatly rejected by the Commission, which instead urged the establishment of a centralized agency combining elements of the second and third. The Commission thought it “imperative that the head of each department or agency be solely responsible for his own loyalty program.” On the other hand, “so that the loyalty procedures operative in each of the departments and agencies may be properly coordinated . . . ,” the Commission recognized “that a central review board should be created with definite advisory responsibilities in connection with the loyalty program.” These “advisory responsibilities” were envisaged as “similar to those of a clearing house.” But, in addition, the board was to be authorized to review decisions adverse to employees, when referred to the board by the employee or the employing agency. Nowhere in the report was it even remotely suggested that the board was to have general jurisdiction to adjudicate individual cases; on the contrary, as already noted, the Commission expressly disapproved such a proposal. The Commission’s recommendations, with only slight changes in language, were adopted in the provisions of the Order designating the functions of the Loyalty Review Board.
While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board’s review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a verdict of guilty is appealable while a verdict of acquittal is not. This safeguard was one of the few, and perhaps one of the most important, afforded an accused employee under the Order. Its effect was to leave the initial determination of his loyalty to his co-workers in the department — to his peers, as it were — who knew most about his character and his actions and his duties. He was thus assured that his fate would not be decided by political appointees who perhaps might be more vulnerable to the pressures of heated public opinion. To sanction the abrogation of this safeguard through Regulation 14, in the face of the Order’s language and the Commission’s report, would be to sanction administrative lawlessness. Agencies, whether created by statute or Executive Order, must of course be free to give reasonable scope to the terms conferring their authority. But they are not free to ignore plain limitations on that authority. Compare United States v. Wickersham, 201 U. S. 390, 398.
It is urged, however, that the President’s failure to express his disapproval of Regulation 14 must be deemed to constitute acquiescence in it. From this, it is contended that the President thus impliedly expanded the Loyalty Review Board’s powers under the Order. We cannot indulge in such fanciful speculation. Nothing short of explicit Presidential action could justify a conclusion that the limitations on the Board’s powers had been eliminated. No such action by the President has been brought to our attention. There is, in fact, no evidence that the President even knew of the Board’s practice prior to April 27, 1953, three weeks after the Board had notified petitioner of its intention to “hold a hearing and reach its own decision.” And knowledge of the practice can hardly be imputed to him in view of the relatively small number of cases — only 20 — in which the Board reversed favorable determinations over its 6-year life. On April 27, 1953, the President issued Executive Order 10450, revoking Executive Order 9835 and establishing a new loyalty program. Executive Order 10450 by its own terms did not take effect until 30 days later on May 27, 1953. Although petitioner’s case was heard and determined by the Loyalty Review Board during this 30-day period and hence was not subject to Executive Order 10450, the Government contends that § 11 evidences knowledge and approval of Regulation 14. Section 11, however, did no more than recognize that cases under Regulation 14 might be pending on the effective date and authorize their determination thereafter. And, even as to these cases, § 11 did not authorize the Board to recommend dismissal; at most the Board could remand the cases to the departments or agencies for reconsideration. With respect to cases determined prior to the effective date — such as petitioner’s — § 11 surely affords no basis for divining a Presidential intention to authorize the Board to disregard its previously, defined jurisdictional boundaries. Particularly is this so where, as here, substantial rights affecting the lives and property of citizens are at stake. This Court has recognized that “a badge of infamy” attaches to a public employee found disloyal. Wieman v. Updegraff, 344 U. S. 183, 191. The power asserted by the Board to impose such a badge on petitioner cannot be supported on so tenuous a theory as that pressed upon us.
Nor was the adjudication of petitioner’s case, on its own motion and despite a favorable determination by the Agency Board, the only unwarranted assumption of power by the Loyalty Review Board. In cancelling petitioner’s eligibility from “the Federal service” for a period of three years, the Board purported to act under Civil Service Rule V, § 5.101 (a), which bars an employee from “the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty . . . .” The Board’s order of debarment, however, was not limited to “the competitive service” but extended to all federal employ-merit. And although such a “final determination” could be made only by the employing agency, the Board did not wait for respondent Hobby to act on its recommendation. Petitioner’s debarment was made effective on May 18,1953, four days before the Chairman of the Board wrote petitioner of the Board’s determination and nearly four weeks before the Department took action to remove petitioner from his position. The Board’s haste can be understood only in terms of its announced intention to deprive agencies of all discretion to determine whether the Board’s recommendations should be accepted.
IV.
There only remains for consideration the question of relief. Initially petitioner is entitled to a declaratory judgment that his removal and debarment were invalid. He is further entitled to an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board’s finding that there is a reasonable doubt as to petitioner’s loyalty and to expunge from its records any ruling that petitioner is barred from federal employment by reason of that finding. His prayer for reinstatement, however, cannot be granted, since it appears that the term of petitioner’s appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds.
The judgment below is reversed and the cause is remanded to the District Court for entry of a decree in conformity with this opinion.
Reversed.
12 Fed. Reg. 1935.
Executive Order 10241,16 Fed. Reg. 3690.
Authority for such action was purportedly based on Regulation 14 of the regulations of the Loyalty Review Board. 17 Fed. Reg. 631.
Three of the five — a former President of Yale University, a former dean of the Yale Medical School, and a federal circuit judge — had given similar testimony at the previous hearing.
Authority for the order of debarment was purportedly based on Civil Service Rule V, § 5.101 (a), 5 CFR (1954 Supp.) § 5.101 (a).
The question of the Board's jurisdiction was, on request of the Court, argued and briefed. Compare Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 132.
13 Fed. Reg. 253 et seq.
Id., at 255, 5 CFR § 210.9.
13 Fed. Reg. 255.
17 Fed. Reg. 631. Regulation 14 had previously been amended on December 17, 1948. 13 Fed. Reg. 9366, 5 CFR § 210.14.
Executive Order 9806, 11 Fed. Reg. 13863. The Commission was composed of officials of the Civil Service Commission and the Departments of Justice, State, Treasury, War, and Navy.
The Report of the President’s Temporary Commission on Employee Loyalty (1947) 14.
Id., at 15.
Id., at 26.
Id., at 27.
Id., at 26.
Id., at 35-36.
See Bontecou, The Federal Loyalty-Security Program (1953), 29.
See the Commission’s report, supra, note 12, at 30:
"The standards must be specific enough to assure that innocent employees will not fall within the purview of the disloyalty criteria. Every mature consideration was invoked by the Commission to afford maximum protection to the government from disloyal employees while safeguarding the individual employee with a maximum protection from ill-advised accusations of disloyalty.”
As of June 30, 1953, the Board had undertaken in only 58 cases to "hold a hearing and reach its own decision” despite a favorable determination below. Annual Reports of the Civil Service Commission: 1948 (p. 18), 1949 (p. 37), 1950 (pp. 33-34), 1951 (p. 36), 1952 (p. 56), 1953 (p. 31). Of these 58 cases, 20 resulted in reversal of the favorable determination. 1953 Report, p. 31, n. 1. Of these 20 cases, 12 — including petitioner’s — arose in the fiscal year immediately preceding June 30, 1953,. Id., at 31. In the remaining 38 cases — those in which the Board did not reverse the favorable determination — either the Board affirmed the favorable determination or the employee resigned prior to the scheduled hearing. Thus in the 1953 fiscal year, of the 22 hearings scheduled, 8 resulted in affirmance and 2 were cancelled because of resignation. Ibid.
18 Fed. Reg. 2489.
Section 11 provides in pertinent part:
“On and after the effective date of this order the Loyalty Review Board established by Executive Order No. 9835 of March 21, 1947, shall not accept agency findings for review, upon appeal or otherwise. Appeals pending before the Loyalty Review Board on such date shall be heard to final determination in accordance with the provisions of the said Executive Order No. 9835, as amended. Agency determinations favorable to the officer or employee concerned pending before the Loyalty Review Board on such date shall be acted upon by such Board, and whenever the Board is not in agreement with such favorable determination the case shall be remanded to the department or agency concerned for determination in accordance with the standards and procedures established pursuant to this order.”
Italics added. 5 CFR (1954 Supp.) §5.101 (a).
Approximately 15% of all federal employees are excepted from “the competitive service.” 1954 Annual Report, United States Civil Service Commission, p. 10. Petitioner himself was not employed in “the competitive service.” His position was classified in “Schedule A,” an exempt category. 5 CFR §6.101 (n); 5 CFR §6.1 (d).
On December 17, 1948, the Board issued the following directive, entitled “Legal effect of advisory recommendations,” to the departments and agencies covered by the Order:
“The President expects that loyalty policies, procedures, and standards will be uniformly applied in the adjudication of loyalty cases by the several agencies, and the responsibility for coordinating the program and assuring uniformity has been placed in the Loyalty Review Board. The recommendations of the Civil Service Commission in cases of employees covered by section 14 of the Veterans’ Preference Act of 1944 are mandatory, and the loyalty of persons not covered by section 14 should be judged by the same standards. Therefore, if uniformity is to be attained it is necessary that the head of an agency follow the recommendation of the Loyalty Review Board in all cases.” (Italics added.)
13 Fed. Reg. 9372, 5 CFR § 220.4 (d). See Bontecou, The Federal Loyalty-Security Program (1953), 54-55. Compare Kutcher v. Gray, 91 U. S. App. D. C. 266, 199 F. 2d 783.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
sc_authoritydecision
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
No. 394.
In re Levy.
Argued March 31, 1955.
Decided April 4, 1955.
Bernard A. Golding argued the cause for petitioner.
Leroy Denman Moody filed a brief for the Houston Bar Association, as amicus curiae, urging affirmance.
Certiorari, 348 U. S. 887, to the United States Court of Appeals for the Fifth Circuit.
Per Curiam:
The record in this case discloses no sufficient grounds for the failure and refusal of the District Court to grant petitioner’s application for admission to the bar of that Court. The judgment of the Court of Appeals is accordingly reversed with direction to remand the cause to the District Court for appropriate action in accordance with this order.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_const1
|
101
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Lewis Leonard SIMPSON, Defendant-Appellant.
No. 77-1108.
United States Court of Appeals, Seventh Circuit.
Argued June 6, 1977.
Decided July 29, 1977.
Rehearing Denied Sept. 30, 1977.
Richard Kammen, Indianapolis, Ind., for defendant-appellant.
James B. Young, U.S. Atty., John L. Hudgins, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.
Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and DECKER, District Judge.
The Honorable "Bernard M. Decker, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation.
TONE, Circuit Judge.-
Defendant Simpson used the citizens band radio transmitter in his home to broadcast explicit references to sexual activities, descriptions of sexual and excretory organs, and abusive epithets directed to other radio operators with whom he was communicating, all in street vernacular. His broadcasts were received not only on citizens band radio but on AM radio, television, and telephones. We must decide whether he was properly convicted of violating 18 U.S.C. § 1464, which makes it an offense to “utters . . . obscene, indecent, or profane language by means of radio communication,” when the jury found his language was “indecent” but not “obscene.” (The court ruled that “profanity” was not involved.)
The CB radio transmitter was licensed to Simpson’s former wife, who, although divorced from him, had lived in his home until about three months before he made the first of a series of transmissions, only one of which was the subject of the § 1464 charge. Both he and she used the transmitter while they lived together, and there is no evidence that she had ever forbidden him to use it. The second issue in this case is whether he was properly convicted of knowingly and wilfully broadcasting without a license in violation of 47 U.S.C. §§ 301 and 501.
Simpson was sentenced to imprisonment for one year on the § 1464 count and six months, to be served concurrently with the one year, on each of six § 501 counts.
I.
The District Court withdrew from the jury the issue of whether the language was profane, submitting forms of verdict which permitted them to decide the issues of obscenity and indecency, as defined by the court, separately. The jury’s determination in its guilty verdict that the broadcast was “indecent” but not “obscene” requires us to decide whether those two words, as used in the statute, have different meanings.
In his instructions to the jury the district judge first defined “obscene” in accordance with Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and then defined “indecent.” The only difference between the two definitions was that the first element of the Miller definition, “appeal to the prurient interest in sex,” 413 U.S. at 24, 93 S.Ct. at 2615, was omitted in the definition of indecent.
Given the ordinary meaning of the words in the phrase “obscene, indecent, or profane,” the disjunctive “or,” the presumption against redundancy, and the apparent purpose of the provision, which was to make radio broadcasts acceptable in the home, it was not unreasonable for the District Court to impute to Congress an intent to use “indecent” in the sense stated in the instruction. Section 1464, however, must be interpreted in the light of its statutory surroundings and the history of judicial interpretation of the word “indecent” in other similar federal statutes, which apparently were not called to the attention of the district judge.
Section 1464, which -is entitled, “Broadcasting obscene language,” appears with four other sections in Chapter 71 of Title 18 of the United States Code, which is entitled, “Obscenity.” The other four sections prohibit, in the words of their titles, “Mailing obscene or crime-inciting matter” (§ 1461), “Importation or transportation of obscene matters” (§ 1462), “Mailing indecent matter on wrappers or envelopes” (§ 1463), and “Transportation of obscene matters for sale or distribution” (§ 1465). In each of these sections, as in § 1464, the word “indecent” is used in conjunction with other adjectives, at least one of which is invariably “obscene.” Thus the maxim of construction noscitur a sociis is not irrelevant.
There is a difference between the context in which “indecent” is found in § 1464 and its context in each of the other four sections in chapter 71. In § 1464 the word has only two companion adjectives, “obscene” and “profane.” Quite clearly “profane,” which is not found in any other section of the chapter, was intended to mean something different from “obscene,” see Duncan v, United States, 48 F.2d 128, 133-134 (9th Cir.), cert. denied, 283 U.S. 863, 51 S.Ct. 656, 75 L.Ed. 1468 (1931), and we might expect that “indecent” was also. On the other hand, we would ordinarily expect a word found in each of five sections comprising a chapter of the United States Code to mean the same thing wherever it appears in the chapter. To resolve the ambiguity we must look beyond the statute.
The history of the federal statutes bearing on obscenity is described in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), at 483-484 n.5, 82 S.Ct. at 1434 (opinion of Harlan, J.) and at 500-511, 82 S.Ct. at 1443-1449 (opinion of Brennan, J.). See also id. at 521-523, 82 S.Ct. at 1454-1455 (opinion of Clark, J., dissenting). Most of the cases arose under the mailing statute, now § 1461. In Swearingen v. United States, 161 U.S. 446, 450-451, 16 S.Ct. 562, 563, 40 L.Ed. 765 (1896), the Court held that the words “obscene, lewd and lascivious” in the predecessor to § 1461 described a single offense, and signified “that form of immorality which has relation to sexual impurity . . . [and is] . . . calculated to corrupt and debauch the minds and morals . . . .” Later decisions held that the words “indecent, filthy or vile” in that section are qualified by the preceding words “obscene, lewd and lascivious,” and that all refer to matters of sex and connote prurient appeal. See Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 803 (1st Cir. 1960), aff’d after remand, 285 F.2d 307, 308 (1st Cir. 1961). Mr. Justice Harlan, in his Manual Enterprises opinion, 370 U.S. at 482-484, 82 S.Ct. at 1434, said of those six words used in § 1461,
“While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. 1093 (no. 14571), [Cir.Ct., S.D.N.Y. 1879 (three judges)] put a limiting gloss upon the statutory language: the statute reaches only indecent material which as now expressed in Roth v. United States [354 U.S. 476 (1957)] at 489 [77 S.Ct. 1304 at 1311,1 L.Ed.2d 1498] ‘taken as a whole appeals to prurient interest.’ ” (Footnotes omitted and emphasis in original.)
This passage was quoted with approval by the Court in Hamling v. United States, 418 U.S. 87, 112, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
The phrase “obscene, indecent, or profane” in § 1464 originated in § 29 of the Radio Act of 1927, ch. 169, 44 Stat. 1162, 1173. Nothing in the legislative history of that Act explains the word “indecent” or indicates that it was intended to have a meaning different from that which it bears in other similar statutes. The only relevant passages, which appear in the transcripts of the hearings, indicate that “obscenity” was the concern of those members of Congress who spoke and that the statute regulating the mailing of obscene matter, now § 1461, was thought to be a pertinent analog.
In construing § 29 of the Radio Act in Duncan v. United States, supra, the Ninth Circuit relied upon the decisions interpreting the predecessors of § 1461. That body of law led the court to conclude that the language used by the defendant in that case, although “vulgar, scurrilous, and indecent in the popular sense of the term . is not obscene or indecent within the meaning of those terms as universally applied in the administration of the criminal law,” because the test was prurient appeal:
“The test is as to whether or not the language alleged to be obscene would arouse lewd or lascivious thought in the minds of those hearing or reading the publication.”
48 F.2d at 132.
The few cases subsequent to Duncan which deal with the meaning of “indecent” in § 1464, without much discussion of the question of interpretation and none of the long history of the construction of the word in the cases under the mailing statute, decide or assume that “indecent” has a meaning different from that of “obscene.” Thus, in Gagliardo v. United States, 366 F.2d 720, 725 (9th Cir. 1966), the court held that the language charged was not obscene because it was not likely to appeal to the prurient interest or “arouse the animal passions, but rather was made during a moment of anger,” but reversed for a new trial for failure to instruct on the meaning of “indecent.” The court read Duncan as not equating indecent with obscene without explaining its rationale for this interpretation. Id. at 725 n.7. This court, in two cases decided in 1972, dealt with the word “indecent” in § 1464. Tallman v. United States, 465 F.2d 282, 285-286 (7th Cir. 1972); United States v. Smith, 467 F.2d 1126, 1130 (7th Cir. 1972). In Tallman, in which the government contended only that the language charged was obscene, not indecent or profane, the court rejected a challenge to the facial validity of the statute grounded in the vagueness of “indecent” and “profane.” In Smith, the jury had also been instructed that, even though the indictment charged “obscene, indecent, or profane” language, “the gist of the offense alleged is that the defendant broadcast obscene language.” The court, reversing for failure to instruct on scienter, stated that the evidence “would have more appropriately supported a conviction under standards of profanity or indecency rather than obscenity as defined in Roth v. United States, 354 U.S. 476, [77 S.Ct. 1304, 1 L.Ed.2d 1498]” and therefore, in the event of a retrial, the court should either instruct the jury “that the defendant may not be convicted of uttering a profane or indecent radio broadcast” or define the terms “profane” and “indecent” for the jury. 467 F.2d at 1130. As in Gagliardo, supra, on which the court relied, no definition of “indecent” was attempted. Although it is inferable that in Smith the court thought “indecent” meant referring to matters of sex but not calculated to appeal to the prurient, this is not necessarily so with respect to Tallman. There the court’s rejection of the argument that “indecent” was unconstitutionally vague, 465 F.2d at 285-286, was based on the passage in Roth v. United States, 354 U.S. 476, 491-492, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957), in which the Court was construing that word as it appeared in the phrase “obscene, lewd, lascivious, or filthy or other publication of an indecent character” in § 1461 and “obscene or indecent” in the California obscenity statute before the Court. These phrases were construed in that case, as they had been in others, to require an appeal to the prurient. Roth v. United States, supra, 354 U.S. at 487-492, 77 S.Ct. 1304.
A development subsequent to Tallman and Smith is in our opinion, decisive of the issue before us. The word “indecent” is defined in dictum in footnote 7 of United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U.S. 123, 130, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), one of the companion cases to Miller in which the Miller standards were held applicable to federal legislation. In that footnote the Court, after acknowledging the rule that, when a serious question concerning the constitutionality of a federal statute is raised, the statute should be construed in such a manner as to avoid that question, if it is fairly possible to do so, added the following:
“If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462, see United States v. Orito [413 U.S. 139], at 140 n. 1 [93 S.Ct. 2674, 2676 n. 1, 37 L.Ed.2d 513], we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California [413 U.S. 15], at 25 [93 S.Ct. 2607, 2615, 37 L.Ed.2d 419], See United States v. Thirty-seven Photographs [402 U.S. 363 (1971) ] at 369-374 [91 S.Ct. 1400, 28 L.Ed.2d 822], (opinion of White, J.). Of course, Congress could always define other specific ‘hard core’ conduct.”
413 U.S. at 130 n. 7, 93 S.Ct. at 2670. The passage of Miller referred to in the footnote lists “a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion . . . .” Miller, supra, 413 U.S. at 25, 93 S.Ct. at 2615. Part (b) of the Miller standard is “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,” id. at 24, 93 S.Ct. at 2615, but the standard has two other elements which the Court stated are also necessary to make the utterance subject to regulation. The first of these is: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . .” Id. Thus, read with the passage from Miller to which it refers, footnote 7 of 12 200-Ft. Reels states that “indecent” will be construed as exempting from First Amendment protection only material which appeals to the prurient interest, i. e., material that is obscene. In United States v. Orito, 413 U.S. 139, 145, 93 S.Ct. 2674, 2679, 37 L.Ed.2d 513 (1973), the Court referred to footnote 7 and Miller as the “standards . for distinguishing obscene material, unprotected by the First Amendment, from protected free speech,” and held them applicable to § 1462. Footnote 7 was also quoted with approval and held applicable to § 1461, although without specific reference to the word “indecent” or prurient appeal, in Hamling v. United States, supra, 418 U.S. at 113-114, 94 S.Ct. 2887.
Although the Court did not refer in footnote 7 to 18 U.S.C. § 1464, the statute before us, and although the constitutional doubt may be less serious with respect to radio broadcasts than it would be with respect to § 1462’s application to materials transported in interstate commerce, we must assume that the Court would interpret “indecent” in § 1464 as it has in § 1462. Cf. Hamling v. United States, supra, 418 U.S. at 115, 94 S.Ct. 2887. This conclusion is consistent with the interpretation given the word “indecent” in the cases under § 1461 and its predecessors at a time when any constitutional doubt as to that section was not viewed as a serious problem, and it has the virtue of according the same meaning to the word wherever it is used in the chapter of Title 18 of the United States Code entitled “Obscenity.”
We therefore hold that “obscene” and “indecent” in § 1464 are to be read as parts of a single proscription, applicable only if the challenged language appeals to the prurient interest. Our holding makes it unnecessary to reach the question of whether the First Amendment protects, against federal criminal sanctions, a radio broadcast made in the crude sex vernacular of the street that is patently offensive but lacks prurient appeal. It is also unnecessary to consider various alleged trial errors relating to the § 1464 count. As to that count (Count 1) we reverse and enter a judgment of acquittal.
II.
The jury found Simpson guilty under six additional counts (2 through 6 and 10), each charging that he “knowingly and wil-fully did operate and broadcast a radio transmission in and affecting interstate commerce, when he was not licensed to so broadcast by the Federal Communications Commission as required by” 47 U.S.C. § 301, in violation of § 501 of that title. While one of the broadcasts charged was the same one charged in the § 1464 count, the contents of the others were not before the jury, and content was irrelevant to the § 501 charges. Simpson argues that the evidence was insufficient to establish the violations charged in these counts.
The CB radio license was issued to Simpson’s former wife at their joint home, from which she departed four months before the broadcasts began. Although she testified at the trial that she did not give Simpson permission to use the transmitter after her departure, there was no evidence that she or anyone else ever told him that he no longer had such permission. The broadcast charged in one of the six counts was made after she surrendered the license by certified mail on April 15, 1976.
47 U.S.C. § 301 states as follows:
“ . . .No person shall use or operate any apparatus for the transmission of communications or signals by radio . . . except . . . with a license . . . granted under the provisions of this chapter.”
Section 501 of that title makes it an offense to do
“willfully and knowingly . . . any act, matter, or thing . . prohibited or declared to be unlawful”
by § 301, inter alia.
There is some confusion, if not ambiguity, in these provisions. Section 301 prohibits using or operating a transmitter without a license granted under the provisions of the Act. There is room for doubt as to whether the section refers to an operator’s license or a station license, or both. See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948). Inasmuch as the Act itself does not state when a license is required, we must look to the regulations issued by the Federal Communications Commission. When Simpson made five of the six broadcasts for which he was convicted, these regulations provided, in former 47 C.F.R. § 95.97(a), that no operator license was required for the operation of a CB radio, except for stations manually transmitting Morse Code. The Commission deleted this provision on April 13, 1976, sixteen days before the final broadcast, for the reason that it was “possible mistakenly to interpret § 95.97(a) as permitting . . operation of a transmitter in the Citizens Radio Service without a license of any sort.” The Commission further explained that its action deleted “superfluous and misleading material.”
Another section of the regulations, 47 C.F.R. § 95.87, which has not been amended, provides that a CB transmitter must be under the control of the licensee at all times; that he may not transfer the operating authority under the license and is responsible for the proper operation of the station; and that the station may be operated only by the licensee or members of his immediate family living in the same household. This section could be read as directed to the station licensee and intended to govern his conduct under the license. Thus, even when the sixth broadcast was made, after deletion of the “misleading” § 95.-97(a), it was not altogether clear that a reader of the statute and the regulations would understand it to be a criminal offense for one not the licensee or a member of the licensee’s immediate family living in the same household to operate a licensed CB station.
An even more serious problem arises from the requirement of 47 U.S.C. § 501 that the acts be done “willfully and knowingly.” These terms are defined in the standard federal jury instructions, which the district judge gave in this case:
“ . . . the term ‘wilfully,’ . means that the acts were committed by the defendant voluntarily, with knowledge that they were prohibited by law, and with the purpose of violating the law, and not by mistake, accident, or in bad faith.
“4. When read in isolation, we believe it is possible mistakenly to interpret § 95.97(a) as permitting both operation of a transmitter in the Citizens Radio Service without a license of any sort, although a station license is required by § 95.11 of the Rules, and transmission of telegraphy in the Citizens Radio Service, a practice not normally authorized by § 95.47 of the rules.
“5. In order to clarify the existing Rules that a valid station authorization is required for operation of a transmitter in the Citizens Radio Service and that telegraphy is not normally an authorized emission mode, we are hereby deleting § 95.97(a) of the rules in its entirety.”
“The term ‘knowingly,’ . . . imports knowledge of the act or thing done, as well as an evil intent or a bad purpose in doing such thing. Ordinarily the use of the word ‘knowingly’ in a criminal action is to insure that no one would be convicted by an act done because of mistake or inadvertence or other innocent reason.”
These definitions are consistent with the authorities. As to “wilfully,” see United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 78 L.Ed. 381 (1933); United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976); United States v. Winston, 558 F.2d 105 (2d Cir. 1977), at 107, 109. As to “knowingly,” see Ryan v. United States, 314 F.2d 306, 310-311 (10th Cir. 1963); Tallman v. United States, supra, 465 F.2d at 287-288. Assuming that reckless disregard of the requirements of the law would be sufficient to constitute wilfullness under this statute, see United States v. Murdock, supra, 290 U.S. at 394-395, 54 S.Ct. 223; United States v. Kaye, 556 F.2d 855 (7th Cir. 1977), at 863, which would mean that it is enough if “a reasonable man would [have been] aware that [his] conduct would likely be illegal,” id., quoting from United States v. Keegan, 331 F.2d 257, 262 (7th Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 57, 13 L.Ed.2d 37 (1964), and also assuming that the jury had been so instructed, the evidence would nevertheless have been insufficient to establish the element of mens re a.
We have here no “voluntary, intentional violation of a known legal duty.” United States v. Pomponio, supra, 429 U.S. at 12, 97 S.Ct. at 23. There is no evidence that Simpson had actual knowledge of the regulations. Nor was there evidence from which the jury could infer that, so far as the alleged violations of the licensing regulation are concerned, Simpson broadcast “with a bad purpose” and “without ground for believing it [was] lawful” or with “careless disregard whether or not [he had] the right so to act.” United States v. Murdock, supra, 290 U.S. at 394-395, 54 S.Ct. at 225. We think it cannot be said that a reasonable man would be aware that he was forbidden to broadcast with a CB transmitter which had been purchased by him, was licensed to his former wife at their joint home, and remained there with the license still in effect after she left their home. (With respect to the final broadcast, made after his wife had surrendered the license, there is no evidence that he was notified of the surrender of the license.) This is not a situation in which the actor should know from the nature of the prohibited act that it was likely to create danger or produce deleterious results, as in United States v. International Minerals & Chemical Corp., 402 U.S. 558, 564-565, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971). The mere broadcast from a licensed station would be no more likely to produce such a result when the person broadcasting is not the licensee or a member of the licensee’s immediate family living in the household than when he is.
The convictions under Counts 2 through 6 and 10 are accordingly also reversed, and a judgment of acquittal is entered on those counts.
REVERSED.
. We would have had no difficulty in affirming a finding that the language was obscene, but we are of course bound by the jury’s contrary finding.
. The instruction read:
“Language is ‘indecent’ if you find that: “(1) taken as a whole, the language broadcast describes, in a patently offensive way, as determined by contemporary community standards, sexual conduct, such as normal or perverted sexual acts, masturbation or excretory functions, and
“(2) the language broadcast, taken as a whole, lacks serious literary, artistic, political or scientific value.
“If any of the above elements are not satisfied, then the language broadcast, no matter how offensive, is not indecent. For language to be considered ‘indecent’ it need not be shown to the appeal to the prurient interest.” In so defining “indecent,” the District Court apparently adopted the suggestions of several judges of the Court of Appeals of the D. C. Circuit. See Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 515 F.2d 397, 403-404 n. 14 (1974)(as amended in 1975); cf. Pacifica Foundation v. FCC, 556 F.2d 9 (D.C. Cir., 1977).
. Held to be profane in that case was language of a radio broadcast in which the defendant “referred to an individual as ‘damned,’ . . used the expression ‘By God’ irreverently, and . . announced his intention to call down the curse of God upon certain individuals . .” 48 F.2d at 134. Compare Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). And compare the language of Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), quoted in Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at 506 n.20, 72 S.Ct. 777, with Cohen v. California, 403 U.S. 15, 22-26, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). See also Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972), and n.7, infra.
. Compare, however, as to the word “filthy,” United States v. Limehouse, 285 U.S. 424, 426-427, 52 S.Ct. 412, 76 L.Ed. 843 (1932).
. The legislative history is rather meager. Section 1464 originated as § 29 of the Radio Act, and was carried over to § 326 of the Communications Act of 1934, ch. 652, 48 Stat. 1064, 1091, without substantive change. S.Rep.No. 781, 73d Cong., 2d Sess. 8 (1934). Compare 44 Stat. 1173 with 48 Stat. 1091. With the overall revision and codification of Title 18, accomplished by the Act of June 25, 1948, ch. 645, 62 Stat. 683, 769, the last sentence of § 326 became the present 18 U.S.C. § 1464. See § 21, 62 Stat. 862, 866.
. To Regulate Radio Communication: Hearings on H. R. 5589 Before the House Committee on the Merchant Marine and Fisheries, 69th Cong., 1st Sess. 40 (Jan. 6, 1926)(Representatives Reid and Davis); To Regulate Radio Communication: Hearings on H. R. 7357 Before the House Committee on Merchant Marine and Fisheries, 68th Cong., 1st Sess. 178-179 (Mar. 13, 1924)(colloquy among Representatives McKeown, Davis, Bland, and Larsen and Mr. David Sarnoff of RCA). See also a speech before the Fourth Annual Radio Conference by then-Secretary of Commerce Herbert Hoover, reprinted in the Hearings on S. 1 and S. 1754 Before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess. 56 (Jan. 9, 1926). Section 29 (see n.5, supra) was not discussed in the House or Senate reports or during the floor debates. Obscenity and the rights of listeners not to hear it were adverted to, in passing, during hearings on the access of members of the Jehovah’s Witnesses sect to the radio broadcasting system. See Hearings on H. R. 7986 Before the House Committee on Merchant Marine Radio, and Fisheries, 73d Cong., 2d Sess. 173-174 (Mar. 20, 1
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
PENN MUT. LIFE INS. CO. v. ASHTON.
No. 1567.
Circuit Court of Appeals, Tenth Circuit.
Dec. 27, 1937.
J. S. Simmons, of Hutchinson, Kan. (Alva L. Fenn and Herbert E. Ramsey, both of Hutchinson, Kan., on the brief), for appellant.
Ersldne Wyman and Ellis Clark, both of Hutchinson, Kan. (Charles Hall and Max Wyman, both of Hutchinson, Kan., on the brief), for appellee.
Before BRATTON and WILLIAMS, Circuit Judges, and SYMES, District Judge.
BRATTON, Circuit Judge.
Plaintiff instituted this action to recover upon a policy of insurance insuring the life of her late husband. Trial by jury was waived and the cause submitted to the court upon the admissions contained in the pleadings and a stipulation of facts. Plaintiff prevailed and defendant appealed.
The policy, issued on March 18, 1926, was a 10-year term contract. It provided that it was issued in consideration of the payment in advance at the home office of the company of an annual premium of $65.-95, a semiannual premium of $33.65, or a quarterly premium of $17.15; and it contained a grace period of 31 days for the payment of any premium after the first. It was a participating policy and provided that the dividends may be used (1) in reduction of premium, or (2) to accumulate and bear compound interest; and that, if no other option be selected, they should be paid in cash;' and the application, a copy of which was attached to the policy, provided that the surplus accruing should be applied to the reduction in premiums. By mutual agreement of the parties, premiums were paid quarterly after March 18, 1928. The quarterly premium due December 18, 1934, was paid; but that due March 8, 1935, was not paid by the insured. At the time that premium became due, the're was an accrued dividend on the policy of $23.-25. It was the uniform practice of the company, where a policy contained a provision for the application of an accrued dividend to the payment of premium and the premium was payable quarterly, to prorate the dividend credit to the quarterly payments. That custom was followed in settling the quarterly premium of March 18, 1928, and each premium thereafter; and the assured made no objection or request for change. The accrued dividend of $23.25 due and unpaid on March 18, 1935, was prorated and $5.82 allocated to each quarterly premium. On February 26, 1935, the company sent insured a notice stating that the quarterly premium was $17.15, the dividend $5.82, and the balance due $11.33, payable March 18th; that unless it was paid by or before the date it fell due or within the 31 days’ grace period, it was the intention of the company to forfeit or cancel the policy; and that all payments thereon would become forfeited and void, except as to the right to the surrender value, extended insurance, or a paid-up policy, as provided in the policy or by statute. On April 13th, the company mailed insured a further notice stating that the amount due was $11.33; that April 18th was the last day for payment; that the policy would lapse unless payment was received by that date; and that, if the entire amount could not be paid then, to communicate with the company and arrangements probably could be effected to keep the policy in force. On or about April 15th, a soliciting agent for the company interviewed insured concerning an application for conversion of the policy and in that connection stated that the policy had lapsed. Three days later insured submitted an application for conversion to a life policy, but it was rejected on May 1st. On May 22d, the general agent for the company wrote insured expressing regret that it was necessary to notify the home office that the policy had lapsed for nonpayment of premium; and that the company would assist in effecting reinstatement. On May 29th, the company issued a check for $23.25, together with a voucher reciting that the check was given for a dividend on the policy. The check was transmitted to insured by letter dated June 7th, reciting that it was the dividend awarded upon the policy, and that it was forwarded inasmuch as the policy lapsed for nonpayment of the quarterly premium due in March. The voucher recited that the check was for a cash dividend of $23.-25; and that indorsement thereon should constitute a full release by the payee of all claims against the maker on account of the items set forth in the voucher. Insured retained the check until July 8th, at which time he signed the indorsement and the check was cashed at a local bank. He died on October 31, 1935, and the suit was seasonably brought.
The company had in its possession at all material times an accrued and unapplied dividend sufficient in amount to pay the stipulated premium for the quarter beginning March 18th. Despite the custom of prorating the dividend among the four quarterly premiums, it was the duty of the company to make application of sufficient of such dividend to pay the quarterly premium in order to avoid forfeiture of the policy. Upon the failure of the company to act, and in the absence of other direction by insured, the law intervened and made the application. Lamar v. Aetna Life Ins. Co., 10 Cir., 85 F.2d 141. The quarterly premium paid in that manner continued the policy in force to June 18th.
The question remains whether the policy terminated on that date or -at some other time prior to the death of insured. Section 40-410, General Statutes of Kansas 1935, provides that, except as to certain policies not material here, it shall be unlawful for any insurance company, within 6 months after default in payment of any premium or installment of premium, to cancel a policy without first giving notice in writing to the insured of its intention to forfeit or cancel it. Section 40-411 provides that, before such cancellation or forfeiture can be made for the nonpayment of premium, the company shall notify the insured that the premium, stating the amount, is due and unpaid, and of its intention to forfeit or cancel the same; and that the insured shall have the right to pay such premium at any time within 30 days after the deposit of such notice in the post office, duly addressed to the insured at his last known address. Then follows a proviso that, in lieu of such notice, in case of a policy providing for a period of grace of not less than 30 days or 1 month for the payment of each premium, and containing any provision for cancellation or forfeiture in case of nonpayment of the premium at the end of such period, the company may, not more than 30 days prior to the date specified in such policy when the premium will become due and payable without grace, in like manner notify the insured of the date when the premium will fall due, stating the amount, and of its intention to forfeit or cancel the policy if the premium is not paid within the period of grace provided in the policy. This policy contained a grace period of 31 days, but it did not contain any specific provision for cancellation or forfeiture in case of nonpayment of premium. For that reason it did not fall within the proviso in section 40-411. And the only way in which the company could cancel it within 6 months after June 18th was by giving a notice in compliance with the other provisions of the statute. Wegner v. Federal Reserve Life Ins. Co., 130 Kan. 600, 287 P. 591; Pedersen v. United Life Ins. Co., 139 Kan. 695, 33 P.2d 297.
The respective notices of February 26th and April 18th were not effective for that purpose because the statute exacts a notice of intention to forfeit under an accrued right of forfeiture. A notice given prior to the due date of a premium or within the grace period, that is, before the time within which payment may rightfully be made has expired, will not support termination or cancellation. Priest v. Bankers’ Life Ass’n, 99 Kan. 295, 161 P. 631; Reynolds v. Metropolitan Life Ins. Co., 105 Kan. 669, 185 P. 1051, 7 A.L.R. 1558; Cunningham v. Globe Life Ins. Co., 106 Kan. 631, 189 P. 158; Wolford v. National Life Ins. Co., 114 Kan. 411, 219 P. 263, 32 A.L.R. 1248; Wegner v. Federal Reserve Life Ins. Co., supra; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 58 P.2d 1108. The decision of this court in Minnesota Mut. Life Ins. Co. v. Cost, 8 Cir., 72 F.2d 519, does not lend itself to the contention of the company. The policy under, consideration there expressly provided that the payment of any premium or installment of premium should not maintain the policy in force beyond the date when the next premium or installment became payable. Laying stress upon that language, it was held that by its four corners the policy provided for termination upon default in payment of premium; that for such reason the proviso in the statute had application; and that the notice given complied with its provisions. This policy failed to contain a provision that the payment of a premium or an installment thereof should not maintain the policy in force beyond the time for the next payment And it did not contain any specific provision for cancellation or forfeiture in case of nonpayment of premium. The marked difference between that case and this one is that the language contained in that policy brought it within the proviso of the statute, while the language in this policy took it outside the proviso.
It is urged that, even though the policy had not been previously terminated,acceptance of the check issued in payment of the accrued dividend, and the signing of the indorsement absolved the company of all liability. The notice sent on February 26th stated that the quarterly premium was $17.15, the accrued dividend $5.82, and the balance due $11.33; and that, if the amount was not paid on or before the due date or within the grace period, the company intended to cancel the policy. The- notice of April 13th again stated that the amount due was $11.33, and that the policy would lapse on the 18th day of the month' if it was not paid. Neither notice stated nor advised insured that the accrued dividend amounted to $23.25. That dividend being sufficient in amount to pay the quarterly premium in full and it being the duty of the company to make such payment out of it, tlie statement that the policy would lapse or be forfeited on April 18th was untrue. The agent for the company made the inaccurate statement to insured on or about April 15th that the policy had lapsed. The letter of May 22d carried the same inaccuracy in the expressed regret at the necessity to inform the home office that the policy had lapsed; and the letter of June 7th transmitting the check was likewise untrue in the statement that the policy had lapsed. The first, second, third, and fourth inaccurate or untrue statements were made without disclosing the fact that there existed an accrued dividend of $23.25, sufficient in amount to pay the quarterly premium in full; and the disclosure made in the letter of June 7th that the dividend was in that amount was accompanied immediately by the fifth untrue statement that the policy had already lapsed. The company had the information concerning the amount of the dividend; the insured did not. While the company was in the sole possession of such information, the untrue statements were made; and when the amount was finally disclosed, the disclosure was accompanied by a repetition of the inaccuracy. Liability upon a policy of insurance may be terminated by mutual consent of the parties. But it is necessary that there be a meeting of the minds. Each party must act with knowledge of the material facts. It is essential to the validity of a written release of liability that it be executed with knowledge of the facts and with an intention to release an existing or asserted liability. The undisputed facts here carry the inescapable conviction that the insured acted in ignor"ance of the fact that his policy was in force; that he had been repeatedly informed and believed it had lapsed; and further, that he did not intend to release or absolve the company from an existing liability upon such policy. A release executed in such circumstances does not represent a meeting of the minds, and it does not extinguish liability. Baker v. North River Ins. Co., 112 Kan. 530, 212 P. 118; Riddle v. Rankin, 146 Kan. 316, 69 P.2d 722; Conservative Life Ins. Co. v. Hutchinson, 244 Ky. 746, 52 S.W.2d 709; Cassville Roller Mill. Co. v. Ætna Ins. Co., 105 Mo.App. 146, 79 S.W. 720; Tabor v. Michigan Mutual Life Ins. Co., 44 Mich. 324, 6 N.W. 830; Heinlein v. Imperial Life Ins. Co., 101 Mich. 250, 59 N.W. 615, 25 L.R.A. 627, 45 Am.St.Rep. 409.
We find no error. Accordingly, the judgment is ¿firmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_district
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
ELY CONST. CO. v. TOWN OF TIMMONS-VILLE, S. C.
No. 5120.
Circuit Court of Appeals, Fourth Circuit.
Nov. 8, 1943.
John A. Chambliss, of Chattanooga, Tenn. (Sizer, Chambliss & Kefauver, of Chattanooga, Tenn., on the brief), for appellant.
P. H. McEachin, of Florence, S. C. (W. T. McGowan, of Timmonsville, S. C., and McEachin & Townsend, of Florence, S. C., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a judgment for defendant in an action instituted against the Town of Timmonsville, S. C., to recover the balance due on a promissory note. The court below denied recovery on the grounds that the note was issued without authority and in contravention of constitutional and statutory provisions and that it was barred by the statute of limitations. We think that the judgment should be sustained on both grounds.
It appears that the note was not a tax-anticipation certificate nor was it given for goods or services had and received for the benefit of the town and with reasonable expectation that they could and would be paid from revenue of the current year. Cf. United States Rubber Products v. Town of Batesburg, 183 S.C. 49, 190 S.E. 120, 110 A.L.R. 144; Luther v. Wheeler, 73 S.C. 83, 52 S.C. 874, 4 L.R.A.,N.S., 746, 6 Ann.Cas. 754. On the contrary, it was given in payment for paving done after the proceeds of a bond issue authorized by the voters had been exhausted and with the understanding that it was to be paid for in future years. Its issuance clearly contravened Art. 8, Sec. 7, of the Constitution of South Carolina and Sec. 7442, of the South Carolina Code. Bolton v. Wharton, 163 S. C. 242, 161 S.E. 454, 86 A.L.R. 1101; Tarver v. Town of Johnston, 173 S.C. 333, 175 S. E. 821.
The action is admittedly barred by the statute of limitations unless the running of the statute is held to have been tolled by a letter written by an attorney at law to plaintiff with reference to settlement of the note. In the letter the attorney stated that he was acting for the town; but there is no evidence that he was properly authorized to bind it in this matter. See 37 C. J. 1136; 34 Am.Jur. 262; Taylor v. Perryville, 132 Md. 412, 415, 104 A. 475; Wurth v. City of Paducah, 116 Ky. 403, 76 S.W. 143, 105 Am.St.Rep. 225 and note; City of Houston v. Jankowskie, 76 Tex. 368, 13 S.W. 269, 18 Am.St.Rep. 57.
Affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_applfrom
|
E
|
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).
Vernon M. ELLIS, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education & Welfare, Defendant-Appellee.
No. 72-2952
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 4, 1973.
H. H. Gearinger, Chattanooga, Tenn., for plaintiff-appellant.
John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Kathryn Baldwin, Eric B. Chaikin, Dept. of Justice, Washington, D. C., for defendant-appellee.
Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.
PER CURIAM:
Appellant instituted this action in the district court seeking to review a denial of social security disability benefits. The district court issued an order of dismissal which was timely followed by appellant's Rule 59 motion to reconsider. Such motion was denied. Appellant filed another motion to reconsider under Rule 59 based upon substantially the same grounds as urged in the earlier motion. The second motion was likewise denied.
Pursuant to Federal Rules of Appellate Procedure 4(a), appellant had sixty days from the entry of the order of dismissal to file a notice of appeal. The filing of the first Rule 59 motion terminated the running of the time for the appeal, but the second such motion based upon the same grounds did not.
In this case appellant had sixty days from the denial of his first Rule 59 motion in which to file notice of appeal. Having failed to do so, we are therefore without jurisdiction to consider the merits of his claim and accordingly this appeal is hereby dismissed.
. Fed.R.Civ.P. 59.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_civproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
UNITED STATES of America, Plaintiff-Appellee, v. Walter DACHSTEINER, Defendant-Appellant.
No. 73-1490.
United States Court of Appeals, Ninth Circuit.
Jan. 28, 1975.
Certiorari Denied April 28, 1975.
See 95 S.Ct. 1688.
Steven S. Hurwitz, San Francisco, Cal. (argued), for defendant-appellant.
Donald H. Feige (argued), Dept, of Justice, Washington, D. C., for plaintiffappellee.
Before GOODWIN and WALLACE, Circuit Judges, and KELLEHER, District Judge.
Honorable Robert J. Kelleher, United States District Judge, Central District of California, sitting by designation.
OPINION
WALLACE, Circuit Judge:
Dachsteiner was convicted on 17 counts of mailing obscene matter under 18 U.S.C. § 1461. He was sentenced to 18 months imprisonment on each count, the sentences to run concurrently, and fined $2,500 on the first count alone. Dachsteiner appeals and we affirm.
Dachsteiner challenges his conviction primarily on three grounds. First, he argues that the trial court committed prejudicial error when it instructed the jury to determine obscenity according to national standards. Second, he claims that the advertisement that formed the basis for the first count of his conviction is not obscene because it does not portray sexual activity. Third, he contends that the government did not introduce sufficient evidence of obscenity.
I. The Instructions on National Standards of Obscenity
Since Dachsteiner’s conviction was on appeal at the time Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), were decided, he may obtain the benefit of the new standards of obscenity established by these cases. Hamling v. United States, 418 U.S. 87, 100, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). These new standards allow obscenity to be determined according to “contemporary community standards” instead of national standards. Miller v. California, supra, 413 U.S. at 30—34, 37, 93 S.Ct. 2607. In addition, in prosecutions for mailing obscene material in violation of 18 U.S.C. § 1461, contemporary community standards must be applied as a matter of statutory construction. Hamling v. United States, supra, 418 U.S. at 104-107, 94 S.Ct. 2887; see United States v. 12 200-ft. Reels of Film, supra, 413 U.S. at 130 & n. 7, 93 S.Ct. 2665. Therefore, the trial court’s instructions using “contemporary national community standards” were in error; Dachsteiner’s conviction must be overturned if this error were prejudicial.
In Hamling, the Supreme Court held a similar instruction on national standards not to be prejudicial. The Court reasoned that the purpose of instructions on community standards is “to assure that the material is judged neither on the basis of each juror’s personal opinion, [nor] by its effect on a particularly sensitive or insensitive person or group.” Hamling v. United States, supra, 418 U.S. at 107, 94 S.Ct. at 2902. The Court held that instruction on national stand- • ards serve this purpose as well as instructions on local standards. Id. To determine whether the error is prejudicial, the Court applied the following test:
We have frequently held that jury instructions are to be judged as a whole, rather than by picking isolated phrases from them. Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). In the unusual posture of this case, in which petitioners agree that the challenged instruction was proper at the time it was given by the District Court, but now seek to claim the benefit of a change in the law which casts doubt on the correctness or portions of it, we hold that reversal is required only where there is a probability that the excision of the references to the “country as a whole” in the instruction dealing with community standards would have materially affected the deliberations of the jury.
Id. (Citations omitted.)
Arguing that the instructions on national standards constitute prejudicial error, Dachsteiner asserts that the relevant community in this case is San Francisco. He offers no argument or evidence to support that position but, in any case, the issue itself is immaterial. The geographical limits of the community need not be defined when dealing with “the average person applying contemporary community standards.” We permit “a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes” and to apply that knowledge to the facts of the case before him. Hamling v. United States, supra, 418 U.S. at 104, 94 S.Ct. 2887. Because the jurors in this case resided in the Northern District of California, they will draw upon their knowledge which may be representative of that area. Neither Miller nor Hamling, however, requires the trial court to define the relevant community in metes and bounds. Cf. Jenkins v. Georgia, 418 U.S. 153, 156, 94 S.Ct. 2750, 41 L.Ed.2d 640 (1974). Likewise, in deciding whether the district court committed prejudicial error, we need not define the relevant community in precise geographical terms.
Judging from the evidence, arguments and instructions in this case, Dachsteiner was not significantly prejudiced by the trial judge’s erroneous instructions on national standards. The record contains no evidence that would have tended to persuade the jury that national standards of obscenity are more strict than those in the Northern District of California. Indeed, there was evidence at trial to local standards and their similarity to national standards. In Hamling, the Court relied on similar evidence in finding no prejudicial error. 418 U.S. at 107, 94 S.Ct. 2887.
Nor does the record reveal that the district court erroneously excluded evidence of local standards. The one evidentiary ruling questioned by Dachsteiner concerns his request that the jury be taken to pornographic movie theaters and bookstores in San Francisco. The trial judge refused this request for reasons unrelated to the proper standard for determining obscenity. He correctly ruled that, standing alone, such evidence was irrelevant to the obscenity of the materials before the court. Hamling v. United States, supra, 418 U.S. at 123, 94 S.Ct. 2887.
Finally, we cannot accept Dachsteiner’s argument that he should be given an opportunity to submit evidence of community standards of obscenity because his trial.was completed before the community standards rule of Miller and 12 200-ft. Reels of Film was announced. This argument is foreclosed by Hamling. There, the trial was also completed before Miller and 12 200-ft. Reels of Film were decided. 418 U.S. at 97, 94 S.Ct. 2887. The Supreme Court nevertheless found an absence of prejudicial error, relying only on the record before it. 418 U.S. at 107, 94 S.Ct. 2887. We do likewise here. Having examined the record, we find no indication that the erroneous instructions in this case “materially affected the deliberations of the jury.” Id.
II. The Conviction on Count I
Dachsteiner argues that the advertisement of count I is not obscene because it does not portray sexual activity. We reject this argument on the basis of Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), which affirmed a conviction for several violations of 18 U.S.C. § 1461, among them three counts of mailing obscene advertisements. 383 U.S. at 464— 465, 86 S.Ct. 942. The Court found the pandering intent of the advertisements crucial in deciding that the avertisements were obscene. 383 U.S. at 468— 471, 86 S.Ct. 942. These advertisements were far less obvious in their pandering than the advertisement involved in count I. See 383 U.S. at 468-469 n. 9, 86 S.Ct. 942. Dachsteiner’s advertisement, for instance, contains statements such as the following, accompanied by photographs of men displaying their genitals: “GUARANTEE: If you don’t see actual — not simulated — sexual activities in these films you get you money back!” Although contemporary community standards may have changed since Ginzburg was decided, the Supreme Court has continued to accept its holding that pandering is relevant to the issue of obscenity. See Hamling v. United States, supra, 418 U.S. at 130, 94 S.Ct. 2887; Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). Lewd and patently offensive exhibition of the genitals is within both the constitutional definition of obscenity and the prohibition of 18 U.S.C. § 1461. Miller v. California, supra, 413 U.S. at 25, 93 S.Ct. 2607; see Hamling v. United States, supra, 418 U.S. at 104, 94 S.Ct. 2887. The pandering of this advertisement may be taken into account and, along with the depictions themselves, is sufficient to establish both lewdness and patent offensiveness. Thus, portrayal of ultimate sexual acts is not a necessary ingredient of obscenity. Id.
III. Sufficiency of the Evidence
Dachsteiner argues that the government introduced insufficient evidence of obscenity. The record reveals, however, that the advertisement of count I, which was found to be obscene, was introduced into evidence. The government may rely upon inferences from such material to support a finding of obscenity. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Accord, Hamling v. United States, supra, 418 U.S. at 104, 94 S.Ct. 2887 (dictum). There clearly was sufficient evidence of obscenity.
IV. Conclusion
We have examined the advertisement that formed the basis for Dachsteiner’s conviction on count I. It is obscene under either the pre-Miller or the post-Miller standards of obscenity. Since Dachsteiner’s sentences on the remaining counts run concurrently with his prison term under count I, we need not consider issues relevant only to the remaining counts. United States v. Moore, 452 F.2d 576, 577 (9th Cir. 1971); see Benton v. Maryland, 395 U.S. 784, 787—793, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
Affirmed.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
MOULTON MINING CO. et al. v. ANACONDA COPPER MINING CO.
Circuit Court of Appeals, Ninth Circuit.
January 9, 1928.
Rehearing Denied with Modification March 19, 1928.
No. 5143.
1. Mines and minerals <©=30 — To constitute “¡ode,” ore bodies must come from same source, Impressed with same form, and must appear to have been created by same processes.
While structural boundaries are not always necessary to constitute vein or “lode,” (here must be ore bodies coming from the same som-cp, impressed with the same form, and appearing to have been created by the same processes.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lode.]
2. Mines and minerals <©=>38(18) — Evidence held to sustain finding that ore within defendant’s vortical boundaries was not part of vein apexing within claims of plaintiff (Rev. Codes Mont. 1921, § 9479).
Finding in suit to quiet title to mining claim, under Rev. Codes Mont. 1921, § 9179, that plaintiffs failed to established that ore within vertical boundaries of defendant's claim was part of veins which had their apex within claims of plaintiff, held proper under evidence.
3. Mines and minerals <§=38(14) — Plaintiffs had burden to prove their extralaterai rights extended to defendant’s mining claims.
Plaintiffs, claiming mineral rights in ore as against defendant, had burden to'prove extra-lateral rights on ground that defendant s claim apexed within plaintiffs’ vein.
4. Mines and minerals <§=38(!4) — Defendant, denying plaintiffs’ extralaterai rights, was required to overcome plaintiffs’ showing that defendant’s claim apexed within plaintiffs’ vein.
Where plaintiffs showed defendant’s mining claiifi apexed within limits of plaintiffs’ vein, it’ devolved on defendant, endeavoring to deny plaintiffs’ extralateral rights, to overcome the showing made.
5. Mines and minerals <©=38(!8)- — Evidence held to require finding that plaintiffs’ extra-lateral rights extended to segment of defendant’s claim having its apex within boundaries of plaintiffs’ claim (Rev. Codes Mont. 1921, § 9479; 30 USCA § 41).
In suit to quiet title to mining claim under Rev. Codes Mont. 1921, § 94791, evidence held to require finding that plaintiffs’ extralateral rights- extended to defendant’s claim as to segment of claim found to have its apex within boundaries of plaintiffs’ claim; there being no intersection and crossing, within meaning of Rev. St. § 2336 (30 USCA § 41).
Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.
Suit in equity by the Moulton Mining Company and others against the Anaconda Copper Mining Company. Decree dismissing plaintiffs’ complaint (20 F.[2d] 1008), and plaintiffs appeal.
Modified and affirmed.
Wm. E. Colby, of San Francisco, Cal., W. A. Clark, Jr., and J. L. Templeman, both of Bntte, Mont., and John C. Higgins, of New York City, for appellants.
L. O. Evans and D. M. Kelly, both of Butte, Mont., and Henry McAllister, of Denver, Colo., for appellee.
Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.
HUNT, Circuit Judge.
Plaintiffs appellants brought suit against defendant appellee to quiet title to the Poser mining claim at Butte, Mont. The suit was brought under section 9479, Montana Revised Code, which authorizes an action against any person who may*elaim any right, title, estate, or interest in real estate adverse to plaintiffs’ ownership, whether such claim or possible claim be present or contingent, for the purpose of determining such claim, or possible claim, and quieting title to said real estate.
Plaintiffs alleged that they owned and possessed the Poser claim, and all veins, lodes, and ledges having their tops and apexes therein through their entire depth or downward course, measured between vertical planes passed through end lines; that dofendant owns a group of mining claims adjoining the Poser claim on the south, all being subsequent in time of initiation and location of rights to the rights of the Poser; that within the Poser claim is the Rainbow lode, discovery vein of" the Poser, the entire width of the apex of the Rainbow being included within the surface boundaries of the Poser claim for its entire length, and crossing both’ end lines of the Poser; that there is, also within the surface boundaries of the Poser claim, the Poser vein, which extends longitudinally throughout the claim from end line to end line, and also a vein or lode, for convenience designated the Intermediate vein, the entire apex of which extends longitudinally throughout the Poser from end line to end line; that the Poser and the Intermediate dip southerly and penetrate underneath the surface of the adjoining group of claims of defendant; that in the Poser claim, between the 1,000 and 1,300 levels of the workings, the Poser vein crosses and extends beyond the vertical plane, passing through the southerly side boundary of the Poser claim, and is found running down beneath the surface of the adjoining claims of defendant; that defendant claims an interest adverse to plaintiffs in and to the Poser and Intermediate veins, and particularly those parts of the Poser and Intermediate which lie vertically beneath the surface .of the defendant’s group of claims, and between the Poser end line planes produced southerly as described, and has at various places penetrated each vein with its mine workings; that the claims of defendant, as to its ownership of the said claims of the Poser and Intermediate existing vertically beneath the surface of defendant’s group, and between the Poser claim end line planes produced as aforesaid, are groundless, and a cloud upon the title of the plaintiffs to the Poser and Intermediate veins as described, which are a part of the Poser claim, and that defendant has no right in or to said extralateral claims of either the Poser or the Intermediate vein, as described in the complaint, or to any portion thereof; that defendant penetrated into ex-tralateral parts of the Poser and intermediate veins as described, and extracted valuable ore, and threaten to continue workings upon said extralateral portions of the Poser and Intermediate veins.
The prayer is that defendant be required to set forth the nature of its claim to said ex-tralateral portions of the Poser and Intermediate veins or lodes described, and that all adverse claims to the same or any portion .thereof be determined by a decree of the court; that it be adjudged that defendant has no estate or interest whatever to any portion of the Poser or Intermediate veins as described in the complaint; that plaintiffs’ title be decreed to be good, that injunction issue, and that accounting be had.
By answer defendant admitted its ownership of a group of mining claims adjoining the Poser claim on the south; alleged ownership of all veins and ore bodies within the surface boundaries extended downward vertically of such claims south of the Poser; alleged that the Rainbow lode has its apex within the surface boundaries of the Poser claim for its entire length; denied the existence of the “alleged and pretended” Poser and Intermediate veins or lodes, or of any segment, spur, or branch thereof, or that defendant claims any ownership of any segment ór segments of said veins; denied that it mined any ore which belonged to plaintiffs, and prayed for a decree dismissing the complaint..
Upon the trial it was stipulated that the Poser claim was prior in time in discovery and location to the claims of defendant to the south, and that discovery, on the Poser was made on the Rainbow lode at the west end line of the claim as described in the patent.
Certain admissions of the respective parties as to ownership and possession of their respective mining claims narrowed the main issue to the question whether the Poser and Intermediate veins existed as alleged. Some advance was made in solving that issue as to the Intermediate vein by the admission of defendant that there was a vein called the Intermediate, branching from the Rainbow in the Poser subsurface. At the close of the trial the defendant admitted that part of a vein, called by plaintiffs their Intermediate vein, but which defendant called the Yiew vein, was the property of plaintiffs to an extent as follows:
“In so far as the plaintiff has the apex of the View vein at any place westerly from the point where the Emily crosses the south side line of the Poser claim, they are entitled to all ore and minerals in the Yiew vein between the plane of their west end line and a parallel plane drawn down through the point where the Emily crosses the south side line of the Poser.”
.Much testimony was heard, and the court, in a carefully considered opinion, held, substantially, that the Poser claim is located on and lengthwise of the Rainbow, of northerly dip and east-west age; that both are intersected by the Emily vein of northeasterly dip and northwest age; that the Emily vein at the surface enters the Poser claim 370 feet west of the southeast corner, and departs 50 feet east of the northwest corner; that at the surface a vein, called Poser by plaintiffs and Pilot by defendant, enters the claim at the southeast comer, dips northerly, running northwesterly to the east side of the Emily; that at some depth the ^Intermediate vein branches from the south side of the Rainbow west of the Emily, dips southerly, and runs easterly; that there are other veins in the Poser; that the Black Rock fault of southerly dip courses through the Poser claim from end line to end line; that within defendant’s claims arc veins which apex in defendant’s ground; that of these veins some (which are named) are of east-west age, with southerly dip and easterly and westerly strike; that there are also the Emily and one other vein of northwest age, having northeasterly dip and northwesterly strike; that the Black Rock fault is also within these claims; that from 100 to 800 feet south of the Poser claim, and from 1,300 to 3,000 feet in depth, thei-e are extensive bodies of ore within defendant’s vertical boundaries, with apexes in defendant’s ground; that, inasmuch as none of the ore bodies are in the Poser or Pilot vein east of the Emily vein, the questions for decision were (1) the existence of the Poser vein west of the Emily vein, and (2) the relation of the Intermediate vein to the small ore body on the 2,800-foot level. It was found that what is called the Poser vein was not a vein of the true fissure type characteristic of the Butte district, but merely a conjugated fracture and stock work and of vein segments, and on the east end was made up from the Pilot vein, belonging to plaintiffs.
With respect to the second main question, it was found that the ore body, found on the 2,800-£oot level and the Intermediate vein, was between two parallel veins of northwest age, 100 to 200 feet distant; that plaintiffs’ raise from the ore body was not in a single plane, hut in offset raises; that it could not be presumed that the vein could be projected through; that in the raise from the ore body to the 2,600-foot level the plaintiffs reach close association between the vein of southerly dip which they were following and the defendant’s Mill vein of northerly dip, hut that it was doubtful whether they united or intersected; that on the 2,600 level plaintiffs drifted 350 feet northwesterly, raised to the 1,700-foot level, drifted southeasterly and through the 1,736 raise to the 1,500-foot level; that in the raise there is a vein which continues to and includes the ore body on the 2,800-foot level; that the Intermediate vein, being of east-west age, and the Emily, of northwest age, would not unite, but that, if the vein in the 1,736 raise and the Emily did unite, the vein in the raise is a branch of the Emily, and is not the Intermediate vein; furthermore, that if the vein in the 1,736 raise was not proven not to unite with the Emily, where it was in such close relation as to suggest union, then under the evidence it could not be regarded as the Intermediate vein.
It was also held that plaintiffs failed to prove that the vein in the 1,736 raise is not a branch of the Emily, and does not unite with the Emily, or that it is the Intermediate vein; that in the 1,550 drift the Intermediate vein is strong, and at 1,583 cross-cut, reduced in size, it departs northeasterly from the 1,550 drift from which point to 1,736 raise is a region of small seams, faults, veins, and branches; that from or near the 1,583 cross-cut is a small vein, 6 to 12 inches wide, coursing southeasterly in 1,550 drift, dividing into two branches, which unite and redivide, the southern branch entering the 1,736 raise and' being a vein in which is the ore body found on the 2,800 level; the northern branch continuing into 1,550 drift as it curved from north, to southeast around the 1,736 raise; that there it converges to the Emily vein, the two forming an acute angle; that the northern branch referred to and the Emily united (the northern branch being a branch of the Emily) is of northwest age, as is the southern branch, which united with the northern branch;. that the southern branch in the 1,736 raise is not the Intermediate vein of east-west age, and that the ore body in the 2,800 level is not in the Intermediate vein, but is in a branch of the Emily vein.
Decree was entered, dismissing the complaint, and plaintiffs appealed.
Assignments of error question the decision awarding to appellee that segment of the Emily apex 370 feet west of the Poser’s southeast corner, covering the ore body in dispute and in appellee’s ground, and not awarding to appellants the ownership of the extralateral segment of the View vein and the ore and minerals found in it to the west of the 370-foot point where the Emily apex crosses the south Poser side line, measured between the conceded limiting extralateral planes.
Assignments also predicate error upon the failure of the court to find that the Emily vein was joined by the View vein beneath the surface, was cut off and thrown by the Black Rock fault, and thus that there was created a subfault apex, or a vein segment, and that such subfault apex extended longitudinally within the vertical boundaries of the Poser claim from the east end line of the Poser westward for several hundred feet; also, upon the findings that appellants were asserting a right to follow the ore body in question on strike, rather than on dip, and that the View- and the Intermediate were separate veins.
The substance of the assignments with relation to the Poser vein is that the court erred in holding that the Poser vein was not in legal contemplation a vein, and in not quieting appellants’ title in and to the Poser vein, as described in the complaint, to the full extent thereof as it extends on its downward course beneath the surface of the adjoining mining claims of appellee.
Understanding of the whole ease is simplified by reference to the generally recognized geological characteristics of the Butte district. Put in the briefest way, it is generally agreed by learned scientists that in that district there are several ages of veins, the oldest of which is known as the east-west, or Anaconda, system. That is described as consisting of a large number of strong east-west mineralized fissures; the larger veins therein generally having a dip to the south in the south and southeasterly part of the district, while in the north and northeasterly parts the veins generally have a northerly dip. Explanation of this changing dip of the veins is that the dip corresponds to the change in strikes. The east-west veins are characterized as large and complex, and composed of a number of closely spaced parallel veins, with many cross connecting stringers or fissures, which are sometimes large enough to constitute separate veins as mines. The next oldest system is spoken of as the Blue vein system, in which the veins are generally of northwesterly-southeasterly direction, and generally cut through and fault the earlier veins. The Blue System is regarded as large, with veins that are-persistent on strike, and, like the veins of the east-west system, have’ many branches, with like parallel veins, and show much alteration or fracture along -the sides of parallel veins. The next, and still younger, veins are referred to as Steward veins, or those striking northeast, having less mineralization and fewer ore bodies than have the Blue and the east-west veins. They are fault veins, rarely encountered in the Butte district.. With all-of the above vein systems, alteration of the granite is found more extensively in the east-west system than. in the Blue vein system, and still less in the Steward veins. Of importance, too, in the district, are certain post-mineral faults, faulting the ore bodies in segments or fragments. Among these is the strong Black Rock fault, which cuts through the Rainbow and Blue veins, and extends through the Poser claim into the Elm Orlu on the east.
The question of the existence of the alleged Poser vein presents difficulty, in solving which we have kept in mind the argument of the appellants that, while the existence or rionexistenee of a vein is often dependent up- ' on mixed questions of law and fact, in this instance the evidence of mineral showing and of the physical characteristics of a vein are so strong that as a matter of law the only conclusion that could properly be reached was that it was a vein. Fundamen, tally, of course, we are glided by the well-recognized knowledge that in the complexities of lodes, with indefinite and irregular walls, while the mineral association of rock in place is an essential element in the definition, the nature of the material, the form of the deposit, and the character of the boundaries are often variant (Lindley on Mines, § 294, p. 265; Iron Silver Co. v. Cheesman, 116 U. S. 529, 6 S. Ct. 481, 29 L. Ed. 712; Star Mining Co. v. Federal Mining Co. [C. C. A.] 265 F. 881), and that it is not necessary for the formation of a disseminated lode that there should be any- walls or any sheering. “It simply requires a more or less porous rock through which the solutions may pass. * * * They may have indefinite boundaries.” Thus, while what are spoken of as structural boundaries are not always necessary to constitute a vein or lode, there must be ore bodies coming from the same source, impressed with the same form, and appearing to have been created by the same processes.
Plaintiffs introduced much testimony in support of their contention, but beyond mentioning a few points it is unnecessary to set it out at length. Much of it tended to show that on the 1,000-foot level the proportionate amount of mineralization, as disclosed by assays of the Poser vein at the west end of the claim, has less copper and zinc, but more silver and lead, than the appellee’s Pilot vein at the east end, and that the Poser at the west end, though showing less copper and lead, had considerably more silver and zinc. Some of^the witnesses made comparison between the vein portion which the appellants claim to be the Poser west of the Emily with the Pilot, admittedly a vein east of the Emily above the 1,000-foot level, and said that in. some places the raises of the disputed Poser vein in that part which appellee says is only the Black Bock fault, higher assay values were obtained from samples than are shown in the vein admittedly found in the east end raises down to the 1,000-foot level.
Witnesses described the results of tests of material taken at the west end of the Poser under a designated raise (A-1034) as disclosing double the quantity of copper, more silver, more zinc, and decidedly larger proportion of lead than there is in the Pilot vein at the east end of the claim in the A-1034 raise. They also said that on the west end of 747-A raise in the Poser vein, while there is less copper and less zinc, there is more lead and silver than in the Pilot in the east end at the 726-A raise, and that in the 351-A raise in the Poser there was less copper, zinc, and silver, but more lead, than the Pilot showed at the 310-A raise; also that in the 1561-B winze, where there is a vein, said to he the North Badger, and in the 1561-A winze, the Black Bock fault appears, but that assays from material taken from each of these workings disclose that, in the so-called North Badger vein in the winze, the average mineralization is no better than that found in other workings in that vicinity, and that the averages of assays taken in those sections, said by appellee to cajiy the Black Rock fault, show a higher degree of mineralization than is shown on the North Badger.
On the other hand* there is no doubt of the fact — we do not understand that the contrary is advanced — that the average of the assays of the Poser above the 1,300-foot level for the full length of the claim does not approximate commercially valuable ore. But experts, some of whom have had long experience in the study of geological and mineral conditions in the Butte district, testified in behalf of appellee that many of the assays made by plaintiffs were from material taken from a selected poorly mineralized slice of a vein other than the Poser, and therefore, when compared with assays taken from the Poser, demonstrate practically nothing in determining the vein character of either structure. They referred to the accepted fact that the great Rainbow lode, between the lines of the Poser claim and above the 500-foot level, has furnished little or nothing in the way of commercial ore, that assays from it would show nothing, and yet that the Rainbow structure has an average width of 70 feet, with mineralization in a strong typical vein, easily recognized and followed.
Assay exhibits used for making comparisons between the averages of mineralization in different parts of the Poser above the 700-foot level and the mineralization of the Pilot vein east of the Emily, with the mineralization of the entire Poser west of the Emily and with the mineralization of segments of the Poser, were introduced with computed results which showed weaker mineralization of the Pilot than of the Poser west of the Emily. As an illustration of their contentions, appellants divided the Poser west of the Emily into thrge segments, including (1) the first 230 feet west of the Emily; (2) the adjacent 100 feet westerly; and (3) 70 feet still further westerly. Their tabulations disclose that in the first 230 feet there is less copper, silver, and zinc than there is in the section adjacent and one loot to the west, and that in the first section, when compared with the Pilot vein east of the Emily, there is disclosed more copper and silver than is to be found in a section of the Pilot, and that each segment of the Poser west of the Emily was somewhat better mineralized than the Pilot vein.
Then, too, there is appellee’s evidence that the reliable method of sampling in the Butte district is to take separately ore streaks, mineralized ground, gouge, or waste, or other material in the working samples, and to show the assay result of each character of material separately — a method which seems to have been at variance with that pursued by appellants, who took samples across the workings at regular intervals. After sampling the Poser down to the 2,000-foot level, plaintiffs stopped, because of the f aet that the workings themselves showed ore and veins. One of the defendant’s mining engineers and geologists, in explaining a map of the outline of the workings of the 1,300-foot level of the Elm Orlu mine, testified that he sampled practically all of the crosscuts in making a determination of the granite alongside of the Black Rock fault; that in sampling crosscuts or drifts a convenient sampling interval was decided upon as 5,10, or 20 feet, and the points were marked; that at each of the points to he sampled an examination was made from side to side at the back of the drift; that, when those points were marked, samples were taken with the right^amount of material from every section of the cut, and that such method continued at each particular sampling point throughout the investigation; that in examining the 1,300-foot level he ‘Went into several of the crosscuts and attempted to compare the mineralization with the alleged walls of the Poser vein as depicted upon certain of the exhibits of the plaintiffs; that he found the average metal content of a given specified portion of a crosscut included in the Poser as described by plaintiffs was a lower degree than the average metal content of the rest of the crosscut; and that like instances were presented on the same level at other crosscuts.
In an effort to arrive at convincing results from the divergent methods testified to, and to deduce entirely satisfactory conclusions therefrom, the District Judge referred in detail to the assays as not impressive, and as of little weight in determining whether the Poser is a vein for the 400 to 600 feet west of the network structure described by geologists as largely Black. Rock fault, with a few segments of veins 'cut by the fault. With the weakening of the force of assay testi-’ mony, the evidence of the geology became the potent influence toward a definite conclusion. As to that there were the opinions of learned specialists, saying in part that they found no fissure without the fault, and no throw of the Poser vein, where cut by the Black Rock fault, with a normal throw of 160 feet; that the Poser was not of the Steward age, and that it showed marked differences west of the Emily from what was shown east of the Emily.
The difficulty of arriving at a well-sustained result is exemplified by mentioning .the fact that the principal witness for the defendant, a geologist, who testified that what was called the Poser lacked the characteristics of a fissure vein, had, in a technical article written some years before, described the Poser vein as of the Steward age. It is to be presumed, of course, that more recently acquired knowledge has brought about a modification of his first opinion; but the very circumstance illustrates the closeness of the crucial question. We leave it, satisfied that the conclusions of fact as found have substantial support in the evidence, and that upon the facts fpund it was not error to hold that there was no Poser vein at the places indicated. i
In adjudging that appellees had the right to the ore within the plane measured 370 feet westerly from the Poser claim east end line, the court found thgt the Emily apex was outside and south of the Poser claim. The predicate for that opinion was that in that section the vein called the Poser was the Pilot in appellee’s claim, a vein of northwest age, with westerly trend through it, and not extending at all west of it. The conflicts in the testimony upon the question whether at the points east of the Emily the veins were of the Pilot, of northwest age, were many and hard to reconcile; but the major conclusion that the Pilot was not found west of the Emily rests upon substantial evidence and must stand.
We next turn to appellants’ contention that the court should, at least, have awarded plaintiffs extralateral rights on the View vein west of the 370-foot point, where the apex of the Emily crosses the south side line of the Poser claim. At the outset appellee says that appellants advanced no such contention in the District Court, and that therd is no assignment of error based upon the omission of the trial court to award to appellants the vein segment referred to. But, as hereinbefore set forth, the complaint alleged that there is a vein, conveniently referred to as the Intermediate, which has its apex for its full length in the Poser claim, and dips southerly underneath the adjoining claims of the defendant and that the defendant was engaged in mining such Intermediate vein on the 2,600 and 2,800 levels, and the prayer is that plaintiffs’ title to the Intermediate vein, as described in the complaint, be adjudged good and valid, and that the defendant be enjoined from asserting any adverse claim thereto between the Poser extralateral planes passed through its end lines. The vein thus described necessarily included the vein segment in controversy. The answer met these allegations, and the assignments of error are sufficient to call for examination of the question presented.
The finding that the .Intermediate vein did not extend outside of the vertical bounds ries of the Poser claim and that the Intermediate, as a branch of the Rainbow, did not extend extralaterally down to and include the ore bodies in controversy, involved only one of the vein segments which the plaintiffs had described as the Intermediate vein, and but partially responded to issues and to the prayer for a decree quieting title to the vein which extended extralaterally beneath defendant’s surface. If the identity of the vein was established as the subject of the controversy, the fact that it was called by appellee the View vein is not of vital importance. To go at length into the evidence seems unnecessary; hence we shall mention but a few of the more prominent points.
Are the View and the Intermediate separate veins? The View vein is disclosed in the workings beneath the surface of the Poser, where the Intermediate is admitted to exist. The View vein appears to be coincident with the Intermediate; it also conforms to the description of the vein in the complaint, to whieh plaintiffs claim title, and which they assert extends extra!aterally. It was after evidence tending to show these facts appeared, and plaintiffs urged that they were entitled to the entiro vein extealaterally from one end line plane to the other end line plane of the Poser claim, including the segment west of the Emily apex crossing, that defendant made the admission that, in so far as plaintiffs had the apex of the View in places westerly from the point where the Emily crosses the south side line of the Poser, plaintiffs were entitled to all ore in the vein between the plane of the west end line and a parallel plane drawn down through the point where the Emily crosses the south side line of the Poser.
That admission is to be construed with the decision of the trial court that the View vein is a branch of the Emily, and that the Emily had its apex in the defendant’s ground for tho easterly 370 feet of the length of the Poser claim. That fact, so found and accepted, was, as we understand the reasoning of the District Court, the foundation for tho judgment that the defendant was entitled to the ore bodies in dispute and embraced within the 370-foot extralateral easterly sweep. It was supported by exhibits and oral evidence that the View and the Emily join at a point, not west, but east, of the Poser claim in the end of tho 1,550-foot drift; nor does the evidence show other joinder west of the Poser east end line, But there was evidence that, in the cross-sections through the Poser claim, beginning at the Poser east end line and running west as far as the middle of tho Poser claim, the View vein courses up iuto tile subsurface of the Poser, across the- Poser south side line plane; that it is seen coming up with apparent regularity, which impels the opinion that on its north of west strike it will meet the Emily under the Poser surface, farther under as the course proceeds westerly.
We find the View or Intermediate vein on the 1,000 level. About 600 feet west of the east end line of the Poser, and north of the south side line, a joining or union is found; the Emily dipping in a direction opposite to the View and overhanging at points. It is not seen, however, in the 500 or 700 levels. It extends down to the 3,000-foot level east of the segment being inquired about; is also found extending for 300 feet west of tbe 370-foot plane on the Poser 2,200 level, in the westerly end of one of tbe drifts; it extends west beyond the 370-foot plane lying vertically beneath appellee's surface. Appellee’s suggestion, that at the 2,800 level the slopes of the View vein strike northwesterly at an acute angle from the east end line plane of the Poser, does not appeal persuasively, especially in view of the evidence that the angle which the average strike tho View vein makes with tho Poser east end line plane is greater than 45 degrees. Last Chance Mining Co. v. Bunker Hill Mining Co. (C. C. A.) 131 F. 579.
Appellants urge with telling force that the court, having held the View to be a branch of the Emily, and having taken the View on a reverse dip to an apex outside and south of the Poser ground, necessarily adopted the presumption that it extended westward to the Poser claim; hence that, by parity of reasoning, it is to be presumed tho vein exists in the extra lateral area to the west
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
FARRELL v. HALE, State Police Officer, et al.
No. 3238.
Circuit Court of Appeals, First Circuit.
Nov. 9, 1937.
J. C. Johnston, of Boston, Mass., for 'appellant.
Sylvester E. Hevers, Asst. Dist. Atty., of Albany, N. Y. (Paul A. Dever, Atty. Gen., and James J. Bacigalupo, Asst. Atty. Gen., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
BINGHAM, Circuit Judge.
On January 11, 1937, the appellant brought this petition for a writ of habeas corpus in the Federal District Court for Massachusetts. The petition was dismissed and the writ denied. He then appealed.
It appears that the petitioner was arrested in Massachusetts . on January 11, , 1937, upon a warrant issued on the 6th day of January, 1937, by the then Governor of the state, James M. Curley, in response to a demand made upon him by the Acting Governor of the State of New York for the rendition of the petitioner to that state to answer to an indictment charging him with having committed there the crime of grand larceny and alleging that he was a fugitive from the justice of that state.
Two questions are presented for our consideration. The first is whether the petitioner, at the time of his arrest on the rendition warrant of the Governor of Massachusetts, was a fugitive from the justice of the State of New York. The second is whether the warrant of the Governor of Massachusetts, issued January 6, 1937, was functus officio on January 11, 1937, when it was served on the petitioner; Mr. Curley at that time having ceased to be the Governor of Massachusetts, as his term of office expired the day following the issuance of the warrant.
As to the first question the contention of the petitioner is that he did not leave the State of New York voluntarily, but against his will and under duress. As to this question it does not appear that the Governor of Massachusetts had made a demand on the Governor of New York for the' return of the petitioner to Massachusetts or that the Governor of New York had issued a warrant for the arrest of the petitioner and his return to Massachusetts. Neither does it appear how the petitioner came to be arrested by the officers of New York City; although it may be surmised that it was in the expectation that a demand was about to be made by the Governor of Massachusetts for his rendition. But, so far as the record shows, no demand was ever made upon the Governor of New York requesting the petitioner’s return to Massachusetts. All that appears is that the petitioner, while in New York City, was taken into custody by a police officer of that city; that upon the arrival in New York of Timothy Collins, a police officer of Massachusétts, the petitioner was taken by the officer in whose custody he was before a judge of the Court of General Sessions of the County of New York and informed “of his right to the issuance and service of a requisition and warrant and of his right to a hearing either on the return of a writ of habeas corpus or a summary hearing as provided for in section 827 of the Code of Criminal Procedure” of New York; and that, in the presence of the court, he thereupon, voluntarily, and not by reason of threats or undue influence on the part of any person or persons whatsoever, waived the issuance and service of a warrant of rendition and consented to return to the State of Massachusetts in the custody of Timothy Collins, the Massachusetts officer; • and that, thereafter, he returned to Massachusetts in the custody of Collins.
It thus appears that the petitioner was not removed to Massachusetts by virtue of any warrant of the Governor of New York, or by virtue of any authority of the State of Massachusetts, for Collins, certainly, as an officer of Massachusetts, possessed no official authority while in New York or on his way through Connecticut to Massachusetts, and the petitioner’s return, under the facts stated, must be regarded as voluntary and without compulsion of legal process, either on the part of the State of New York or the State of Massachusetts.
It, therefore, could be found that, at the time the demand of the Acting Governor of New York was made, the petitioner was a fugitive from the justice of the State of New York, he having been indictedún the County of Saratoga and State of New York in April, 1934, prior to his voluntary departure for Massachusetts as above stated.
Prior to his return to Massachusetts' he had not been taken into custody on the indictment found against him in the County of Saratoga, and there is no evidence in the case that the police officers of the City of New York knew or had ever heard of the existence of the Saratoga County indictment. Had he been held on the Saratoga indictment at the time he w.as permitted to return to the State of Massachusetts, a question would have been presented not now necessary for our consideration.
The remaining question is whether the requisition warrant of the Governor of Massachusetts was functus officio at the time of the petitioner’s arrest, the Governor who issued it having gone out of office the day following its issuance.
Governor Curley, at the time he issued the warrant for the arrest and return of the petitioner to New York, did not act as an individual but in his official character. As said in Taylor v. Taintor, 16 Wall. 366, 370, 21 L.Ed. 287: “In such cases the governor acts in his official character, and represents the sovereignty of the State in giving efficacy to the Constitution of the United States and the law of Congress.” As representative of the state he had jurisdiction and authority to issue the warrant, aqd its validity did not cease to exist from the mere fact that he later went out of office, for his act in issuing it was of an official character and in representation of the sovereignty of the state. In Restive v. Clark, 90 F.(2d) 847, we had a similar question under consideration. It there appeared that W. N. Doak, Secretary of Labor, through his Assistant Secretary, Snyder, on the 17th day of June, 1931, issued his official warrant for the deportation of an alien; that, thereafter, for some reason the execution of the warrant was stayed and the bail of the alien canceled; that, when the time for its execution arrived, the term of service of Mr. Doak, as Secretary of Labor, had expired (March 4, 1933) due to a change of administration. And this court held that “the fact that Mr. Doak ceased to be Secretary of Labor on March 4, 1933, did not affect the warrant and order of deportation” of June 17, 1931; the stay having been removed.
The judgment or order of the District Court is affirmed.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_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.
CITIZENS FOR ALLEGAN COUNTY, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent, City of Allegan, Michigan, Consumers Power Company, Intervenors.
No. 21842.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 16, 1968.
April 29, 1969.
Mr. William I. Harkaway, Washington, D. C., for petitioner.
Mr. David F. Stover, Atty., Federal Power Commission, with whom Messrs. Richard A. Solomon, General Counsel, Peter H. Schiff, Solicitor, and Drexel D. Journey, Asst. General Counsel, Federal Power Commission, were on the brief, for respondent.
Mr. Howard E. Wahrenbrock, Washington, D. C., for intervenor, City of Al-legan, Michigan.
Mr. George F. Bruder, with whom Messrs. Thomas M. Debevoise and Ernst Liebman, Washington, D. C., were on the brief, for intervenor, Consumers Power Company.
Before Danaher, Wright and Leventhal, Circuit Judges.
Circuit Judge Danaher became Senior Circuit Judge on January 23, 1969.
LEVENTHAL, Circuit Judge:
The central question on this appeal is) whether petitioner was denied the hearing to which it is legally entitled by the procedure followed by the Federal Power Commission (FPC) in issuance of orderi authorizing acquisition of the electric system of Allegan City Light Depart • ment and authorizing transfer of i. license of the Calkins Bridge Project, a dam and power house on the Kalamazoo!) River. Petitioner is a citizens group, the Citizens for Allegan County, Inc. (Citizens). Intervenors are the acquiring company, Consumers Power Company (Consumers) and the former owner of the facility and license, the City of Alle-gan, Michigan (City). Although we conclude that the orders should be affirmed, the questions are not free from difficulty, and our ruling is narrowly confined to the facts and circumstances before us, to which we now turn.
Prior to 1968 the City owned and operated its electric system — consisting of generating facilities, a 2,550 kw hydroelectric plant at the Calkins Bridge Project and a 4,576 kw diesel plant, and the transmission and distribution facilities necessary to service 1,822 customers in the Allegan, Michigan, area. The City’s electric system was not interconnected with any other system, and generated its own energy requirements. Early in 1966, the City began seeking an interconnection with some other electric system from which it could purchase power. After receiving proposals from Consumers and from Wolverine Electric Cooperative, the City Council decided to consider an offer by Consumers to purchase the entire system from the City. The resulting agreement, dated December 5, 1966, for the sale of the City’s system to Consumers for $1,785,000, was submitted to a referendum election held January 18, 1967, which resulted in a vote — 798 in favor of the sale, and 438 against— that satisfied the 60% vote requirement of the City Charter.
Applications were made to the FPC on June 9, 1967, a joint application by the City and Consumers for approval of the license transfer for the Calkins Bridge Project as required by § 8 of the Federal Power Act, and an application by Consumers for approval of the merger under § 203(a) of the Act.
On July 12, Citizens filed a petition in opposition to the sale, seeking leave to intervene as a party, with the right to produce evidence, cross-examine witnesses and be heard on brief and oral argument. This petition to intervene was answered by Consumers and the City; it was amended; and the amendment was answered by the applicants. On January 29, 1968, the FPC issued an order granting Citizens intervention, and simultaneously issued orders approving the license transfer and the merger of facilities. Citizens filed a petition for rehearing which was denied, and then petitioned this court to review the orders of the FPC.
I
The Citizens group was entitled to intervene and to have a meaningful opportunity for hearing in order to oppose the applications of Consumers and the City. It gives us pause, then, to see that when the Commission granted intervention it simultaneously closed out the proceeding without any further presentation from the intervenor. This is indeed “disturbing” — the word used by Commissioner Ross in dissenting from this abbreviated procedure. The use of such a procedure puts a heavy burden on the agency to demonstrate that its procedure comported with fairness and requirements of law.
However, the right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing. The precedents establish, for example, that no evidentiary hearing is required where there is no dispute on the facts and the agency proceeding involves only a question of law.
An analogy is sometimes drawn from the court rules which provide summary judgment procedure for the cases that involve only legal issues and no bona fide disputed questions of fact, where it is quite clear what the truth is and there is really no issue to try.
This analogy calls to mind, however, that even in court litigation there are limitations on use of summary procedure, limitations that may usefully delineate, and restrict, the appropriate use of abbreviated procedures by administrative agencies required to act after opportunity for hearing.
For example summary procedures are held to have only limited scope in antitrust litigation. When that approach was first put forward, reference was made to the inappropriateness of summary procedures for an area of law “where motive^ and intent play leading roles?’ The same principle was also applied, however, to an area not turning on intent when the Court, faced with a novel legal issue, decided it was inappropriate “to reach a conclusion on the bare bones of the documentary evidence,” and determined to consider its disposition in the light of a trial developing more information as to the actual impact on competition of the arrangements under attack. White Motor Co. v. United States, 372 U.S. 253, 259, 263-264, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). Similar considerations may be pertinent when an agency is considering approval of a merger or other issues of consolidation of control. These and other questions of public interest confronting an administrative agency will often be illuminated by an exploration in greater depth than can be provided simply by pleadings and documents.
The burden of justification resting on the Commission is even heavier in a case like this where the agency not only failed to notice an evidentiary hearing, but disposed of the matter without even brief or argument from the petitioner.
Yet in the particular case we affirm, not without some hesitancy, because the unique setting includes a political decision made by the City coupled with the weakness of the Citizens’ allegations. We conclude that the information" presented to the FPC in the applications, exhibits, affidavits, intervention petition and other pleadings, developed the salient facts of the dispute to a sufficient depth and detail that the Commission was enabled to perceive, define, and resolve the various strands of public interest. It is important that the Commission’s opinion addressed itself to each of the problems raised by petitioner and set forth its reasons for concluding that the public interest lay in approval of the merger. Eeviewing the Citizens’ assertions as well as the setting of the case, we cannot say the Commission abused its discretion either in its conclusions or its procedure, though we in no way endorse the latter. We also feel that the matter was clearly enough presented and apprehended, and that absent some additional allegations or showing no further procedure was required.
II
The applications of Consumers and Al-legan stated, inter alia, that the acquisition would make possible removal of duplicate distribution facilities; that it would end the hazardous isolated status of Allegan; and that Consumers would establish a service headquarters in Al-legan with 20 employees and a payroll of about $200,000 a year, the number of these employees to increase to about 40 in the future.
The issues raised by Citizens were; (1) there were irregularities in the election approving the sale; (2) the acquisition would result in increased electric rates for Allegan residents; (3) the effect of Consumers’ accounting would result in increased costs; (4) the City of Allegan was overborne by Consumers Power on the deal; (5) Consumers Power earned a rate of return higher than authorized by the Michigan Public Service Commission; (6) the transfer of the hydroelectric project would harm the recreational use and water level of Lake Allegan; and (7) in both its petition to intervene and its petition for rehearing, Citizens asserted that alternative courses could be followed — there was no need to sell since ample power existed and an interconnection could be had through a purchase agreement as offered by Wolverine Electric; and if the system were sold, there should be a repurchase agreement covering the hyroelectric plant.
A. Significance of City’s Election and Political Decision
A unique feature of this case, significantly supporting the Commission’s course both on the merits and procedure, is the fact that the City, through its council and its citizens on referendum, has made a political determination to increase the extent and reliability of its electric system, to entrust that responsibility to Consumers, and to get the municipality out of the electric business.
The FPC was aware that its role was not a mere “ministerial one” even though the City had made its choice. As it stated in denying rehearing:
it is clear that we would be concerned if the proposed acquisition by a public utility would impair reliability of service or would inherently diminish the potentiality for increased service at the lowest reasonable rates, or was at so low a price as to indicate coercion by the buyer or at so high a price as to impair the financial status of the purchaser. * * * [W]e would also be concerned if there were indications that significant competition between the acquired system and the purchasing utility was being eliminated by the merger, without compensating public benefits which otherwise were not likely of achievement.
Yet the Commission correctly pointed out that the over-all balance of public interest involves not only an economic balance but also a political determination of a city council and electorate which “includes other considerations which cannot be quantified, of political and economic philosophy, management capability, governmental priority, etc.”
There is considerable overlap in the fields of vision of the FPC and the City. Both are concerned, for example, with the direction and extent to which the cost and rates of utility service may be changed as a result of the transfer. But there is also a difference in their focus on public interest determinations. The FPC is not interested alone in economic costs. It must consider other elements of the publieinterest, including specifically, here, the impact on the recreational use of the lake. The City has an even broader outlook. It may properly consider benefit to other public uses having no nexus whatever to the electrical system as such- — e. g., the possibility of devoting the proceeds to schools, or hospitals, etc. Cities as well as individuals may rightly decide that their over-all interests are served better by renting than buying, even though the benefits of having capital for other purposes are subject to an offset in the need to pay economic rent and profit (here a return regulated now by a state commission).
In this vortex of factors affecting the public interest we think the Commission was entitled, in its determination of public interest, to accord significant weight to the determination made by the city council, and electorate, if carried out with fair procedures. The City’s determination was not made decisive, nor could it be. Thus the Commission must take into account the impact of the proposal on consumers who were not voters — here commercial customers. But lit is appropriate to accord more latitude for summary Commission procedures where a public interest determination has been made by a city, at least where, as here, the Commission has carefully analyzed the assertions of those intervening to upset that determination and has found in these allegations significant deficiencies and inadequacies. A greater duty of inquiry in depth may be applicable in a case where the Commission was the sole official guardian of the public interest.
B. Review of Citizens’ Allegations and FPC’s Comments
It is with this framework in mind that we take up, seriatim, the assertions of Citizens, and conclude that Citizens did not allege sufficient facts, or likelihood of discovery of facts, to require reversal of either the policy determination made by the FPC or its procedure.
1. Alleged Election Irregularities: If, of course, petitioners could undercut the validity of election (or the city council action it asserts was overborne, see paragraph 4 below) the special factor of this case would be destroyed. However, the kind of showing necessary to undermine a vote would hardly seem to be proffered by a claim that the ballot did not properly present the “proposition” as required by the City Charter because the price was not on the ballot. Compare Kohler v. Tugwell, 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969).
The claim that Consumers charged election expenditures as operating expenses — an accounting entry easily reversible, if improper — would not invalidate the vote. Citizens also says the ads of Consumers were misleading in asserting protection of water level. The FPC set water level requirements in the license on the basis of independent studies, and future approval of the FPC is needed before Consumers Power can alter these license requirements.
The FPC also said it was not authorized to pass on election irregularities. While the FPC may not make a binding adjudication on them, it does not mean that the FPC cannot take them into its consideration. However, there was no effort here to invoke the conventional state procedures available to challenge an election. And the asserted “irregularities” were limited in significance. We certainly are not persuaded that a hearing concerning the election was required.
2. The Balance of Economies: Petitioner’s second point is that the higher rates to be paid by the consumers and the loss of the profits the City had made operating the electric system will not be offset, as asserted by Consumers, by the taxes now to be collected on the facilities and interest from the 1.7 million dollars. Citizens assert the sale means an annual loss, but it reaches this conclusion by looking at the cash flow of the electric system, and failing to provide deductions for depreciation reserve and interest payments. The Commission’s decision did not find as fact that the sale would result in a net gain, it merely stated that Consumers had made that assertion. In denying rehearing the Commission, in its footnote 1, decried as unrealistic the accounting procedure used by Citizens. More importantly, it concluded
Thus [because of the political determination made by the city council and voters] even if, after hearing * * * we were to determine that the financial gains to the City, as a municipal body, from selling the system were outweighed by the losses, we would not believe it appropriate to prevent the City from choosing to get out of the electric business.
******
In short, we conclude that the matters over which the petitioner would have us take cognizance and with respect to which it seeks an evidentiary hearing lie peculiarly within the area where Allegan and its citizenry is entitled to make its own determination. Furthermore, even assuming the validity of the factual allegations regarding the financial gains and losses to the City, those obligations do not present a basis for concluding that the proposed acquisition is contrary to the public interest. (Bracketed material added.)
This is consistent with the position taken by the Commission in its original determination:
The electorate of Allegan chose the somewhat higher rates of Consumers in return for what they apparently feel are adequate offsetting benefits. * * [while] we have independent responsibilities to determine the appropriateness of the acquisition and are not bound by the results of the special election by the City of Allegan. * * Looking at the losses alleged by the intervenor and the benefits to the City resulting through increased tax revenue, interest on investment of the purchase price [undisputed facts], enhanced electric system reliability, and considering the entire record before us, we find that on balance the transaction is consistent with the public interest. (Bracketed material added.)
It is not within our province to consider whether we would have made the same determinations at the agency level. Our limited role as a court of review requires us to say that we discern no facts that are in dispute, or which have not been accepted as true, that required factual hearing. Nor can we say after, considering the political determination and factors of added reliability, that the Commission was in error in its policy determination regarding the public interest.
8. Accounting for the Acquisition Adjustment: Citizens objected that $400,000 of an acquisition adjustment of $472,181, the amount paid in excess of the depreciated original cost of the facilities, should not be an above-the-line account as Consumers Power proposed. The FPC required that the adjustment be charged to a below-the-line account. Citizens raises no further question on this aspect of the case.
4. The Contention that the City of Allegan Was Overborne by Consumers Power: As with the issue of election irregularities, the significance of the political determination made by the City would be effectively undercut by any showing of coercion or undue influence. However, the facts alleged by Citizens do not suffice for this purpose. Citizens originally claimed that coercion existed in that Consumers offered the City “no reasonable choice other than to sell,” and that Consumers did not offer to supply Allegan with electric energy on reasonable terms. The answering pleading attached as an exhibit a letter to the City Council from Consumers offering to sell power at the company’s standard wholesale power rate. Citizens then amended its petition suggesting coercion in Consumers’ refusal to furnish electric power at a “rate comparable to the offer of Wolverine Electric Cooperative.” We do not see in this even a glimmer of an indication that Consumers has overborn the free choice of the City. At most it is an allegation that the general tariff structure of Consumers means higher rates to the City than Wolverine would charge.
5. Consumers’ Alleged Excessive Return: Petitioners allege that Consumers Power is earning a rate of return higher than allowed by the Michigan Public Service Commission. The FPC, while not accepting this as a verity, stated that assuming arguendo its correctness, the electorate “at worst” chose to pay the higher rate for offsetting advantages, and that this fact did not alter the Commission’s finding that the merger was consistent with the public interest. Citizens asserted in its amended petition to intervene that the Michigan Public Service Commission had failed effectively to regulate electric utilities due to its “inadequate budget and inadequate staff.” While unfortunate, if true, the alleged failure would seem to be remediable elsewhere, and in any event it does not affect the crucial determination by the FPC.
Moreover, it may be assumed, at least arguendo, that a collapse in state regulatory controls that is either documented or notorious would properly be taken into account by a federal agency in determining what is required in the public interest. Compare Atlantic Refining Co. v. Public Service Comm’n of State of New York, 360 U.S. 378, 388-394, 76 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). But it cannot seriously be supposed that a federal agency is required to devote its staff and an evidentiary hearing to an analysis of the effectiveness of a state commission merely because some citizens recite, in terms that are general and eon-clusory, an objection to a city’s willingness to accept the same safeguards that the state law extends generally to consumers.
6. The Alleged Effect on Lake Al-legan: On this issue, as on point 3, it seems that the FPC has not ignored the pleas of Citizens, but has taken effective action in the circumstances. The FPC stated that both Citizens and Consumers were focusing on the wrong issue over whether on not Lake Allegan is presently suited for recreational use, for the important issue is “how can the development of the recreational potential of the Lake be best promoted and effectuated.” The FPC then conditioned its approval upon Consumers’ preparing a satisfactory recreational use plan. It said that petitioners need not fear improvident ultimate disposition of the project since the FPC must approve any future transfer of the license, and that under the Act and regulations, the FPC could proscribe the abandonment or sale of the licensed project without the Commission’s permission. Concerning the desire of Citizens for a re-purchase agreement, the Commission felt that this would give control over disposition of project property to a non-licensee which would be improper. The Commission also conditioned the § 203 approval upon the acceptance by Consumers of the new license which included amendments protecting the lake’s water level, plus conservation, recreational use and public access.
7. Alternative Courses: Citizens argues that the FPC cannot act merely as an arbitrator between two parties, but must discharge its own duty to inquire into the relevant facts concerning the public interest, including possible alternative courses. We agree that the FPC has an active and independent duty to guard the public interest, and that this may require consideration of alternative courses, other than those suggested by the applicant. This does not mean that the FPC must always undertake exhausting inquiries, probing for every possible alternative, if no viable alternatives have been suggested by the parties, or suggest themselves to the agency. We have noted that this case involves sale of an electric system by a city. A sale by a private party would have presented a situation devoid of a prior determination of public interest served by the sale, and would have called on the FPC to make more intensive inquiry before finding the sale consistent with the public interest. Here we have a legitimate political determination by the City of Allegan and its electors — the owners, and to a great extent the consumers of the electric power system. Their choice to stop operating the electric system limits the viable alternatives left open.
Citizens did not suggest any possibilities that had not already been rejected by the City, other than a manifestly inadequate reference to a vague and “undisclosed industrial entity” that as-sertedly might have been adapted to safeguard the use of the lake. In this context we cannot say that the FPC stands condemned for failure to give adequate hearing because of the possibility of alternatives.
Citizens’ brief on appeal contains, in addition to assertions on the balance of economies, alternatives, and misuse of the lake, various points made in rather summary fashion such as the lessening of competition, unclarity of whether and what duplicate facilities will be removed, and the fact that not all the electric consumers were voters.
These points are extremely bare and sketchy and they probably fall within the ambit of our prior discussion upholding the FPC’s disposition. But if not, they cannot receive separate attention because they were not set forth in the petition for rehearing filed with the Commission, and hence, under section 313 of the Act, cannot be urged to this court.
Ill
We revert for amplification to a point that concerns us, that the agency not only failed to notice an evidentiary hearing, but failed to accord any other opportunity for presentation of views. An agency concerned with public interest would not be opening the door to significant delays or drain of resources if it were to provide opportunity to a petitioner to file a memorandum setting forth his position (and proffer) on the issues of fact and law he deems controlling.
Light without heat may be obtained from an on-the-record conference procedure — partaking of the nature of a pre-hearing conference but without the notice of hearing — conducted by a member of the staff or possibly a hearing examiner. This would permit a meaningful exploration of possible public interest considerations without the rigidity and embroilment of an evidentiary hearing.
We accept the procedure followed here of shutting off the petitioner without any further presentation because we think it manifest that the document denominated petition for intervention was also, in substance, a brief and written argument. It is possible, as petitioner correctly notes, that a petition for intervention may fall far short of the presentation on the merits, facts, law or both, contemplated by the petitioner for subsequent delivery. And an intervenor should not be prejudiced merely because his petition to intervene contained some argumentation relating to the merits in order to show seriousness of purpose. But here petitioner has given no indication of any argument or presentation omitted from consideration because of the procedure followed. No proffer has been made to the agency or this court either in the form of motion for leave to file additional evidence or otherwise.
We are left with the over-all conviction that petitioner has put together a number of objections that have a theoretical predicate but are of no substantial moment in the particular case.
IV
We stepped over certain jurisdictional matters raised by intervenor at the threshold. We reject the claim that the appeal should be dismissed for lack of showing of aggrievement. Various decisions recognize the broad principles of standing applicable to consumers of a service under regulatory control. Care must be taken to avoid confusing the issue and dismissing a consumer’s claim on jurisdictional grounds when the real grounds of rejection go to the merits. If the Citizens-consumers had been right on the merits of their claims they would plainly have been aggrieved.
As for intervenor’s claim that our recent decisions show lack of jurisdiction reaching back to the FPC threshold, this issue presents various difficulties, as indicated in the footnote. Since such difficulties may be curtailed or eliminated if the jurisdictional issue arises again, by focusing the issue and the record on the problem at' the outset, we think it appropriate to invoke the doctrine under which, in appropriate cases, a court' may bypass a jurisdictional issue without decision and dispose of the case by a ruling on the merits.
Affirmed.
. 16 U.S.C. § 801 (1964).
. 16 U.S.C. § 824b (a) (1964).
. Though captioned in only one docket the intervention obviously was directed to both applications.
. Section 203(a) of the Act, 16 U.S.C. § 824b(a) (1964), provides that when the Commission is considering the grant of approval to a merger of electric facilities within its jurisdiction, the Commissioner must give notice to the state’s Governor, affected state commissions, and “to such other persons as it may deem advisable. i After notice and opportunity for hearing, i if the Commission finds that the proposed disposition, consolidation, acquisition, or control will be consistent with the public interest, it shall approve the same.”
While there is no similar wording in the statute governing transfers of licenses, the Commission does not claim that the two dockets can be meaningfully separated for purposes of consideration of the public interest.
. United States v. Storer Broadcasting Co., 351 U.S. 192, 202-205, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); Persian Gulf Outward Freight Conference v. FMC, 126 U.S.App.D.C. 159, 164-165, 375 F.2d 335, 340-341 (1967); Virginia Elec. & Power Co. v. FPC, 351 F.2d 408, 410 (4th Cir. 1965); Producers Livestock Marketing Ass’n v. United States, 241 F.2d 192, 196 (10th Cir. 1957), aff’d sub. nom. Denver Union Stockyard Co. v. Producers Livestock Marketing Ass’n, 356 U.S. 282, 78 S.Ct. 738, 2 L.Ed.2d 771 (1958). Cf. Pikes Peak Broadcasting Co. v. FCC, U.S.App.D.C., (Nos. 22023-24 March 24, 1969); Groendyke Transport Inc. v. Davis, 406 F.2d 1158 (5th Cir., decided January 2, 1969); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966).
. See Rule 56 of the Federal Rules of Civil Procedure; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944).
. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed. 2d 458 (1962); Levin v. Joint Comm’n on Accreditation of Hospitals, 122 U.S.App.D.C. 383, 386, 354 F.2d 515, 518 (1965).
. Cf. Northern Natural Gas Co. v. FPC, 130 U.S.App.D.C. 220, 399 F.2d 953 (1968); City of Pittsburgh v. FPC, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956).
. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied, Consolidated Edison Co. of N. Y. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966).
. Cf. Pittsburgh v. FPC, supra note 8.
. Commissioner Ross, dissenting, felt a hearing should be had on the balance of economies, recreational benefits (discussed in paragraph 6 below), and on the terms and conditions of the § 203 decree. He was disturbed with the precedential tones of the case since intervention was permitted in the same order determining the merits.
. Udall v. FPC, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Northern Natural Gas Co. v. FPC, supra note 8; Pittsburgh v. FPC, supra note 8; Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 617-620 (2d Cir. 1965), cert. denied, Consolidated Edison Co. of N. Y. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966).
. Compare Joseph v. FCC, 131 U.S.App.D.C. 207, 404 F.2d 207 (1968); Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966); Bebchick v. Public Util. Comm’n, 109 U.S.App.D.C. 298, 287 F.2d 337 (1961): Pittsburgh v. FPC, supra note 8.
. As for Utility Users League v. FPC, 394 F.2d 16 (7th Cir. 1968), cert. denied, 393 U.S. 953, 89 S.Ct. 377, 21 L.Ed.2d 365 (1968), cited by intervenors, we find the approach of the concurring opinion more persuasive than the majority.
. Consumers raises the jurisdictional objection that under our ruling in Duke Power Co. v. FPC, 130 U.S.App.D.C. 389, 401 F.2d 930, its purchase of the City’s facilities was not subject to the Commission’s approval, since this was an acquisition of facilities utilized solely in the local distribution of electrical energy for retail sale.
This objection was not raised before the Commission. A question arises whether it may be presented for the first time in this court, at least for the purpose of sustaining (not attacking) a Commission order.
The brief of counsel for the Commission argues that the case is not moot since part of the facilities transferred were classed under the City’s license as “primary lines,” see § 3(11) of the Act, and with the function of transmitting energy generated at the project to the distribution system, and while the City operated in an isolated manner the acquisition by Consumers might result in a situation where these transmission lines were subject to use for interstate transmission
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" 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".
MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. COUNTRY LIFE INSURANCE COMPANY, Country Mutual Insurance Company and Country Casualty Insurance Company, Defendants-Appellants.
No. 88-1115.
United States Court of Appeals, Seventh Circuit.
Argued May 31, 1988.
Decided Oct. 12, 1988.
Joseph P. Della Maria, Jr., Rothschild Barry & Myers, Chicago, Ill., for defendants-appellants.
David L. Antognoli, Bernard & Davidson, Granite City, Ill., for plaintiff-appellee.
Before BAUER, Chief Judge, and CUMMINGS and CUDAHY, Circuit Judges.
CUMMINGS, Circuit Judge.
Country Life Insurance Company, Country Mutual Insurance Company, and Country Casualty Insurance Company (“Country Companies”) appeal the district court’s entry of partial summary judgment in favor of plaintiff Mutual Service Casualty Insur-anee Company (“MSI”), which sought declaratory relief concerning its obligations under both a general liability and an umbrella insurance policy it issued to Country Companies. The court below concluded that because MSI’s policies did not cover the intentional torts alleged in the underlying lawsuit, MSI need not defend nor indemnify Country Companies against the class action seeking damages in excess of $20 million. We affirm for the reasons that follow.
Joseph Slimack, as well as certain other former agents of Country Companies, filed a two-count complaint on October 21, 1981, in state court, alleging that Country Companies “knowingly” engaged in a “scheme or plan” to deprive them of compensation due under agency contracts as well as firing them or forcing their resignation if they objected to the foregoing conduct. Count I claimed that when various insurance policyholders failed to pay their premiums, Country Companies then withheld the agents’ commissions and applied them to pay the delinquent premiums. Count II further alleged that the insurance accounts procured by the former agents were subsequently transferred to the new agents who replaced them. The claimant agents also asserted that they suffered emotional distress emanating from Country Companies’ actions. The complaint sought unquantified compensatory damages as well as $20 million dollars in punitive damages on each count.
MSI insured Country Companies under two policies, a general liability and an umbrella policy. The general liability policy covered property damage and bodily injury, while the umbrella policy insured against loss in excess of the general policy’s limits of coverage. In each policy, the insuring clause restricted liability coverage to loss caused by an “occurrence,” defined as “an accident ... which results in bodily injury or property damage neither expected or intended from the standpoint of the insured.”
One month after the filing of the Sli-mack suit, through a letter of F.J. Hagen, its Business Insurance Claims Manager, MSI accepted the defense of Country Companies, but explicitly reserved the right to disclaim its coverage and “to bring a declaratory judgment action sometime in the future to litigate these coverage issues” (Def.App. 115). After reserving its rights, MSI then allowed Country Companies to retain independent legal counsel to defend the action, and MSI paid the litigation costs until 1986. Payment was pursuant to a December 3, 1981, letter of Hagen, stating that MSI was “willing to defend those companies subject to the right to bring a declaratory judgment action at an appropriate time and a right to withdraw from the defense” (Def.App. 117).
MSI later brought this declaratory judgment action in federal district court in April 1985. Country Companies responded, and in a memorandum opinion entered on June 19, 1985, Chief Judge Foreman ruled:
“Here the Plaintiff [MSI] asks this court to declare that the agents have failed to allege facts in their complaint sufficient to sustain a cause of action for mental anguish or emotional distress, apparently on the contention that absent these two theories of recovery the agents’ complaint would not fall within the insurance policy. It is important to note that the plaintiff is not asking this court to declare that the facts as alleged in the state court complaint do not fall within the confines of the insurance policy. Clearly, this court would have the authority to so declare. Rather, the plaintiff is apparently asking this court to declare that, although the facts alleged fall within the policy, they are insufficient to sustain a cause of action for emotional distress or mental anguish. However, by so declaring, this court would be deciding an ultimate issue in the underlying suit, namely whether the agents’ complaint fails to state a valid claim for relief. This issue must be decided by the state court.”
(Def.App. 96). After filing an amended complaint on November 19, 1986, MSI moved for partial summary judgment on March 20, 1987, seeking an order that it had no duty to defend the Slimack action. On December 14, 1987, the district court held that the underlying litigation did not allege the requisite “occurrence” because it predicated Country Companies’ liability solely on an intentional tort theory. The court further decided that MSI’s letter agreeing to pay Country Companies’ defense costs did not estop it from reserving its right to withdraw. This appeal followed the grant of partial summary judgment. This Court has jurisdiction because the court below entered a final judgment as to MSI’s claim under Rule 54(b) of the Federal Rules of Civil Procedure.
Country Companies first contends that diversity jurisdiction does not exist because nothing in the record shows that MSI is a Minnesota corporation. MSI’s amended complaint omitted essential jurisdictional allegations, but did assert that its principal place of business was in Minnesota and that the suit was brought under 28 U.S.C. § 1332, the diversity provision of the Judicial Code. Although neither the parties nor the district judge noticed the defect until after the judge had rendered his decision on the merits, it was not too late for Country Companies to question the court’s jurisdiction in its appellate brief. See Fed. R.Civ.P. 12(h)(3); Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 530 (7th Cir.1985); cf. Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir.1982) (per curiam). MSI relies on its Proposed Findings of Fact and Conclusions of Law which proposed that the district court find MSI to be a citizen of Minnesota. We need not decide whether such a proposal is sufficient to establish diversity jurisdiction, since MSI has also requested leave to allege that it is a mutual insurance company incorporated under Minnesota law, conceding “inartful pleading” of its complaint. As we recently noted, 28 U.S.C. § 1653 authorizes the amendment of “defective allegations of jurisdiction.” Newman-Green, Inc. v. Alejandro Alfonzo-Larrain R., 854 F.2d 916, 919 (7th Cir.1988) (en banc). Furthermore, the Federal Rules of Civil Procedure’s liberal amendment rule permits a party who has not proved or even alleged that diversity exists to amend his pleadings even as late as on appeal, and if nothing appears to the appellate court that would bar jurisdiction, jurisdiction is deemed proper, despite the plaintiff’s usual burden of alleging and proving jurisdiction. Buethe v. Britt Airlines, Inc., 787 F.2d 1194 (7th Cir.1986). Such defective allegations of jurisdiction may be amended even after judgment has been entered and an appeal taken. 28 U.S.C. § 1653; Strain v. Harrelson Rubber Co., 742 F.2d 888 (5th Cir.1984). We therefore grant MSI’s request to supplement its complaint by asserting that it is a Minnesota corporation.
That does not end our inquiry, however. Country Companies, relying on the Second Circuit’s opinion in Baer v. United Services Automobile Ass’n, 503 F.2d 393 (2d Cir.1974), argues that MSI is an unincorporated association having the citizenship of each of its members, at least one of whom must be an Illinois citizen, thereby destroying diversity jurisdiction. In Baer, the defendant claimed that it was a “reciprocal insurance association,” a type of unincorporated association. Whether it should be considered a corporation for diversity purposes depended on state law. Baer, 503 F.2d at 395 (citing United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217); see also Cote v. Wadel, 796 F.2d 981, 983 (7th Cir.1986). The court concluded, after examining the relevant Texas statutes, that the defendant was an unincorporated association, in part because though Texas law “subjects both [reciprocal insurance associations and insurance corporations] to the same supervision of state insurance officials,” id. at 394, it does not “intrude upon the traditional distinction drawn between [the two],” id. at 394-395.
Country Companies points to similarities between the Minnesota statutory scheme and that of Texas. But Country Companies overlooks the provisions of Minnesota law which provide that mutual insurance companies are incorporated under Minnesota law. Minn.Stat.Ann. § 66A.03. Thus, unlike the defendant in Baer, MSI is a corporation subject to Minnesota’s corporation laws. Minn.Stat.Ann. § 66A.02. See Cote, 796 F.2d at 983 (“a corporation, is a corporation, is a corporation”). Accordingly, subject matter jurisdiction based on diversity of citizenship exists.
Having concluded that diversity jurisdiction does exist, we must examine the substantive issue in this case, namely, whether MSI had a duty to defend the underlying Slimack litigation against Country Companies. This case was decided below on a motion for partial summary judgment, in which MSI had the burden of establishing the lack of a genuine issue of material fact. LaSalle Nat’l Bank v. General Mills Restaurant Group, 854 F.2d 1050, 1052-53 (7th Cir.1988). In analyzing the relevant law applied below, significant deference must be given to the district judge’s interpretation of the law of the state in which he sat. Hartford Casualty Ins. Co. v. Argonaut-Midwest Ins. Co., 854 F.2d 279, 282 (7th Cir.1988). The parties here agree that the law of Illinois governs this dispute; therefore we need not address that issue further. Bandag, Inc. v. Nat’l Acceptance Co. of America, 855 F.2d 491, 493 n. 1 (7th Cir.1988).
On appeal, Country Companies asserts that as a matter of law, MSI has a duty to defend the Slimack litigation. Our main concern, however, is whether any genuine issues of material fact remain as to MSI’s reservation of the right to bring a declaratory action. We need also address whether this reservation was superseded by either a subsequent agreement or by MSI’s conduct in paying Country Companies’ defense costs.
Under Illinois law, it is generally held that an insurer may be estopped from asserting a defense of noncoverage when the insurer undertakes to defend an action against the insured. However, it is also the general rule that this undertaking must result in some prejudice to the insured. See Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 196, 355 N.E.2d 24, 29 (1976). In Gibraltar Ins. Co. v. Varkalis, 46 Ill.2d 481, 263 N.E.2d 823 (1970), the insurer filed an appearance on behalf of its insured in a wrongful death action. Fourteen months later, during which time the insurer had continued the exclusive representation of the insured, the insurer advised the insured that it was representing him under a reservation of rights. Significantly, the Illinois Supreme Court concluded that “[djuring the interim [the insurer] acted on behalf of [the insured] as though no questions of policy coverage were involved, thus clearly causing him to wholly rely for his defense on the efforts of [the insurer].” 46 Ill.2d at 488, 263 N.E.2d at 827. Interpreting this language, this Court in Northwestern Nat’l Ins. Co. v. Corley, 503 F.2d 224, 229 (7th Cir.1974), decided that the quoted language implicitly required a showing of prejudice to the insured before estoppel is established. The Appellate Court of Illinois similarly construed Gibraltar in Greater Chicago Auction, Inc. v. Abram, 25 Ill.App.3d 667, 323 N.E.2d 818 (1st Dist.1975).
Such a demonstration of prejudice, however, is not necessary here due to MSI’s prior reservation of rights. The Illinois Appellate Court in Tapp v. Wrightsman-Musso Ins. Agency, 109 Ill.App.3d 928, 930, 65 Ill.Dec. 353, 355, 441 N.E.2d 145, 147 (4th Dist.1982), held that there would be no estoppel where an insurer, such as MSI, expressly reserved its rights and later sought a declaratory judgment. The record here fails to show that any subsequent agreement between the parties superseded MSI’s reservation of right to withdraw from the defense of the Slimack litigation, and accordingly MSI is not es-topped from seeking declaratory relief. The use of a declaratory judgment action in cases such as this has long been supported by Illinois courts, see, e.g., Thornton v. Paul, 74 I11.2d 132,159, 23 Ill.Dec. 541, 551, 384 N.E.2d 335, 345 (1978); Sims v. Illinois Nat’l Casualty Co., 43 Ill.App.2d 184, 193 N.E.2d 123 (3d Dist.1963); Note, Use of the Declaratory Judgment to Determine a Liability Insurer’s Duty to Defend, 41 Ind.L.J. 87 (1965), and we see no reason to prohibit it in the instant scenario.
MSI’s payment of some of Country Companies’ defense costs does not estop it from pursuing this declaratory relief. Insurance companies do not breach their requisite duties to defend when they bring suits for declaratory judgment even after first defending under a reservation of rights. Pekin Ins. Co. v. Home Ins. Co., 134 Ill.App.3d 31, 34, 89 Ill.Dec. 72, 479 N.E.2d 1078 (1st Dist.1985).
Having disposed of the estoppel claim, it is essential to examine the allegations set forth in the Slimack complaint, which determine the scope of MSI’s duty to defend Country Companies. Illinois Farmers Ins. Co. v. Preston, 153 Ill.App.3d 644, 106 Ill.Dec. 552, 554, 505 N.E.2d 1343, 1345 (2d Dist.1987); Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24 (1976); Grinnell Mutual Reinsurance Co. v. Frierdich, 79 Ill.App.3d 1146, 35 Ill.Dec. 418, 399 N.E.2d 252 (5th Dist.1979). An insurer’s duty to defend under a liability policy arises only if facts are set forth in the complaint that are within the coverage provided. Conway v. Country Casualty Ins. Co., 92 Ill.2d 388, 65 Ill.Dec. 934, 442 N.E.2d 245 (1982); Hawkeye Security Ins. Co. v. Hodorowicz, 84 Ill.App.3d 948, 40 Ill.Dec. 445, 406 N.E.2d 146 (1st Dist.1980). Since an insurer need not defend a claim that falls outside of the policy coverage or is excluded, Van Vleck v. Barbee, 115 Ill.App.3d 936, 71 Ill.Dec. 537, 451 N.E.2d 25 (3d Dist.1983), we must look at whether the allegations of Slimack’s complaint fall within the policy’s coverage or within an exclusion from coverage.
Both insurance policies solely covered liability which arises out of an “occurrence,” defined as “an accident ... which results in bodily injury or property damage ... neither expected nor intended from the standpoint of the insured.” Similar policy language in other insurance cases has been construed so that intentional torts are deemed outside the scope of such an “occurrence.” For example, an assault was interpreted not to be an occurrence in the recent decision of Bay State Ins. Co. v. Wilson, 96 Ill.2d 487, 493-494, 71 Ill.Dec. 726, 728, 451 N.E.2d 880, 882 (1983).
Slimack’s complaint claimed that Country Companies “knowingly” engaged in a scheme or “plan” to deprive the agents of their deserved compensation. When these agents objected, they were either fired or forced to resign. The complaint further alleged that the accounts procured by the agents were reassigned to their replacements. These actions by Country Companies supposedly were “knowingly wrongful, unlawful, and oppressive” in breaching the agency contract.
The allegations set forth in Slimack’s complaint plainly predicate liability on a theory of intentional misconduct. In Preston, such a tortious breach of contract committed under a “plan or design” was held to be an intentional tort, one which the insurer had no duty to defend against absent any alternative claims of negligence. 153 Ill.App.3d at 651, 106 Ill.Dec. at 556, 505 N.E.2d at 1347. Similarly, the underlying action in this case falls outside the parameters of both the general liability and umbrella policies covering only unintentional torts.
After liberally construing the complaint in the underlying action, the district court refused to allow recovery under a theory of recklessness. This was based on the limiting word “expected” in MSI’s policy. This reasoning was correct, for “[ejven where the damages are not accomplished by design or plan (not intended), they may be of such a nature that they should have been reasonably anticipated (expected) by the insured.” Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App.3d 617, 620, 44 Ill.Dec. 791, 793, 411 N.E.2d 1157, 1159 (1st Dist.1980). This Court recently recognized that an exclusion for “intended” or “expected” damages would be significantly broader than an exclusion for damages caused “intentionally by or at the direction of the insured.” Country Mutual Ins. Co. v. Duncan, 794 F.2d 1211, 1215-1216 (7th Cir.1986). Country Companies should certainly have reasonably anticipated any accompanying financial loss and emotional distress caused by its actions to its agents.
The same rationale defeats Country Companies’ argument that the former agents’ complaint “is sufficiently broad to allow them to introduce evidence at trial which would establish negligent infliction of emotional distress” (Def.Br. 20-21). Slimack, et al., however, did not amend the complaint to include a negligence claim. Consequently, they are confined to an intentional tort theory at trial. Stirs, Inc. v. Chicago, 24 Ill.App.3d 118, 125, 320 N.E.2d 216, 220-221 (1st Dist.1974). Had Slimack and his fellow agents alternatively alleged intentional acts and negligence, MSI would have had to defend even though its “occurrence” policy prohibited coverage under intentional torts. See State Security Ins. Co. v. Globe Auto Recycle Corp., 141 Ill.App.3d 133, 136-137, 95 Ill.Dec. 539, 541, 490 N.E.2d 12,14 (1st Dist.1986). Yet as in Preston, MSI should be entitled to a declaratory judgment declaring no duty to defend when Slimack’s complaint alleged non-covered intentional torts and contained no alternative negligence count, regardless of the potential for subsequent amendment. 153 Ill.App.3d at 649, 106 Ill.Dec. at 557, 505 N.E.2d at 1348.
Country Companies’ final dispute regarding an alleged “conflict of interest” between it and MSI did not preclude the district court from declaring the respective rights of the parties. The purpose of MSI’s suit was to establish whether the Slimack complaint alleged a covered loss. Unlike the authorities relied on by Country Companies, declaring the rights between insurer and insured here does not preempt decision of any factual issue in the underlying lawsuit. Accordingly, the district court’s grant of partial summary judgment is affirmed.
. These other parties, defendants below, include Glen Merwin, Larry Brighton, Dennis Speck-man, Carl Kunz, Leroy Hamman, Leonard Brockmeyer, James Lyons, Donald Koenig, Noel Roberts, David Baggett, Merrell Litherland and Larry Taylor.
. In its answer, Country Companies admitted that MSI "was an insurance company with its principal place of buisness in St. Paul, Minnesota” and "that MSI claims the jurisdiction is based on 28 U.S.C. § 1332” (Df.App. 76, 77).
Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_casedisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
FORD v. FORD.
No. 63.
Argued November 15, 1962. —
Decided December 10, 1962.
W. Francis Marion argued the cause for petitioner. With him on the briefs was O. G. Calhoun.
Wesley M. Walker argued the cause for respondent. With him on the briefs were John S. Davenport III and Angus H. Macaulay, Jr.
Mr. Justice Black
delivered the opinion of the Court.
This is a controversy between a husband and wife over the custody of their three young children which raises questions under the Full Faith and Credit Clause of the United States Constitution. Their first litigation was in 1959 when the husband filed in the Richmond Virginia Law and Equity Court a petition for habeas corpus alleging that the wife had the children but was not a suitable person to keep them and asking that they be produced before the court and custody awarded to him. The wife promptly answered, alleging that she was the proper person to have custody of the children and asking that the writ be dismissed. Thereafter negotiations took place between the parents, both being represented by counsel, and they agreed that the husband was, with minor exceptions, to have custody of the children during the school year and the wife was to have custody during summer vacation and other holidays. When notified of this agreement, the Richmond court entered the following order:
“It being represented to the court by counsel that the parties hereto have agreed concerning the custody of the infant children, it is ordered that this case be dismissed.”
Some nine months later, August 10, 1960, while the three children were with their mother in Greenville, South Carolina, she began this suit for full custody in the Green-ville County Juvenile and Domestic Relations Court, again alleging that she was the proper person to have custody and that the husband was not. Service was had upon the husband, who answered, charging that for reasons set out the mother was not fit to have custody of the children and asserting that he was. He also set up as a defense that
“. . . Plaintiff has violated and breached the agreement made between the parties by and with their respective legal counsel and further violated the Order of the Court of record in Eichmond, Virginia that was duly issued and based upon said agreement.”
After hearing testimony from 11 witnesses including the husband and wife, the trial judge found as a fact that while both the father and mother were fit persons to have the children, it was “to the best interest of the children that the mother have custody and control.” The judge also rejected the husband’s argument that the order of dismissal in the Virginia court should be treated as res judicata of the issue of fitness before the South Carolina court.
On appeal the Court of Common Pleas, like the judge of the juvenile court, held that under the law of South Carolina the interests of the children were “paramount” and that it was their welfare which had to be protected. It decided that, while both parents would be suitable custodians, the best interests of the children required that the wife have custody during the school months and the husband during the other parts of the year, in effect inverting the arrangement previously made in the parents’ agreement. In rejecting the husband’s contention that South Carolina courts should be bound by the dismissal of the habeas corpus proceedings in Virginia which was based on the parents’ agreement, the court said:
“To hold that the custody of these three children was fully and finally determined in Eichmond, Virginia, by the . agreement reached between the plaintiff’s attorneys and the defendant’s attorneys would be unfair to the children and too harsh a rule to follow.”
On appeal the Supreme Court of South Carolina reversed. 239 S. C. 305, 123 S. E. 2d 33 (1961). That court, after a review of certain Virginia cases, said:
“If the respondent [the wife] here had instituted in the Courts of Virginia the action commenced by her in the Courts of this State, the appellant could have successfully interposed a plea of res judicata as a defense to said action. Since the judgment entered in the Virginia Court by agreement or consent is res judicata in that State, it is res judicata and entitled to full faith and credit in this State. We are required under Art. IV, Sec. 1 of the Constitution of the United States to give the same faith and credit in this State to the 'dismissed agreed’ order or judgment as 'by law or usage’ the Courts of Virginia would give to such order or judgment.” 239 S. C., at 317, 123 S. E. 2d, at 39.
We granted certiorari to consider this question of full faith and credit upon which the South Carolina Supreme Court’s judgment rests. 369 U. S. 801 (1962).
The husband has argued that we need not reach the full faith and credit question because the State Supreme Court rested its decision on South Carolina law rather than on the Full Faith and Credit Clause of the Federal Constitution. This argument is based on language in the closing part of the court’s opinion, where it was said that “A judicial award of the custody of a child is never final” and that a South Carolina court may “even on its own motion” reconsider the custody of a child if new facts and circumstances make it necessary or desirable for the child’s welfare to do so. The court concluded, however, that it found in the pleadings and the record “neither allegation nor proof of any changed circumstances authorizing a change of the custody of the minor children of the parties to this action.” 239 S. C., at 317-318, 123 S. E. 2d, at 39. It seems clear to us that the State Supreme Court was merely stating that under its own law it could modify custody decrees if the circumstances had changed. It seems equally clear to us that the court was not attempting to rely on South Carolina law for its conclusion that, since there were no changed circumstances, it had to give effect to the prior Virginia decree. In previously stating the issue submitted in the case, the court had said this:
“It was further submitted that the Juvenile and Domestic Relations Court of Greenville County must recognize, in accordance with the full faith and credit clause of the Constitution of the United States, the agreed Order of Dismissal of the Virginia Court and that such was res judicata, unless there was evidence of subsequent misconduct on the part of the appellant or a change of conditions warranting a change of the custody of the children.” 239 S. C., at 309, 123 S. E. 2d, at 34-35.
What the court then went on to discuss was not whether the Virginia decree was res judicata under South Carolina law but whether it was res judicata under Virginia law and therefore entitled to full faith and credit in South Carolina. We are convinced that the court rested its decision squarely and solely on its reading of Virginia law and of the Full Faith and Credit Clause as requiring South Carolina, in the absence of a change of circumstances, to give full effect to the prior Virginia decree. Nothing in the..court’s opinion suggests what it might have done under South Carolina law had it not so interpreted the Full Faith and Credit Clause.
Whether the South Carolina court’s interpretation of the Full Faith and Credit Clause is a correct one is a question we have previously reserved. We need not reach that question here. The Full Faith and Credit Clause, if applicable to a custody decree, would require South Carolina to recognize the Virginia order as binding only if a Virginia court would be bound by it. Recognizing this, the South Carolina Supreme Court’s opinion was largely devoted to a review of Virginia cases to determine the effect in Virginia of the order of dismissal. The cases relied on by the South Carolina court do hold that the parties to some actions may agree to a dismissal and that in such cases a “dismissed agreed” order is res judicata between the parties. All of the Virginia cases discussed by the South Carolina court, however, involved purely private controversies which private litigants can settle, and none involved the custody of children where the public interest is strong. In each case the Virginia dismissal was the result of an agreement between the parties equivalent to a compromise intended to settle a cause of action. Whatever the effect given such dismissals where only private interests of parties are involved, cases involving custody of children raise very different considerations. We are of the opinion that Virginia law, which does not treat a contract between the parents as a bar to the court’s jurisdiction in custody cases would similarly not treat as res judicata the dismissal in this case.
The Virginia court held no hearings as to the custody of the children. In entering its order of dismissal, the court neither examined the terms of the parents’ agreement nor exercised its own judgment of what was best for the children. The court’s order meant no more than that the parents had made an agreement between themselves. Virginia law, like that of probably every State in the Union requires the court to put the child’s interest first. The Supreme Court of Appeals of Virginia has stated this policy with unmistakable clarity:
“In Virginia, we have established the rule that the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate.” Mullen v. Mullen, 188 Va. 259, 269, 49 S. E. 2d 349, 354 (1948).
Unfortunately, experience has shown that the question of custody, so vital to a child’s happiness and well-being, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudice. In Virginia, the parents cannot make agreements which will bind courts to decide a custody case one way or the other. The Virginia Supreme Court of Appeals has emphasized this deep-rooted Virginia policy by declaring: “The custody and welfare of children are not the subject of barter.” Buchanan v. Buchanan, 170 Va. 458, 477, 197 S. E. 426, 434 (1938).
Whatever a Virginia court might do in a case where another court had exercised its considered judgment before awarding custody, we do not believe that, in view of Virginia’s strong policy of safeguarding the welfare of the child, a court of that State would consider itself bound by a mere order of dismissal where, as here, the trial judge never even saw, much less passed upon, the parents’ private agreement for custody and heard no testimony whatever upon which to base a judgment as to what would be best for the children.
We hold that the courts of South Carolina were not precluded by the Full Faith and Credit Clause from determining the best interest of these children and entering a decree accordingly. In holding otherwise, the South Carolina Supreme Court was in error. The case is reversed and remanded to that court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
U. S. Const., Art. IV, § 1, states:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” The statute passed under this authority is found at 28 ü. S. C. § 1738.
We have held that a court in one State can so modify a custody decree made in another State. New York ex rel. Halvey v. Halvey, 330 U. S. 610 (1947).
Kovacs v. Brewer, 356 U. S. 604, 607 (1958); New York ex rel. Halvey v. Halvey, 330 U. S. 610, 615-616 (1947).
Murden v. Wilbert, 189 Va. 358, 53 S. E. 2d 42 (1949) (negligence action arising out of automobile accident); Hinton v. Norfolk & W. R. Co., 137 Va. 605, 120 S. E. 135 (1923) (personal injury suit); Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163, 118 S. E. 502 (1923) (seller’s suit for buyer’s breach of contract).
Ibid. In a fourth case mentioned in the South Carolina opinion, Virginia Concrete Co. v. Board of Supervisors, 197 Va. 821, 91 S. E. 2d 415 (1956), the dismissal was at the motion of plaintiff’s counsel and was “with prejudice.”
Gloth v. Gloth, 154 Va. 511, 551, 153 S. E. 879, 892 (1930).
See 17A Am. Jur., Divorce and Separation, § 818 (1957) and cases there collected.
A custody decree entered by a Virginia court “ordinarily” will not be altered in the absence of changed circumstances. E. g., Collins v. Collins, 183 Va. 408, 32 S. E. 2d 657 (1945); Darnell v. Barker, 179 Va. 86, 18 S. E. 2d 271 (1942). Even where there is such a decree, it is arguable that Virginia courts do in fact make de novo reviews of the correctness of the original decrees. See Semmes v. Semmes, 201 Va. 117, 109 S. E. 2d 545 (1959); Andrews v. Geyer, 200 Va. 107, 104 S. E. 2d 747 (1958).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
SOCONY-VACUUM OIL CO., Inc., v. ALLIED OIL CORPORATION.
No. 9896.
United States Court of Appeals. Seventh Circuit.
Dec. 2, 1949.
W. S. Bodman, Chicago, Ill. and W. P. Gilbert, Chicago, Ill. (Wilson & Mcllvaine, Chicago, Ill., of counsel), for appellant.
Thomas J. Downs, John D. O’Connor, David F. Dockman, Chicago, Ill. (Downs, Scheib & Osborne, Chicago, Ill., of counsel), for appellee.
Before KERNER, FINNEGAN, and SWAIM, Circuit Judges.
KERNER, Circuit Judge.
Plaintiff, a New York corporation, filed its amended complaint against defendant, an Illinois corporation, to recover actual cash damages which it claims it had to pay to the United States Government on account of defendant’s false representations. Defendant moved that the complaint be dismissed because it did not state a claim upon which relief could be granted. The court sustained the motion, dismissed the complaint and entered a judgment for costs against plaintiff. From that judgment, this appeal is prosecuted.
Four grounds of recovery — in separate counts — are asserted in the complaint: (1) fraud and deceit; (2) unjust enrichment; (3) breach of warranty; and (4) equitable restitution. The complaint alleged among other things that plaintiff and defendant were engaged in the production, refining and marketing of petroleum products; that from April, 1943 to June, 1944, plaintiff bought from defendant several separate shipments of Diesel fuel which defendant shipped by rail in tank car lots from its refinery in Illinois to plaintiff at a point on the eastern seaboard; that during this period war-time regulations were in effect, which had been adopted in order to make it possible for petroleum distributors on the eastern seaboard to sell petroleum products shipped by rail from the middle west at a price equivalent to the price at which petroleum products shipped by tanker from the Texas Gulf coast could be sold. Under this regulation, purchasers of petroleurn products from the middle western area became entitled to compensation for certain portions of the cost price of petroleum products at middle western points. The regulation, in substance, contained the further provision that the compensatory-payments would not be allowed or made to the extent that an overceiling price was involved in any particular transaction. In other words, in order to maintain ceiling prices the United States Government paid such distributor a subsidy.
The complaint also alleged that the maximum price applicable to the shipments of fuel which plaintiff purchased from defendant could not be determined by plaintiff from any source whatever except from defendant. Plaintiff, therefore, at the time of making each and every purchase, demanded and received from defendant an unequivocal representation and guarantee in writing to the effect that each and every shipment was sold and billed at a price within the OPA regulation; that on the basis of such representations plaintiff paid defendant the prices charged for the fuel, and collected from the Government the compensatory adjustments with respect to each shipment.
The complaint further alleged that in April, 1947, a final audit was made of plaintiff's accounts by certified public accountants employed by the Government, and plaintiff then for the first time learned that the statements of defendant with respect to the applicable ceiling prices for the fuel sold to plaintiff were false; that defendant, by such false representations, had caused plaintiff to pay defendant prices which were in excess of authorized ceiling prices; and that on account of defendant’s false representations plaintiff was compelled to and did pay to the Government $28,152, representing compensatory adjustment payments which plaintiff had received from the Government.
Defendant contends that the statute, Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., creating price control and the respective rights and liabilities of buyers and sellers thereunder, in the case of a purchaser who buys at an overceiling price, vests the right of recovery only in the Price Administrator. It asserts that under § 4(a) of the Act the plaintiff was in duty bound to know the lawful price of the commodity, hence, the averments that defendant falsely represented that the prices charged for the oil were not in excess of established ceiling prices cannot aid plaintiff in stating its cause of action, and declares that § 205(e) of the Act establishes an exclusive remedy for a violation of the Act in the Price Administrator. In support of its contention, defendant cites, among other cases, Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332; Armour & Co. v. Blindman, D.C., 73 F.Supp. 609; and Matheny v. Porter, 10 Cir., 158 F.2d 478.
On the other hand, one of plaintiff’s contentions is that the gist of its action is the false representation upon which it relied and as a result of which it was compelled to pay the Government $28,000. It insists that where the maximum price of the commodity cannot be determined from any source except from the seller, and the purchaser contracts to pay the ceiling price, and pays, under the circumstances here appearing, a price in excess of the ceiling price as finally determined, the purchaser can recover from the seller, and cites Edsil Trading Corp. v. John Minder & Sons, 297 N.Y. 313, 79 N.E.2d 262, and declares it has pleaded a right of action cognizable under established principles of common law and equity, which principles existed long prior to the Price Control Act and which were not affected by that statute.
It is true that in the Warner Holding case, supra, the court, 328 U.S. at page 401, 66 S.Ct. at page 1091, 90 L.Ed. 1332 said: “It [§ 205(e)] establishes the sole means whereby individuals may assert their private right to damages and whereby the Administrator on behalf of the United States may seek damages in the nature of penalties.” The case involved a question of excess rent, a right created by the statute. The plaintiff, the Price Administrator, sought an injunction and an order of restitution against a landlord, and the Court merely decided that the District Court had jurisdiction to order restitution. We do not think that what was said in that case is in any way controlling here.
Defendant places special reliance on the Blindman case, supra. In that case plaintiff sought to recover the overceiling amount of the prices paid to defendant. It is true that in that case, 73 F.Supp. at page 611, the court said: “* * * it seems clear that Congress intended to impose upon the purchasers in the course of trade or business the responsibility of policing their own industry, and therefore made it obligatory on both seller and purchaser * * * to know what the ceiling prices were in regard to the commodities with which they were dealing * * *. But whether innocent or not, the purchaser at an overceiling price in the course of trade or business was deemed a violator. And that Congress intended that such violator should not be accorded the right to bring any suit, but lodged that exclusive right in the Administrator seems free from doubt.” In our view the facts are not comparable and the case is clearly distinguishable. There was no claim that plaintiff had suffered any out-of-pocket damages. All that was claimed was that overceiling prices had been charged in spite of defendant’s representation that the prices charged were within the ceiling. Moreover, as appears at page 612 of the opinion in 73 F.Supp., the Administrator had already been awarded a judgment against the defendant in an action brought under the statute on account of the over-ceiling sales.
The Matheny case, supra, is cited because the court in that case, 158 F.2d at page 479, said: “But here, section 205(e) creates a new liability, one unknown to the common law and not finding its source elsewhere. It creates the right of action and fixes the time within which a suit for the enforcement of the right must be commenced. It is a statute of creation * * In considering the language just quoted, it must be remembered that the statement was made in connection with an action, instituted by the Administrator under the statute, to recover damages for the sale of used automobiles at prices in excess of the ceiling price. It was not a suit by an injured party for fraud and deceit for which a right of action existed under established principles of law prior to the passage of the Price Control Act. We do not discuss the other ’Cases cited by defendant for the reason that they hold no more than that where a purchaser sues the seller to recover an overceiling price, under circumstances requiring plaintiff to rely upon the statute, such plaintiff cannot escape the limitation of the statute by attempting to plead what is in fact a statutory cause of action.
In passing on a motion to dismiss because the complaint fails to state a cause of action, the facts set forth in the complaint are assumed to be true. That being so, in our case certain facts stand out so prominently they cannot escape observation. Those facts are that the maximum price applicable to the shipments of fuel which plaintiff purchased from defendant could not be determined by plaintiff from any source whatever except from defendant, hence, before plaintiff would buy and at the time of making each purchase, plaintiff demanded and received from defendant a guarantee in writing that the selling price of the oil was the ceiling price or less. This representation was false, and defendant knew it. Plaintiff relied upon this representation, bought the oil at the price stated, and upon application to the Government received the compensatory adjustment, the amount of which adjustment had to be returned after an audit by the Government when plaintiff learned for the first time that the statements of defendant with respect to the applicable ceiling price for the fuel sold to plaintiff were false.
Plaintiff’s suit was a common law action for fraud and deceit. It did not assert or rely upon the Price Control Act. It is admitted it was impossible for plaintiff to determine the ceiling price at the time of the purchase and delivery of the oil, and that therefore plaintiff, in good faith, demanded and received the guarantee in question. In such a situation, the contract is valid. It was designed to comply with, rather than to violate the Price Control Act. Cf. Edsil Trading Corp. v. John Minder & Sons, supra.
In an action for fraud and deceit for false representations, the complaint must show: (1) that the defendant made a representation in regard to a material fact; (2) that such representation was false; (3) that such representation was not actually believed by defendant, on reasonable grounds, to be true; (4) that it was made with intent that it should be acted upon; (5) that it was acted on by plaintiff to its damage; and (6) that in so acting on it the plaintiff was ignorant of its falsity and reasonably believed it to be true. Bouxsein v. First Nat. Bank of Granville, 292 Ill. 500, 501, 127 N.E. 133.
We conclude that the complaint should not have been dismissed for the reason that every element of a cause of action for fraud and deceit is alleged, and if proven upon a trial on the merits, will show an injury for which plaintiff should be made whole. In reaching this conclusion we have not overlooked defendant’s contention that the action cannot be maintained because plaintiff is in pari delicto, There is no merit to this contention.
The judgment of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. “It shall be unlawful regardless of any contract, * * * or other obligation heretofore or hereafter entered into, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order * * * or of any price schedule * * * or to * * * agree to do any of the foregoing.”
. “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price * * * 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 * * * bring an action against the seller on account of the overcharge. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price * * * 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. * * *”
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
MUIR et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6054.
United States Court of Appeals, Fourth Circuit.
Argued April 21, 1950.
Decided June 8, 1950.
Charles M. Cork, Macon, Ga. (C. Baxter Jones,.Macon, Gá., on brief), for petitioners.
S. Walter Shine, Special Assistant to the Attorney General (Theron Lamar Caudle, Assistant Attorney General; Ellis N. Slack, Helen Goodner and Sumner M. Redstone, Special Assistants to the Attorney General, on brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This appeal involves five cases consolidated for trial in the Tax Court which held, three members dissenting, that there were deficiencies in the income taxes for the years 1937-1943 inclusive of William Edward Muir who died while the cases were pending below. There is no dispute as to any material fact.
The taxpayer, an alien who resided in England, was the son of Francis and Ellen Margaret Muir. Plis father’s will was duly admitted to probate in England in 1912 and he, his mother and a solicitor were designated therein as executors and trustees. The solicitor died prior to May 7, 1932, after which time the others continued to administer the estate and trust under the laws of England. The will contained two provisions which are pertinent to this case :
(10) “I direct my trustees out of the income or annual produce of my residuary trust fund to pay to my said wife an annuity of one thousand eight hundred pounds during her life for her separate use without power of anticipation such annuity to commence from my death and be paid by equal quarterly payments the first payment to be made at the expiration of three calendar months after my death.”
■ (11) “Subject to the foregoing annuity of one thousand eight hundred pounds to my said wife, I direct my trustees to stand possessed of the whole of my residuary trust fund upon trust during the lifetime of my said wife to pay the income or the annual produce thereof of my said son, William Edward and from and after the death of my said wife in trust as to the whole of my residuary trust fund for my said son, William Edward, absolutely.”
The testator was the owner of a considerable number of shares of stock in the Bibb Manufacturing Company, a Georgia corporation, which passed to his trustees at the time of his death and constituted the only source of United States income received by the trust in the taxable years. After the testator’s death and prior to June 30, 1919, his widow, Ellen Muir, came to this country and took up her residence at Macon, Georgia, and, while retaining her British citizenship, remained there until her death in 1944. In 1919 the trustees directed Bibb to pay Ellen $4,000 annually out of the dividends on the Bibb stock. This amount was increased by order of the trustees to $6,000 in 1929 and to $8,000 in 1932, which amounts were equivalent at the prevailing rate of .exchange to the annuity set forth in the will.
The company remitted to the trustees through a New York bank the annual dividends due the trust after deducting the ■withholding tax, the amount paid to Ellen, and other miscellaneous disbursements authorized by the trustees.
The trustees did not file any income tax returns for the years in question, but the taxpayer reported on his non-resident alien returns the total Bibb dividends received by the trustees less the amounts paid to Ellen, and also dividends on shares of stock owned by him individually, and paid the tax thereon; and Ellen reported the sums which were paid directly to her and paid the tax thereon.
The deficiencies in suit resulted from the Commissioner’s determination that since all the income of the trust must be considered to have been received and distributed by the trustees, the income from sources within and without the United States should be apportioned for tax purposes between the beneficiaries in accordance with their respective interests under the will; and hence it was improper for the taxpayer to compute the amount of the tax due by him on the theory that the entire sum paid to the widow consisted of dividends from Bibb leaving him to report and pay the tax only-on the balance of the Bibb income. The Commissioner’s contention is that if the foreign and domestic income is ratably allocated to the two beneficiaries, the widow will receive income from foreign sources as well as income from Bibb, and pay a tax on the whole as a resident of the United States, and the taxpayer, as a non-resident, will be exempt from tax on the income from foreign sources, but will receive and pay a tax on a larger share of the income from Bibb than he reported. If this contention is approved, a portion of the foreign income, which has escaped taxation, becomes subject to income tax.
During the taxable years the trust estate received the aggregate sum of $107,769 in dividends from Bibb, and for those years the Commissioner determined deficiencies in the aggregate sum of $28,987.62. The correctness of the calculation of deficiencies on the Commissioner’s theory depends upon the relative amounts of foreign and domestic income; but the amount of the income from foreign sources, although within the knowledge of the taxpayer, was not given to the Commissioner notwithstanding that the representatives of the taxpayer and of his estate were advised of their right to furnish the information. Under these circumstances the Commissioner allocated to the taxpayer all the income from the United States. The Tax Court held that this result was obviously wrong; but it agreed with the Commissioner’s contention as to the allocation of the income between the beneficiaries, and being confronted with the same difficulty as the Commissioner as to the relative amounts of foreign and domestic income, held that $100 of the income within the United States should be allocated to Ellen and the remainder to the taxpayer, on the theory that the allocation should bear most heavily upon the party who had the burden of proof. See Cohan v. Commissioner, 2 Cir., 39 F.2d 540, 543-544. The court stated, however, in its opinion that this allocation was made with the understanding that if the estate of the taxpayer could demonstrate to the satisfaction of the Commissioner that the allocation should be more favorable to the taxpayer, the court would approve any allocation agreed to by the parties. The estate failed to furnish additional information and took this appeal.
The appellants rely upon the fact that the only income which the taxpayer received from sources within the United States was income from Bibb, paid to him either as a stockholder of the corporation or as a beneficiary of the trust estate, and that he paid the tax thereon. It is therefore contended that the taxpayer had no tax liability for other income from Bibb which might have been paid to him under some theory of allocation but which he did not actually receive and had no right to receive. It is urged that there is no statute which requires an allocation-of foreign and domestic income between resident and non-resident beneficiaries of a trust estate, and-that the analogies' upon which the Tax Court rested its decision are based on statutes which have no bearing on a case like this.
We are in agreement with the Tax Court’s decision. All of the income of the trust estate, foreign and domestic, was payable to the trustees and although income to the amount of $8,000 was paid annually by Bibb directly to the widow, it was done at the order of the trustees and must be considered to have passed through their hands. The will did not direct that specific income should be paid to specific beneficiaries and did not clothe the trustees with any authority in this respect. It merely directed that all the income be paid to the trustees and that they - should pay a specific amount out of the funds in their hands to the widow and the balance to the son. In the absence of a contrary direction, it must be assumed that the funds received by the trustees were to be mingled and then distributed in the prescribed amounts. The testator did not make and under the circumstances could not have made any .provision with respect to such a controversy as the present; but it cannot be doubted that he. did not intend to confer upon the trustees the power arbitrarily to make an allocation of income which would benefit one beneficiary at the expense of the other, as in the allocation of tax exempt income; and an attempt on the part of the trustee to make such an allocation would certainly have been enjoined by the British courts. It is not correct to say that the taxpayer had no right to receive a proportionate share of the income from the United States. It seems to us equally true that the will conferred no power upon the trustees to allocate the income to the disadvantage of the taxing power. They-were given the power to 'hold and distribute the income in the ordinary way, and since a normal distribution would require the proportional distribution-of various kinds of income, it must be assumed that this was done.
It is important to bear in mind that the physical transfer of the funds from Bibb to the widow in this country upon the order of the trustees does not alter the fact that the funds belonged to the trustees just as if the money had been paid into their hands and had been deposited with income from other sources. It is true that for some-tax purposes the income of a trust paid to a trustee retains its identity after it reaches-the hands of the beneficiary. The trust,, however, is a separate and distinct taxable-person. Merchants’ Loan & Trust Co. v. Smietanka, 255 U.S. 509, 41 S.Ct. 386, 65 L.Ed. 751, 15 A.L.R. 1305; and the trustee-is required to file a tax return of the trust income, 26 U.S.C.A. § 142. In computing the net income of the trust the trustee is allowed a deduction for the amount of the income distributed to beneficiaries which then becomes taxable in their hands, 26 U.S. C.A. § 162(b) ; and, for the purpose of the normal tax, the beneficiary is allowed as a credit against net income his proportionate share of such amounts of interest received by the trustee as are exempt from taxation under Section 25(a), 26 U.S.C.A. § 163(b). But it will be seen that the right of the beneficiary to such an exemption is derived from the statute and not from the authority of the trustees to allocate the income.
There is no statute governing the pending case, but the practice of proportionate allocation is followed in analogous situations which are covered in part by statute. Tn the Estate of Richard E. Trasier v. Commissioner, 41 B.T.A. 228, the question arose as to whether an estate in making a return of income which consisted in part of taxable income and in part of tax exempt income was entitled to deduct the entire amount distributed to legatees. The estate contended that the entire amount was deductible ; but the court sustained the contention of the Commissioner that since all of the income in excess of the amount for expenses was available for distribution, it must be assumed that the distribution came ratably from both kinds of income, and therefore so much of the distribution as came from tax exempt income could not be deducted from the gross taxable income of the estate under 26 U.S.C.A. § 162(c) of the Revenue Act of 1934, 48 Stat. 728.
The duty of a legatee to include in his income all distributions of income received from an estate, and his right, for the purpose of the normal tax, to a credit for “his proportionate share” of the tax exempt income of the estate, are prescribed by statute. See 26 U.S.C.A. §§ 162(b) and 163(b) ; but in the Trasier case, it was first necessary to determine how much of the distribution was tax exempt and this was done without reference to these statutes by assiiming that the distribution was composed of both kinds of income in the same proportion as they existed in the total income of the estate.
In Grey v. Commissioner, 41 B.T.A. 234, affirmed 7 Cir., 118 F.2d 153, 141 A.L.R. 1113, one-half of the income from an estate was distributed under a will to charitable organizations and accordingly was not subject to income tax in their hands, while the remainder of the income was distributed to taxable legatees. The estate was allowed a deduction for depreciation of the trust property, and the question was how much of the allowance should be given to the taxable beneficiaries under Section 23(f) of the Revenue Act of 1934, 26 U.S.C.A. § 23(f), which provided that in the case of property held in trust, an allowable deduction for depreciation should be apportioned between the “income beneficiaries” and the trustee on the basis of the trust income allocable to each. The individual legatees interpreted the phrase “income beneficiaries” as if it read “taxable income beneficiaries” and claimed the entire allowance; but this claim was overruled. The court pointed out that the statute was passed so that beneficiaries of an estate might participate in the deduction for depreciation which was frequently of no tax advantage when confined to the estate; but held that Congress did not intend to create another inequity at the expense of the revenue authorities. The deduction was held to be allowable in equal shares to both classes of legatees.
See also J. Cornelius Rathborne v. Commissioner, 37 B.T.A. 607, affirmed 5 Cir., 103 F.2d 301; Georgia W. Rathborne v. Commissioner, 37 B.T.A. 936.
The appellants place much emphasis upon references to proportionate allocation in the statutes considered in these decisions and the lack of similar statutory provision applicable to the pending case. The contrast, however, is not of great significance. Congress must act in order that an income taxpayer may enjoy a specific deduction from gross income or a specific exemption from tax; and when income is divisible between an estate, on one hand, and beneficiaries, on the other, as in a trust, a statutory allocation of the benefit among the participants is appropriate. It is noteworthy that in such cases the statutes provide expressly for ratable allocation between the estate .and the beneficiaries, and it may be inferred that a like allocation amongst the beneficiaries themselves'is contemplated; but this is not to say that the same just and equitable method should not be employed in the distribution and allocation of income for which neither Congress nor the creator of the trust has explicitly provided. No one denies that in the absence of specific direction to the contrary, fair and normal procedure requires proportionate allocation, and the burden must rest upon him who contends for something different in a particular case. We find no justification for an abnormal allocation of the income in the present controversy.
We think, however, in view of the lack of controlling decisions and the obvious incorrectness of the holding that the widow in this case received only $100 in income from sources in the United States, that the case should be reopened in the Tax Court; and that the appellants should be given a reasonable opportunity to produce testimony to show how much of the income of the estate came from sources outside the United States in the taxable years so that a correct calculation of the deficiencies may be made.
The judgment of the Tax Court is therefore affirmed and the case remanded to the Tax Court for further proceedings.
Affirmed and remanded.
The controlling statutes are substantially similar, except as to rate, to Revenue Act of 1036, C. 600, 49 Stat. 1648, 26 U.S.C.A. §§ 211, 212:
“-§ 211. Tam on Nonresident Alien Individnals
“(a) No United States business or office. There shall be levied, collected, and paid for each taxable year, in lieu of the tax - imposed by sections 11 and 12, upon the amount received, by every nonresident alien individual not engaged in trade or business within the United States * * * as interest (except interest on deposits with persons carrying on the banking business), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, a tax of 10 per centum of such-amount, * * *.”
Ҥ 212. Gross Income
“(A) General rule. In the case of a nonresident alien individual gross income-includes only the gross income from, sources within the United States.”
Similarly an assignor of income must include it in his return even though it never actually passes through his hands, but is paid by his order directly to the: assignee.
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_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
BAKER et al. v. TEXAS & PACIFIC RAILWAY CO.
No. 363.
Argued March 25, 1959.
Decided April 6, 1959.
Harvey L. Davis argued the cause and filed a brief for petitioners.
D. L. Case argued the cause and . filed a brief for respondent.
Per Curiam.
This action was commenced by the petitioners against the respondent railroad in a Texas State District Court, under the Federal Employers’ Liability Act; 35 Stat.'65, as amended, 45 U. S. C. §§51-60, to recover-damages for the death of petitioners’ decedent, Claude Baker, allegedly caused by the negligence of the respondent. Baker had been hired as a workman by W. H. Nichols & Co., Inc., which was engaged in work along the main line right of way of the respondent under a contract with it. The work consisted of “grouting,” or pumpipg sand and cement into the roadbed to strengthen and stabilize it. Baker was struck and killed by a train while engaged at this job. It was petitioners’ contention in the trial court that Baker was killed while he was “employed” by respondent, within the meaning of § 1 of the Act. Evidence on the question was introduced by the parties, and a special issue for the jury’s determination was framed, but thé judge declined to submit the issue to the jury, holding as a matter of law that Baker was not in such a relationship to the railroad at the time of his death as tp entitle him to the protection of the Act. The Court of Civil Appeals affirmed the trial court’s judgment for the respondent, 309 S. W. 2d 92, and the Texas Supreme Court refused an application for a writ of error. We granted certiorari, 358 U. S. 878, to investigate whether such an issue is properly one for determination by the. jury.
The Federal Employers’ Liability Act does not use the terms “employee” and “employed” in any special sense, Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 94, so that the familiar general legal problems as to whose “employee” or “servant” á worker is at a given time pre-seht themselves as matters of federal law under the Act. See Linstead v. Chesapeake & Ohio R. Co., 276 U. S. 28, 33-34. It has been well said of the question that “ [e] ach case must be decided on its peculiar facts and ordinarily no one feature of the relationship is determinative.” Cimorelli v. New York Central R. Co., 148 F. 2d 575, 577. Although we find no decision of this Court that-has discussed the matter, we think it perfectly plain that the •question, like that of fault or of causation under the Act, contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, § 220, comment c; § 227, comment a. Only if reasonable men could not reach'differing conclusions on the issue may the question be taken from the jury. See Chicago, R. I. & P. R. Co. v. Bond, 240 U. S. 449. Here the petitioners introduced evidence tending to prove that the grouting work was part of the maintenance task of the railroad; that the road furnished the material to be pumped into the roadbed; and that a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job performed by the individual workmen, including the precise point where the mixture should be pumped, when they should move to the next point, and the consistency of the mixture. The railroad introduced evidence tending to controvert this and further evidence tending to show that an employment relationship did not exist between it and Baker at the time of the accident. An issue for determination by the jury was presented. “The very essence of . . . [the jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” Tennant v. Peoria & Pekin Union R. Co., 321 U. S. 29, 35.
Reversed.
Mr. Justice Frankfurter would dismiss this writ of certiorari as improvidently granted. See Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524. As the Court itself notes, “ ‘[ejaeh'case must be decided on its peculiar, facts ....’” Such cases are unique and of no preceden-, tial value and are, therefore, outside of the criteria justifying a grant of certiorari. See Houston Oil Co. v. Goodrich, 245 U. S. 440.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_trialpro
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on 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".
Melvin PRIDGIN and Melvin Pridgin, Administrator of the Estate of Julia Pridgin, deceased, Appellants, v. Jennie Elizabeth WILKINSON, Martin Wilkinson, and Sherman Wilkinson, Appellees.
No. 6759.
United States Court of Appeals Tenth Circuit.
Nov. 7, 1961.
Sam Goodkin, Fort Smith, Ark., for appellants.
Joseph A. Sharp, Tulsa, Okl. (Rucker, Tabor, Best, Sharp & Shepherd, Jack M. Thomas, and O. H. “Pat” O’Neal, Tulsa, Okl., on the brief), for appellees.
Before BRATTON, PICKETT, and HILL, Circuit Judges.
BRATTON, Circuit Judge.
This action for damages arose out of a traffic accident on a highway in Oklahoma in which a Ford automobile driven by Sam Washington Fain and a Cadillac automobile driven by Jennie Elizabeth Wilkinson collided. Julia Pridgin, mother of Fain, was riding in the Ford. She suffered injury from which she died. Melvin Pridgin, surviving husband of Julia Pridgin, in his individual capacity and as administrator of her estate, instituted the action against Jennie Elizabeth Wilkinson and Martin Wilkinson. Sherman Wilkinson, husband of Julia Wilkinson, was later joined as a defendant. A verdict was returned for the defendants; judgment was entered on the verdict; , and plaintiff appealed.
It was expressly pleaded in the answer that Fain was plaintiff’s agent, servant, and employee; that he was guilty of negligence in the operation of the Ford; and that such negligence contributed to or commingled with the negligence of the defendants in producing the accident and resulting damage. But there was no evidence even hinting that Fain was the agent, servant, or employee of plaintiff, Melvin Pridgin. Fain was the son of Julia Pridgin, but not of Melvin. He apparently was her son by a former husband. Other than such kinship, there is no showing whatever of any relationship between plaintiff Melvin Pridgin and Fain.
It is the well established general rule of law in Oklahoma that negligence oh the part of the driver of an automobile is not imputed to a mere passenger. Saint Louis & San Francisco Railroad Co. v. Bell, 58 Okl. 84, 159 P. 336, L.R.A. 1917A, 543; San Springs Railway Co. v. McWilliams, 170 Okl. 85, 38 P.2d 539; Banta v. Hestand, 181 Okl. 551, 75 P.2d 415; Midland Valley Railroad Co. v. Pettie, 196 Okl. 52, 162 P.2d 543. And the rule applies even though the driver and the passenger are kinspeople, such as . husband and wife, or otherwise. Hasty v. Pittsburg County Railway Co., 112 Okl. 144, 240 P. 1056; Shefts Supply Co. v. Purkapile, 169 Okl. 157, 36 P.2d 275; Stillwater Milling Co. v. Templin, 182 Okl. 309, 77 P.2d 732; Danner v. Chandler, 204 Okl. 693, 233 P.2d 953; Loyd v. Campbell, 208 Okl. 212, 254 P.2d 986; Muenzler v. Phillips, Okl.Sup., 276 P.2d 221; Franklin v. Shelton, 10 Cir., 250 F.2d 92, certiorari denied, 355 U.S. 959, 78 S.Ct. 544, 2 L.Ed.2d 533.
The evidence disclosed that Fain owned and was operating the Ford automobile; that he and his family resided in Oklahoma; that Julia Pridgin resided with her husband in Arkansas; that Fain and his. family were going to a certain place in Arkansas to visit relatives ; that Julia Pridgin was going to a different place in Arkansas, there to rejoin her husband in their home; and that other than driver and passenger, no relation in connection with the trip existed between Fain and his mother. The court instructed the jury in substance that if Fain was guilty of negligence in the operation of the automobile he was driving, recovery of damages could not be had for the injury and death of Julia Pridgin. Nothing was said in specific or technical language respecting imputed negligence or any exception thereto. But the clear import of the instruction was that if Fain was guilty of negligence recovery for the injury and death of his mother could not be awarded. As given, and without more, the instruction was clearly erroneous. But no objections were made or exceptions taken to the instructions and therefore the error was not preserved for review on appeal as a matter of right. Garden City Co. v. Bentrup, 10 Cir., 228 F.2d 334.
, Plamtiff submitted to the court a re- , , . , ,. ... . , quested instruction which was a substan~r. . , „ ,, . tially correct statement of the law of , . ,. , . , . .. Oklahoma relating to imputed negligence in a case of this kind The instruction , „ . . bears a notation that it was refused and is initialed by the trial judge. Rule of Civil Procedure 51, 28 U.S.C., provides in presently pertinent part that a party may not assign as error the failure to give a requested instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the grounds of his objection. No effort was made to comply with the rule. The record fails to indicate that any objection or exception in any form or at any time was made or taken to the refusal to give the instruction. Having failed to comply with the rule, no question relating to the failure to give the requested, instruction was preserved for review as a matter of right. Ziegler v. Akin, 10 Cir., 261 F.2d 88; Lohr v. Tittle, 10 Cir., 275 F.2d 662.
While plaintiff failed to preserve „ . ,, . . , / for review as a matter of right any error, either in the instructions given or in the refusal to give the requested instruction relating to imputed negligence, an ... , , . appellate court has power m a proper , ., , ... . case to consider errors to which no ob- ... . ,. , , jeetions were made or exceptions taken. 1.,,. , ,, , . , But the power should be exercised spar- . . X „ . f. mgly and only m the interest of justice. ci -h ttt , , .■ ono Smith v. Welch, 10 Cir., 189 F.2d 832.
We think this is an exceptional case in which the power should be exercised in the interest of justice. The record as a whole lends itself readily to the conclusion that the error in the instructions of the court and in the refusal to give the requested instruction may well have been a generating factor which culminated in a verdict not warranted under the law of Oklahoma as applied to the evidence. Due to the error in the instruction and the refusal to give the requested instruction, the jury may well have returned the verdict in the misconception that although Julia Pridgin was a mere passenger, since Fain was negligent in the operation of the auto- ... , , . f ., mobile he was driving, no recovery could , , . „ , .. , . ,. ., had for her injury and death. And . „ ,, ... ;. , . , if the verdict was predicated upon such . ,. ... . ,. . , , a misconcePtlon °f the Wry, the judgment should not be permitted to stand,
The judgment is reversed and the cause is remanded.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
Alfred P. CARLTON, Jr., Trustee in Bankruptcy as successor-in-interest to the debtor, Firstcorp, Inc., Plaintiff-Appellant, Office of Thrift Supervision, Plaintiff-Appellee, v. FIRSTCORP, INCORPORATED, Defendant-Appellant.
No. 91-1694.
United States Court of Appeals, Fourth Circuit.
Argued March 3, 1992.
Decided June 2, 1992.
As Amended June 9 and Aug. 12, 1992.
Lacy H. Reaves, Poyner & Spruill, Raleigh, N.C. (Beth R. Fleishman, Poyner & Spruill, Raleigh, N.C., David G. Epstein, King & Spaulding, Atlanta, Ga., Alfred P. Carlton, Mark D. Martin, McNair Law Firm, Raleigh, N.C., on brief), for appellant.
Harvey Alan Levin, Office of Thrift Supervision, Washington, D.C. (Ivana Teran-go, on brief), for appellee.
Before SPROUSE, Circuit Judge, KISER, District Judge for the Western District of Virginia, sitting by designation, and BLATT, Senior District Judge for the District of South Carolina, sitting by designation.
OPINION
SPROUSE, Circuit Judge:
We are asked to decide whether regulatory action of the Office of Thrift Supervision (OTS) is precluded by bankruptcy’s automatic stay provision, 11 U.S.C. § 362, after a thrift holding company has filed for Chapter 11 protection in bankruptcy. The district court, reversing a contrary ruling by the bankruptcy court, held that a provision of the Financial Institutions Supervisory Act of 1966, 12 U.S.C. § 1818(i)(l) et seq., superseded bankruptcy’s automatic stay, and prevented it from applying to ongoing administrative proceedings and a temporary cease and desist order issued by the OTS against the thrift organization. We affirm.
I
Firstcorp, Inc., headquartered in North Carolina, is a bankrupt savings and loan holding company engaged in a struggle with its federal regulator, the OTS. Its problems arise from its dual ownership of the First Federal Savings and Loan Association of Durham (Durham), which is financially sound, and the First Federal Savings and Loan Association of Raleigh (Raleigh) which has been placed in a federal receivership as a result of its continued insolvency.
In 1985, Firstcorp acquired Raleigh. At that time, the Federal Home Loan Bank Board (FHLBB) was the statutorily designated regulator, and holding companies were required to obtain its approval before acquiring or disposing of savings and loan subsidiaries. The FHLBB approved the acquisition of Raleigh but conditioned the approval on a commitment by Firstcorp to maintain the net worth of the subsidiary at appropriate levels. To accomplish this,' after obtaining the money from a public offering of Firstcorp securities, Firstcorp, in November and December 1985, infused $13.4 million into Raleigh.
In 1987, Firstcorp acquired Durham and operated both thrifts until late 1990. Although Durham so. far has managed to weather the savings and loan crisis, Raleigh deteriorated rapidly in 1990. During the second half of 1990, its losses increased' and it became insolvent.
Because of Raleigh’s insolvency, the OTS (the successor to the Federal Home Loan Bank Board) entered the picture. It placed Raleigh into a federal receivership and charged Firstcorp with responsibility for $45 million required to rejuvenate the financially distressed institution.
The Financial Institutions Supervisory Act of 1966, 12 U.S.C. § 1818 et seq., empowers the OTS to supervise thrift holding companies. Pursuant to that authority, the OTS ordered Firstcorp to take various steps which would effectively decrease the size of Raleigh’s insolvency. It issued a temporary cease and desist order instructing Firstcorp to buttress Raleigh’s balance sheet by transferring immediately its stock in Durham to a subsidiary of Raleigh. The temporary order also requires Firstcorp to cancel and return two capital notes to Raleigh, which Firstcorp received from Raleigh in exchange for the 1987 capital infusion of $13.4 million. OTS served the temporary cease and desist order on Firstcorp on November 30, 1990, accompanied by a notice charging Firstcorp with committing an “unsafe and unsound practice” by failing to maintain the net worth of Raleigh in accordance with the requirements of the resolution authorizing the Raleigh acquisition. See 12 U.S.C. § 1818(b)(1) and (c). With the Notice of Charges, the OTS initiated an internal OTS administrative proceeding designed to result in a final cease and desist order.
Title 12 U.S.C. § 1818(c)(2) permits holding companies aggrieved by a temporary cease and desist order to seek an injunction in district court to suspend enforcement of the temporary order until a final order results. On December 4, 1990, Firstcorp responded to the OTS action by invoking that provision. It filed a complaint and an application for a temporary restraining order to stay enforcement of the temporary order in the district court for the Eastern District of North Carolina.
The following day, Firstcorp opened a second front — filing for protection under chapter 11 of the Bankruptcy Code in the Eastern District bankruptcy court. Two days later on December 7, 1990, Firstcorp sought further protection from the OTS, moving the bankruptcy court for an order confirming that both the internal OTS administrative proceedings and the temporary cease and desist order were suspended by the automatic stay provisions of 11 U.S.C. § 362.
At this juncture, Firstcorp on the one hand and the OTS, its regulatory adversary, on the other, moved and counter-moved with some rapidity. On this same day, December 7, the OTS declared Raleigh insolvent, placed it into receivership, and appointed the Resolution Trust Corporation as its receiver. The OTS then immediately chartered a new savings and loan, First Federal Savings Association of Raleigh, which purchased the assets and assumed the deposit and other liabilities of Raleigh. As a result of the OTS action, Raleigh no longer operates as a thrift; it is in receivership.
After filing its action for an injunction in the district court and requesting confirmation of the automatic stay in the bankruptcy court, Firstcorp filed a third request for relief against the OTS on December 11, 1990, this time again in the bankruptcy court. Firstcorp’s latest action took the form of a complaint against the OTS and an application for temporary and permanent injunctive relief under 11 U.S.C. § 105(a).
The bankruptcy court expedited its consideration of Firstcorp’s twin bankruptcy requests for relief. After conducting a hearing on December 14, 1990, it issued a written opinion and order on December 18, 1990, holding that the automatic stay applied to both the ongoing OTS proceeding and to the temporary order. In its opinion, the bankruptcy court indicated that a ruling on Firstcorp’s request for injunctive relief was unnecessary because of the application of the automatic stay. In re Firstcorp, Inc., 122 B.R. 484 (Bkrtcy.E.D.N.C.1990). Nevertheless, Firstcorp obtained an order from the district court which stayed the district court action. See Firstcorp, Inc. v. Office of Thrift Supervision, No. 90-721-CIV-5-BO (E.D.N.C. February 5, 1991).
OTS appealed the bankruptcy court’s ruling that the automatic stay provision applied to its proceedings. The district court reversed the decision of the bankruptcy court, holding that the automatic stay applied neither to the administrative proceeding nor to the temporary order. In re Firstcorp, Inc., 129 B.R. 450 (E.D.N.C.1991). Firstcorp, in turn, appeals to this court.
II
While this appeal was pending, the United States Supreme Court decided Board of Governors of the Federal Reserve v. MCorp Financial, Inc., — U.S.-, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). It interpreted language in 12 U.S.C. § 1818(i)(l) (discussed below) to preclude the automatic stay provision of bankruptcy from applying to an administrative proceeding of the Federal Reserve Board involving a bankrupt bank holding company. Correctly recognizing that a major part of its appeal is now controlled by MCorp, Firstcorp now abandons its claim that the automatic stay applies to the internal administrative proceedings of the OTS. It continues to argue, however, that the automatic stay applies to the temporary cease and desist order issued by the OTS. It argues alternatively for a remand to the bankruptcy court so that the bankruptcy court may consider Firstcorp’s request for the putative injunctive relief provided by section 105(a).
A
Title 12 U.S.C. § 1818 establishes three mechanisms for judicial oversight of OTS orders. First, section 1818(c)(2) provides that, within ten days after service of a temporary cease and desist order, a holding company may seek an injunction in district court restraining enforcement of the order pending completion of the related administrative proceeding. Second, section 1818(h) authorizes the courts of appeals to review final cease and desist orders on the application of an aggrieved party. Finally, section 1818(i)(l) empowers the OTS to apply to the district court for enforcement of any outstanding order, whether temporary or final.
Section 1818(i)(l) provides further that “except as otherwise provided in this section no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this section, or to review, modify, suspend, terminate, or set aside any such notice or order.”
In MCorp, the Supreme Court interpreted that language to preclude the application of the automatic stay to administrative proceedings of the Federal Reserve Board. MCorp involved two ongoing administrative proceedings at the Federal Reserve Board. One charged MCorp with violating the Board’s “source of strength” regulation, 12 C.F.R. § 225.4(a)(1). The other charged MCorp with violating section 23A of the Federal Reserve Act, 12 U.S.C. § 371c, which imposes various restrictions on bank holding companies.
In MCorp, however, there was no issue concerning application of the automatic stay to a temporary cease and desist order. Although three temporary cease and desist orders had been issued by the Board against MCorp in that case, they were not involved in the Supreme Court proceeding. See MCorp, supra at-n. 6, 112 S.Ct. at 462 n. 6, 116 L.Ed.2d at 364 n. 6 (“We address only MCorp’s effort to enjoin the Board’s administrative proceedings and express no opinion on the continuing vitality or validity of any of the temporary cease- and-desist orders.”).
We think that the Supreme Court’s reasoning in MCorp, that the automatic stay does not apply to internal administrative proceedings, applies equally to temporary cease and desist orders of regulatory agencies in these circumstances. Section 1818(i)(l)’s relevant language is “no court shall have jurisdiction to affect ... enforcement of any notice or order under this section, or to ... suspend ... any such notice or order.”
Firstcorp contends that the temporary order can be distinguished from ongoing administrative proceedings because the order requires Firstcorp to immediately transfer assets of the bankruptcy estate, and that this difference justifies application of the automatic stay to the temporary order. We are unpersuaded. No language in the automatic stay provision, 11 U.S.C. § 362, or in 12 U.S.C. § 1818, provides a basis for such a distinction. Section 1818(h) authorizes courts of appeals to review final orders, and section 1818(i)(l) empowers the OTS to apply to district court for the enforcement of any outstanding temporary or permanent orders. These enforcement provisions present a unified regulatory scheme which under MCorp is free from the intrusion of bankruptcy’s automatic stay. Similarly, section 1818(c)(2), which allows holding companies to obtain injunctive relief from a temporary cease and desist order, complements the statutory structure authorizing the regulatory agency to issue and enforce such orders and provides a mechanism for challenge by holding companies. In the absence of legislative history to the contrary, it seems clear to us that by devising a comprehensive scheme governing the oversight of financial institutions, from administrative control through judicial review of the administrative agency’s actions, and by explicitly making the scheme exclusive, Congress intended to exclude other methods of interfering with the regulatory action. We, therefore, affirm the district court's ruling that the automatic stay does not apply to the temporary order.
B
In view of the above, the judgment of the district court is affirmed, but remanded for appropriate action on Firstcorp’s pending application for an injunction. We leave to the district court the initial determination of whether to resolve Firstcorp’s application for an injunction or to remand it to the Bankruptcy Court.
AFFIRMED, BUT REMANDED WITH INSTRUCTIONS.
. The OTS was created by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (1989). It replaces the Federal Home Loan Bank Board and is charged with regulating federally-chartered thrifts and thrift holding companies.
. See also 12 U.S.C. § 1463, a provision of the Home Owners’ Loan Act of 1933, codified at 12 U.S.C. § 1461, et seq., as amended by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
. The temporary cease and desist order directs Firstcorp to: immediately upon receipt of this Order, extinguish and cancel the capital notes from First of Raleigh and the accrued interest receivable thereon and return the canceled instruments to First of Raleigh as partial satisfaction of its capital maintenance obligation.... Firstcorp shall immediately transfer all of its ownership interests in First of Durham to [one of the wholly-owned subsidiaries of] First of Raleigh ... in partial satisfaction of its capital maintenance obligation.
The temporary cease and desist order also directs Firstcorp not to engage, directly or indirectly, in transactions with Raleigh or Durham without prior OTS approval. It instructs Firstcorp not to transfer or pledge any of its assets without OTS consent, and to use its best efforts to meet the minimum capital requirements of Raleigh.
. 11 U.S.C. § 105(a) provides:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
This grant of authority to bankruptcy courts includes the power to enjoin the continuation of ongoing judicial and administrative proceedings which are excepted from the automatic stay. See, e.g., Browning v. Navarro, 743 F.2d 1069, 1084 (5th Cir.1984).
. Because we conclude that § 1818(i)(l) prevents application of the automatic stay, we need not reach, and express no opinion on, the OTS’s alternative argument that the temporary order falls within the § 362(b)(4) and (5) exceptions to the automatic stay.
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:
|
sc_respondent
|
229
|
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.
LANGLEY et ux. v. FEDERAL DEPOSIT INSURANCE CORPORATION
No. 86-489.
Argued October 14, 1987
Decided December 1, 1987
Scalia, J., delivered the opinion for a unanimous Court.
William C. Shockey argued the cause and filed a brief for petitioners.
Richard G. Taranto argued the cause for respondent. With him on the brief were Solicitor General Fried, Deputy Solictor General Wallace, John C. Murphy, Jr., and Ann S. DuRoss.
Justice Scalia
delivered the opinion of the Court.
Petitioners W. T. and Maryanne Grimes Langley seek reversal of a decision by the United States Court of Appeals for the Fifth Circuit granting the Federal Deposit Insurance Corporation (FDIC) summary judgment on its claim for payment of a promissory note signed by petitioners. 792 F. 2d 541 (1986). The Fifth Circuit rejected petitioners’ contention that a defense of misrepresentation of existing facts is not barred by 12 U. S. C. § 1823(e) because such a representation is not an “agreement” under that section. We granted certiorari to resolve a conflict in the Courts of Appeals. 479 U. S. 1028 (1987). Compare Gunter v. Hutcheson, 674 F. 2d 862, 867 (CA11), cert. denied, 459 U. S. 826 (1982); FDIC v. Hatmaker, 756 F. 2d 34, 37 (CA6 1985) (dictum).
I
The Langleys purchased land in Pointe Coupee Parish, Louisiana, in 1980. To finance the purchase, they borrowed $450,000 from Planters Trust & Savings Bank of Opelousas, Louisiana, a bank insured by the FDIC. In consideration for the loan, they executed a note, a collateral mortgage, and personal guarantees. The note was renewed several times, the last renewal being in March 1982, for the principal amount of $468,124.41.
In October 1983, after the Langleys had failed to pay the first installment due on the last renewal of the note, Planters brought the present suit for principal and interest in a Louisiana state trial court. The Langleys removed the suit, on grounds of diversity, to the United States District Court for the Middle District of Louisiana, where it was consolidated with a suit by the Langleys seeking more than $5 million in damages from Planters and others. The Langleys alleged as one of the grounds of complaint in their own suit, and as a defense against Planters’ claim in the present suit, that the 1980 land purchase and the notes had been procured by misrepresentations. In particular, they alleged that the notes had been procured by the bank’s misrepresentations that the property conveyed in the land purchase consisted of 1,628.4 acres, when in fact it consisted of only 1,522, that the property included 400 mineral acres, when in fact it contained only 75, and that there were no outstanding mineral leases on the property, when in fact there were. No reference to these representations appears in the documents executed by the Langleys, in the bank’s records, or in the minutes of the bank’s board of directors or loan committee.
In April 1984, the FDIC conducted an examination of Planters during which it learned of the substance of the lawsuits with the Langleys, including the allegations of Planters’ misrepresentations. On May 18, 1984, the Commissioner of Financial Institutions for the State of Louisiana closed Planters because of its unsound condition and appointed the FDIC as receiver. The FDIC thereupon undertook the financing of a purchase and assumption transaction pursuant to 12 U. S. C. § 1823(c)(2), in which all the deposit liabilities and most of the assets of Planters were assumed by another FDIC-insured bank in the community. Because the amount of the liabilities greatly exceeded the value of the assets, the FDIC paid the assuming bank $36,992,000, in consideration for which the FDIC received, inter alia, the Langleys’ March 1982 note.
In October 1984, the FDIC was substituted as a plaintiff in this lawsuit, and moved for summary judgment on its claim. The District Court granted the motion, 615 F. Supp. 749 (WD La. 1985), and was sustained on appeal. The Fifth Circuit held that the word “agreement” in 12 U. S. C. § 1823(e) encompassed the kinds of material terms or warranties asserted by the Langleys in their misrepresentation defenses and, because the requirements of § 1823(e) were not met, those defenses were barred. 792 F. 2d, at 545-546. We granted the Langleys’ petition for certiorari on the issue whether, in an action brought by the FDIC in its corporate capacity for payment of a note, § 1823(e) bars the defense that the note was procured by fraud in the inducement even when the fraud did not take the form of an express promise.
II
The Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat. 889, as amended, 12 U. S. C. § 1823(e), provides:
“No agreement which tends to diminish or defeat the right, title or interest of the Corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.”
A
Petitioners’ principal contention is that the word “agreement” in the foregoing provision encompasses only an express promise to perform an act in the future. We do not agree.
As a matter of contractual analysis, the essence of petitioners’ defense against the note is that the bank made certain warranties regarding the land, the truthfulness of which was a condition to performance of their obligation to repay the loan. See 1 A. Corbin, Contracts §14, p. 31 (1963) (“[T]ruth [of the warranty] is a condition precedent to the duty of the other party”); accord, 5 S. Williston, Contracts § 673, pp. 168-171 (3d ed. 1961); J. Murray, Contracts § 136, pp. 275-276 (2d rev. ed. 1974). As used in commercial and contract law, the term “agreement” often has “a wider meaning than . . . promise,” Restatement (Second) of Contracts § 3, Comment a (1981), and embraces such a condition upon performance. The Uniform Commercial Code, for example, defines agreement as “the bargain of the parties in fact as found in their language or by implication from other circumstances ____” U. C. C. § 1-201(3), 1 U. L. A. 44 (1976). Quite obviously, the parties’ bargain cannot be reflected without including the conditions upon their performance, one of the two principal elements of which contracts are constructed. Cf. E. Farnsworth, Contracts §8.2, p. 537 (1982) (“[P]romises, which impose duties, and conditions, which make duties conditional, are the main components of agreements”). It seems to us that this common meaning of the word “agreement” must be assigned to its usage in § 1823(e) if that section is to fulfill its intended purposes.
One purpose of § 1823(e) is to allow federal and state bank examiners to rely on a bank’s records in evaluating the worth of the bank’s assets. Such evaluations are necessary when a bank is examined for fiscal soundness by state or federal authorities, see 12 U. S. C. §§ 1817(a)(2), 1820(b), and when the FDIC is deciding whether to liquidate a failed bank, see § 1821(d), or to provide financing for purchase of its assets (and assumption of its liabilities) by another bank, see §§ 1823(c)(2), (c)(4)(A). The last kind of evaluation, in particular, must be made “with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services.” Gunter v. Hutcheson, 674 F. 2d, at 865. Neither the FDIC nor state banking authorities would be able to make reliable evaluations if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions.
A second purpose of § 1828(e) is implicit in its requirement that the “agreement” not merely be on file in the bank’s records at the time of an examination, but also have been executed and become a bank record “contemporaneously” with the making of the note and have been approved by officially recorded action of the bank’s board or loan committee. These latter requirements ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure. Neither purpose can be adequately fulfilled if an element of a loan agreement so fundamental as a condition upon the obligation to repay is excluded from the meaning of “agreement.”
That “agreement” in § 1823(e) covers more than promises to perform acts in the future is confirmed by examination of the leading case in this area prior to enactment of § 1823(e) in 1950. In D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447 (1942), the FDIC acquired a note in a purchase and assumption transaction. The maker asserted a defense of failure of consideration (that is, the failure to perform a promise that was a condition precedent to the maker’s performance), based on an undisclosed agreement between it and the failed bank that the note would not be called for payment. The Court held that this “secret agreement” could not be a defense to suit by the FDIC because it would tend to deceive the banking authorities. Id., at 460. The Court stated that when the maker “lent himself to a scheme or arrangement whereby the banking authority . . . was likely to be misled,” that scheme or arrangement could not be the basis for a defense against the FDIC. Ibid, (emphasis added). We can safely assume that Congress did not mean “agreement” in § 1823(e) to be interpreted so much more narrowly than its permissible meaning as to disserve the principle of the leading case applying that term to FDIC-acquired notes. Certainly, one who signs a facially unqualified note subject to an unwritten and unrecorded condition upon its repayment has lent himself to a scheme or arrangement that is likely to mislead the banking authorities, whether the condition consists of performance of a counterpromise (as in D’Oench, Duhme) or of the truthfulness of a warranted fact.
B
Petitioners’ fallback position is that even if a misrepresentation concerning an existing fact can sometimes constitute an agreement covered by § 1823(e), it at least does not do so when the misrepresentation was fraudulent and the FDIC had knowledge of the asserted defense at the time it acquired the note. We conclude, however, that neither fraud in the inducement nor knowledge by the FDIC is relevant to the section’s application.
No conceivable reading of the word “agreement” in § 1823(e) could cause it to cover a representation or warranty that is bona fide but to exclude one that is fraudulent. Petitioners effectively acknowledge this when they concede that the fraudulent nature of a promise would not cause it to lose its status as an “agreement.” See supra, at 89, n. 1. The presence of fraud could be relevant, however, to another requirement of § 1823(e), namely, the requirement that the agreement in question “ten[d] to diminish or defeat the right, title or interest” of the FDIC in the asset.
Respondent conceded at oral argument that the real defense of fraud in the factum — that is, the sort of fraud that procures a party’s signature to an instrument without knowledge of its true nature or contents, see U. C. C. § 3-305(2)(c), Comment 7, 2 U. L. A. 241 (1977) — would take the instrument out of § 1823(e), because it would render the instrument entirely void, see Restatement (Second) of Contracts § 163 and Comments a, c; Farnsworth § 4.10, at 235, thus leaving no “right, title or interest” that could be “diminish[ed] or defeat[ed].” See Tr. of Oral Arg. 24-25, 27-30. Petitioners have never contended, however, nor could they have successfully, that the alleged misrepresentations about acreage or mineral interests constituted fraud in the factum. It is clear that they would constitute only fraud in the inducement, which renders the note voidable but not void. See U. C. C. §3-201(1), 2 U. L. A. 127; Restatement (Second) of Contracts §163, Comment c; Farnsworth §4.10, at 235-236. The bank therefore had and could transfer to the FDIC voidable title, which is enough to constitute “title or interest” in the note. This conclusion is not only textually compelled, but produces the only result in accord with the purposes of the statute. If voidable title were not an “interest” under § 1823(e), the FDIC would be subject not only to undisclosed fraud defenses but also to a wide range of other undisclosed defenses that make a contract voidable, such as certain kinds of mistakes and innocent but material misrepresentations. See Restatement (Second) of Contracts §§152-153, 164.
Finally, knowledge of the misrepresentation by the FDIC prior to its acquisition of the note is not relevant to whether § 1823(e) applies. Nothing in the text would support the suggestion that it is: An agreement is an agreement whether or not the FDIC knows of it; and a voidable interest is transferable whether or not the transferee knows of the misrepresentation or fraud that produces the voidability. See Farnsworth §11.8, at 780-781; cf. U. C. C. §3-201(1), 2 U. L. A. 127. Petitioners are really urging us to engraft an equitable exception upon the plain terms of the statute. Even if we had the power to do so, the equities petitioners invoke are not the equities the statute regards as predominant. While the borrower who has relied upon an erroneous or even fraudulent unrecorded representation has some claim to consideration, so do those who are harmed by his failure to protect himself by assuring that his agreement is approved and recorded in accordance with the statute. Harm to the FDIC (and those who rely upon the solvency of its fund) is not avoided by knowledge at the time of acquiring the note. The FDIC is an insurer of the bank, and is liable for the depositors’ insured losses whether or not it decides to acquire the note. Cf. 12 U. S. C. § 1821(f). The harm to the FDIC caused by the failure to record occurs no later than the time at which it conducts its first bank examination that is unable to detect the unrecorded agreement and to prompt the invocation of available protective measures, including termination of the bank’s deposit insurance. See § 1818 (1982 ed. and Supp. IV). Thus, insofar as the recording provision is concerned, the state of the FDIC’s knowledge at that time is what is crucial. But as we discussed earlier, see supra, at 92, § 1823(e) is meant to ensure more than just the FDIC’s ability to rely on bank records at the time of an examination or acquisition. The statutory requirements that an agreement be approved by the bank’s board or loan committee and filed contemporaneously in the bank’s records assure prudent consideration of the loan before it is made, and protect against collusive reconstruction of loan terms by bank officials and borrowers (whose interests may well coincide when a bank is about to fail). Knowledge by the FDIC could substitute for the latter protection only if it existed at the very moment the agreement was concluded, and could substitute for the former assurance not at all.
The short of the matter is that Congress opted for the certainty of the requirements set forth in § 1823(e). An agreement that meets them prevails even if the FDIC did not know of it; and an agreement that does not meet them fails even if the FDIC knew. It would be rewriting the statute to hold otherwise. Such a categorical recording scheme is of course not unusual. Under Article 9 of the U. C. C., for example, a filing secured creditor prevails even over those unrecorded security interests of which he was aware. See, e. g., Rockwell Int’l Credit Corp. v. Valley Bank, 109 Idaho 406, 408-409, 707 P. 2d 517, 519-520 (Ct. App. 1985); Bloom v. Hilty, 427 Pa. 463, 471, 234 A. 2d 860, 863-864 (1967); 9 R. Anderson, Uniform Commercial Code § 9-312:74, p. 298 (3d ed. 1985); J. White & R. Summers, Uniform Commercial Code §25-4, p. 1037 (2d ed. 1980).
* *
A condition to payment of a note, including the truth of an express warranty, is part of the “agreement” to which the writing, approval, and filing requirements of 12 U. S. C. § 1823(e) attach. Because the representations alleged by petitioners constitute such a condition and did not meet the requirements of the statute, they cannot be asserted as defenses here. The judgment of the Court of Appeals is
Affirmed.
The Langleys also alleged certain other misrepresentations by Planters, including that the Langleys would have no personal liability on the notes, that Planters would provide another purchaser for the land as soon as the sale to the Langleys was closed, and that no payments would be due until the property was resold. The Langleys concede that 12 U. S. C. § 1823(e) bars these other misrepresentations from being asserted as defenses to FDIC’s suit on the note because they were promissory in nature. Brief for Petitioners 12.
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_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
HECKMAN & CO., Inc., v. I. S. DAWES & SON CO., Inc.
(Court of Appeals of District of Columbia.
Submitted February 9, 1926.
Decided April 5, 1926.)
No. 4310.
I. Trusts <@=>63% — Purchaser of cider held not entitled to recover of manufacturer, under trust fund theory, portion of purchase price paid by manufacturer under mistaken belief that it was subject to tax, which tax was later refunded (Revenue Act 1918, § 628 [Comp. St. Ann. Supp. 1919, § 6161 i/2d]).
Purchaser of eider from manufacturer, who, due to mistake of law, added 10 per cent, to purchase price and in turn paid 10 per cent, tax under Revenue Act 1918, § 628 (Comp. St. Ann. Supp. 1919, § 6161%d), on refund of such tax to manufacturer, held not entitled to recover amount so refunded from manufacturer-, on theory that it constituted a trust fund.
2. Taxation <@=>538.
Taxes voluntarily paid cannot be recovered back, and payments with knowledge and without compulsion are voluntary.
3. Payment <@=>84(4)— Purchaser of cider held not entitled to recover of manufacturer, as money paid under mistake of law, amount of refunded tax, which was added to purchase price (Revenue Act 1918, § 628 [Comp. St. Ann. Supp. 1919, § 6161 i/2d]).
Purchaser of cider from manufacturer, who through mistake of law added 10 per cent, to selling price and paid 10 per cent, tax under Revenue Act 1918, § 628 (Comp. St. Ann. Supp. 1919, § 6161%d), on refund of such tax to manufacturer, held not entitled to recover it as money paid under a mistake of law.
Appeal from the Supreme Court of the District of Columbia.
Suit by Heckman & Co., Incorporated, against the I. S. Dawes & Son Company, Incorporated. From a decree dismissing the bill, plaintiff appeals.
Affirmed.
Morris Simon, L. Koenigsberger, and Eugene Young, all of Washington, D. C., for appellant.
Levi Cooke and G. R. Beneman, both of Washington, D. C., and William W. Armstrong, of Rochester, N. Y., for appellee.
Before MARTIN, Chief Justice, and ROBB and YAN ORSDEL, Associate Justices.
ROBB, Associate Justice.
Appeal from a decree in the Supreme Court of the District, dismissing plaintiff’s bill, seeking reT covery of money alleged to have been paid under a mistake of law. The averments of the bill are in substance as follows: The Commissioner of Internal Revenue promulgated a regulation construing section 628 of the Revenue Act of 1918 (40 Stat. 1116 [Comp. St. Ann. Supp. 1919, § 6161%d]) as imposing upon manufacturers of eider a tax equal to 10 per cent, of the price for which sold. As such a manufacturer, defendant paid to the United States 10 per cent, of the price for which its cider was sold. Defendant sold a quantity of cider to the plaintiff, and added to the selling price the 10 per cent, thus paid to the United States. In Sterling v. Casey (C. C. A.) 294 F. 426, it was ruled that the act of 1918 did not authorize the imposition of a tax on eider, and this decision was acquiesced in by the Treasury Department. Thereupon defendant sought and obtained a refund of the eider tax paid by it. Plaintiff then unsuccessfully sought a refund from the defendant of the 10 per cent, involved. The bill alleges that the plaintiff “was compelled to pay said tax to the defendant, as otherwise the defendant would not have sold eider to the National Beverage Company [plaintiff], and all other manufacturers took the same position. The National Beverage Company was forced to pay said tax or else to forego dealing in eider, which was a large and profitable portion of its business.” It is further alleged that the money refunded to the defendant “constitutes a trust fund for the benefit of the plaintiff, to the extent that it represents taxes paid by the National Beverage Company to the defendant.”
The defendant, appellee here, contends that no trust relationship has been made to appear; that this merely is an attempt to obtain a decree for the payment of money, and hence that the suit should have been on the law side. Should we remand the case, with permission to transfer it to the law side, the light of plaintiff to recover would depend on the facts here appearing. It is apparent, therefore, that plaintiff’s right of recovery, whether at law or in equity, may be determined now, and unnecessary delay and expense avoided.
The Revenue Act of 1918, as construed by the Treasury Department, imposed a tax on the manufacturer, not the dealer. The defendant, as such manufacturer, paid this tax. In selling to the plaintiff, it added to the selling price the amount of the tax, which plaintiff voluntarily paid in order to continue “dealing in eider, which was a large and profitable portion of its business.” Defendant paid no tax for the plaintiff but for itself. The sale to the plaintiff was not induced by misrepresentation as to law or fact, nor was it the result of undue influence on the one side and undue confidence on the other. The payment of this 10 per cent, by the plaintiff, therefore, was the result of nothing more than a mistake of law, and such a situation presents no ground for equitable relief. Jordan v. Stevens, 51 Me. 78, 81 Am. Dec. 556; Grant v. Giuffrida, 50 App. D. C. 28, 267 F. 330.
It is equally clear from what we have said that the defendant would be in no better position in an action at law, for “the rule is firmly established that taxes voluntarily paid cannot be recovered back, and payments with knowledge and without compulsion are voluntary.” Chesebrough v. United States, 192 U. S. 253, 259, 24 S. Ct. 262, 264 (48 L. Ed. 432); Detroit Edison Co. v. Wyatt (C. C. A.) 293 F. 489. See also, Erkens v. Nicolin, 39 Minn. 461, 45 N. W. 567; Lam-born v. Dickinson County Comrs., 97 U. S. 181, 24 L. Ed. 926. In Kastner v. Duffy-Mott Co., 125 Misc. Rep. 886, 213 N. Y. S. 128, the facts were identical with those here, and the court said:
“Plaintiffs seek in this action to recover from the defendant the amount of the 10 per cent, tax which was included in the price they paid. The tax, however, under the law, was in no event payable by plaintiffs, but only by the manufacturer; that is, the defendant. There was no tax, or claim of tax, against the plaintiffs. The plaintiffs did not pay the money under duress. There was no governmental claim made against the plaintiffs, and the eases cited by the latter, holding the right to recover for a tax paid under the belief that it was valid when in fact it was void, are not in point. The payment was not made under a mistake of fact. Both parties knew of the enactment of the law. The defendant made the purchase price of the eider greater because of its belief that it had to pay the tax to the government; but, nevertheless, the plaintiffs merely paid the price which the defendant demanded for its goods. Plaintiffs make no claim of any agreement that the defendant was to repay the 10 per cent, in the event that the eider should be held not to be taxable. Under such circumstances, the plaintiffs may not recover.”
The decree is affirmed, with costs.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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sc_authoritydecision
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
DIXON, SECRETARY OF STATE OF ILLINOIS v. LOVE
No. 75-1513.
Argued March 1-2, 1977
Decided May 16, 1977
Patricia Rosen, Assistant Attorney General of Illinois, argued the cause for appellant. With her on the briefs were William J. Scott, Attorney General, and Paul J. Bargiel, Stephen R. Swofford, and Mary Stafford, Assistant Attorneys General.
James 0. Latturner argued the cause for appellee. With him on the brief were Alan M. Freedman, Richard J. Hess, and Allen L. Ray.
Mr. Justice Blackmun
delivered the opinion of the Court.
The issue in this case is whether Illinois has provided constitutionally adequate procedures for suspending or revoking the license of a driver who repeatedly has been convicted of traffic offenses. The statute and administrative regulations provide for an initial summary decision based on official records, with a full administrative hearing available only after the suspension or revocation has taken effect.
I
The case centers on § 6-206 of the Illinois Driver Licensing Law (c. 6 of the Illinois Vehicle Code). The section is entitled “Discretionary authority to suspend or revoke license or permit.” It empowers the Secretary of State to act “without preliminary hearing upon a showing by his records or other sufficient evidence” that a driver’s conduct falls into any one of 18 enumerated categories. Ill. Rev. Stat., c. 95%, § 6-206 (a) (1975). Pursuant to his rulemaking authority under this law, § 6-211 (a), the Secretary has adopted administrative regulations that further define the bases and procedures for discretionary suspensions. These regulations generally provide for an initial summary determination based on the individual’s driving record. The Secretary has established a comprehensive system of assigning “points” for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records.
One of the statutorily enumerated circumstances justifying license suspension or revocation is conviction of three moving traffic offenses within a 12-month period. § 6-206 (a) (2). This is one of the instances where the Secretary, by regulation, has provided a method for determining the sanction according to the driver’s accumulated “points.”
Another circumstance, specified in the statute, supporting suspension or revocation is where a licensee
“[h]as been repeatedly involved as a driver in motor vehicle collisions or has been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway.” § 6-206 (a)(3).
Here again the Secretary has limited his broad statutory discretion by an administrative regulation. This regulation allows suspension or revocation, where sufficient points have been accumulated to warrant a second suspension within a 5-year period. The regulation concludes flatly: “A person who has been suspended thrice within a 10 year period shall be revoked.”
Section 6-206 (c)(1) requires the Secretary “immediately” to provide written notice of a discretionary suspension or revocation under this statute, but no prior hearing is required. Within 20 days of his receiving a written request from the licensee, the Secretary must schedule a full evidentiary hearing for a date “as early as practical” in either Sangamon County or Cook County, as the licensee may specify. § 2-118 (a). The final decision of the Secretary after such hearing is subject to judicial review in the Illinois courts. § 2-118 (e). In addition, a person whose license is suspended or revoked may obtain a restricted permit for commercial use or in case of hardship. §§ 6-206 (c) (2) and (3).
II
Appellee Love, a resident of Chicago, is employed as a truck-driver. His license was suspended in November 1969, under § 6-206 (a) (2), for three convictions within a 12-month period. He was then convicted of a charge of driving while his license was suspended, and consequently another suspension was imposed in March 1970 pursuant to § 6-303 (b). Appellee received no further citation until August 1974, when he was arrested twice for speeding. He was convicted of both charges and then received a third speeding citation in February 1975. On March 27, he was notified by letter that he would lose his driving privileges if convicted of a third offense. On March 31 appellee was convicted of the third speeding charge.
On June 3, appellee received a notice that his license was revoked effective June 6. The stated authority for the revocation was § 6-206 (a) (3); the explanation, following the language of the statute, was:
“This action has been taken as a result of: Your having been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates disrespect for the traffic laws.” App. 13.
Appellee, then aged 25, made no request for an administrative hearing. Instead, he filed this purported class action on June 5 against the Illinois Secretary of State in the United States District Court for the Northern District of Illinois. His complaint sought a declaratory judgment that § 6-206 (a) (3) was unconstitutional, an injunction against enforcement of the statute, and damages. Appellee’s application for a temporary restraining order was granted on condition that he apply for a hardship driving permit. He applied for that permit on June 10, and it was issued on July 25.
A three-judge District Court was convened to consider appellee’s claim that the Illinois statute was unconstitutional. On cross-motions for summary judgment, the court held that a license cannot constitutionally be suspended or revoked under § 6-206 (a)(3) until after a hearing is held to determine whether the licensee meets the statutory criteria of “lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway.” The court regarded such a prior hearing as mandated by this Court’s decision in Bell v. Burson, 402 U. S. 535 (1971). Accordingly, the court granted judgment for appellee and enjoined the Secretary of State from enforcing § 6-206 (a)(3). The Secretary appealed, and we noted probable jurisdiction sub nom. Howlett v. Love, 429 U. S. 813 (1976).
Ill
It is clear that the Due Process Clause applies to the deprivation of a driver’s license by the State:
“Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U. S., at 539.
It is equally clear that a licensee in Illinois eventually can obtain all the safeguards procedural due process could be thought to require before a discretionary suspension or revocation becomes final. Appellee does not challenge the adequacy of the administrative hearing, noted above, available under § 2-118. The only question is one of timing. This case thus presents an issue similar to that considered only last Term in Mathews v. Eldridge, 424 U. S. 319, 333 (1976), namely, “the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter.” We may analyze the present case, too, in terms of the factors considered in Eldridge:
“[Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335.
The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in Eldridge, who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver’s license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See Goldberg v. Kelly, 397 U. S. 254, 264 (1970). The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. See n. 7, supra. We therefore conclude that the nature of the private interest here is not so great as to require us “to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action.” Mathews v. Eldridge, 424 U. S., at 343. See Arnett v. Kennedy, 416 U. S. 134 (1974).
Moreover, the risk of an erroneous deprivation in the absence of a prior hearing is not great. Under the Secretary’s regulations, suspension and revocation decisions are largely automatic. Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary’s attention. In this case appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary’s decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. Tr. of Oral Arg. 41, 47. Since appellee does not dispute the factual basis for the Secretary’s decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations. Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations.
Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Giving licensees the choice thus automatically to obtain a delay in the effectiveness of a suspension or revocation would encourage drivers routinely to request full administrative hearings. See Mathews v. Eldridge, 424 U. S., at 347. Far more substantial than the administrative burden, however, is the important public interest in safety on the roads and highways, and in the prompt removal of a safety hazard. See Perez v. Campbell, 402 U. S. 637, 657, 671 (1971) (opinion concurring in part and dissenting in part). This factor fully distinguishes Bell v. Burson, supra, where the “only purpose” of the Georgia statute there under consideration was “to obtain security from which to pay any judgments against the licensee resulting from the accident.” 402 U. S., at 540. In contrast, the Illinois statute at issue in the instant case is designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others.
We conclude that the public interests present under the circumstances of this case are sufficiently visible and weighty for the State to make its summary initial decision effective without a predecision administrative hearing.
The present case is a good illustration of the fact that procedural due process in the administrative setting does not always require application of the judicial model. When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. Here the Secretary commendably sought to define the statutory standard narrowly by the use of his rulemaking authority. The decision to use objective rules in this case provides drivers with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated drivers. The approach taken by the District Court would have the contrary result of reducing the fairness of the system, by requiring a necessarily subjective inquiry in each case as to a driver’s “disrespect” or “lack of ability to exercise ordinary and reasonable care.”
The second count of appellee’s complaint challenged § 6-206 (a) (3) on the grounds of vagueness and inadequacy of standards. The three-judge court did not reach the issue. App. 22. We regard the claim, in the light of Love’s record, as frivolous.
The judgment of the District Court is reversed.
It is so ordered.
Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Section 6-211 (a): “The Secretary of State shall administer the provisions of this Chapter and may make and enforce rules and regulations relating to its administration.”
Rule 6-206 (a) (1975) provides in part:
“The Secretary of State is authorized to exercise discretionary authority to suspend or revoke the license or permit of any person without a preliminary hearing, or to decline to suspend or revoke such driving privileges. In making a determination of the action to be taken, the Secretary of State shall take into consideration the severity of the offense and conviction, the number of offenses and convictions, and prior suspensions or revocations on the abstract of the driver’s record. The Secretary may also take into consideration the points accumulated by the driver and noted on his driving record.
“For the purpose of this Rule and its companion rules, a conviction is the final adjudication of ‘guilty’ by a court of competent jurisdiction, either after a bench trial, trial by jury, plea of guilty, order of forfeiture, or default, as reported to the Secretary of State, and the Secretary of State is not authorized to consider or inquire into the facts and circumstances surrounding the conviction.”
The statute authorizes suspension or revocation where a licensee
“[h]as been convicted of not less than 3 offenses against traffic regulations governing the movement of vehicles with the exception of those offenses excluded under the provisions of Section 6-204 (2), committed within any 12 month period so as to indicate the disrespect for traffic laws and a disregard for the safety of other persons on the highways; conviction upon 3 charges of violation of Section 11-601 of this Act committed within a period of 12 months shall be deemed grounds for the revocation or suspension of a license or permit under this Section, provided that no such revocation or suspension shall be entered more than 6 months subsequent to the date of conviction of the 3rd offense.” 111. Rev. Stat. c. 95%, §6-206 (a) (2) (1975).
Rule 6-206 (a)2 (1975) provides:
“A person who has been convicted of three (3) or more offenses against traffic regulations, governing the movement of vehicles, with the exception of those offenses excluded under provisions of Section 6-204 (2) and whose violations have occurred within a twelve (12) month period may be suspended as follows:
“Number of points Action
20 to 44 Suspension up to 2 months
45 to 74 Suspension up to 3 months
75 to 89 Suspension up to 6 months
90 to 99 Suspension up to 9 months
100 to 109 Suspension up to 12 months
Over 110 Revocation for not less than 12 months.
“A person who has accumulated sufficient points to warrant a second suspension within a 10-year period may be either suspended or revoked, depending on the number of points. In the event of a second suspension in the 10-year period, the length of suspension, determined by the point total, is doubled to arrive at the type and duration of action.”
Rule 6-206 (a)3 (1975) provides:
“A person repeatedly involved in collisions or convictions to a degree which indicates the lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle, or whose record indicates disrespect for traffic laws and the safety of other persons on the highway, and who has accumulated sufficient points to warrant a second suspension within a 5 year period, may either be suspended or revoked by the Secretary of State, based upon the number of points in his record. A person who has been suspended thrice within a 10 year period shall be revoked.”
Section 6-206 (c) (1): “Upon suspending or revoking the license or permit of any person as authorized in this Section, the Secretary of State shall immediately notify such person in writing of the order revoking or suspending the license or permit. Such notice to be deposited in the United States mail, postage prepaid, to the last known address of such person.”
The statutory provision regarding commercial licenses provides that a suspension shall not deny “a person’s license to drive a commercial vehicle only as an occupation . . . unless 5 offenses were committed, at least 2 of which occurred while operating a commercial vehicle in connection with his regular occupation.” The statute places the burden on the commercial driver whose license is suspended to submit an affidavit to the Secretary within 25 days, setting forth facts establishing his eligibility for relief under this section. A commercial driver may obtain the same relief by requesting an administrative hearing in lieu of submitting an affidavit. In any event, the driver must return his license to the Secretary and in its place is issued a permit to drive only a commercial vehicle in his regular occupation. § 6-206 (c) (2).
Any driver whose license is suspended or revoked, in order to “relieve undue hardship,” may apply for a restricted permit to drive between his residence and his place of employment “or within other proper limits.” §6-206 (c) (3).
Appellee’s March speeding conviction was his third within a 12-month period, and thus § 6-206 (a) (2) authorized suspension of his license. That suspension, however, would have been appellee’s third within a 10-year period. The Secretary therefore proceeded directly under Rule 6-206 (a) 3, which makes revocation mandatory under such circumstances. The District Court treated this procedure as functionally equivalent to suspension under § 6-206 (a) (2), followed by mandatory revocation under Rule 6-206 (a)3. See App. 20 n. 2.
The class was never certified.
Appellee also contends that a prior hearing would avoid erroneous deprivation of a license where the commercial driver or hardship exceptions are applicable. See n. 7, supra. It is clear, however, that these statutory provisions contemplate relief only after the initial decision to suspend or revoke is made, and the licensee has the burden of demonstrating his eligibility for the relief. An initial suspension or revocation, therefore, is not “erroneous” even if the licensee subsequently qualifies for relief as a commercial driver or hardship case.
Since Bell v. Burson was decided, courts have sustained suspension or revocation of driving privileges, without prior hearing, where earlier convictions were on the record. See, e. g., Cox v. Hjelle, 207 N. W. 2d 266, 269-270 (N. D. 1973); Stauffer v. Weedlun, 188 Neb. 105, 195 N. W. 2d 218, appeal dismissed, 409 U. S. 972 (1972); Horodner v. Fisher, 38 N. Y. 2d 680, 345 N. E. 2d 571, appeal dismissed, 429 U. S. 802 (1976); Wright v. Malloy, 373 F. Supp. 1011, 1018-1019 (Vt.), summarily aff’d, 419 U. S. 987 (1974); Scott v. Hill, 407 F. Supp. 301, 304 (ED Va. 1076).
See K. Davis, Discretionary Justice, c. Ill, 52-96 (1969). The promulgation of rules may be of particular value when it is necessary for administrative decisions to be made summarily. See Freedman, Summary Action by Administrative Agencies, 40 U. Chi. L. Rev. 1, 44-49 (1972).
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_respond1_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 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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COOKE & JONES, INC., Respondent.
No. 6371.
United States Court of Appeals First Circuit.
Dec. 21, 1964.
Allison W. Brown, Jr., Attorney, Washington, D. C., with whom Arnold Ord-man, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Duane R. Batista, Attorney, Washington, D. C., were on brief, for petitioner.
Hugh J. Corcoran, Springfield, Mass., with whom Burton Winer, Greenfield, Mass., Ely, King, Kingsbury & Corcoran, Springfield, Mass., and Levy & Winer, Greenfield, Mass., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
Judge Hartígan heard the oral argument aud participated in the conference at which a tentative decision for the petitioner was made. Because of illness he does not participate in the opinion or decree.
PER CURIAM.
The respondent employer was found by the National Labor Relations Board to have violated sections 8(a) (5) and (1) of the Act, 29 U.S.C. §§ 158(a) (5) and (1). It resists this petition for enforcement on the sole ground that the evidence did not warrant the findings. Respondent, in the first place, has misconstrued the comprehensive report of the trial examiner confirmed by the Board. Its statement that the Board did not “even dignify [certain] * * * testimony by a statement that it was disbelieved” is only narrowly correct. The testimony of respondent’s president to which this referred went solely to the question of motivation. The Board expressly found' that respondent’s motivation was improper. It was unnecessary for it to mention in detail all of respondent’s contrary testimony. The duty to discuss evidence is a matter of degree. Cf. Haverhill Gazette Co. v. Union Leader Corp., 1 Cir., 1964, 833 F.2d 798, 805, cert. den. 379 U.S. -, 85 S.Ct. 329. There was other testimony, which was fully discussed, amply warranting the finding against respondent.
Furthermore, if the promotion of certain of respondent’s carpenters to supervisors was in fact essentially a paper transaction not causing them to become true supervisors, the respondent’s duties to bargain depended upon the actual circumstances, not upon its motivation or good faith. Cf. International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB, 1961, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762; NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1. The Board has considerable discretion in determining whether an employee is a supervisor. NLRB v. Swift & Co., 1 Cir., 1961, 292 F.2d 561. We find no error in its exercise here.
A decree will be entered enforcing the order of the Board.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_origin
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of 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.
In re UNITED STATES of America, Petitioner.
No. 86-3474.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 13, 1987.
Decided April 8, 1987.
F. Henry Habicht, II, Asst. Atty. Gen. Jacques B. Gelin, Patricia Gail Littlefield, David C. Shilton, Albert M. Ferio, Jr., Attys., Dept, of Justice, Washington, D.C., Peter R. Steenland, Jr. (argued), Steven D. Bell, Asst. U.S. Atty., Cleveland, Ohio, Jonathan McPhee, U.S. E.P.A., Region V, Chicago, 111., Helen Keplinger, Office of Enforcement & Compliance, Washington, D.C., for appellee.
William P. Bobulsky, Ashtabula, Ohio, for Laskin & Poplar.
Robert M. McNair, Robert M. McNair Co., LPA, Jefferson, Ohio, Michael L. Hardy, Thompson, Hiñe and Flory, Cleveland, Ohio, for Warren.
Thomas P. Meaney, Jr., Cleveland, Ohio, for Schlumberger.
Cornelius C. Smith, Jr., Danbury, Conn., Karen B. Newborn, Baker & Hostetler, Cleveland, Ohio, for Union Carbide.
Louis Tosi, Fuller & Henry, Toledo, Ohio, for General Motors.
Clay Mock, Arter & Hadden, Cleveland, Ohio, for Be-Kan.
Thomas Sivak, Environmental Counsel, Pittsburgh, Pa., for Koppers.
William Smith, Calfee, Halter & Gris-wold, Cleveland, Ohio, for Union Carbide.
Jeffrey G. Miller, Thomas Hays, Vemer, Liipfert, Bernhard, McPherson and Hand, Washington, D.C., for other respondents.
Michael L. Hardy, Thompson, Hiñe and Flory, Cleveland, Ohio, for Rockwell.
W. Mowry Connelly, Michael T. McMenamin, Marcia E. Hurt, Walter, Haverfield, Buescher & Chockly, Maureen Brennan, Environmental Counsel, Cleveland, Ohio, for TRW.
Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge.
MILBURN, Circuit Judge.
The United States of America petitions this court to issue a writ of mandamus directing the United States District Court for the Northern District of Ohio to limit its order of reference to a special master, in the underlying action, to discovery and other procedural, nondispositive matters. The government contends that the district court abused its discretion under Federal Rule of Civil Procedure 53(b) in authorizing a special master to review and submit recommendations on motions for summary judgment and other potentially dispositive motions. For the reasons set forth below, we will grant the government’s petition.
I.
The United States instituted the underlying action on June 22, 1984, under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., seeking the recovery of past preliminary cleanup costs incurred at a hazardous waste site in Ohio. On March 8, 1985, the district court issued an order which in effect stayed the proceedings pending settlement negotiations. In April and May of 1985, “a continuously more frustrated Court learned that the Settlement abyss between the parties seemed to be widening rather than narrowing.” In its order of June 24, 1985, the court determined that there would be “one last effort to avoid the extraordinarily expensive, time-consuming, and burdensome litigation which may well be inevitable.” Accordingly, the court ordered the parties to submit a joint stipulated agreement in the form of a proposed case management order by July 12, 1985. The court warned that if no proposed case management order was submitted by that date, the court would “hear reasons that a special master should not be appointed.”
On July 12,1985, counsel for the government informed the district court that the parties had been unable to agree on a case management order. The government further submitted that it would be inappropriate to refer the case to a special master. On September 13, 1985, the district court granted the government’s motion to voluntarily dismiss, without prejudice, its request for declaratory judgment. Further, the district court ordered that it would appoint a special master, holding:
The representations of the parties regarding the complexity and volume this case is likely to achieve, as well as the Court’s independent examination of the pleadings have convinced the Court that “exceptional conditions” require a reference to a special master. Fed.R.Civ.P. 53. Accordingly, the Court shall appoint a special master, to be paid by the parties, to hear evidence, make findings of fact, propose conclusions of law, handle discovery, and supervise this case in every other way permissible by the Federal Rules and the United States Code.
Joint Appendix at 40-41.
On September 23, 1985, the government filed a response arguing that the record did not reveal the existence of “exceptional circumstances” sufficient to warrant reference to a special master under Rule 53(b). The government further stated that, notwithstanding its general opposition to a reference, it would concede to a limited reference of discovery matters to a special master.
On January 2, 1986, the court appointed a special master, providing her with the authority to, among other things, “submit recommendations on all motions filed in this action after ordering sufficient briefing and an oral hearing, if necessary.” On January 14, 1986, the court granted a stay of the implementation of its January 2, 1986 order to allow the parties to brief their objections thereto. On January 27, 1986, the government filed a memorandum contending that the court erred in granting the special master authority to submit recommendations on all motions. The government also contested the validity of the reference in its entirety, as well as the court’s requirement that the government pay one-half of the special master’s fees.
On March 31, 1986, the district court issued an order lifting the stay imposed on January 14,1986, and rejecting the government’s arguments in opposition to the reference, reasoning:
The government’s most serious challenge is to the Court’s authority to appoint a Master in this case at all. Still, the cases cited by the government in no way address the instant case in which the defendants have stated their intention to add at least 264 additional parties and in which the challenged order of reference deals only with pretrial matters. This case will require constant, daily monitoring to guarantee efficient management.
It is not calendar congestion, complexity of the issues, or the possibility of a lengthy trial which resulted in the Court’s order of reference. See LaBuy v. Howes Leather Co., 352 U.S. 249 [77 S.Ct. 309, 1 L.Ed.2d 290] (1957). It is factors like these combined with the extraordinary pretrial management which will be required in a case with more than 250 parties and the public interest in the quickest feasible resolution of Superfund cases which weigh in favor of the appointment of a Special Master. See United States v. Conservation Chemical Company, 106 F.R.D. 210, 219 (W.D.Mo.1985), and cases cited therein. The Eighth Circuit has explicitly recognized the propriety of pre-trial .supervision by a. Special Master in a complex CERCLA case. In Re: Armco, Inc., et al., 85-1598 [774 F.2d 1170] (8th Cir. July 18, 1985).
Joint Appendix at 50-51 (emphasis in original). The district court subsequently granted the government’s motion to delay the initial meeting with the special master.
On May 28, 1986, the government filed the present petition pursuant to the All Writs Act, 28 U.S.C. § 1651(a). On June 9, 1986, a panel of this court issued an order requesting the district judge to file a response. The district judge thereafter informed the court by letter that he did not wish to appear or file a response and that he would rely on his orders filed in the district court. None of the defendants filed a brief or participated in oral argument.
II.
At the outset, we note that mandamus is an accepted means to challenge a district court’s order referring matters to a special master under Rule 53. See La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) (affirming circuit court’s order issuing writ of mandamus compelling district court to vacate orders of reference). It is within “the sound discretion of the court” to grant or withhold the writ if it finds that “exceptional circumstances ... warrant the use of the extraordinary remedy of mandamus.” Id. at 255, 256, 77 S.Ct. at 313 (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)).
Our standard of review of the district court’s action is whether “the orders of reference were an abuse of the [district court’s] power under Rule 53(b).” La Buy, 352 U.S. at 256, 77 S.Ct. at 313, see also Bradshaw v. Thompson, 454 F.2d 75, 80 (6th Cir.) (“The decision to appoint a master whose function is to aid the judge in the performance of specific judicial duties, is within the discretion of the District Court.”), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972).
Fed.R.Civ.P. 53(b) provides:
A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. Upon the consent of the parties, a magistrate may be designated to serve as a special master without regard to the provisions of this subdivision.
Because the underlying action in the present case is to be tried to the court and since the reference is of matters other than account or difficult computation of damages, the reference must be supported by a showing of “some exceptional condition.” See, e.g., Jack Walters & Sons Corp. v. Morton Building, Inc., 737 F.2d 698, 712 (7th Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984). The leading case addressing this issue is the Supreme Court’s opinion in La Buy, supra. The Rule 53(b) controversy in La Buy arose out of two antitrust actions instituted in the district court, involving some ninety-three plaintiffs and twelve defendants. The district court’s sua sponte orders of reference authorized the special master “to take evidence and to report the same to this Court, together with his findings of fact and conclusions of law.” 352 U.S. at 253, 77 S.Ct. at 312. In support of the reference, the district court asserted “ ‘that the cases were very complicated and complex, that they would take considerable time to try,’ and that his ‘calendar was congested.’ ” Id. at 254, 77 S.Ct. at 312.
In affirming the Seventh Circuit’s issuance of the writ of mandamus vacating the order of reference, the Supreme Court stated:
[Congestion in itself is not such an exceptional circumstance as to warrant a reference to a master. If such were the test, present congestion would make references the rule rather than the exception. Petitioner realizes this, for in addition to calendar congestion he alleges that the cases referred had unusual complexity of issues of both fact and law. But most litigation in the antitrust field is complex. It does not follow that antitrust litigants are not entitled to a trial before a court. On the contrary, we believe that this is an impelling reason for trial before a regular, experienced trial judge rather than before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work. Nor does petitioner’s claim of the great length of time these trials will require offer exceptional grounds.
Id. at 259, 77 S.Ct. at 315.
Commentators have observed that La Buy severely restricts the circumstances in which a reference will be proper in a nonjury case:
Though the [La Buy ] Court was silent about what does constitute an exceptional condition, its rejection of the three most obvious matters claimed to constitute such a condition justifies the observation of Judge Kaufman that
the utilization of special masters to hear and report on the main issues in litigation under Rule 53 has little support in the non-jury area. With a few minor exceptions, references in non-jury cases run counter to the spirit and purpose of judicial administration in the federal courts.
Even before the La Buy case courts frequently held that there was no exceptional condition justifying a reference, and they have done so much more consistently since that decision. A reference is still proper on matters of account and of damages.
The use of a special master to supervise discovery may still be appropriate and useful in unusual cases.
Beyond the situations just described it is difficult to conceive of a reference of a nonjury case that will meet the rigid standard of the La Buy decision. This restrictive policy is necessary because reference of a nonjury case not only involves expense and delay but, since the master’s findings must be accepted unless they are clearly erroneous, it also involves the danger that the master, not the court, will in fact decide the case.
9 C. Wright and A. Miller, Federal Practice and Procedure § 2605 (1971), at 789-91 (footnotes omitted) (quoting Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum.L.Rev. 452, 459 (1958)). See also Ingram v. Richardson, 471 F.2d 1268, 1271 (6th Cir.1972) (quoting Wright and Miller with approval in holding that reference to magistrate under Rule 53(b) was improper).
In the present case, the district court articulated five reasons to support its conclusion that exceptional conditions warranted the reference to the special master: (1) calendar congestion; (2) complexity of the issues; (3) possibility of a lengthy trial; (4) the extraordinary pretrial management required in a case with more than 250 parties; and (5) the public interest in the quickest feasible resolution of Superfund cases.
In La Buy, the Supreme Court rejected the first three reasons advanced by the district court in the present case. The Court stated that “congestion in itself is not such an exceptional circumstance as to warrant reference to a master. If such were the test, present congestion would make references the rule rather than the exception.” 352 U.S. at 259, 77 S.Ct. at 315. See also Ingram, 471 F.2d at 1271 (“Reference of cases ... is not the proper solution of the problem [of crowded court calendars]. The proper solution of a crowded docket rests with the Congress____ [T]he problem of a crowded docket must not be allowed to close the door to a litigant who has a statutory right of review by a court.”).
As to the complexity of the issues, the La Buy Court stated, “On the contrary, we believe that this is an impelling reason for trial before a regular, experienced trial judge- rather than before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work.” 352 U.S. at 259, 77 S.Ct. at 315. The Court continued, “Nor does petitioner’s claim of the great length of time these trials will require offer exceptional grounds.” Id.
Recognizing that La Buy rejects these reasons, the district court added that it is “factors like these combined with the extraordinary pretrial management which will be required ... and the public interest in the quickest feasible resolution of Superfund cases which weigh in favor of the appointment of a Special Master.” (emphasis in original). Turning first to the interest in a quick resolution of the case, we believe this factor counsels against referring dispositive motions to a special master. The reference of such matters may well actually increase the length of time necessary to resolve the issues. As the government notes, both the district court’s order and Rule 53(e)(2) require the district court to review the special master’s recommendations and reject any findings of fact that are clearly erroneous. See Day v. Wayne County Board of Auditors, 749 F.2d 1199, 1201-02 (6th Cir.1984). Thus, the dispositive motions will in all probability have to be briefed and argued twice: first for the special master and then again for ultimate resolution by the district court. Moreover, as the government also observes, the reference of dispositive motions will not reduce significantly the court’s overall involvement with those issues as the district judge will have to familiarize himself with the same facts and law upon which the special master bases her determinations.
That references often delay the resolution of cases is well recognized in the case law and by the commentators. The La Buy Court, for example, noted the following commentary by former New Jersey Supreme Court Chief Justice Vanderbilt in Cases and Materials on Modern Procedure and Judicial Administration 1240-41 (1952):
“There is one special cause of delay in getting cases on for trial that must be singled out for particular condemnation, the all-too-prevalent habit of sending matters to a reference. There is no more effective way of putting a case to sleep for an indefinite period than to permit it to go to a reference with a busy lawyer as referee. Only a drastic administrative rule, rigidly enforced, strictly limiting the matters in which a reference may be had and requiring weekly reports as to the progress of each reference will put to rout this inveterate enemy of dispatch in the trial of cases.”
La Buy, 352 U.S. at 253 n. 5, 77 S.Ct. at 312 n. 5.
The La Buy Court further observed that the district judge’s “knowledge of the cases at the time of the references, together with his long experience in the antitrust field, points to the conclusion that he could dispose of the litigation with greater dispatch and less effort than anyone else.” Id. at 256, 77 S.Ct. at 313 (emphasis supplied). See also TPO, Inc. v. McMillen, 460 F.2d 348, 361 (7th Cir.1972) (“The handling of the preliminary motion practice by the district judge not only assures a fairer result to the litigants but actually serves to reduce the time spent on the case.”) (footnotes omitted); 9 C. Wright and A. Miller, supra, § 2605, at 791 (“reference of a non-jury case ... involves expense and delay”); C. Wright, Law of Federal Courts 656 (4th ed. 1983) (“the supposed procedural advantage [from a reference] must be considered in the light of the ‘unbelievably long’ delay and the increased expense to which the litigants will be subjected by a reference.”). Moreover, adding another layer of review complicates the appellate court’s task. See Krinsley v. United Artists Corp., 235 F.2d 253, 257 (7th Cir.1956) (“The well-reasoned opinion of the trial judge indicated a careful and searching study of the voluminous record before the Master. Had the trial judge himself heard the evidence and then made the same findings and reached the same conclusions, this case could be disposed of here in a very short opinion.”), quoted in McMillen, 460 F.2d at 361 n. 66.
Finally, it seems to us that the interest in a quick resolution of the case is simply an alternative way of asserting calendar congestion and the possibility of a lengthy trial as exceptional conditions justifying the reference. Because these factors were rejected by the La Buy Court and because we believe the reference is as likely to delay as to expedite the case, we reject the district court’s assertion that the interest in the speedy resolution of the action establishes an exceptional condition warranting the reference.
We are left with the district court’s statement that the extraordinary pretrial management required in a case with more than 250 parties justifies the reference. Although this rationale may be persuasive as to the reference of discovery matters, it is less so in regard to the reference of dispositive, pretrial motions. As the government argues, the legal issues are essentially the same regardless of the number of parties. In any event, the complexity of the case is not a factor that justifies appointing a special master. La Buy, 352 U.S. at 259, 77 S.Ct. at 315. Accordingly, we do not find this factor to establish the necessary showing of an “exceptional condition.”
In support of its action, the district court first relied on United States v. Conservation Chemical Co., 106 F.R.D. 210 (W.D.Mo.1985), and the cases cited therein. In Conservation Chemical, a CERCLA action involving over 250 parties, the district court entered an order of reference giving the special master authority “to order and preside over pretrial hearings, the authority to supervise and issue recommendations regarding pretrial matters, and the authority to hold hearings and issue recommendations on the claims for inclusion in any injunctive relief order and apportionment of costs.” Id. at 216. In denying a motion seeking revocation of the special master’s authority to conduct trial on major issues, the district court found that exceptional conditions existed because of a number of factors and concluded:
Primarily, the Court believed that the assistance of a Master was warranted because of the need for a prompt resolution of serious claims alleging an imminent and substantial endangerment to the public health and welfare and to the environment. In addition, the Court noted that the determination of complex factual issues relevant to liability and cost apportionment would require a comprehensive analysis of voluminous technical and scientific data. The Court also noted that the issues involved in this case were further complicated by the number of parties, the allegations of commingling of waste, and the absence of accurate documentation of chemical deposits because many of the disposal site’s business records have been destroyed. In addition, the Court believed that a Master’s participation was warranted because the vast amount of evidence necessary to litigate this case would result in extensive discovery requiring nearly constant supervision.
Id. at 217.
The district court next turned to a survey of the law and concluded that cases decided subsequent to La Buy indicate that the trial court’s authority to appoint special masters is not as limited as the movants suggested. In support of this conclusion, the court cited a number of original actions in the Supreme Court in which the Court appointed special masters to hold and conduct hearings and to submit comprehensive recommendations resolving contested issues. 106 F.R.D. at 218 (citing, among other cases, United States v. Louisiana, 470 U.S. 93, 105 S.Ct. 1074, 84 L.Ed.2d 73 (1985)).
In our view, these cases do not support the district court’s conclusion. In none of the Supreme Court cases cited did the Court expressly state Fed.R.Civ.P. 53 as the authority for the reference. Indeed, by its terms, the Federal Rules of Civil Procedure do not apply to the Supreme Court. See Fed.R.Civ.P. 1 (“These rules govern the procedure in the United States district courts ... ”). In none of these cases did the Supreme Court indicate any need for a showing of exceptional conditions in order to justify the reference. A further indication that the Supreme Court does not act pursuant to Rule 53(b) in referring matters in original actions is that the Court conducts an independent review of the record. See United States v. Louisiana, supra, 105 S.Ct. at 1080 (“We have independently reviewed the record, as we must.”). In contrast, Rule 53(e)(2) requires that the clearly erroneous standard be applied. Accordingly, these cases are of no assistance in resolving the present problem.
Other cases cited by the court in Conservation Chemical are also unpersuasive. For example, the court cited Burgess v. Williams, 302 F.2d 91 (4th Cir.1962), for the proposition that the number of parties involved and the nature and volume of evidence to be presented are relevant to the determination of whether exceptional conditions exist. Burgess, however, involved an action to be tried to the jury. Under the express terms of Fed.R.Civ.P. 53(b), complexity of the issues justifies a reference in an action to be tried to a jury. As we noted earlier, the La Buy Court expressly disavowed complexity as a justification for a reference in a nonjury case. Furthermore, of the other cases cited by the Conservation Chemical court, most dealt with accountings or damage computations, which are expressly stated in Fed.R.Civ.P. 53(b) to be proper matters for reference.
In any event, reliance on Conservation Chemical is questionable in that subsequent to that decision, several of the defendants petitioned the Eighth Circuit to issue a writ of mandamus to revoke the authority of the special master to prepare a report and recommendation pertaining to liability and remedy. See In re Armco, Inc., 770 F.2d 103 (8th Cir.1985) (per curiam) (this is the second case relied on by the district court in the present case). The Armco court concluded:
We believe that the district court erred in granting the master authority to preside at trial on the merits of this case. We also believe, however, that the district court acted properly in granting the master the broad authority to supervise and conduct pretrial matters, including discovery activity, the production and arrangement of exhibits and stipulations of fact, the power to hear motions for summary judgment or dismissal and to make recommendations with respect thereto. If the district court determines that liability rests with some or all of the parties, it may request the master to conduct evidentiary rehearings with respect to damages and alternative relief and make recommendations with respect to these matters. It may also direct the magistrate to monitor and supervise any injunctive relief granted and to make reports to it with respect to compliance with any decrees entered.
Id. at 105 (emphasis supplied).
As the italicized language indicates, Armco does support the district court’s reference of dispositive motions in the present case. We do not, however, find Armco persuasive as we are unable to follow the court’s reasoning. In its per curiam opinion, the Eighth Circuit first determined that the justifications offered by the district court had been found insufficient in La Buy. The court then inexplicably went on to partially uphold the reference.
The Armco court apparently drew a distinction between referring the trial to the master and referring pretrial matters. Although there may be some general validity to this distinction, we believe that dispositive motions should not fall on the “pretrial matters” side of the line. In our view, for purposes of the present analysis, dispositive, pretrial motions are more akin to the trial than to discovery matters.
An overriding concern in this area is that “since the master’s findings must be accepted unless they are clearly erroneous, [the reference of a nonjury case] involves the danger that the master, not the court, will in fact decide the case.” 9 C. Wright and A. Miller, supra, § 2605, at 791. In La Buy, the Supreme Court stated that the orders of reference “amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation.” 352 U.S. at 256, 77 S.Ct. at 313 (emphasis supplied). This language suggests that the “basic issues” should be decided by the district judge in the first instance. Accordingly, even though the reference of nondispositive discovery matters may be justified in some nonjury cases, it will be the extremely rare case where the reference of a dispositive matter (be it a pretrial motion for summary judgment or the actual trial) will be appropriate.
For all these reasons, we believe the district court abused its discretion in finding that the present case manifests exceptional conditions justifying the reference of dispositive motions to the special master. See, e.g., Liptak v. United States, 748 F.2d 1254 (8th Cir.1984) (per curiam) (district court abused its discretion in referring application for preliminary injunction); Jack Walters & Sons Corp., 737 F.2d at 712 (“it would be contrary to Rule 53(b), as it has been understood and interpreted against a background of concern with the cost and delay created by using masters, to refer summary judgment motions in antitrust cases routinely to masters.”).
Given our holding that the district court has abused its discretion, it remains for us to determine whether the erroneous reference in the present case presents exceptional circumstances warranting the use of the extraordinary remedy of mandamus. The Supreme Court has stated that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) (quoting De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945)). The party seeking issuance of the writ must show that there is “no other adequate means to attain the relief he desires,” and that his “right to issuance of the writ is ‘clear and indisputable’ ” Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976) (quoting Banker’s Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)).
It is arguable that the writ should not be granted in the present case because a direct appeal would be an adequate means to review the propriety of the reference. However, this precise argument was rejected by the majority in La Buy. Compare 352 U.S. at 254-55, 77 S.Ct. at 312-13 with id. at 260-69, 77 S.Ct. at 315-20 (Brennan, J., dissenting). Thus, the writ may issue where the interlocutory order at issue “deprive[s] ‘the parties of a trial before the court on the basic issues involved in the litigation.’ ” Vickers Motors, Inc. v. Wellford, 502 F.2d 967, 968 (6th Cir.1974) (quoting La Buy, 352 U.S. at 256, 77 S.Ct. at 313. See also Califano v. Moynahan, 596 F.2d 1320, 1321 (6th Cir.1979).
III.
For the foregoing reasons, we conclude that the United States of America has shown clearly and indisputably that it is entitled to issuance of the writ because the district court’s reference of dispositive motions to the special master will deprive the parties of their right to have the basic issues heard by the district judge. Accordingly, we order that the writ of mandamus issue directing the district court to vacate that part of its order of reference which authorizes the special master to hear argument on, and recommend resolution of, dis-positive motions.
. While the government does not raise these issues in the present petition, it reserves the right to raise them on appeal.
. Section 1651(a) provides:
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.
. In Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), the Supreme Court disagreed with the conclusion reached in Ingram that the order of reference was pursuant to Rule 53(b) and that “exceptional conditions” need be shown. However, the Court stressed that its decision did not erode the validity of La Buy. 423 U.S. at 274, 96 S.Ct. at 556.
. Rule 53(e)(2) provides in relevant part that "[i]n an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous.”
. We have since been informed that over 600 third-party defendants have been impleaded. This does not alter our analysis.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_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.
CHRISTIANSBURG GARMENT CO. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
No. 76-1383.
Argued November 28-29, 1977
Decided January 23, 1978
William W. Sturges argued the cause for petitioner. With him on the brief was William B. Pofj.
Thomas S. Martin argued the cause for respondent. With him on the brief were Solicitor General McCree, Deputy Solicitor General Wallace, Abner W. Sibal, Joseph T. Eddins, and Beatrice Rosenberg.
Robert J. Hickey, G. Brockwel Heylin, Stephen A. Bokat, Stanley T. Kaleczyc, Jr., and Lawrence B. Kraus filed a brief for the National Chamber Litigation Center as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Charles A. Bane, Thomas D. Barr, Armand, Derfner, Norman Redlich, Robert A. Murphy, Richard T. Seymour, and William E. Caldwell for the Lawyers’ Committee for Civil Rights under Law; and by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Melvyn R. Leventhal, and Eric Schnapper for the NAACP Legal Defense & Educational Fund, Inc.
Robert E. Williams, Douglas S. McDowell, and Kenneth C. McGuiness filed a brief for the Equal Employment Advisory Council as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
Section 706 (k) of Title VII of the Civil Rights Act of 1964 provides:
“In any action or proceeding under this title the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee . ...”
The question in this case is under what circumstances an attorney’s fee should be allowed when the defendant is the prevailing party in a Title VII action' — a question about which the federal courts have expressed divergent views.
I
Two years after Rosa Helm had filed a Title VII charge of racial discrimination against the petitioner Christiansburg Garment Co. (company), the Equal Employment Opportunity Commission notified her that its conciliation efforts had failed and that she had the right to sue the company in federal court. She did not do so. Almost two years later, in 1972, Congress enacted amendments to Title VII. Section 14 of these amendments authorized the Commission to sue in its own name to prosecute “charges pending with the Commission” on the effective date of the amendments. Proceeding under this section, the Commission sued the company, alleging that it had engaged in unlawful employment practices in violation of the amended Act. The company moved for summary judgment on the ground, inter alia, that the Rosa Helm charge had not been “pending” before the Commission when the 1972 amendments took effect. The District Court agreed, and granted summary judgment in favor of the company. 376 F. Supp. 1067 (WD Va).
The company then petitioned for the allowance of attorney’s fees against the Commission pursuant to § 706 (k) of Title VII. Finding that “the Commission’s action in bringing the suit cannot be characterized as unreasonable or meritless/’ the District Court concluded that “an award of attorney’s fees to petitioner is not justified in this case.” A divided Court of Appeals affirmed, 550 F. 2d 949 (CA4), and we granted cer-tiorari to consider an important question of federal law, 432 U. S. 905.
II
It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney’s fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240. Congress has provided only limited exceptions to this rule “under selected statutes granting or protecting various federal rights.” Id., at 260. Some of these statutes make fee awards mandatory for prevailing plaintiffs; others make awards permissive but limit them to certain parties, usually prevailing plaintiffs. But many of the statutes are more flexible, authorizing the award of attorney’s fees to either plaintiffs or defendants, and entrusting the effectuation of the statutory policy to the discretion of the district courts. Section 706 (k) of Title VII of the Civil Nights Act of 1964 falls into this last category, providing as it does that a district court may in its discretion allow an attorney’s fee to the prevailing party.
In Newman v. Piggie Park Enterprises, 390 U. S. 400, the Court considered a substantially identical statute authorizing the award of attorney’s fees under Title II of the Civil Rights Act of 1964. In that case the plaintiffs had prevailed, and the Court of Appeals had held that they should be awarded their attorney’s fees “only to- the extent that the respondents’ defenses had been advanced 'for purposes of delay and not in good faith.’ ” Id., at 401. We ruled that this “subjective standard” did not properly effectuate the purposes of the counsel-fee provision of Title II. Relying primarily on the intent of Congress to cast a Title II plaintiff in the role of “a 'private attorney general,’ vindicating a policy that Congress considered of the highest priority,” we held that a prevailing plaintiff under Title II “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id., at 402. We noted in passing that if the objective of Congress had been to permit the award of attorney’s fees only against defendants who h'ad acted in bad faith, “no new statutory provision would have been necessary,” since even the American common-law rule allows the award of attorney’s fees in those exceptional circumstances. Id., at 402 n. 4.
In Albemarle Paper Co. v. Moody, 422 U. S. 405, the Court made clear that the Piggie Park standard of awarding attorney’s fees to a successful plaintiff is equally applicable in an action under Title VII of the Civil Rights Act. 422 U. S., at 415. See also Northcross v. Memphis Board of Education, 412 U. S. 427, 428. It can thus be taken as established, as the parties in this case both acknowledge, that under § 706 (k) of Title VII a prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but special circumstances.
Ill
The question in the case before us is what standard should inform a district court’s discretion in deciding whether to award attorney’s fees to a successful defendant in a Title VII action. Not surprisingly, the parties in addressing the question in their briefs and oral arguments have taken almost diametrically opposite positions.
The company contends that the Piggie Park criterion for a successful plaintiff should apply equally as a guide to the award of attorney’s fees to a successful defendant. Its submission, in short, is that every prevailing defendant in a Title VII action should receive an allowance of attorney’s fees “unless special circumstances would render such an award unjust.” The respondent Commission, by contrast, argues that the prevailing defendant should receive an award of attorney’s fees only when it is found that the plaintiff’s action was brought in bad faith. We have concluded that neither of these positions is correct.
A
Relying on what it terms “the plain meaning of the statute,” the company argues that the language of § 706 (k) admits of only one interpretation: “A prevailing defendant is entitled to an award of attorney’s fees on the same basis as a prevailing plaintiff.” But the permissive and discretionary language of the statute does not even invite, let alone require, such a mechanical construction. The terms of § 706 (k) provide no indication whatever of the circumstances under which either a plaintiff or a defendant should be entitled to' attorney’s fees. And a moment’s reflection reveals that there are at least two strong equitable considerations counseling an attorney’s fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant.
First, as emphasized so forcefully in Piggie Park, the plaintiff is the chosen instrument of Congress to vindicate “a policy that Congress considered of the highest priority.” 390 U. S., at 402. Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. As the Court of Appeals clearly perceived, “these policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant.” 550 F. 2d, at 951. A successful defendant seeking counsel fees under § 706 (k) must rely on quite different equitable considerations.
But if the company’s position is untenable, the Commission’s argument also misses the mark. It seems clear, in short, that in enacting § 706 (k) Congress did not intend to permit the award of attorney’s fees to a prevailing defendant only in a situation where the plaintiff was motivated by bad faith in bringing the action. As pointed out in Piggie Park, if that had been the intent of Congress, no statutory provision would have been necessary, for it has long been established that even under the American -common-law rule attorney’s fees may be awarded against a party who has proceeded in bad faith.
Furthermore, while it was certainly the policy of Congress that Title VII plaintiffs should vindicate “a policy that Congress considered of the highest priority,” Piggie Park, 390 U. S., at 402, it is equally certain that Congress entrusted the ultimate effectuation of that policy to the adversary judicial process, Occidental Life Ins. Co. v. EEOC, 432 U. S. 355. A fair adversary process presupposes both a vigorous prosecution and a vigorous defense. It cannot be lightly assumed that in enacting § 706 (k), Congress intended to' distort that process by giving the private plaintiff substantial incentives to sue, while foreclosing to the defendant the possibility of recovering his expenses in resisting even a groundless action unless he can show that it was brought in bad faith.
B
The sparse legislative history of § 706 (k) reveals little more than the barest outlines of a proper accommodation of the competing considerations we have discussed. The only specific reference to § 706 (k) in the legislative debates indicates that the fee provision was included to “make it easier for a plaintiff of limited means to bring a meritorious suit.” During the ¿Senate floor discussions of the almost identical attorney’s fee provision of Title II, however, several Senators explained that its allowance of awards to defendants would serve “to deter the bringing of lawsuits without foundation,” “to discourage frivolous suits,” and “to diminish the likelihood of unjustified suits being brought.” If anything can be gleaned from these fragments of legislative history, it is that while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis. The Court of Appeals for the District of Columbia Circuit seems to have drawn the maximum significance from the Senate debates when it concluded:
“[From these debates] two purposes for § 706 (k) emerge. First, Congress desired to 'make it easier for a plaintiff of limited means to bring a meritorious suit’.... But second, and equally important, Congress intended to 'deter the bringing of lawsuits without foundation’ by providing that the 'prevailing party’ — be it plaintiff or defendant — could obtain legal fees.” Grubbs v. Butz, 179 U. S. App. D. C. 18, 20, 648 F. 2d 973, 975.
The first federal appellate court to consider what criteria should govern the award of attorney’s fees to a prevailing Title VII defendant was the Court of Appeals for the Third Circuit in United States Steel Corp. v. United States, 519 F. 2d 359. There a District Court had denied a fee award to a defendant that had successfully resisted a Commission demand for documents, the court finding that the Commission’s action had not been “ 'unfounded, meritless, frivolous or vexatiously brought.’ ” Id., at 363. The Court of Appeals concluded that the District Court had not abused its discretion in denying the award. Id., at 365. A similar standard was adopted by the Court of Appeals for the Second Circuit in Carrion v. Yeshiva University, 535 F. 2d 722. In upholding an attorney’s fee award to a successful defendant, that court stated that such awards should be permitted “not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” Id., at 727.
To the extent that abstract words can deal with concrete cases, we think that the concept embodied in the language adopted by these two Courts of Appeals is correct. We would qualify their words only by pointing out that the term “merit-less” is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term “vexatious” in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.
In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one’s belief that he has been the victim of discrimination, no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
That § 706 (k) allows fee awards only to prevailing private plaintiffs should assure that this statutory provision will not in itself operate as an incentive to the bringing of claims that have little chance of success. To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in had faith, there will be an even stronger basis for charging him with the. attorney’s fees incurred by the defense.
IV
In denying attorney’s fees to the company in this case, the District Court focused on the standards we have discussed. The court found that “the Commission’s action in bringing the suit cannot be characterized as unreasonable or meritless” because “the basis upon which petitioner prevailed was an issue of first impression requiring judicial resolution” and because the “Commission’s statutory interpretation of § 14 of the 1972 amendments was not frivolous.” The court thus exercised its discretion squarely within the permissible bounds of § 706 (k). Accordingly, the judgment of the Court of Appeals upholding the decision of the District Court is affirmed.
It is so ordered.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
Section 706 (k) provides in full: “In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” 78 Stat. 261, 42 U. S. C. § 2000e-5 (k).
Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103.
The Commission argued that charges as to which no private suit had been brought as of the effective date of the amendments remained "pending” before the Commission so long as the complaint had not been dismissed and the dispute had not been resolved through conciliation. The Commission supported its construction of § 14 with references to the legislative history of the 1972 amendments.
The District Court concluded that when Rosa Helm was notified in 1970 that conciliation had failed and that she had a right to sue the company, the Commission had no further action legally open to it, and its authority over the case terminated on that date. Section 14’s reference to “pending” cases was held “to be limited to charges still in the process of negotiation and conciliation” on the effective date of the 1972 amendments. 376 F. Supp., at 1074.
The District Court rejected on the merits two additional grounds advanced by the company in support of its motion for summary judgment.
The opinion of the District Court dealing with the motion for attorney’s fees is reported at 12 FEP Cases 533.
See, e. g., Clayton Act, 38 Stat. 731, 15 U. S. C. §15; Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U. S. C. § 216 (b); Packers and Stockyards Act, 42 Stat. 165, 7 U. S. C. § 210 (f); Truth in Lending Act, 82 Stat. 157, 15 U. S. C. § 1640 (a); and Merchant Marine Act, 1936, 49 Stat. 2015, 46 U. S. C. § 1227.
See, e. g., Privacy Act of 1974, 88 Stat. 1897, 5 U. S. C. § 552a (g) (2) (B) (1976 ed.); Fair Housing Act of 1968, 82 Stat. 88, 42 U. S. C. §3612 (c).
See, e. g., Trust Indenture Act of 1939, 53 Stat. 1171, 15 U. S. C. § 77ooo (e); Securities Exchange Act of 1934, 48 Stat. 889, 897, 15 U. S. C. §§ 78i (e), 78r (a); Federal Water Pollution Control Act, 86 Stat. 889, 33 U. S. C. § 1365 (d) (1970 ed., Supp. V); Clean Air Act, 84 Stat. 1706, 42 U. S. C. § 1857h-2 (d); Noise Control Act of 1972, 86 Stat. 1244, 42 U. S. C. § 4911 (d) (1970 ed., Supp. V).
“In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.” 42 U. S. C. § 2000a-3 (b).
The propriety under the American common-law rule of awarding attorney’s fees against- a losing party who has acted in bad faith was expressly reaffirmed in Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240, 258-259.
Chastang v. Flynn & Emrich Co., 541 F. 2d 1040, 1045 (CA4) (finding “special circumstances” justifying no award to prevailing plaintiff); Carrion v. Yeshiva Univ., 535 F. 2d 722, 727 (CA2); Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 716 (CA5); Parham v. Southwestern Bell Telephone Co., 433 F. 2d 421, 429-430 (CA8).
Briefs by amici have also been filed in support of each party.
This was the view taken by Judge Widener, dissenting in the Court of Appeals, 550 F. 2d 949, 952 (CA4). At least two other federal courts have expressed the same view. EEOC v. Bailey Co., 563 F. 2d 439, 456 (CA6); United States v. Allegheny-Ludlum Industries, 558 F. 2d 742, 744 (CA5).
See n. 9, supra. Had Congress provided for attorney’s fee awards only to successful plaintiffs, an argument could have been made that the congressional action had pre-empted the common-law rule, and that, therefore, a successful defendant could not recover attorney’s fees even against a plaintiff who had proceeded in bad faith. Cf. Byram Concretanks, Inc. v. Warren Concrete Products Co. of New Jersey, 374 F. 2d 649, 651 (CA3). But there is no indication whatever that the purpose of Congress in enacting § 706 (k) in the form’that it did was simply to foreclose such' an argument.
Remarks of Senator Humphrey,, 110 Cong. Rec. 12724 (1964).
Remarks of Senator Lausche, id.., at 13668.
Remarks of Senator Pastore, id., at 14214.
Remarks of Senator Humphrey, id., at 6534.
At least three other Circuits are in general agreement. See Bolton v. Murray Envelope Corp., 553 F. 2d 881, 884 n. 2 (CA5); Grubbs v. Butz, 179 U. S. App. D. C. 18, 20-21, 548 F. 2d 973, 975-976; Wright v. Stone Container Corp., 524 F. 2d 1058, 1063-1064 (CA8).
See remarks of Senator Miller, 110 Cong. Rec. 14214 (1964), with reference to the parallel attorney’s fee provision in Title II.
Initially, the Commission argued that the “costs” assessable against the Government under § 706 (k) did not include attorney’s fees. See, e. g., United States Steel Corp. v. United States, 519 F. 2d 359, 362 (CA3); Van Hoomissen v. Xerox Corp., 503 F. 2d 1131, 1132-1133 (CA9). But the Courts of Appeals rejected this position and, during the course of appealing this case, the Commission abandoned its contention that it was legally immune to adverse fee awards under § 706 (k). 550 F. 2d, at 951.
It has been urged that fee awards against the Commission should rest on a standard different from that governing fee awards against private plaintiffs. One amicus stresses that the Commission, unlike private litigants, needs no inducement to enforce Title VII since it is required by statute to do so. But this distinction between the Commission and private plaintiffs merely explains why Congress drafted § 706 (k) to preclude the recovery of attorney’s fees by the Commission; it does not support a difference in treatment among private and Government plaintiffs when a prevailing defendant seeks to recover his attorney’s fees. Several courts and commentators have also deemed significant the Government’s greater ability to pay adverse fee awards compared to a private litigant. See, e. g., United States Steel Corp. v. United States, supra, at 364 n. 24; Heinsz, Attorney’s Fees for Prevailing Title VII Defendants: Toward a Workable Standard, 8 U. Toledo L. Rev. 259, 290 (1977); Comment, Title VII, Civil Rights Act of 1964: Standards for Award of Attorney’s Fees to Prevailing Defendants, 1976 Wis. L. Rev. 207, 228. We are informed, however, that such awards must be paid from the Commission’s litigation budget, so that every attorney’s fee assessment against the Commission will inevitably divert resources from the agency’s enforcement of Title VII. See 46 Comp. Gen. 98, 100 (1966); 38 Comp. Gen. 343, 344-345 (1958). The other side of this coin is the fact that many defendants in Title VII claims are small- and moderate-size employers for whom the expense of defending even a frivolous claim may become a strong disincentive to the exercise of their legal rights. In short, there are equitable considerations on both sides of this question. Yet § 706 (k) explicitly provides that “the Commission and the United States shall be liable for costs the same as a private person.” Hence, although a district court may consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission’s litigation efforts, we find no grounds for applying a different general standard whenever the Commission is the losing plaintiff.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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sc_caseorigin
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057
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
MASTROBUONO et al. v. SHEARSON LEHMAN HUTTON, INC., et al.
No. 94-18.
Argued January 10, 1995
Decided March 6, 1995
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, post, p. 64.
William J. Harte argued the cause for petitioners. With him on the briefs were Robert L. Tucker and Joan M. Mannix.
Malcolm L. Stewart argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Deputy Solicitor General Wallace, Simon M. Lome, Paul Gonson, Jacob H Stillman, Lucinda O. McConathy, and Mark Pennington.
Joseph Polizzotto argued the cause for respondents. With him on the brief were Phil C. Neal, H. Nicholas Berberian, and Robert J. Mandel.
Briefs of amici curiae urging reversal were filed for the American Association of Limited Partners by Michael B. Dashjian; for the Public Investors Arbitration Bar Association by Stuart C. Goldberg and Seth E. Lipner.
Andrew L. Frey, Andrew J. Pincus, and Stuart J. Kaswell filed a brief for the Securities Industry Association as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
New York law allows courts, but not arbitrators, to award punitive damages. In a dispute arising out of a standard-form contract that expressly provides that it “shall be governed by the laws of the State of New York,” a panel of arbitrators awarded punitive damages. The District Court and Court of Appeals disallowed that award. The question presented is whether the arbitrators’ award is consistent with the central purpose of the Federal Arbitration Act to ensure “that private agreements to arbitrate are enforced according to their terms.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479 (1989).
I
In 1985, petitioners, Antonio Mastrobuono, then an assistant professor of medieval literature, and his wife Diana Mastrobuono, an artist, opened a securities trading account with respondent Shearson Lehman Hutton, Inc. (Shearson), by executing Shearson’s standard-form Client’s Agreement. Respondent Nick DiMinico, a vice president of Shearson, managed the Mastrobuonos’ account until they closed it in 1987. In 1989, petitioners filed this action in the United States District Court for the Northern District of Illinois, alleging that respondents had mishandled their account and claiming damages on a variety of state and federal law theories.
Paragraph 13 of the parties’ agreement contains an arbitration provision and a choice-of-law provision. Relying on the arbitration provision and on §§3 and 4 of the Federal Arbitration Act (FAA), 9 U. S. C. §§ 3, 4, respondents filed a motion to stay the court proceedings and to compel arbitration pursuant to the rules of the National Association of Securities Dealers. The District Court granted that motion, and a panel of three arbitrators was convened. After conducting hearings in Illinois, the panel ruled in favor of petitioners.
In the arbitration proceedings, respondents argued that the arbitrators had no authority to award punitive damages. Nevertheless, the panel’s award included punitive damages of $400,000, in addition to compensatory damages of $159,327. Respondents paid the compensatory portion of the award but filed a motion in the District Court to vacate the award of punitive damages. The District Court granted the motion, 812 F. Supp. 845 (ND Ill. 1993), and the Court of Appeals for the Seventh Circuit affirmed, 20 F. 3d 713 (1994). Both courts relied on the choice-of-law provision in paragraph 13 of the parties’ agreement, which specifies that the contract shall be governed by New York law. Because the New York Court of Appeals has decided that in New York the power to award punitive damages is limited to judicial tribunals and may not be exercised by arbitrators, Garrity v. Lyle Stuart, Inc., 40 N. Y. 2d 354, 353 N. E. 2d 793 (1976), the District Court and the Seventh Circuit held that the panel of arbitrators had no power to award punitive damages in this case.
We granted certiorari, 513 U. S. 921 (1994), because the Courts of Appeals have expressed differing views on whether a contractual choice-of-law provision may preclude an arbitral award of punitive damages that otherwise would be proper. Compare Barbier v. Shearson Lehman Hutton Inc., 948 F. 2d 117 (CA2 1991), and Pierson v. Dean, Witter, Reynolds, Inc., 742 F. 2d 334 (CA7 1984), with Bonar v. Dean Witter Reynolds, Inc., 835 F. 2d 1378, 1386-1388 (CA11 1988), Raytheon Co. v. Automated Business Systems, Inc., 882 F. 2d 6 (CA1 1989), and Lee v. Chica, 983 F. 2d 883 (CA8 1993). We now reverse.
II
Earlier this Term, we upheld the enforceability of a predispute arbitration agreement governed by Alabama law, even though an Alabama statute provides that arbitration agreements are unenforceable. Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995). Writing for the Court, Justice Breyer observed that Congress passed the FA A “to overcome courts’ refusals to enforce agreements to arbitrate.” Id., at 270. See also Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S., at 474; Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 220 (1985). After determining that the FAA applied to the parties’ arbitration agreement, we readily-concluded that the federal statute pre-empted Alabama’s statutory prohibition. Allied-Bruce, 513 U. S., at 272-273, 281-282.
Petitioners seek a similar disposition of the case before us today. Here, the Seventh Circuit interpreted the contract to incorporate New York law, including the Garrity rule that arbitrators may not award punitive damages. Petitioners ask us to hold that the FAA pre-empts New York’s prohibition against arbitral awards of punitive damages because this state law is a vestige of the “ ‘ “ancient” ’ ” judicial hostility to arbitration. See Allied-Bruce, 513 U. S., at 270, quoting Bernhardt v. Polygraphic Co. of America, Inc., 350 U. S. 198, 211, n. 5 (1956) (Frankfurter, J., concurring). Petitioners rely on Southland Corp. v. Keating, 465 U. S. 1 (1984), and Perry v. Thomas, 482 U. S. 483 (1987), in which we held that the FAA pre-empted two California statutes that purported to require judicial resolution of certain disputes. In South-land, we explained that the FAA not only “declared a national policy favoring arbitration,” but actually “withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” 465 U. S., at 10.
Respondents answer that the choice-of-law provision in their contract evidences the parties’ express agreement that punitive damages should not be awarded in the arbitration of any dispute arising under their contract. Thus, they claim, this case is distinguishable from Southland and Perry, in which the parties presumably desired unlimited arbitration but state law stood in their way. Regardless of whether the FAA pre-empts the Garrity decision in contracts not expressly incorporating New York law, respondents argue that the parties may themselves agree to be bound by Garrity, just as they may agree to forgo arbitration altogether. In other words, if the contract says “no punitive damages,” that is the end of the matter, for courts are bound to interpret contracts in accordance with the expressed intentions of the parties — even if the effect of those intentions is to limit arbitration.
We have previously held that the FAA’s proarbitration policy does not operate without regard to the wishes of the contracting parties. In Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989), the California Court of Appeal had construed a contractual provision to mean that the parties intended the California rules of arbitration, rather than the FAA’s rules, to govern the resolution of their dispute. Id., at 472. Noting that the California rules were “manifestly designed to encourage resort to the arbitral process,” id., at 476, and that they “generally foster[ed] the federal policy favoring arbitration,” id., at 476, n. 5, we concluded that such an interpretation was entirely consistent with the federal policy “to ensure the enforceability, according to their terms, of private agreements to arbitrate,” id., at 476. After referring to the holdings in Southland and Perry, which struck down state laws limiting agreed-upon arbitrability, we added:
“But it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself. Indeed, such a result would be quite inimical to the FAA’s primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, see Mitsubishi [Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628 (1985)], so too may they specify by contract the rules under which that arbitration will be conducted.” Volt, 489 U. S., at 479.
Relying on our reasoning in Volt, respondents thus argue that the parties to a contract may lawfully agree to limit the issues to be arbitrated by waiving any claim for punitive damages. On the other hand, we think our decisions in Allied-Bruce, Southland, and Perry make clear that if contracting parties agree to include claims for punitive damages within the issues to be arbitrated, the FAA ensures that their agreement will be enforced according to its terms even if a rule of state law would otherwise exclude such claims from arbitration. Thus, the case before us comes down to what the contract has to say about the arbitrability of petitioners’ claim for punitive damages.
Ill
Shearson’s standard-form “Client Agreement,” which petitioners executed, contains 18 paragraphs. The two relevant provisions of the agreement are found in paragraph 13. The first sentence of that paragraph provides, in part, that the entire agreement “shall be governed by the laws of the State of New York.” App. to Pet. for Cert. 44. The second sentence provides that “any controversy” arising out of the transactions between the parties “shall be settled by arbitration” in accordance with the rules of the National Association of Securities Dealers (NASD), or the Boards of Directors of the New York Stock Exchange and/or the American Stock Exchange. Ibid. The agreement contains no express reference to claims for punitive damages. To ascertain whether paragraph 13 expresses an intent to include or exclude such claims, we first address the impact of each of the two relevant provisions, considered separately. We then move on to the more important inquiry: the meaning of the two provisions taken together. See Restatement (Second) of Contracts §202(2) (1979) (“A writing is interpreted as a whole”).
The choice-of-law provision, when viewed in isolation, may reasonably be read as merely , a substitute for the conflict-of-laws analysis that otherwise would determine what law to apply to disputes arising out of the contractual relationship. Thus, if a similar contract, without a choice-of-law provision, had been signed in New York and was to be performed in New York, presumably “the laws of the State of New York” would apply, even though the contract did not expressly so state. In such event, there would be nothing in the contract that could possibly constitute evidence of an intent to exclude punitive damages claims. Accordingly, punitive damages would be allowed because, in the absence of contractual intent to the contrary, the FAA would pre-empt the Garrity rule. See supra, at 58, and n. 8, infra.
Even if the reference to “the laws of the State of New York” is more than a substitute for ordinary conflict-of-laws analysis and, as respondents urge, includes the caveat, “detached from otherwise-applicable federal law,” the provision might not preclude the award of punitive damages because New York allows its courts, though not its arbitrators, to enter such awards. See Garrity, 40 N. Y. 2d, at 358, 353 N. E. 2d, at 796. In other words, the provision might include only New York’s substantive rights and obligations, and not the State’s allocation of power between alternative tribunals. Respondents’ argument is persuasive only if “New York law” means “New York decisional law, including that State’s allocation of power between courts and arbitrators, notwithstanding otherwise-applicable federal law.” But, as we have demonstrated, the provision need not be read so broadly. It is not, in itself, an unequivocal exclusion of punitive damages claims.
The arbitration provision (the second sentence of paragraph 13) does not improve respondents’ argument. On the contrary, when read separately this clause strongly implies that an arbitral award of punitive damages is appropriate. It explicitly authorizes arbitration in accordance with NASD rules; the panel of arbitrators in fact proceeded under that set of rules. The NASD’s Code of Arbitration Procedure indicates that arbitrators may award “damages and other relief.” NASD Code of Arbitration Procedure ¶ 3741(e) (1993). While not a clear authorization of punitive damages, this provision appears broad enough at least to contemplate such a remedy. Moreover, as the Seventh Circuit noted, a manual provided to NASD arbitrators contains this provision:
“B. Punitive Damages
“The issue of punitive damages may arise with great frequency in arbitrations. Parties to arbitration are informed that arbitrators can consider punitive damages as a remedy.” 20 F. 3d, at 717.
Thus, the text of the arbitration clause itself surely does not support — indeed, it contradicts — the conclusion that the parties agreed to foreclose claims for punitive damages.
Although neither the choice-of-law clause nor the arbitration clause, separately considered, expresses an intent to preclude an award of punitive damages, respondents argue that a fair reading of the entire paragraph 13 leads to that conclusion. On this theory, even if “New York law” is ambiguous, and even if “arbitration in accordance with NASD rules” indicates that punitive damages are permissible, the juxtaposition of the two clauses suggests that the contract incorporates “New York law relating to arbitration.” We disagree. At most, the choice-of-law clause introduces an ambiguity into an arbitration agreement that would otherwise allow punitive damages awards. As we pointed out in Volt, when a court interprets such provisions in an agreement covered by the FAA, “due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” 489 U. S., at 476. See also Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983).
Moreover, respondents cannot overcome the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it. See, e. g., United States Fire Ins. Co. v. Schnackenberg, 88 Ill. 2d 1, 4, 429 N. E. 2d 1203, 1205 (1981); Graff v. Billet, 64 N. Y. 2d 899, 902, 477 N. E. 2d 212, 213-214 (1984); Restatement (Second) of Contracts § 206; United States v. Seckinger, 397 U. S. 203, 210 (1970). Respondents drafted an ambiguous document, and they cannot now claim the benefit of the doubt. The reason for this rule is to protect the party who did not choose the language from an unintended or unfair result. That rationale is well suited to the facts of this case. As a practical matter, it seems unlikely that petitioners were actually aware of New York’s bifurcated approach to punitive damages, or that they had any idea that by signing a standard-form agreement to arbitrate disputes they might be giving up an important substantive right. In the face of such doubt, we are unwilling to impute this intent to petitioners.
Finally respondents’ reading of the two clauses violates another cardinal principle of contract construction: that a document should be read to give effect to all its provisions and to render them consistent with each other. See, e. g., In re Halas, 104 Ill. 2d 83, 92, 470 N. E. 2d 960, 964 (1984); Crimmins Contracting Co. v. City of New York, 74 N. Y. 2d 166, 172-173, 542 N. E. 2d 1097, 1100 (1989); Trump-Equitable Fifth Avenue Co. v. H. R. H. Constr. Corp., 106 App. Div. 2d 242, 244, 485 N. Y. S. 2d 65, 67 (1985); Restatement (Second) of Contracts § 203(a) and Comment b; id., § 202(5). We think the best way to harmonize the choice-of-law provision with the arbitration provision is to read “the laws of the State of New York” to encompass substantive principles that New York courts would apply, but not to include special rules limiting the authority of arbitrators. Thus, the choice-of-law provision covers the rights and duties of the parties, while the arbitration clause covers arbitration; neither sentence intrudes upon the other. In contrast, respondents’ reading sets up the two clauses in conflict with one another: one foreclosing punitive damages, the other allowing them. This interpretation is untenable.
We hold that the Court of Appeals misinterpreted the parties’ agreement. The arbitral award should have been enforced as within the scope of the contract. The judgment of the Court of Appeals is, therefore, reversed.
■It is so ordered.
Because our disposition would be the same under either a de novo or a deferential standard, we need not decide in this case the proper standard of a court’s review of an arbitrator’s decision as to the arbitrability of a dispute or as to the scope of an arbitration. We recently granted certiorari in a case that involves some of these issues. First Options of Chicago, Inc. v. Kaplan, No. 94-560, now pending before the Court.
“Paragraph 13 of the Client’s Agreement provides:
“This agreement shall inure to the benefit of your [Shearson’s] successors and assigns[,] shall be binding on the undersigned, my [petitioners’] heirs, executors, administrators and assigns, and shall be governed by the laws of the State of New York. Unless unenforceable due to federal or state law, any controversy arising out of or relating to [my] accounts, to transactions with you, your officers, directors, agents and/or employees for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange Inc. as I may elect. If I do not make such election by registered mail addressed to you at your main office within 5 days after demand by you that I make such election, then you may make such election. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof. This agreement to arbitrate does not apply to future disputes arising under certain of the federal securities laws to the extent it has been determined as a matter of law that I cannot be compelled to arbitrate such claims.” App. to Pet. for Cert. 44.
In a related point, respondents argue that there is no meaningful distinction between “substance” and “remedy,” that is, between an entitlement to prevail on the law and an entitlement to a specific form of damages. See Brief for Respondents 25-27. We do not rely on such a distinction here, nor do we pass upon its persuasiveness.
The dissent makes much of the similarity between this choice-of-law clause and the one in Volt Information Sciences
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
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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
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209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_respond1_1_4
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
NEWBERRY et al. v. DAVISON CHEMICAL CO. et al. (two cases).
Nos. 3475, 3478.
Circuit Court of Appeals, Fourth Circuit.
June 15, 1933.
R». E. Whitehurst, of New Bern, N. C., and F. S. Spruill, of Rocky Mount, N. C. (Leon Tobriner, of Washington, D. C.,'F. S. Spruill, Jr., of Rocky Mount, N. C., and E. M. Green and W. B. R. Guión, both of New Bern, N. C., on the brief), for appellants.
L. I. Moore, of New Bern, N. C., Kenneth C. Royall, of Raleigh, N. C., and Tazewell Taylor, Sr., of Norfolk, Va. (M. B. Simpson, of Elizabeth City, N. C., on the brief), for appellees.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
These are appeals from orders denying motions to discharge receivers and direct that property in their hands be turned over to sheriffs holding executions against the corporations for which the receivers had been appointed. The motions were made upon special appearances, entered for that purpose by persons who were not parties to the suits in which the receivers were appointed, hut were plaintiffs in an action pending in the superior court of Craven county, N. C., in which garnishment judgments had been entered and executions thereon issued against-the corporations. The judge below, while intimating an opinion that appellants were not entitled to appeal from the orders denying their motions, nevertheless granted them an appeal that the matter might be passed on by this court; and appellees have made motions here that the appeals be dismissed.
The appellants are creditors of the E. H. & J. A. Meadows Company, an insolvent corporation which was wound up under receivership proceedings in the court below instituted some time prior to 1931. They became the purchasers at judicial sale of the assets of that corporation, at a price admitted at the bar of this court to be $35,000; and thereafter on June 30, 1931, instituted an action in the superior court of Craven county, on a cause of action alleged to have been so acquired, against the Davison Chemical Company, the Meadows Fertilizer Company, and one C. Wilbur Miller, asking damages in the sum of $1,500,000, which it was alleged that the E. H. & J. A. Meadows Company had sustained as the result of an unlawful conspiracy on the part of the defendants. A motion to remove this action to the federal court was denied, a demurrer to the complaint was overruled, and the action of the superior court with respect to both these matters was sustained on appeal in an opinion filed by the Supreme Court of North Carolina March 23, 1922. Newberry v. Meadows Fertilizer Co., 202 N. C. 416, 163 S. E. 116. A motion to docket the case in the federal District Court, notwithstanding the denial of the petition for removal, was itself denied by the judge below, and the cause was remanded to the state court. Newberry v. Meadows Fertilizer Co., 1 F. Supp. 665.
At the time of instituting the conspiracy action in the state eourt, the appellants caused warrants of attachment to he issued against the property of the Davison Chemical Company, and writs of garnishment were issued and served upon the Meadows Fertilizer Company and the Eastern Cotton Oil Company, two of its subsidiary corporations which were largely indebted to it. The Meadows Fertilizer Company and the Eastern Cotton Oil Company filed answers to the writ admitting an indebtedness to the Davison Chemical Company of $366,103.80 and $2,550,659.21, respectively; and judgment was thereupon entered against the Meadows Fertilizer Company for $366,103.80 and against the Eastern Cotton Oil Company for $1,500,000', to be discharged upon the payment of any judgment which might be recovered in the action against the Davison Chemical Company. Thereafter on August 13, 1922, an order was entered directing the Davison Chemical Company to return to the garnishees $885,540 which it had collected from them subsequent to the judgment in the garnishment proceeding and enjoining the garnishees, from making further payment to the Davison Chemical Company on the indebtedness due at the time of the institution of the action. Upon appeal to the Supreme Court of North Carolina, this order was sustained in so far as it enjoined futuye payments, but the portion directing the repayment of collections was reversed on the ground that, in the absence of levy of execution, no lien was obtained upon the personal assets of the garnishees. Newberry v. Meadows Fertilizer Co., 203 N. C. 330; 166 S. E. 79.
On February 2, 1933, appellants caused executions to be issued on the judgments against the garnishees, and placed same in the hands of the sheriffs of the various counties in which the garnishees had property with direction to make levy. There is a controversy as to whether these executions were lawfully levied, hut, in the view which we take of the matter, it is not necessary to go into this question here. On February 4th the garnishees obtained from the judge of the superior court an order recalling the executions and requiring appellants to show cause why they should not he enjoined from issuing further executions until the final disposition of the principal action. A hearing was had on this matter on February 8th, and the judge took it under advisement. On the next day, he indicated to counsel for garnishees that he was going out of the state but intended upon his return to vacate the order recalling the executions and to deny the injunction prayed. The order denying the injunction and vacating the prior order was not entered, however, until February 13th.
On February 11th, before the order recalling the executions was vacated, the Davison Chemical Company presented two bills to the judge below, asking receivers for the Meadows Fertilizer Company and the Eastern Cotton Oil Company. These bills showed the requisite diversity of citizenship and a large indebtedness on the part of the defendants apart from that which had been subjected to garnishment. • In the case of the Eastern Cotton Oil Company the indebtedness was $2,-094,645.58, of which amount $80,000 was for goods sold subsequent to November, 1932', and $1,344,606.10 represented indebtedness not subjected to the garnishment. In the case of the Meadows Fertilizer Company, the indebtedness was $264,215.80, of which $32’,636.32 was not subject to the garnishment. The bills apprised the court of the proceedings pending in the state court, and averred that the defendants were in danger of having their business destroyed and of being rendered insolvent as a result thereof. It was alleged that a large part of the assets of both corporations consisted of notes and bills receivable, representing credit advanced to farmers in Eastern North Carolina, and that the value of these assets depended upon the continued operation of the plants of the defendants so that they might perform the contracts upon which they had entered. Both defendants filed answers admitting the allegations of the bills and consenting to the appointment of receivers; and receivers were thereupon appointed.
On February 25th these appellants entered in each ease a special appearance in the court below, and moved that the receivers be discharged and that they be directed to turn over to the sheriffs holding executions all property of the defendants, including real property and choses in action, as well as tangible personal property. On March 2d the court denied this motion, but carefully protected the rights of appellants under any liens which they might have acquired under the executions issued, in an order which contains the following provision:
. “It is further ordered and adjudged that any rights or remedies, liens or priorities in the administration of the estate of the defendant in this equitable proceeding shall be preserved and protected and any person claiming to hold any such lien, priority or right of possession of any property of the defendant, may file by proper petition of intervention any such right or claim as they may have to such lien, priority or right of possession as provided by law, and the assets of said defendant shall be held and administered within the jurisdiction of this court until the final •determination of any such claims, liens or priorities or rights of possession thereto', and no funds except for necessary operating expenses shall be paid out by the receivers without an order of the court duly made herein.”
On March 6th the court entered a general order in each ease enjoining all persons from interfering in any way with property in the hands of the receiver; but no exception to this order was entered and no motion made to vacate, modify, or limit it. The appeal taken was from the order denying the motion to discharge the receivers. The appellants refused to make themselves parties to the receivership suits, even for the sole purpose of appealing from the denial of their motion, and the judge below was of opinion that for this reason they were not entitled to appeal therefrom. He nevertheless granted them an appeal in each ease; and it is upon these appeals that the eases are before us.
We need not consider the questions raised as to the levying of the executions or the rights of the parties between the time that the executions were recalled and the time when the order was entered vacating the order recalling them; for we think it perfectly clear that the appointment of the receivers was proper even if it be assumed that the executions were properly levied and never recalled. Only the tangible personal property of the defendants seized by the officers holding the execution came under the control of the state court in any event; for it is well settled in North Carolina that execution gives no possession or right of possession of real estate and does not affect choses in action. As to real estate, the rule is that a docketed! judgment constitutes a lien which may be enforced by sale under execution, but until such sale is made and deed pursuant thereto executed, the right of possession in the owner is not affected. Barden v. McKinne, 11 N. C. 279, 15 Am. Dec. 519; Seawell v. Bank, 14 N. C. 279, 22 Am. Dec. 722; Ladd v. Adams, 66 N. C. 164. The sheriff at no time has either possession or right of possession of real estate merely because he holds an execution. As to choses in action, these cannot be reached by execution. They are subjected to the satisfaction of a judgment under the practice prevailing in North Carolina by supplemental proceedings under the Code (C. S. N. C. § 711 et seq.), which are in the nature of an equitable fi. fa. or creditor’s bill. McIntosh Grocery Co. v. Newman, 184 N. C. 370, 114 S. E. 535; McIntosh North Carolina Prac. & Proc. § 720. It is clear, therefore, that there were assets of the defendant corporations, including real estate and choses in action, which were not in the possession of any officer of a state court, and that it was proper to appoint receivers to conserve these assets for the benefit of their creditors and stockholders. So far as the Eastern Cotton Oil Company is concerned, it appears that it owned valuable property in the state of Virginia, which could not by any possibility have been affected by executions from the North Carolina courts.
It is well settled, of course, that a federal court, being a court of co-ordinate jurisdiction with the courts of a state, will not attempt to interfere with the possession of property by the latter. Lion Bonding Co. v. Karatz, 262 U. S. 77, 89, 43 S. Ct. 480, 67 L. Ed. 871; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 54, 28 S. Ct. 182, 52 L. Ed. 379; Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., 177 U. S. 51, 61, 20 S. Ct. 564, 44 L. Ed. 667. And, where the suits are of the same character and involve the same is sues, and the proceeding in the state court was first instituted, the federal eourt will stay its hand even though the state court may not have acquired the actual possession of the property, as where a state court has appointed receivers who have not actually taken possession at the time a receivership is sought in the federal court. Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., supra; Palmer v. Texas, 212 U. S. 118, 129, 29 S. Ct. 230, 53 L. Ed. 435. The basis of the rule last cited is that the federal court will not infringe upon the jurisdiction of the state court; hut this basis is absent where the issues in the two suits are different and the sub ject-matter is not identical. In such case there is no infringement of jurisdiction in proceeding with the second suit if there is no interference with property actually taken into possession by the court in the first. Empire Trust Co. v. Brooks (C. C. A. 5th) 232 F. 641, 645. The rule is thus stated in Gluck & Becker on Receivers (2d Ed.) pp. 89-91:
“The decisive test, as expressed by the weight of authority, is that, when the controversy in both actions is the same, the court first acquiring jurisdiction of the controversy will retain it, and it is not necessary that it should take actual possession through its receiver of the property to obtain exclusive jurisdiction. If, however, the controversy is not the same, there is no conflict of jurisdiction as to the question or cause, and the court which first acquires jurisdiction over the property by actual seizure through its receiver will enforce that jurisdiction, and assume the actual possession, to which it gives the right, and until the property is seized, no matter when the suit was commenced, the court does not have jurisdiction over the property, and another court of concurrent jurisdiction may appoint a receiver, and through him take possession of the property.”
It is clear that the issues and subject-matter in a suit for the appointment of receivers for a corporation are entirely different from those involved in a garnishment proceeding in which execution has been levied upon certain of the property of the corporation as security for a judgment sought against one of the corporation’s creditors; and under the rule above stated the levying of such execution does not preclude a suit for the appointment of receivers for the corporation in a court of concurrent jurisdiction. Empire Trust Co. v. Brooks, supra; Harkin v. Brundage, 276 U. S. 36, 45, 48 S. Ct. 268, 72 L. Ed. 457; Lydick v. Neville (C. C. A. 8th) 287 F. 479; Brown v. Crawford (D. C.) 254 F. 146; Pacific Coast Pipe Co. v. Conrad City Water Co. (C. C. A. 9th) 245 F. 846; United States F. & G. Co. v. First National Bank (C. C. A. 8th) 239 F. 227; Ingraham v. National Salt Co. (C. C.) 139 F. 684. Of course, the receivers appointed cannot interfere with possession acquired under the executions issued by the state court, if there was such possession, and the court itself cannot enjoin enforcement of execution liens perfected in the state eourt before the appointment of the receivers. Ke-Sun Oil Co. v. Hamilton (C. C. A. 9th) 61 F.(2d) 215, 217, 218 and eases there cited.
What has been said disposes of the question of fraud upon the jurisdiction, so earnestly urged upon us. As the receivers appointed by the court below could not interfere with the possession of officers of the state court, it is idle to talk of fraud upon the jurisdiction. Appellants rely upon Harkin v. Brundage, 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457; but in that ease action on stockholders’ hill for appointment of receiver in the state court was delayed while a nonresident creditor was sought out to bring a creditors’ hill in the federal eourt. The conflict was between the receivers of the two courts for possession of identical property; the federal receiver claiming the right to possession because he was first appointed. It was held that the means by which the state eourt was induced to delay action constituted a fraud upon the jurisdiction of both courts, and that the federal eourt on principles of comity should have accorded to the state court an opportunity to exercise its jurisdiction. .Here not only was no fraud perpetrated on either the state eourt or the federal court, but under the principles to which we have adverted the exercise of jurisdiction by the federal court in the receivership suit will not interfere with property in the possession of officers of the state court.
Questions as to the right of possession of particular property and the enforcement of liens perfected thereon prior to the appointment of the receivers are not before us on this appeal, however, as the motion from denial of which appeal was taken was a general one for the discharge of the receivers, and the order entered preserved the right of any person claiming a lien or right of possession to assert same by intervention. And, as heretofore stated, no appeal was taken from the order granting the injunction. And, in addition to this, questions as to the right of the possession of property under levies of execution are questions to be raised, not by appellants who had neither the possession nor the right of possession of such property in any event, but by the officers in whom right of possession upon levy is vested. See Penland v. Leatherwood, 101 N. C. 509, 8 S. E. 234, 9 Am. St. Rep. 38; Peck v. Jenness, 7 How. 612, 621, 12 L. Ed. 841; Hagan v. Lucas, 10 Pet. 400, 403, 9 L. Ed. 470 ; 17 R. C. L. 215.
Two points raised by appellants require but brief notice. It is said that there was no jurisdiction in equity to appoint receivers, because the claim of the Davison Chemical Company had not been reduced to judgment and execution returned unsatisfied. The answer to this is that the defendants admitted the allegations of the bills and consented to the appointment of receivers. Under such circumstances, the obtaining of judgment and return of execution need not be shown, as the defense of adequate remedy at law was waived. In re Metropolitan Ry. Receivership, 208 U. S. 90, 28 S. Ct. 219, 52 L. Ed. 403; Central Trust Co. v. McGeorge, 151 U. S. 129, 14 S. Ct. 286, 38 L. Ed. 98; Pillinger v. Beaty (C. C. A. 4th) 265 F. 551; Cincinnati Equipment Co. v. Degnan (C. C. A. 6th) 184 F. 834; Horn v. Pere Marquette R. Co. (C. C.) 151 F. 626, 633. It is also argued that, as the garnishment proceeding was in effect a suit by the Davison Chemical Company against the garnishees in the name of the appellants (Goodwin v. Claytor, 137 N. C. 224, 49 S. E. 173, 67 L. R. A. 209, 107 Am. St. Rep. 479), the state court had acquired jurisdiction of the controversy over the indebtedness, and the federal court could not appoint a receiver for the purpose of collecting the same debt. But the proceeding as against the garnishees was clearly in person-am, and the pendency of a personal action in a court of the state would not bar the prosecution of a similar action in a federal court and vice versa. Kline v. Burke Construction Co., 260 U. S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077. And certainly the fact that judgment had been obtained on the debt would not bar a suit for the appointment of a receiver. In addition to this, it clearly appeared, as stated above, that the claims of the Davison Chemical Company against the Eastern Cotton Oil Company and the Meadows Fertilizer Company embraced large amounts not subjected to the garnishment. But the identity of the indebtedness has no bearing on the question of jurisdiction to appoint receivers. Any conflict of jurisdiction, on the principles above stated, must relate to jurisdiction over specific property claimed to have been seized under execution before the appointment of receivers; and, as pointed out above, questions of this character are not before us on this appeal.
While because of the importance of an early decision of the questions involved we have thus indicated our opinion as to the power of the court below to appoint receivers, we do not think that the appellants had any right of appeal from the order denying their motion. They were not made parties to either of the suits in the court below, and there was thus no basis for a special appearance to contest the jurisdiction of the court over them. They did not make themselves parties to either of the suits, by intervention or otherwise, but expressly refused to do so. Hot being parties, they are not bound by any of the orders or decrees which have been entered and consequently cannot appeal from them, as it is only a party affected by an order or decree who may appeal from it. Louisiana v. Jack, 244 U. S. 397, 37 S. Ct. 605, 61 L. Ed. 1222; Elwell v. Fosdick, 134 U. S. 500, 513, 10 S. Ct. 598, 33 L. Ed. 998; Guion v. Liverpool, London & Globe Insurance Co., 109 U. S. 173, 3 S. Ct. 108, 27 L. Ed. 895 ; Georgia v. Jesup, 106 U. S. 458, 1 S. Ct. 363, 368, 27 L. Ed. 216; Ex parte Cockcroft, 104 U. S. 578, 26 L. Ed. 856; In re Cutting, 94 U. S. 14, 24 L. Ed. 49.
The ease of Georgia v. Jesup, supra, is directly in point. In that case the federal court had appointed receivers of an insolvent railroad at the suit of a trustee under a deed of trust securing bondholders. The state of Georgia, while refusing to make itself a party to the suit, entered a special appearance for the purpose of contesting the jurisdiction of the court, on the ground that, prior to the re-eeivership, the property of the railroad had been levied upon under execution for taxes due the state. From an order denying and dismissing the petition of the state, it attempted to appeal to the Supreme Court. That court, speaking through Mr. Justice Harlan, said:
“The order, denying and dismissing that petition, is not one which the state can ask this court to review upon its appeal; this, for the reason already indicated, if there were no other, that the order did not conclude the state — it being no party to the suit — as to any right acquired in virtue of the executions for taxes. It was not an adjudication or judicial determination of those rights as between the state and the parties to the foreclosure suit. If, by law, the levies, in behalf of the state, were valid to the extent of creating a prior lien in its favor for taxes, or for the penalties or interest thereon, — as to which questions we express no opinion, — that priority was not affected or displaced by the subsequent possession of the property by the receivers in the foreclosure suit. In no legal sense has the state been injured by the order dismissing its petition. It may not, therefore, claim as matter of right, that this court shall, upon this appeal, review the action of the court below in declining to surrender possession of the property covered by the levies under the executions for taxes.”
The appeals in both cases will be dis- ■ missed.
Appeals dismissed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
INGERSOLL-RAND CO. v. McCLENDON
No. 89-1298.
Argued October 9, 1990
Decided December 3, 1990
O’Connor, J., delivered the opinion for a unanimous Court with respect to Parts I and II-B, and the opinion of the Court with respect to Part II-A, in which Rehnquist, C. J., and White, Scalia, Kennedy, and Souter, JJ., joined.
Hollis T. Hurd argued the cause for petitioner. With him on the briefs were Glen D. Nager and William T. Little.
Christopher J. Wright argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Deputy Solicitor General Shapiro, Allen H. Feldman, and Nathaniel I. Spiller.
John W. Tavormina argued the cause for respondent. With him on the brief was Michael Y. Saunders.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America et al. by Zachary D. Fasman and Stephen A. Bokat; for the Equal Employment Advisory Council et al. by Robert E. Williams, Douglas S. McDowell, Ann Elizabeth Reesman, and W. Carl Jordan; and for the Washington Legal Foundation by Daniel J. Popeo, Richard A. Samp, and John Scully.
Briefs of amici curiae urging affirmance were filed for the National Employment Lawyers Association et al. by Jeffrey Lewis and Janet Bond Arterton; for the National Governors’ Association et al. by Charles Rothfeld and Benna Ruth Solomon; and for Thomas L. Bright pro se.
Justice O’Connor
delivered the opinion of the Court.
This case presents the question whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., pre-empts a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA.
I
Petitioner Ingersoll-Rand Company employed respondent Perry McClendon as a salesman and distributor of construction equipment. In 1981, after McClendon had worked for the company for nine years and eight months, the company fired him citing a companywide reduction in force. McClen-don sued the company in Texas state court, alleging that his pension would have vested in another four months and that a principal reason for his termination was the company’s desire to avoid making contributions to his pension fund. McClen-don did not realize that pursuant to applicable regulations, see 29 CFR §2530.200b-4 (1990) (break-in-service regulation), he had already been credited with sufficient service to vest his pension under the plan’s 10-year requirement. McClendon sought compensatory and punitive damages under various tort and contract theories; he did not assert any cause of action under ERISA. After a period of discovery, the company moved for, and obtained, summary judgment on all claims. The State Court of Appeals affirmed, holding that McClendon’s employment was terminable at will. 757 S. W. 2d 816 (1988).
In a 5-to-4 decision, the Texas Supreme Court reversed and remanded for trial. The majority reasoned that notwithstanding the traditional employment-at-will doctrine, public policy imposes certain limitations upon an employer’s power to discharge at-will employees. Citing Tex. Rev. Civ. Stat. Ann., Art. 110B (Vernon 1988 pamphlet), and §510 of ERISA, the majority concluded that “the state has an interest in protecting employees’ interests in pension plans.” 779 S. W. 2d 69, 71 (1989). As support the court noted that “[t]he very passage of ERISA demonstrates the great significance attached to income security for retirement purposes.” Ibid. Accordingly, the court held that under Texas law a plaintiff could recover in a wrongful discharge action if he established that “the principal reason for his termination was the employer’s desire to avoid contributing to or paying benefits under the employee’s pension fund.” Ibid. The court noted that federal courts had held similar claims pre-empted by ERISA, but distinguished the present case on the basis that McClendon was “not seeking lost pension benefits but [was] instead seeking lost future wages, mental anguish and punitive damages as a result of the wrongful discharge.” Id., at 71, n. 3 (emphasis in original).
Because this issue has divided state and federal courts, we granted certiorari, 494 U. S. 1078 (1990), and now reverse.
II
“ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 90 (1983). “The statute imposes participation, funding, and vesting requirements on pension plans. It also sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibility, for both pension and welfare plans.” Id., at 91 (citation omitted). As part of this closely integrated regulatory system Congress included various safeguards to preclude abuse and “to completely secure the rights and expectations brought into being by this landmark reform legislation.” S. Rep. No. 93-127, p. 36 (1973). Prominent among these safeguards are three provisions of particular relevance to this case: § 514(a), 29 U. S. C. § 1144(a), ERISA’s broad pre-emption provision; §510, 29 U. S. C. § 1140, which proscribes interference with rights protected by ERISA; and § 502(a), 29 U. S. C. § 1132(a), a “ ‘carefully integrated’ ” civil enforcement scheme that “is one of the essential tools for accomplishing the stated purposes of ERISA.” Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 52, 54 (1987).
We must decide whether these provisions, singly or in combination, pre-empt the cause of action at issue in this case. “[T]he question whether a certain state action is preempted by federal law is one of congressional intent. ‘The purpose of Congress is the ultimate touchstone.’” Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 208 (1985) (internal quotation marks omitted) (quoting Malone v. White Motor Corp., 435 U. S. 497, 504 (1978)). To discern Congress’ intent we examine the explicit statutory language and the structure and purpose of the statute. See FMC Corp. v. Holliday, ante, at 56 (citing Shaw, supra, at 95). Regardless of the avenue we follow — whether explicit or implied preemption — this state-law cause of action cannot be sustained.
A
Where, as here, Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA, our task of discerning congressional intent is considerably simplified. In § 514(a) of ERISA, as set forth in 29 U. S. C. § 1144(a), Congress provided:
“Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.”
“The pre-emption clause is conspicuous for its breadth.” FMC Corp., ante, at 58. Its “deliberately expansive” language was “designed to ‘establish pension plan regulation as exclusively a federal concern.’” Pilot Life, supra, at 46 (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 523 (1981)). The key to § 514(a) is found in the words “relate to.” Congress used those words in their broad sense, rejecting more limited pre-emption language that would have made the clause “applicable only to state laws relating to the specific subjects covered by ERISA.” Shaw, supra, at 98. Moreover, to underscore its intent that § 514(a) be expansively applied, Congress used equally broad language in defining the “State law” that would be pre-empted. Such laws include “all laws, decisions, rules, regulations, or other State action having the effect of law.” §514(c)(1), 29 U. S. C. § 1144(c)(1).
“A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw, supra, at 96-97. Under this “broad common-sense meaning,” a state law may “relate to” a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect. Pilot Life, supra, at 47. See also Alessi v. Raybestos-Manhattan, Inc., supra, at 525. Pre-emption is also not precluded simply because a state law is consistent with ERISA’s substantive requirements. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 739 (1985).
Notwithstanding its breadth, we have recognized limits to ERISA’s pre-emption clause. In Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 (1988), the Court held that ERISA did not pre-empt a State’s general garnishment statute, even though it was applied to collect judgments against plan participants. Id., at 841. The fact that collection might burden the administration of a plan did not, by itself, compel pre-emption. Moreover, under the plain language of § 514(a) the Court has held that only state laws that relate to benefit plans are pre-empted. Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 23 (1987). Thus, even though a state law required payment of severance benefits, which would normally fall within the purview of ERISA, it was not pre-empted because the statute did not require the establishment or maintenance of an ongoing plan. Id., at 12.
Neither of these limitations is applicable to this case. We are not dealing here with a generally applicable statute that makes no reference to, or indeed functions irrespective of, the existence of an ERISA plan. Nor is the cost of defending this lawsuit a mere administrative burden. Here, the existence of a pension plan is a critical factor in establishing liability under the State’s wrongful discharge law. As a result, this cause of action relates not merely to pension benefits, but to the essence of the pension plan itself.
We have no difficulty in concluding that the cause of action which the Texas Supreme Court recognized here — a claim that the employer wrongfully terminated plaintiff primarily because of the employer’s desire to avoid contributing to, or paying benefits under, the employee’s pension fund — “relate[s] to” an ERISA-covered plan within the meaning of § 514(a), and is therefore pre-empted.
“[W]e have virtually taken it for granted that state laws which are ‘specifically designed to affect employee benefit plans’ are pre-empted under § 514(a).” Mackey, supra, at 829. In Mackey the statute’s express reference to ERISA plans established that it was so designed; consequently, it was pre-empted. The facts here are slightly different but the principle is the same: The Texas cause of action makes specific reference to, and indeed is premised on, the existence of a pension plan. In the words of the Texas court, the cause of action “allows recovery when the plaintiff proves that the principal reason for his termination was the employer’s desire to avoid contributing to or paying benefits under the employee’s pension fund.” 779 S. W. 2d, at 71. Thus, in order to prevail, a plaintiff must plead, and the court must find, that an ERISA plan exists and the employer had a pension-defeating motive in terminating the employment. Because the court’s inquiry must be directed to the plan, this judicially created cause of action “relate[s] to” an ERISA plan.
McClendon argues that the pension plan is irrelevant to the Texas cause of action because all that is at issue is the employer’s improper motive to avoid its pension obligations. The argument misses the point, which is that under the Texas court’s analysis there simply is no cause of action if there is no plan.
Similarly unavailing is McClendon’s argument that § 514(a) is limited by the narrower language of § 514(c)(2), as set forth in 29 U. S. C. § 1144(c)(2), which provides:
“The term ‘State’ includes a State, any political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter.”
McClendon argues that § 514(c)(2)’s limiting language causes § 514(a) to pre-empt only those state laws that affect plan terms, conditions, or administration. Since the cause of action recognized by the Texas court does not focus on those items but rather on the employer’s termination decision, Mc-Clendon claims that there can be no pre-emption here.
The flaw in this argument is that it misreads § 514(c)(2) and consequently misapprehends its purpose. The ERISA definition of “State” is found in § 3(10), which defines the term as “any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, and the Canal Zone.” 29 U. S. C. § 1002(10). Section 514(c)(2) expands, rather than restricts, that definition for pre-emption purposes in order to “include” state agencies and instrumentalities whose actions might not otherwise be considered state law. Had Congress intended to restrict ERISA’s pre-emptive effect to state laws purporting to regulate plan terms and conditions, it surely would not have done so by placing the restriction in an adjunct definition section while using the broad phrase “relate to” in the pre-emption section itself. Moreover, if § 514(a) were construed as McClendon urges, the “relate to” language would be superfluous — Congress need only have said that “all” state laws would be pre-empted. Moreover, our precedents foreclose this argument. In Mackey the Court held that ERISA pre-empted a Georgia garnishment statute that excluded from garnishment ERISA plan benefits. Mackey, supra, at 828, and n. 2, 829. Such a law clearly did not regulate the terms or conditions of ERISA-covered plans, and yet we found pre-emption. Mackey demonstrates that § 514(a) cannot be read so restrictively.
The conclusion that the cause of action in this case is preempted by § 514(a) is supported by our understanding of the purposes of that provision. Section 514(a) was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government. Otherwise, the inefficiencies created could work to the detriment of plan beneficiaries. FMC Corp., ante, at 60 (citing Fort Halifax, 482 U. S., at 10-11); Shaw, 463 U. S., at 105, and n. 25. Allowing state based actions like the one at issue here would subject plans and plan sponsors to burdens not unlike those that Congress sought to foreclose through § 514(a). Particularly disruptive is the potential for conflict in substantive law. It is foreseeable that state courts, exercising their common law powers, might develop different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Such an outcome is fundamentally at odds with the goal of uniformity that Congress sought to implement.
B
Even if there were no express pre-emption in this case, the Texas cause of action would be pre-empted because it conflicts directly with an ERISA cause of action. McClendon’s claim falls squarely within the ambit of ERISA § 510, which provides:
“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attain- merit of any right to which such participant may become entitled under the plan . . . 29 U. S. C. §1140 (emphasis added).
By its terms § 510 protects plan participants from termination motivated by an employer’s desire to prevent a pension from vesting. Congress viewed this section as a crucial part of ERISA because, without it, employers would be able to circumvent the provision of promised benefits. S. Rep. No. 93-127, pp. 35-36 (1973); H. R. Rep. No. 93-533, p. 17 (1973). We have no doubt that this claim is prototypical of the kind Congress intended to cover under § 510.
“[T]he mere existence of a federal regulatory or enforcement scheme,” however, even a considerably detailed one, “does not by itself imply pre-emption of state remedies.” English v. General Electric Co., 496 U. S. 72, 87 (1990). Accordingly, “ ‘we must look for special features warranting pre-emption.’” Ibid, (quoting Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985)).
Of particular relevance in this inquiry is § 502(a) — ERISA’s civil enforcement mechanism. That section, as set forth in 29 U. S. C. §§ 1132(a)(3), (e), provides in pertinent part:
“A civil action may be brought —
“(3) by a participant. . . (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;
“(e) (1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States, shall have exclusive jurisdiction of civil actions under this subchapter brought by ... a participant.” (Emphasis added.)
In Pilot Life we examined this section at some length and explained that Congress intended § 502(a) to be the exclusive remedy for rights guaranteed under ERISA, including those provided by § 510:
“[T]he detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. ‘The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’” 481 U. S., at 54 (quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 146 (1985)).
It is clear to us that the exclusive remedy provided by §502(a) is precisely the kind of “‘special featur[e]’” that “ ‘warrants] pre-emption’ ” in this case. English, supra, at 87; see also Automated Medical, supra, at 719. As we explained in Pilot Life, ERISA’s legislative history makes clear that “the pre-emptive force of § 502(a) was modeled on the exclusive remedy provided by §301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. §185.” 481 U. S., at 52; id., at 54-55 (citing H. R. Conf. Rep. No. 93-1280, p. 327 (1974)). “Congress was well aware that the powerful pre-emptive force of §301 of the LMRA displaced” all state-law claims, “even when the state action purported to authorize a remedy unavailable under the federal provision.” Pilot Life, supra, at 55. In Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987), we again drew upon the parallel between § 502(a) and §301 of the LMRA to support our conclusion that the pre-emptive effect of § 502(a) was so complete that an ERISA pre-emption defense provides a sufficient basis for removal of a cause of action to the federal forum notwithstanding the traditional limitation imposed by the “well-pleaded complaint” rule. Id., at 64-67.
We rely on this same evidence in concluding that the requirements of conflict pre-emption are satisfied in this case. Unquestionably, the Texas cause of action purports to provide a remedy for the violation of a right expressly guaranteed by § 510 and exclusively enforced by § 502(a). Accordingly we hold that “‘[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected” by § 510 of ERISA, “due regard for the federal enactment requires that state jurisdiction must yield.’” Cf. Lingle v. Norge Division of Magic Chef, Inc., 486 U. S. 399, 409, n. 8 (1988).
The preceding discussion also responds to the Texas court’s attempt to distinguish this case as not one within ERISA’s purview. Not only is § 502(a) the exclusive remedy for vindicating § 510-protected rights, but there is no basis in § 502(a)’s language for limiting ERISA actions to only those which seek “pension benefits.” It is clear that the relief requested here is well within the power of federal courts to provide. Consequently, it is no answer to a pre-emption argument that a particular plaintiff is not seeking recovery of pension benefits.
The judgment of the Texas Supreme Court is reversed.
It is so ordered.
JusTiCE Marshall, Justice Blackmun, and Justice Stevens join Parts I and II-B of this opinion.
See, e. g., Fitzgerald v. Codex Corp., 882 F. 2d 586 (CA1 1989) (ERISA pre-empts state wrongful discharge actions premised on employer interference with the attainment of rights under employee benefit plans); Pane v. RCA Corp., 868 F. 2d 631 (CA3 1989) (same); Sorosky v. Burroughs Corp., 826 F. 2d 794 (CA9 1987) (same). Accord, Conaway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S. E. 2d 423 (1986). Contra, K-Mart Corp. v. Ponsock, 103 Nev. 39, 732 P. 2d 1364 (1987); Hovey v. Lutheran Medical Center, 516 F. Supp. 554 (EDNY 1981); Savodnik v. Korvettes, Inc., 488 F. Supp. 822 (EDNY 1980).
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_two_issues
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there 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.
George W. HENGLEIN, L.C. Albacker, R.B. Andrews, R.L. Appeldorn, R.H. Ashenbaugh, A.L. Austin, J.W. Bagosi, J.D. Balser, A. Barrasso, J.O. Bauer, E.E. Best, H.W. Bigleman, C.R. Blazier, J.P. Bressanelli, G.D. Brown, F.C. Buchholz, E.C. Calvin, R.R. Campbell, P.D. Castellano, J.L. Cerasi, E. Chapman, S. Christy, T.M. Costello, C.A. Dauka, A.J. Decosta, M.G. Degrande, A.S. Diccio, A.P. Dimarzio, C.J. Dimarzio, R.J. Dougherty, M. Druga, E.P. Erath, E.P. Fahnert, H. Farrington, M. Ferlaino, R.D. Feydo, E.R. Finger, J.N. Flara, N.E. Frederick, J.P. Frenn, R.E. Fronko, L.L. Gibbs, W.L. Gleason, L.E. Gordon, R.W. Gott, J.E. Grimm, P.E. Grubbs, E.R. Guerra, A.J. Gulutz, J.T. Haaf, J.D. Hamacher, Jr., P.J. Hannon, R.M. Hansen, M.I. Harpham, D.H. Heldman, J.K. Hile, R.S. Hogsett, R.T. Hopper, H.M. Howell, W.M. Hyams, J.M. Janke, C.L. Jobe, Jr., K.H. Johns, R.O. Johnson, Jr., E.T. Jones, R. Kao, D.P. Kerr, Jr., P.A. Keys, R.W. Knallay, E.E. Knapek, W.J. Kofalt, S.W. Kohler, T. Kominitsky, T.R. Krupa, P.R. Kullen, J.R. Kundick, W. Lake, D.F. Lavene, T.T. Lehmann, R.H. Lewis, R.A. Lippert, W.R. Livingston, J.H. Lutton, A.J. Lynn, D.B. McClain, J.L. McKain, P.F. McNicol, E.L. Marsh, F.S. Matsukas, H.J. Mercer, A.R. Middleton, M. Mitrovich, M.A. Molchan, R.A. Montgomery, R.T. Morelli, A.N. Morrison, H. Mraunac, M.R. Muckian, C.W. Murray, III, C.J. Muers, L.V. Nagle, D.A. Nobers, J.A. Nuzo, E. Ordich, W.H. Orr, T.H. Parsons, A.J. Pasko, Jr., H.S. Pease, III, G.J. Pescion, G.V. Peterson, J.J. Popp, G.P. Porto, G. Postich, D.E. Powell, R.W. Prentice, J.V. Presutti, W.C. Price, L.E. Raykovics, T.R. Reed, J.W. Reider, J.J. Rose, A.J. Rosepiller, C.S. Russell, K.E. Sanders, M.A. Sarver, P.K. Schake, J.W. Scholtz, A.H. Sheline, M.L. Sherry, F.R. Shuss, W.W. Simpson, A.E. Six, J.E. Smith, E.H. Spaziani, W.H. Stephens, C.D. Strosnider, J.F. Suffoletta, H.L. Taylor, K.E. Thomas, F.S. Thornberry, Jr., J.R. Tice, D.A. Townley, R. Trbovich, R.T. Turner, H.B. Van Fossen, R.R. Vlah, A. Vranes, S. Vranes, D.W. Ware, K.G. Wassman, Jr., G.T. Weekley, E.M. Werries, Jr., D.L. Westfall, J.A. Whithead, R.J. Whitten, C.K. Wildman, T. Williams, Jr., T.H. Wills, Jr., A.J. Yanni, L.H. Young, Jr., R.C. Young, H.F. Yute, W.I. Zazwirsky, Appellants in No. 91-3379, v. INFORMAL PLAN FOR PLANT SHUTDOWN BENEFITS FOR SALARIED EMPLOYEES, Informal Plan for Plant Shutdown Benefits for Salaried Employees; Informal Plan for Plant Shutdown Benefits for Salaried Employees, Plan for Maintaining Benefits for Salaried Employees in Parity with Benefits Granted to Union Represented Employees. George W. HENGLEIN, L.C. Albacker, R.B. Andrews, R.L. Appeldorn, R.H. Ashenbaugh, A.L. Austin, J.W. Bagosi, J.D. Balser, A. Barrasso, J.O. Bauer, E.E. Best, H.W. Bigleman, C.R. Blazier, J.P. Bressanelli, G.D. Brown, F.C. Buchholz, E.C. Calvin, R.R. Campbell, P.D. Castellano, J.L. Cerasi, E. Chapman, S. Christy, T.M. Costello, C.A. Dauka, A.J. Decosta, M.G. Degrande, A.S. Diccio, A.P. Dimarzio, C.J. Dimarzio, R.J. Dougherty, M. Druga, E.P. Erath, E.P. Fahnert, H. Farrington, M. Ferlaino, R.D. Feydo, E.R. Finger, J.N. Fiara, N.E. Frederick, J.P. Frenn, R.E. Fronko, L.L. Gibbs, W.L. Gleason, L.E. Gordon, R.W. Gott, J.E. Grimm, P.E. Grubbs, E.R. Guerra, A.J. Gulutz, J.T. Haaf, J.D. Hamacher, Jr., P.J. Hannon, R.M. Hansen, M.I. Harpham, D.H. Heldman, J.K. Hile, R.S. Hogsett, R.T. Hopper, H.M. Howell, W.M. Hyams, J.M. Janke, C.L. Jobe, Jr., K.H. Johns, R.O. Johnson, Jr., E.T. Jones, R. Kao, D.P. Kerr, Jr., P.A. Keys, R.W. Knallay, E.E. Knapek, W.J. Kofalt, S.W. Kohler, T. Kominitsky, T.R. Krupa, P.R. Kullen, J.R. Kundick, W. Lake, D.F. Lavene, T.T. Lehmann, R.H. Lewis, R.A. Lippert, W.R. Livingston, J.H. Lutton, A.J. Lynn, D.B. McClain, J.L. McKain, P.F. McNicol, E.L. Marsh, F.S. Matsukas, H.J. Mercer, A.R. Middleton, M. Mitrovich, M.A. Molchan, R.A. Montgomery, R.T. Morelli, A.N. Morrison, H. Mraunac, M.R. Muckian, C.W. Murray, III, C.J. Muers, L.V. Nagle, D.A. Nobers, J.A. Nuzo, E. Ordich, W.H. Orr, T.H. Parsons, A.J. Pasko, Jr., H.S. Pease, III, G.J. Pescion, G.V. Peterson, J.J. Popp, G.P. Porto, G. Postich, D.E. Powell, R.W. Prentice, J.V. Presutti, W.C. Price, L.E. Raykovics, T.R. Reed, J.W. Reider, J.J. Rose, A.J. Rosepiller, C.S. Russell, K.E. Sanders, M.A. Sarver, P.K. Schake, J.W. Scholtz, A.H. Sheline, M.L. Sherry, F.R. Shuss, W.W. Simpson, A.E. Six, J.E. Smith, E.H. Spaziani, W.H. Stephens, C.D. Strosnider, J.F. Suffoletta, H.L. Taylor, K.E. Thomas, F.S. Thornberry, Jr., J.R. Tice, D.A. Townley, R. Trbovich, R.T. Turner, H.B. Van Fossen, R.R. Vlah, A. Vranes, S. Vranes, D.W. Ware, K.G. Wassman, Jr., G.T. Weekley, E.M. Werries, Jr., D.L. Westfall, J.A. Whithead, R.J. Whitten, C.K. Wildman, T. Williams, Jr., T.H. Wills, Jr., A.J. Yanni, L.H. Young, Jr., R.C. Young, H.F. Yute, W.I. Zazwirsky v. INFORMAL PLAN FOR PLANT SHUTDOWN BENEFITS FOR SALARIED EMPLOYEES, Informal Plan for Plant Shutdown Benefits for Salaried Employees; Informal Plan for Plant Shutdown Benefits for Salaried Employees, Plan for Maintaining Benefits for Salaried Employees in Parity with Benefits Granted to Union Represented Employees Colt Industries Operating Corporation Informal Plan for Plant Shutdown Benefits for Salaried Employees, Appellant in No. 91-3413.
Nos. 91-3379, 91-3413.
United States Court of Appeals, Third Circuit.
Argued Jan. 28, 1992.
Decided Sept. 8, 1992.
James J. Ahearn (argued), Ligonier, Pa., for appellants cross appellees.
William H. Powderly, III (argued), Paula E. Ganz, Joan C. Zangrilli, Jones, Day, Reavis & Pogue, Pittsburgh, Pa., for appel-lees cross appellants.
Before: SLOVITER, Chief Judge, and MANSMANN and HUTCHINSON, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
We write to clarify that, in an ERISA action, a plaintiffs failure to prove the existence of an employee benefit plan, though it results in a dismissal of the claim, does not deprive the district court of subject matter jurisdiction to enter a judgment on the merits. Additionally, we examine the standard for determining, in the absence of a formal plan document, whether an informal employee benefit plan exists. Because the district court used a vague standard to conclude a plan did not exist, and erroneously ruled that the absence of a plan deprived the court of jurisdiction, we will vacate the judgment of the district court and remand for further proceedings.
I.
The plaintiffs are former salaried nonunion employees of a steel plant closed in 1982. These employees seek to prove that their employer and its successors in interest maintained an informal benefit plan. They claim that this “Informal Plan” entitles them to severance benefits.
To prove the existence of the Informal Plan, the employees have referred to the following events and documents.
Effective July 1, 1962, Crucible, Inc., the owner of the plant, instituted a severance benefit that gave to laid-off employees, aged 60 or older with 15 or more years of service, an immediate retirement benefit without actuarial reduction, plus $25 per month until they became eligible for social security. The document’s procedure allowed an employee’s supervisor to propose the benefit through channels to the Retirement Board and to charge the cost of the benefit, if approved, back to the employee’s department. A 1965 memorandum expanded on these procedures. See R. at 78-82.
In 1968, a new memorandum added the immediate receipt of a “Special Retirement Benefit.” The 1968 Memorandum also instituted “20-30 year retirement,” in which laid-off employees having between 20 and 30 years of service, who would not be eligible for early retirement benefits, would receive the Special Retirement Benefit and an immediate, actuarially reduced annuity. The 1968 Memorandum also expanded in great detail upon the procedure for applying for the benefit. See R. at 127-163. The employees claim that the 1968 Memorandum was widely distributed. See Appellants’ Brief at 17; R. at 259-60 (memo referring to informal plan would have been distributed to all salaried employees if so addressed).
Soon after the 1968 Memorandum, Crucible issued a proxy statement in conjunction with Colt Industries, pursuant to a proposed consolidation of the two companies. One sentence of the proxy statement read: “Benefits under the various benefit, retirement and pension plans of Crucible will not be affected by the consolidation_” R. at 120.
After the consolidation, a document dated February 2, 1969, outlined benefits and a claims procedure that were similar to the benefits and procedure in the 1968 Memorandum. The employees claim that they did not receive the 1969 Memorandum or notice of its contents, which were confidential. See R. at 137 (cover letter limiting distribution). The 1969 Memorandum clearly noted that “employees do not have a right to these benefits,” and it also purported to terminate the 1968 Memorandum. R. at 137-48. The employees also allege that they did not have notice of a 1972 resolution by Crucible’s Board of Directors to rescind the 1969 Memorandum, and the defendant has admitted that written notice of the 1972 resolution was not disseminated to the employees generally. See, e.g., Appellant’s Brief, at 5; R. at 192 (defendant’s admission).
The employees claim that, throughout their employment, they were consistently assured that they would receive benefits “equal to or better than” union benefits, which were similar to those in the 1968 and 1969 Memoranda. See, e.g., Supp.App. at 99. Similarly, employees testified that they had a general knowledge that the 1968 plan existed. See, e.g., Supp.App. at 22, 26. The plaintiffs also offered evidence that the company knew that employees believed there was an Informal Plan, and that the company did not inform them otherwise. For example, an internal memo by E.A. March insisted that “there is no informal plan” and stated that efforts would be made to so inform employees in a retirement plan booklet. R. at 329. We have not been provided any evidence, however, that efforts were, in fact, made.
After the employees were terminated in 1982, they sued the Informal Plan pursuant to 29 U.S.C. § 1132(a)(1)(B), which authorizes a cause of action against a plan to recover benefits due. After the presentation of the employees’ case-in-chief on liability in this bifurcated non-jury trial, the district court, holding that an employee benefit plan did not exist, dismissed the employees’ claims.
Under the district court’s analysis, the employees’ claim for benefits was contingent on the existence — prior to the enactment of ERISA — of a valid unilateral offer under Pennsylvania law. The court determined that the employees had not received a binding unilateral offer prior to ERISA’s enactment in 1975 and therefore an employee benefit plan did not exist. Alternatively, and with little discussion, the district court held that the employees had not proved the existence of an employee benefit plan under the current ERISA standard first articulated in Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982).
The district court concluded:
Two results flow from our deciding that no ERISA plan existed. First, we must dismiss the cause for want of subject matter jurisdiction.... Second, ERISA, by its terms, would not preempt any state law based on these same actions since they do not relate to a benefit plan.
Henglein v. Colt Indus. Operating Corp. Informal Plan for Plant Shutdown Benefits for Salaried Employees, No. 86-2021, at 6 (W.D.Pa. April 30, 1991) (unreported mem. op.) (citations omitted).
The district court dismissed the employees’ case pursuant to former Federal Rule of Civil Procedure 41(b), which allowed defendants to move for judgment after a plaintiff’s case-in-chief. See former Fed. R.Civ.Pro. 41(b), at 480 U.S. 992 (1987) (S.Ct. order containing text of former rule 41(b)). Consistent with its view that the dismissal was jurisdictional, however, the district court did not find facts specially, as former Rule 41(b) would have required in the event of a judgment on the merits. See former Rule 41(b) (fourth sentence); Fed. R.Civ.Pro. 52(a).
The employees appealed the dismissal, and the defendants, arguing that the dismissal was on the merits, cross-appealed.
II.
In an appeal from an involuntary dismissal after the presentation of evidence, see former Rule 41(b) (second sentence), we review the district court’s findings of fact for clear error, and we exercise plenary review over the district court’s legal conclusions. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 503 (9th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1900); EEOC v. Metal Svc. Co., 892 F.2d 341, 346 n. 5 (3d Cir.1990). We have jurisdiction of this appeal from a final decision of the district court. See 28 U.S.C. § 1291.
III.
At the outset of our discussion, we observe that the employees have not brought any state claims in this case. Although the litigants have presented arguments sounding in state contract and tort law, the employees have not joined any party other than two putative employee benefit plans. It is axiomatic that a. breach of contract claim must be brought against a breaching party and that a fraud claim must be brought against a party making the misrepresentation. Moreover, the complaint clearly grounds this cause of action in 29 U.S.C. § 1132. Because the employees have sued only the plans and have alleged only ERISA claims, we construe' their causes of action to have been brought solely pursuant to 29 U.S.C. § 1132(a)(1) and not pursuant to state law.
The significance of our observation — that the employees have not alleged state law claims — relates to the issues of supplemental jurisdiction and of ERISA’s non-retroac-tivity provision. We turn to those precepts now.
IV.
A.
ERISA gives United States district courts subject matter jurisdiction of claims brought pursuant to 29 U.S.C. § 1132(a)(1)(B), which authorizes a cause of action for benefits due under an employee benefit plan. See 29 U.S.C. § 1132(e) (jurisdiction). Although § 1132(a) and § 1132(e) are related, the viability of a claim under § 1132(a)(1)(B) and jurisdiction pursuant to § 1132(e) are separate matters, and they should not be confused.
In an analogous case, Boyle v. Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71 (3d Cir.1991), a district court had determined that a § 1983 defendant was not a state actor. The district court had then dismissed the plaintiff’s case on the grounds of lack of subject matter jurisdiction. We reversed, holding that the § 1983 requirement of state action was not jurisdictional but rather integral to the merits of the claim. We further held that the district court’s dismissal was only appropriate as under Rule 12(b)(6) (failure to state a claim) or as a grant of summary judgment if matters outside the pleadings had been considered. We noted that once federal law is invoked, then the facts alleged and their legal sufficiency are questions on the merits. Boyle, 925 F.2d at 74.
In ERISA cases such as this one, the existence of an employee benefit plan is integral to the merits of a claim for benefits under § 1132(a)(1)(B). Here, the district court concluded that a plan did not exist. That conclusion related to the viability of the claim but not to the district court’s jurisdiction. Thus, although the district court labeled its judgment as a dismissal entered for lack of subject matter jurisdiction, the judgment was clearly on the merits; that is, the district court reached a legal conclusion — to which the rules of issue and claim preclusion apply— that the employees had not proven the existence of a plan. Cf. Boyle, 925 F.2d at 74 (once federal law is invoked, facts and their legal sufficiency are questions on merits).
Furthermore, because the employees have not in fact asserted any supplemental state law claims, we need not address whether they might have done so. This case thus differs from a case like Harris v. Arkansas Book Co., 794 F.2d 358 (8th Cir.1986). In the Harris case, the Court of Appeals for the Eighth Circuit determined that an ERISA plan did not exist. The court then affirmed the district court’s dismissal of the plaintiff’s ERISA claim without prejudice to his supplemental state law claims.
Although we disagree with any statement in Harris that might indicate that the absence of a plan deprives the court of subject matter jurisdiction, it is well settled that, after disposal of a federal claim, a district court has discretion to hear, dismiss, or remand a supplemental claim for which there is no independent basis for federal subject matter jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); see also 13B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3567.1 (2d ed. 1984 & Supp.1992).
Indeed, the district court in this case appears to have dismissed the employees’ ERISA claims as if they were supplemental state law claims; the district court first opined that the employees may have state law claims, and then the court dismissed for “lack of subject matter jurisdiction.” Because, however, the district court had jurisdiction over the ERISA claims, and because the court was not presented with any supplemental claims, the district court erred in stating the dismissal as “jurisdictional.”
B.
We note further that the district court interpreted ERISA’s “non-retroactivity” provision, 29 U.S.C. § 1144(b)(1), to require application of state rather than federal law here. Section 1144(b)(1) provides that ERISA does not apply to causes of action that arose or to acts or omissions that occurred before 1975. In Jameson v. Bethlehem Steel Corp. Pension Plan, 765 F.2d 49, 52 (3d Cir.1985), we held that the denial of employee benefits after 1975 gives rise to federal jurisdiction, even if the substantive issues were to be decided by pre-ERISA law. If the employees had brought an additional count sounding in contract against the companies, then the district court might have had either supplemental jurisdiction of the claim or federal question jurisdiction if the contract could be construed as an employee benefit plan. See Jameson, 765 F.2d at 52. The court, in that situation, would have been correct in determining the outcome by reference to state law. Id.
But, as we noted above, although the employees have argued state contract law issues, vigorously in some instances, they have not joined the putative contracting parties. Instead they have alleged the existence of and proceeded against an ERISA plan. State contract law is therefore not dispositive of the employees’ claim.
Thus, the employees’ claim here is that in 1982 the company had an informal employee benefit plan under which the employees were entitled to benefits. That claim must be resolved not under state law, but under ERISA, which refers to the surrounding circumstances to determine if a plan existed at the time benefits were denied. See Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982). Those surrounding circumstances include the company’s history of representations — a history that straddles the enactment of ERISA.
V.
Before we examine the ERISA standard for determining the existence of an informal plan, we note that the question of a plan’s enforceability prior to ERISA and the question of a plan’s existence are different questions. ERISA applied, although not retroactively, to plans already in existence at the time of its enactment. Compare 29 U.S.C. § 1002(1) (defining plans to include any plan, program or fund “heretofore or hereinafter established”), with 29 U.S.C. § 1144(b)(1) (non-retroactivity). Indeed, ERISA was enacted to afford protections to participants of already existing plans. See, e.g., 29 U.S.C. § 1001 (Congressional Findings and Declaration of Policy, finding a recent rapid and substantial growth in employee benefit plans and declaring ERISA’s policy to be the protection of participants’ interests by establishing standards with respect those plans). Thus the pre-ERISA enforceability of a plan under state law is not a prerequisite to a finding that an employee benefit plan exists.
For example, if a company established a welfare plan prior to ERISA, ERISA’s substantive requirements would not apply to the company’s acts or omissions occurring before ERISA’s effective date of 1975. Assuming the welfare plan was a mere gratuity, a denial of benefits in 1974 would not be enforceable under state contract law for failure of consideration. If maintained, however, the plan would become subject to ERISA in 1975.
If, in the example, benefits were denied not in 1974, but in 1976, a district court would have jurisdiction to hear both a contract claim, see Jameson, 765 F.2d at 52, and an ERISA claim. See 29 U.S.C. § 1132 (authorizing, claims for benefits due under plans); id. § 1002(1) (including in its definition any plans “heretofore or ... hereinafter established” (emphasis added)). The court would apply state contract law to the contract claim and federal law to the ERISA claim.
In the example, pre-ERISA evidence (e.g., a 1972 plan document) would be relevant to show the plan’s existence for purposes of the claim, and its use as evidence would not contravene ERISA’s non-retroactivity requirement. In some situations, pre-ERISA rules might govern aspects of the ERISA claim. For example, in Tanzillo v. Local 617, 769 F.2d 140 (3d Cir.1985) we noted that “nothing in ERISA prevents a plan from ‘expressly providing that a break in service in years prior to the effective date of ERISA shall be governed by the rule in effect at the time of the alleged hiatus from covered employment.’ ” Id. at 146 (citation omitted).
Here, as in the example, pre-ERISA documents and events are relevant to prove or disprove the existence, in 1982, of an informal plan. And although the existence of a plan is a prerequisite to recovery under ERISA, the enforceability of that plan under the state law of unilateral contracts is not. Thus, the district court’s focus on the state law of unilateral contracts was misplaced.
We now turn to the merits of the dispute and the legal standards to be applied here.
VI.
In determining the existence of an employee benefit plan, the district court also referred to the ERISA standard first articulated by the Court of Appeals for the Eleventh Circuit. In Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982), the court wrote: “In determining whether a plan, fund, or program (pursuant to a writing or not) is a reality, a court must determine whether from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits.” Id. at 1373.
We have acknowledged the Dillingham standard in previous cases. See United States v. Cusumano, 943 F.2d 305, 309 (3rd Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); Frank v. Colt Indus., Inc., 910 F.2d 90, 97-98 (3rd Cir.1990). As well, our sister courts of appeals have ruled, on at least six occasions since Dillingham, that an informal severance arrangement may constitute an employee benefit plan subject to ERISA.
In determining whether an informal plan exists under the Dillingham standard, a district court should first determine what written representations were made by a putative sponsor to its employees over the course of their employment.
A properly distributed summary plan document containing a clear statement that employees did not have any severance benefits would be dispositive, because a written plan cannot be orally modified. Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1163-64 (3rd Cir.1990). For the same reason, a summary plan document that clearly limits benefits to those provided in a formal plan would be dispositive. We note that either statement would have to be “written in a manner calculated to be understood by the average plan participant.” 29 U.S.C. § 1022(a). Thus, the sponsor’s formal plans and summary plan documents should be of particular interest to the district court, and a clear delineation in a properly distributed document would be dispositive. The absence of any integration clause in a formal plan, however, might lead the district court to infer that another, informal plan did exist. Additionally, widely distributed informal documents should also be of interest since a widely distributed written plan, no matter how informal, cannot be modified orally. See Frank v. Colt Indus., 910 F.2d 90, 98 (3d Cir.1990) (written plans, no matter how informal, cannot be orally modified); Confer v. Custom Engineering Co., 952 F.2d 41, 43 (3d Cir.1991) (no oral modification).
If a company’s properly published written representations do not clearly limit benefits, the district court should consider all other evidence that would indicate the presence or absence of an informal employee benefit plan. For example, internal or distributed documents, oral representations, existence of a fund or account to pay benefits, actual payment of benefits, a deliberate failure to correct known perceptions of a plan’s existence, the reasonable understanding of employees, and the intentions of the putative sponsor would all be relevant to determine whether a plan existed. In determining an employee’s reasonable understanding, the district court may consider the employee’s background knowledge of particular documents (such as union benefit plans) and whether any representations of the company incorporated the terms of those documents. So long as they do not modify the terms of a written plan, oral representations by a knowledgeable and authorized management employee of the company may be evidence of a benefit plan, especially if a representation incorporates by reference the terms of a document or other plan. See Scott v. Gulf Oil Corp., 754 F.2d 1499, 1503-04 (9th Cir.1985) (existence of written instrument not a prerequisite to ERISA coverage).
We emphasize that an oral representation cannot modify a valid written plan. Confer, 952 F.2d at 43. But where the oral remarks give evidence of a separate plan not precluded by a written plan, the district court may credit the representations as evidence of a plan. To do so is entirely consistent with ERISA’s dual purpose of protecting the reasonable expectations of plan participants while allowing sponsors the flexibility to structure a plan with an express limitation in writing. To do otherwise would create a loophole inconsistent with ERISA by allowing a plan sponsor to make any promise regarding benefits without obligation, so long as the promise is not reduced to writing.
VII.
Although the district court purported to apply Dillingham, its application of law to the facts was unduly narrow. The district court considered only the 1969 Memorandum and the 1972 resolution.
The district court observed that the 1969 Memorandum provides only discretionary benefits and therefore did not give notice of any intended benefit or class of beneficiaries. The discretionary nature of benefits, however, does not alone deprive a document or program of its status as an employee benefit plan under the Dillingham standard, so long as a reasonable person can ascertain the contingent benefit and contingent beneficiaries. If an intended benefit is discretionary, then beneficiaries’ rights are limited, and review of a denial of benefits will be for abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989) (where trustee of a plan has discretion, court review is limited to restraining abuse of that discretion). A plan participant may still seek review of the denial of a benefit under an employee benefit plan, even if the only benefit available is conditioned on an administrator’s discretion. See, e.g., Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999 (3d Cir.1992) (reviewing benefit denial for abuse of discretion).
Furthermore, the 1972 resolution may not have been publicized, and the district court did not determine whether the 1969 plan was widely circulated. Although an unpublicized repeal of a published program for providing benefits may evince some intent not to maintain that program, the district court must also consider public actions of the company and whether a reasonable person could determine the necessary elements of a plan by those actions. Thus, if the company had continued
Question: Are there two issues in the case?
A. no
B. yes
Answer:
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sc_casedisposition
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E
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
PHILIP MORRIS USA v. WILLIAMS, personal representative of ESTATE OF WILLIAMS, DECEASED
No. 05-1256.
Argued October 31, 2006
Decided February 20, 2007
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., post, p. 358, and Thomas, J., post, p. 361, filed dissenting opinions. Ginsburg, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined, post, p. 362.
Andrew L. Frey argued the cause for petitioner. With him on the briefs were Andrew H. Schapiro, Lauren R. Goldman, Murray R. Garnick, Kenneth S. Getter, Evan M. Tager, William F. Gary, and Sharon A. Rudnick.
Robert S. Peck argued the cause for respondent. With him on the brief were Ned Miltenberg, Charles S. Tauman, James ,S'. Coon, Raymond F. Thomas, William A. Gaylord, Maureen Leonard, and Kathryn H. Clarke
Briefs of amici curiae urging reversal were filed for the Alliance of Automobile Manufacturers by H. Christopher Bartolomucci and John T. Whatley; for the American Tort Reform Association by Roy T. Englert, Jr., and Alan E. Untereiner; for the Chamber of Commerce of the United States of America by Jonathan D. Hacker, Robin S. Conrad, and Amar D. Sarwal; for the National Association of Manufacturers et al. by Gene C. Schaerr, Steffen N. Johnson, Linda T. Coberly, Jan S. Amundson, Quentin Riegel, and Donald D. Evans; for the National Association of Mutual Insurance Cos. et al. by Sheila L. Birnbaum, Barbara Wrubel, Douglas W Dunham, Ellen P. Quackenbos, J. Stephen Zielezienski, David F. Snyder, and Allan J. Stein; for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur; for the Product Liability Advisory Council by Theodore B. Olson, Thomas H. Dupree, Jr., and Theodore J. Boutrous, Jr.; for R. J. Reynolds Tobacco Co. et al. by Meir Feder, Charles R. A Morse, James T. Newsom, Donald B. Ayer, and Robert H. Klonoff; for the Washington Legal Foundation et al. by Arvin Maskin, Daniel J. Popeo, and Paul D. Kamenar; and for Steven L. Chanenson et al. by Robert D. Fox and John F. Gullace.
Briefs of amici curiae urging affirmance were filed for the State of Oregon et al. by Hardy Myers, Attorney General of Oregon, Peter Shepherd, Deputy Attorney General, Mary H. Williams, Solicitor General, and Janet A Metcalf and Kaye E. McDonald, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Patricia A Madrid of New Mexico, W. A. Drew Edmondson of Oklahoma, Mark L. Shurtleff of Utah, and Peg Lautenschlager of Wisconsin; for AARP et al. by Elizabeth J. Cabraser and Deborah Zuckerman; for the Association of Trial Lawyers of America by Gerson H. Smoger and Brent M. Rosenthal; for the Campaign for Tobacco-Free Kids et al. by William B. Schultz; for the Center for a Just Society by Brian G. Brooks; for Trial Lawyers for Public Justice by Michael V. Ciresi, Roberta B. Walburn, Arthur H. Bryant, and Leslie A. Brueckner; for Henry H. Drummonds et al. by Steven C. Berman; for Keith N. Hylton et al. by Ronald Simon, Ed Bell, Patrick Carr, Richard L. Denney, Charles Siegel, and Gerry L. Spence; and for Neil Vidmar et al. by Frederick M. Baron.
Briefs of amici curiae were filed for the Oregon Forest Industries Council et al. by Thomas W. Brown; for the Tobacco Control Legal Consortium et al. by Edward L. Sweda, Jr.; for Akhil Reed Amar et al. by Kenneth Chesebro, Michael J. Piuze, and Arthur McEvoy; and for A. Mitchell Polinsky et al. by Timothy Lynch.
Justice Breyer
delivered the opinion of the Court.
The question we address today concerns a large state-court punitive damages award. We are asked whether the Constitution’s Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court (e. g., victims whom the parties do not represent). We hold that such an award would amount to a taking of “property” from the defendant without due process.
I
This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent, Williams’ widow, represents his estate in this state lawsuit for negligence and deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams favored. A jury found that Williams’ death was caused by smoking; that Williams smoked in significant part because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to believe that this was so. The jury ultimately found that Philip Morris was negligent (as was Williams) and that Philip Morris had engaged in deceit. In respect to deceit, the claim at issue here, it awarded compensatory damages of about $821,000 (about $21,000 economic and $800,000 noneconomic) along with $79.5 million in punitive damages.
The trial judge subsequently found the $79.5 million punitive damages award “excessive,” see, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and reduced it to $32 million. Both sides appealed. The Oregon Court of Appeals rejected Philip Morris’ arguments and restored the $79.5 million jury award. Subsequently, Philip Morris sought review in the Oregon Supreme Court (which denied review) and then here. We remanded the case in light of State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003). 540 U. S. 801 (2003). The Oregon Court of Appeals adhered to its original views. And Philip Morris sought, and this time obtained, review in the Oregon Supreme Court.
Philip Morris then made two arguments relevant here. First, it said that the trial court should have accepted, but did not accept, a proposed “punitive damages” instruction that specified the jury could not seek to punish Philip Morris for injury to other persons not before the court. In particular, Philip Morris pointed out that the plaintiff’s attorney had told the jury to “think about how many other Jesse Williams in the last 40 years in the State of Oregon there have been. ... In Oregon, how many people do we see outside, driving home . . . smoking cigarettes? . . . [Cigarettes . . . are going to kill ten [of every hundred]. [And] the market share of Marlboros [i e., Philip Morris] is one-third [i e., one of every three killed].” App. 197a, 199a. In light of this argument, Philip Morris asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between any punitive award and “the harm caused to Jesse Williams” by Philip Morris’ misconduct, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims . . . Id., at 280a. The judge rejected this proposal and instead told the jury that “[p]unitive damages are awarded against a defendant to punish misconduct and to deter misconduct,” and “are not intended to compensate the plaintiff or anyone else for damages caused by the defendant’s conduct.” Id., at 283a. In Philip Morris’ view, the result was a significant likelihood that a portion of the $79.5 million award represented punishment for its having harmed others, a punishment that the Due Process Clause would here forbid.
Second, Philip Morris pointed to the roughly 100-to-l ratio the $79.5 million punitive damages award bears to $821,000 in compensatory damages. Philip Morris noted that this Court in BMW emphasized the constitutional need for punitive damages awards to reflect (1) the “reprehensibility” of the defendant’s conduct, (2) a “reasonable relationship” to the harm the plaintiff (or related victim) suffered, and (3) the presence (or absence) of “sanctions,” e. g., criminal penalties, that state law provided for comparable conduct, 517 U. S., at 575-585. And in State Farm, this Court said that the longstanding historical practice of setting punitive damages at two, three, or four times the size of compensatory damages, while “not binding,” is “instructive,” and that “[s]ingle-digit multipliers are more likely to comport with due process.” 538 U. S., at 425. Philip Morris claimed that, in light of this case law, the punitive award was “grossly excessive.” See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 458 (1993) (plurality opinion); BMW, supra, at 574-575; State Farm, supra, at 416-417.
The Oregon Supreme Court rejected these and other Philip Morris arguments. In particular, it rejected Philip Morris’ claim that the Constitution prohibits a state jury “from using punitive damages to punish a defendant for harm to nonparties.” 340 Ore. 35, 51-52, 127 P. 3d 1165, 1175 (2006). And in light of Philip Morris’ reprehensible conduct, it found that the $79.5 million award was not “grossly excessive.” Id., at 63-64, 127 P. 3d, at 1181-1182.
Philip Morris then sought certiorari. It asked us to consider, among other things, (1) its claim that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded “the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.” Pet. for Cert. (I). We granted certiorari limited to these two questions.
For reasons we shall set forth, we consider only the first of these questions. We vacate the Oregon Supreme Court’s judgment, and we remand the case for further proceedings.
II
This Court has long made clear that “[pjunitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.” BMW, supra, at 568. See also Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U. S. 247, 266-267 (1981); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991). At the same time, we have emphasized the need to avoid an arbitrary determination of an award’s amount. Unless a State insists upon proper standards that will cabin the jury’s discretionary authority, its punitive damages system may deprive a defendant of “fair notice ... of the severity of the penalty that a State may impose,” BMW, supra, at 574; it may threaten “arbitrary punishments,” i. e., punishments that reflect not an “application of law” but “a decisionmaker’s caprice,” State Farm, supra, at 416, 418 (internal quotation marks omitted); and, where the amounts are sufficiently large, it may impose one State’s (or one jury’s) “policy choice,” say, as to the conditions under which (or even whether) certain products can be sold, upon “neighboring States” with different public policies, BMW, supra, at 571-572.
For these and similar reasons, this Court has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as “grossly excessive.” See Honda Motor Co. v. Oberg, 512 U. S. 415, 432 (1994) (requiring judicial review of the size of punitive awards); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (review must be de novo); BMW, supra, at 574-585 (excessiveness decision depends upon the reprehensibility of the defendant’s conduct, whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff, and the difference between the award and sanctions “authorized or imposed in comparable cases”); State Farm, supra, at 425 (excessiveness more likely where ratio exceeds single digits). Because we shall not decide whether the award here at issue is “grossly excessive,” we need now only consider the Constitution’s procedural limitations.
III
In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i. e., injury that it inflicts upon those who are, essentially, strangers to the litigation. For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted). Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant’s statements to the contrary.
For another, to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fimdamental due process concerns to which our punitive damages cases refer — risks of arbitrariness, uncertainty, and lack of notice — will be magnified. State Farm, 538 U. S., at 416, 418; BMW, 517 U. S., at 574.
Finally, we can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others. We have said that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused the plaintiff. See State Farm, supra, at 424 (“[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award” (emphasis added)). See also TXO, 509 U. S., at 460-462 (plurality opinion) (using same kind of comparison as basis for finding a punitive award not unconstitutionally excessive). We did use the term “error-free” (in BMW) to describe a lower court punitive damages calculation that likely included harm to others in the equation. 517 U. S., at 568, n. 11. But context makes clear that the term “error-free” in the BMW footnote referred to errors relevant to the case at hand. Although elsewhere in BMW we noted that there was no suggestion that the plaintiff “or any other BMW purchaser was threatened with any additional potential harm” by the defendant’s conduct, we did not purport to decide the question of harm to others. Id., at 582. Rather, the opinion appears to have left the question open.
Respondent argues that she is free to show harm to other vietims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible — although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.
Given the risks of unfairness that we have mentioned, it is constitutionally important for a court to provide assurance that the jury will ask the right question, not the wrong one. And given the risks of arbitrariness, the concern for adequate notice, and the risk that punitive damages awards can, in practice, impose one State’s (or one jury’s) policies (e. g., banning cigarettes) upon other States — all of which accompany awards that, today, may be many times the size of such awards in the 18th and 19th centuries, see id., at 594-595 (Breyer, J., concurring) — it is particularly important that States avoid procedure that unnecessarily deprives juries of proper legal guidance. We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i. e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.
IV
Respondent suggests as well that the Oregon Supreme Court, in essence, agreed with us, that it did not authorize punitive damages awards based upon punishment for harm caused to nonparties. We concede that one might read some portions of the Oregon Supreme Court’s opinion as focusing only upon reprehensibility. See, e.g., 340 Ore., at 51, 127 P. 3d, at 1175 (“[T]he jury could consider whether Williams and his misfortune were merely exemplars of the harm that Philip Morris was prepared to inflict on the smoking public at large”). But the Oregon court’s opinion elsewhere makes clear that that court held more than these few phrases might suggest.
The instruction that Philip Morris said the trial court should have given distinguishes between using harm to others as part of the “reasonable relationship” equation (which it would allow) and using it directly as a basis for punishment. The instruction asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between Philip Morris’ punishable misconduct and harm caused to Jesse Williams, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims . . . .” App. 280a (emphasis added). And as the Oregon Supreme Court explicitly recognized, Philip Morris argued that the Constitution “prohibits the state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties.” 340 Ore., at 51-52, 127 P. 3d, at 1175.
The court rejected that claim. In doing so, it pointed out (1) that this Court in State Farm had held only that a jury could not base its award upon “dissimilar” acts of a defendant. 340 Ore., at 52-53, 127 P. 3d, at 1175-1176. It added (2) that “[i]f a jury cannot punish for the conduct, then it is difficult to see why it may consider it at all.” Id., at 52, n. 3, 127 P. 3d, at 1175, n. 3. And it stated (3) that “[i]t is unclear to us how a jury could ‘consider’ harm to others, yet withhold that consideration from the punishment calculus.” Ibid.
The Oregon court’s first statement is correct. We did not previously hold explicitly that a jury may not punish for the harm caused others. But we do so hold now. We do not agree with the Oregon court’s second statement. We have explained why we believe the Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation. At the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility. Cf., e. g., Witte v. United States, 515 U. S. 389, 400 (1995) (recidivism statutes taking into account a criminal defendant’s other misconduct do not impose an “ ‘additional penalty for the earlier crimes,’ but instead ... ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one’” (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))).
The Oregon court’s third statement raises a practical problem. How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In particular, we believe that where the risk of that misunderstanding is a significant one — because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury — a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.
V
As the preceding discussion makes clear, we believe that the Oregon Supreme Court applied the wrong constitutional standard when considering Philip Morris’ appeal. We remand this ease so that the Oregon Supreme Court can apply the standard we have set forth. Because the application of this standard may lead to the need for a new trial, or a change in the level of the punitive damages award, we shall not consider whether the award is constitutionally “grossly excessive.” We vacate the Oregon Supreme Court’s judgment and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Robert Mitchell PEARSON, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
No. 25161.
United States Court of Appeals Fifth Circuit.
Sept. 23, 1968.
Robert M. Pearson, pro se.
Robert E. Owen, Asst. Atty. Gen., Austin, Tex., for appellee.
Before RIVES, WISDOM and SIMPSON, Circuit Judges.
PER CURIAM:
The record in this appeal, taken in forma pauperis, was lodged with this Court on August 30, 1967. The appeal is from an adverse judgment with respect to a petition for habeas corpus by a Texas state prisoner serving a life sentence for murder with malice in the custody of the respondent-appellee. The district court held a full adversary hearing, with the petitioner represented by court-appointed counsel; and entered complete findings of fact and conclusions of law.
A prior panel of this Court on March 27, 1968, granted the request of appellant’s court-appointed counsel for leave to withdraw, and denied appellant’s pro se request for the appointment of additional counsel. Since that date appellant has failed to file his brief herein and the time therefor has long since expired, despite appropriate notice served upon appellant by the Clerk of this Court. (See Rule 24, former Rules of this Court, and Rule 31, Federal Rules of Appellate Procedure effective July 1, 1968).
The appellant’s failure to file his brief has been referred to the Court by the Clerk under the provisions of Rule 9(c) 2, Local Rules of this Court effective July 1, 1968. Close inspection of the record convinces us that this appeal is without merit. Appellant would be required to demonstrate that the findings of fact of the trial court were clearly erroneous (see Rule 52(a), F.R.Civ. P.), and our inspection of the record leads us to the conclusion that this is not possible. Accordingly, the judgment of the court below is summarily
Affirmed.
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_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.
Louis GOLDING, Appellant, v. UNITED STATES of America, Appellee.
No. 6896.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 8, 1955.
Decided Feb. 7, 1955.
Buford T. Henderson, Wake Forest, N. C., for appellant.
Neil Brooks, Sp. Asst, to the Atty. Gen., Washington, D. C. (J. Stephen Doyle, Jr., Sp. Asst, to the Atty. Gen., Howard Rooney and Donald A. Campbell, Attys., U. S. Dept, of Agriculture, Washington, D. C., on brief), for appel-lee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal from a judgment for penalties for violation of the Agricultural Adjustment Act of 1938, 7 U.S.C.A. § 1281 et seq. Appellant is a tobacco farmer who, because of his failure to report the disposition of his crops, had an acreage allotment of zero for the years 1950, 1951, 1952 and 1953. There was evidence which justified the findings of the court below that appellant raised and sold flue cured tobacco in the years in question in the amount found by the court. The penalty based on price was established by regulations contained in the Federal Register. Appellant complains of the refusal to continue the case, but this was clearly a matter resting in the discretion of the trial judge and there is no showing that the discretion was abused. He complains, also, because the court considered marketing quota regulations, which were contained in the Federal Register but were not introduced in evidence. It is clear, however, that the court could take judicial notice of these regulations. 44 U.S.C.A. § 307; Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10. There was no error and the judgment appealed from will be affirmed.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc1
|
18
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Plaintiff-Appellee, v. Homard P. DORSEY, Defendant-Appellant.
No. 14404.
United States Court of Appeals Sixth Circuit.
May 24, 1961.
John H. Reddy, U. S. Atty., Knoxville, Tenn. (William P. Crewe, Asst. Regional Counsel I. R. S., Atlanta, Ga., on the brief), for appellee.
William E. Badgett, Knoxville, Tenn., for appellant.
Before McALLISTER, CECIL and O’SULLIVAN, Circuit Judges.
CECIL, Circuit Judge.
This is an appeal by Homard P. Dorsey from a verdict and judgment of conviction in the United States District Court for the Eastern District of Tennessee, Northeastern Division.
The appellant, together with eight other defendants, was indicted under section 371 of Title 18 U.S.C. for conspiracy to violate sections 5174, 5179 and 5601(a) (1) of the Internal Revenue Code of 1954, as amended 26 U.S.C. §§ 5174, 5179, 5601 (a) (1). The violation involves the illegal manufacture, possession, transportation and sale of spirituous liquors. The facts constituting the offense are fully and specifically set forth in the indictment.
It is claimed on behalf of the appellant that there is not substantial evidence to support the verdict of the jury and the judgment based thereon. A reading of the record discloses that no motion for •acquittal was made by counsel for Hom-ard P. Dorsey either at the close of the government’s case in chief or at the conclusion of all of the evidence.
The question presented is purely one of fact. Upon reading the entire record and upon consideration of the evidence relating to Homard P. Dorsey, as a whole, we conclude that there was sufficient evidence to justify the jury in finding that Homard P. Dorsey was a party to the conspiracy as averred in the indictment and that he was guilty as charged.
Other questions raised relate to the admission of testimony. On two occasions the trial judge admitted conversations of alleged co-conspirators to the effect that the appellant Dorsey would not get a watchman for them. The record discloses that no objections were made to the admission of this testimony.
In the first instance, counsel for Dorsey said: “Now, of course, your Honor will instruct the jury as to what anybody said, the men that were present.”
Thereupon the Court instructed the jury as follows: “Gentlemen of the jury, this alleged statement, alleged to be made by these men, will not be considered except with respect to their cases. Unless the jury finds, first, there was a conspiracy and, second, that these statements were made in furtherance of the conspiracy. If the jury so finds, then the jury will consider the alleged statement with respect to all of the defendants.”
The witness answered and no further question was raised.
The instruction of the trial judge, as quoted above, is a clear and correct statement of the law of conspiracy. Continental Baking Company v. United States, 6 Cir., 281 F.2d 137,152; Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680.
“It is a basic premise of our jury system that the court states the law to the jury and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can' reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court’s instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.” Delli Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 300, 1 L.Ed.2d 278. See also: Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101.
The trial judge instructed the jury on the subject of the weight to be given to the testimony of an accomplice. No accomplices testified on behalf of the government and the appellant charges that this is reversible error.
Counsel for the appellant Dorsey made neither specific nor general objections to the charge of the court. In accordance with Rule 30 of the Federal Rules Criminal Procedure, 18 U.S.C., no objection to the charge can now be raised on appeal.
This is not such a “plain error” as to warrant the consideration of this Court, without objection, and we are of the opinion that it was not prejudicial to the appellant. Rule 52, Federal Rules Criminal Procedure.
The judgment of the District Court will be affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_discover
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence 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".
Clarence WEAHKEE, Plaintiff-Appellant, v. Eleanor Holmes NORTON, Chairwoman of Equal Employment Opportunity Commission, Defendant-Appellee.
No. 78-1294.
United States Court of Appeals, Tenth Circuit.
Argued May 18, 1979.
Decided May 19, 1980.
William S. Dixon of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M. (Thomas E. Luebben of Luebben, Hughes & Kelly and Peter C. Chestnut, Albuquerque, N. M., with him on brief), for plaintiff-appellant.
Ramon V. Gomez, Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Ed-dins, Associate Gen, Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Equal Employment Opportunity Commission, Washington, D. C., with him on brief), for defendant-appellee.
Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
This is an appeal by Clarence Weahkee from a decision that his employer, the Equal Employment Opportunity Commission (EEOC), did not discriminate against him because of race or because he had filed administrative charges against the EEOC. Jurisdiction is based upon Title VII of the Civil Rights Act of 1964 as amended. 42 U.S.C. §§ 2000e-5, 2000e-16. The action is before us for a second time. See Weahkee v. Powell, 532 F.2d 727 (10th Cir. 1976).
The issues urged on appeal involve: (1) jurisdiction, (2) sufficiency of the evidence, (3) denial of discovery, (4) relevancy of statistical information, and (5) the trial court’s adoption of defendant’s requested findings.
Weahkee, an American Indian, began working for the Albuquerque District Office of the EEOC in 1968 as a conciliatory investigator and writer, with a GS-11 classification. His claims of discrimination and retaliation by the EEOC concern seven separate but, in some instances, related actions of the Commission during 1969 to 1972. In general, Weahkee claimed he was denied promotions because of EEOC discrimination in favor of blacks and Spanish surnamed individuals and because he had filed administrative charges alleging discrimination by the EEOC.
I
The district court found that some of Weahkee’s administrative complaints were untimely and thus not within its jurisdiction, based upon its view that he did not engage in required precomplaint counseling. The government’s brief on appeal admits the precomplaint counseling procedures are “not jurisdictional absolutes.” Appellee’s Brief, p. 36. Moreover, we think this issue was decided against the EEOC in Weahkee v. Powell, 532 F.2d 727 (10th Cir. 1976), when we ruled that the district court had jurisdiction over these same complaints.
II
Despite its views concerning jurisdiction, the trial court conducted a full trial and found against Weahkee on the merits of his claims. Weahkee challenges the sufficiency of the evidence. We do not retry the facts, of course, but reverse only if the decision is “clearly erroneous.” Fed.R.Civ.P. 52(a). We have carefully reviewed the record and determine that the evidence, although not overwhelming, is sufficient to support the verdict entered.
III
Weahkee next argues that the trial court committed reversible error in denying a motion to compel discovery of EEOC personnel files Weahkee claims he should have received. The EEOC objected to Weahkee’s request for discovery because the Privacy Act, 5 U.S.C. § 552a(b)(ll), prohibits release of personnel files without a court order. This objection, however, does not state a claim of privilege; a court order is merely one of the “conditions of disclosure.” Id. § 552a(b) (heading). A court order under Fed.R.Civ.P. 37 in response to Weahkee’s motion to compel discovery would meet the standards of that Act.
Even if we view the EEOC’s refusal to produce the documents as an assertion of a privilege under exemption six of the Freedom of Information Act, 5 U.S.C. § 552(b)(6), it is apparent that the trial court did not deny the motion for that reason. To determine the existence of the privilege, the trial court must balance the individual’s right to privacy against the public’s right to information. See Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976); Campbell v. United States Civil Serv. Comm’n, 539 F.2d 58, 61 (10th Cir. 1976). In the instant case, the court did not inspect the files to determine whether they were subject to an exemption; it did not receive affidavits or testimony from the agency on which it might base a decision to deny disclosure; and the court stated no basis for its denial of plaintiff’s motion. Because the court could not have performed its balancing function without reviewing the documents sought or at least requiring evidence in the form of affidavits, we conclude the court did not base the denial on exemption six.
The question therefore is whether these documents were discoverable in the absence of a privilege. The test for determining whether material is discoverable is relevancy. Fed.R.Civ.P. 34 no longer requires that the party seeking discovery show good cause for its request. See Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir. 1975).
The files sought in plaintiff’s request were personnel files of EEOC employees who plaintiff claims were hired or promoted in discriminatory preference over him. The qualifications and job performance of these employees in comparison with the plaintiff’s qualifications and performance is at the heart of this controversy. This is, in fact, the sort of information that EEOC seeks, and we have allowed, in investigating and litigating discrimination claims.
The instant request for production is well within our previous decisions. In Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975), a Title VII case, this Court reversed a denial of a plaintiff’s discovery request that was significantly more extensive and difficult to compile than that sought by Weahkee. It included the names of departments, the number of blacks, Hispanos and women in each, the number of promotions and layoffs in each department broken down by sex and race, and the work records of all employees in each department. Id. at 336, 342. We stated that the scope of discovery “is limited only by relevance and burdensomeness, and in an EEOC case the discovery scope is extensive.” Id. at 343.
In EEOC v. University of New Mexico, 504 F.2d 1296 (10th Cir. 1974), a case alleging discriminatory failure to promote, EEOC sought, and we allowed, discovery of all personnel files of all faculty members employed by the university in its college of engineering at the time of complainant’s discharge. See also Burns v. Thiokol Chemical Corp., 483 F.2d 300, 305 (5th Cir. 1973).
The EEOC may not deny discoverable information when it is itself the defendant employer. We hold Weahkee had a right to the information and denial of discovery amounted to an abuse of discretion by the trial court.
The EEOC further contends that even if Weahkee had a right to the information, he was not substantially prejudiced by the denial, arguing that “pertinent documents” allowing plaintiff to compare employee evaluations and work performance “were part of an extensive administrative record and thereby available to plaintiff even before’ the instant litigation.” Appellee’s Brief, p. 37. This record was, of course, compiled by the EEOC, a party to the litigation. To accept the EEOC’s evaluation that the “pertinent documents” were available would thus be to abdicate control of the discovery process to one of the adversaries involved in the dispute. Erroneous denial of discovery is ordinarily prejudicial in the absence of circumstances showing it is harmless. Here, since we cannot determine from the record whether the requested documents might have changed the result in this trial, we cannot say the error was harmless.
IV
Weahkee next contends that the district court erred in refusing to permit certain cross-examination of Sarah Leiter, a labor economist employed by the EEOC. Appellant claims Leiter’s testimony would show statistical evidence that American Indians were underrepresented “both at supervisory positions in the Albuquerque District Office and nationally” in comparison to the number of blacks and Spanish-American employees. Appellant’s Brief, p. 22. The offer of proof made at trial makes no mention of any proof concerning the district office, however.
The EEOC asserts that the evidence sought to be admitted was not probative of any discrimination at the district office or at the professional level, and that, had the evidence been admitted, it would have failed to establish “long-lasting and gross disparity.” The EEOC also argues that the evidence excluded only established general work force figures which are not meaningful because Weahkee failed to offer evidence concerning the pool of Indians qualified for the positions.
Statistical evidence may be used to establish a prima facie case of employment discrimination. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974). When the employer has come forward with legitimate nondiscriminatory reasons for the action contested, a plaintiff may rely on statistics to discredit the reasons the employer presented for its action. Furnco Const. Corp. v. Waters, 438 U.S. 567, 579, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978).
We express no opinion on the strength of the evidence; we merely note that the objection to plaintiff’s proffered evidence on the ground of irrelevancy should not have been sustained. Since this case is being remanded, it is unnecessary to find that the error was prejudicial.
V
Finally, Weahkee alleges that the district court’s verbatim adoption of nearly all of the EEOC’s requested findings of fact and conclusions of law is error. The Supreme Court has disapproved the mechanical adoption of findings of fact written by a party, but has held that verbatim adoption of requested findings is not ground for reversal if those findings are supported by the evidence. See United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-57, 84 S.Ct. 1044, 1047-48, 12 L.Ed.2d 12 (1964). Here the trial court received requested findings and conclusions of both parties and examined these along with post-trial memoranda in its deliberations but adopted verbatim nearly all of the EEOC’s findings and conclusions. On the evidence appearing in the record before us, we are not “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), and we would not reverse on this ground. Cf. Kelson v. United States, 503 F.2d 1291 (10th Cir. 1974) (reversal required when court instructed winning party to write the findings and conclusions).
Since the case was tried to the court we do not believe there is need for a complete new trial on remand. Rather, the court should reopen the case to permit the additional discovery of personnel files treated in Part III above. At an evidentiary hearing it should allow the questioning of Mrs. Leiter and admit any relevant evidence produced by the additional discovery. The court should make such additional or substitute findings as are necessary or appropriate.
Reversed and remanded.
. Plaintiff also asserts that the trial court erred by refusing to admit certain findings of the District Court for the District of Columbia in Weahkee v. Perry, 13 E.P.D. 1| 11,342 (D.D.C. 1976), and to consider those findings of discrimination as collateral estoppel against the EEOC here. This suit involved additional complaints of discrimination by Weahkee against the EEOC for actions occurring between 1973 and 1975. Since the decision was reversed on appeal, 587 F.2d 1256 (D.C.Cir.1978), and on remand the district court found in favor of the EEOC, 18 E.P.D. 1¡8,907 (D.D.C.1979), we assume that issue is no longer being pressed.
Question: Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
CHICAGO & N. W. RY. CO. v. BEWSHER.
(Circuit Court of Appeals, Eighth Circuit.
July 28, 1925.)
No. 6831.
1. Carriers <§=3160 — Carriers might, prior to amendment of Interstate Commerce Act, limit time within which suits might be brought on contracts of carriage.
Prior to amendment by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), to Interstate Commerce Act, § 20, par. 11, carriers might limit time within which suits might be brought on contracts of carriage, subject only to reasonableness of the limitation.
2. Carriers <§=3160 — Carriers held unauthorized to place any fiat restriction on time within which suit may be brought on contracts of carriage, based on ti-me of delivery of the shipment.
Under Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), carriers held unauthorized to place any flat restriction on time within which suit may be brought on contracts of carriage, based on time of delivery of the shipment, rather than time of giving of the notice prescribed therein.
3. Carriers <§=3160 — Limitation in bill of lading for institution of suits for loss, damage, or delay on contracts of carriage, held void, as contravening amendment of Interstate Commerce Act.
Provision of bill of lading that suits for loss, damage, or delay on contracts of carriage should be instituted only within two years and one day after • delivery of the property, or, in case of failure to make delivery within two years and one day, after a reasonable time for delivery has elapsed, held void, as contravening Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 439-438 (Comp. St. Ann. Supp. 1923, § 8604a).
4. Carriers <§=359 — Holder of order bill of lading not estopped to maintain action for damages for issuance of false bill of lading by redelivery of claim to shipper and shipper’s settlement with carrier.
In action by holder in good faith of order bill of lading, under Bill of Lading Act Aug. 29, 1916, § 22 (Comp. St. § 8604kk), for damages caused by carrier’s nonreceipt of part of carload of wheat described in bill of lading, plaintiff held not estopped to maintain his action by redelivering claim and supporting papers to shipper, and by shipper’s settlement, where claim made and filed was for wheat declared to have been lost in transit.
5. Carriers <§=>52(2) — Carrier may show that goods described in hill of jading were never delivered, and is not estopped by recitals in bill.
Carrier, issuing a bill of lading, may show that the goods described therein were never in fact delivered, and is not estopped by recitals in such bill.
6. Carriers <§=355 — Bill of Lading Act manifests congressional intention to make ordinary bills of lading fully negotiable.
Bill of Lading Act Aug. 29, 1916 (Comp. St. §§ 8604aaa-8604w), manifests a clear intention of Congress to malte ordinary bills of lading fully negotiable and they are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act, or others of like import, or some notice or recitation inconsistent with negotiability.
7. Carriers <§=359— Carrier held liable to holder in good faith of order bill of lading for damages caused by nonreceipt of part of carload of wheat; “weight subject to correction."
Carrier held liable to holder in good faith of order bill of lading covering car of wheat for damages caused by carrier’s nonreceipt of part of the goods, in view of Bill of Lading Act Aug. 29, 1916, §§ 20, 22 (Comp. St. §§ 8604jj, 8604kk), notwithstanding that wheat was loaded by shipper, and that bill of lading recited that weight was “subject to correction”; such words not being of “like purport” to the words “shipper’s weight, load, and count,” or “shipper’s weight,” or that weight of wheat was “said to be” weight recited in bill of lading, within section 21 (Comp. St. § 8604k), prescribing what descriptions in bill of lading shall not render carrier liable.
In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.
Action by Augustus H. Bewsher, doing business as the Bewsher Company, against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Wymer Dressier, Robert D. Neely, and Paul S. Topping, all of Omaha, Neb., for plaintiff in error.
R. B. Schuyler, of Omaha, Neb., for defendant in error.
Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.
SCOTT, District Judge.
This is an action by Augustus H. Bewsher, doing business as the Bewsher Company, a grain dealer at Omaha, Neb., against the Chicago & Northwestern Railway Company, to recover $650.-75 damages alleged to be due on account of tbe issuance of an order bill of- lading to ene Albert Swick at Buffalo Gap, S. D., for 66,000 pounds of bulk wheat. Plaintiff in his petition alleges in substance that on or about the 27th day of December, 1920, Albert Swick loaded at Oral, S. D., defendant’s car No. 118,720 with wheat; that said wheat was consigned to the plaintiff at Omaha, Neb., and the duly authorized agent of defendant at Buffalo Gap, S. D., issued a bill of lading covering said wheat, a copy of which bill of lading is exhibited on plaintiff’s petition; that said bill of lading with draft attached was forwarded from the- Oral State Bank, of Oral, S. D., to the 'Merchants’ National Bank, of Omaha, Neb.; that said draft was drawn on the plaintiff for the amount of $1,900, which draft was honored and paid by the plaintiff on January 3, 1921; that at the time plaintiff honored said draft he was the holder in good faith of said order bill of lading and paid $1,900 to Merchants’ National Bank, agent ' of Albert Swick, the shipper, relying upon the description set forth in said bill of lading, and at the time actually believed that there was 66,-000 pounds of wheat shipped in said car; that as a matter of fact said ear never contained 66,000 pounds of wheat, but only contained 45,590 pounds; that defendant company negligently failed to weigh the wheat at the time of shipment, and failed to notify plaintiff of the fact that said wheat was not weighed.
Plaintiff further pleads that on or about the 3d day of February, 1921, having prior thereto taken an assignment of the claim of said Albert Swick, he filed a daim for the account of plaintiff with defendant, together with proof of loss thereon, said claim being covered by defendant’s claim No. 201,977— Desk 1; that said claim was filed with defendant in less than 90 days from the date of delivery of said wheat at destination; that on or about the 14th day of May, 1921, defendant refused to pay said claim, but did offer to compromise the same for the amount of .$54.55. The bill of lading exhibited on plaintiff’s petition recites'the receipt at Buffalo Gap, S. D., from Albert Swick, C & NW ear No. 118,720, and under the description of articles, recites: “Bulk Wheat, 60 M car Ordered 80 M ear furnished Co C &NW Weight (subject to correction) 66,-000 Loaded at Oral SD.”
Defendant, answering, admits that on the date alleged. Albert Swick loaded the car in question with bulk wheat at Oral, S. D., and consigned same to himself at Omaha, Neb., notifying the plaintiff company; ' admits that the bill of lading was issued as alleged; and concludes by denying all other allegations of plaintiff’s petition. Defendant, further answering, pleads four separate defensive paragraphs, the order of which we transpose somewhat, to meet what we deem to be the logical order of their consideration. These defenses are:
(1) That section 2 of said bill of lading provides that no suit shall be maintained thereon unless commenced within two years and one day from the delivery of the goods therein, and defendant alleges that this suit was not commenced within said time, and is therefore barred by the terms of said bill of lading.
(2) That plaintiff made claim against defendant on the 4th day of February, 1921, for $577.76 for alleged loss of grain from said ear during transportation, and among the papers presented to the defendant in support of said claim was a copy of an assignment made by Albert Swick to plaintiff; and on March 8, 1921, defendant wrote a letter to plaintiff, declining to recognize said claim, and defendant alleges that this suit was not commenced within two years from March 8, 1921, and is therefore barred by operation of law.
(3) That plaintiff is estopped to maintain this suit for the reason that, after plaintiff had made said claim upon defendant and said claim was declined by defendant, plaintiff delivered to Albert Swick all supporting papers, including the assignment which plaintiff had presented to defendant in support of said claim, and thereafter the said Albert Swiek again presented to the defendant said claim for alleged loss of grain in transit from said shipment, and Albert Swick and defendant entered into a compromise and settlement of said claim for the sum of $54.05, and the defendant on June 2,' 1921, paid to Albert Swick the sum of $54.05 in full settlement of all claims on account of said shipment; that by reason of said conduct plaintiff is now estopped to claim that he had any interest in said shipment or in said claim, other than ás the representative of Albert Swick, and defendant alleges that said claim has been fully compromised and settled.
(4) That the wheat mentioned in plaintiff’s petition was loaded by the shipper, on facilities furnished by the shipper, and was not loaded by the defendant, and same was received under the terms of said bill of lading, which provided that the weight of said shipment was subject to correction.
The ease was tried upon the issues as stated. The facts were largely stipulated, and from such stipulation and the testimony of plaintiff Bewsher, the following facts appear without controversy:
That about the date alleged Albert Swick loaded the car of bulk wheat at Oral, S. D., That as of the same date defendant’s agent at Buffalo Gap issued the bill of lading in question with the recitals as stated in plaintiff’s petition. That the ear was weighed on track scales at Chadron, and the weight of the grain, using the gross weight and then subtracting the stenciled weight on the ear, resulted in a net weight of 48,300 pounds, and that the weight ascertained at Omaha, when the grain was unloaded and weighed by the grain exchange weighmaster, was 45,590 pounds. That there was no actual loss of grain from the car, and the car was in good condition, and the difference between the indicated weight on the bill of lading and the unloading weight was never actually put into the ear. That on February 4, 1921, plaintiff presented a claim to defendant, having first taken an assignment from Albert Swick, for the sum of $577.76 for shortage in the shipment, supporting his claim by a copy of the bill of lading, weights, and the assignment of the claim from Swick. That on March 8, 1921, H. C. Howe, freight claim agent, claim department of defendant, wrote the Bewsher Company the following letter:
“Referring to your claim No. 746, our number as above, for $577.76, alleged loss of wheat shipped from Buffalo Gap, S. D., to Omaha, Neb., amount of wheat claimed to have been lost 20,780 pounds: From the investigation I have made of this matter, I find that this ear was weighed at Chadron, a short distance from Buffalo Gap,with a net weight of 48,300 pounds. Deducting 800 pounds for the grain doors would leave a net weight of 47,500 pounds, and as your weight at Omaha was 45,590, it is quite clear to me that there was no loss beyond the 1,910 pounds, and that an error has been made in weighing at point of shipment. There is no record of the car being in bad order. It arrived under proper seals, and therefore'I cannot see any greater loss than the 1,910 pounds, less 67 pounds for shrinkage, which, together with the freight on the shrinkage and the price, $1.65, would leave $54.05 due you, which I am willing to pay.”
That on April 5,1921, the Bewsher Company wrote defendant the following letter:
“Please refer to yours of March 8th, file Rr-201977-1. The shipper requests us to instruct you to return all papers filed in connection with this claim, so that he can turn them over to> an attorney, with instructions to bring suit. Your offer-of settlement is too ridiculously low to be given consideration, in view of the shipper’s contention that he can well substantiate the weight loaded into this car. Therefore be good enough to return these papers to us at once.”
That after some delay the supporting papers of the claim were returned by the defendant to the plaintiff, who transmitted the same to Albert Swick with the following letter:
“May 16, 1921.
“Mr. Albert Swick, Oral, So. Dak.— Dear Sir: Although we instructed the Northwestern, under date of April 5th, to return all papers we filed with them in your claim for shortage - on car 118720, shipped December 27, 1920, we only to-day received them, and herewith return them to you. The recall of these papers was due to the fact that, while this claim was filed for $577.76, as indicated by copy of invoice which we herewith attach, they made an offer of settlement of only $54.05, which we refused, and suggested to you that you place these papers in the hands of your attorney, and, if you are in a position to substantiate the weights as loaded into the ear beyond any question of a doubt, he can recover for you. We will be very glad to furnish any information your attorney may need from this end of the line, and assist in any way possible to help recover this money for you. We think you will find that your attorney will be willing to handle this on a contingency fee; that is, a percentage of the amount he collects, and, if he collects nothing, he will probably only ask you to pay the costs that he has been put to in the suit. We wish you luck in this collection, and, as before stated, if we can be of additional service in recovering this amount, let us know. We are also returning you the weight tickets you sent us at the time we asked you for a copy of your weights in connection with this claim.
“Yours very truly, Manager.”
That Albert Swick, following receipt of the supporting papers, communicated with the claim department of defendant, and made settlement of the claim for the sum of $54.05, being the amount of shortage ascertained by defendant.
In addition to the foregoing facts, which were stipulated, plaintiff testified in his own behalf to the custom and method of handling such transactions in his office, which was in substance that the clerk or bookkeeper, on presentation of the draft and bill of lading would figure out the value of the contents of the car, based on the existing state of the Omaha market, and if there was an apparent overdraft they would submit it to him, as to whether it should be paid; that if the car was clear, and no apparent overdraft, he would never see the papers; that his usual custom was to allow the shipper to draw from 75 to 85 per cent, of the value of a shipment; that a man whose eredit was without question could probably draw 90 or 95 per cent., and occasionally $100 or $150 overdraft would not be questioned; that Mr. Swiek was a customer that he would not allow to overdraw very much, but would try to hold his business by not telling him he doubted his credit, but at the same time would not like to pay an overdraft for him; that plaintiff procured the assignment of the claim from Albert Swiek and filed the claim with the defendant, calling attention to the assignment and requesting payment direct to him; that he was never advised of the settlement by Swiek until shortly before suit was begun.
The record shows without controversy that plaintiff honored the draft for $1,900 and paid the same, and has not been repaid; and it is stipulated that, if plaintiff is entitled to recover anything, he is entitled to recover $595. At the conclusion of defendant’s testimony both parties rested, and upon motion of the plaintiff the eourt directed a .verdict for the plaintiff for the amount above indicated, to which defendant excepted, and after entry of judgment sued out writ of error, and now assigns the following errors:
“I. The eourt erred in instructing the jury to return a verdict for the plaintiff and in refusing to instruct a verdict for defendant.
“II. The court erred in holding and deciding that the provision in the bill of lading involved m this suit, limiting the right to bring the suit to a period of two years from the time the claim, or any part thereof, was declined, was null and void.
“III. The court erred in holding and deciding that the letter written by H. C. Howe to the Bewsher Company and contained in the bill of exceptions did not constitute a declination of said claim, or any part thereof, within the meaning of the Interstate Commerce Act as amended.
“IY. The court erred in entering judgment in favor of the plaintiff and against the defendant.”
The foregoing assignment of errors was filed with the clerk at the time the writ of error was sued out. Assignment II above is now apparently abandoned, and we think properly so, as it had no foundation in the record. Counsel for plaintiff in error on their brief assign that error in the following language:
“The court erred in its ruling of law upon the proposition that the limitation in the bill of lading restricting the right to commence suit within two years, and not after, from the time of shipment, was null and void under the Interstate Commerce Act.”
Counsel in briefs and arguments have not followed the order of assignment of error, nor confined themselves strictly to the propositions involved therein. We are therefore of opinion that the questions presented for decision can be more logically discussed by following the order of the defenses as they appear in our statement of the issues. These questions are:
(1) Is the provision in section 3 of the bill of lading that “suits for loss, damage or delay, shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make the delivery, then within two years and one day after a reasonable time for delivery has elapsed,” void as contravening the amendment of February 28, 1920, to paragraph 11 of section 20 of the Act to Regulate Commerce?
(2) May and should the eourt read out of the provision quoted the words, “after delivery of the property,” etc., and read into the contract the provision in said amendment that such period for institution of suits be computed from the date when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part thereof specified in the notice ?
(3) Is plaintiff estopped to maintain the suit because he redelivered the claim and supporting papers to Albert Swiek with direction to commence suit, and the settlement of the claim by Albert Swiek?
(4) Is plaintiff concluded by the fact that the grain was loaded by the shipper and that the bill of lading recited that the weight was “subject to correction”?
We consider these questions in the order stated. It is well settled that, prior to the amendment approved February 28, 1920, it was entirely competent for carriers to limit the time within which suits might be brought on contracts of carriage, subject only to the reasonableness of the limitation. Indeed, we are not without authority on the subject as applied to the particular statute as it existed prior to the amendment. Leigh Ellis & Co. v. Payne (D. C.) 274 F. 443, affirmed by the Circuit Court of Appeals for the Fifth Circuit in Leigh Ellis & Co. v. Davis, 276 F. 400, and affirmed by the Supreme Court of the United States in Leigh Ellis & Co. v. Davis, 260 U. S. 682, 43 S. Ct. 243, 67 L. Ed. 460.
Under this statute, as it existed before the amendment, and other provisions relative to the filing of claims, hardship often occurred by reason of the delay of the carrier in giving notiee of its disapproval of the claim, often resulting in an unreasonable balance of time within which the shipper might institute his suit. This was at least one of the evils which Congress sought to remedy by the amendment of February 28, 1920. By that amendment the words, “such period for institution of suits to be computed from the day when notiee in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notiee,” were added to the previous paragraph, making the paragraph read as follows:
“Provided further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notiee of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.” Comp. St. Ann. Supp. 1923, § 8604a.
It seems to us clear that, after the amendment quoted, any flat restriction of time within which suit might be brought based upon the time of delivery of the shipment, rather than the time of the giving of the notice prescribed, would be in contravention of the amendment, and “be unlawful” within the purview of the amended paragraph.
But plaintiff in error, probably anticipating the possibility of the conclusion we here reach, contends that, notwithstanding the inconsistency of the language of the provision of the contract with the amended statute, the court should read out of the contract that part of its express language which initiates the time limit at the date of shipment, and read into the contract the provision of the amendment of 1920. In support of this contention counsel cites American Railway Express Co. v. Lindenburg, 260 U. S. 584, 43 S. Ct. 206, 67 L. Ed. 414. We do not think this ease in point on the question under consideration. In that ease the unlawful provision of the receipt could be readily separated from the remaining provisions, and that case merely holds that the presence of the unlawful provision did not render unlawful others which were separable from it. In the instant case, however, we are asked, not only to read out of the contract a particular expressed provision, but to substitute therefor another entirely different provision, and thereby to declare lawful and enforceable a form of contract which Congress deliberately undertook to and did prohibit. We are constrained to the conclusion that this cannot be done.
We come now to the question of estoppel. Is the plaintiff estopped by his conduct in redelivering the claim and supporting papers to Swick, and by Swick’s settlement? Examination of the claim filed with the defendant and its supporting papers makes clear that the claim made and filed was for wheat declared to have been lost in transit. The contention was for a disparity in weight between the time of loading and the time of unloading. There was a difference between the claim of the shipper and the fact' as ascertained by the defendant. That Swick, the shipper, and the plaintiff, proceeded upon the theory that 66,000 pounds of wheat had been loaded, is clearly indicated by plaintiff’s letter to Swick when he returned the claim and supporting papers. He says: “If you are in a position to substantiate the weights as loaded into the car beyond any question of a doubt, he can recover for you.” It is clear from the record that throughout all negotiations prior to the beginning of suit, all parties proceeded upon the theory that the controversy was over grain lost in transit, and that was plaintiff's thought at the time he returned the claim and supporting papers. But the plaintiff at least was mistaken in this assumption.
As to whether Swick was mistaken is a matter upon which the record throws no light. In any event, Swick on return of the papers reopened negotiations with the defendant, and promptly arrived at a settlement on the basis of the amount of grain actually lost in transit, and received in settlement full payment therefor. It is beyond question that the $54.05 received by Swick was all that he could possibly have recovered, had he instituted suit and prosecuted it to judgment. Under no theory suggested or advanced was the defendant liable to Swick for more grain than he actually loaded. And it was a claim for grain loaded that Swick undertook to assign, and that plaintiff undertook a redelivery, and for which settlement was made. We think such a settlement has no concluding effect upon the cause of action for damages for the issuance of a false bill of lading, liability for which is to be established under the provisions of section 22 of the Bill of Lading Act, approved August 29, 1916 (Comp. St. § 8604kk). The cause of action declared in the plaintiff’s petition is entirely different from that declared in the claim originally filed with the defendant. We therefore conclude that the plaintiff is not es-topped by the Swick settlement.
Finally, is plaintiff concluded by the fact that ’the grain was loaded by the shipper, and that the hill of lading recited that the weight was “subject to correction”? Examination of this question leads us to consider the legal character of bills of lading, and some mutations of such character brought about by national legislation. It has been almost universally held that a hill of lading is not only a receipt, but .a contract; and numerous decisions of state courts have clothed such instruments with a character of negotiability more or less complete. For examples of these decisions one may consult 6 Cyc. under head of “Carriers,” subhead “Bills of Lading,” and for a discussion of the principle of estoppel of the issuance of a bill of lading particularly, page 418 et seq. See, also, 1 Hutchinson on Carriers (3d Ed.) § 157 et seq. The Supreme Court of the United States, however, had long prior to the Act of Congress of August 29, 1916, commonly called the Bill of Lading Act, declared its own views with respect to these instruments, in Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998, Mr. Justice Miller, in speaking for that court, said:
“A bill of lading is an instrument well known in commercial transactions, and its character and effect have been defined by judicial decisions. In the hands of the holder it is evidence of ownership, special or general, of the property mentioned in it, and of the right to receive said property at the place of delivery. Notwithstanding it is designed to pass from hand to hand, with or without indorsement, and it is efficacious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those cases, all inquiry into the transaction in which it originated, because it has come into hands of persons who have innocently paid value for it. The doctrine of bona fide purchasers only applies to it in a limited sense.
“It is an instrument of a twofold character. It is at once a receipt and'a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually ■ received, there can be no valid contract to' carry or to deliver.”
It was held in that case that, although innocent, the indorsee and holder of a bill of lading with draft attached could not recover; it being shown that the cotton for which the bill was issued was never delivered to the master of the boat. This decision was followed in Missouri Pacific R. Co. v. McFadden, 154 U. S. 155,14 S. Ct. 990, 38 L. Ed. 944, and in many other eases. So it seems to us to have been firmly established by decisions of the Supreme Court that the carrier issuing a bill of lading may show that the goods described therein were never in fact delivered, and that such carrier is not estopped by the recitals in such hill. It is not so well settled, however, that where a shipment has actually been delivered, but the goods fall short of the quantity declared in the bill of lading, that the carrier may with equal success urge such defense. This question is quite exhaustively discussed by Mr. Freeman in a note to Chandler v. Sprague, 38 Am. Dec. at pages 413 and 414. The conclusion there is apparently arrived at that the bill of lading is not conclusive as to quantity. The author of the note on page 414 criticizes the application of the rule where a portion of the goods have been delivered. It is there said:
“A plain distinction exists, as it seems to us, between the two classes of cases. There is some show of reason for holding that a bill of lading issued by a master or other agent, where no goods have been shipped, is beyond the agent’s authority, and therefore void even in the hands of a stranger who has in good faith advanced money on it. But where there is a shipment of goods, the master or agent has authority to sign a bill of lading, and if he misrepresents the quantity of goods, and an. innocent third person is thereby induced to part with his money ■on the faith of the representation, the principal ought certainly to be bound, because the agent has not acted outside of his authority, but has merely abused it. ”
Whatever may be the merits of the argument here under consideration of the doctrine of estoppel in pais, it has been sufficiently settled in the federal jurisdiction that no estoppel results by reason of the negotiable character of the instrument. This fact no doubt influenced in a measure the action of Congress in the enactment of the Bill of Lading Act. While that act does not in so many words declare bills of lading to be negotiable instruments, we think, from the implications of the various provisions of the act and the repeated declarations that things specified shall not render these instruments nonnegotiable, that it was the clear intention of Congress to so legislate that ordinary bills of lading may be fully negotiable, and are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act or others of like import, or some notice or recitation inconsistent .with negotiability.
Three sections of the act, sections 20, 21, and 22 (Comp. St. Ann. Supp. 1923, §§ 8604jj — 8640kk), should be carefully analyzed in determining the question under consideration. Section 20 deals with goods loaded by the carrier, and prescribes certain duties of the carrier in such cases. In ease of package freight, the carrier must “count the packages,” and, if bulk freight, “ascertain the kind and quantity,” and then follows the provision that in such cases the carrier shall not insert in the bill of lading or in any notice, receipt, contract, rule, regulation, or tariff, the words, “Shipper’s weight, load, and count,” or other words of like purport, indicating that the goods are loaded by the shipper and the description made by him.
Section 21 deals with freight loaded by' the shipper, and prescribes when descriptions in the bill of lading shall not render the carrier liable, as, for instance, when “the goods are described in a bill of lading merely by a statement of marks or labels upon them or upon packages containing them, or by a statement that the goods are said to be goods of a -certain kind or quantity, or in a certain condition, or it is stated in the bill of lading that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents or condition of the contents of packages are unknown, or words of like purport are contained in the bill of lading.” It is further provided that, when these statements are contained in the bill, the description shall not render the carrier liable, “although the goods are not of the kind or quantity or in the condition which the marks or labels upon them indicate, or of the kind or quantity or in the condition they were said to be by the consignor.” This section further provides:
“The carrier may also by inserting in the bill of lading the words 'Shipper’s weight, load, and count,’ or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the nonreceipt or by the misdescription of the goods described in the bill of lading.”
Section 22 is the section by which we think Congress intended to change the existing rule of liability as declared by the federal courts. That section provides:
“That if a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual • or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to' (a) the owner of goods covered by a straight- bill subject to existing right of stoppage in transitu or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, for damages caused by the nonreeeipt by the carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of its issue.”
Now in the case at bar we are dealing with bulk freight loaded by the shipper, but the bill of lading does not contain any of the particular notices or recitals specified in section 21 of the Bill of Lading Act, and unless we are to hold that the mere words “weight subject to correction” are of “like purport” to the words “shipper’s weight, load and count,” or “shipper’s weight,” or are equivalent to a statement that the weight of the wheat is “said to be” 66,000 pounds, then it would seem clear that the defendant would be liable to a holder in good faith of the order bill in question “for damages caused by the nonreceipt by the carrier of all or part of the goods.”
We do not overlook the fact that there are some scattering judicial pronouncements of the fact that the insertion of the words “weight subject to correction” in a bill of lading is sufficient to avoid the effect of the estoppel which might otherwise result. In Brown v. Missouri, K. & T. R. Co., 83 Kan. 574, 112 P. 147, the Supreme Court of Kansas said: “Ordinarily bills of lading are prima facie evidence against the carrier
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_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.
JOHNSON et al. v. CHESAPEAKE & O. RY. CO.
No. 6213.
United States Court of Appeals Fourth Circuit.
Argued April 3, 1951.
Decided April 10, 1951.
Henry E. Howell, Jr., Norfolk, Va. (Jett, Sykes & Howell, Norfolk, Va., on brief), for appellants.
Hewitt Biaett, Richmond, Va. (Leigh D. Williams, Norfolk, Va., and Horace L. Walker, Richmond, Va., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal from an order denying an injunction to restrain the Chesapeake and Ohio Railway Company from abandoning its ferry boat passenger service between Newport News- and Norfolk and Portsmouth in the State of Virginia. The abandonment of this service had been authorized by the State Corporation Commission of Virginia; but injunction was sought because the abandonment had not been authorized by the Interstate Commerce Commission. The plaintiffs in the court below, appellants here, were two individuals, one an engineer on one of the ferry boats which had been operated in the service, the other a dentist in the City of Norfolk. Neither alleged or proved any such interest in the continuance of the ferry service as would give them standing in court to maintain a suit of this character. L. Singer & Sons v. Union Pacific Railroad Company, 311 U.S. 295, 61 S.Ct. 254, 259, 85 L.Ed. 198. As was well said by Mr. Justice Frankfurter in the case cited: “WHo then is a ‘party in interest’? As a part of the very system through which the national policy is to be achieved, a railroad has been deemed by this Court a ‘party in interest’ to effectuate the railroad policy introduced by the licensing system of the Transportation Act. Texas & Pacific Ry. Co. v. Gulf, C. & S. F. Ry. Co., 270 U.S. 266, 277, 46 S.Ct. 263, 266 70 L.Ed. 578; Western Pacific R. Co. v. Southern Pacific Co., 284 U.S. 47, 52 S.Ct. 56, 76 L.Ed. 160. And one who in a proceeding initiated before the Interstate Commerce Commission has been treated by it as a party to the litigation, cf. Los Angeles Passenger Terminal Cases, 100 I.C.C. 421; Id., 142 I.C.C. 489; Atchison, T. & S. F. Ry. Co. v. Railroad Commission, 283 U.S. 380, 393, 394, 51 S.Ct. 553, 556, 557, 75 L.Ed. 1128, may perhaps .be deemed a ‘party in interest’ in the further pursuit of claims before a court after adverse action by the Commission. Compare Interstate Commerce Comm. v. Oregon-Washington R. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588, and Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869, [1037]. But to allow any private interest to thresh out the complicated questions that arise out of § 1 (18-22) — as, for instance, whether a proposed construction is an ‘extension’ or a ‘spur’, compare Texas & Pacific Ry. Co. v. Gulf, C. & S. F. Ry. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578 — is to invite dislocation of the scheme which Congress has devised for the expert conduct of the litigation of such issues. It also would put upon the district courts the task of drawing fine lines in determining when a private claim is so special that it may be set apart from the general public interest and give the claimant power to litigate a public controversy. These inquiries are so harassing and unprofitable as to be avoided, unless Congress has explicitly cast the duty upon the courts. Against any such implication, in the absence of rather plain language, the whole course of federal railroad legislation and the relation of the Interstate Commerce Commission to it admonishes. The interests of merely private concerns are amply protected even though they must be channelled through the Attorney General or the Interstate Commerce Commission or a state commission.”
The judgment and order of the District Court will be vacated and the cause will be remanded with direction that it be dismissed for lack of jurisdiction.
Judgment vacated and cause remanded with direction to dismiss.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARDING COLLEGE, Respondent.
No. 11850.
United States Court of Appeals, Sixth Circuit.
Dec. 3, 1953.
A. Norman Somers, Asst. Gen. Counsel, Washington, D. C., John F. Lebus, Regional Director, New Orleans, La., George J. Bott, Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, and Ows-ley Vose and Robert H. Hurt, Attys. for the National Labor Relations Board, Washington, D. C., for petitioner.
Before SIMONS, Chief Judge, and! ALLEN and MILLER, Circuit Judges.
PER CURIAM.
This case came on to be heard upon the record and briefs and oral argument of counsel;
And it appearing that the answer to the complaint herein admitted ownership and operation of WHBQ Radio Station by Harding College;
And it appearing by the uncontradict-ed testimony that respondent Harding College exercises complete control over WHBQ Radio Station;
And it appearing that any objection as to the service of the complaint was. waived by the participation of the respondent Harding College in the proceedings and in its argument to the Board;
And it appearing that the findings of the Board as to the existence of the unfair labor practices charged are supported by substantial evidence on the record considered as a whole;
It is ordered that the order of the Board entered June 26,1952, be enforced.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_origin
|
C
|
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.
John R. JONES, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of Virginia State Penitentiary, Appellee.
No. 8356.
United States Court of Appeals Fourth Circuit.
Argued June 23, 1961.
Decided Sept. 14, 1961.
F. D. G. Ribble and Daniel J. Meador, Charlottesville, Va. (court-assigned counsel), for appellant.
Reno S. Harp, III, Asst. Atty. Gen., of Virginia (Frederick T. Gray, Atty. Gen., of Virginia, on brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
This petition for a writ of habeas corpus must be dismissed, for the prisoner is now at large on parole. He is no longer in the custody of the defendant, the Superintendent of the Virginia State Penitentiary, where he had been confined. While indirectly under their supervision, he is not in the physical custody of the members of the Virginia Parole Board, whom the petitioner would substitute as parties defendant, nor of any of their subordinates.
Jones, serving a sentence as a recidivist in Virginia sought his release by attacking one of the underlying convictions. The underlying conviction was imposed upon a plea of guilty, but Jones alleges that he was without the assistance of counsel and was not told of and did not know that he had any right to counsel.
After exhaustion of his state remedies, Jones sought a writ of habeas corpus in the District Court. On appeal from a denial of his petition there, we appointed distinguished counsel to represent him. They have ably presented his contentions, (1) that there were special circumstances which made his conviction without the assistance of counsel fundamentally unfair within the rule of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, and (2) if the circumstances were not special, nevertheless, either Betts v. Brady, has been overruled by Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, or that this court should anticipate the possibility that the Supreme Court, given an appropriate occasion, will overrule Betts v. Brady.
In the meanwhile, Jones became eligible for parole. He signed a parole agreement which provided that he would reside with an uncle and aunt in LaFayette, Georgia, be employed by the uncle as a plumber and report promptly after his release to a Georgia Parole Supervisor at Chatsworth, Georgia. He was then released. It is assumed that he then left Virginia and is now living and working in Georgia.
In the nature of things, the “Great Writ” of habeas corpus ad subjiciendum may issue only when the applicant is in the actual, physical custody of the person to whom the writ is directed. The court may not order one to produce the body of another who is at liberty and whose arrest would be unlawful. The great purpose of the writ is to afford a means for speedily testing the legality of a present, physical detention of a person. It serves no other purpose.
It was in recognition of the nature of the writ and its limitations that the Supreme Court held the writ unavailable to a Naval officer under orders to confine himself to the City of Washington or to persons charged with crime, but at large on bail, or to one confined in prison under a sentence other than the one he seeks to attack. It thus appears that some restraint upon a person’s liberty is not necessarily the equivalent of the physical detention which is a requisite of the writ.
The Supreme Court has considered a case identical to that before us. In Weber v. Squier, 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209, a petition for a writ of certiorari by an applicant for habeas corpus was denied on the .stated ground that the cause was moot, the petitioner having been paroled and being no longer in the warden’s custody.
Our inquiry would end with Weber v. Squier were it not for the fact that the question, though never since precisely before the Supreme Court, has a subsequent history in that court which brings into focus the question presented by the motion before us to substitute as parties defendant the members of Virginia’s Parole Board.
In Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393, the Supreme Court said that a proceeding under 28 U.S.C.A. § 2255 was not rendered moot by the expiration of the term of the sentence and the fact the petitioner, at the time of the hearing, was unconditionally at large. In saying so, it referred in summary fashion to the earlier eases of Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196, and United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, though in the proceedings involved in those cases there was no custody requirement.
Fiswick, an alien, sought to overturn his conviction by a direct appeal. It was that proceeding which came before the Supreme Court on certiorari. Meanwhile, he fully served his term and was released. It was held that the cause was not rendered moot because the conviction subjected him to deportation in the event the crime was found to be one involving moral turpitude.
Such proceedings on direct review of a conviction were never thought to involve the custody requirements of habeas corpus.
Morgan received in a state court a longer sentence than otherwise would have been imposed because of an earlier federal sentence which had been fully served. He sought a writ of coram nobis to review the federal court conviction. A majority of the court held that writ available under those circumstances. The decision in Morgan supports the conclusion that the custody requirement implicit in habeas corpus is not essential in coram nobis, but it does not suggest that the custody requirement may be disregarded in habeas corpus or in a proceeding under § 2255.
In Pollard, there was no reference to the custody requirement of § 2255 which, by its terms, is made available to a “prisoner in custody under sentence * * * claiming the right to be released * The brief reference to the Fiswick and Morgan cases suggests the court then thought a § 2255 proceeding comparable in these respects to direct review and coram nobis proceedings.
Of course if Pollard is authoritative, if a former federal prisoner whose term is fully served can obtain review of his conviction under § 2255, a parolee whose term has not yet expired is entitled to the same relief. The Court of Appeals for the Ninth Circuit, relying on Pollard, so held in two cases. Indeed, that court allowed habeas corpus, for it recognized no difference in the custody requirement of habeas corpus and § 2255.
The Supreme Court then decided Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L.Ed.2d 407, in which it held the custody requirement of § 2255 comparable to that of habeas corpus. A prisoner serving the first of three consecutive sentences was held to be without standing to question, under § 2255, the legality of the third sentence which he had not then begun to serve. The Court followed its earlier decision in a habeas corpus case involving similar circumstances. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238.
The situation was clarified and Pollard laid to rest by Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963. Parker fully served the term of his Texas sentence while fruitlessly seeking in state and federal courts a hearing on his contention that the sentence was illegal. A majority of the court, per curiam, dismissed the habeas corpus case on the ground that Parker’s release made it moot. It explained Pollard as having gone off upon an “unconsidered assumption” that § 2255 relief was available to one not in custody contrary to the later decision, after full consideration, in Heflin. It relied upon and followed Weber v. Squier.
In his dissenting opinion, the Chief Justice recognized that this case was indistinguishable from Pollard. He thought Pollard and Heflin reconcilable, and he sought to explain Weber v. Squier on the limited ground that the parolee was no longer in the custody of the warden, the only official then before the court, leaving open the question of whether the parolee was still in the custody of some other official.
Clearly, however, the majority in Parker v. Ellis did not accept the minority’s explanation of Weber v. Squier. The majority did not expressly overrule Pollard, though the two cases seem plainly inconsistent, for it thought Pollard already overruled by Heflin.
We, of course, must follow the majority in Parker v. Ellis. We accept Weber v. Squier, as it did, as meaning a parolee is not in such custody as is required for habeas corpus. We find nothing of substance left in Pollard in the light of the subsequent decisions in Heflin and Parker v. Ellis.
With the exception of the two cases in the Ninth Circuit following Pollard, the Courts of Appeals have consistently held that a paroled state prisoner is not in such custody as to permit him to seek a writ of habeas corpus in the federal courts. The Ninth Circuit, in the same year in which, relying upon Pollard, it decided Egan v. Teets, emphatically held in a different context that one on parole is not in custody. Seven of the Courts of Appeals have reached that conclusion. There is no dissenter among them. All agree that, if custody is a requirement of the writ, a state parolee cannot qualify-
Of particular importance in this case, involving a Virginia parolee, is the decision of this court in Whiting v. Chew, 4 Cir., 273 F.2d 885. There, a Virginia parolee, confined in Ohio, sought a writ of habeas corpus directed to the Director of the Virginia Parole Board for the purpose of removing a detainer filed by the Virginia Parole Board with Ohio prison officials. We held habeas corpus unavailable because the petitioner was not in the actual or constructive custody of Virginia’s parole official.
We adhere to that decision. This petitioner, living with his uncle in Georgia and working there is not in such custody of Virginia’s parole or prison officials as to support a writ of habeas corpus directed to them.
One subsidiary question remains to be mentioned.
It is contended that the petitioner is in the custody of Virginia’s Parole Board because Virginia’s statute says he is. Section 53-264 of Virginia’s code provides that its prison official shall release “into the custody of the Parole Board” any prisoner subject to parole when ordered to do so by the Parole Board. It is not clear that this is not a procedural provision to obtain the prisoner’s release from all custody, but for present purposes we may assume that Virginia would interpret it to be comparable to the provisions of 18 U.S.C.A. § 4203, applicable to Federal parolees.
Addressing itself to a different problem, the Supreme Court said in Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 44, 68 L.Ed. 247:
“ * •» * The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term, less allowance, if any, for good conduct. While this is an amelioration of punishment, it is in legal effect imprisonment.”
Thereafter, Judge Learned Hand said in a dictum, “it is conceivable” that a federal parolee might have a right to have his conviction reviewed by habeas corpus because the statute said he was in custody. One such parolee actually realized what Judge Hand thought conceivable. Because of the provisions of 18 U.S.C.A. § 4203, the Court of Appeals for the Second Circuit held that the proceeding to review the conviction of a federal prisoner did not become moot when he was paroled.
Respectfully, we disagree. It is not the labels a statute attaches but the substantive relationships it creates which are of importance. Whether or not Virginia’s statute provides a hypothetical custody of her Parole Board, the fact is that the petitioner is lawfully at large in Georgia. From time to time, he must report to a Georgia parole officer and he should not change his residence or his employment without the prior or subsequent approval of that officer. Otherwise, he is as free as any other citizen to do as he pleases and go where he pleases. His status is predominantly one of liberty. If he should commit a crime, his parole may be revoked, but any other citizen would be subject to arrest for the same offense. The overriding point is that Virginia’s Parole Board cannot revoke his parole or compel his return to Virginia unless the parolee, himself, commits an act which would subject any citizen to arrest and confinement or ignores the other minimal terms of his parole.
Unquestionably, he is under some duty and restraint inapplicable to other citizens, but, as unquestionably, absent a violation of the terms of his parole, Virginia’s Parole Board has neither the right nor the power to produce his body in the District Court for the Eastern District of Virginia. By his own volition, Jones could appear in the court in Virginia, and his consent is essential to the production of his body there.
To attach significance to a declaration of custody which, at best, is highly technical, hypothetical and insubstantial, would prefer empty labels to a realistic appraisal of actualities. This we need not do. What formal declarations a state elects to incorporate in her statutes, if they do not affect substantive rights and relations, should not, and do not, control the availability of the writ of habeas corpus in the federal courts. If the declaration creates a technical custody, it is not the kind of custody which is an essential of habeas corpus.
Since the petitioner is no longer in custody, this habeas corpus proceeding is moot.
Appeal dismissed.
. The Dean of the Law School of the University of Virginia and another member of the faculty of that school.
. Supervision by parole officials of Georgia had been arranged under the provisions of the Uniform Act for Out-of-State Parolee Supervision.
. See, generally, III Blackstone’s Commentaries, 129, et seq. (1 Ed. 1768).
. See Heflin v. United States, 358 U.S. 415, 421, 79 S.Ct. 451, 3 L.Ed.2d 407 (concurring opinion).
. Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277.
. Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497; Stallings v. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940.
. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407.
. Dickson v. Castle, 9 Cir., 244 F.2d 665; Egan v. Teets, 9 Cir., 251 F.2d 571.
. See footnote 8, supra. In neither of those cases was it held that .a parolee is in custody. In each, as in Pollard, the custody requirement was unmentioned.
. United States ex rel. St. John v. Cummings, 2 Cir., 233 F.2d 187; Adams v. Hiatt, 3 Cir., 173 F.2d 896; Whiting v. Chew, 4 Cir., 273 F.2d 885; Van Meter v. Sanford, 5 Cir., 99 F.2d 511; Siercovich v. McDonald, 5 Cir., 193 F.2d 118; Factor v. Fox, 6 Cir., 175 F.2d 626; Johnson v. Eckle, 6 Cir., 269 F.2d 836; Weber v. Hunter, 10 Cir., 137 F.2d 926.
. See Footnote 8, supra.
. Strand v. Schmittroth, 9 Cir., 251 F.2d 590.
. 18 U.S.C.A. § 4203 provides that a federal parolee is “in the legal custody and under the control of the Attorney General, until the expiration of the maximum term or terms for which he was sentenced.”
. United States v. Bradford, 2 Cir., 194 F.2d 197, 200.
. United States v. Brilliant, 2 Cir., 274 F.2d 618.
. See Van Meter v. Sanford, 5 Cir., 99 F.2d 511; Factor v. Fox, 6 Cir., 175 F.2d 626.
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_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.
UNITED INSURANCE COMPANY OF AMERICA, a Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 12577.
United States Court of Appeals Seventh Circuit.
Dec. 11, 1959.
Bernard G. Segal, Philadelphia, Pa., E. B. McGuinn, Chicago, Ill., Teschke, Burns, Maloney & McGuinn, Chicago, Ill., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Almore H. Teschke, Chicago, Ill., Irving R. Segal, Josephine H. Klein, Philadelphia, Pa., for petitioner.
Stuart Rothman, General Counsel, Marion L. Griffin, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Frederick U. Reel, Attorney, National Labor Relations Board, Washington, D. C., for respondent.
Isaac N. Groner, Washington, D. C., for amicus curiae.
Before DUFFY, KNOCH, and CASTLE, Circuit Judges.
DUFFY, Circuit Judge.
This is a petition to review a decision and order issued by the National Labor Relations Board (Labor Board) under § 10(f) of the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C.A. §§ 141-166, and a cross-petition by the Labor Board for enforcement of that order.
The instant case was designated before the Labor Board as No. 4-CA-1576. The Board issued an order requiring United Insurance Company of America (United) to bargain collectively with Insurance Agents’ International Union, AFL-CIO (Union) as the collective bargaining agent for the “Licensed Debit Agents” who serve United in Pennsylvania.
On July 22, 1953, Local No. 5, Insurance Workers of America, CIO, filed a petition with the Labor Board seeking certification as collective bargaining agent for United’s debit agents operating in Philadelphia. This proceeding was designated Case No. 4-RC-2052. On August 26, 1953, Insurance Agents’ International Union, AFL, filed a petition seeking certification as collective bargaining agent for United’s debit agents in Harrisburg, Pittsburgh and Hanover, Pennsylvania. The designation of this proceeding was Case No. 4-RC-2110. These two petitions were consolidated for a hearing which was held on October 12 and 13, 1953.
In a decision dated May 11, 1954 (108 NLRB 843) the Board held that the debit agents were employees of United rather than independent contractors. The Board further held that the appropriate bargaining unit consisted of all debit agents serving United throughout the state of Pennsylvania. Since the CIO Union did not wish to appear on a ballot for a state-wide unit, its petition for certification was dismissed by the Board. On May 28, 1954, the AFL Union withdrew its petition for certification. No election was held. No further proceedings were had in these cases.
Two and a half years after the original certification petitions were voluntarily dismissed and withdrawn respectively, the present Union filed a petition seeking certification as collective bargaining agent for all the debit agents serving United in Pennsylvania. An agreement was entered into between United and the Union for a consent election.
An election and a re-run election were held. The Union won the re-run election and on May 7, 1957, the Acting Regional Director of the Labor Board certified the Union as collective bargaining agent for all debit agents serving United’s industrial insurance policies in Pennsylvania. United refused to bargain, claiming it was under no obligation to bargain with the Union because the “licensed debit agents who work in Pennsylvania * * were and are independent contractors and not employees within the meaning of the Act.”
United is an Illinois corporation engaged in the insurance business. It issues commercial and industrial life, health and accident, and hospitalization insurance policies. By Pennsylvania law, industrial life insurance is sold in policies of less than $1000 on a weekly premium basis. Debit agents are engaged primarily in selling and collecting premiums on industrial life insurance policies issued by United. However, they, at times, collect premiums on other types of insurance policies issued by United.
In order to sell insurance, an agent must be licensed by the state. The license authorizes him to sell specific types of insurance for a specific company. However, some agents are licensed to sell insurance for more than one company.
The principal issue litigated at the hearing before the Labor Board was whether the debit agents were employees of United or independent contractors. In many respects, a debit agent has the attributes of an independent contractor. After being introduced to his initial policy holders by his superintendent, he is largely on his own. He sets his own hours of work and work days. He pays his own expenses such as transportation, advertising, postage and gifts to policy holders or prospects.
On the other hand, there are a number of aspects of the duties of debit agents which might indicate their status is that of employees of United. The Labor Board so found in both the 1954 Proceedings and in the instant case. However, we do not reach that question. We are met with a threshold question of whether United has been denied procedural due process.
It is true that in the 1954 Proceedings (4-RC-2052 and 4-RC-2110) the Labor Board determined the debit agents were employees of United, but United had no opportunity to have that adverse decision reviewed. The petition of one Union was dismissed because that Union did not wish to appear on a ballot for a statewide election, and the other Union, with the Labor Board's consent, withdrew its petition before an election was held. Yet, two and a half years later, a Board consisting almost completely of different members than those who considered the 1954 Proceedings, gave binding effect to the earlier Board decision.
The Labor Board is a continuing body. Changes in membership are usually of no moment as to decisions made by the Board. But the trial examiner set the tempo of the instant proceedings when he took the position that he was bound by the Findings of Fact made by the Labor Board in the 1954 Proceedings. He did not make any findings or rulings of his own, nor express an opinion on the basic question of whether debit agents were employees of United within the meaning of the Act. In its final order, the Labor Board approved the examiner’s rulings.
We hold the decision of the Labor Board in the 1954 Proceedings could not serve as a substitute for evidence in the instant proceeding. We approve the rationale of the decision of the District Court for the District of Columbia (Connecticut Light & Power Co. v. Leedom, D.C.1959, 174 F.Supp. 171). The Court there said, at page 174: “ * * * And, as indicated by the defendant, the Board itself has held that a prior Board determination of employee status is not binding in future representation proceedings, especially where, as here, there is no bargaining history (Citing cases). A fortiori, a prior Board determination of employee status in a representation proceeding would not be binding in a future unfair labor practice proceedings.”
The order of the Labor Board must be and is set aside and remanded for a full hearing and decision based upon a consideration of all relevant evidence. The cross-petition of the Labor Board for enforcement of its order is denied.
. These cases will be referred to as “The 1954 Proceedings.”
. Paragraph 13 of that Agreement provided: “By consenting to this Agreement (United) does not waive its position that licensed debit agents of United Insurance Company of America are independent contractors and not employees but waives the right to raise such issue in these proceedings.”
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_alj
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court support the decision of an administrative law judge? 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. MARLAND ONE-WAY CLUTCH CO., INC., Respondent. MARLAND ONE-WAY CLUTCH CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 74-1348, 74-1349, 74-1413 and 74-1414.
United State Court of Appeals, Seventh Circuit.
Argued Nov. 4, 1974.
Decided June 24, 1975.
As Amended on Denial of Rehearing and Rehearing En Banc Sept. 3, 1975.
Elliott Moore, Deputy Associate Gen. Counsel, Frank C. Morris, Jr., and Abigail Cooley, N. L. R. B., Washington, D. C., for N. L. R. B.
L. Lee Burks, Jr., Park Forest, 111. for Marland One-Way Clutch Co., Inc.
Before MARIS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.
Senior Circuit Judge Albert B. Maris of the United States Court of Appeals for the Third Circuit is sitting by designation.
PELL, Circuit Judge.
These cases are before the court upon applications for enforcement and cross-petitions for review of two orders of the National Labor Relations Board. In case 13-CA — 10161(61)(74-1348, 74-1413) the board found that the company violated § 8(a)(1) and (5) of the National Labor Relations Act (29 U.S.C. § 151 et seq.) by withholding payment of third quarter bonus payments in 1970 without giving the union an opportunity to bargain and by refusing to supply information regarding the method used to compute the amount of bonus payments. The board originally ordered, inter alia, that the third quarter bonus be paid, that relevant information be supplied, and that the company bargain in good faith regarding future bonus payments. Subsequently the board modified its order and ordered payment of all bonuses unilaterally withheld. In. 13 — CA—10823(23)(74r-1349, 74 — 1414) the board found the company violated § 8(a)(1) of the Act by creating the impression of surveillance of the union and threatening plant closure.
I. FACTS
Marland One-Way Clutch Co., Inc. is an Illinois corporation engaged in the manufacture of mechanical clutches. The Tool & Die Makers Lodge No. 113, International Association of Machinists and Aerospace Workers, AFL — CIO, was certified on September 14, 1970. The union’s efforts to organize the company’s employees were opposed by management, but the alleged violations occurred after the election.
From 1947 through 1967 the company paid a bonus to employees at Christmas. In 1968 the company began paying the bonus in quarterly installments. On several occasions, the company wrote letters or memoranda to the employees which upon reasonable interpretation could have caused the employees to think of the bonuses as part of their compensation. Some of these letters related the bonuses to hourly rates and by adding the bonuses to regular hourly rates arrived at a “Marland hourly rate total.” The bonuses were paid quarterly until the third quarter of 1970, shortly after the union election, when no payment was made. The third quarter bonus has since been paid in compliance with the board’s order, but no bonuses have been paid for subsequent quarters.
When the bonus was not paid, the union representative questioned the company representative about the bonus. He was told that the decision at the particular time was to withhold payment and that the bonus was discretionary. The union representative then requested information on the bonus. The company responded:
“Bonus: Christmas bonus is discretionary and based on management evaluation of business.”
Shortly after that colloquy, on October 20, 1970, the union filed charges with the board which resulted in the 61 case.
On December 30, 1970, the union wrote the company with a view to further negotiations on the bonus, making the following request:
“[W]e are hereby requesting that the Company submit in written form, as soon as possible, all information relating in any way to the Method the Company has used in Computing the Christmas bonus in the past for the employees we now represent.”
The company responded that its position on the bonus was detailed in its Answer to Complaint in the 61 case.
The Trial Examiner (now Administrative Law Judge) (ALJ) in the 61 case found that the bonuses were wages within the meaning of the Act and were therefore a subject of mandatory bargaining; that the decision to withhold the bonus was made and executed without giving the union an opportunity to bargain; and that Marland had failed to supply information needed to bargain intelligently. The board subsequently adopted the findings and conclusions of the ALJ.
The 23 action arose from two conversations between Joseph Marland, President of Marland One-Way Clutch Co., and John Russell, an employee of the company.
The first conversation occurred on July 15, 1971. Russell wanted to borrow $500.00 from profit-sharing funds. Mar-land explained that this was not possible but said he would personally lend him the money. Russell testified:
“We discussed a few other little problems for awhile and then right before I was ready to leave he explained to me that if a certain person hadn’t started the union over there, that maybe I wouldn’t be short of funds. . And then he said to me that he thought if I were to start a letter, go around to some of the fellow’s houses and talk to them about the amount of profit sharing that this man had, that it would be a nice idea if we were to ask him to share his profit sharing with the rest of us due to the fact that he was the cause of us loosing [sic] that money.”
Russell also testified that Marland handed him a piece of paper which had the following notations on it:
27,000 Payroll loss
7,400 Stan Profit Share
The ALJ found that the wages lost were probably a reference to a strike that had occurred. The ALJ found that Mar-land’s remarks were no more than a contention that as- a result of unionization, employees went on strike and lost wages as a result and that this could not constitute a violation of § 8(a)(1) of the Act. The board disagreed, finding that the conversation constituted a violation because the reference to Stan created an impression of surveillance — the company knew he was the union organizer — and blamed him for financial loss.
The second conversation occurred August 9, 1971, when Russell, Marland, and their spouses went to the Russell residence after a religious retreat they had attended together. Russell testified that Marland stated during their conversation: “I’ll promise you the men will never get their bonus and I’ll sell the place before I settle.” Marland denied he made that statement though he admitted he said he was disappointed that relations were not as harmonious as before and that he mentioned that he had received offers from several conglomerates to merge. The ALJ carefully analyzed this conflicting testimony, partially crediting Russell to the extent of being persuaded that Marland did speak to Russell about the bonus but not to the extent of being persuaded “that the facts as to exactly what was said has been presented by Russell.”
He concluded:
“Under such circumstances, I do not find the evidence to be reliable to establish that Marland was more than arguing that he would not settle the case and pay the bonus as a result of settlement. In effect it was a statement of the legal position he was taking in litigation. Such conduct is not violative of Section 8(a)(1) of the Act. I so conclude and find.”
The board interpreted the conversation as a threat of plant closure which therefore violated the act.
Additionally, the 23 action complaint initially sought, according to the ALJ, an order directing the company to pay the employees for all bonus payments withheld that have accrued up to the decision. The ALJ dismissed this portion of the complaint on the grounds that as a matter of sound judicial administration of the Act, a complaint proceeding should not be utilized to effect a modification of a prior order of the board (the 61 order) or to determine compliance issues. The general counsel now concedes this was correct.
Later, the general counsel sought and obtained the modification of the 61 order which is now in issue. The modification changed the language in the affirmative action section of the order. The relevant section originally ordered the company to:
“Make whole the employees in the appropriate unit in 1970 for any loss they may have suffered of the third quarterly bonus payment in the manner set forth in the section of this Decision entitled ‘The Remedy.’ ”
After modification the section read as follows:
“Make whole employees in the appropriate unit for any losses they may have suffered by reason of Respondent’s unilateral withholding of any bonus payments, in the manner set forth in the section of the Administrative Law Judge’s Decision entitled ‘The Remedy.’ ”
II. ORIGINAL 61 ORDER
The company argues that the original 61 order should be denied enforcement on three grounds. First, it is contended that the bonus did not equate with “wages” within the meaning of the Act. Second, according to the company, the order is moot — the company has paid the third quarter bonus, it has bargained in good faith within the meaning of the Act, and it has supplied the union with information. Finally, with respect to the section of the order dealing with information, the company argues that enforcement would deprive it of due process because the failure to supply information was not charged in the complaint.
A. Wages or Gratuity
It is clear that bonuses and fringe benefits may constitute wages within the meaning of the Act. Beacon Journal Publishing Co. v. NLRB, 401 F.2d 366, 367 (6th Cir. 1968); NLRB v. Central Illinois Public Service Co., 324 F.2d 916, 918-19 (7th Cir. 1963). Upon the basis of the evidence as set forth hereinbefore, we have no difficulty in saying that there is a substantial basis in the record for the board’s finding that the bonus payments were wages within the meaning of the Act.
B. Mootness
Circumstances may arise where an enforcement proceeding will become moot because a party can establish that there is no reasonable expectation that a wrong will be repeated. NLRB v. Raytheon Co., 398 U.S. 25, 27, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970), citing United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). More commonly, “[a] Board order imposes a continuing obligation; and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree.” NLRB v. Mexia Textile Mills, 339 U.S. 563, 567, 70 S.Ct. 826, 829, 94 L.Ed. 1067 (1950).
It appears from the record that the payments of the third quarter bonus have been completed and that enforcement is not required of that portion of the order. Nevertheless, this is only a portion of the order. That the company must furnish the union with certain information is not a new concept. Taylor Forge & Pipe Works v. NLRB, 234 F.2d 227, 231 (7th Cir. 1956), cert. denied, 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238; NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); Mallory & Co., Inc. v. NLRB, 411 F.2d 948, 953 (7th Cir. 1969). The company does not argue to the contrary but rather argues that it has already supplied the information sought by the union and no further information is in existence.
Most, if not all, of the company’s reliance upon mootness is founded upon the history of the bargaining and the information furnished during bargaining sessions. This evidence, if the company’s version is correct in fact, would be pertinent and material in a compliance proceeding. The complaint in the 61 case, however, is concerned with the period following the union’s certification and running to a time shortly after the first bargaining meeting in October 1970. Since the board has chosen to pursue enforcement of the 61 order after an earlier withdrawal of an application for enforcement, and being of the opinion that we cannot say that there was not substantial evidence to support the 61 order for the period it involved, we defer to the board’s determination that there should be the imposition of a continuing obligation on the company. We decline to speculate that the likelihood of repeated conduct is so remote as to mandate disposition of the case on the ground of mootness. Clearly the company had more specific information about the payment of the bonus than that it was discretionary and not computed on a mathematical formula. The union was entitled to this information. Whether it received it at sometime subsequent to the order is, as we have observed above, a matter for compliance proceedings.
C. Due Process
The company argues that enforcement of the board’s order with respect to disclosure of information would violate due process because this was not charged in the general counsel’s complaint. The company relies on NLRB v. Bradley Washfountain Co., 192 F.2d 144 (7th Cir. 1951). The general counsel argues that the refusal to bargain language in the complaint is sufficiently broad to include the refusal to supply information and in any event full litigation satisfies the requirements of due process. The board relies on NLRB v. Duncan Machine Works, Inc., 435 F.2d 612, 615 (7th Cir. 1970), and NLRB v. Scenic Sportswear, 475 F.2d 1226 (6th Cir. 1973), among others. The board also argues that this issue is not properly before this court because the company did not file exceptions to the ALJ’s findings on the issue. The company responds that the issue is before the court because the general counsel admitted compliance and that the ALJ limited the scope of the hearing to the extent that it cannot be said that there was a full hearing on the issue.
The position of the board must be upheld. As related in part I of this opinion, the company’s response to the union’s request for information was to refer the union to the company’s Answer to Complaint. That the company included information on this issue in its answer shows it knew the matter was before the board. In addition, substantial evidence on the failure to supply information was adduced during the hearing. The limitations imposed by the ALJ did not prevent testimony on the issue but rather prevented introduction of evidence related to bargaining on other issues. In any event, the company makes no specific showing of how it was mislead by the actions of the board. If the company is relying on the general counsel’s motion for dismissal of the original enforcement proceedings, its reliance is misplaced; any argument to the board would have had to occur before those proceedings were brought. This is not the type of extraordinary circumstance in which failure to raise objections before the board can be overlooked. See § 10(e) of the National Labor Relations Act.
III. MODIFIED 61 ORDER
A. Power of the Board to Modify
The company argues that the board had no power to modify its order because § 10(d) of the Act, which authorizes modification, only authorizes it “until the record in a case shall have been filed in a court.” Under the company’s reasoning the board lost the power to modify when the' record was filed with this court in the original enforcement proceeding. The general counsel argues that the board regained jurisdiction to modify when we granted leave to dismiss the enforcement proceedings without prejudice and that the purpose of exclusive vesting of jurisdiction in the court — preventing conflicts of authority, International Union of Mine, Mill and Smelter Workers, Locals 15, 17, 107, 108, and 111 v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335, 342, 65 S.Ct. 1166, 89 L.Ed. 1649 (1945) — would not be served by this interpretation because once the court dismissed the proceedings, the appellate court was without jurisdiction to enter orders. People ex rel. Wait v. Bristow, 391 Ill. 101, 62 N.E.2d 545 (1945). We agree with the general counsel’s analysis and conclusions. Ford Motor Co. v. NLRB, 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221 (1939), cited by the company, is not in point. In that case a petition for review had been filed so that the board could not terminate the court’s jurisdiction by ending enforcement proceedings. Here the company had filed no petition for review at the time of the withdrawal, and upon the granting of the motion to withdraw without prejudice, this court’s jurisdiction terminated.
B. Enforcement of Modification Denied
The effect of the modification is contested by the parties. The company argues that the board is improperly trying to dictate the substantive terms of a contract by requiring payment of bonuses. NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 490, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). The general counsel argues that the board is not trying to dictate substantive contract terms, that it is only trying to clarify the original order, and that the modification makes no substantive change in the original order. This issue was explored extensively at oral argument; the parties are much closer to agreeing to the substantive requirements of the law than they are to agreeing on appropriate language to express it.
Substantively, the board’s position, as stated during argument, is that if an employer gives notice of a proposed decrease in compensation, which presumably would include regularly given bonuses, and bargains in good faith on the issue thus created, then the employer’s action in putting the decrease into effect is not unilateral action violating the Act. The general counsel offered a caveat to this as applied to the present case: the company must bargain as though the bonus was in effect, not as if it already had been eliminated; only in this manner, it was asserted, can the status quo ante be established as it existed before the initial unfair labor practice. The company agreed with the basic principle of notice and good faith bargaining as stated above but disagreed to the extent that the general counsel seemed to say that the bargaining must reach an impasse before the decrease could be put into effect.
The board disclaims that in modifying the section of the 61 order it was attempting to require the company to pay all bonus installments to date. However, if this was not the intent, we have difficulty in determining just why the board felt the necessity to make the modification. The original order directed the payment of only the third quarter bonus. It further ordered that the company cease and desist from refusing to bargain and from unilaterally terminating bonus payments. The order also directed that the bargaining include the “Fourth quarter installment of the 1970 Christmas bonus, and any bonus installments,” and to supply any information relevant and reasonably needed by the union in order for it to bargain intelligently on bonuses.
In our opinion, the original order needed no modification or clarification. If the company unilaterally terminated bonus payments under circumstances which would be in violation of the original order, and we will advert further to what those circumstances are, then the board can appropriately determine the matter in compliance proceedings. The determination of whether the company is obligated to make whole any employees for not receiving the bonus subsequent to the 1970 third quarter bonus was prematurely reached by the modification. If, as the board now states, it was not intended that the modification was to serve as an order that any particular quarterly bonus automatically should have been paid, then the modification was unnecessary. As it is stated, the modified section is too vague to inform the company what its obligations might be as to subsequent quarters.
Since we are enforcing the order in the 61 case as originally entered, we find it necessary to clarify the circumstances pertaining to the cease and desist order on unilateral terminations of the bonus payments. In enforcing that part of the order, we do so on the construction that it does not prohibit a termination of bonus payments under circumstances in which the company has given notice of discontinuance to the union and has bargained in good faith on the matter of discontinuance. As the order was originally written, it might appear overly broad because it is likely that under the circumstances outlined a discontinuance would be unilateral in the sense that it would not be bilateral, i. e., agreed upon by the company and the union. We construe the cease and desist order more narrowly, as apparently does the board. The only area of disagreement appears to be whether the bargaining must be to an impasse before the company can unilaterally terminate.
The board cites respectable authority from this circuit and elsewhere to the effect that employers may not without violating § 8(a)(5) and (1) unilaterally take action on a mandatory subject of bargaining, such as wages, unless a genuine impasse, not caused by the failure of one of the parties to bargain in good faith, has been reached. For example, United Fire Proof Warehouse Co. v. NLRB, 356 F.2d 494, 497 (7th Cir. 1966); NLRB v. Palomar Corp., 465 F.2d 731, 735 (5th Cir. 1972); NLRB v. U. S. Sonics Corp., 312 F.2d 610, 615 (1st Cir. 1963); and NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 268 (2d Cir. 1963), cert. denied, 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64.
The company counters with authorities which support the position that, if, during the course of bargaining, notice has been given of proposed unilateral action and the union has been afforded a reasonable opportunity to bargain concerning the proposed change, the company may then lawfully take the proposed action. For example, NLRB v. United Nuclear Corp., 381 F.2d 972, 976 (10th Cir. 1967); NLRB v. Cone Mills Corp., 373 F.2d 595 (4th Cir. 1967); Lane v. NLRB, 135 U.S.App.D.C. 372, 418 F.2d 1208 (1969).
The issue before us, however, does not require the resolution presented in this area of disagreement between the parties. That resolution no doubt will be appropriate in a compliance proceedings if it is determined that such is necessary. In the - 23 case, as w.e have previously noted, the board agreed with the ALJ that a complaint proceeding should not be utilized to determine compliance issues. Yet more than a year later by purporting to modify the original 61 order, the board, it appears to us, has done exactly that, i. e., determined that the company in the intervening years has not complied with the 61 order. Unless the company is locked-in to a perpetual payment of bonuses, irrespective of the extent of or the good faith of bargaining, which we do not understand the board to be contending, the resolution of the question of compliance with the 61 order should be determined on the basis of the history of the bargaining as developed in an appropriate due process hearing and not by the administrative modification here attempted. We therefore in the present proceeding are denying enforcement of the make-whole modification order of January 9, 1974.
IV. THE 23 ORDER
The company does not argue that surveillance, creating the impression of surveillance, or coercion is lawful; but rather it argues that there was not sufficient evidence in the record to find these violations. We agree.
In their briefs the parties dispute the standard of review for the conclusions of the board. We had occasion to consider the proper standard in NLRB v. Wisconsin Aluminum Foundry Co., 440 F.2d 393 (7th Cir. 1971):
“The standard which this court must follow in reviewing the Board’s order is whether on the record as a whole there is substantial evidence to support its findings; the meaning of ‘on the record as a whole’ encompasses not only testimony of witnesses and the Board’s findings and conclusions but also the report of the trial examiner. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). This court may not displace the Board’s choice between two fairly conflicting views even though we might justifiably have made a different choice had the matter been before us de novo. Universal Camera Corp., supra at 488, 71 S.Ct. 456, quoted in NLRB v. Walton Manuf. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962). However, we are not barred from setting aside a Board decision when we cannot ‘conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.’ Universal Camera Corp., supra.” 440 F.2d at 398.
A special problem arises when the ALJ and the board disagree. In Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), the Supreme Court held that the substantial evidence test is not modified when the court and the ALJ disagree but that the ALJ’s decision should be given the support it intrinsically commands and that this largely depends on the importance of credibility in a particular case. 340 U.S. at 495-96, 71 S.Ct. 456. Of necessity in a ease such as this, the right of the employer to speak must be balanced against the rights of the employees under the National Labor Relations Act to organize. Recognizing the sensitivity of employees to rumors of plant closings, NLRB v. Gissel Packing Co., 395 U.S. 575, 619-20, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the company is nevertheless entitled to express its opinions in friendly conversations so long as its statements do not contain implied threats. See Lake City Foundry Co. v. NLRB, 432 F.2d 1162 (7th Cir. 1970).
To establish surveillance or to create the impression of surveillance as unfair practices requires more than showing that the employer knows who started the union. None of the cases cited by the general counsel establish the contrary; each involved patterns of interrogation or threats to use knowledge. NLRB v. Merchants Police Inc., 313 F.2d 310, 311-12 (7th Cir. 1963) (statement that employer knew who was at union meetings coupled with a statement that “some” might lose jobs constituted coercion); NLRB v. Drives, Inc., 440 F.2d 354 (7th Cir. 1971), cert. denied, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (interrogation and statement that employer knew who union members were and they were going to get fired eventually); NLRB v. Brown Specialty Co., 436 F.2d 372, 374 (7th Cir. 1971) (repeated questioning and statement that a supervisor knew who started the union business and that things were going to change); NLRB v. Borden Co., 392 F.2d 412 (5th Cir. 1968) (interrogation, home visits, speeches declaring knowledge of union activities and that employees would suffer); Trumbull Asphalt Co. v. NLRB, 314 F.2d 382 (7th Cir. 1963), cert. denied, 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (interrogation, encouraging spying).
There is no question but that on the date of the July 15, 1971, conversation between Marland and Russell the former was aware of the identity of the employee who had been the principal organizer in the union’s effort to achieve representation status. We find no basis, however, in the findings of the ALJ for the inference that the knowledge of identity was acquired by surveillance nor that it would have created the impression in the mind of Russell that there had been surveillance.
The conversation in question occurred some 10 months after the union had been certified. This was not a case involving claimed surveillance during the course of an organizational drive. Russell’s testimony indicated no surprise that Marland was aware of Stan’s organizational efforts. The testimony indicated nothing more than that Russell matter-of-factly knew that Terrutty was the organizer. Indeed, Terrutty, himself, took the stand in the same hearing at which Russell testified and said he “organized the plant . . . and was elected as a steward of Lodge 113.”
The transcript of the 61 hearing, held on February 18, 1971, (approximately 5 months prior to the Russell-Marland conversation) established through the testimony of the union’s business agent that at the October 2, 1970, negotiation meeting (the first bargaining session) Terrutty was one of the two key men representing the union. There is no reason for believing that Terrutty did not continue to participate in subsequent negotiating sessions.
At the 61 hearing in February 1971, the general counsel introduced as exhibits copies of correspondence about the bonus which had been sent to employees during the latter part of 1970. The exhibits were those which had been sent to and received by Terrutty. It clearly was no secret by mid-1971 that the number one person in the local union was Stanley Terrutty.
Neither this court nor the board should ignore the realities of the world in which we live. It is beyond comprehension that in a plant of some 30 employees everyone connected with the factory would not have been aware of who had engaged in organizing the employees nearly a year earlier without the necessity of any resort to illegal spying. The mere fact that the company president indicated knowledge of the identity of the moving spirit in the organizing effort is too exiguous a membrane to bear the weight of the inference the board has fastened to it. We hold, therefore, that the board’s order without regard to surveillance is not supported by substantial evidence and enforcement must be denied.
The board’s finding of coercion is based on a teatime conversation between Marland and Russell in the latter’s home following their joint attendance at a religious activity. In our opinion, the board’s order based upon its conclusion of law that the company had threatened the employees with plant closure is not in the context in which the board is free to exercise its expertise in drawing inferences diverse from those drawn by the ALJ. The board obviously was taking the position that the statement Russell said Marland made to him was gospel. This ignores completely a part of the credibility determination by the ALJ. After hearing the witnesses— Russell testifying that Marland used specific language regarding selling the place before he would settle and Marland, who did not deny talking about bonuses, not recalling any discussion on that subject but testifying that there had been conversation in which he had referred to offers to purchase the company — the ALJ credited Russell’s testimony, which after all had not been specifically denied, that bonuses had been discussed. The ALJ, however, did not give the credibility gloss to the words as Russell remembered them, and it is obvious from the record that he credited Marland’s testimony of the context in which the matter of bonuses were discussed. The inferences to be drawn by the board must not be unreasonable, Weyerhaeuser Co. v. NLRB, 311 F.2d 19, 22 (7th Cir. 1962), which in our opinion means, inter alia, that the inference should not be based upon evidence of the inconclusive, weak nature of that in the present case, particularly where the inference ignores completely a part of the credibility determination of the ALJ. As with the first prong of the board’s decision in the 23 case, we declined to enforce because of lack of support by substantial evidence.
In accordance with the foregoing opinion, enforcement is ordered in the 61 case as originally entered, enforcement is denied in that case of the order as modified on January 9, 1974, and enforcement is denied in the 23 case.
. The board had petitioned this court for enforcement, No. 72-1468, but the board subsequently moved to withdraw its application without prejudice, which motion was granted. The company takes the position that it had already complied at the time of the withdrawal; the general counsel states the withdrawal was based on the company’s promise to comply. We are not able to find much of significance in this conflict.
. The company’s answer alleged, inter alia, that it “had paid a voluntary Christmas bonus to all employees both in and outside of the bargaining unit for the calendar years 1968 and 1969, such payment was made on a quarterly basis; that the total amount available for distribution of this Christmas bonus and the amount which each employee received varied among them said amounts being wholly within the discretion [of the company]; that there was no specified or specific formula nor any formal policy regarding eligibility.”
It does not appear to be seriously contended that there was in fact any mathematical formula in existence. On the other hand, it appears that the union during negotiations had received from the company substantial information about the bonuses previously paid, including the fact that the payments averaged out among the shop employees at about 30c per hour.
. At the hearing Stanley Terrutty testified that he was the union steward and organizer and that he was the only person in the shop named Stanley.
. We have difficulty in reading the ALJ’s determination as other than giving some credibility to Marland in denying the specific language Russell attributed to him.
. In July 197
Question: Did the court support the decision of an administrative law judge?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_declarationuncon
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
WEBB v. WEBB
No. 79-6853.
Argued March 23, 1981
Decided May 18, 1981
White, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Powell, J., filed a concurring opinion, in which Brennan, J., joined, post, p. 502. Marshall, J., filed an opinion dissenting in part, post, p. 502.
Mary R. Carden argued the cause for petitioner. With her on the briefs were Edward R. Zacker, Roy M. Sobelson, and John L. Cromartie, Jr.
Manley F. Brown, by appointment of the Court, 449 U. S. 1008, argued the cause and filed a brief for respondent.
Briefs of amici curiae were filed by Harry M. Fain for the American Academy of Matrimonial Lawyers; by Phyllis Gelman, Louise Gruner Gans, and Catherine P. Mitchell for the National Center on Women and Family Law, Inc., et al.; and by John C. Deacon for the National Conference of Commissioners on Uniform State Laws.
Justice White
delivered the opinion of the Court.
This case involves a custody dispute between the mother and father of a minor child. Their dispute has reached this Court because the state courts of Florida and Georgia have reached conflicting results in assigning custody of the child.
On March 8, 1979, petitioner, the mother, filed an action in Florida state court seeking custody of her son. On April 18, 1979, the Florida court entered a judgment granting her custody. On March 23., 1979, respondent, the father, filed an action in Georgia state court also seeking custody. On June 21, 1979, he was awarded custody by the Georgia court. The Georgia Supreme Court affirmed that decision. 245 Ga. 650, 266 S. E. 2d 463.
The mother then filed a petition for writ of certiorari in this Court, raising just one question: “Does Article IV, § 1 of the United States Constitution, demand that Georgia . . . give full faith and credit to a Florida decree rendered immediately prior to Georgia’s acceptance of unqualified jurisdiction?” Petitioner alleged that she had properly raised this federal question in the Georgia courts. Respondent filed a brief in opposition to the petition for certiorari in which he argued that the Full Faith and Credit Clause must give way to the “best interests” of the child in a child custody proceeding. At no point in his brief in opposition did respondent dispute petitioner’s contention that the federal issue had been properly raised below, nor did respondent contend that there was some other jurisdictional bar that would prevent this Court from reaching the question raised in the petition.
Under our Rule 19.1, we no longer require, and in fact disfavor, the filing of the lower court record prior to action by this Court on a petition for certiorari. We are, therefore, largely dependent upon the assertions made by the parties as to what that record will demonstrate concerning the manner in which a federal question was raised below. Because petitioner forthrightly asserted that the federal question had been raised and this assertion was not disputed by respondent, we assumed that there would be no jurisdictional problem in reaching the issue raised by the petition, and we granted certiorari. 449 U. S. 819. It has become clear, however, that the federal question was not raised below and that we are without jurisdiction in this case. We must therefore dismiss without reaching the merits.
Because this case comes to this Court from a state court, the relevant jurisdictional statute is 28 U. S. C. § 1257. As applied to the circumstances of this case, that statute requires that in the state courts petitioner have “specially set up or claimed under the Constitution . . . of . . . the United States” that right which she now seeks to have this Court enforce. 28 U. S. C. § 1257 (3). Similarly our Rule 21.1 (h) requires the petitioner to “specify the stage in the proceedings, both in the court of the first instance and in the appellate court, at which the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed upon by the court.” Our examination of the record convinces us that petitioner failed properly to raise or preserve a claim under the Full Faith and Credit Clause of the Federal Constitution in the Georgia courts.
We note first that nowhere in the opinion of the Georgia Supreme Court is any federal question mentioned, let alone expressly passed upon. Nor is any federal issue mentioned by the dissenting opinion in that court. This Court has frequently stated that when “the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary.” Street v. New York, 394 U. S. 576, 582 (1969); see also Fuller v. Oregon, 417 U. S. 40, 50, n. 11 (1974); Chambers v. Mississippi, 410 U. S. 284, 290, n. 3 (1973); Bailey v. Anderson, 326 U. S. 203, 206-207 (1945). Petitioner argues that the record of this case rebuts this assumption because it demonstrates that she did raise the federal question. Therefore, in her view the State Supreme Court must be understood as having implicitly rejected her federal claim.
Although petitioner did use the phrase “full faith and credit” at several points in the proceedings below, nowhere did she cite to the Federal Constitution or to any cases relying on the Full Faith and Credit Clause of the Federal Constitution. In her amended motion to dismiss in the Georgia trial court, petitioner added the following contention: “Plaintiff herein continues to act contrary to the order of the Superior Court of Berrine County, entered September 22, 1977, and also is acting in violation of the April 18, 1979, order of the circuit court of Alachua County, Florida . . . which order should be accorded full faith and credit by this court, as it was.made pursuant to relevant Florida law, as stated above.” Also, in petitioner’s enumeration of errors to the Georgia Supreme Court, she stated that “the [c]ourt erred in failing to find a Florida decree of April 18, 1979, a valid order in a prior pending action, give such full faith and credit, enforce it by ordering Plaintiff to comply with it in all respects, and dismiss this action.”
It is a long-settled rule that the jurisdiction of this Court to re-examine the final judgment of a state court can arise only if the record as a whole shows either expressly or by clear implication that the federal claim was adequately pre-sen ted in the state system. New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67 (1928); Oxley Stave Co. v. Butler County, 166 U. S. 648, 655 (1897). Petitioner argues that since the Georgia Constitution has no full faith and credit clause, there can be no doubt that the above references in the record were to the Federal Constitution and therefore that her federal claim was properly presented. See Tr. of Oral Arg. 4. We are unpersuaded. In fact, we find it far more likely that petitioner was referring to state law.
The Georgia Supreme Court understood this case to concern primarily the requirements of the Uniform Child Custody Jurisdiction Act: “This case calls for an interpretation of certain provisions of Georgia’s Uniform Child Custody Jurisdiction Act, Code Ann. § 74-501, et seq.” That Act has been adopted by both Georgia and Florida. Section 74-514 of that Act, as codified by Georgia, states:
“The courts of this State shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this Chapter, or which was made under factual circumstances meeting the jurisdictional standards of the Chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this Chapter.” Ga. Code § 74^514 (1979).
Interpreting the meaning of this section is obviously a matter of Georgia state law, but a litigant could plausibly refer to it as a statutory full faith and credit requirement. The record supports the view that it was so understood in this case, by both the courts and the parties.
At the trial court hearing, petitioner discussed the Florida decree but did not invoke the Full Faith and Credit Clause of the Federal Constitution. Rather, petitioner argued that in failing to make the Georgia court aware of the previous decree, respondent had violated the terms of the Uniform Child Custody Jurisdiction Act: “[W]hile all this was going on in Florida, [respondent] turned right around and filed an action here, never informed the [c]ourt here that he had done it; never made any of the disclosures that he’s supposed to make under Georgia law [the Uniform Child Custody Jurisdiction Act], and never made any response to that whatsoever.” Tr. 8. The appellate briefs of the parties to the Georgia Supreme Court similarly argued the application of the Act to the facts of this case. As noted above, the State Supreme Court apparently did not believe that any federal issue was presented. Finally, petitioner did not claim in her petition for rehearing before the Georgia Supreme Court that the court’s failure to reach the federal claim, which petitioner now contends was raised before that court, was error. She did, however, argue that the failure of the Georgia courts to dismiss the action was error under the Act.
We cannot conclude on this record that petitioner raised the federal claim that she now presents to this Court at any point in the state-court proceedings. Thus, we confront in this case the same problem that arose in Cardinale v. Louisiana, 394 U. S. 437, 438 (1969): “Although certiorari was granted to consider this question, . . . the sole federal question argued here has never been raised, preserved, or passed upon in the state courts below.” Citing a long history of cases, we stated there that “[t]he Court has consistently refused to decide federal constitutional issues raised here for the first time on review of state court decisions.” Ibid. We have had several occasions to repeat this rule since then, Tacon v. Arizona, 410 U. S. 351, 352 (1973); Moore v. Illinois, 408 U. S. 786, 799 (1972); Stanley v. Illinois, 405 U. S. 645, 658, n. 10 (1972); Hill v. California, 401 U. S. 797 (1971); University of California Regents v. Bakke, 438 U. S. 265, 283 (1978) (opinion of Powell, J.), and we see no reason to deviate from it now.
It is appropriate to emphasize again, see Cardinale v. Louisiana, supra, at 439, that there are powerful policy considerations underlying the statutory requirement and our own rule that the federal challenge to a state statute or other official act be presented first to the state courts. These considerations strongly indicate that we should apply this general principle with sufficient rigor to make reasonably certain that we entertain cases from state courts only where the record clearly shows that the federal issue has been properly raised below.
In the first place, although the States are sovereign entities, they are bound along with their officials, including their judges, by the Constitution and the federal statutory law. Principles of comity in our federal system require that the state courts be afforded the opportunity to perform their duty, which includes responding to attacks on state authority based on the federal law, or, if the litigation is wholly private, construing and applying the applicable federal requirements. As the Court has elsewhere observed, this principal of comity requires
“a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Younger v. Harris, 401 U. S. 37, 44 (1971).
The principal of comity that stands behind the “properly-raised-federal-question” doctrine is similar to the principle that stands behind the exhaustion-of-state-remedies doctrine applicable to federal habeas corpus review of the constitutional claims of state prisoners. We have described the latter doctrine as one based on “federal-state comity,” Picard v. Connor, 404 U. S. 270, 275 (1971), and have described its function as reflecting
“ “an accommodation of our federal system designed to give the State the initial “opportunity to pass upon and correct” alleged violations of its prisoners’ federal rights.’ We have consistently adhered to this federal policy, for 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.’ ” Ibid, (citations omitted).
There are also very practical reasons for insisting that federal issues be presented first in the state-court system. The requirement affords the parties the opportunity to develop the record necessary for adjudicating the issue. It permits the state courts to exercise their authority, which federal courts, including this one, do not have at least to the same extent, to construe state statutes so as to avoid or obviate federal constitutional challenges such as vagueness and over-breadth. The rule also insures that if there are independent and adequate state grounds that would pretermit the federal issue, they will be identified and acted upon in an authoritative manner. Finally, if the parties to state-court litigation are required to present their federal claims in the state tribunals in the first instance, those issues will be adjudicated in the state courts where necessary to dispose of the case. In most instances, such a judgment will be supported by an opinion that may well obviate any reason for our giving plenary consideration to the case. In terms of our own workload, this is a very substantial matter.
For all of these reasons, we, as well as litigants seeking to bring cases here from the state courts, should take care to comply with the jurisdictional statute and our rules. Although it would avoid uncertainty and the expenditure of much time and effort if litigants identified in the state courts precisely the provisions of the Federal Constitution or the federal statute on which they rely, we have not insisted on such inflexible specificity. The inevitable result is that at times there have been differences of opinion as to whether the state courts have been afforded a fair opportunity to address the federal question that is sought to be presented here. At the minimum, however, there should be no doubt from the record that a claim under a federal statute or the Federal. Constitution was presented in the state courts and that those courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law. Otherwise, we cannot be sufficiently sure, when the state court whose judgment is being reviewed has not addressed the federal question that is later presented here, that the issue was actually presented and silently resolved by the state court against the petitioner or the appellant in this Court.
Because petitioner failed to raise her federal claim in the state proceedings and the Georgia Supreme Court failed to rule on a federal issue, we conclude that we are without jurisdiction in this case. Accordingly, the writ is dismissed for want of jurisdiction.
So ordered.
Respondent also argued that the Georgia court properly assumed jurisdiction under the Uniform Child Custody Jurisdiction Act. This is purely a question of state law not properly subject to review in this Court.
Because — as will be discussed infra — the federal issue was not addressed by the Georgia Supreme Court, it may have been better practice on our part to call for the record before acting on the petition for certiorari.
In petitioner’s brief to the Georgia Supreme Court she devoted one sentence to this issue: “In such circumstances, Appellant asserts, the decree entered in Florida should have been recognized as a final order subject to full faith and credit.” Brief for Respondent 3. This lower court brief is not a part of the record, but even if it were it would not suffice to establish that petitioner’s claim was based on the Federal Constitution.
Even if, as a matter of federal law, petitioner had properly raised her federal question, we might still confront here an independent state procedural ground barring our consideration of the federal issue. Rule 45 of the Rules of the Georgia Supreme Court states: “Any enumerated error which is not supported by argument or citation of authority shall be deemed abandoned.” Ga. Code §2A-4545 (Supp. 1980). The Georgia court has held that failure to include citations of authority to support enumerated errors will bar review of those errors in the State Supreme Court. Watts v. Mitchell, 227 Ga. 247, 179 S. E. 2d 774 (1971). The Georgia Supreme Court failed to discuss or even mention petitioner’s full faith and credit claim. Petitioner has not demonstrated that the failure of the Georgia Supreme Court to reach the federal issue was not grounded on an application of this rule. Since we conclude that the federal claim was not properly presented, we need not reach any conclusion about application of this state-court rule.
See, e. g., Wood v. Georgia, 450 U. S. 261 (1981); Vachon v. New Hampshire, 414 U. S. 478 (1974); Boynton v. Virginia, 364 U. S. 454 (1960); Bryant v. Zimmerman, 278 U. S. 63 (1928).
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
Answer:
|
songer_appsubst
|
5
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SKAGIT COUNTY et al. v. NORTHERN PAC. RY. CO. KITTITAS COUNTY v. SAME.
Nos. 6870, 6871.
Circuit Court of Appeals, Ninth Circuit.
Nov. 7, 1932.
John H. Dunbar, Atty. Gen., John A. Homer and John W. Brisky, Asst. Attys. Gen., for appellant Skagit County.
R. G. Sharpe, of Seattle, Wash., and Ole Sandvig, of Yakima, Wash., for appellants .Whitney and others.
R. G. Sharpe, of Seattle, Wash., and Spencer D. Short, of Ellensburg, Wash., for appellant Kittitas County.
D. F. Lyons, of St. Paul, Minn., and L. B. Da Ponte and T. H. Maguire, both of Seattle, Wash., for appellee.
Robert M. Burgunder, Pros. Atty., and Harry A. Rhodes (of Colvin & Rhodes), both of Seattle, Wash., for amicus curia King County.
F. M. Dudley, of Seattle, Wash., for amicus euri® Chicago, M., Sit. P. & P. R. Co-.
Before WILBUR and SAWTELLE, Circuit Judges.
WILBUR, Circuit Judge.
The counties of Skagit and Kittitas, of the state of Washington, and the county treasurer, sheriff, and prosecuting attorney of Skagit county, appeal from a temporary injunction made and entered, enjoining twenty-three counties and their respective county officers, including appellants, from collecting certain taxes levied upon the personal property of the appellee Northern Pacific Railway Company for the years 1927, 1928, and 1929. The appellee, hereinafter referred to as the Railway Company, instituted these actions to enjoin the collection of that portion of the tax levied upon their operating railroad property- for the years 1927, 1928, and 1929, by the taxing authorities of the various co-unties defendant through whose territory the Railway Company operated its railroad, upon the ground that the assessment of such proportion was so excessive as compared with the assessment of all other property in the counties levying the tax as to he actually or constructively fraudulent and void. The Railway Company asked for a permanent injunction against the collection of the tax and also prayed for a decree adjudging “the unpaid balance) of the tax be ordered cancelled and stricken from the rolls as a cloud upon the plaintiff’s title to its property.” The Railway Company paid the portion of the tax it admitted was justly due upon a valuation commensurate itWith that levied upon other property in the respective counties as required by a statute of the state of Washington as a condition of maintaining such an action in equity. Remington’s Compiled Statutes of Washington § 956.
It appears that this action is one of a number by this and other railway companies, all based upon the same contention, that their property has been systematically and fraudulently overvalued for a number of successive years from 1925 to 1929, inclusive. Some of these actions were pending in the trial court, undecided, at the time this action was brought. With reference thereto the bill of exceptions contains the following statement:
“In entering said order for interlocutory injunction the court took judicial notice of the records and flies in Cause 3STo. E-4300, 'Northern Pacific Railway Company v. Adams County, et al.,’ pending in this court. Said cause involves taxes assessed for the years 1925 and 1926 on plaintiff’s operating property and the parties thereto and the issues of law are the same as in this cause. It is the same cause referred to in plaintiff’s motion for interlocutory injunction herein. Said Cause No. E-4300 was referred by this court to Honorable Ralph Kauffman, Master in Chancery, to take testimony, make conclusions of law and fact and recommendations for a decree. Hearing in said cause began on June 6, 1927, and lasted until September, 1928, and briefs and arguments were not completed until October, 1929. On the 29th day of March, 1930, said Master filed his report in said cause, with conclusions of law and fact and recommendations for a decree.
“Plaintiff and defendants filed exceptions to the Master’s report and said exceptions were argued in this court on the 22nd day of June, 1931, and succeeding days. Several thousands of pages of briefs have been filed. The court has had and now has said Cause No. E-4300 under advisement and consideration for a final decree.
“The court knows from the records and files in this cause and from statements of counsel for the respective parties, in open court, that neither party has taken steps to bring this cause to trial, pending the final decision in said Cause No. E-4300, for the reason that decision therein will settle many of the questions involved in this cause and thereby further expensive litigation may be avoided and, in any event, the issues in this cause will be simplified and large expense saved to the respective parties. It has been? and is the opinion of this court, expressed in open court, that this cause should not be tried until after final decision in said Cause No. E-4300. While this cause was so pending, under the circumstances and conditions stated, defendants threatened to issue process of 'distraint for the collection of said personal property taxes. Said taxes are, in the court’s opinion, adequately secured by a lien on all of plaintiff’s operating property, real and personal, and by the injunction bond filed by plaintiff herein. No injury or loss will, in the court’s opinion, be sustained by defendants because of the granting of said interlocutory injunction. But, in the court’s opinion, if said injunction be refused, plaintiff will suffer a great loss by the seizure and sale of its property, for which it has no adequate remedy at law.
“At the time of entering said interlocutory injunction the court stated in open court, that on the hearing of said order to show cause and, in granting said interlocutory injunction, the court did not pass upon the merits of the matters in controversy herein. That said injunction was granted in the exercise of the court’s discretion and upon consideration of the relative loss and damage to the parties from refusing, as compared with granting, the same, and in view of all of the circumstances and conditions appearing at said time.”
In case No. E-4300, above referred to, the trial court has since held the assessment for the year 1925 to be void, and was no doubt tentatively of that opinion at the time he granted the temporary injunction in the case at bar.
The appellants present the merits of the ease upon the contention that the controlling facts are either admitted in the pleadings or established by uneontroverted statements in the affidavits presented to the trial court on the hearing. It is suggested that our decision of the various points presented on the merits would greatly facilitate the further progress of pending litigation. It is sufficient in that regard to say that the question of overvaluation is a relative one, and depends not only upon the valuation fixed by the taxing authorities upon the Railway Company’s property, but also upon the relative undervaluation of other property. This undervaluation is affirmed by the Railway Company, on the one hand, and defied by the defendants, on the other. If any evidence were offered on this subject on the application for a temporary injunction, it is not contained in the bill of exceptions. If we could say, as appellants contend we should, that the valuation of the Railway Company’s property was not so excessive as to justify a conclusion that tho valuation was fraudulently made, we would still he confronted with the fact that this factor is only one element of the problem to bo solved, namely, whether the tax imposed upon the Railway Company is relatively excessive. If other property is similarly overvalued no harm has been done the Railway Company. Tho question of the validity of the tax is not before us on the merits, a,nd we cannot say that there has been an abuse of discretion in granting the order appealed from in view of the findings and statement of the trial judge, above quoted. See Alabama v. United States, 279 U. S. 229, 49 S. Ct. 266, 73 L. Ed. 675.
Appellants contend that this action will not lie because the Railway Company has a plain, speedy, and adequate remedy at law by paying the tax under protest and by an action to recover the money thus illegally exacted. That this rule is frequently applicable is shown by the following eases eited by the appellants: Southern R. Co. v. Query (D. C.) 21 F.(2d) 333, 337, 338; Union Pac. R. Co. v. Board of Com’rs of Weld County, 247 U. S. 282, 285, 38 S. Ct. 510, 62 L. Ed. 1110; Port Angeles Western R. Co. v. Clallam County (C. C. A.) 44 F.(2d) 28. It is claimed by the Railway Company, however, that this rule does not apply because of the number of actions involved in the recovery of the tax so paid, the uncertainty of the recovery of such tax due to the alleged insolvency of some of the districts to which the tax has been, or would he, apportioned, and particularly because of the fact that the assessment is made by the state tax commission. Chapter 130, p. 227, Laws Extra Session 1925, State of Washington. This commission later sits as a board of equalization to hear complaints against the assessment and to apportion the total assessment as finally fixed in the respective counties in the proportion in which the main line mileage therein bears to the total main line mileage of the railway in the state. A somewhat similar situation to that in the case at bar was considered by the Supreme Court in Wilson v. Illinois So. Ry. Co., 263 U. S. 574, 44 S. Ct. 203, 68 L. Ed. 456. An action was brought by the Railway Company to enjoin the collection of taxes for the years 1917, 1918, 1919, and 1920 upon the ground that the property was erroneously and fraudulently overvalued. As a basis for the exercise of equitable jurisdiction it was alleged that the Railway Company paid as tax such sums as could properly have been charged; that if 'the additional amounts demanded could be recovered at all after payment it would bo only by multiplicity of suits against the taxing bodies of the several counties where tho collection was made. The court, speaking through Justice Holmes, said: “It is argued that in any proceeding at law in these counties, it would be impossible to secure a uniform or any adequate readjustment of the total valuation, which, is made by a state board, and so that equity only can afford adequate relief. The bill prays that the defendants, who are the collectors for five counties, may be restrained from applying to their respective county courts for judgments under the summary proceedings provided by statute for the collection of taxes on real estate (Cahill’s Ill. St. 1923, c. 120, § 191), and that the Court will determine the amounts, if any, remaining equitably due and unpaid. * * * The case is here on the single question whether the plaintiffs had an adequate remedy at law. * * * The appellants rely mainly upon Keokuk v. Salm, 258 U. S. 122, 42 S. Ct. 207, 66 L. Ed. 496. * * * Keokuk v. Salm arose upon an assessment of real estate by county assessors in a single county, as to which tho remedies available were pointed out. Here the assessment was of property in five counties, by the State Board of Equalization for 1917 and 1918, and by its successor the State Tax Commission for the two later years. Assuming that in each of the counties before the tax could be collected a judgment must be obtained in the county court in a civil suit and that in such suits the defendants, the present plaintiffs, could set up the facts here relied upon, as in the Keokuk Co.’s Case, not only would those suits be many, but there would be insuperable difficulty in determining- what the proper assessment against tho whole road should bo and in apportioning the due share to the county concerned. This difficulty would recur in each of the five counties with not improbably different results in each. It seems to ns that the right of full defence in those suits, if it exists, is not an adequate remedy at law. Raymond v. Chicago Union Traction Co., 207 U. S. 20, 38-40, 28 S. Ct. 7, 52 L. Ed. 78, 12 Ann. Cas. 757; Kirby v. Lake S. & M. So. R. R., 120 U. S. 130, 134, 7 S. Ct. 430, 30 L. Ed. 569.”
Appellants seek to distinguish the case at bar from the case of Wilson v. Illinois So. R. Co., supra, upon the ground that the sole question in that ease was “whether or not the right afforded the railroad by the Illinois law to defend in the tax foreclosure suits in the separate counties was such an adequate remedy at law as to prevent-the railroad from seeking relief in equity. The court held that such legal remedy was not adequate.”
It is true that the principal question discussed in that ease was the adequacy of the remedy at law by defense to the actions fo-r the collection of the tax, but the court also considered the adequacy of the remedy at law by suit to collect the tax paid under protest, and the general statement made by the court in regard to the inadequacy of the remedy at law applies equally to the defense at law in actions to collect the tax and to proceedings brought to recover the tax owing to the fact that the assessment was a unit apportioned to five counties. The statement that different results as to valuation might be arrived at in eaeh county is as applicable to a suit to recover the tax as to a suit to collect the tax. The decision by the Supreme Court assumes it to be the duty of the chancellor to determine the correct amount of the assessment, and require the payment thereof as a condition precedent to the issuance of an injunction. This practice was followed by the Circuit Court of the Southern District of Illinois in Chicago Union Traction Co. v. State Board of Equalization, 114 F. 557, affirmed in Raymond v. Chicago Union Traction Co., 207 U. S. 20, 28 S. Ct. 7, 13, 52 L. Ed. 78, 12 Ann. Cas. 757, cited in the above opinion by Mr. Justice Holmes. The rule is stated by the Supreme Court in the latter ease, as follows: “In all these cases, however, where there is jurisdiction to tax at all, equity will not grant an injunction to restrain the collection, even of an illegal tax, without the payment on the part of the taxpayer of the amount of a tax fairly and equitably due. People’s Nat. Bank v. Marye, 191 U. S. 272, 24 S. Ct. 68, 48 L. Ed. 180, and eases cited. Acting upon this principle, the circuit court refused to issue the injunction until the appellee paid the amount which the court found to be a fair and just amount due from the appellee for the tax of the year 1900, based upon a tax at the same rate as that levied upon other property and on corporations of the same class within the state. The sum to be paid by the appellee herein, as decided by the circuit judge, was $134,350.03. That sum was paid instead of $1,019,211.78, called for by the warrant in the hands of the collector.”
It is true that in both of these eases from the state of Illinois, Wilson v. Illinois Southern R. Co., supra,, and Raymond v. Chicago Union Traction Co., supra, it was alleged that the recovery of the tax would require a multiplicity of suits because of the distribution of the tax money to various taxing districts and that element is absent from the ease at bar by reason of the fact that an action against eaeh county could be maintained to recover the tax to be paid that county not-' withstanding the fact it was subsequently distributed. Nevertheless, in the case at bar, it would require twenty-three separate actions at law to recover the tax thus paid.
It is contended that the holding of the Supreme Court in Wilson v. Illinois Southern R. Co. has been somewhat modified by the recent cases of Matthews v. Rodgers, 284 U. S. 521, 52 S. Ct. 217, 76 L. Ed. 447, and Stratton v. St. Louis S. W. Ry. Co., 284 U. S. 530, 52 S. Ct. 222, 223, 76 L. Ed. 465. These cases, while holding that an action to repay a tax paid under protest is usually an adequate remedy at law, expressly reaffirm the rule stated in the eases under consideration that where special circumstances exist which render that remedy inadequate, equity will enjoin the collection of tax. The rule stated in Stratton v. St. Louis S. W. Ry. Co., supra, is that which has been uniformly applied by the Supreme Court: “There being a legal remedy for the recovery of the tax, no ease is made for invoking the jurisdiction of equity to enjoin collection of it, in the absence of allegations setting up special circumstances which would render the legal remedy inadequate.” Citing Matthews v. Rodgers, supra; Arkansas Bldg. & Loan Ass’n v. Madden, 175 U. S. 269, 20 S. Ct. 119; 44 L. Ed. 159; Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 32 S. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050; Singer Sewing Machine Co. v. Benedict, 229 U. S. 481, 33 S. Ct. 942, 57 L. Ed. 1288.
The existence of such special circumstances in the case at bar is, we think, determined by the Supreme Court in Wilson v. Illinois Southern R. Co., supra,
If it be granted, as we have held, upon the authority of Wilson v. Illinois Southern R. Co., supra, that it is proper to join the counties in an action brought to enjoin the collection of taxes, the objections of the appellants to the jurisdiction of the District Court over the counties outside the district are met, for such an action is controlled by sections 52 and 53 of the Judicial Code (28 USCA §§ 113, 114), which permit a suit to be brought in a district containing the residence of one of the defendants, where the action is joint and the suit is not of a local nature, and if it be considered that the action is of a local nature because of the faet that the appellees seek to remove the eloud upon real estate lying partly in one district and partly within another in the same state, then the action can be brought in either district under the provisions of section 55 of the Judicial Code (28 USCA § 116).
The appellants claim that the court had no power to enjoin the defendant from collecting the tax in question because of tbe passage by the Legislature of tbe State of Washington (section 1, Laws of 1931, c. 62, p. 201) of a statute prohibiting granting of an injunction to restrain tbe collection of a tax, or any part thereof, “except in the following cases: (1) Where the law under which the tax is imposed is void; and (2) Where the property upon which the tax is imposed is exempt from taxation.” This law, although enacted after the institution of this action, was in effect at the time the interlocutory injunction was entered April 1, 1932. The constitutionality of this act was sustained by the Supreme Court of Washington in Casco v. Thurston County, 163 Wash. 666, 2 P.(2d) 677, 77 A. L. R. 622, and that such a law would apply to a pending suit it is claimed was decided by the Supreme Court in Smallwood v. Gallardo, 275 U. S. 56, 48 S. Ct. 23, 72 L. Ed. 152. That the state of Washington ha,d authority to prohibit its courts from entertaining an equitable suit for the enjoining of tax is not doubted. A similar statute on the part of the United States has been in effect for many years. Act March 2, 1867, c. 169, § 10, 14 Stat. 475, R. S. § 3224 (26 USCA § 154).
The question here involved, however, is whether or not the state legislation prohibiting injunctions is applicable to tbe federal courts. It is not contended that the jurisdiction of federal courts in equity matters can be directly affected by state legislation prohibiting the maintenance of equitable actions. On the contrary, the contention is that the right of a county to sue or be sued is a matter of state legislation. Consequently, it was contended that where the state Legislature provides that suits of this character cannot be maintained against the various counties of the state, it, in effect, curtailed the power of the county to be sued and that under such legislation the county is incapable of defending a suit to prevent the collection of revenues by injunctive orders whether brought in the federal or state courts. The tax upon the property of the Railway Company belongs to the county in which the property taxed "is located. The state having clothed the county with this right cannot shield it from attack in a federal court of equity by a state law regulating the remedies which may be applied to a wrong alleged to have arisen from the manner in which the fax was assessed. The Supreme Court of the United States, in Chicot County v. Sherwood, 148 U. S. 529, 13 S. Ct. 695, 37 L. Ed. 546, sustained the right to maintain a suit against the county in the federal courts although the Arkansas Legislature had repealed all laws allowing counties to sue and be sued. Such legislation does not affect the jurisdiction of federal courts in equity. Chicot County v. Sherwood, supra; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80; Mason v. United States, 260 U. S. 545, 43 S. Ct. 200, 67 L. Ed. 396; Henrietta Mills v. Rutherford County, 281 U. S. 121, 50 S. Ct. 270, 74 L. Ed. 737.
The appellants W. II. Whitney, as treasurer, Charles W. Fleming, as sheriff, and John W. Briskey, as prosecuting attorney, of Skagit county, were enjoined by the temporary injunction from attempting to collect tbe tax. They were not parties to the litigation.
It is stated in the brief of the appellee that it has been the uniform practice in the state of Washington to sue only the county in actions to enjoin the collection of tax and not to make the county officers parties thereto. Numerous cases are cited in which this has been done. Northern P. R. Co. v. Benton County, 87 Wash. 534, 151 P. 1123; Northern P. R. Co. v. King County, 93 Wash. 89, 160 P. 8; Northern P. R. Co. v. Snohomish County, 101 Wash. 683, 172 P. 878; Northern P. R. Co. v. State & Twenty-three Counties, 84 Wash. 510, 147 P. 45, Ann. Cas. 1916E, 1166; Northern P. R. Co. v. Pierce County, 127 Wash. 369, 220 P. 826; Spokane & I. E. R. Co. v. Spokane County, 82 Wash. 24, 143 P. 307; and Oregon-W. R. & N. Co. v. Thurston County, 98 Wash. 218, 167 P930. The county treasurer is charged by the law with the duty of collecting these taxes. Laws Wash. 1925, (Ex. Sess.) c. 130, pp. 281, 282, §§ 83, 84 et seq.; Rem. Comp. Stat. §§ 11318, 11321, 11328, 11329; State ex rel. Godfrey v. Turney, 113 Wash. 214, 223, 193 P. 715. lie is a necessary party defendant. State ex rel. Northern Pac. Ry. v. State Board, 140 Wash. 243, 248 P. 793; Gallardo v. Questell (C. C. A.) 29 F.(2d) 897; Caldwell Land & Lbr. Co. v. Smith, 146 N. C. 199, 59 S. E. 653; Gilmore v. Norton, 10 Kan. 491; Hubbard v. Board of Sup’rs, 23 Iowa, 130; St. Louis, I. M. & S. Ry. Co. v. Anthony, 73 Mo. 431; Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706; Bode v. New England Inv. Co., 1 N. D. 121, 45 N. W. 197. The sheriff of Skagit county and the prosecuting attorney thereof were proper parties, as they were charged with certain statutory duties in reference to the collection of these taxes. These officers of Skagit county appeared specially before the entry of the interlocutory injunction and objected to being included therein; this objection was overruled, and they were so included; they then joined in the general assignment of .errors on the merits and joined in the petition for appeal on the merits and in the argument of the merits on appeal. «As they have no interest in the outcome of the case other than the desire to perform their duty under the law of the state, and have fully presented their contentions of law and fact on their appeal, they have had their day in court on the question of the issuance of the temporary injunction. The county treasurer should, however, be made a formal party by appropriate amendment in the trial court. We treat him as a party for the purpose of disposing of his appeal from the interlocutory order.
Order affirmed.
As to the power of a Circuit Court of Appeals in an equity case, see Central Imp. Co. v. Cambria Steel Co., 210 F. 696, 700; Norton v. Larney, 266 U. S. 511, 515, 516, 45 S. Ct. 145, 69 L. Ed. 413; Linde Air Products Co. v. Morse Dry Dock & Repair Co. (C. C. A. 2) 246 F. 834; Youngs Rubber Corp. v. C. I. Lee & Co. (C. C. A. 2) 45 F.(2d) 103. As to amendment of pleadings on appeal, see Dower v. Richards, 151 U. S. 659, 14 S. Ct. 452, 38 L. Ed. 305; 4 C. J., p. 1346, § 37, and notes. The proceedings on appeal have been frequently referred to by the courts as a trial de novo, Simmons v. Stern (C. C. A. 8) 9 F.(2d) 256; Sun Co. v. Vinton Pet Co. (C. C. A. 5) 248 F. 623; Anderson v. Hultberg (C. C. A. 8) 247 F. 273, 279; Unkle v. Wills (C. C. A. 8) 281 F. 29, 34; Emerson-Brantingham Imp. Co. v. Johnson (C. C. A. 8) 1 F.(2d) 212; Presidio Mining Co. v. Overton (C. C. A. 9) 270 F. 388, although it has been stated to the contrary, Youngs Rubber Corp. v. C. I. Lee & Co. (C. C. A. 2) 45 F.(2d) 103, supra.
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
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