task
stringclasses 260
values | output
stringlengths 2
5
| instruction
stringlengths 576
44.2k
|
|---|---|---|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
ANIMAL SCIENCE PRODUCTS, INC., et al., Petitioners
v.
HEBEI WELCOME PHARMACEUTICAL CO. LTD., et al.
No. 16-1220.
Supreme Court of the United States
Argued April 24, 2018.
Decided June 14, 2018.
Michael J. Gottlieb, Washington, DC, for Petitioners.
Brian H. Fletcher, for the United States, as amicus curiae, by special leave of the Court, supporting the petitioners.
Carter G. Phillips, for the Ministry of Commerce of the People's Republic of China, as amicus curiae, by special leave of the Court, supporting the respondents.
Jonathan M. Jacobson, New York, NY, for Respondents.
James T. Southwick, Shawn L. Raymond, Susman Godfrey LLP, Houston, TX, Michael D. Hausfeld, Brian A. Ratner, Melinda R. Coolidge, Hausfeld LLP, Michael J. Gottlieb, Karen L. Dunn, William A. Isaacson, Aaron E. Nathan, Boies Schiller Flexner LLP, Washington, DC, David Boies, Boies Schiller Flexner LLP, Armonk, NY, Brent W. Landau, Hausfeld LLP, Philadelphia, PA, for Petitioners.
Jonathan M. Jacobson, Daniel P. Weick, Justin A. Cohen, Wilson Sonsini Goodrich & Rosati, P.C., New York, NY, Susan A. Creighton, Scott A. Sher, Bradley T. Tennis, Elyse Dorsey, Wilson Sonsini Goodrich & Rosati, P.C., Washington, D.C., for Respondents.
Justice GINSBURG delivered the opinion of the Court.
When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally "no," ruling that federal courts are "bound to defer" to a foreign government's construction of its own law, whenever that construction is "reasonable." In re Vitamin C Antitrust Litigation, 837 F.3d 175, 189 (2016).
We hold otherwise. A federal court should accord respectful consideration to a foreign government's submission, but is not bound to accord conclusive effect to the foreign government's statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, "the court may consider any relevant material or source ... whether or not submitted by a party." As "[t]he court's determination must be treated as a ruling on a question of law," Fed. Rule Civ. Proc. 44.1, the court "may engage in its own research and consider any relevant material thus found," Advisory Committee's 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U.S.C. App., p. 892 (hereinafter Advisory Committee's Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government's statements could not be gainsaid, we vacate that court's judgment and remand the case for further consideration.
I
Petitioners, U.S.-based purchasers of vitamin C (hereinafter U.S. purchasers), filed a class-action suit against four Chinese corporations that manufacture and export the nutrient (hereinafter Chinese sellers). The U.S. purchasers alleged that the Chinese sellers, two of whom are respondents here, had agreed to fix the price and quantity of vitamin C exported to the United States from China, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. More particularly, the U.S. purchasers stated that the Chinese sellers had formed a cartel "facilitated by the efforts of their trade association," the Chamber of Commerce of Medicines and Health Products Importers and Exporters (Chamber). Complaint in No. 1:05-CV-453, Docket No. 1, ¶ 43. The Judicial Panel on Multidistrict Litigation consolidated the instant case and related suits for pretrial proceedings in the United States District Court for the Eastern District of New York.
The Chinese sellers moved to dismiss the U.S. purchasers' complaint on the ground that Chinese law required them to fix the price and quantity of vitamin C exports. Therefore, the Chinese sellers urged, they are shielded from liability under U.S. antitrust law by the act of state doctrine, the foreign sovereign compulsion doctrine, and principles of international comity. The Ministry of Commerce of the People's Republic of China (Ministry) filed a brief as amicus curiae in support of the Chinese sellers' motion. The Ministry's brief stated that the Ministry is "the highest administrative authority in China authorized to regulate foreign trade," App. to Pet. for Cert. 190a; that the Chamber is "an entity under the Ministry's direct and active supervision" and is authorized to regulate vitamin C exports, id., at 196a; and that the conspiracy in restraint of trade alleged by the U.S. purchasers was in fact "a regulatory pricing regime mandated by the government of China," id., at 197a.
In response, the U.S. purchasers disputed that Chinese law required the Chinese sellers to engage in price fixing. Among other things, the U.S. purchasers noted that the Ministry had not identified any written law or regulation expressly ordering the Chinese sellers' price agreement. They also highlighted a Chamber announcement that the manufacturers "were able to reach a self-regulated agreement ... whereby they would voluntarily control the quantity and pace of exports ... without any government intervention." App. 109. In addition, the U.S. purchasers presented expert testimony that the Chinese Government's authorization of a Vitamin C Subcommittee within the Chamber did not necessarily mean that the subcommittee's price fixing was mandated by law.
The District Court denied the Chinese sellers' motion to dismiss the complaint in relevant part. In re Vitamin C Antitrust Litigation, 584 F.Supp.2d 546, 559 (E.D.N.Y.2008). That court acknowledged that the Ministry's amicus brief was "entitled to substantial deference." Id., at 557. The court, however, did not regard the Ministry's statements as "conclusive," emphasizing particularly that the U.S. purchasers had submitted evidence suggesting that the price fixing was voluntary. Ibid. The record, the District Court determined, was "too ambiguous to foreclose further inquiry into the voluntariness of [the Chinese sellers'] actions." Id., at 559.
After further discovery, focused on whether Chinese law compelled the Chinese sellers to enter into a price-fixing agreement, the Chinese sellers moved for summary judgment. See In re Vitamin C Antitrust Litigation, 810 F.Supp.2d 522, 525-526 (E.D.N.Y.2011). The Ministry submitted an additional statement, reiterating that "the Ministry specifically charged the Chamber ... with the authority and responsibility ... for regulating, through consultation, the price of vitamin C manufactured for export." App. 133. The Chinese sellers tendered expert testimony in accord with the Ministry's account, which stressed that the Ministry's "interpretation of its own regulations and policies carries decisive weight under Chinese law." Id., at 142. The U.S. purchasers, in response, cited further materials supporting their opposing view, including China's statement to the World Trade Organization (WTO) that it "gave up export administration of ... vitamin C" in 2002. 810 F.Supp.2d, at 532 (internal quotation marks omitted). Denying the Chinese sellers' motion for summary judgment, the District Court held that Chinese law did not require the sellers to fix the price or quantity of vitamin C exports. Id., at 525.
The case was then tried to a jury, which returned a verdict for the U.S. purchasers. The jury found that the Chinese sellers had agreed to fix the prices and quantities of vitamin C exports, see App. to Pet. for Cert. 276a-279a, and further found that the Chinese sellers were not "actually compelled" by China to enter into those agreements, id., at 278a. In accord with the jury's verdict, the District Court entered judgment for the U.S. purchasers, awarding some $147 million in treble damages and enjoining the Chinese sellers from further violations of the Sherman Act.
The Court of Appeals for the Second Circuit reversed, holding that the District Court erred in denying the Chinese sellers' motion to dismiss the complaint. In re Vitamin C Antitrust Litigation, 837 F.3d 175, 178, 195 (2016). The Court of Appeals determined that the propriety of dismissal hinged on whether the Chinese sellers could adhere to both Chinese law and U.S. antitrust law. See id., at 186. That question, in turn, depended on "the amount of deference" owed to the Ministry's characterization of Chinese law. Ibid . Cognizant of "competing authority" on this question, ibid., the Court of Appeals settled on a highly deferential rule: "[W]hen a foreign government, acting through counsel or otherwise, directly participates in U.S. court proceedings by providing a [statement] regarding the construction and effect of [the foreign government's] laws and regulations, which is reasonable under the circumstances presented, a U.S. court is bound to defer to those statements," id., at 189. The appeals court "note[d] that[,] if the Chinese Government had not appeared in this litigation, the [D]istrict [C]ourt's careful and thorough treatment of the evidence before it in analyzing what Chinese law required at both the motion to dismiss and summary judgment stages would have been entirely appropriate." Id., at 191, n. 10.
Applying its highly deferential rule, the Court of Appeals concluded that the Ministry's account of Chinese law was "reasonable." In so concluding, the Court of Appeals inspected only the Ministry's brief and sources cited therein. Id., at 189-190. Because it thought that "a U.S. court [must] not embark on a challenge to a foreign government's official representation," id., at 189, the Court of Appeals disregarded the submissions made by the U.S. purchasers casting doubt on the Ministry's account of Chinese law, id., at 189-190. Based solely on the Ministry's statements, the Court of Appeals held that "Chinese law required [the Chinese sellers] to engage in activities in China that constituted antitrust violations here in the United States." Ibid.
We granted certiorari to resolve a Circuit conflict over this question: Is a federal court determining foreign law under Rule 44.1 required to treat as conclusive a submission from the foreign government describing its own law? 583 U.S. ----, 138 S.Ct. 734, 199 L.Ed.2d 601 (2018).
II
At common law, the content of foreign law relevant to a dispute was treated "as a question of fact." Miller, Federal Rule 44.1 and the "Fact" Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L. Rev. 613, 617-619 (1967) (Miller). In 1801, this Court endorsed the common-law rule, instructing that "the laws of a foreign nation" must be "proved as facts." Talbot v. Seeman, 1 Cranch 1, 38, 2 L.Ed. 15 (1801) ;
see, e.g., Church v. Hubbart, 2 Cranch 187, 236, 2 L.Ed. 249 (1804) ("Foreign laws are well understood to be facts."). Ranking questions of foreign law as questions of fact, however, "had a number of undesirable practical consequences." 9A C. Wright & A. Miller, Federal Practice and Procedure § 2441, p. 324 (3d ed. 2008) (Wright & Miller). Foreign law "had to be raised in the pleadings" and proved "in accordance with the rules of evidence." Ibid. Appellate review was deferential and limited to the record made in the trial court. Ibid. ; see also Miller 623.
Federal Rule of Civil Procedure 44.1, adopted in 1966, fundamentally changed the mode of determining foreign law in federal courts. The Rule specifies that a court's determination of foreign law "must be treated as a ruling on a question of law," rather than as a finding of fact. Correspondingly, in ascertaining foreign law, courts are not limited to materials submitted by the parties; instead, they "may consider any relevant material or source ..., whether or not ... admissible under the Federal Rules of Evidence." Ibid. Appellate review, as is true of domestic law determinations, is de novo . Advisory Committee's Note, at 892. Rule 44.1 frees courts "to reexamine and amplify material ... presented by counsel in partisan fashion or in insufficient detail." Ibid. The "obvious" purpose of the changes Rule 44.1 ordered was "to make the process of determining alien law identical with the method of ascertaining domestic law to the extent that it is possible to do so." Wright & Miller § 2444, at 338-342.
Federal courts deciding questions of foreign law under Rule 44.1 are sometimes provided with the views of the relevant foreign government, as they were in this case through the amicus brief of the Ministry. See supra, at 1866 - 1871. As the Court of Appeals correctly observed, Rule 44.1 does not address the weight a federal court determining foreign law should give to the views presented by the foreign government. See 837 F.3d, at 187. Nor does any other rule or statute. In the spirit of "international comity," Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 543, and n. 27, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987), a federal court should carefully consider a foreign state's views about the meaning of its own laws. See United States v. McNab, 331 F.3d 1228, 1241 (C.A.11 2003) ; cf. Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 638-639 (C.A.7 2010) (Wood, J., concurring). But the appropriate weight in each case will depend upon the circumstances; a federal court is neither bound to adopt the foreign government's characterization nor required to ignore other relevant materials. When a foreign government makes conflicting statements, see supra, at 1871 - 1872, or, as here, offers an account in the context of litigation, there may be cause for caution in evaluating the foreign government's submission.
Given the world's many and diverse legal systems, and the range of circumstances in which a foreign government's views may be presented, no single formula or rule will fit all cases in which a foreign government describes its own law. Relevant considerations include the statement's clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement's consistency with the foreign government's past positions.
Judged in this light, the Court of Appeals erred in deeming the Ministry's submission binding, so long as facially reasonable. That unyielding rule is inconsistent with Rule 44.1 (determination of an issue of foreign law "must be treated as a ruling on a question of law"; court may consider "any relevant material or source") and, tellingly, with this Court's treatment of analogous submissions from States of the United States. If the relevant state law is established by a decision of "the State's highest court," that decision is "binding on the federal courts." Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam ); see Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). But views of the State's attorney general, while attracting "respectful consideration," do not garner controlling weight. Arizonans for Official English v. Arizona, 520 U.S. 43, 76-77, n. 30, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ; see, e.g., Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 393-396, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). Furthermore, because the Court of Appeals riveted its attention on the Ministry's submission, it did not address other evidence, including, for example, China's statement to the WTO that China had "g[i]ve[n] up export administration ... of vitamin C" at the end of 2001. 810 F.Supp.2d, at 532 (internal quotation marks omitted).
The Court of Appeals also misperceived this Court's decision in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942). See 837 F.3d, at 186-187, 189. Pink, properly comprehended, is not compelling authority for the attribution of controlling weight to the Ministry's brief. We note, first, that Pink was a pre- Rule 44.1 decision. Second, Pink arose in unusual circumstances. Pink was an action brought by the United States to recover assets of the U.S. branch of a Russian insurance company that had been nationalized in 1918, after the Russian revolution. 315 U.S., at 210-211, 62 S.Ct. 552. In 1933, the Soviet Government assigned the nationalized assets located in this country to the United States. Id., at 211-212, 62 S.Ct. 552. The disposition of the case turned on the extraterritorial effect of the nationalization decree-specifically, whether the decree reached assets of the Russian insurance company located in the United States, or was instead limited to property in Russia. Id., at 213-215, 217, 62 S.Ct. 552. To support the position that the decree reached all of the company's assets, the United States obtained an "official declaration of the Commissariat for Justice" of the Russian Socialist Federal Soviet Republic. Id., at 218, 62 S.Ct. 552. The declaration certified that the nationalization decree reached "the funds and property of former insurance companies ... irrespective of whether [they were] situated within the territorial limits of [Russia] or abroad." Id., at 220, 62 S.Ct. 552 (internal quotation marks omitted). This Court determined that "the evidence supported [a] finding" that "the Commissariat for Justice ha[d] power to interpret existing Russian law." Ibid . "That being true," the Court concluded, the "official declaration [wa]s conclusive so far as the intended extraterritorial effect of the Russian decree [wa]s concerned." Ibid.
This Court's treatment of the Commissariat's submission as conclusive rested on a document obtained by the United States, through official "diplomatic channels." Id., at 218, 62 S.Ct. 552. There was no indication that the declaration was inconsistent with the Soviet Union's past statements. Indeed, the Court emphasized that the declaration was consistent with expert evidence in point. See ibid. That the Commissariat's declaration was deemed "conclusive" in the circumstances Pink presented scarcely suggests that all submissions by a foreign government are entitled to the same weight.
The Court of Appeals also reasoned that a foreign government's characterization of its own laws should be afforded "the same respect and treatment that we would expect our government to receive in comparable matters." 837 F.3d, at 189. The concern for reciprocity is sound, but it does not warrant the Court of Appeals' judgment. Indeed, the United States, historically, has not argued that foreign courts are bound to accept its characterizations or precluded from considering other relevant sources.
The understanding that a government's expressed view of its own law is ordinarily entitled to substantial but not conclusive weight is also consistent with two international treaties that establish formal mechanisms by which one government may obtain from another an official statement characterizing its laws. Those treaties specify that "[t]he information given in the reply shall not bind the judicial authority from which the request emanated." European Convention on Information on Foreign Law, Art. 8, June 7, 1968, 720 U.N.T.S. 154; see Inter-American Convention on Proof of and Information on Foreign Law, Art. 6, May 8, 1979, O.A.S.T.S. 1439 U.N.T.S. 111 (similar). Although the United States is not a party to those treaties, they reflect an international practice inconsistent with the Court of Appeals' "binding, if reasonable" resolution.
* * *
Because the Court of Appeals concluded that the District Court was bound to defer to the Ministry's brief, the court did not consider the shortcomings the District Court identified in the Ministry's position or other aspects of "the [D]istrict [C]ourt's careful and thorough treatment of the evidence before it." 837 F.3d, at 191, n. 10. The correct interpretation of Chinese law is not before this Court, and we take no position on it. But the materials identified by the District Court were at least relevant to the weight the Ministry's submissions should receive and to the question whether Chinese law required the Chinese sellers' conduct. We therefore vacate the judgment of the Court of Appeals and remand the case for renewed consideration consistent with this opinion.
It is so ordered.
The Ministry told the District Court: For much of the 20th century, China allowed only state-owned entities to export products. App. to Pet. for Cert. 198a. When China started to allow private enterprises to obtain export licenses, the Ministry established the Chamber to regulate exports under the Ministry's authority and direction. Ibid.
In 1997, the Ministry authorized the establishment of the Chamber's Vitamin C Subcommittee. Id., at 202a. That year, the Ministry promulgated a regulation authorizing and requiring the subcommittee to limit the production of vitamin C for export and to set export prices. Id., at 202a-204a. Under the regulation delineating this "Export Licensing System," the Ministry issued export licenses only to manufacturers whose export volume and price complied with the output quota and price coordinated by the Vitamin C Subcommittee. Id., at 204a.
In 2002, the Ministry replaced the Export Licensing System with a "Verification and Chop System." Id., at 208a. As set forth in a 2002 Ministry Notice, the Chamber itself-instead of the Ministry-would inspect each export contract and certify its compliance with the coordinated quotas and price by affixing a special seal, known as a "chop." Id., at 208a-209a. China's Customs would allow export only if the exporter presented its contract bearing the Chamber's "chop." Id., at 209a. According to the Ministry, it was implicit in this arrangement that vitamin C exporters would remain under an obligation to fix prices and volumes. Id., at 208a.
The effect of China's regime on the Chinese sellers' liability under the Sherman Act, we note, is not an issue before the Court today.
The complaint, the U.S. purchasers emphasized, was directed only at conduct occurring after December 2001. As they understood the Ministry's 2002 Notice, see supra, at 1870, n. 1, vitamin C exporters could have lawfully opted out of price fixing. Beyond that, the Vitamin C Subcommittee had replaced its 1997 Charter with a new 2002 Charter, App. 182-197, which eliminated the 1997 Charter's requirement that subcommittee members "[s]trictly execute" the "coordinated price" set by the Chamber, compare id., at 85, with id., at 185, and granted members an express "[r]igh[t]" to "freely resign from the Subcommittee," id., at 186.
Compare In re Vitamin C Antitrust Litigation, 837 F.3d 175 (C.A.2 2016) (case below), with In re Oil Spill by Amoco Cadiz, 954 F.2d 1279, 1311-1313 (C.A.7 1992) (adopting French Government's interpretation of French law, but only after considering all of the circumstances, including the French Government's statements in other contexts); United States v. McNab, 331 F.3d 1228, 1239-1242 (C.A.11 2003) (noting Honduran Government's shift in position on the question of Honduran law and determining that the original position stated the proper interpretation); McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101, 1108-1109 (C.A.D.C.2001), vacated in part on other grounds, 320 F.3d 280 (C.A.D.C.2003) (declining to adopt the view of Iranian law advanced by Iranian Government because it was not supported by the affidavits submitted by Iran's experts).
Federal Rule of Criminal Procedure 26.1 establishes "substantially the same" rule for criminal cases. Advisory Committee's 1966 Note on Fed. Rule Crim. Proc. 26.1, 18 U.S.C. App., p. 709.
The Court of Appeals additionally mischaracterized the Ministry's brief as a "sworn evidentiary proffer." 837 F.3d, at 189. In so describing the Ministry's submission, the Court of Appeals overlooked that a court's resolution of an issue of foreign law "must be treated as a ruling on a question of law." Fed. Rule Civ. Proc. 44.1. The Ministry's brief, while a probative source for resolving the legal question at hand, was not an attestation to facts.
The Chinese sellers assert, see Supp. Brief for Respondents 7-8, that the United States sought a greater degree of deference in a 2002 submission to a World Trade Organization panel. In fact, the submission acknowledged that "the Panel is not bound to accept the interpretation [of U.S. law] presented by the United States." Brief for United States as Amicus Curiae 29, n. 6 (quoting Second Written Submission of the United States of America, United States-Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221 ¶ 11 (Mar. 8, 2002)).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America v. LOCAL 560 (I.B.T.), Nominal Defendant (Intervenor), Appellant in No. 91-5440, and Michael Sciarra; Joseph Sheridan, Michael Sciarra, Appellant in No. 91-5441.
Nos. 91-5440, 91-5441.
United States Court of Appeals, Third Circuit.
Argued Feb. 10, 1992.
Decided Aug. 18, 1992.
Michael Chertoff, U.S. Atty., Colette R. Buchanan (argued), Asst. U.S. Atty., Michael Chagares (argued), Asst. U.S. Atty., Robert C. Stewart, Asst. U.S. Atty., Newark, N.J., for appellee.
Samuel J. Buffone (argued), Terrance G. Reed, Asbill, Junkin, Myers & Buffone, Washington, D.C., Michael Critchley, West Orange, N.J., Paul Montalbano, Schneider, Cohen, Solomon, Leder & Montalbano, Cranford, N.J., for appellant in 91-5440, Local 560.
Peter V. Ryan (argued), West Orange, N.J., for appellant in 91-5441, Michael Sci-arra.
Albert G. Kroll, Verona, N.J., for amicus curiae, New Jersey State AFL-CIO, in support of appellants.
Before: BECKER, ROTH, and HIGGINBOTHAM, Circuit Judges.
TABLE OF CONTENTS
PAGE
I. FACTS AND PROCEDURAL HISTORY.322
A. The Local 560 Litigation.322
B. Events Leading to Issuance of the Permanent Injunction Against Sciarra.324
C. Summary.328
II. SCIARRA’S PROCEDURAL OBJECTIONS.328
III. SUFFICIENCY OF THE EVIDENCE TO SUPPORT ISSUANCE OF THE
PERMANENT INJUNCTION.330
A. What the Government Must Prove to Obtain Modification of the Injunction.331
B. Sufficiency of the Evidence.333
IV. ADMISSIBILITY OF THE IANIELLO/ANDRETTA TAPES AGAINST SCIARRA.337
A. Were Sciarra and the Genovese Family Members Co-Conspirators?... 338
B. Were the Statements Made During the Course of the Conspiracy?... 338
V. LOCAL 560’S STANDING TO OBJECT TO THE INJUNCTION.339
A. Overview of Organizational Standing.339
B. Concrete Injury.340
C. Relationship to Organizational Purpose.341
PAGE
VI. LOCAL 560’S FIRST AMENDMENT OBJECTIONS TO THE INJUNCTION.342
A. Introduction. 03 CO
B. Does the Injunction Violate Local 560’s Members’ Associational Rights?. 03 CO
1. Is There a Compelling Governmental Interest?. CO CO
2. Is the Injunction Sufficiently Narrowly Tailored?. ^ CO
a. Ban on Officeholding. Tji CO
b. Other Restrictions of the Injunction. Tjl ^ CO
VII.LOCAL 560’S OBJECTIONS TO THE INJUNCTION BASED ON LMRDA.. ^ CO
A. Section 411(a)(1). o ^ CO
B. Section 411(a)(2)..... CO
VIII.VALIDITY OF THE INJUNCTION UNDER RICO. 347.
IX.CONCLUSION...348
OPINION OF THE COURT ■
BECKER, Circuit Judge.
This case arises from the government’s ongoing effort to purge Local 560, International Brotherhood of Teamsters (“Local 560,” or “the local”), of the influence of organized crime. Through the use of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961 to 1968 (West, 1984 and 1992 Supp.), the government has, over the past ten years, succeeded in imposing a trusteeship on the local and in obtaining court orders enjoining corrupt individuals from participating in the affairs of Local 560. This appeal concerns the government’s efforts to prevent Michael Sciarra, a former Local 560 president and business agent alleged to have links to organized crime, from participating in the -union’s affairs.
The government presented evidence to the district court that, despite prior injunctions issued against some of Local 560’s members, including Sciarra, Sciarra was undeterred in his efforts to retain a role in Local 560 for the Genovese organized crime family. As a result, the district court issued a detailed permanent injunction which enjoined Sciarra from, among other things, holding any position of trust in the local and from attempting to influence the local’s affairs. Both Sciarra and Local 560 appeal from the entry of the injunction against him.
Sciarra points out that the government never filed a formal complaint in the district court pursuant to Rule 3 of the Federal Rules of Civil Procedure (“FRCP”) in seeking this latest injunction, and submits that the district court therefore lacked subject matter jurisdiction to issue it. He also argues that there was insufficient evidence to demonstrate that he was frustrating the purposes of the original, less restrictive injunction issued against him, and that the district court was therefore not entitled to issue this more drastic injunction. Finally, he contends that tapes of recorded conversations between Genovese Family members, which were considered by the district court in deciding to issue the injunction, were erroneously admitted as co-conspirator statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence (“FRE”).
The government responds that its complaint in this portion of the ongoing Local 560 action was an amendment to the original complaint and that, therefore, no new complaint was necessary to initiate this portion of the litigation. Further, the government points to several pieces of evidence which suggest that Sciarra had corrupt dealings with organized crime after entry of the initial injunction against him and contends that this evidence is sufficient to support the more drastic injunctive relief granted by the district court. Finally, the government submits that the tape-recorded conversations admitted against Sciarra were properly received as co-conspirators’ statements under FRE 801(d)(2)(E).
On behalf of its membership, Local 560 objects to the injunction because, it claims, the injunction impermissibly infringes on its members’ First Amendment associational rights. The local also urges that the injunction infringes on its members’ statutorily protected rights under the Labor Management Reporting and Disclosure Act (LMRDA), 29 USCA §§ 401 to 531 (West, 1985 and 1992 Supp), and that section 1964(a) of RICO does not authorize such an injunction. The government concedes that the injunction will infringe on the associational rights of Local 560’s membership under the First Amendment and LMRDA, but argues that the injunction is justified because it is narrowly tailored to further a compelling governmental interest.
For the reasons that follow, we reject the claims of Sciarra and the local and will affirm the judgment of the district court in all respects.
I. FACTS AND PROCEDURAL HISTORY
A. The Local 560 Litigation
Although the government here seeks an injunction only against Sciarra, a review of the lengthy government-initiated litigation against Local 560 is necessary to understand the issues in the present appeal.
In March 1982, the government filed a civil complaint against twelve individuals affiliated with Local 560 who, the government alleged, were involved in facilitating organized crime’s control of Local 560. Five of these individuals — Anthony Proven-zano, Nunzio Provenzano, Steven Andretta, Thomas Andretta, and Gabriel Briguglio— were alleged to be associates of the “Pro-venzano Group,” an organization affiliated with the Genovese organized crime family. The remaining seven defendants — Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J.W. Dildine, Thomas Reynolds, Stanley Jaronko, and Michael Sciarra — were the members of the Executive Board of Local 560 at the time. The government claimed that this latter group of individuals had aided and abetted the Provenzano group in using Local 560 for corrupt ends.
In its complaint, the government alleged that all twelve individuals had violated 18 U.S.C.A. § 1962(c) by engaging in a pattern of racketeering activity, which included murder, numerous acts of extortion, and labor racketeering. See United States v. Local 560 (IBT), 581 F.Supp. 279, 333-34 (DNJ 1984). The government sought in-junctive relief under 18 U.S.C.A. § 1964(a) which would prohibit the five members of the Provenzano Group from having any dealings with Local 560 or its membership. Against the remaining seven individuals, the government sought an injunction barring them from acting in any official capacity on behalf of Local 560. The government further sought to impose a trusteeship on Local 560; the trustee would perform all the functions of the former Executive Board until the environment in the union was appropriate for a free election.
In 1984, after a lengthy trial, the district court granted the relief that the government sought. As a result, the members of the Provenzano Group were prohibited from having any dealings with Local 560. Michael Sciarra and the six other members of the Executive Board were prohibited from acting in an official capacity on behalf of Local 560. Additionally, the court imposed a trusteeship “for such time as is necessary to foster the conditions under which reasonably free supervised elections can be held, presumptively for eighteen months.” See Local 560, 581 F.Supp. at 337.
The imposition of the trusteeship was stayed until all appeals had been resolved. We affirmed the issuance of that injunction. See Local 560, 780 F.2d at 267. On June 23, 1986, the trusteeship was put in place. Thus, more than two years passed between the district court’s order calling for a trusteeship and the actual creation of the trusteeship. During that time, Michael Sciarra succeeded Salvatore Provenzano as the president of Local 560. As we will see, Sciarra’s actions during the two years that he was president of the local are relevant to the determination whether he should now be enjoined from participating in all the affairs of Local 560.
Several orders sought by the government during the ongoing trusteeship of Local 560 generated controversies that required the district court’s and our consideration and are relevant to the present appeal. Among these was an order to show cause issued by the district court in 1988 against Sciarra and Joseph Sheridan, another of the allegedly corrupt officials of Local 560. The order required Sciarra and Sheridan to show cause why they should not be compelled to submit to oral depositions concerning their stewardship during the two-year period in which Sciarra served as president while the appeal was pending. The district judge issued the order at the government’s request and over the objection of Sciarra and Sheridan. On appeal, we affirmed the order to show cause because Sciarra and Sheridan had not demonstrated Article III injury. See Sciarra, 851 F.2d 621.
During the period of trusteeship, the trustee, Edwin Stier, attempted to create an environment in Local 560 in which uninhibited union democracy could flourish. His efforts were vigorously opposed by a group known as Teamsters for Liberty, which severely criticized the trusteeship. Among the Teamsters for Liberty’s adherents were Sciarra, Sheridan, and other individuals who had formerly been found to be under the influence of the Provenzano Group. Despite the emergence of these anti-trusteeship forces, Trustee Stier concluded in 1988, that Local 560 was sufficiently purged of corruption and intimidation to permit free elections. Pursuant to an order obtained from the district court, Stier scheduled an election for officers of the Executive Board, to be held in November 1988.
The Teamsters for Liberty proposed to run Sciarra and Sheridan for Local 560 President and Vice President, respectively, in the November 1988 election. The government, concerned that Sciarra and Sheridan would return control of the local to the Provenzano Group and the Genovese Family, sought an injunction against the candidacies of both men. It did so by filing an “Application for Additional Relief” with the district court. In the Application, the government asserted that Sciarra had remained under the influence of the Ge-novese Family during the*period in which he served as president of Local 560. The Application further alleged that the Ge-novese Family had designs on Local 560 and that Sciarra was crucial in their plan to reassert control.
The district court treated the government’s Application as a motion to amend or supplement the complaint pursuant to Rule 15(a) of the FRCP. After conducting a hearing in September 1988, the court agreed with the government that Local 560 might again become corrupt if a Sciar-ra/Sheridan ticket were to be victorious; the court therefore temporarily enjoined Sciarra and Sheridan from running in the upcoming election. See Local 560, 694 F.Supp. at 1158. We affirmed the issuance of that temporary injunction by judgment order. See Local 560 (IBT), 865 F.2d 253.
Undaunted, the Teamsters for Liberty nominated Daniel Sciarra, Michael Sciarra’s brother, to run for President of Local 560 and Mark Sheridan, Joseph Sheridan’s nephew, to run for Vice President. The election was held on December 6, 1988. In balloting that was apparently fair, the Teamsters for Liberty candidates won. Upon assuming office in January 1989, the new Executive Board almost immediately appointed Michael Sciarra and Joseph Sheridan business agents of the local. The government obtained an order that required both Joseph Sheridan and Michael Sciarra to show cause why they should not be prohibited from holding office in Local 560. The district court initially concluded that there was insufficient evidence to enjoin Sciarra and Sheridan from holding the office of business agent, and both men began serving in that capacity.
A little more than a year later, in early 1990, the government entered into an agreement with Joseph Sheridan whereby Sheridan consented to resign as a business agent of Local 560 and to cease attempting to influence its affairs. The government apparently sought the agreement because it believed that Sheridan was still involved in corrupt activitjes. In February 1990, the government moved, on the basis of new evidence, to bar Michael Sciarra from holding any position of trust in the union. The district court, after holding a hearing, granted a preliminary injunction prohibiting Sciarra from “continuing as a Local 560 business agent, from holding any other position within Local 560 and from seeking to exert influence or control over the affairs of Local 560 or any of its benefit plans.” See United States v. Local 560 (IBT), 736 F.Supp. 601, 613 (D.N.J.1990).
Shortly thereafter, the court began proceedings to determine whether a permanent injunction should issue. After a trial, at which both sides offered evidence, the district court concluded that any exercise of influence by Sciarra would be dangerous to the corruption-free environment of Local 560. Based on section 1964(a) of RICO, the court therefore enjoined Sciarra as follows: Michael Sciarra... is hereby permanently enjoined and prohibited from doing any of the following, to wit:
1. From serving in or otherwise holding any position of trust or employment within and from rendering any form of service (whether or not for remuneration) to Local 560 (IBT) or any of its benefit plans;
2. From attending and otherwise participating in any membership meeting, function or rally — including any public or private demonstration of support for any strike action — sponsored by or otherwise involving Local 560 (IBT), provided, however, that he shall not be precluded from casting a ballot in any election or on any questions if that can be done without attending a meeting of the membership;
3. From attending and otherwise participating in any political rally, fund-raiser or other function of whatever kind or description relating to the political affairs of Local 560 (IBT);
4. From otherwise endeavoring, directly or indirectly, to influence the affairs of Local 560 or any of its benefit plans; and
5. From frequenting the union hall at 707 Summit Avenue, Union City, New Jersey except to the minimum extent necessary to discharge, without any unreasonable delay, a matter of personal union membership-related business, providing that any such matter cannot be reasonably discharged by means of telephone or correspondence.
Both Sciarra and Local 560 have appealed from the entry of this permanent injunction. We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West, 1966 and 1992 Supp.).
B. Events Leading to Issuance of the Permanent Injunction Against Sci-arra
The facts justifying entry of the original injunction against Sciarra in 1984, which prohibited him from representing Local 560 in an official capacity, are detailed in the district court’s original opinion. See Local 560, 581 F.Supp. at 302-03, 325. It suffices to say for present purposes that Sciarra was involved in creating a corrupt environment in Local 560 before 1982. His own testimony at the first proceeding that he would welcome members of the Provenza-no Group back into Local 560 even though they had ordered the murders of those who opposed their interests and had corrupted Local 560, see id, was sufficient to justify entering the initial injunction against him under 18 U.S.C.A. § 1964(a).
In this appeal, however, we are concerned primarily with Sciarra’s conduct after the district court entered the initial injunction. To expand the scope of the injunctive relief against Sciarra, the government must show that events subsequent to that injunction justify additionaf relief. In the present phase, the district court found that, despite the first injunction, Sciarra was undeterred in his willingness to open Local 560 to the corrupting influence of the Genovese Family and the Provenzano Group. This conclusion was based on evidence adduced at various proceedings before the district court which suggested that Sciarra is under the influence of the Genovese Family and that he, in turn, can control the local with minimal contact, and thereby return Local 560 to Genovese Family control. More specifically, the district court held that several pieces of evidence, which we now detail, demonstrated an ongoing violation of 18 U.S.C.A. § 1964 that justifies prohibiting Sciarra from attempting to influence the local in any way.
1. Intercepted Wire Conversations
First, the district court relied on a series of tape-recorded conversations between various individuals affiliated with the Pro-venzano Group and the Genovese Family. The government claims that the conversations, which primarily concerned the Pro-venzano Group’s efforts to retain control over Local 560 after entry of the district court’s injunction, demonstrate the continued involvement of Sciarra in organized crime.
The tapes recorded the following conversations: 1) a conversation between Matthew Ianiello, a so-called “captain” in the Genovese Family, and Stanley Jaronko, a member of the Executive Board of Local 560, concerning how the Genovese Family would retain control over the local after the district court’s initial decision imposing the trusteeship; 2) two conversations between Ianiello and Stephen Andretta, also concerning how the Genovese Family could retain control over Local 560; and 3) a conversation among Anthony Salerno, the then-boss of the Genovese Family, Louis Gatto, a captain in the Family, and two other individuals concerning how the Ge-novese Family could retain control over Local 560. During all four of these conversations, the participants discussed controlling the local through “Michael,” “Mike,” “Mikey,” or “Mikey Sciarra.”
The district court agreed with the government that the tapes demonstrated that the Genovese Family was attempting to maintain control over Local 560 by controlling Michael Sciarra:
The tapes constitute strong evidence that the Genovese Crime Family intended to maintain its control over Local 560 during the pendency of the appeal from Judge Ackerman’s March 16, 1984 Judgment Order, during any period of trusteeship, and thereafter. The tapes constitute strong evidence that this control was to be exercised through Anthony Salerno’s caporegime Matthew Ianiello and that Ianiello, upon the advice of Stephen Andretta, selected Michael Sciarra to be the man on the scene at Local 560 to whom orders and instructions could be given.
Local 560, 694 F.Supp. at 1178.
2. The New England Motor Freight “Sweetheart” Deal
The government also presented evidence in the district court that there was a “sweetheart” relationship between Local 560 and a trucking company, New England Motor Freight (NEMF), from 1975 through mid-1986, and that Sciarra facilitated the relationship during its latter stages. NEMF was party to a collective bargaining agreement with a bargaining unit affiliated with Local 560. Moreover, until 1977, NEMF was party to the Teamsters National Master Freight Agreement (NMFA), the industry-wide agreement governing the trucking industry. The government presented evidence that during the 1970s, Myron Shevell, NEMF’s president, cultivated a corrupt relationship with various officials inside Local 560, including Anthony Provenzano and Stephen Andretta. The leadership of Local 560 agreed with Shevell in the late 1970’s to allow NEMF to deviate from the NMFA in its employment practices. This allowed NEMF to expand its non-unionized workforce and gradually to decrease the size of the Local 560 collective bargaining unit that was working at NEMF. Although the record is not entirely clear on this point, the leadership of Local 560 apparently received some benefit in return.
Evidence presented in the district court suggested that the corrupt arrangement between Local 560 and NEMF continued beyond the entry of the initial injunction in 1984. Three pieces of evidence link the corrupt post-injunction dealings between NEMF and Local 560 during this period to Sciarra.
First, in 1983, Salvatore (“Sammy”) Pro-venzano, then the president of Local 560, became disenchanted with the local’s arrangement with NEMF and directed that a grievance be filed against NEMF alleging unfair labor practices. The grievance asserted that all NEMF warehousemen and drivers were covered by the NMFA and that NEMF, in deviating from the terms of the NMFA, had engaged in an unfair labor practice. But not everyone in the Proven-zano Group and the Genovese Family was pleased by the souring of relations between Local 560 and NEMF. The recorded conversations between Ianiello and Andretta reveal that they wanted to undo Provenza-no’s effort to punish NEMF through the grievance procedure. Ianiello suggested a way to do so during their December 7, 1984 conversation:
Ianiello: Michael’s business. Let’s let Michael try to square it (unintelligible).
Andretta: Sammy [Provenzano], but Sammy got shoved out of the office. He’s gotta step down, he kept pushing the guy. Instead of letting him go, nobody gets in trouble.
Ianiello: Yeah, I wanted to do it.
Andretta: He came to tell Mikey last month (unintelligible). He says don’t let up on the fucking guy. Crucify and bury him. I said no you gonna get five guys locked up with the mother fucker.
Ianiello: Don't do it. Tell Mikey not to do it.
Local 560, 754 F.Supp. at 404. The district court found that this was a reference to allowing Sciarra to repair damaged relations with NEMF. See Local 560, 754 F.Supp. at 404; Local 560, 694 F.Supp. at 1179.
Second, Sciarra’s actions during 1984 and 1985 demonstrate that he was attempting to solidify the corrupt relationship between NEMF and Local 560. In January 1985, Sciarra sent a proposed collective bargaining contract to NEMF’s attorney, which the district court found was unreasonably favorable to NEMF. The district court further found that Sciarra sent this collective bargaining agreement to NEMF in order to preserve the corrupt relationship and to prevent officials at NEMF from revealing its corrupt dealings with certain individuals affiliated with Local 560, including Ianiello and Andretta.
Third, the district court found that the behavior of Daniel Rubino, Local 560’s business agent for NEMF, demonstrated that Sciarra was under the influence of the Genovese Family in conducting Local 560’s affairs. Rubino testified at grievance proceedings twice — once while Salvatore Pro-venzano was president of Local 560 and once while Sciarra was president. The critical issue in Rubino’s testimony was whether “past practices” in NEMF’s relationship with Local 560 justified NEMF’s deviations from the NMFA. When Provenzano was president and was vigorously pressing grievance claims against NEMF, Rubino testified that no such past practices had occurred, thereby advancing Provenzano’s desire to punish NEMF. After Sciarra had become Local 560’s president, however, and the Genovese Family was trying to appease Shevell, Rubino testified extensively that there had been' past practices and gave numerous details. See Local 560, 754 F.Supp. at 404; Local 560, 694 F.Supp. at 1180-81. The district court found that this evidence “tend[s] to confirm that Sciarra was implementing Ianiello’s and Andretta’s instructions.” Local 560, 754 F.Supp. at 404.
Based on these three pieces of evidence, the district court concluded that Sciarra was following instructions from the Ge-novese Family about NEMF in order 1) to prevent disclosure of past criminal dealings between the company and Genovese Family members affiliated with Local 560 and 2) to preserve the improper relationship between the local and NEMF. Id.
3. Sciarra’s Retention of Corrupt Officials
The district court also found that Sciar-ra’s decisions with regard to the administration of the welfare and benefit funds of Local 560 demonstrate that he was still under the influence of the Genovese Family. Two instances of conduct were relevant to the district court’s decision. First, Sciarra declined to remove Marvin Zalk from the position of Administrator of the Local 560 Welfare Plans despite Zalk’s 1983 conviction for obstruction of justice with regard to the Local 560 Dental Plan and despite the district court’s clear finding in the first proceeding that Zalk had long been involved in the Provenzano Group’s efforts to use Local 560 and its benefit funds for organized crime purposes. See Local 560, 581 F.Supp. at 285. Sciarra attempts to justify this decision on the grounds that Zalk was an effective administrator, but the district court found that the Zalk appointment was evidence that Sciarra remained under the influence of the Genovese Family after 1984.
Second, Sciarra voted to extend a lucrative contract with the law firm of Citrino, Balsam, and DiBiasi to provide legal services to union members despite strong evidence that the firm’s services were valueless to the membership of Local 560 and despite evidence that some of the law firm’s members were corrupt. The firm had been retained in the late 1970s by another local, which subsequently merged into Local 560. After the merger, the legal services plan provided services only for those who had formerly been members of the old local. In mid-1984, however, the leadership of Local 560 sought to expand the legal services plan to provide coverage for all members of Local 560. Sciarra, acting as a member of the Executive Board, helped create this plan despite the fact that Citrino, Balsam and DiBiasi had never accounted for any of the $500,000 that had been paid to them previously and despite the indictment of partner Thomas DiBiasi on bank fraud charges.
The Executive Board also approved a $50,000 “advance” for DiBiasi, which was never formally accounted for. Additionally, the firm’s managing partner, L. William Balsam, was suspended from the practice of law in January 1985. Nevertheless, Sci-arra, acting as a trustee of the Legal Services Plan, voted to give the firm a new three-year contract in April 1985. The district court concluded that these actions “must be viewed as corroborative of Sciar-ra’s... continued participation in the Ge-novese Family conspiracy to maintain control of Local 560 in violation of RICO.” Local 560, 694 F.Supp. at 1184.
4. Evidence Based on Sciarra’s Service as a Business Agent in 1989 and 1990
The district court also relied on Sciarra’s service as a business agent for Local 560 in 1989-90 to demonstrate his domination by the Genovese Family and the continued danger to Local 560. The district court found that the elected leaders of Local 560 in 1989 and 1990, Daniel Sciarra and Mark Sheridan, were leaders in name only. The district court found that Michael Sciarra was able to use his position as business agent to dominate the local’s affairs, which, in turn, placed Local 560 under the influence of the Genovese Family. The court further found that Sciarra was exercising control both over the affairs of the local and over the administration of Local 560’s benefit and pension funds.
In reaching its conclusion, the district court relied heavily on videotapes of union meetings at which Sciarra spoke. The court’s opinion details the enormous deference that the membership accorded Sciarra when speaking and his role in running the meetings. See Local 560, 736 F.Supp. at 607-10. The court concluded from observation of the tapes that they were “further evidence of Michael Sciarra’s determination to dominate both the Local itself and also the benefit funds.” Id. at 611-12.
The court also found that Sciarra attempted to become a fund trustee of the Local 560 pension and welfare funds, and that, but for the continued presence of the Trustee Edwin Stier, the Executive Board would have appointed him to such a position. The court found that at Executive Board meetings, Daniel Sciarra sought access for his brother to a trustee position. Despite the admonitions of Trustee Stier, members of the Executive Board continued to attempt to appoint Michael Sciarra to a trustee position. Robert Marra, one of the fund trustees, testified that he and two other employee fund trustees stood ready to step aside as trustees to provide room for Michael Sciarra as a fund trustee. The district court concluded that this behavior further evidenced influence by the Ge-novese Family.
Finally, the court also concluded, based on Sciarra’s own testimony, that Sciarra was still meeting with members of the Ge-novese Family. Sciarra himself admitted that he met with a driver for the Genovese Family, Jimmy Ida, at least seven times between 1987 and 1989. Additionally, surveillance revealed that Sciarra met with a caporegime in the Genovese Family, Stephen Andretta, at a diner during 1990. The district court inferred from this that Sciarra was receiving instructions about how to conduct the affairs of Local 560 to the Genovese Family’s benefit.
C. Summary
From all of the evidence, the district court concluded:
As long as Michael Sciarra holds any position within Local 560 he will be able through his forceful and dominating personality, through his hold on a large and vocal segment of the membership and by virtue of the inexperience and subservience of the present officers and Board members to dominate and control the Local. His continued presence presents a Hobson’s choice. Either the court trusteeship will have to be continued indefinitely to prevent renewal of organized crime or else the trusteeship can be terminated with the likely result that once again organized crime will assert its influence.
Local 560, 736 F.Supp. at 612. Consequently, the court entered the injunction barring Sciarra from attempting to influence the affairs of Local 560. See page 324. Both Sciarra and Local 560 appeal, alleging numerous errors in the district court’s decision. We consider Sciarra’s arguments first.
II. SCIARRA’S PROCEDURAL OBJECTIONS
Sciarra raises a number of procedural objections to the government’s effort to obtain a broader injunction against him. Primarily, his arguments derive from the fact that no complaint was ever filed against him in the present proceedings seeking to bar him from all efforts to influence the union. Although he acknowledges that a complaint was filed against him and the other Local 560 defendants in 1982, he contends that that action terminated as of March 16, 1984, the date the initial injunction was entered against them.
We begin by acknowledging that the procedure that the government followed for commencing this portion of the action against Sciarra was, indeed, unusual. On July 18,1988, the government filed an “Application for Additional Relief” with the district court. Ten days later, after a hearing, the government sought leave to have the Application treated as an Amended Supplemental Complaint, which the district court granted pursuant to Rule 15(d). The court did so because, in the language of FRCP 15(a), it felt that “justice so require^].”
Sciarra objects to the district court’s permitting amendment of the original complaint in an action that had already terminated. For the government to seek additional relief, according to Sciarra, it was required to file an entirely new complaint. Sciarra’s argument is bolstered by our statement in an earlier appeal in the Local 560 litigation that Sciarra and Sheridan were no longer parties to the litigation:
[W]e conclude that [Sciarra and Sheridan] are, at this point, only non-party witnesses to an investigation, rather than parties to an actual case or controversy designed to adjudicate their substantive rights.
United States v. Sciarra, 851 F.2d 621, 630 (3d Cir.1988).
Sciarra argues that this procedural defect requires dismissal of the suit against him for three reasons. First, he asserts that there is no Article III case or controversy because, under FRCP 3, a case can only be commenced by the filing of an action. Second, he submits that there is no personal jurisdiction over him because no summons and complaint were ever served on him. See FRCP 4. Third, he contends that the March 16, 1984 order barred additional relief under the principle of res judicata. See United States v. Athlone Industries, 746 F.2d 977, 983 and 983 n. 4 (3d Cir.1984).
Whatever the merits of these arguments, we are foreclosed from considering them by the law of the case. In the prior appeal, United States v. Local 560, 865 F.2d 253 (3d Cir.1988), Sciarra appealed from the entry of a preliminary injunction that barred him from running in the election for president of the Local 560 Executive Board. The preliminary injunction was entered pursuant to the government’s Application for Additional Relief, subsequently modified to become an amended and supplemental complaint. On appeal, Sciarra pressed precisely the same arguments about procedural defectiveness that he presses here. In affirming (by judgment order), we necessarily held that the district court had properly allowed the Application for Amended Relief to serve as an amendment to the original complaint.
When an appellate court decides a legal issue, that decision governs all subsequent proceedings in the same case. See Devex v. General Motors, 857 F.2d 197, 199-200 (3d Cir.1988). This rule promotes the “judicial system’s interest in finality and in efficient administration.” Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir.1982) (citations omitted). Had we found any merit in any of the three arguments just mentioned — that no case or controversy existed, that the court lacked personal jurisdiction over Sciarra, or that this claim for injunctive relief was precluded by the res judicata effect of the prior injunction — we would have been compelled to vacate the preliminary injunction entered by the district court. The first two arguments are jurisdictional, and, regardless of the merits, the absence of either subject matter or personal jurisdiction would have compelled us to dismiss the case. The third argument, concerning res judicata, if correct, would have precluded both preliminary and permanent relief, and also would have required dismissal of the case. By affirming, we rejected those arguments, all actually pressed, on the merits, and our decision is the law of the case.
Sciarra attempts to avoid the preclusive effect of our affirmance by pointing out that we merely affirmed the grant of a preliminary injunction. He notes that a decision on the merits to grant (or to affirm the grant of) a preliminary injunction does not constitute the law of the case. That is, in subsequently deciding whether permanent relief should issue, the court is free to reconsider the merits of the case. See, for example, William G. Wilcox D. O., P. C. v. United States, 888 F.2d 1111, 1113 (6th Cir.1989); Golden State Transit Corp. v
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_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.
BLACK et al. v. UNITED STATES.
Circuit Court of Appeals, Sixth Circuit.
June 30, 1925.
No. 4312.
1. Criminal law <§=l 114(1) — Errors not shown by Record cannot be reviewed.
Claimed errors, not appearing from the record, cannot be considered by the appellate court.
2. Criminal law <§=720(5) — Statement of district attorney held not prejudicial error.
Where a witness for the prosecution, who. was then in jail serving a sentence, testified that he had not been promised any leniency because of his testimony, a statement by the district attorney that he would recommend that the time of the witness be cut down held not prejudicial error.
3. Criminal lav/ <§=901 — Motion for directed verdict waived by introduction of evidence.
A motion by defendant for directed verdict at the close of the government’s evidence is waived by the introduction of evidence by defendant.
In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon. Hieks, Judge.
Criminal prosecution by the United States against W. P. Black and Roxie Cook. Judgment of conviction, and defendants bring error.
Affirmed.
Certiorari denied 46 S. Ct. 25, 70 L. Ed.
S. E. N. Moore, of Knoxville, Tenn., for plaintiffs in error.
Geo. C. Taylor, U. S. Atty., of Knoxville, Tenn.
Before DONAHUE and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
PER CURIAM.
In reference to the first and second assignments of error and the claim made in the brief for plaintiff in error, but not assigned as error in the original petition, that defendant was not in court when sentence was imposed, it is sufficient to say that this court cannot consider claimed errors not exhibited by the record.
A witness offered by the government had been theretofore convicted of one or more offenses and sentenced by the District Court to a term or terms in jail. He testified on cross-examination : That he was still in jail serving such sentence, and that “nobody came down there and told me I could have a little time off if I would testify about Black. * * * They didn’t tell me they would make it a little easier on me. I wasn’t looking for any time off.” It was not prejudicial error for the district attorney to state, after the witness had so testified: “I will say to you I am going to recommend that his time he cut down.”
An assignment of error that no evidence was offered tending to prove that the offense charged was a second offense must be overrated, where it appears that during the trial of the cause counsel for the accused, in his presence, admitted in open court that the accused had theretofore been convicted of a like offense.
Where, at the conchision of the government’s evidence, the defendant moves the court for a directed verdict, and the motion is overruled and exception noted, the error, if any, is waived by the introduction of further evidence on behalf of the defendant.
The verdict and judgment in this case are fully sustained by substantial evidence.
Judgment affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Enrique Caciedo ESCOBAR, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 90-2904.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1991.
Decided June 4, 1991.
A. Frank Johns, Jr., argued, Booth, Harrington, Johns & Campbell, Greensboro, N.C., for petitioner.
Lori Lynn Scialabba, argued, Stuart M. Gerson, Asst. Atty. Gen., David J. Kline, Asst. Director, Civ.Div., U.S. Dept, of Justice, Washington, D.C., for respondent.
Before SPROUSE and WILKINSON, Circuit Judges, and ELLIS, District Judge for the Eastern District of Virginia, sitting by designation.
ELLIS, District Judge:
This appeal presents the question, unresolved in this circuit, whether the prevailing party against the government in a deportation proceeding is entitled to an award of attorney’s fees under the Equal Access to Justice Act (“EAJA” or “the Act”), 5 U.S.C. § 504. We join several circuits in concluding that such an award is not authorized. In essence, we conclude that the EAJA allows appeals only from fee determinations in adversary adjudications “under [5 U.S.C.] section 554” of the Administrative Procedure Act (“APA”), and that deportation proceedings are not adjudications “under” § 554 of the APA. Accordingly, we dismiss this appeal.
I.
Enrique Escobar-Caicedo is a thirty six year-old native and citizen of Colombia. He entered this country lawfully as an immigrant in September 1965. He has continuously resided here since then.
In the spring of 1973, Escobar was arrested and charged with conspiracy to possess cocaine. At the time, he was under the age of twenty one. In 1974, he pled guilty to the charge and was sentenced to twelve months imprisonment with the execution of all but two (2) months of the sentence suspended. He served the two (2) months and an additional three (3) years of probation. The Immigration and Naturalization Service (“INS”) did not detain him at the time- of his plea or sentence. Three years later, the conviction was set aside pursuant to then-existing law governing the issuance of certificates setting aside the convictions of youthful offenders. See 18 U.S.C. § 5021, repealed 98 Pub.L. 473 (1984). The genesis of this matter is, in large measure, attributable to the parties’ failure in a timely manner to establish the setting aside of the conviction in the deportation proceeding record.
As noted, the INS took no action against Escobar in 1974, at the time of his plea or sentence. Not until June 1979, after Esco-bar had sought replacement of his Form 1-151, did the INS seek the issuance of a show cause order on the ground that Esco-bar’s 1974 conviction rendered him subject to deportation pursuant to 8 U.S.C. § 1252. The show cause order issued and a hearing was set for December 20, 1979. Escobar, who by then had moved with his family from New York to North Carolina, returned to New York for the hearing. At the hearing, Escobar was found deportable, but the file reflects that he applied for a waiver pursuant to 8 U.S.C. § 1182(c) and that his file was then forwarded within the INS for review. Nothing happened thereafter for almost five years. Then, in 1984, the INS sent Escobar a new notice of hearing to his old New York address. In 1987, another hearing notice was sent to the stale New York address. Escobar did not receive either of these notices.
In 1989, Escobar was incarcerated in North Carolina for civil contempt. This apparently occurred as a result of a dispute he had with his then estranged wife. While incarcerated in March 1989, Escobar was served with an INS warrant for his detainer and arrest based on the 1979 show cause order, which in turn was based on Escobar’s 1974 federal misdemeanor conviction as a juvenile. He was taken into custody by the INS, which set a $25,000 bond for his release. At a hearing later in March, Escobar’s counsel stated she was prepared to proceed on the issue of bond redetermination, but not on Escobar’s § 1182(c) waiver request. The matter was continued for a full hearing in April. At that hearing, Escobar’s counsel withdrew the waiver request, but requested a continuance to seek expungement of Escobar’s conviction. The request was granted, but Escobar’s counsel failed by the deadline date to submit any evidence that the conviction was subject to expungement or had been expunged. The parties dispute whether a further continuance was requested. In any event, on June 1,1989, the immigration judge issued a decision stating that Escobar should be deported and denying a bond reduction request. Escobar appealed this decision to the Board of Immigration Appeals (“BIA”), which remanded the bond redetermination order to the immigration judge to make certain required findings. At the subsequent bond redeter-mination hearing, Escobar’s counsel suggested that Escobar’s conviction may already have been expunged. Once this fact was verified, the INS requested the BIA to reopen and terminate the deportation proceedings against Escobar. On October 24, 1989, the BIA granted this request.
One month later, Escobar, by counsel, filed a motion for attorney’s fees under the EAJA with the Executive Office of Immigration Review. The motion was referred to the immigration judge, who denied it. Escobar’s counsel then advised that he intended the fee request to be made to the BIA, which then also denied the request, noting that the Attorney General “has determined that immigration proceedings do not come within the scope of the EAJA.”
This appeal followed.
II.
We are presented with a question of statutory interpretation. With such questions, it is axiomatic that the “starting point ... is always ‘the language [of the statute] itself.’ ” United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986), quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). Thus, the starting point in determining whether the EAJA applies to deportation proceedings is section 504(a)(1) of the Act, which provides that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and expenses incurred by that party in connection with that proceeding_” 5 U.S.C. § 504(a)(1) (emphasis added). And according to section 504(b)(1)(C) of the Act, “ ‘adversary adjudication’ means (i) an adjudication under Section 55j of this title [the Administrative Procedure Act] in which the position of the United States is represented by counsel or otherwise_” (Emhpasis added.) Therefore, whether the EAJA’s fee award provision applies to deportation proceedings turns on whether such proceedings are adjudications “under” the APA. We conclude they are not.
The first step in the interpretive effort is to ascertain whether the language in issue has a plain and ordinary meaning, for there is a strong presumption “that the legislative purpose is expressed by the ordinary meaning of the [statutory] words used.” American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). Indeed, this inquiry may end the interpretive effort, for “when ... the terms of a statute [are] unambiguous, judicial inquiry is complete, except “in ‘rare and exceptional circumstances.’ ” Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (citations omitted); United States v. Lund, 853 F.2d 242, 245 (4th Cir.1988).
In our view, the phrase “under Section 554 [of the APA]” has a plain and ordinary meaning. It means “governed by” or “subject to” section 554 of the APA. Contrary to Escobar’s contention, it does not mean “as defined by” or “related or akin to” the APA. Such a meaning for the phrase would be strained and unusual. Given our conclusion as to the phrase’s plain meaning, it follows that INS deportation proceedings do not fall within the EAJA’s fee award provision, for it has long been settled that such proceedings are not subject to or governed by the APA. See Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (deportation proceedings governed solely and exclusively by regulations promulgated under the Immigration and Naturalization Act, although APA served as a model for such regulations); see also Giambanco v. INS, 531 F.2d 141, 144 (3d Cir.1976); Cisternas-Estay v. INS, 531 F.2d 155, 158-59 (3d Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 127 (1976); Ho Chung Tsao v. INS, 538 F.2d 667, 669 (5th Cir.1976) (per curiam), cert. denied, 430 U.S. 906, 97 S.Ct. 1176, 51 L.Ed.2d 582 (1977). In sum, we conclude that the plain meaning of the EAJA fee award provision compels the con-elusion that the EAJA does not apply to INS deportation proceedings.
In reaching this conclusion, we join the Third, Fifth, Eleventh and D.C. Circuits, each of which has squarely decided this issue. See Clarke v. INS, 904 F.2d 172 (3d Cir.1990); Hodge v. U.S. Department of Justice, INS, 929 F.2d 153 (5th Cir.1991); Ardestani v. U.S. Dept. of Justice, 904 F.2d 1505 (11th Cir.1990), cert. granted, — U.S. -, 111 S.Ct. 1101, 113 L.Ed.2d 212 (1991); Full Gospel Portland Church v. Thornburgh, 927 F.2d 628 (D.C. Cir.1991) (per curiam). As the opinions of Judge Fay for the Eleventh Circuit and Chief Judge Higginbotham for the Third persuasively demonstrate, this conclusion is fully consistent with the pertinent legislative history. See Ardestani, 904 F.2d at 1510-13; Clarke, 904 F.2d at 175-77; see also Hodge, 929 F.2d at 157. Also persuasively demonstrated in these decisions is the propriety of limiting the EAJA phrase “under section 554 of [the APA]” to its plain meaning of “governed by,” such limitation being commanded not just by the well-established plain meaning rule, but also by the principle that waivers of sovereign immunity, which is what an expansion of the EAJA fee award provision amounts to, must be strictly construed in favor of the sovereign. See Ardestani, 904 F.2d at 1509-10; Clarke, 904 F.2d at 176; Hodge, 929 F.2d at 158; see also Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983) (waiver of sovereign immunity “must be ‘construed strictly in favor of the sovereign’ ” and not “ ‘enlarge[d] ... beyond what the language requires.’ ” (Internal citations omitted.)
Yet another factor supporting our reading of the EAJA fee award provision is that Congress, apparently quite aware of the provision’s limited scope, has expanded the definition of “adversary adjudications” in two instances previously considered to be outside the EAJA’s scope. In 1985, Congress overruled Fidelity Const. Co. v. United States, 700 F.2d 1379 (Fed.Cir.), cert, denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983), by amending § 504(b)(1)(C) to add specific proceedings under the Contract Disputes Act of 1978, 41 U.S.C. § 605. See H.R.Rep. No. 120 (part 1), 99th Cong., 1st Sess. 15, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 144. Next, in 1986 Congress amended the same EAJA section to add proceedings under the Program Fraud Civil Remedies Act, 31 U.S.C. § 3801, to the list of “adversary adjudications” eligible for EAJA fee awards. While not conclusive on the question at bar, these amendments reflect Congress’ awareness that the scope of the EAJA fee award provision is limited to “adversary adjudications,” i.e., those “under” or governed by the APA. This history teaches that the question whether INS deportation proceedings are to come within the EAJA fee award provision is one properly committed to Congress.
While we join three circuits in the conclusion we reach today, it is necessary to note, as Escobar correctly points out, that one circuit has reached the contrary conclusion. In Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc), the Ninth Circuit held that the EAJA applies to INS deportation proceedings. In reaching this result, the Ninth Circuit concluded that the statutory term “under” was ambiguous and that policy considerations reflected in the legislative history warranted giving the term an expansive reading. Specifically, the Ninth Circuit found that “under” meant “as defined by,” which, as it happened, was essentially the same language as that used in a 1980 House Conference report to describe an “adversary adjudication” under the EAJA. We disagree. Instead, we find convincing the extensive criticism of Esco-bar Ruiz found in Clarke and Ardestani and in Owens v. Brock, 860 F.2d 1363 (6th Cir.1988), a Sixth Circuit decision holding that the EAJA fee award provision does not apply to Federal Employee Compensation Act proceedings because such proceedings are not “under” or governed by the APA. In Owens, Chief Judge Engel described as “ephemeral” the bit of legislative history on which Escobar Ruiz is based. The D.C. Circuit has also criticized Escobar Ruiz. In St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446 (D.C.Cir. 1989), the D.C. Circuit held that the EAJA fee award provision does not apply to a proceeding challenging a Department of Energy price regulation remedial order. In reaching this result, the D.C. Circuit panel rejected the Escobar Ruiz analysis and result. The D.C. Circuit found no ambiguity in the phrase “under section 554 [of the APA]” and no warrant in the legislative history for an expansive reading of the phrase, especially in light of the rule that doubts about the scope of a waiver of sovereign immunity should be resolved in favor of the government. See 890 F.2d at 449-51.
Escobar Ruiz rests, it seems, on the expressed concern about difficulties unrepresented aliens face in INS deportation proceedings. We are not unsympathetic to these concerns, but they cannot legitimately serve to justify stretching statutory language beyond its plain meaning. Congress drew a “bright line” between those proceedings in which fees may be awarded under the EAJA and those not so covered. See St. Louis Fuel & Supply Co., 890 F.2d at 451. INS deportation proceedings fall on the non-EAJA side of this bright line. Only Congress, if it chooses, can change this.
Accordingly, we affirm the BIA’s conclusion that the EAJA fee award provision has no application to INS deportation proceedings.
DISMISSED.
. Section 1182(c) confers discretion on the Attorney General under certain circumstances to admit aliens convicted of drug offenses,
. There is no dispute that deportation proceedings meet the other aspects of the “adversary adjudication" definition. They are proceedings in which “the position of the United States is represented by counsel or otherwise.” 5 U.S.C. § 504(b)(l)(C)(i).
.Also significant is that everywhere the term "under" appears elsewhere in EAJA, it can have no other meaning but "subject to” or “governed by." See 5 U.S.C. § 504(a)(2), (c)(2), (d); see also St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446, 450 (D.C.Cir.1989).
.The EAJA renders the United States liable for attorney's fees which it would otherwise not owe. See Spencer v. NLRB, 712 F.2d 539, 544 (D.C.Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_lcdisposition
|
D
|
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.
UNITED STATES v. BROCKAMP, administrator of the ESTATE OF McGILL, DECEASED
No. 95-1225.
Argued December 3, 1996
Decided February 18, 1997
Deputy Solicitor General Wallace argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Argrett, Kent L. Jones, Gilbert S. Rothenberg, and Bridget M. Rowan.
Robert F. Klueger argued the cause and filed a brief for respondents.
Together with United States v. Scott, also on certiorari to the same court (see this Court’s Rule 12.4).
Justice Breyer
delivered the opinion of the Court.
The two cases before us raise a single question. Can courts toll, for nonstatutory equitable reasons, the statutory time (and related amount) limitations for filing tax refund claims set forth in §6511 of the Internal Revenue Code of 1986? We hold that they cannot.
These two cases present similar circumstances. In each case a taxpayer initially paid the Internal Revenue Service (IRS) several thousand dollars that he did not owe. In each case the taxpayer (or his representative) filed an administrative claim for refund several years after the relevant statutory time period for doing so had ended. In each case the taxpayer suffered a disability (senility or alcoholism), which, he said, explained why the delay was not his fault. And in each case he asked the court to extend the relevant statutory time period for an “equitable” reason, namely, the existence of a mental disability — a reason not mentioned in §6511, but which, we assume, would permit a court to toll the statutory limitations period if but only if, §6511 contains an implied “equitable tolling” exception. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056 (2d ed. 1987 and Supp. 1996); see also Wolin v. Smith Barney, Inc., 88 F. 3d 847, 852 (CA7 1996) (defining equitable tolling).
In both cases, the Ninth Circuit read §6511 as if it did contain an implied exception that would permit “equitable tolling.” It then applied principles of equity to each case. It found those principles justified tolling the statutory time period. And it permitted the actions to proceed. 67 F. 3d 260 (1995); judgt. order reported at 70 F. 3d 120 (1995). All other Circuits that have considered the matter, however, have taken the opposite view. They have held that §6511 does not authorize equitable tolling. See Amoco Production Co. v. Newton Sheep Co., 85 F. 3d 1464 (CA10 1996); Lovett v. United States, 81 F. 3d 143 (CA Fed. 1996); Webb v. United States, 66 F. 3d 691 (CA4 1995); Oropallo v. United States, 994 F. 2d 25 (CA1 1993) (per curiam); and Vintilla v. United States, 931 F. 2d 1444 (CA11 1991). We granted certiorari to resolve this conflict. And we conclude that the latter Circuits are correct.
The taxpayers rest their claim for equitable tolling upon Irwin v. Department of Veterans Affairs, 498 U. S. 89 (1990), a case in which this Court considered the timeliness of an employee’s lawsuit charging his Government employer with discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. The Court found the lawsuit untimely, but nevertheless tolled the limitations period. It held that the “rule of equitable tolling” applies “to suits against the Government, in the same way that it is applicable” to Title VII suits against private employers. 498 U. S., at 94-95. The Court went on to say that the “same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id., at 95-96.
The taxpayers, pointing to Irwin, argue that principles of equitable tolling would have applied had they sued private
defendants, e. g., had they sought restitution from private defendants for “Money Had and Received.” See C. Keigwin, Cases in Common Law Pleading 220 (2d ed. 1934). They add that given Irwin’s language, there must be a “presumption” that limitations periods in tax refund suits against the Government can be equitably tolled. And, they say, that “presumption,” while “rebuttable,” has not been rebutted. They conclude that, given Irwin, the Ninth Circuit correctly tolled the statutory period for “equitable” reasons.
In evaluating this argument, we are willing to assume, favorably to the taxpayers but only for argument’s sake, that a tax refund suit and a private suit for restitution are sufficiently similar to warrant asking Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply? But see Flora v. United States, 362 U. S. 145, 153-154 (1960) (citing Curtis’s Administratrix v. Fiedler, 2 Black 461, 479 (1863)) (distinguishing common-law suit against the tax collector from action of assumpsit for money had and received); George Moore Ice Cream Co. v. Rose, 289 U. S. 373, 382-383 (1933); see also Plumb, Tax Refund Suits Against Collectors of Internal Revenue, 60 Harv. L. Rev. 685, 687 (1947) (describing collector suit as a fiction solely designed to bring the Government into court). We can travel no further, however, along Irwin’s road, for there are strong reasons for answer-Irwin’s question in the Government’s favor.
Section 6511 sets forth its time limitations in unusually emphatic form. Ordinarily limitations statutes use fairly simple language, which one can often plausibly read as containing an implied “equitable tolling” exception. See, e. g., 42 U. S. C. § 2000e-16(c) (requiring suit for employment discrimination to be filed “[w]ithin 90 days of receipt of notice of final [EEOC] action ... ”). But § 6511 uses language that is not simple. It sets forth its limitations in a highly detailed technical manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions. Moreover, §6511 reiterates its limitations several times in several different ways. Section 6511 says, first, that a
“[c]laim for ... refund ... of any tax ... shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed . . . within 2 years from the time the tax was paid.” 26 U. S. C. §6511(a).
It then says that
“[n]o credit or refund shall be allowed or made after the expiration of the period of limitation prescribed . . . unless a claim for . . . refund is filed . . . within such period.” § 6511(b)(1).
It reiterates the point by imposing substantive limitations:
“If the claim was filed by the taxpayer during the 3-year period ... the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return. .. .” § 6511(b)(2)(A).
And
“[i]f the claim was not filed within such 3-year period, the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 years immediately preceding the filing of the claim.” § 6511(b)(2)(B).
The Tax Code reemphasizes the point when it says that refunds that do not comply with these limitations “shall be considered erroneous,” §6514, and specifies procedures for the Government’s recovery of any such “erroneous” refund payment. §§ 6532(b), 7405. In addition, §6511 sets forth explicit exceptions to its basic time limits, and those very specific exceptions do not include “equitable tolling.” See § 6511(d) (establishing special time limit rules for refunds related to operating losses, credit self-employment taxes, worthless securities, and bad debts); see also United States v. Dalm, 494 U. S. 596, 610 (1990) (discussing mitigation provisions' set forth in 26 U. S. C. §§ 1311-1314); §507 of the Revenue Act of 1942, 56 Stat. 961 (temporarily tolling limitations period during wartime).
To read an “equitable tolling” provision into these provisions, one would have to assume an implied exception for tolling virtually every time a number appears. To do so would work a kind of linguistic havoc. Moreover, such an interpretation would require tolling, not only procedural limitations, but also substantive limitations on the amount of recovery — a kind of tolling for which we have found no direct precedent. Section 6511’s detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read other unmentioned, open-ended, “equitable” exceptions into the statute that it wrote. There are no counter-indications. Tax law, after all, is not normally characterized case-specific exceptions reflecting individualized equities.
The nature of the underlying subject matter — tax collection — underscores the linguistic point. The IRS processes more than 200 million tax returns each year. It issues more than 90 million refunds. See Dept, of Treasury, Internal Revenue Service, 1995 Data Book 8-9. To read an “equitable tolling” exception into §6511 could create serious administrative problems by forcing the IRS to respond to, and perhaps litigate, large numbers of late claims, accompanied by requests for “equitable tolling” which, upon close inspection, might turn out to lack sufficient equitable justification* See H. R. Conf. Rep. No. 356, 69th Cong., 1st Sess., 41 (1926) (deleting provision excusing tax deficiencies in the estates of insane or deceased individuals because of difficulties involved in defining incompetence). The nature and potential magnitude of the administrative problem suggest that Congress decided to pay the price of occasional unfairness in individual cases (penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement system. At the least it tells us that Congress would likely have wanted to decide explicitly whether, or just where and when, to expand the statute’s limitations periods, rather than delegate to the courts a generalized power to do so wherever a court concludes that equity so requires.
The taxpayers’ counterrebuttal consists primarily of an interesting historical analysis of the Internal Revenue Code’s tax refund provisions. They try to show that §6511’s specific, detailed language reflects congressional concern about matters not related to equitable tolling. They explain some language, for example, in terms of a congressional effort to stop taxpayers from keeping the refund period open indefinitely through the device of making a series of small tax payments. See S. Rep. No. 398, 68th Cong., 1st Sess., 33 (1924). They explain other language as an effort to make the refund time period and the tax assessment period coextensive. See H. R. Rep. No. 2333, 77th Cong., 2d Sess., 52 (1942). Assuming all that is so, however, such congressional efforts still seem but a smaller part of a larger congressional objective: providing the Government with strong statutory “protection against stale demands.” Cf. United States v. Garbutt Oil Co., 302 U. S. 528, 533 (1938) (statute of limitations bars untimely amendment of claim for additional refund). Moreover, the history to which the taxpayers point reveals that §6511’s predecessor tax refund provisions, like §6511, contained highly detailed language with clear time limits. See, e. g., § 281(b) of the Revenue Act of 1924, ch. 234, 43 Stat. 301 (4-year limit on claims for overpayment of income, war-profits, or excess-profits tax and cap on refund amount); § 322(b) of the Revenue Act of 1932, ch. 209,47 Stat. 242 (2-year limit for claim filing and corresponding limit on refund amount); Internal Revenue Code of 1954, 68A Stat. 808 (adopting current alternative time and amount limitations); see also §810 of the Revenue Act. of 1932, ch. 209, 47 Stat. 283 (imposing time and amount limits for estate tax refunds). And that history lacks any instance (but for the present cases) of equitable tolling. On balance, these historical considerations help the Government’s argument.
For these reasons, we conclude that Congress did not intend the “equitable tolling” doctrine to apply to §6511’s time limitations. The Ninth Circuit’s decisions are
Reversed.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Christopher STONE, Plaintiff-Appellant, v. Arthur AGNOS, et al., Defendants-Appellees.
No. 91-15206.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 9, 1992.
Decided April 3, 1992.
Richard A. Canatella, San Francisco, Cal., for plaintiff-appellant.
G. Scott Emblidge, Deputy City Atty., San Francisco, Cal., for defendants-appel-lees.
Before: NOONAN, RYMER and TROTT, Circuit Judges.
NOONAN, Circuit Judge:
Christopher Stone brought an action against Arthur Agnos, Mayor of San Francisco; Frank Jordan, Chief of Police of San Francisco; and the City and County of San Francisco (the City) alleging that the defendants violated his constitutional rights by his arrest and confiscation of his property. The district court granted summary judgment for the defendants. We affirm.
BACKGROUND
According to Stone’s declaration, the following are .the facts of the case:
Stone was a homeless person living on the streets of San Francisco, making a living as a street musician. In April 1990 he became “the Homeless Task Force Coordinator,” i.e. an apparently self-appointed spokesman for homeless persons, speaking for six evenings in April on KGO TV in opposition to Mayor Agnos’ homeless policy-
Stone lived in a tent at Civic Center Plaza, a public square owned by the city. One evening in April two San Francisco police officers seized his tent and took it away in a police vehicle. The officers told Stone that Mayor Agnos had “directed the immediate removal of tents of homeless people from the plaza.”
On the morning of July 6, 1990, police arrived in force at the plaza and, pursuant to earlier notices, told the persons who slept in the plaza that they must leave it. Stone told the police that the shelters were full and there was no place to go. The police insisted he leave. When the media arrived he made a public statement in opposition to the mayor’s homeless policy. He continued to refuse to leave. His personal property was then seized, including a guitar and case, bedding, clothes, toiletries, food preparation items, radio, cash, jewelry, books, and papers. He was also arrested and jailed for four days. “Much” of the property “was destroyed.” The criminal case against him was later dismissed.
THE SUIT
Stone sued the defendants alleging that Mayor Agnos and Chief Jordan “deliberately and intentionally conspired” to violate his right to privacy and to assemble, associate and express his views in support of the homeless in violation of the First Amendment to the United States Constitution; that these defendants also deliberately and intentionally conspired to violate his right to be secure in person and property against unreasonable seizure and arrest in violation of the Fourth Amendment; and that the defendants also deliberately and intentionally conspired to deprive him of liberty and property in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Stone alleged that this conspiracy, conducted under color of state law, violated 42 U.S.C. § 1983 (1988) and 42 U.S.C. § 1985 (1988). He also alleged violations of the California Constitution.
The defendants submitted the declaration of Police Captain Dennis Martel stating that he arrested Stone on July 6, 1990, after Stone had been advised four times to leave the Civic Center area and had over a period of IV2 hours refused to do so. Martel further declared that Stone’s property had been confiscated but not destroyed. He further declared that he had made the decision to have Stone arrested and that “neither Mayor Agnos nor Chief Frank Jordan had any role in the decision to arrest Mr. Stone.”
The district court granted summary judgment for the defendants. Stone appeals.
ANALYSIS
Stone first argues that his arrest violated the First Amendment because it was a suppression of his right of free speech. He contends that his sleeping in the park as well as his communications to the media were expressions protected by the First Amendment; that his sleeping in a public place “dramatized” the plight of the homeless.
Stone appears to make two First Amendment claims: that he was arrested in retaliation for his speech, and that the expressiveness of his conduct renders the statute invalid as applied. As to the first, Stone has produced not the slightest evidence that his arrest by Captain Martel was for any communication made by him or that his arrest was ordered by Mayor Ag-nos and Chief Jordan. Stone’s continued presence in the plaza was a violation of California Penal Code § 647(i) (West 1988) which makes it a misdemeanor to lodge in any place, whether public or private, without the permission of the owner. As far as the record shows, Martel alone decided to arrest him for this crime.
Stone’s as-applied attack relies on Texas v. Johnson, 491 U.S. 397, 402-04, 109 S.Ct. 2533, 2538-39, 105 L.Ed.2d 342 (1989). Although sleeping would seem to be the antithesis of speaking, we need not determine whether Stone’s conduct was a form of expression. To meet Johnson’s state-interest prong, Stone argues that the city’s interest in maintaining its parks in attractive condition “is simply not implicated,” id., at 407, 109 S.Ct. at 2541, by unpermit-ted camping. This contention is wrong. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984). The as-applied attack fails.
Second, Stone argues that his arrest was a violation of the Fourth Amendment. This argument supposes that he was arrested for exercising his right of free speech. The argument fails with his failure to produce evidence to substantiate his free speech claim and his failure to implicate either the mayor or the police chief.
Stone, additionally, contends that the destruction of his property violated the Fourteenth Amendment. Accepting for the purposes of summary judgment that much of his property was destroyed, we find no evidence that it was destroyed in violation of the Fourteenth Amendment. He asserts no facts showing that the police behaved unreasonably. To sustain the claim he must show that the taking of the property was unreasonable. Mere negligence of the police would not violate the due process clause, and he would have no federal claim for such negligence if it occurred. Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir.1986), disapproved on other grounds, Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989). Nor does Stone make any showing whatsoever that the mayor or the police chief effected the destruction, which Stone concedes was contrary to city policy.
AFFIRMED.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_respond1_8_3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
WOODHOUSE v. BURLING et al.
No. 6203.
United States Court of Appeals for the District of Columbia.
Argued Jan. 9, 1935.
Decided Feb. 25, 1935.
Raymond M. Hudson, of Washington, D. C., for appellant.
Wm. Merrick Parker and Edward B. Burling, both of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
MARTIN, Chief Justice.
An appeal from an order of the lower court dismissing an amended bill of complaint filed by appellant as plaintiff below.
The amended bill of complaint named as defendants the following parties, to wit, Washington Airport, Inc., National Aviation Corporation, Edward B. Burling, Washington Air Terminals Corporation, Federal Aviation Corporation, H. Rozier Dulany, trustee, Arthur Herbert, trustee, and National Airport Corporation. The prayer of the bill was for a discovery, the appointment of a receiver, an injunction, a judgment, and general relief.
Motions were filed by defendants Burling and Dulany, respectively, praying that the bill be dismissed on the ground, among others, that the averments contained in it were insufficient to constitute a valid cause of action. The lower court sustained the motions and dismissed the amended bill of complaint, from which order the plaintiff has taken this appeal.
In the bill the plaintiff alleges in substance and effect that the defendant Washington Airport, Inc., was indebted to plaintiff upon various claims for damages in the sum of $1,425,500 then due and unpaid; that the debtor corporation was insolvent and that a judgment had been entered against it in the circuit court for Arlington county, Va., on May 16, 1930, in favor of the Airports Corporation of the United States, Inc., in the sum of $661; and that an execution on the judgment had been issued and returned “nulla bona” by the sheriff of Arlington county.
Plaintiff alleges that the corporation on June 30, 1933, was the owner of a certain described tract of real estate situate in the state of Virginia, and that on July 17, 1933, the defendants Dulany and Burke, as trustees, acting under a certain deed of trust, sold the same at public auction to defendant Edward B. Burling for the sum of $432,000, which sum was about $2,000 more than the secured debts and costs. Plaintiff does not deny the validity of the deed of trust under which the sale was made nor the amount of the indebtedness thereby secured, nor the regularity of the sale, nevertheless, plaintiff alleges that the sale was made “for and on behalf of the defendant, National Aviation Corporation, and those allied with it in its schemes to prevent just creditors of the Washington Airport, Inc., from being able to collect what is due.them from the Washington Airport, Inc., assets, and the said Burling has, or will, convey his rights therein to the said National Aviation Corporation.”
Plaintiff also alleges that on July 14, 1933, the Washington Airport, Inc., was the owner of certain other described real estate situate in the state of Virginia, and that on July 31, 1933, the defendants Dulany and Herbert, as trustees under a deed of trust, sold the same at public auction to Ludington Bros, at the price of $174,500, being'the exact amount of the first trust which the Ludingtons held upon the property. The plaintiff does not deny the amount or validity of the indebtedness secured by the trust deed, nor the regularity of the proceedings of the trustees thereunder, but alleges that defendant National Aviation Corporation, being desirous of purchasing the property, attempted and succeeded in preventing plaintiff and other just creditors of Washington Airport, Inc., particularly the holders of the second trust upon the property, from bidding at the sale. The plaintiff alleges that the trustees who sold the several tracts under the trust deeds have “brought into the District of Columbia” the money which they have received from the sale of the property, or will receive when the balance of the purchase price is paid to them, and that there is no way for the coürts of the state of Virginia to reach the same. The plaintiff therefore prays that the court appoint a receiver to collect from the trustees the sum of- $432,-000, the purchase price of the property sold on July 17, 1933, and’the sum of $174,500 for the purchase price of that sold on July 31, 1933; that the plaintiff be granted a judgment against Washington Airport, Inc., the National Aviation Corporation, and other defendants in the sum of $1,430,600; that the receiver be required to divide the proceeds of the several sales between the plaintiff and other creditors of Washington Airport, Inc.; that the defendants be enjoined and restrained from removing the money or any property of the Washington Airport, Inc., from the District of Columbia; and that the defendants be required to make discovery of and state any and all contracts and understandings between them in relation to the transactions above set out.
We think that the lower court was right in sustaining the motion to dismiss the plaintiff’s bill for want of merit. The plaintiff is an unsecured creditor of the Washington Airport, Inc., and his claim has never been reduced to judgment. It is established by the authorities that a receiver for the property of an alleged debtor will not be appointed by a court of equity at the instance of a creditor whose claim has not been reduced to judgment. This requirement is not satisfied by the fact that another and different creditor has secured a judgment against the debtor and failed to collect the same by execution. Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 14 S. Ct. 127, 37 L. Ed. 1113; Pusey & Jones v. Hanssen, 261 U. S. 491, 497, 43 S. Ct. 454, 67 L. Ed. 763.
Moreover, the allegations contained in the bill of complaint do not disclose any fraudulent conduct of the part of the Washington Airport, Inc., the alleged debtor, nor any effort on its part to defeat the collection of the plaintiff’s claims by ordinary legal procedure, nor that its assets are being concealed or dissipated. The only actual conduct which is set out in the bill as fraudulent is the effort of the National Aviation Corporation to prevent bidding at the trustees’ sale of the second tract of land. It is not-alleged that this corporation is insolvent, and, moreover, it appears that it has not been served with process in this case, and, consequently, that no valid order or judgment can be entered against it herein.
It is alleged in the bill that Dulany, trustee, is a nonresident of Virginia and that under the Virginia law a nonresident cannot act as such trustee, and, consequently that his acts in that capacity were illegal. It is not denied, however, that his co-trustees in the several deeds of trust were residents of Virginia; and we find no authority for the statement that a deed of trust made in that state to two trustees, one being a resident of Virginia and the other being a nonresident, would be invalid. It seems that such a claim is impliedly contradicted by the provisions of section 5400a of the Virginia Code of 1930. Moreover, it should be remembered that the courts of Virginia have jurisdiction of questions of title and legal procedure in reference to real estate located in that state, and those courts were open to the plaintiff and all questions relating to the validity of the deeds of trust should have been litigated there. It may be noted, moreover, that the plaintiff in the present suit seeks the appointment of a receiver to collect and disburse the funds accruing from the sale of the property made by the trustees under the deeds of trust which plaintiff at the same time claims were invalid.
The decree of the lower court is affirmed with costs.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_appnonp
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Joseph L. KANALEY, an Infant over Fourteen Years of age, by Leola P. Kanaley, his duly appointed Guardian ad Litem, Plaintiff-Appellant, v. DELAWARE, LACKAWANNA & WESTERN RAILROAD CO., Inc., Defendant-Appellee.
No. 17, Docket 25430.
United States Court of Appeals Second Circuit.
Argued Oct. 15, 1959.
Decided Nov. 12, 1959.
Gordon H. Mahley, Syracuse, N. Y. (H. O. Beach, Oswego, N. Y., Rice & Auser, Fulton, N. Y., on the brief), for plaintiff-appellant.
Raymond Hackbarth, Syracuse, N. Y. (Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, N. Y., on the brief), for defendant-appellee.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.
PER CURIAM.
Plaintiff, an infant over the age of fourteen years, by his guardian appeals from a judgment dismissing the complaint at the close of plaintiff’s case for failure to prove negligence and failure to prove plaintiff free from contributory-negligence. The action originally commenced in the Supreme Court for Oswego County (New York) was removed to the federal court (28 U.S.C.A. §§ 1332, 1441).
There is virtually no dispute as to the material facts. On April 6, 1957, plaintiff, with two friends, was walking along a public highway in the City of Fulton, New York. A freight train, operated by defendant, was slowly crossing the street. One of plaintiff’s friends jumped on one of the cars; plaintiff jumped on a ladder on the car directly behind. Plaintiff was holding a basketball under his right arm. As the car passed the freight house, plaintiff came into contact with the building causing him to jump to a ledge on the side of the building. Still holding the basketball, he attempted to leap again onto the ear but fell to the tracks where the wheels ran over his right arm necessitating amputation.
Under the law of New York (applicable here) plaintiff was a trespasser to whom defendant would be liable only for wanton and reckless conduct or, as sometimes phrased, an affirmative act of negligence. This rule has been consistently adhered to by the New York courts, the exception being situations in which the defendants were guilty of some affirmative act of negligence, such as, threatening gestures causing children to jump from moving trains or permitting deceptive traps (e. g., a flimsy wooden cover over a deep hole) to present an appearance of solid support.
In a most recent decision, Lo Casto v. Long Is. R. Co., 6 N.Y.2d 470, 190 N.Y.S.2d 366, 160 N.E.2d 846, July 8, 1959, the New York Court of Appeals reaffirmed the law applicable here, saying: “The controlling law was restated in Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 158, 71 N.E.2d 447, 449, as follows: ‘ “Toward mere trespassers or bare licensees the rule is well settled that the only duty owing to them by the owner or oecupier of land is to abstain from inflicting intentional, wanton or willful injuries unless he maintains some hidden engine of destruction” ’. The Carbone opinion cites many other holdings and the existence of the rule is not really disputed” (6 N.Y.2d at page 474, 190 N.Y.S.2d at page 369, 160 N.E.2d at page 848.
Accepting all the facts established here by plaintiff, the trial court correctly determined that they were insufficient to establish a cause of action in plaintiff’s favor. This decision is in conformity with New York law, well summarized in Gloshinsky v. Bergen Milk Transportation Co., 1938, 279 N.Y. 54, at page 59, 17 N.E.2d 766, at page 768: “There are no conflicting inferences to be drawn from the testimony. But a single determination is possible from the facts and that is that the boy exercised no care at all for his own safety, and under those circumstances, as a matter of law, the plaintiffs failed to sustain the burden resting upon them to show that he was free from negligence contributing to his injuries,” citing Wendell v. N. Y. C. & H. R. R. Co., 1883, 91 N.Y. 420, and Camarado v. New York State Railways, 1928, 247 N.Y. 111, 159 N.E. 879.
The judgment is affirmed.
. Lo Casto v. Long Is. R. R. Co., 1959, 6 N.Y.2d 470, 190 N.Y.S.2d 366, 160 N.E. 2d 846; Van Houten v. New York, N. H. & H. R. Co., 1956, 2 N.Y.2d 739, 157 N.Y.S.2d 376, 138 N.E.2d 737; Van Houten v. Long Island Railroad Co., 2nd Dept. 1952, 279 App.Div. 1099, 112 N.Y.S.2d 678; Carbone v. Mackchil Realty Corp., 1946, 296 N.Y. 154, 71 N.E.2d 447; Ralff v. Long Island Railroad Co., 2nd Dept. 1943, 266 App.Div. 794, 41 N.Y.S.2d 620, affirmed 1944, 292 N.Y. 656, 55 N.E.2d 518; Morse v. Buffalo Tank Corp., 1939, 280 N.Y. 110, 19 N.E.2d 981; Walsh v. Fitchburg R. Co., 1895, 145 N.Y. 301, 39 N.E. 1068, 27 L.R.A. 724.
. Clark v. N. Y., L. E. & W. R. Co., 1889, 113 N.Y. 670, 21 N.E. 1116; McCann v. Sixth Ave. R. Co., 1889, 117 N.Y. 505, 23 N.E. 164; Ansteth v. Buffalo Railway Co., 1895, 145 N.Y. 210, 39 N.E. 708.
. Le Roux v. State, 1954, 307 N.Y. 397, 121 N.E.2d 386, 46 A.L.R.2d 1063; Mayer v. Temple Properties, 1954, 307 N.Y. 559, 122 N.E.2d 909.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_usc2
|
18
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Plaintiff-Appellee, v. Ronald C. BRECHTEL and Phillip H. Gattuso, Defendants-Appellants.
No. 92-3342.
United States Court of Appeals, Fifth Circuit.
Aug. 2, 1993.
Rehearing Denied Sept. 21, 1993.
Frank G. DeSalvo, New Orleans, LA, for Ronald C. Brechtel.
Patrick Fanning, New Orleans, LA, for Phillip H. Gattuso.
Peter Strasser, Herbert W. Mondros, Asst. U.S. Attys., and Harry Rosenberg, U.S. Atty., New Orleans, LA, for the U.S.
Before POLITZ, Chief Judge, KING and DUHÉ, Circuit Judges.
PER CURIAM:
Ronald Brechtel and Phillip Gattuso appeal their convictions of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006. Finding no reversible error in either Brechtel’s or Gattuso’s convictions, we affirm.
Background
Brechtel and Gattuso served as directors of Enterprise Federal Savings & Loan (EFS & L). Brechtel also served as secretary of the board and as a member of the loan committee. In addition to their involvement with EFS & L, Brechtel and Gattuso had interests in the Saulet and Ames Farm partnerships, two real estate development concerns owning land in Jefferson Parish, Louisiana. Gattuso’s cousin Roy Gattuso managed those partnerships.
In 1984 and 1985, Gattuso executed documents by which Saulet and Ames Farm granted options on parcels of land. Stavros Amitsis, holder of the Saulet option, had exhausted his credit line and could not secure financing at EFS & L to purchase this property. Nikitas Pepis and Lynn Yao — two Am-itsis associates — sought EFS & L loans with which to purchase the Saulet and Ames Farm parcels. Marilyn Ortalano, an EFS & L loan officer, informed the loan committee that if the loans were approved, Amitsis ultimately would receive the proceeds thereof. She also informed them that Robert Evans, EFS & L’s board chairman, wanted the Yao and Pepis loans approved to keep Amitsis afloat. Brechtel urged the loan committee to approve the transactions.
On December 18, 1984, the $420,000 Pepis loan received committee approval. At a January 11, 1985 closing, Saulet sold its parcels to G & N Enterprises, a company recently acquired from Amitsis by Paul Baltas and Lloyd Broussard. G & N paid Saulet $52,-500 cash and executed a note for the balance of the $350,000 purchase price, securing the credit portion with a mortgage on the property. Brechtel and Gattuso both signed the instrument transferring the Saulet parcels to G & N. Later that day, as planned, Pepis took title to the parcels in a second closing and assumed the note executed by G & N. EFS & L received a second mortgage on the Saulet parcels as security for the Pepis loan. Six days later, the full EFS & L board approved the Pepis loan. Loan committee notes circulated at the board meeting reflected that the Saulet property secured that loan. Although board minutes for the January 17, 1985 meeting note the presence of Brechtel and Gattuso, the minutes reflect no disclosure by either of them of their interest in the Pepis transaction. Gattuso testified that he informed Evans of his and Brechtel’s interest and that both abstained from the vote of approval.
In March 1985, the loan committee approved the $500,000 Yao transaction. The record contains no minutes reflecting approval of this loan by the full EFS & L board. On April 1, 1985, Yao took title to the Ames Farm parcel, giving in return cash and a note secured by the property. Brechtel and Gat-tuso attended.that closing and signed the act of sale. EFS & L received a second mortgage on the Ames Farm property.
By 1986, Pepis and Yao were experiencing difficulty meeting their obligations under the Saulet and Ames Farm notes. On April 22, 1986, to avoid a foreclosure EFS & L purchased the first mortgage on the Saulet parcels. On April 29, 1986, Gattuso and Bre-chtel were advised by letter from Roy Gattu-so of Yao’s delinquency on the Ames Farm note and that Yao would seek to refinance his debt to the partnership through EFS & L. Roy Gattuso also advised that if Yao failed to obtain supplemental financing through EFS & L, foreclosure proceedings would be initiated. On June 19,1986, the EFS & L board approved a $1.8 million loan permitting Yao to work out his financial problems. Brechtel, but not Gattuso, attended the June 19 meeting. Brechtel testified that he disclosed his and Gattuso’s interest in the Yao loan and abstained from voting on it. The minutes from the June 19 meeting and the testimony of two other board members belie Brechtel’s statement.
The grand jury indicted Brechtel and Gat-tuso on four counts of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006. Counts one and two related to the initial loans by EFS & L to Pepis and Yao, respectively; count three to EFS & L’s buyout of the Pepis mortgage, and count four to EFS & L’s final loan to Yao. The district court denied motions by both Brechtel and Gattuso to dismiss counts of the indictment as multi-plieitous. The jury acquitted Brechtel and found Gattuso guilty on count one, found both defendants guilty on counts two and four, and acquitted both defendants on count three. Brechtel and Gattuso unsuccessfully moved for judgment of acquittal and for new trial. The district court sentenced both defendants to one year of halfway house confinement, payment of incarceration costs and the statutory assessments, and restitution to the Resolution Trust Corporation. Brechtel and Gattuso timely appealed.
Analysis
On appeal, both defendants challenge the sufficiency of the evidence and contend that the district court improperly permitted testimony regarding their violation of civil banking regulations. Brechtel further challenges the district court’s refusal to: (1) dismiss counts of the indictment as multiplicitous, (2) permit his presentation of habit evidence, and (3) grant him a new trial. He also maintains that the statute of limitations barred his prosecution.
1. Multiplicity
Brechtel first faults the district court’s denial of his motion to dismiss portions of the indictment on multiplicity grounds. An indictment is multiplicitous if it charges a single offense in multiple counts, thus raising the potential for multiple punishment for the same offense, implicating the fifth amendment double jeopardy clause. Legislative intent typically is dispositive of the multiplicity inquiry. When considering an indictment charging separate offenses arising from a series of related acts, we must determine whether Congress intended separate punishments. Where a defendant suffers convictions on multiplicitous counts, we must remand so that the government may dismiss improper charges and the trial court may resentence the defendant. Like other determinations regarding double jeopardy, we review district court rulings on multiplicity claims de novo.
Brechtel suggests that the two loans to Yao constituted individual steps in an overarching scheme to procure improper benefit from EFS & L through sale of the Ames Farm parcel. By charging the two Yao transactions as separate offenses, Brechtel argues that the government improperly splintered a single offense. He claims that in United States v. Lemons, we found that multiplicity tainted an indictment under identical circumstances. We are not persuaded.
Lemons involved a bank-fraud prosecution under 18 U.S.C. § 1344. The indictment charged Lemons with separate violations of § 1344 for each of eight occasions on which he indirectly received or caused the bank to disburse funds. We noted that, although Lemons improperly received and caused disbursement of bank funds on several occasions, his acts constituted a single execution of a fraudulent scheme. We thus concluded, relying on the language of § 1344, that the indictment charged a single violation in multiple counts.
Because of the differences between 18 U.S.C. § 1006 and § 1344 Lemons is not dispositive of the case at bar. Rather than punishing “execut[ion]... of a scheme or artifice to defraud,” 18 U.S.C. § 1006 punishes bank officials.who “reeeive[ ]... any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of... [the] institution.” This language suggests intent to punish receipt of improper benefit from individual transactions, rather than from overarching schemes. Brechtel violated § 1006 each time he benefited from an extension of credit to Yao. The district court properly rejected his contrary contention.
2. Limitations Period
Brechtel next asserts that the five-year limitations period of 18 U.S.C. § 3282 bars his prosecution. He urges that the ex post facto clause of Article I, § 9, cl. 3 of the Constitution precludes application to him of the ten-year limitations period provided for by 18 U.S.C. § 3293. This argument mis-perceives the law.
Recent Supreme Court teachings reject the proposition that retroactive legislation violates the ex post facto clause merely because it adversely affects the position of criminal defendants. Rather, that clause prohibits only enactment of statutes which: (1) punish as a crime an act previously committed which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive one charged with a crime of any defense available according to law at the time when the act was committed. Only statutes withdrawing defenses related to the definition of the crime, or to the matters which a defendant might plead as justification or excuse fall within the latter group. Plainly, extension of the limitations period neither criminalizes previously innocent conduct nor enhances the punishment for an existing crime. Further, while § 3293 deprives Brechtel of the five-year limitations period in effect when the questioned transactions occurred, it did not deprive him of a defense within the meaning of the ex post facto clause. This contention lacks merit.
3. Habit Evidence
At trial, Brechtel sought to present testimony by his stock broker James Man-gum. Through Mangum’s testimony, Brechtel sought to establish that, as a matter of habit, he took an entirely passive role in his real estate and stock investments, permitting advisors to act on his behalf without inquiry into the substance of the transactions they proposed. Mangum’s testimony, Brechtel asserts, would have tended to negate the mental state required for conviction under § 1006 by demonstrating ignorance regarding his interests in the Ames Farm and Saulet parcels. The district court excluded Mangum’s testimony under Fed.R.Evid. 403, finding any probative value it might have had substantially outweighed by its likely tendency to confuse jurors.
Relying on our opinion in United States v. Riley, Brechtel argues that the district court erred in refusing to permit Mangum’s testimony. The defendant in Riley, indicted for misapplication of bank funds under 18 U.S.C. § 656, sought to introduce evidence that the institution routinely engaged in transactions similar to those underlying the charges against him. Because the trial court’s exclusion of that evidence effectively prevented Riley from presenting his defense—that he believed the transactions proper and hence lacked fraudulent intent— we reversed the conviction. Brechtel contends that Riley mandates reversal in the instant ease. We do not agree.
Mangum’s proffered testimony did not involve Brechtel’s business relationship with real estate advisor Sam Gattuso. Further, it involved Brechtel’s standard operating procedure for stock transactions, which involve substantially less formality than the real estate transactions here at issue. Thus, Man-gum’s proffered testimony had at best tenuous relevance and, even if relevant, would have had far less probative force than the evidence at issue in Riley. The chain of analogies required to ground relevance of this evidence might well have rendered it confusing to the jury. Well-settled rubrics consign rulings on admissibility of evidence to sound trial court discretion, and require particular appellate court deference to rulings under Fed.R.Evid. 403 based on the risk of jury confusion. While the discretion which district courts enjoy does not extend to the exclusion of crucial relevant evidence establishing a valid defense, the questionable relevance, low probative value and potential for jury confusion presented by Mangum’s testimony distinguish this case from Riley and persuade that its exclusion did not amount to an abuse of discretion.
1/.. Evidence of Regulatory Violations
Both Brechtel and Gattuso claim that the district court erred in permitting testimony by Ronald Hall, an examiner with the Office of Thrift Supervision. Over defense objection, Hall testified that regulations require directors to disclose any interest they may have in transactions under consideration by the bank and abstain from deliberations concerning such transactions, and prohibit loans in which bank officials have an interest unless made directly to the official in question. They argue that this testimony improperly suggested criminal liability flowing from a civil violation, and further improperly suggested the criminal intent required to convict them under § 1006. Mindful that an abuse of discretion standard governs our review of evidentiary rulings, we find this argument lacks adequate persuasive force.
In United States v. Christo, relied upon by Brechtel and Gattuso, we reviewed a prosecution for misapplication of bank funds in which the government presented evidence of civil banking regulations which limited the amount of credit which the bank could extend to the defendant. Finding this evidence irrelevant to the issue of criminal liability, we held that in view of prosecution arguments and “the whole tenor of the trial,” jury instructions permitting a conviction based upon the civil violation constituted plain error. Later cases have understood Christo as being principally concerned with bootstrapping of civil violations into criminal liability, and have permitted use of civil violation evidence in criminal prosecutions for more limited purposes. Further, we and our colleagues in other circuits have recognized the value of limiting instructions in attenuating any improper effect of such evidence when used for a permissible purpose.
The ease at bar differs substantially from Christo. Testimony regarding civil regulations constituted only a minor portion of Hall’s testimony. To the extent that he mentioned disclosure requirements, they permissibly assisted the jury in understanding the significance of EFS & L’s board minutes and management disclosures to thrift authorities. Hall’s statement concerning the prohibition on interested director transactions properly tended to demonstrate the defendants’ motive for nondisclosure. The government did not argue that any civil regulatory violation by Brechtel and Gattuso could alone give rise to criminal liability, and the district court admonished the jury that “[a] violation of banking regulations in and of itself does not amount to criminal conduct under federal law. The government must prove the elements of the offense beyond a reasonable doubt.” We cannot conclude that Hall’s testimony regarding civil regulations “impermis-sibly infectfed] the very purpose for which the trial was being conducted.” The district court did not abuse its discretion in permitting Hall’s testimony.
5.'Sufficiency of the Evidence
Both Brechtel and Gattuso challenge the sufficiency of the evidence supporting their convictions. In order to convict a defendant of improper participation in bank transactions under § 1006, the government must demonstrate: (1) the defendant’s connection with a protected institution; (2) direct or indirect receipt of some benefit from a bank transaction; and (3) intent to defraud. Brechtel and Gattuso claim only that the government adduced insufficient evidence of their criminal intent.
We have long recognized the § 1006 insider participation provision as a typical conflict of interests prohibition. Thus, a fiduciary who benefits or causes loss to the bank by knowingly subordinating the institution’s interests to his own in a transaction for which he has responsibility acts with the “intent to defraud” required by § 1006. As direct evidence of mental state is seldom available, the government may demonstrate that element of a § 1006 violation by circumstantial evidence. An inference of intent to defraud arises where a responsible bank insider acts to procure a transaction which he knows will benefit him, without disclosing his interest therein.
Well-settled law governs our sufficiency inquiry. We must view the evidence, giving due regard to the trier’s credibility calls, and draw all reasonable inferences which favor the verdict. If the evidence so viewed would permit a rational jury to find all elements of the crime beyond a reasonable doubt, we must affirm the conviction. The evidence need not exclude all hypotheses of innocence. Applying these standards, we find the evidence sufficient to support the convictions in this case.
a. Brechtel
Special Agent David Lyons of the F.B.I. testified that Brechtel acknowledged an expectation that Yao would use proceeds of both EFS & L loans for purchase of the Ames Farm parcel. The jury properly could discredit Brechtel’s denial on the witness stand that he ever had such an understanding. Marilyn Ortalano’s testimony permitted a jury conclusion that Brechtel knowingly failed to disclose his interest in the initial Yao transaction and acted to procure its approval by the loan committee. Such evidence adequately supports Brechtel’s conviction on count two.
With regard to count four, Roy Gat-tuso’s April 29 letter and Breehtel’s claim that he abstained from voting on the Yao workout loan reflect Brechtel’s knowledge of his interest in that transaction on June 19, the date it obtained board approval. Discrediting Brechtel’s contrary testimony, the jury reasonably could have inferred from the absence of contrary mention in the June 19, 1986 board minutes that Brechtel failed to disclose his interest in the latter Yao transaction and participated in its consideration. Brechtel’s conviction on count four finds ample support in the record.
b. Gattuso
EFS & L minutes and Gattuso’s own testimony indicate his presence at the meeting during which the board ratified the initial Pepis loan. Gattuso’s insistence on the witness stand that he informed Bob Evans of his interest in that transaction and that he and Brechtel left the January 17 meeting during its consideration permitted the jury to conclude that Gattuso.knew at that time of his interest in the initial Pepis loan. Discrediting Gattuso’s contrary assertion, the jury could infer from absence of any mention in the minutes regarding Gattuso’s departure from the meeting, abstention from voting on the Pepis transaction, or disclosure of an interest in that transaction, that he did none of those things. Sufficient evidence supports Gattuso’s conviction on count one.
Although a closer case than count one, we likewise believe that constitutionally sufficient evidence supports Gattuso’s conviction on the second count of the indictment. The key issue here is whether there was sufficient evidence of Gattuso’s intent to defraud EFS & L regarding the first of the two loans made by EFS & L to Yao on March 19, 1985. As discussed above, Yao paid over the proceeds from that loan to the partnership in which Gattuso and Brechtel possessed an interest.
At trial, the government’s theory regarding Gattuso’s guilt on the second count was that he attended the March 19, 1985 board meeting and even voted to approve the first Yao loan, while both knowing of his indirect pecuniary interest in the loan and without disclosing that interest to the board. We agree with the government that a section 1006 violation is clearly established when a member of a federally insured financial institution’s board fails to disclose a direct or indirect pecuniary interest in a loan being approved by the board. The only question regarding Gattuso’s conviction on count two is whether there was sufficient evidence from which a rational jury could find beyond a reasonable doubt that Gattuse both knew about the first Yao loan before it was finalized and failed adequately to disclose his interest in the loan to responsible persons at EFS & L.
Because there is little question that no disclosure occurred by Gattuso or Brechtel regarding the partnership’s interest in the first Yao loan, our chief inquiry is whether the evidence at trial, which was wholly circumstantial, would permit a rational jury to find beyond a reasonable doubt that Gattuso knew that EFS & L was making a loan to Yao. At the outset, we observe that three larger circumstances militate in favor of such a finding: first, a jury could rationally conclude that a sophisticated real estate broker such as Gattuso—who had been in the real estate business for over three decades— would not likely have been in the dark about important business transactions directly affecting a partnership in which he had a significant interest. This is particularly true in view of the substantial evidence that Gattuso himself, on behalf of the partnership, signed the documents closing the sale of the Ames property to Yao contemporaneously with the finalization of the first loan to Yao.
Second, we observe that there was substantial evidence that Gattuso’s co-defendant and business partner, Brechtel, and Gattuso’s cousin and attorney for the partnership, Roy Gattuso, were both well aware that Yao was in the process of obtaining financing from EFS & L for the purpose of purchasing the Ames Farm property in early 1985. Although the fact that one’s close business associates were privy to information highly relevant to a joint business concern does' not by itself support a finding that the information was passed on to the other partner, certainly it is probative and, when combined with other evidence, would permit an inference that communication occurred.
Third, we observe that the timing of Yao’s exercise of the option on the Ames property and Yao’s obtaining the loan, which occurred in early 1985, were roughly contemporaneous with Gattuso’s involvement in the Pepis loan scheme. Although the two real estate transactions were distinct, the government presented substantial evidence that Nikitas Pepis and Lynn Yao were each affiliated with Stavros Amitsis. A jury could rationally infer that Pepis and Yao acted in conjunction. That is, in view of the overlapping timing between the Pepis and Yao transactions and corresponding loans and the debtors’ common link to Amitsis, a rational jury could believe that the Yao loan and the Pepis loan were part of a common plan or scheme to defraud EFS & L. Cf. Fed.R.Evid. 404(b). Accordingly, a rational jury could infer that Gattuso’s guilty knowledge regarding the Pepis loan extended to the Yao loan.
Yet such larger circumstantial factors, by themselves, would not permit a rational jury to find Gattuso’s guilt beyond a reasonable doubt. Thus, an examination of the government’s other evidence is in order. Of particular importance is Government Exhibit 20, a two-page document entitled “Executive Committee Meeting of March 7, 1985, Loans for Ratification,” which lists a dozen or so loans to be later ratified by the board of directors. Among them is a $500,000 line of credit to Lynn Yao. Although a notation on the document states, “SECURED BY VARIOUS PROPERTIES” — and thus makes no specific mention of the Ames Property — the closing of the sale of the Ames Property occurred less than two weeks later, on April 1, 1985. We believe that, assuming Gattuso saw this document, a rational jury could believe that Gattuso knew that the notation about Yao must have concerned a loan for the- sale of the Ames Property.
At issue, however, is whether that document was seen by Gattuso at the March 19, 1985 board meeting. Admittedly, the two pages of typed minutes from the meeting make no reference to the ratification of the executive committee’s loans (including Yao’s) on March 7,1985. Moreover, Gattuso denied knowing that Yao was seeking financing for the purchase of the Ames Property until after the loan was finalized. Two pieces of evidence belie his claim. First, it is clear that Gattuso attended the board meetings in early 1985, including the March 1985 meeting, and there is no indication that he made disclosure of his interest in the Yao loan or even abstained from voting in any ratification of committee-approved loans. Second, on the top of page two of the document entitled “Loans for Ratification” — which included the Yao loan — appears the date “March 19, 1985.” This is evidence, albeit not conclusive evidence, from which a rational jury could infer that the board of directors did indeed ratify the executive committee loans (including Yao’s) at the March 19, 1985 board meeting. Furthermore, in Gattuso’s own trial testimony, he stated that he believed that in the spring of 1985 the board of directors was required to ratify all committee-approved loans.
We additionally observe that the $500,000 loan to Yao in the spring of 1985 was in the form of a line of credit. The promissory note and collateral mortgage note executed by Yao in favor of EFS & L were signed on April 1, 1985. According to the express terms of the collateral mortgage note, “Lender has this date agreed to make a loan... to Borrower up to the amount of Five Hundred Thousand and No/100 ($500,000) DOLLARS....” Thus, Yao’s actual line of credit was formally opened on April 1,1985. Notably, the date that the Ames Property sale closed was also April 1,1985. It is undisputed that Phillip Gattuso attended the closing; indeed, his signature appears on the documentation memorializing the closing. Because Gattuso signed documentation at the closing, a jury could rationally infer that he knew that the sale of the property was being financed by EFS & L. Thus, even if Gattu-so did not vote to ratify the line of credit at the March 19, 1985 board meeting and only discovered the loan afterwards, a rational jury could infer that Gattuso would have discovered that Enterprise was financing the loan on April 1, 1985. Thus, even as late as that date, Gattuso still could have informed the bank of his conflict and prevented the consummation of the transaction involving EFS & L funds.
In sum, although admittedly a close case, we conclude that a rational jury could find beyond a reasonable doubt, in view of the totality of circumstantial evidence, that Gattuso, with the intent to defraud, knowingly “share[d] in or receive[d] directly or indirectly... money... through” EFS & L. 18 U.S.C. § 1006.
With respect to count four, we also believe that a rational jury could find beyond a reasonable doubt that Gattuso intended to defraud EFS & L in violation of 18 U.S.C. § 1006. Admittedly, there is no evidence that Gattuso was present at the June 19, 1986 board meeting where Yao's second loan was approved. There is, however, direct evidence that would permit a rational jury to conclude beyond a reasonable doubt that Phillip Gattuso did know, as early as April of 1986, that Yao was seeking supplemental financing from EFS & L in order to stave off the partnership from foreclosing on the Ames Property. In particular, the government offered a copy of a letter written by Roy Gattuso to his cousin Phillip in April 1986 explicitly stating that Yao would be attempting to work out additional financing from EFS & L in order to preclude a foreclosure by the partnership. The government adequately established that Phillip Gattuso did not disclose his interest in the second Yao loan following receipt of that letter. The government also offered undisputed evidence that Phillip Gattuso received a check that was directly traceable to the ultimate loan proceeds from the second Yao loan. Thus, the loan proceeds from the second Yao loan did not merely benefit the partnership in which Phillip Gattuso possessed an interest, but benefitted Gattuso directly.
We hold that the government need not offer evidence that a board member such as Gattuso actually voted or otherwise engaged in affirmative conduct, in his capacity as a responsible bank official, to secure a loan in which he possessed a pecuniary interest. Rather, mere knowledge that such a loan is being obtained coupled with a failure to disclose his interest establishes a violation of 18 U.S.C. § 1006. A board member of a financial institution such as Gattuso is a classic fiduciary who owes the institution an affirmative duty to disclose all potentially substantial conflicts of interest. He cannot escape that duty simply by not attending the board meeting at which a transaction implicating those conflicts is approved while thereafter pocketing the proceeds.
6. New Trial Motion
In his final assignment of error, Brechtel essentially reiterates his previous points, asserting that at minimum they required the district court to grant his motion for new trial. The trial court’s superior vantage point on the weight and effect of evidence provides the basis for our review of its new trial rulings only for abuse of discretion. As Brechtel’s other assignments of error lack merit, we cannot conclude that the district court abused its discretion in denying his motion for new trial. This claim also lacks merit.
Conclusion
For the foregoing reasons, the convictions are AFFIRMED.
. As applicable here, 18 U.S.C. § 1006 provides:
[wjhoever, being an officer, agent or employee of or connected in any capacity with... any institution the accounts of which are insured by the Federal Savings and Loan Insurance CorporationL]... with intent to defraud the United States or... any corporation, institution, or association referred to in this section, participates or shares in or receives directly or indirectly any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of any such corporation, institution, or association, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.
The Crime Control Act of 1990, Pub.L. 101-647, § 2595(a)(4)(B), 104 Stat. 4907 (1990) substituted "institution, other than an insured bank (as defined in section 656), the accounts of which are insured by the Federal Deposit Insurance Corporation” for "institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation” in § 1006, reflecting absorption by the former agency of the latter. Congress also has amended the penalty provisions of § 1006 to provide for a maximum fine of $1,000,000 and a maximum prison term of 20 years. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, § 961(e), 103 Stat. 500 (1989).
. E.g., United States v. Lemons, 941 F.2d 309 (5th Cir.1991).
. E.g., id. (citing United States v. Swaim, 757 F.2d 1530 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985)).
. See Missouri v. Hunter, 459 U.S. 359, 365-69, 103 S.Ct. 673, 677-80, 74 L.Ed.2d 535 (1983) (where multiple punishments imposed in single prosecution, the double jeopardy inquiry is only whether legislature intended such multiple punishment).
. United States v. Heath, 970 F.2d 1397 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993); Lemons.
. See United States v. Vasquez-Rodriguez, 978 F.2d 867 (5th Cir.1992).
. 941 F.2d 309 (5th Cir.1991).
. Section 3282 provides "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”
. That clause, regulating the authority of Congress, provides "No Bill of Attainder or ex post facto Law shall be passed.”
. Congress expressly indicated that § 3293, adopted August 9, 1989, would apply to offenses committed before and for which the limitations period had not run as of its enactment. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, § 961(0(3), 103 Stat. 501 (1989).
. Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990).
. Id. at 41, 110 S.Ct. at 2718 (citing Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Pre-Youngblood jurisprudence suggested that statutes retroactively prejudicing "substantial rights” of criminal defendants also might violate the ex post facto clause. See, e.g., Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 964 n. 12, 67 L.Ed.2d 17 (1981). However, Youngblood makes clear that "substantial rights" language in earlier opinions does not expand the bases upon which a criminal defendant may premise an ex post facto challenge. Rather, only retroactive criminal statutes violating the principles set forth in Beazell and Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), implicate "substantial rights” for the purpose of ex post facto clause analysis. Youngblood, 497 U.S. at 46, 110 S.Ct. at 2721.
. Youngblood, 497 U.S. at 49-50, 110 S.Ct. at 2723.
. Our colleagues in other circuits have reached similar conclusions with regard to the retroactive application of § 3293. United States v. Taliaferro, 979 F.2d 1399 (10th Cir.1992); United States v. Knipp, 963 F.2d 839 (6th Cir.1992); United States v. Madia, 955 F.2d 538 (8th Cir.1992); see also United States ex rel. Massarella v. Elrod, 682 F.2d 688 (7th Cir.1982) (retroactive extension of unexpired limitations period does not violate ex post facto clause), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983); United States v. Richardson, 512 F.2d 105 (3d Cir.1975) (same) (dictum); Clements v. United States, 266 F.2d 397 (9th Cir.) (same), cert. denied, 359 U.S. 985, 79 S.Ct. 943, 3 L.Ed.2d 934 (1959); Falter v. United States, 23 F.2d 420 (2d Cir.) (same) (L. Hand, J.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). Of course, the instant case requires no decision concerning the propriety of legislation reviving criminal liability after lapse of the previously applicable limitations period.
. Brechtel concedes that Mangum did not advise him with regard to real estate investment. Brechtel sought to present Mangum’s testimony as a substitute for that of real estate advisor Sam Gattuso, who died prior to trial.
. The district court, in the alternative, excluded Mangum's testimony as irrelevant because it related to stock rather than real estate transactions.
. 550 F.2d 233 (5th Cir.1977).
. See United States v. Qaoud, 777 F.2d 1105 (6th Cir.1985) (evidence regarding defendant judge’s "general pattern” of refusing assistance to influence peddlers irrelevant and properly excluded in RICO prosecution where not crucial to defense), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 899 (1986).
. E.g., United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir.1989).
. United States v. Allibhai, 939 F.2d 244 (5th Cir.1991) (citing United States v. Edelman, 873 F.2d 791 (5th Cir.1989)), cert. denied, — U.S. -, 112 S.Ct. 967, 117 L.Ed.2d 133 (1992). We note that Riley did not involve exclusion of defense evidence on this basis.
. Riley.
. Compare United States v.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
BLACKMON v. LEE, Deputy Administrator, Civil Aeronautics Administration, et al.
No. 11590.
United States Court of Appeals District of Columbia Circuit.
Argued April 20, 1953.
Decided May 14, 1953.
See also 12 F.R.D. 411.
Mr. Claude L. Dawson, Washington, D. C., for appellant.
Mr. Oliver C. Biddle, Atty., Department of Justice, of the bar of the Supreme Court of New York, pro hac vice, by special leave of Court, with whom Mr. Charles M. Irelan, U. S. Atty. at the time the brief was filed, and Messrs. Edward H. Hickey and Joseph Kovner, Attys., Department of Justice, were on the brief, for appellees. Messrs. William R. Glendon, Asst. U. S. Atty., Joseph M. Howard, Asst. U. S. Atty. at the time the record was filed, and William E. Kirk, Jr., Asst. U. S. Atty. at the time the brief was filed, also entered appearances for appellees.
Before PROCTOR, BAZELON and FAHY, Circuit Judges.
FAHY, Circuit Judge.
The appellant, plaintiff in the District Court, sought a declaratory judgment that his removal from a civilian position in the Civil Aeronautics Administration, Department of Commerce, violated his rights as a veteran’s preference eligible, and restoration to his proper position. The ap-pellees in this court, defendants below, are departmental officials and members of the Civil Service Commission. They answered and also filed affidavits which, with the complaint itself, give in full the proceedings eventuating in appellant’s removal. No counter affidavit was filed and on motions of both appellant and appellees for summary judgment the court granted the motion of appellees and dismissed the complaint.
Concededly appellant was a veteran’s preference eligible. The removal proceedings therefore must be shown to have conformed with the provisions of Section 14 of the Veterans’ Preference Act, set forth in pertinent part in the margin. From the complaint, answer' and affidavits it clearly appears that the reasons for the proposed separation were given in writing, specifically and in detail, appellant was allowed a reasonable time for answering personally and in writing and for furnishing affidavits .in support of such answer, he availed himself of the right to answer, the administrative officer thereafter notified him of his removal, stating that the answer had been considered and was not deemed satisfactory, appeal was taken to the Civil Service Commission, being filed with the acting chief law officer, who after hearing affirmed the removal decision, appeal to the Board of Appeals and Review of the Civil Service Commission followed, with like result, and appellant then appealed to the full Board of the Civil Service Commissioners who also considered the case and reached the same conclusion. The procedural requirements of Section 14 were complied with during the appeal proceedings, which included extensive hearings.
Appellant’s principal contention is that nevertheless the proceedings were fatally defective in that under Section 14 he. could be discharged only “for such cause as will promote the efficiency of the service” and the original decision of removal did not include an explicit finding to that effect. The facts relevant to this contention are that the proposed reasons furnished in detail to appellant stated that his activities had impaired the efficient operation of the agency as a whole, he was advised that the reasons constitute “notification of proposed adverse action as required by Section 14 of the Veterans’ Preference Act of 1944, as amended”, that he could answer personally and in writing and furnish affidavits in support of his answer, and that “In the event that your answer is not satisfactory * * * you will be removed from the service or other appropriate action will be taken”. Thereafter he was formally notified of his removal by a document which stated that his answer had been considered and was not deemed satisfactory. On appeal the acting chief law officer of the Civil Service Commission, after hearings, ruled that the dismissal “was for such cause as will promote the efficiency of the service as provided in Section 14 of the Veterans’ Preference Act of 1944, as amended”. On further appeal the Civil Service Commission, upon consideration of the entire record, including further hearings before its Board of Appeals and Review, affirmed the decision of the acting chief law officer and also found that the separation was in the interest of promoting the efficiency of the service. Though all question might have been eliminated by more precision in the original notification of removal we think the foregoing demonstrates that the procedures which were followed complied in all substance with Section 14.
We do not discuss the merits of the removal except to say that under the limited judicial review permissible the District Court properly did not disturb the departmental decision. See Powell v. Brannan, 1952, 91 U.S.App.D.C. 16, 196 F.2d 871. See, also, Watson v. Pace, 1953, 92 U.S.App.D.C. —, 201 F.2d 713, adopting the opinion of District Judge Youngdahl reported at 101 F.Supp. 477 (D.C.D.C.1951).
We have considered other questions raised and find no reason to disagree with the judgment below.
Affirmed.
. “No permanent or indefinite preference eligible * * * shall be discharged * * * except for such cause as will promote the efficiency of the service and for reasons given in writing, and the person whose discharge * * * is sought shall have at least thirty days’ advance written notice * * * stating any and all reasons, specifically and in detail, for .any such proposed action; such preference eligible shall be allowed a reasonable time for answering the same personally and in writing, and for furnishing affidavits in support of such answer, and shall have the right to appeal to the Civil Service Commission from an adverse decision of the administrative officer so acting, such appeal to be made in writing within a reasonable length of time after the date of receipt of notice of such adverse decision: Provided, That such preference eligible shall have the right to make a personal appearance, or an appearance through a designated representative, in accordance with such reasonable rules and regulations as may be issued by the Civil Service Commission; after investigation and consideration of the evidence submitted, the Civil Service Commission shall submit its findings and recommendations to the proper administrative officer and shall send copies of the same to the appellant or to his designated representative, and it shall be mandatory for such administrative officer to take such corrective action as the Commission finally recommends * * Section 14, 58 Stat. 390 (1944), as amended, 61 Stat. 723 (1947), 5 U.S.C.A. § 863.
The result we reach would be no different under the provisions of 37 Stat. 555 (1912), as amended, 62 Stat. 354 (1948), 5 U.S.C.A. § 652.
. “ * * * Where there has been a substantial departure from applicable procedures, a misconstruction of governing legislation, or like error going to the heart of the administrative determination, a measure of judicial relief may on occasion be obtainable. But no such basis for relief has here been laid.” 91 U.S. App.D.C. at page 17, 196 F.2d at page 873.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appel1_2_3
|
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 organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
UNITED STATES of America, by Griffin B. BELL, the Attorney General, on Behalf of F. Ray MARSHALL, the Secretary of Labor, and the Equal Employment Opportunity Commission, Plaintiffs-Appellees, v. ALLEGHENY-LUDLUM INDUSTRIES, INC., et al., Defendants-Appellees, United Steelworkers Justice Committee et al., Movants-Appellants.
No. 76-2717.
United States Court of Appeals, Fifth Circuit.
June 6, 1977.
Richard Kirschner, Miriam L. Gafni, Philadelphia, Pa., Peyton D. Bibb, Birmingham, Ala., for movants-appellants.
Robert T. Moore, Atty., Civil Rights Div., U. S. Dept, of Justice, Frederick S. Mittelman, Atty., E. E. 0. C., Washington, D. C., Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., Richard S. Ugelow, Atty., J. Stanley Pottinger, Asst. Atty. Gen., U. S. Dept, of Justice, Washington, D. C., Abner W. Sibal, Gen. Counsel, Washington, D. C., John C. Falkenberry, Birmingham, Ala., Bernard Kleiman, Chicago, 111., Carl Frankel, United Steelworkers of America, Pittsburgh, Pa., Adams, Baker & Clemon, Birmingham, Ala., for appellees.
Michael H. Gottesman, Washington, D. C., for Allegheny-Ludlum Ind., et al.
Jerome A. Cooper, Birmingham, Ala., for United Steelworkers of America.
James R. Forman, Jr., W. K. Murray, Birmingham, Ala., for U. S. Steel Corp.
Before WISDOM, GEE and FAY, Circuit Judges.
PER CURIAM:
This appeal considers the right of steelworkers to intervene in a Title VII employment discrimination action against their employers and union. Because the workers did not move to intervene in a timely fashion, we affirm the district court’s denial of their motion.
The United States, on behalf of the Secretary of Labor and the Equal Employment Opportunity Commission, filed an action against nine of the major steel producers and the United Steelworkers of America under Section 707 of Title VII of the Civil Rights Act of 1964, as amended. The complaint alleged (1) that the companies and union had and were engaged in a pattern or practice of employment discrimination on the basis of race, color, sex, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, and (2) that the companies had failed to comply with contractual obligations to the United States under Executive Order 11246, as amended, not to discriminate on the basis of race, color, sex, or national origin, and that the union had interfered with compliance by the companies with these contractual obligations and otherwise contributed to the companies’ non-compliance.
On April 12, 1974, the same day the complaints were formally filed, two consent decrees were entered by the district court. The first concerned employment practices involving both the steel companies and the union, and the second concerned practices under the exclusive control of the companies. The first decree (Consent Decree I) is the only one in issue in the present proceeding.
The provisions of Consent Decree I are designed to correct the continuing effects of past discriminatory hiring, initial assignment, promotion, and transfer practices. Their adequacy and legality, as well as that of other provisions of Consent Decrees I and II, were previously challenged by three organizations, four individuals, and six groups of plaintiffs. The district court found those challenges to be without merit, and an appeal was taken to this Court where that decision was affirmed.
A more complete history of this litigation is set forth in the Court’s opinion in United States v. Allegheny-Ludlum Industries, 5 Cir. 1975, 517 F.2d 826, cert. denied, 1976, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187, and, for purposes of this appeal, need not be repeated. In Allegheny Ludlum I the Court decided, inter alia, that the consent decrees were lawful and that the district court correctly denied intervention to the National Organization for Women.
The appellants, applicants for intervention, are the United Steelworkers Justice Committee and fifty employees in the steel industry who allege that they “have been adversely affected by the implementation of Consent Decree I”. The applicants seek, as did the appellants in Allegheny Ludlum I, to have Consent Decree I vacated and set aside.
The application for intervention, along with a counterclaim for declaratory and injunctive relief, was filed on January 29, 1975. At the time of filing, the appeal in Allegheny Ludlum I was pending before this Court. Trial Judge Pointer ruled that until this Court decided the pending appeal he did not have jurisdiction to consider the merits of the motion to intervene. On August 18, 1975, in Allegheny Ludlum I this Court affirmed the lawfulness of the consent decrees and otherwise upheld the decision of the district court.
By order dated March 22, 1976, the district court denied the motion for intervention because neither the Committee nor the individual applicants were entitled to intervention as of right under either Rule 24(a)(1) or 24(a)(2) of the Federal Rules of Civil Procedure. The district court held that the motion for intervention was not timely. The motion was filed nine months after the union and the companies reached the consent agreement with the EEOC and seven and a half months after the district court issued a judgment on the legality of the agreement.
We reject the steelworkers’ appeal principally on the basis of the decision of the district court and its careful procedural attempts- not to prejudice any rights asserted by the applicants for intervention.
“Timeliness . . . is to be determined by the Court in the exercise of its sound discretion; unless that discretion is abused the Court’s ruling will not be disturbed on review." NAACP v. New York, 1973, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648. See also McDonald v. E. J. Lavino Co., 5 Cir. 1970, 430 F.2d 1065. Here the trial judge did not abuse his discretion. Post-judgment intervention is rare. The applicants offered no compelling reason for waiting until seven and a half months after the judgment and six months after implementation of the decrees to file their motion. Intervention now for the purpose of challenging the consent agreement will prejudice the appellees by jeopardizing months of negotiations, causing substantial litigation expenses, and even more substantial expenses of implementation. The applicants knew of the consent agreement three days after the suit was filed; numerous other individuals and groups moved to intervene before the district court entered a judgment on the decrees. To allow the applicants to intervene now would disrupt carefully considered proceedings.
Because the district court correctly denied the motion to intervene as untimely under Rule 24(a), we do not reach the additional grounds on which the district court based its decision. The judgment is AFFIRMED.
. In order to avoid confusion with this appeal, the Court’s decision found at 517 F.2d 826, and the proceedings leading up to that decision, are referred to herein as Allegheny Ludlum I.
. The present applicants seek to void Consent Decree I because its implementation has allegedly affected their earnings and job opportunities adversely. The appellants in Allegheny Ludlum I sought to have the decree vacated because, in their opinion, it did not provide sufficient job opportunities and other relief to women and minorities.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_capric
|
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 civil law issues involving government actors. The issue is: "Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
EAGLE BROADCASTING COMPANY and WTVY, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Cosmos Broadcasting Corporation, Intervener.
No. 74-1409.
United States Court of Appeals, District of Columbia Circuit.
June 17, 1975.
Jack P. Blume and Arthur G. House, Washington, D. C., were on the briefs for Eagle Broadcasting Co.
Arthur H. Schroeder and William M. Barnard, Washington, D. C., were on the briefs for WTVY, Inc.
Ashton R. Hardy, Gen. Counsel, Joseph A. Marino, Associate Gen. Counsel, and John E. Ingle, Washington, D. C., Counsel, were on the brief for appellee.
William P. Sims, Jr., and Richard F. Swift, Washington, D. C., were on the brief for intervenor.
Before McGOWAN, ROBINSON and ROBB, Circuit Judges.
PER CURIAM:
The dispute in this case is among three television broadcasters: Cosmos of Montgomery, Alabama (a VHF broadcaster); Eagle of Columbus, Georgia (a UHF broadcaster); and WTVY of Dothan, Alabama (a VHF broadcaster). The first of these, Cosmos, has been granted FCC permission to move its transmission facilities some twelve miles east-southeast of their former site, and to increase the height of its antenna to roughly double its former size. The latter two, having opposed the grant, now seek direct review of the issuance of the construction permit.
Cosmos’s application was initially denied by the Hearing Examiner on the ground that the plan would have an adverse impact on UHF broadcasters, particularly Eagle. The Review Board disagreed with the Examiner in this respect, concluding that there would be only minimal impact on UHF competitors, and that this was outweighed by the substantial improvement in VHF service that the new facilities would achieve. The denial of approval for the plan was, however, affirmed by the Board on a different ground, namely, that Cosmos had not adequately shown that its expanded service would be responsive to community interests and needs, as required by Suburban Broadcasters, 30 FCC 1021 (1961), aff’d sub nom., Henry v. FCC, 112 U.S.App.D.C. 247, 302 F.2d 191 (1962).
After granting review of only this part of the Board’s decision, the Commission remanded the case to the Board in order to allow Cosmos to amend its Suburban showing in the light of the Commission’s newly-issued Primer on Ascertainment of Community Problems by Broadcast Applicants. 27 FCC 2d 650 (1971). Petitioners requested that on remand they also be allowed to update the record by adducing new evidence relevant to the UHF impact issue, but this request was denied and the Board’s adverse resolution of that issue was allowed to stand. After further evidentia-ry hearings on the Suburban issue, the Board resolved it in Cosmos’s favor and approved construction of the new antenna. The Commission this time upheld the Board, and this appeal followed. For the reasons stated below, we affirm.
Petitioners first attack the merits of the adverse finding with respect to the UHF impact of the proposed construction. As we have said before, the protection of UHF broadcasting is the Commission’s policy, not ours; and it is free to apply it in any way that is not arbitrary or capricious. WCOV, Inc. v. FCC, 150 U.S.App.D.C. 303, 464 F.2d 812, 815 (1972). We see no arbitrariness here. Petitioners claim that the Review Board, misinterpreting the Commission’s then-recent Mount Vernon decision, imposed “a new and • higher standard of proof” that the Commission, so it is alleged, later disavowed. In fact the Mount Vernon decision was upheld upon reconsideration, 22 FCC 2d 222 (1970), and we find no subsequent repudiation by the Commission of the language in it which was relied on by the Review Board, i. e., that requiring “some substantial specific impact on UHF.” See 17 RR 2d at 1630. In any event, it is not clear that the Review Board held petitioners even to that standard, since it found that in . this case “only minimal impact on UHF ha[d] been shown.” J.A. 54.
Petitioners’ second contention is that when it remanded the case for further proceedings on the Suburban issue, the Commission should have allowed the UHF impact issue to be reopened as well. It is true that a rehearing of particular issues may be made necessary by new and relevant evidence. See, e. g., WMOZ, Inc. v. FCC, 120 U.S.App.D.C. 103, 344 F.2d 197 (1965). But this is true only where the new evidence “might have gone far toward undermining the basis for the Commission’s conclusion.” Id. at 198. See also WEBR, Inc. v. FCC, 136 U.S.App.D.C. 316, 420 F.2d 158, 166 (1969). No description- has been offered of any new evidence that would “undermine” the Board’s UHF impact finding in this case; petitioners simply assert that the new evidence would be “harder” and therefore might undermine that finding. This is not enough to establish an abuse of the Commission’s discretion to consider the matter closed. Nor does the Commission appear to us to have been unfaithful to its own decision in Daily Telegraph Printing Co., 40 FCC 2d 109 (1973). It there remanded a construction permit proceeding for further evidence on UHF impact, but such a remand of the UHF issue (as opposed to some other issue in the case) was already required for other and stronger reasons.
Petitioners also claim that a remand of the UHF impact issue was required by the fact that Cosmos was given a second chance on an issue on which it had previously failed, i. e., the Suburban issue. They insist that the reopening of one issue made it expedient to reopen the other, and unfair not to do so. The short answer is that, to a busy agency, limited further proceedings are preferable to more extensive further proceedings, and that the agency is free to follow that preference where the claims for a second chance vary in strength as much as do those of Cosmos and petitioners in this case. Cosmos was permitted to supplement its showing of community needs because the question of what precisely was required of it in this respect had been a matter of some confusion that the issuance of the Commission’s Primer had only later dispelled. Petitioners have no claim of comparable merit.
Petitioners’ strongest claim is that the Commission has never given sufficient reasons for its denial of their request for a remand on the UHF impact issue. That request was first made in a “Petition for Reconsideration” of the Commission’s initial decision remanding on the Suburban issue but denying review on the UHF impact issue. This petition was denied on the ground that a Commission rule bars reconsideration of any denial of review for which reasons were not given, as they were not in this case. See 47 C.F.R. § 1.115(g) (1973). Petitioners then filed a request for waiver of the rule barring reconsideration. The Commission denied the request for waiver because petitioners had “not shown good cause for their request, [nor] made any significant showing affecting the merits of the actions taken in this proceeding.’’ (Emphasis added.) Charging that this response by the Commission is inadequate, petitioners point to the requirement of 47 U.S.C. § 405 (1970) that a denial by the Commission of a petition for rehearing be accompanied by “a concise statement of the reasons therefor.” See also 5 U.S.C. § 555(e) (1970); 47 C.F.R. § 1.106(j)(1978).
Reliance by the Commission on its own rule against reconsideration would in itself be a clearly inadequate reason for the refusal to rehear. The rule may have some justification where the summary denial of review reflects a Commission judgment that the appeal was frivolous, and where the request for rehearing is only a rehash of the same, frivolous arguments. But the fact that no reasons were thought necessary when the Commission first heard the case is no basis for rejecting a proffer of new evidence.
In this case, however, the Commission did not stand solely on its procedural rule. It added, albeit in an exiguous manner, that it saw nothing in what petitioners offered to unsettle its initial decision to deny review. In view of the weakness of the case for remand, but only for this reason, we think that what the Commission said here was enough.
Petitioners’ final claim is that the Commission erred in remanding to allow Cosmos to bring its Suburban showing into compliance with the Commission’s Primer. In so doing the Commission was extending to Cosmos a privilege generally available to applicants in pending cases. Petitioners object on the ground that Cosmos had put in only a “desultory” performance on the Suburban issue, and that this “stemmed from its indifference to the Commission’s requirements in this area — rather than from any uncertainty or confusion.”
The opinion of the Review Board reports, however, that Cosmos personally interviewed some thirty-seven community leaders and followed these up with a questionnaire mailed to some ninety-two. That there was no gross delinquency on Cosmos’s part is suggested by the fact that the Hearing Examiner resolved the issue in Cosmos’s favor. Cosmos’s principal difficulty seems to have been that it assumed that, since it was merely extending its coverage to an area larger than but encompassing the area it already served, it need not propose any programming changes, but could rest on the appropriateness of its existing service to its old constituency. The Hearing Examiner agreed; the Review Board did not.
. It is the Commission’s policy to encourage the development of UHF stations by limiting the intrusion of VHF broadcasters into UHF service areas. See, e. g., Triangle Publications, Inc., 29 FCC 315 (1960), aff’d sub nom., Triangle Publications, Inc. v. FCC, 110 U.S.App.D.C. 214, 291 F.2d 342 (1961).
. New evidence is assertedly available principally because Eagle’s broadcast station, which was only proposed for construction at the time of Cosmos’s application, has since come into operation. This change assertedly makes available “hard evidence” of UHF impact in the place of the predictions and estimates which were of necessity made at the original hearing.
. Report and Order, VHF Television Broadcast Channel at Mount Vernon, Ill., 34 F.R. 18036; 17 RR 2d 1620 (1969).
. Section 405 of the Communications Act of 1934, 47 U.S.C. § 405 (1970), upon which petitioners rely, merely authorizes and does not require the Commission to grant rehearings to consider newly available evidence.
. The Review Board in Daily Telegraph had erroneously confined its UHF impact consideration to the impact on the complaining UHF station. It had also relied on post-record developments which were thought to require the scrutiny of another hearing. 40 FCC 2d at 110.
. Petitioners point again to the Commission’s Mount Vernon decision as introducing an uncertainty on the UHF impact issue which was only later removed by the Commission’s decision in WLCY — TV, Inc., 28 FCC 353 (1972). As already stated, however, we find no significant inconsistency in these decisions.
. Petitioners subsequently filed a second “Petition for Waiver and Extraordinary Relief’, again asking the Commission to reconsider its remand of only the Suburban issue, but this time adding its argument based on the Commission’s Daily Telegraph decision. This petition was ultimately denied by the Commission in the same order in which it denied review of the Board’s second and final resolution of the UHF impact issue. In refusing again to waive its rule against reconsideration, the Commission again stated that “the current petition presents no significant showing affecting the merits of the actions taken in this proceeding.” In a footnote, the Commission distinguished Daily Telegraph as a case in which “the considerations of administrative finality were not so compelling.”
. That the rule against reconsideration where no reasons have been given was not even intended to apply where new evidence is offered is suggested by the existence of a separate Commission rule governing petitions for reconsideration on the ground of new evidence. See 47 C.F.R. § 1.106(c) (1973).
. Similarly, the distinction of Daily Telegraph as a case in which the UHF impact issue was being reopened anyway seems to us sufficiently articulated in the statement that in that case “the considerations of administrative finality were not so compelling.” See note 7 supra.
. The Report and Order which accompanied the issuance of the Primer specified that applicants in pending hearings who were required to make Suburban showings would be given 90 days in which to amend those showings to bring them into compliance with the Primer. 27 FCC 2d at 680. The Commission has allowed such amendments even where the record has been closed and the case is before it for review. See Risner Broadcasting Inc., 28 FCC 2d 330 (1971). The Commission interpreted Cosmos’s request for a remand as an indication that it intended to make such an amendment.
. The Review Board further disagreed with the Trial Examiner’s failure to apply retroactively the strict standards of the Commission’s decision in Minshall Broadcasting Co., 11 FCC 796 (1968); J.A. 72-74.
Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc2sect
|
1112
|
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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Alan Eugene REED, Appellant, v. UNITED STATES of America, Appellee.
No. 9107.
United States Court of Appeals Tenth Circuit.
May 23, 1967.
Martin C. Crawn, Kansas City, Kan., for appellant.
Newell A. George, Kansas City, Kan. (Benjamin E. Franklin, Kansas City, Kan., with him on brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.
MURRAH, Chief Judge.
Appellant, Alan Eugene Reed, and his co-defendant, ■ Ivan Daniel Neighbors, who has not appealed, were convicted by a jury on an information charging them with wilful and malicious murder upon United States lands in violation of 18 U.S.C. §§ 1111-1112. Appellant’s motion for new trial was denied, and he was sentenced to sixty years imprisonment.
On this appeal Reed has asserted three grounds of error: (1) insufficiency of the evidence to support a conviction;
(2) admittance into evidence of a knife purported to be the murder weapon; and
(3) failure to show a motive for committing the crime.
The Government’s case is concededly based upon circumstantial evidence — -there was no eye witness to the murder. But, even so, the Government’s case may very well be based upon circumstantial evidence. We view such evidence only to determine whether, believing the Government’s proof and disbelieving the defendant’s countervailing proof, the jury was justified in finding beyond a reasonable doubt that the defendant was guilty of the offense charged. See Jordan v. United States, 10 Cir., 370 F.2d 126; Williams v. United States, 10 Cir., 368 F.2d 972, 975; Real v. United States, 10 Cir., 326 F.2d 441, and cases cited.
The evidence tending to support the Government’s case reflects that Reed and Neighbors, both inmates at the Federal Penitentiary in Leavenworth, Kansas, had been friends for many years and were “fall partners”, i.e. they had been convicted of the same crime and were serving identical sentences; that since their confinement at Leavenworth, they had been constant companions even though Neighbors lived in cellhouse B while Reed lived in cellhouse C. On October 29, 1965, Grady Armstrong, a prisoner in B cellhouse, died of cut and stab wounds inflicted upon him in his cell. Sixteen witnesses testified to the circumstances relating to the crime, but we need narrate only that testimony which seems critical to the Government’s case.
An inmate of cellhouse B testified for the Government to the effect that on or about October 26, 1965, Armstrong was lying in his cell on the fourth gallery when there was “some loud noise” on the first floor; that he came out of his cell, leaned out and yelled down to Neighbors on the first floor “something about keep quiet, and they had a little exchange of words” in which “Somebody referred to somebody as a punk; I don’t remember which one.” He also testified that two or three days later on October 29 at about 5:00 p.m. he was going up the stairway from the third gallery to the fourth when he heard a scream; that when he reached the fourth gallery, he stepped back into the “cutoff”, i.e. the opening between the two ends of the cell block”, and saw two men running, one - of whom was Neighbors and the other he could not identify; that the men ran down the steps and out the side doorway toward the yard; and that an officer pursued them down the stairs to the door where he stopped before running out into the yard.
Officer Stauffer testified as the Government’s chief witness to the effect that on the day of the murder he was patrolling the third, fourth and fifth galleries in cellhouse B during the evening mealtime ; that at approximately 5:00 p.m. he had made his round of the fourth gallery and had noticed Armstrong lying in his cell “supposedly asleep” with a towel over his forehead; that he continued his patrol on the fifth gallery, came back down the stairs and was at the corner of the fourth gallery when he heard a man scream; that as he turned the corner he saw two inmates, whom he later identified as Reed and Neighbors, emerging from a cell with a third immediately behind them “clutching his chest with blood coming out from the wounds he had received prior * * * to me coming to the fourth gallery”; that the other two inmates looked his way, hesitated for a moment and “left”; that he pursued them (past the deceased who had fallen to the floor) down the stairs, through the center part of the cellhouse and saw them run through the door to the yard; that he could see one of the inmates still running, and as he approached the open door “I saw an inmate waiting there for me with a knife”; that “I looked at his face and realized the situation and I looked at the knife and it still had blood on it. I immediately backed up and this man then started to run down a walkway”; that when he disappeared from sight he was running in the direction of the auditorium of the Protestant Chapel. Another officer testified that about the same time he also saw “someone running” in the direction of the auditorium. (On trial Stauffer identified the inmate with the knife as appellant Reed.) Stauffer testified further that by this time the other inmate had slowed to a walk; that he hailed another officer and they pursued the man and took him. into custody. (On trial he identified this inmate as Neighbors.) He testified that Neighbors was left in the custody of the other officer while he returned to the cell-house, placed Armstrong on a stretcher and turned him over to some other officers who took him to the hospital. About an hour and a half later, Reed was taken into custody and Stauffer identified him as one of the men he had pursued.
A patient on the second floor of the prison hospital, directly across from the auditorium, testified that he was “sitting by the window on the bed, looking out the window, I heard a scream coming from the direction of B cellhouse. * * * I saw a man run over here [indicating on a scale model of the prison] where there are some bushes, D cellhouse, stop and cast a glittering object upon the auditorium of the Protestant chapel and the man stepped around the corner and went into D cellhouse.” Another prison officer testified that on the day after the murder he “picked up a knife on the roof of the auditorium building”, wrapped it in a handkerchief and “turned it in to the captain’s office”; that two days later he returned to the captain’s office, identified the weapon he had found, put his initials on it with an electric needle for identification purposes and placed it in a large brown envelope. When shown the knife as a Government exhibit, he testified that it was the same knife he had found and that it was in substantially the same condition as when he found it. When Stauffer was shown the knife as a Government exhibit, he stated that “This knife resembles very closely the knife that was pulled on me at the north door [to cellhouse B].” Another Government witness (an F.B.I. agent) testified that the knife exhibit had been subjected to laboratory tests and was found to have human blood on it.
The crux of appellant’s argument is that the evidence is critically inconsistent and insufficient and, therefore, does not justify a verdict of guilty. He points out that only one of the Government’s sixteen witnesses could identify Reed and relies upon the countervailing evidence tending to show an alibi. He also suggests the total lack of evidence of motive, but at the same time concedes that it is not essential to the Government’s case. And see Pointer v. United States, 151 U.S. 396, 414, 14 S.Ct. 410, 38 L.Ed. 208. We think the circumstantial evidence entirely sufficient to justify the verdict of the jury.
Reed attacks the ruling of the court admitting the knife into evidence contending that no proper foundation was laid. The law applicable to admissibility of physical exhibits is clearly stated in Brewer v. United States, 8 Cir., 353 F.2d 260, to the effect that if, upon consideration of the nature of the article, the circumstances surrounding the preservation and custody of it and the likelihood of intermeddlers tampering with it, the trial judge deems the article to be in substantially the same condition as when the crime was committed, he may admit it into evidence, and his determination “that the showing as to identification and nature * * * is sufficient to warrant reception of an article in evidence may not be overturned except for a clear abuse of discretion.” Id., 262, quoting and citing Gallego v. United States, 9 Cir., 276 F.2d 914, 917; see also West v. United States, 8 Cir., 359 F.2d 50, 55. We find no such abuse here.
There was testimony by the officer who found the knife, by the prison custodian and by the F.B.I. agent who had run laboratory tests on the knife tending to establish its proper care and preservation in the interim between its discovery and the trial. These witnesses further testified that when it was offered in evidence it was in the same condition as when it was found and examined.
With typical care and solicitude Judge Stanley heard argument out of the presence of the jury on the objections to the knife’s admissibility. In ruling on the evidence he noted there were some minor inconsistencies in the testimony, but then stated that “ * * * all of this, I think, goes to the weight of the evidence rather than to its admissibility.” We think the knife was properly received in evidence.
The judgment is affirmed.
. Cellhouse B is composed of five galleries or floors consisting of individual or double cells running the length of the cellhouse. The stairway is in the center of the building with a cutout or walkway from either side of the stairs to each gallery.
. During mealtimes, the North door from the cellhouse to the yard is open. The inmates are allowed to go down by galleries to eat their meals, to stay in the yard for awhile and to come back through the North door.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
MARTIN MARIETTA CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
No. 15618.
United States Court of Appeals Seventh Circuit.
April 11, 1967.
Rehearing Denied May 8, 1967, en banc.
Schnackenberg, Circuit Judge, dissented.
Harold F. Baker, Terrence C. Sheehy, Washington, D. C., for petitioner, How-rey, Simon, Baker & Murchison, Washington, D. C., Clarence W. Miles, Clark C. Vogel, Edwin V. Petz, New York City, of counsel.
J. B. Truly, Asst. Gen. Counsel, and Charles C. Moore, Jr., Atty., F. T. C., James Mcl. Henderson, Gen. Counsel, Washington, D. C., for the Federal Trade Commission.
Before HASTINGS, Chief Judge, and SCHNACKENBERG, and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.
Martin Marietta Corporation petitions for review of an order of the Federal Trade Commission granting in part and denying in part a motion for modification of an order of divestiture previously entered by consent. The question presented concerns the reviewability of the Commission’s order.
The Commission issued a complaint against the petitioner in January 1961 charging that the petitioner’s acquisition of various concrete pipe, cement, lime, and construction aggregates properties was in violation of section 7 of the Clayton Act, 15 U.S.C. § 18, and section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Negotiations between the petitioner and the Commission staff resulted in the execution of a consent agreement on February 5, 1963, which was effectuated by order of the Commission on March 12, 1963. The consent order, in part, required the petitioner to divest itself of sixty-one concrete pipe plants, thirteen construction-aggregates quarries or quarry sites, and two lime plants within a period of twenty-four months.
In September 1964 the petitioner requested the Commission to modify the consent order by deleting eight of the thirteen quarries from the divestiture provisions because of changed conditions of fact. The Commission’s Bureau of Restraint of Trade responded to the petitioner’s application, challenging the allegations contained in it. Subsequently, in March 1965, the petitioner filed a reply alleging additional information and submitted a request that the Commission permit oral argument “prior to any negative action” on the motion to modify. In December 1965, at the Commission’s request, the reply was supplemented by the petitioner’s current data, at which time the petitioner renewed its request to be heard orally prior to any unfavorable action.
On January 12, 1966, the Commission, without hearing argument, entered the order challenged in this proceeding. The order modified the earlier consent order by striking one quarry from the list of those required to be divested, but denied the petitioner’s motion as to the remaining quarries, stating that “there has been no showing made that changed conditions of fact or law or the public interest warrant modification.”
The petitioner contends that the Commission’s order must be set aside on review because, in denying the petitioner’s motion to make additional modifications in the consent order, the Commission did not afford the petitioner an evidentiary hearing with respect to the seven quarries not deleted and did not comply with its own rules regarding the procedure for modifying existing orders. The Commission, on the other hand, contends that insofar as its order denies the petitioner’s motion to modify the consent order it is not subject to review by this court. We agree with the Commission.
The pertinent statutory provisions relating to modification of the Commission’s orders after the time for review has elapsed are section 5(b) of the Federal Trade Commission Act, 15 U.S.C. § 45(b), and section 11(b) of the Clayton Act, 15 U.S.C. § 21(b), whose terms are identical in all important respects. Section 5(b) of the Federal Trade Commission Act provides in part:
After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require: Provided, however, That the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States, in the manner provided in subsection (c) of this section.
The “review” which may be obtained under this section is a review of the “order entered after * * * reopening,” not a review of the original order. The review must therefore confine itself to the modifying order, more specifically, to that portion of the order which effects changes in the original order.
The portion of an “order entered after * * * reopening” which refuses any further modification of the original order is not reviewable. Any other interpretation of the statute is logically inconsistent with the finality of the original order. Further, a different construction would place the Commission in a position which we think Congress did not intend. Neither the Federal Trade Commission Act nor the Clayton Act provides for review by courts of appeals of any action of the Commission denying a motion to reopen or modify a final order. If the Commission had summarily denied the petitioner’s motion, its action would not be subject to review. If, on the other hand, by modifying in one particular an order previously entered the Commission thereby opens its previous order to a second review in all particulars challenged, the Commission is faced with a dilemma; it is likely to be discouraged from granting relief which it is not obliged to extend but which it might otherwise grant, at least in part, at the request of persons bound by orders which have become final.
We think the statute was intended to provide judicial review of action taken by the Commission which is unfavorable to or is resisted by a person subject to an existing order. It is for this reason that the statute requires the Commission to provide “notice and opportunity for hearing” prior to modifying such an order. In the instant case, the only modification occurred as a result of the petitioner’s request, and the petitioner does not object that a portion of its request was granted. The petitioner’s objection is that its request was not granted in its entirety. It seeks a review of the Commission’s refusal to make further modifications in the consent order, or at least a review of the Commission’s refusal to grant the petitioner a hearing with respect to the additional modifications the petitioner requested. The petitioner has no right to such review.
There is another reason, aside from the lack of statutory authority, why the Commission’s order is not reviewable. The order which the petitioner sought to modify is a consent order. The agreement reached by the petitioner and the Commission prior to the entry of the consent order states in part:
Upon entry of this consent order, [petitioner] waives any further procedural steps before the hearing examiner and the Commission, a statement of findings of fact and conclusions of law, and all of the rights it may have to challenge or contest the validity of the order to divest and to cease and desist entered in accordance with this agreement.
The order entered pursuant to this agreement is therefore basically similar to a consent decree entered by a court. The scope of review of consent decrees is extremely narrow. Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379 (7th Cir. 1953). “Ordinarily a party to a consent decree cannot question its validity on appeal, if the court had jurisdiction to enter the decree, unless there are facts which nullify the consent.” In re 4145 Broadway Hotel Co., 100 F.2d 7, 8 (7th Cir. 1938). In Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587 (1928), the Supreme Court affirmed an order of the Supreme Court of the District of Columbia overruling motions to vacate a consent decree entered four years earlier. The Court stated:
The decree sought to be vacated was entered with the defendants’ consent. * * * “[A] decree, which appears by the record to have been rendered by consent is always affirmed, without considering the merits of the cause.” * * * Where, as here, the attack is not by appeal or by bill or review, but by a motion to vacate, filed more than four years after the entry of the decree, the scope of en-quiry may be even narrower. Id. at 323-324, 48 S.Ct. at 314.
The petitioner did not seek review of the consent order when it was entered and does not now challenge the Commission’s jurisdiction over the subject matter or allege lack of consent. The petitioner asks us to review the Commission’s refusal to vacate a portion of the order. By its consent to the order, however, the petitioner waived its objections to the terms of the order. The petitioner may not challenge the Commission’s refusal to modify those terms.
The petition for review is dismissed.
. The complaint was issued against American-Marietta Company, Chicago, Illinois. The petitioner was formed by a statutory consolidation of American-Marietta and the Martin Company, Baltimore, Maryland, in October 1961.
. Crushed stone, sand, and gravel.
. The petitioner divested itself of the concrete pipe plants and the lime plants, which had a combined book value of approximately $40,700,000.
. The total book value of the quarries was approximately $3,600,000. The book value of the eight quarries not divested is approximately $3,000,000.
. The petitioner’s subsequent motion for reconsideration and for an evidentiary hearing “to resolve * * * factual disputes” was also denied by the Commission, with the statement that “even if the facts set forth by [petitioner] in its application to modify the consent order are taken as true, there has been no showing made that changed conditions of fact or law or the public interest warrant modification. * * * ”
. The agreement also provides that the consent order “is agreed to be dispositive of all the issues in this case,” and adds that “it may be altered, modified or set aside in the same manner and within the same period provided by statute for other orders.”
. The difficulty of reviewing the denial of the petitioner’s motion to modify the consent order should also be noted. Because the matter was not contested, and as stated in the consent agreement, “the record on which the decision of the Commission * * * shall be based shall consist solely of the complaint and this agreement.” The facts upon which the Commission relied in issuing its complaint and which prompted the petitioner to enter the consent agreement are therefore not available to us in determining whether the Commission erred or otherwise abused its discretion in refusing to modify the consent order on the basis of “changed conditions of fact.” This is another indication why the Commission’s order is not reviewable. Cf., Swift & Co. v. United States, 276 U.S. 311, 327, 329, 48 S.Ct. 311 (1928).
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_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
ARTHUR N. OLIVE CO., Inc., et al., Defendants, Appellants, v. UNITED STATES of America, for the use and benefit of Dan C. MARINO, etc., Plaintiff, Appellee.
No. 5881.
United States Court of Appeals First Circuit.
Heard Nov. 8, 1961.
Decided Dec. 8, 1961.
On Rehearing Jan. 16, 1962.
Charles E. Gennert, Boston, Mass., with whom Herbert L. Crimlisk and Withington, Cross, Park & McCann, Boston, Mass., were on brief, for appellants.
Philip D. Epstein, Boston, Mass., for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment following a jury verdict in the United States District Court for the District of Massachusetts for the use plaintiff, Dan C. Marino (hereinafter called Marino), in an action to recover on a payment bond filed under the Miller Act. 49 Stat. 793, 40 U.S.C.A. § 270a et seq. Marino, a resident of Massachusetts, is engaged in the contracting business.
On June 25,1958, the appellant, Arthur N. Olive Co., Inc., (hereinafter called Olive), a Massachusetts corporation, contracted with the United States to construct Sewerage System Modifications at three NIKE Battery sites in Massachusetts. Olive furnished a payment bond with the New Amsterdam Casualty Company as surety. On August 7, 1958 Olive subcontracted a portion of his prime contract to Marino for $62,000. Incident to this subcontract, Marino furnished labor and materials valued at some $55,000 to $57,000, leaving a total of $5,000 to $6,000 worth of work unperformed at the time that work was discontinued because of an alleged breach of the contract by Olive.
In addition to the work which he performed incident to the subcontract, Marino at Olive’s direction performed “extra” work at the same sites which were the subject of the original agreement. These extras, some but not all of which were contemplated in the initial subcontract, embraced such projects as drilling, blasting, trenching and- laying pipe. Testimony of Marino indicated that the value of these extras amounted to approximately $37,000. Marino, in establishing the basis for the extras testified that his charges were fair and reasonable in each instance. He was unable to identify with any notable specificity the precise profit margin on a particular project. However, his testimony indicated that while his minimum profit margin was ten percent, in some instances it rose to as much as thirty-five percent.
Ninety days having elapsed since he performed the last of his work on the NIKE installations, Marino brought this action to recover under the “payment bond” filed pursuant to the Miller Act. Both Olive and New Amsterdam were joined as defendants in this suit. At the time that he initiated this action, Marino had billed Olive $54,000 under the subcontract and had been paid $52,-500.
Marino’s complaint, invoking the jurisdiction of the district court under the Miller Act, recited the fact that he had agreed with Olive to furnish labor and materials for the Sewerage System Modifications, that such labor and materials were actually furnished and “that by reason of furnishing the aforesaid materials there became due and owing to the use plaintiff, Dan C. Marino, the sum of forty-two thousand one hundred eleven dollars 9/100 ($42,111.09) with interest thereon. * * *”
Following a lengthy trial, the jury returned a verdict for Marino in the sum of $30,633.17 to which interest was added.
The principal questions on this appeal arise from the instructions of the trial judge to the jury on the elements which it might consider in awarding Marino damages. In discussing the question of damages the trial judge charged the jury:
“If you find for the plaintiff you are to assess damages sufficient in amount to compensate the plaintiff for the loss you find he actually sustained; that is, he is to recover the amount you find to be due for any extras which you find he performed at the request of the Olive Company, plus any amount you find still to be due, if you find such, on the basic contract plus the profit, if any, he would have made on the remaining unperformed portion of the contract which was not completed by him, and to determine this last figure you are to take the balance unpaid on the contract and subtract from it what you find to be the cost of completing the unfinished work.”
Appellant objected to that portion of the charge which permitted the recovery of profit on unperformed work under the basic contract. It also objected to the language in the charge which would permit a recovery of profit on the “extras” which were supplied by Marino. Appellant argues that by permitting the jury to award profits “on the remaining unperformed portion of the contract which was not completed by him” the trial judge, in effect, permitted Marino to recover damages for a breach of the contract. It urges that recovery of such damages — by a subcontractor situated as Marino — would be manifestly outside the purview of the Miller Act. We agree with appellant’s position in this regard.
The Miller Act, like its statutory predecessor, the Heard Act, 28 Stat. 278, was enacted to give those supplying labor and materials for government construction contracts, protection comparable to that furnished by mechanics’ and materialmen’s liens where private construction is involved. United States v. Harman, 192 F.2d 999 (4 Cir. 1951); see, United States v. Munsey Trust Co., 332 U.S. 234, 241, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947). So far as is relevant here the Miller Act provides: “ (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished * * * shall have the right to sue on such payment bond for the * * * balance * * * unpaid at the time of institution of such suit * * 40 U.S. C.A. § 270b(a).
The Act is a Congressional recognition of the equity in favor of those whose actual expenditure of work or utilization of material has enhanced the value of the property in question. However, since the statute was enacted to confer rights equivalent to those which would accrue under a lien where private construction is involved and since unrealized gain or profit for breach of contract cannot be recovered under such a lien, a subcontractor should not be allowed to recover for loss of profits on the statutory bond under the Miller Act. While the subcontractor may assuredly institute an independent action against the contractor for the unrealized profits stemming from the breach, the courts are uniform in holding that such an action may not be maintained against the surety on the contractor’s bond under the Miller Act. L. P. Friestedt Co. v. U. S. Fireproofing Co., 125 F.2d 1010 (10 Cir. 1942); United States v. John A. Johnson & Sons, 65 F.Supp. 514 (D.C.Md.1945), aff’d., 153 F.2d 534 (4 Cir. 1946); United States v. Maryland Casualty Co., 54 F.Supp. 290 (D.C.W.D.La.1944), aff’d., 147 F.2d 423 (5 Cir. 1945); United States, to Use of Watsabaugh v. Seaboard Surety Co., 26 F.Supp. 681 (D.C.Mont.1938), aff’d., 106 F.2d 355 (9 Cir. 1939).
Moreover, a reading of the complaint shows that, consonant with the statutory criteria, Marino merely sought recovery on the basis of the labor and materials which were actually furnished in the construction of the projects here at issue. However, it is apparent that under the trial judge’s instructions, Marino was allowed to recover not only for the labor and materials supplied but also for the profit on the labor and materials which he did not supply because of the supervening breach by Olive — “the profits on the unperformed portion of the contract.” In short, Marino was enabled to recover for an item which he failed to even ask for in his complaint.
Quite apart from the foregoing, the charge of the trial judge is also subject to the infirmity that, in effect, it permitted Marino a double recovery of one of his ostensible items of damage. As seen above, the trial judge told the jury that in computing its award of damages for Marino, it might consider three distinct items: (1) the amount due for extras ; (2) the amount yet unpaid on the basic contract; (3) the profit on the unperformed portion of the contract. Under these instructions the court allowed the jury to award Marino the “amount due on the basic contract” twice. The possibility of this dual recovery is best exemplified by a tabular presentation of the pertinent amounts here at issue. Thus, following the judge’s instruction, the jury would have computed the “amount due on the basic contract” as follows:
Work performed $55,000 or $57,000
Less :
Payments by Olive $52,500
Balance $ 2,500 or $ 4,500
Having made this computation, the jury presumptively would then turn to the next item enumerated by the court— the profit on the unperformed portion of the contract. Under the instruction this was to be computed by taking the balance unpaid on the basic contract and deducting from it the cost of completing the unperformed work. This computation would appear tabularly as:
Contract $62,000
Payments $52,500
Balance unpaid on the contract $ 9,500
Less:
Cost of completing $5,000-$6,000 worth of unperformed work.
It is obvious, relative to this last calculation, that the trial judge should have directed the jury to deduct from the $9,500 figure the $2,500-$4,500 amount which had previously been computed as a separate item. Under the court’s formula, the jury was thus allowed to award $2,500-$4,500 damages a second time. This, of course, was demonstrably prejudicial to the appellant.
Appellant’s second principal contention is that Marino was not entitled to a profit on the “extras” which he furnished but rather that he should be restricted to their actual cost. There is no question that the extras were all furnished at Olive’s direction, with his acquiescence and were utilized on the instant projects. We believe that in this situation the subcontractor should be allowed to recover a reasonable profit on the extras thus furnished. Out-of-pocket expense is not the limit of the fair value of labor and materials. See Continental Casualty Co. v. Schaefer, 173 F.2d 5, 8 (9 Cir. 1949). The question of whether Marino’s charges for the extras were reasonable may be determined on the remand of this case.
Judgment will be entered vacating paragraphs 1 and 2 of the amended judgment of the District Court, setting aside the verdict to that extent, remanding the case to that Court for a new trial on the complaint, as amended, and affirming paragraph 3 of said amended judgment.
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_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.
ADVANCE ALUMINUM CASTINGS CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
No. 9519.
Circuit Court of Appeals, Seventh Circuit.
June 2, 1948.
Frank J. Albus, of Washington, D. G, James F. Spoerri and Bobb, Spoerri, Bourland & Harris, all of Chicago, 111., for petitioner.
Theron L. Caudle, Asst. Atty. Gen., and Sewell Key, George A. Stinson, S. Walter Shine and Melva M. Graney, Sp. Assts. •'O Atty. Gen., and Charles Oliphant, Chief Counsel, Bureau of Internal Revenue, and John M. Morawski, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. G, for respondent.
Before KERNER, and MINTON, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Petitioner questions a deficiency assessment in its income tax for the year 1942, determined by the Commissioner of Internal Revenue and approved by the Tax Court, of $51,313.24. The controversy between the parties presents only the question of whether, in determining its taxable income for income tax purposes for the period involved, petitioner was enttiled to deduct from its net income a credit of $504,-579.32 for excess profits, as it insists, instead of a credit of $376,296.24 as determined by the Commissioner and the Tax Court, — a purely legal question as to which of the two sums constitutes the proper credit under the pertinent revenue statutes.
Petitioner is a manufacturer of aluminum products, which it sells in two ways,— in ordinary sales and in installment sales. Its books are kept upon a calendar year accrual basis of accounting and its taxes have been reported and paid upon that basis, except that receipts from installment sales have been reported and tax thereon computed under the alternate plan provided for installment sales by Section 44(a) of the Internal Revenue Code. However, after Congress had enacted Section 736(a) of the Internal Revenue Code in 1942, granting relief to installment sales taxpayers by providing that they might elect to compute their excess profits tax, insofar as it involved installment sales, upon an accrual basis, rather than under Section 44, petitioner elected to compute its excess profits tax income, in accord with this section, upon an accrual basis. Calculated upon this formula, petitioner’s adjusted excess profits net income was $376,296.24; and upon that basis, admittedly correct, the excess profits taxes were assessed ’and paid. The parties diverge upon whether this was the proper excess profits tax credit deductible from petitioner’s net income in determining its income taxes. Petitioner contends that it should have been permitted to deduct an excess profits tax credit, calculated upon a consideration of its income upon the installment basis, which, in turn, would have resulted in a deductible credit of $504,579.32, reducing its income tax to that reported and completely eliminating the deficiency approved by the Tax Court.
Section 13 of the Internal Revenue Code, as amended by the Acts of 1939 and 1942, provides that corporate adjusted normal net income for income tax purposes shall be net income, minus the credit for income subject to the excess profits tax. Section 15, similarly defines corporate sur-tax net income. Section 26 gives to a corporation the right to deduct from its net income the excess profits tax credit. In 1942 Congress added Section 736(a) providing that taxpayers who had been computing income from installment sales in accord with the alternate method provided by Section 44 (a) of the Revenue Code, might elect, for the purpose of determining their excess profits taxes, to compute their income from installment sales on an accrual basis, in accord “with regulations prescribed by the Commissioner.” These statutory provisions appear in 26 U.S.C.A. §§ 13, 15, 26, 44(a), 710, 711 and 736.
Following the latter enactment, the Commissioner promulgated Regulation 112, which provides that, in case of election by the taxpayer to compute his excess profits tax income on an accrual basis, his income tax shall be based upon net income including “income from installment sales computed under the installment method provided by Section 44(a)” and the excess profits tax upon an income reflecting installment sales income calculated on an accrual basis, and that the credit to be allowed under Section 26(e), in determining taxable income for income tax purposes, shall be calculated by including in the excess profits tax income receipts of sales on installment sales on an accrual basis. This regulation, says the petitioner, exceeds the statutory enactment and includes provisions not contemplated by the Act of Congress.
Petitioner contends that inasmuch as Section 736(a) was applicable only to the excess profits tax, it was the intent of Congress to retain the amount of credit which it might have deducted, under its former method of reporting its excess profits tax income, from its taxable net income for income tax purposes. It insists that, though it elected to account for its receipts from installment sales on the accrual basis, thereby reducing its taxable excess profits income, it was still entitled, in computing its income for income tax purposes to deduct as a credit, not the excess profits tax income as actually computed but the amount it might have deducted had it continued to report its excess profits tax income on the installment basis under Section 44(a), and it argues that the statute, when properly interpreted, justifies this construction.
We think the argument unsound. After the excess profits tax sections were enacted, corporations were subjected both to that tax and to normal and sur-income taxes. Consequently, Congress, in order to avoid excessive taxation, in Sections 13 and 15, provided that corporations might have a credit against their normal and surtax income in the amount of their income subject to excess profits tax. In other words, the income for income tax purposes was reduced by the amount of income subject to the excess profits tax. Obviously Congress’ purpose was to avoid double taxation of that portion of income subjected to an excess profit tax and to exempt it from income taxes. The various sections to which we have previously referred plainly evince this intent. Thus, when petitioner found itself subjected to both taxes, realizing that it might advantageously elect to report, for excess profits tax purposes, its installment sales receipts on an accrual basis, as provided by 736(a), it was entitled, in computing its taxable net income for income tax purposes, to a credit upon taxable income for just so much as its excess profits tax income amounted to, however calculated, that is, whether upon an accrual basis or upon an installment basis. By reducing its excess profits tax, by electing to take advantage of the option granted by Congress under Section 736(a), it was able, as Congress intended, to reduce its excess profits tax income and its excess profits tax thereon, but we read nothing in the statute that would justify an implication that Congress intended at the same time to exempt from income taxes that portion of income eliminated from excess profits tax liability. Indeed, the whole purport of the legislation is to the contrary, the intent having been at all'times that the net income for income tax purposes should be decreased only by the amount of the excess profits tax income in order to avoid double taxation of the same income. It would be a violent and unjustified construction to conclude that petitioner could reduce its excess profits tax under the option granted by Congress and at the same time deduct from its taxable net income an excess profits tax income credit nowhere in existence, calculated upon the installment basis. To permit this would remove from all excess profits taxation and from all income taxation, in this particular instance, some $128,000 in income and reduce the income tax to a figure below what it would have been, had no excess profits tax been imposed. To our mind there is nothing to justify petitioner’s contention that the statute permitted it to deduct a credit reflecting its income on the installment basis, and that the credit to be allowed should be upon that basis. To permit this would ignore the essential fact that when petitioner elected to report its adjusted excess profits net income on the accrual basis under Section 736(a) it thereby automatically established the credit which it might deduct from its taxable net income for income tax purposes.
We think the reasoning of the court in Commissioner v. South Texas Lumber Company, 333 U.S. 496, 68 S.Ct. 695, 700, applicable to the situation here. There the court said: “There is no indication in any of the congressional history, however, that by passage of this law Congress contemplated that those taxpayers, who elected to adopt this accounting method for their own advantage could by this means obtain a further tax advantage denied all other taxpayers, whereby they could, as to the same taxable transaction, report in part on a cash receipts basis and in part on an accrual basis.”
The attack upon the validity of the regulation involved is completely met by the decision in Commissioner v. Texas Lumber Company, supra.
The decision is affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_usc2sect
|
933
|
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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Leland K. AUBREY and Charlotte R. Aubrey, Appellants, v. UNITED STATES of America, Appellee.
No. 14157.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 20, 1958.
Decided April 10, 1958.
Mr. Bernard J. Hammett, Washington, D. C., with whom Messrs. W. Byron Sorrell and Cullen B. Jones, Jr., Washington, D. C., were on the brief, for appellants.
Mr. Stanley D. Rose, of the bar of the Supreme Court of Tennessee, pro hae vice, by special leave of Court, with whom Asst. Atty. Gen. George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellee. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellee.
Before Reed, Associate Justice of the Supreme Court, retired, and PRETTY-MAN and Bazelon, Circuit Judges.
Sitting by designation pursuant to Section 294(a), Title 28 U.S.C., 28 U.S.C.A. § 294(a).
REED, Associate Justice
(sitting by designation).
Leland Aubrey and his wife, Charlotte Aubrey, appeal from the order of the District Court granting summary judgment against them in their suit against the United States under the Tort Claims Act. The principal questions on appeal are (1) whether the workmen’s compensation statute applicable to a civilian employee of a Navy officers’ open mess bars him from suing the United States for injuries suffered in the course of his employment as the result of the negligence of the United States; and (2) whether the injured employee’s wife may maintain a suit against the United States for loss of consortium resulting from the alleged injury.
On October 22, 1954, Leland Aubrey was assistant manager of the Officers’ Mess at the Naval Gun Factory in Washington, D. C. The Officers’ Mess is a nonappropriated fund activity and Aubrey’s salary as an employee of the Mess was paid from the proceeds of the sale of food and beverages. The Mess had agreed to provide catering service for a Navy Relief Ball which was to be held on the evening of October 22, 1954, in a large hall at the Gun Factory. This hall, known as the “Sail Loft,” was owned, maintained and controlled by the Naval Gun Factory and was not a part of the facilities of the Officers’ Mess. On the day of the dance the hall was being waxed by Navy enlisted men acting within the scope of their employment, when Aubrey, in the course of his duties in preparing the catering arrangements, entered the “Sail Loft,” slipped on the newly-waxed floor, fell and broke his ankle.
The Mess, as required by statute, had provided workmen’s compensation insur-anee. Aubrey received from the insurer the sum of $279.00 as payment for medical expenses and further payments totaling $710.00 for disability. Later Aubrey filed this action under the Federal Tort Claims Act, seeking to recover damages from the United States for his injuries and alleging that the injuries were proximately caused by the negligence of the United States and its employees in cleaning and waxing the floor upon which he slipped and fell. His wife, appellant Charlotte Aubrey, joined as plaintiff and sought to recover damages from the United States for loss of consortium.
The record discloses that at the pretrial proceeding in this action, it was stipulated by counsel for plaintiffs and counsel for the United States that “Plaintiff Leland Aubrey was not a Government employee on October 22, 1954.” On appeal, Aubrey argues that even if the compensation is the exclusive remedy against his employer, this does not bar his right to sue the defendant since, according to the stipulation, the Government was not his employer. We hold that the compensation provided by the Officers’ Mess, an instrumentality of the United States, was Aubrey’s exclusive remedy against the United States. By enacting a statutory system of remedies for injuries in the course of employment by these government instrumentalities, Congress has limited the remedy available against the United States by civilian employees of such instrumentalities to workmen’s compensation, the cost of which is borne by the self-supporting in-strumentalities themselves.
By the Act of June 19, 1952, Congress sought to allay certain doubts concerning the status of civilian employees of non-appropriated fund activities under the jurisdiction of the Armed Forces. These doubts had been raised by the holding of the Supreme Court in Standard Oil Co. v. Johnson, 1942, 316 U.S. 481, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611, that Army post exchanges are “arms of the Government” and “integral parts of the War Department” and that they therefore participate in the government’s immunity from state taxation. The Civil Service Commission thought that the effect of this decision was to require that the employees of such instrumentalities be considered federal employees and subject to the general federal personnel laws. The Department of Defense did not view the Johnson case as requiring the inclusion of these employees in the same class as employees of activities operated on appropriated moneys, and sought legislation which would clarify their status. Another purpose of the requested legislation was to require by law what was then the practice of non-appropriated fund activities of providing workmen’s compensation protection for their employees. S.Rep. No. 1341, 82d Cong., 2d Sess. (1952); H.R.Rep. No. 1995, 82d Cong., 2d Sess. (1952); 2 U.S. Code Congressional & Administrative News 1952 p. 1520.
The bill proposed by the Department of Defense was subsequently enacted into law. While specifically preserving the status of the nonappropriated fund activities as federal instrumentalities, the Act provided that employees of such activities shall not be considered employees of the United States for the purpose of laws administered by the Civil Service Commission or the provisions of the Federal Employees Compensation Act (5 U.S.C. § 751, 5 U.S.C.A. § 751), and required nonappropriated fund instrumentalities to provide their employees with compensation for death or disability incurred in the course of employment.
An officers’ mess, like a post exchange, is an integral part of the military establishment. Pursuant to Congressional authorization, 10 U.S.C. § 6011,10 U.S.C.A. § 6011, the Secretary of the Navy has issued regulations governing the organization and operation of naval officers’ messes. U. S. Navy Regulations 1948, Arts. 0441.6, 1841, provide that the administration and operation of officers’ messes shall be under the control and regulation of the Chief of Naval Personnel. The latter has promulgated directives requiring that the messes be organized as integral parts of the Navy and that they be operated under the administration and regulations of the commander or commanding officer of the activity where the mess is located subject to regulations issued by the Chief of Naval Personnel. Bur. of Naval Personnel Man. Arts. C-9501, C-9505. The Bureau of Naval Personnel has also issued detailed instructions concerning every facet of the management of naval officers’ messes. Manual for Commissioned Officers’ Messes Ashore, Navpers 15847, 1955. Similarly detailed instructions govern the accounting methods to be used by the messes. Accounting Systems for Open and Closed Messes Ashore, Navexos P-1032. Cf. Standard Oil Co. v. Johnson, supra, 483-4; Edelstein v. South Post Officers Club, D.C.E.D.Va. 1951, 118 F.Supp. 40; Bleuer v. United States, D.C.E.D.S.C.1950, 117 F.Supp. 509.
The close relationship between such nonappropriated fund instrumentalities as officers’ messes and the military establishment of which they form an arm justifies legislative control of the former by Congress. By § 150k-1, Congress has directly regulated the conduct of these activities to the extent of requiring them to provide workmen’s compensation protection for their civilian employees. The requirement that the instrumentalities themselves provide the protection, by insurance or otherwise, was obviously intended to insure that the cost of such protection would be paid out of the proceeds of these self-supporting activities and not out of public funds.
In Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, the Supreme Court considered the question whether a plaintiff injured while on duty with the armed forces through alleged negligence of the United States could sue under the Tort Claims Act. The court noted that Congress had provided systems of simple, certain, and uniform compensation for injuries or death of those in the armed services, and construed the Tort Claims Act to fit into the entire statutory scheme of remedies against the Government to make a workable, consistent and equitable whole. It held that in view of the compensation system provided, it was not the intent of Congress to allow a serviceman to sue the United States for injuries incident to his duties in the armed forces, although the Tort Claims Act did not expressly withhold his right to sue the United States.
The Supreme Court in Johansen v. United States, 1952, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, applied the same principie in affirming the dismissal of a suit against the United States by a civilian seaman for damages for injuries incurred in his employment aboard a public vessel and caused by the alleged negligence of the United States. The court held that since the seaman was protected by the Federal Employees Compensation Act, 5 U.S.C.A. § 751 et seq., he could not bring suit against the United States under the Public Vessels Act, 46 U.S.C.A. § 781 et seq. even though again the Compensation Act did not in terms state that it was the exclusive remedy available against the United States for such injuries.
We conclude that Aubrey is precluded from maintaining this suit under the Tort Claims Act by the principle set forth in Feres and Johansen that the Act was not intended to -grant the right to sue the Government to one who has been provided another remedy against its own instrumentality by the Government through a system “of simple, certain, and uniform compensation for injuries or death.” *The compensation system provided for plaintiff Aubrey must, like the Tort Claims Act, “be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.’’ See also Lewis v. United States, 1951, 89 U.S.App.D.C. 21, 190 F.2d 22; Sigmon v. United States, D.C.W.D.Va.1953, 110 F.Supp. 906. We do not think the fact that the insurer is not the United States but a private insurance carrier requires a distinction between this case and Feres or Johansen.
We turn to the right of action of the wife for damages “for loss of the services, support, companionship and consortium” of her husband, allegedly suffered because of defendant’s negligence. This court has held in Hitaffer v. Argonne Co., Inc., 1950, 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, that the law allows a recovery for such injury. By Smither & Co., Inc. v. Coles, 1957, 100 U.S.App.D.C. 68, 242 F.2d 220, this court reversed the holding in Hitaffer so far as the wife’s right of recovery remained as an individual right, unaffected by the District of Columbia Compensation Act, and held that Mrs. Coles could not recover because liability of the employer provided by the Compensation Act was “exclusive and in place of all other liability of such employer to the * * * wife * * * ” 33 U.S.C. § 905, 33 U.S.C.A. § 905.
In this case the Officers’ Mess, the employer, has met its liability to Aubrey and that arrangement bars the wife’s recovery against the mess under the Smither case. But the present action was predicated on the liability to the Aubreys of the United States as the third party tortfeasor, a liability not covered by the Compensation Act. The Aubreys have brought their cause of action under the provisions of § 33 of the Longhoreman’s Act — the controlling compensation statute in the District of Columbia. Section 33 of the Act, 33 U.S.C. § 933, 33 U.S.C.A. § 933, is the section covering compensation for third party injuries. Since it has been stipulated that the United States is not the employer of Mr. Aubrey, his wife would be entitled to recover for her alleged injury under the Hitaffer case, supra, if negligence for which the United States is responsible is proven.
We think that the allegations of the petition that “through the negligence of the United States and several of its employees * * * in cleaning or waxing the floor of the ‘Sail Loft’ a dangerous condition was created” and appellee’s denial thereof warrants for Mrs. Aubrey a trial for the determination of possible liability.
We think that the contentions of appellant and appellee as to the continued vitality of the Hitaffer case should await the judgment of the trial court as to the liability of the United States under that case.
. 66 Stat. 138 (1952), 5 U.S.C. § 150k-1 (1952), 5 U.S.C.A. § 150k-1; see note 3. The Mess was also an employer and Aubrey an employee within the terms of the District of Columbia Workmen’s Compensation Act. 45 Stat. 600 (1928), § 36-501, D.C.Code (1951), which makes the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424 (1927), 33 U.S.C. §§ 901-950 (1952), 33 U.S.C.A. §§ 901-950, applicable to the District of Columbia.
. 60 Stat. 812, 842 (1946), now 28 U.S.C.A. § 2671 et seq.
. 66 Stat. 138, (1952), 5 U.S.C. §§ 150k, 150k-1, 5 U.S.C.A. §§ 150k, 150k-1; provided in part:
Section 150k: “Civilian employees, compensated from nonappropriated funds, of * * * instrumentalities of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure * * * (etc.) of pereonuel of the Armed Forces, shall not be held and considered as employees of the United States for the purpose of any laws administered by the Civil Service Commission or the provisions of the Federal Employees’ Compensation Act, as amended: Provided, That the status of these nonappropriated fund activities as Federal instrumentalities shall not be affected.”
Section 150k-1: “The nonappropriated fund instrumentalities described in section 150k * * * shall provide their civilian employees, by insurance or otherwise, with compensation for death or disability incurred in the course of employment. * * * (C)ompensation shall be not less than that provided by the laws of the State (or the District of Columbia) in which the employing activity of any such instrumentality is located. * * * ”
. 340 U.S. 144, 71 S.Ct. 158; 343 U.S. 440, 72 S.Ct. 857.
. 840 U.S. 189, 71 S.Ct. 156; 343 U.S. 440, 72 S.Ct. 857.
. See note 1.
. Compare with Hitaffer v. Argonne Co., supra, the annotations thereon, 23 A.L.R.2d 1378, summary § 2; negligence of defendants §§ 6-12 inclusive; American Law Institute, Restatement, Torts § 695, 1954 Supplement § 695; Louis L. Jaffe, Damages for Personal Injury, 18 Law and Contemporary Problems 219, 228-230; Best v. Samuel Fox & Co., Ltd., (1952) A.C. 716, and note on the case in The Modern Law Review, London, vol. 16, p. 92; XXXII Canadian Bar Review, December 1954, p. 1065; 1 U.C.L.A.Law Rev. 223; 55 Mich.L.Rev. 721. See Acuff v. Schmit, Iowa 1956, 78 N.W.2d 480; XIV Washington & Lee L.Rev. 324.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33? Answer with a number.
Answer:
|
songer_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Anthanasios G. DALLIS, Petitioner-Appellant, v. Tommy MARTIN, Respondent-Appellee.
No. 90-6331.
United States Court of Appeals, Tenth Circuit.
April 8, 1991.
Anthanasios G. Dallis, Big Spring, Tex., pro se.
Timothy D. Leonard, U.S. Atty. and Debra A. Woods, Asst. U.S. Atty., Oklahoma City, Okl., for respondent-appellee.
Before ANDERSON, TACHA, and BRORBY, Circuit Judges.
STEPHEN H. ANDERSON, Circuit Judge.
Petitioner, A.G. Dallis, a federal prisoner, filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, challenging a United States Parole Commission decision. The district court dismissed the petition. We affirm.
On August 17, 1987, Dallis was sentenced to a five-year suspended sentence for conspiracy to bomb, and two ten-year consecutive terms of imprisonment for malicious destruction of a building and unlawfully making a firearm. The Parole Commission assigned an offense behavior category of seven which resulted in a parole guideline range of 52 to 80 months. It also “aggregated [Dallis’s] two ten-year sentences and determined that he would not be eligible for parole until he had served 80 months or one-third of his aggregate sentence.” Memorandum Opinion at 2 (September 27, 1990) (“Opinion”). Thereafter, Dallis received a notice of action dated April 12, 1988, that he was continued to a presumptive parole after serving 80 months.
Dallis challenged this agency action in district court. He raised two grounds in his action for habeas corpus relief. First, he argued that the Parole Commission should have calculated his offense behavior as category five which would have resulted in a guideline range of 24 to 36 months. Second, he argued that he is eligible for parole consideration after the service of 40 months because “the penalty provision for his [C]ount 3 conviction [made] him immediately eligible for parole consideration as to that [C]ount.” Opinion at 2-3. The district court determined that: (1) under the Count 3 penalty provision, Dallis must serve one-third of his sentence before parole consideration; and, (2) the Parole Commission properly aggregated Dallis’s two ten-year sentences. Consequently, it decided that the Parole Commission correctly computed Dallis’s parole eligibility date and it dismissed Dallis’s petition. Because a lower offense severity would not change this result, the district court did not address the merits of Dallis’s first ground. On appeal, Dallis raises both grounds again. First, we address the question of Dallis’s parole eligibility date.
Appellant and Appellee agree that pursuant to 18 U.S.C. § 4205(a) and (b) (1988), because the sentencing court “did not exercise its power to set a parole eligibility date, 18 U.S.C. § 4205(a) applies.” Appel-lee’s Brief at 4. Pursuant to 18 U.S.C. § 4205(a) (1988), “a prisoner shall be eligible for release on parole after serving one-third of [his] term ..., except to the extent otherwise provided by law.” Prior to an amendment enacted on October 12, 1984, the penalty statute under which Dallis received his Count 3 sentence, 26 U.S.C. § 5871 (1988), provided such an exception.
The amendment to 26 U.S.C. § 5871 deleted language that allowed the Parole Commission to consider parole at its discretion so that it now reads:
Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, ... be imprisoned not more that ten years....
26 U.S.C. § 5871 (1988). Prior to passage of that amendment, however, the statute continued, “and shall become eligible for parole as the Board of Parole shall determine.” Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 227, 98 Stat.1937, 2030 (“Sec. 227 amendment”).
Dallis asserts that the amended statute became effective on November 1, 1987, after he was sentenced and well after he committed his offenses. Therefore, he argues the prior statute applies to his Count 3 sentence and the Parole Commission had the discretion to immediately consider him for parole as to that Count. The district court decided that the Sec. 227 amendment was effective on October 12, 1984, prior to when Dallis committed his offenses, and so applied to his Count 3 sentence.
I.
Ordinarily, “ ‘judicial review’ of [a] Parole Commission action is ... whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion.” Resnick v. United States Parole Comm’n, 835 F.2d 1297, 1301 (10th Cir. 1987). In this case, however, Dallis’s parole eligibility date depends on a question of law: What was the effective date of the particular Sentencing Reform Act section that amended the Count 3 penalty statute? We review this question de novo.
The Sentencing Reform Act of 1984 (“SRA”) was passed as Chapter II of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837 (“CCCA”). In Romano v. Luther, 816 F.2d 832, 834 (2d Cir.1987), the Second Circuit explained that the CCCA “is an amalgamation of various bills originally drafted in the expectation of being enacted independently of other bills_ [which] contains 23 chapters, each making changes in a different area of federal criminal law.” The Sentencing Reform Act “creates the new system of determinate sentences to be imposed under sentencing guidelines ... and abolishes parole.” Id.
Sentencing Reform Act, Sec. 235 “establishes a uniform effective date for most provisions of ... the [SRA,] provides for certain exceptions to the uniform effective date, and contains special provisions related to the transition from the current system of sentencing to the new system.” Id. at 835. Subsection 235(a)(1) provided that the Sentencing Reform Act, with some exceptions, “shall take effect on the first day of the first calendar month beginning twenty-four months after the date of enactment.” Subsequently, Congress changed this period to thirty-six months. Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat. 1728, 1728. Therefore, most of the Sentencing Reform Act took effect on November 1, 1987. To effect a smooth transition between the parole system and the new determinate sentencing system, however, certain parts of the Sentencing Reform Act necessarily became effective upon enactment of the CCCA on October 12, 1984.
When the CCCA was enacted on October 12, 1984, Sec. 235(a)(l)(B)(ii)(IV) stated: “the provisions of sectio[n] 227 ... [which amended 26 U.S.C. § 5871 by deleting the discretionary provision,] shall take effect on the date of enactment.” Even though in 1986 this section was amended to replace part IV with language specifying when the SRA Sec. 212(a)(2) would take effect, we agree with the district court that the later amendment to Sec. 285 which deleted reference to Sec. 227 did not repeal Sec. 227. The district court explained:
[T]he legislative history of the amendments to Public Law 98-473 does not indicate any express intention to repeal § 227, [and] ... this Court will not interpret § 227 to be repealed by implication. Further, the amendment to 26 U.S.C. § 5871 had already been in effect for two years prior to the 1986 amendment, and therefore, there was no reason to mention § 227 in the subsequent amendments, unless Congress intended to change it.
Opinion at 8 (citing United States v. Batchelder, 442 U.S. 114, 122, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979)); see also United States v. Barrett, 837 F.2d 933, 934 (10th Cir.1988) ("Courts are reluctant to find repeal by implication even when a later statute is not entirely harmonious with an earlier one_unless the text of legislative history of the later statute shows that Congress intended to repeal the earlier and simply failed to do so expressly.”) (citing Watt v. Alaska, 451 U.S. 259, 266-67, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981)). The 1986 amendment to Sec. 235(a)(l)(B)(ii)(IV) merely “add[ed] a fourth event that must precede the effectiveness of the sentencing guidelines — section 212(a)(2) of the Crime Control Act taking effect.” Romano v. Luther, 816 F.2d at 836 n. 4. It did not change the effective date of the Sec. 227 amendment to 26 U.S.C. § 5871 which expressly became effective upon enactment two years earlier. The district court correctly determined that the Sec. 227 amendment was effective on October 12, 1984.
The district court also noted that although the 1985 version of 28 C.F.R. § 2.2(d) was in conflict with the then recently amended 26 U.S.C. § 5871 (1988), in 1988 the regulation was amended to be consistent with the statute. As amended it also deletes the discretionary release of inmates who commit offenses on or after October 12, 1984, and requires completion of one-third of a sentence term before the Parole Commission may consider parole. 28 C.F.R. § 2.2(d) (1990).
Because we also agree that the Parole commission properly aggregated Dallis’s two ten-year sentences to determine an 80-month parole eligibility from a twenty-year base, we hold that the Parole Commission correctly computed Dallis’s parole eligibility.
We need not address Dallis’s other issue on appeal that the Parole Commission miscalculated his offense behavior rating. It is a well-settled general rule that “a federal appellate court does not consider an issue not passed upon below.” Pell v. Azar Nut Co., 711 F.2d 949, 950 (10th Cir.1983) (quoting Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976)). Although a court might bend this rule in the interest of fairness to avoid injustice or if “the proper resolution is beyond any doubt,” id. (quoting Singleton v. Wulff, 428 U.S. at 121, 96 S.Ct. at 2877), the Parole Commission correctly computed Dal-lis’s parole eligibility date. Therefore, it is not unfair for us to refuse to review his offense severity rating because:
even if the Commission were to rate his offense in a lower category, with corresponding lower guideline, he still would not be eligible for release until he had served 80-months_ [Assigning him a lower offense severity would not change his release date.
Appellee’s Brief at 10.
In sum, the amended penalty statute applies to Dallis’s Count 3 sentence. Pursuant to this statute, the Parole Commission correctly computed Dallis’s parole eligibility date. The district court, therefore, properly dismissed Dallis’s petition for habeas corpus relief.
We AFFIRM.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
. 18 U.S.C. §§ 4201-4218 (1988), repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 218(a)(5), 98 Stat.1937, 2027, apply for five years after November 1, 1987, to individuals who committed offenses prior to November 1, 1987. 18 U.S.C. §§ 4201-4218 (1988).
. As a whole, the CCCA had no effective date provision and so it became effective upon enactment, "except to the extent that specific provisions of the CCCA otherwise provide." Romano v. Luther, 816 F.2d at 837.
. See, e.g., Norwood v. Brennan, 891 F.2d 179, 181-82 (7th Cir.1989) ("SRA transition provisions [including] § 235 were effective immediately”); Romano v. Luther, 816 F.2d at 839 (CCCA Ch. II, § 235(b)(3), the “winding up" provision, takes effect on October 12, 1984). Other parts of the CCCA such as the Bail Reform Act of 1984, Pub.L. No. 98-473, §§ 202, 203, 98 Stat.1976, 1976 (codified as amended at 18 U.S.C. §§ 3141-3150 (1988)), also became effective on October 12, 1984. United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985); see also United States v. Shaffer, 789 F.2d 682, 686-87 (9th Cir.1986) (CCCA amendments to 18 U.S.C. § 3731 (1988) became effective October 12, 1984).
. Criminal Law and Procedures Technical Amendments Act of 1986, Pub.L. No. 99-646, § 35, 100 Stat. 3592, 3599. The Sentencing Reform Act, Sec. 212(a), repeals certain United States Code Title 18 sections and substitutes new chapters to effect the new Sentencing Reform Act, codified as amended at 18 U.S.C. §§ 3551-3559 (1988).
. Naturally, a regulation may be out of step with a statute it is intended to enforce for a period after the statute is amended and before the corresponding regulation is likewise amended. Even if the regulations which were temporarily out-of-step with the statute applied, as Appellee notes "offenders have fair warning that the guidelines governing parole determinations are subject to change and a prisoner does not have any expectation of a particular parole system.” Appellee’s Brief at 9-10; see Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Yamamoto v. United States Parole Comm’n, 794 F.2d 1295, 1299-1300 (8th Cir.1986); Inglese v. United States Parole Comm’n, 768 F.2d 932, 940 (7th Cir.1985); Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir.1982).
.Goode v. Markley, 603 F.2d 973, 976-77 (D.C.Cir.1979) cert. denied, 444 U.S. 1083, 100 S.Ct. 1039, 62 L.Ed.2d 768 (1980); Walker v. J.C. Taylor, 338 F.2d 945, 945-46 (10th Cir.1964).
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
In the Matter of JOHN RICH ENTERPRISES, INC., a Delaware corporation et al., Debtors-Appellee. Emanuel Fields, Claimant-Appellant.
No. 72-1514.
United States Court of Appeals, Tenth Circuit.
June 27, 1973.
William G. Fowler, Salt Lake City, Utah, for debtors-appellee.
M. Emanuel Fields, New York City, pro se, claimant-appellant.
Before PICKETT, SETH and MC-WILLIAMS, Circuit Judges.
PICKETT, Circuit Judge.
The issue presented by this appeal arises out of a claim for attorney fees wherein several corporations with common directors and officers sought a reorganization under Chapter X of the Bankruptcy Act. The district court approved the claim in part as it applied to the corporation for whom the legal services were rendered, but entered judgment against claimant Fields for recovery of $20,000 of a total of $30,000 which had been paid by one of the other corporations. Limiting his appeal to the money portion of the judgment, Fields contends that the payment was authorized and was later approved by formal action of the board of directors.
John W. Rich had patents or applications for patents for a water bumper device and for a product described as a television or movie chair. John W. Rich Manufacturing Company, a California corporation, was created for the purpose of manufacturing and distributing the water bumper product. The distribution was accomplished by the sale of franchises throughout the United States and abroad. International Movie Chairs, Inc. (I.M.C.), a California corporation, was* formed to promote the manufacture and sale of the television or movie chair device and its funds were raised from public investors. The directors and officers of these two corporations were the same and their businesses were conducted in the same building in Sacramento, California, and generally by the same employees.
Through an arrangement between the two corporations the Rich Manufacturing Company, for an agreed consideration, manufactured the chairs for I.M.C. Financial difficulties developed in the water bumper business. To overcome these difficulties the board of directors of the manufacturing company decided to form John W. Rich Enterprises, Inc., a California corporation, for the purpose of eliminating the franchise operation by substituting stock of the new corporation for the franchises and to raise additional funds by a public offering of stock. This project failed and C. Allen Elggren, a Salt Lake City lawyer who was a director, officer and general counsel for all the corporations, recommended that appellant Fields, a New York attorney and expert in the field of corporate financing, be employed to obtain the necessary authority for a public offering of stock in John W. Rich Enterprises, Inc. of California.
In April, 1969, Fields met with the board of directors of John W. Rich Enterprises, Inc. in Sacramento, California. At this meeting Fields agreed to undertake the task of obtaining the necessary authority for a public offering of securities in John W. Rich Enterprises, Inc. for a fee not to exceed $50,000, of which $10,000 was to be paid immediately. The offer of employment was accepted by the board, and upon return to Salt Lake City Elggren delivered a cheek to Fields for $10,000 drawn upon the account of I.M.C.
It was determined that the better procedure was to organize a Delaware corporation under the name of John W. Rich Enterprises, Inc. and to file the necessary information with the Securities Exchange Commission for authority to sell publicly the stock of the Delaware corporation. The new corporation was created and Fields proceeded to obtain the required material for SEC approval. Fields also circularized the holders of the water bumper franchises notifying them of the proposed plan to exchange stock for franchises. During the course of these activities and at the suggestion of Elggren, Fields billed I.M.C. for additional attorney fees, and through cheeks drawn by Elggren, I.M.C. paid $20,000 over and above the original $10,000.
The SEC brought a federal court action in California against the corporations, Fields and others, charging violations of the federal securities laws. A consent decree was entered in this case enjoining the activities of John W. Rich Enterprises, Inc. in regard to its securities. Apparently as an outgrowth of the consent decree, all of the Rich corporations, including I.M.C., then were joined in Chapter X Bankruptcy proceedings instituted in the State of Utah seeking an acceptable reorganization. It was in these proceedings that Fields filed a claim for additional attorney fees. The trustee denied the claim and sought recovery of the $30,000 paid to Fields from the funds of I.M.C.
The validity of Fields’ claim and the trustee’s counterclaim was tried in the United States District Court for the District of Utah. The trial court’s finding that there was no agreement, express or implied, for performance of legal services for I.M.C. by Fields and that no professional services were rendered for and on behalf of that corporation by Fields is sustained by the evidence. The testimony of Fields and Elggren was that Fields had not been employed by I.M.C. and performed no service for it. The record is barren of evidence that I.M.C. received any consideration or benefit from the work of Fields. On this evidence the court held that the payments to Fields by I.M.C. were unauthorized and ultra vires acts of that corporation. The counterclaim for the original $10,000 payment was disallowed on the basis that the trustee was estopped to recover that amount and judgment was entered in favor of the trustee for later payments totaling $20,000. The claim of Fields as against John W. Rich Enterprises, Inc. (Delaware and California) was approved in part.
I.M.C. is a corporation separate and distinct from the other Rich corporations and created for different purposes. Its assets were obtained from different sources. It is the general law, as well as that of California and Utah, that in the absence of statute or corporate charter provision a corporation cannot divert its property by gift or by indirect means without a consideration or benefit to the corporation, and such acts cannot be ratified by the board of directors. In Knox v. First Security Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952), this court said:
It is well settled in Utah and elsewhere that a corporation cannot bind itself as guarantor or otherwise to discharge an obligation solely for the benefit of another, unless that be one of the purposes for which the corporation was organized. In the absence of a statute or a provision in its charter authorizing it to do so, an undertaking on the part of a corporation to discharge the obligation of another in which it has no interest and from which it derives no benefit is ultra vires and therefore unenforceable. Tracy Loan & Trust Co. v. Merchant’s Bank, 50 Utah 196, 167 P. 353; Louisville, New Albany & Chicago Railway Co. v. Louisville Trust Co., 174 U.S. 552, 19 S.Ct. 817, 43 L.Ed. 1081; Williams v. Sawyer Bros., 2 Cir., 45 F.2d 700; Pantaze v. Murphy, 5 Cir., 54 F.2d 895, certiorari denied, 287 U.S. 599, 53 S.Ct. 10, 77 L.Ed. 522. And it is elementary that unless authorized by statute or effective charter provision expressly creating the power, a corporation organized solely for conventional business? or commercial purposes may not alien its property by gift or indirect channels of diversion without consideration and not in furtherance of its pecuniary interests. 6 Fletcher Cyclopedia Corporations, §§ 2938, 2939. The alienation or disposition of property of a corporation in that manner constitutes a violation of the rights of the stockholders and is ultra vires.
See also, McCormick v. Market Bank, 165 U.S. 538, 17 S.Ct. 433, 41 L.Ed. 817 (1897); S. E. C. v. Insurance Securities, Inc., 254 F.2d 642 (9th Cir.), cert. denied, 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958); Knox v. First Security Bank of Utah, 206 F.2d 823 (10th Cir. 1953); Elliott v. Federal Home Loan Bank Board, 233 F.Supp. 578 (S.D.Cal.1964), rev’d on other grounds, 386 F.2d 42 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1260, 20 L.Ed.2d 161 (1968); Burt v. Irvine Co., 237 Cal.App.2d 828, 47 Cal.Rptr. 392 (1965); Elggren v. Woolley, 64 Utah 183, 228 P. 906 (1924) ; 2 Fletcher Cyc.Corp. § 752 (Perm.Ed. 1969); 7 Fletcher Cyc.Corp. §§ 3426, 3428 and 3432 (Perm.Ed.1964).
Finding no error, we affirm the judgment.
. In April of 1969 approximately 2,500 franchises had been sold.
. The California Corporations Commissioner held this circulation to be illegal and issued a cease and desist order.
. After the institution of the federal proceeding by the Securities Exchange Commission, the board of directors of I.M.C. adopted a resolution ratifying all of the payments to Fields.
. Of the various corporations, I.M.C. was the only one that had any liquid assets, and those assets were derived from public investors in that corporation.
. With reference to the ratification resolution, Exhibit 5-1, Elggren testified:
THE COURT: Then I can’t understand this recitation in 5-1 [Exhibit 5-1 is the resolution of the board of directors ratifying the payment to Fields], just before the Court that we’ve been discussing:
“Resolved, that actions of the officers in paying over the following funds to Emanuel Fields for anticipated Securities and Exchange work on behalf of the corporation and John Ricli Enterprises as sot forth above and are hereby ratified.”
Now, just before that, as above stated, it is recited that “The chairman — ” That would be you, wouldn’t it?
THE WITNESS: Yes.
THE COURT : And then : “ — stated on the 29th of April 1969, there had been certain funds paid over to Emanuel Fields, attorney at law, in connection with a proposed filing of registration statement on behalf of John Rich Enterprises, Inc., and a separate registration statement on behalf of International Movie Chairs — ”
Was that true that there were funds paid over for a separate registration statement on behalf of International Movie Chairs, or was that just a check to try to justify this payment?
THE WITNESS: Well, as I — your Honor, I was stating that with respect to International Movie Chairs, there had been contemplated, and if these things had gone along the way—
THE COURT: But in the April conversation it was suddenly, “No funds paid over for any services to International Movie Chairs”?
THE WITNESS: No.
THE COURT: Why does this appear in this recitation?
THE WITNESS: I don’t — I can’t give you an answer.
THE COURT: It’s just sort of a cloak or a mask to conceal what actually occurred ; is that true?
THE WITNESS: The purpose of it, of course, was to ratify at least the general acts of authorization that—
THE COURT: But there couldn’t be a ratification if there were a dishonest disclosure or an inaccurate disclosure, could there?
THE WITNESS: That’s probably right. That’s right.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Vance L. WOOD, Appellant, v. UNITED STATES of America, Appellee.
No. 21496.
United States Court of Appeals District of Columbia Circuit.
Jan. 19, 1968.
Mr. Verginald L. Dolphin, Washington, D. C. (appointed by the District Court)' was on the brief for appellant.
Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief for appellee.
Before Burger, Leventhal and Robinson, Circuit Judges, in Chambers.
PER CURIAM:
Appellant was indicted for housebreaking, assault with a dangerous weapon, and robbery, and is awaiting trial on these charges. A judge of the Court of General Sessions, acting on a Bail Agency report and recommendation, denied release on personal recognizance and set bail at $10,000. That order was reviewed pursuant to 18 U.S.C. § 3146(d) (Supp. II, 1965-66) by another General Sessions judge, the first being unavailable, and the $10,000 bail requirement was kept. The following reasons were given:
“Well, this is a very serious matter; robbery at gun point. I don’t think there is sufficient showing here for me to reduce the bond in this case, the defendant being a user of narcotics for a period of fifteen years. I think it’s been my experience that narcotics users are not too reliable, not too credible. I know he has several convictions of narcotics: in 1963 he was convicted of the Harrison Narcotics Act and received four years. He is not employed, he has lived on and off for a period of one year with his mother, father and two brothers, which doesn’t give him too much stability. Based on his past record and insufficient community ties, and the fact that he is a narcotics user, I’ll not change the conditions of release.”
Following the proper statutory procedure, appellant then moved the District Court to exercise its discretion to amend the conditions of release, and to grant release on personal recognizance. This the District Judge declined to do, although he did lower bail from $10,000 to $5,000. Appellant appeals that order, as he is totally without funds and cannot raise that amount any more than he can $10,000.
The Government urges that the District Judge’s order is not .ripe for review by this court pursuant to 18 U.S.C. § 3147(b) (Supp. II, 1965-66), contending that appellant must first avail himself of the opportunity of review under 18 U.S.C. § 3146(d) (Supp. II, 1965-66), giving the District Judge who amended the order opportunity to give written reasons for so doing, and for continuing the denial of release on personal recognizance. We think this contention plainly foreclosed by the language of 18 U.S.C. § 3147(b) (Supp. II, 1965-66). Subsection (b) grants a right of appeal to persons detained after either “(1) a court denies a motion under subsection (a) to amend an order imposing conditions of release,” (in which case twenty-four hour review is required in accordance with the language of § 3147 (a), or “(2) conditions of release have been imposed or amended by a judge of the court having original jurisdiction over the offense charged * * Appellant comes within (b) (2), and no requirement exists that written reasons be sought prior to appellate review.
Turning to the merits, the Government contends that the District Judge’s order is “supported by the proceedings below,” and should be affirmed. On the state of the record before us we believe it appropriate, in the interest of justice and in view of the recent bail law, to remand the case for further consideration.
The Bail Reform Act creates a strong policy in favor of release on personal recognizance, and it is only if “such a release would not reasonably assure the appearance of the person as required” that other conditions of release may be imposed. Even then, the statute in 18 U.S.C. § 3146 creates a hierarchy of conditions, one of the least favored of which is a requirement of bail bond. In considering what, if any, conditions shall be imposed the judge shall consider various factors relevant to the probability of flight, and one factor is “his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.” While we are informed by counsel that appellant has always appeared in connection with prior criminal proceedings against him, and there have been at least twelve over the past thirteen years, the record is silent as to whether appellant was on conditional release and appeared voluntarily in those proceedings. It is that silence which troubles us.
We do not think that under the Bail Reform Act a determination that money bail is required is appropriate unless the court at least ascertains the conduct of defendant when previously released on conditions, and whether the defendant previously abided by conditions imposed on him in prior proceedings. Consistent appearance when flight is possible is an important indicator of whether a defendant is likely to appear once again. Here, the General Sessions judge gave as his reason for denying recognizance and maintaining bail, a belief, no doubt amply justified by experience, that narcotic users are generally untrustworthy. But'in matters of bail, “each accused is entitled to any benefits due to his good record,” Stack v. Boyle, 342 U.S. 1, 9, 72 S.Ct. 1, 6, 96 L.Ed. 3 (1951) (Opinion of Jackson, J.). While appellant’s record is by no means felicitous, it may be that he personally poses little risk of flight. We see no reason why there should not be included in the record before the court, as a matter of course, information concerning any prior conditional releases and subsequent appearance, information we think is clearly contemplated by the statute. If it is not possible to obtain any such information, one way or the other, that should be set forth.
This is by no means a ruling that release on personal recognizance must be allowed if a defendant, or the appellant before us, has consistently adhered to the terms of past releases. Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck. Here there were many considerations arguing against release on recognizance — the offense is serious, appellant is unemployed, has no stable family life, and is a narcotics user with a criminal record. However, while imposition of bail might well be properly ordered after our remand, we think any such decision will be based on an approach more in keeping with the statutory mandate.
Remanded.
. The Government suggests that this appeal might not be timely because it was not taken within ten days, as required by Rule 37 of the F.R.Crim.P. We need not consider the applicability of Buie 37, or any related problems of finality in this case. The same District Judge whose order is appealed herein granted appellant petition for leave to appeal in forma pauperis. As 18 U.S.C. § 3146(e) provides that the Judicial Officer imposing conditions of release may at any time amend Ms own order, the Judge’s granting of an appeal can be taken as a reaffirmance of his prior order, and, in that event, under any standard, appeal is timely.
. 18 U.S.C. § 3147(a) (Supp. II, 1965-66).
. Shackleford v. United States, 127 U.S.App.D.C. 285, 383 F.2d 212 (1967).
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:
|
sc_casedisposition
|
C
|
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.
McGINNIS, COMMISSIONER OF CORRECTION, et al. v. ROYSTER et al.
No. 71-718.
Argued December 11, 1972
Decided February 21, 1973
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, White, BlackmuN, and RehN-quist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 277.
Michael Colodner, Assistant Attorney General of New • York, argued the cause for appellants. With him on the briefs were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.
O. Jeffery Sorge argued the cause for appellees pro hac vice. With him on the brief were James J. McDonough and Matthew Muraskin by appointment of the Court, 406 U. S. 955.
Mr. Justice Powell
delivered the opinion of the Court.
The question before us concerns the constitutionality of § 230 (3) of the New York Correction Law, which denied appellee state prisoners “good time” credit for their presentence incarceration in county jails. Appellees claim that disallowing such credit to them while permitting credit up to the full period of ultimate incarceration for state prisoners who were released on bail prior to sentencing deprived them of equal protection of the laws. The three-judge District Court, one judge dissenting, upheld their claim, 332 F. Supp. 973 (1971). The Commissioner of Correction and other officials (hereafter Commissioner) have appealed and we noted probable jurisdiction, 405 U. S. 986 (1972).
The challenged New York sentencing system is a complex one, and some basic definitions are required at the outset. Jail time denotes that time an individual passes in a county jail prior to trial and sentencing. Good time is awarded for good behavior and efficient performance of duties during incarceration. Both good time and jail time figure variously in the calculations of a series of release dates that each prisoner receives upon his arrival at state prison. Each inmate has both a minimum parole date, which is the earliest date on which he may be paroled at the discretion of the Parole Board, and a statutory release date which is the earliest date he must be paroled by the Parole Board. The minimum parole date is calculated under §§ 230 (2) and 230 (3) by subtracting the greatest amount of good time that can be earned (10 days per month) from the minimum sentence of an indeterminate term. The statutory release date is calculated under § 230 (4) by subtracting the greatest amount of good time that can be earned (5 days per month) from the maximum sentence of an indeterminate term.
Although appellees did receive jail-time credit for the period of their presentence incarceration in county jail, § 230 (3) explicitly forbids, in calculating the minimum parole date, any good-time credit for the period of county jail detention served prior to transfer to state prison. Appellee Royster, being unable to post bail, served 404 days’ jail time in the Nassau County Jail prior to his transfer to state prison to serve consecutive 5-to-10-year terms for burglary in the third degree and grand larceny in the first degree. Appellee Rutherford also failed to make bail and spent 242 days’ jail time in Nassau County Jail prior to his trial, sentencing, and transfer to state prison for concurrent terms of 10 to 20 years for robbery in the first degree and two and one-half to five years for grand larceny in the second degree. It is undisputed that, were appellees Royster and Rutherford to receive good-time credit for their presentence confinement in county jail, they would be entitled to appear before the Parole Board approximately four and three months earlier, respectively, than under the computation required by § 230 (3).
Two additional points merit mention. While New York does deny good-time credit for jail time in computing the minimum parole date under §§ 230 (2) and (3), it allows such credit in calculating the statutory release date under § 230 (4). Finally, §230 (3) itself provides that good-time credit for jail time shall be awarded to those prisoners confined after sentence in county penitentiaries, as opposed to those convicted of felonies, such as appellees, who are transferred after sentence to state prison.
I
Section 230 (3) of the New York Correction Law does, as appellees note, draw a distinction “between the treatment of state prisoners incarcerated prior to sentencing and those who were not similarly incarcerated.” Appellees contend that “denying state prisoners good-time credit for the period of their pre-sentence incarceration in a County Jail whereas those fortunate enough to obtain bail prior to sentence [receive] a full allowance of good time credit for the entire period which they ultimately spend in custody” violates the equal protection of the laws and discriminates against those state prisoners unable to afford or otherwise qualify for bail prior to trial.
We first note that any relative disadvantage the distinction works on appellees is lessened by the fact that New York on September 1, 1967, replaced § 230 of its Correction Law with §§ 803 and 805, which apply to all convictions for offenses after that date. Under the new scheme, “good time earned on the minimum sentence is abolished. A prisoner meets with the Parole Board at the expiration o.f his minimum term, regardless of how much good time he has earned or of how much time he spent in jail prior to arriving at state prison.” New York has given appellees — and all those sentenced for offenses committed prior to September 1, 1967 — a chance to elect the new procedure, but appellees declined to do so. Appellees thus enjoy at least as favorable a position as all state prisoners convicted for offenses committed subsequent to September 1, 1967, including those released on bail prior to sentence. Appellees thus are disadvantaged in the computation of time only in comparison with those who were convicted of offenses committed prior to September 1, 1967, and made bail prior to trial. Even the adverse impact of this difference is lessened, though not eliminated, by the fact that New York did not deprive appellees of credit for the full amount of actual time spent in jail prior to trial and sentencing but only of the potential additional 10 days per month of good time ordinarily available under § 230 (2) to inmates for good conduct and efficient performance of duty.
We note, further, that the distinction of which appel-lees complain arose in the course of the State’s sensitive and difficult effort to encourage for its prisoners constructive future citizenship while avoiding the danger of releasing them prematurely upon society. The determination of an optimal time for parole eligibility elicited multiple legislative classifications and groupings, which the court below rightly concluded require only some rational basis to sustain them. James v. Strange, 407 U. S. 128, 140 (1972); Lindsey v. Normet, 405 U. S. 56, 73-74 (1972); Schilb v. Kuebel, 404 U. S. 357 (1971); Dandridge v. Williams, 397 U. S. 471, 487 (1970). Appellees themselves recognize this to be the appropriate standard. For this Court has observed that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70 (1913). We do not wish to inhibit state experimental classifications in a practical and troublesome area, but inquire only whether the challenged distinction rationally furthers some legitimate, articulated state purpose. We conclude that it does.
II
The Commissioner defends the distinction by noting that “state prisons differ from county jails with respect to purpose, usage and availability of facilities.” State prisons are “intended to have rehabilitation as a prime purpose and the facilities at these institutions are built and equipped to serve this purpose.” The Commissioner cites the presence at state prisons of “educational and vocational services such as schools, factories, job-training programs and related activities.” At argument, the Commissioner noted: “We have barber shops. We teach trades. We manufacture a lot of goods. . . . Green-haven State Prison has a textile factory.”
We pass no judgment on the success or merits of the State’s efforts, but note only that at state prisons a serious rehabilitative program exists. County jails, on the other hand, serve primarily as detention centers. The Commissioner asserts they are “neither equipped nor intended to do anything more than detain people awaiting trial and maintain no schools, run no factories and require no work from these inmates.” While appellees do point to the existence of some rehabilitative or recreational facilities within some county jails, it is clear that nothing comparable to the State’s rehabilitative effort exists.
These significant differences afford the basis for a different treatment within a constitutional framework. We note that the granting of good-time credit toward parole eligibility takes into account a prisoner’s rehabilitative performance. Section 230 (2) of the New York Correction Law authorizes such credit toward the minimum parole date “for good conduct and efficient and willing performance of duties assigned [emphasis added].” The regulations of the New York Department of Correction, 7 N. Y. C. R. R. § 260.1 (a), state that: “[T]he opportunity to earn good behavior allowances offers inmates a tangible reward for positive efforts made during incarceration [emphasis added].” As the statute and reg-illations contemplate state evaluation of an inmate’s progress toward rehabilitation, in awarding good time, it is reasonable not to award such time for pretrial detention in a county jail where no systematic rehabilitative programs exist and where the prisoner’s conduct and performance are not even observed and evaluated by the responsible state prison officials. Further, it would hardly be appropriate for the State to undertake in the pretrial detention period programs to rehabilitate a man still clothed with a presumption of innocence. In short, an inmate in county jail is neither under the supervision of the State Correction Department nor participating in the State’s rehabilitative programs. Where there is no evaluation by state officials and little or no rehabilitative participation for anyone to evaluate, there is a rational justification for declining to give good-time credit.
Ill
We do not agree with the court below that the integrity of appellants’ assertions as to rehabilitation is undermined by the fact that the State does grant under § 230 (3) good-time credit for presentence jail time to county penitentiary inmates and under § 230 (4) to state prisoners for the purpose of calculating their statutory release dates. The legislature could have concluded rationally that county penitentiary inmates, who are nonfelons with less than one-year sentences, required quantitatively and qualitatively less rehabilitation- — -with fewer risks of misevaluation — than inmates confined to state prison for more serious crimes. And the legislature could rationally have distinguished between the minimum parole date and the statutory release date on the ground that an acceleration of the minimum parole date posed a greater danger that an inmate would be released without adequate exposure to rehabilitative programs and without adequate evaluation by prison officials. Thus, New York's decision to deny good-time credit for presentence jail time solely with respect to a state prisoner’s minimum parole date is rationally justified on the ground that the risk of prematurely releasing unrehabilitated or dangerous criminals may well be greatest when the parole decision is made prior to expiration of the minimum sentence.
IY
Neither appellees nor the court below contended that increased opportunity for state evaluation of an inmate’s behavior and rehabilitative progress was not a purpose of the challenged provision of § 230 (3). Appellees state only that the rehabilitative purpose was not the “overriding” one, and the District Court noted that “the legislature’s primary aim in enacting the good time statute was to foster and insure the maintenance of prison discipline.” 332 F. Supp., at 978 (emphasis added). We do not dispute these statements: the disciplinary-purpose is certainly an important and possibly the “primary” aim of the legislation! Yet, our decisions do not authorize courts to pick and choose among legitimate legislative aims to determine which is primary and which subordinate. Rather, legislative solutions must be respected if the “distinctions drawn have some basis in practical experience,” South Carolina v. Katzenbach, 383 U. S. 301, 331 (1966), or if some legitimate state interest is advanced, Dandridge v. Williams, 397 U. S., at 486. So long as the state purpose upholding a statutory class is legitimate and nonillusory, its lack of primacy is not disqualifying.
When classifications do not call for strict judicial scrutiny, this is the only approach consistent with proper judicial regard for the judgments of the Legislative Branch. The search for legislative purpose is often elusive enough, Palmer v. Thompson, 403 U. S. 217 (1971), without a requirement that primacy be ascertained. Legislation is frequently multipurposed: the removal of even a “subordinate” purpose may shift altogether the consensus of legislative judgment supporting the statute. Permitting nullification of statutory classifications based rationally on a nonprimary legislative purpose would allow courts to peruse legislative proceedings for subtle emphases supporting subjective impressions and preferences. The Equal Protection Clause does not countenance such speculative probing into the purposes of a coordinate branch. We have supplied no imaginary basis or purpose for this statutory scheme, but we likewise refuse to discard a clear and legitimate purpose because the court below perceived another to be primary.
V
As the challenged classification here rationally promotes the legitimate desire of the state legislature to afford state prison officials an adequate opportunity to evaluate both an inmate’s conduct and his rehabilitative progress before he is eligible for parole, the decision of the District Court is
Reversed.
Section 230 (3):
“In the case of a definite sentence prisoner, said reduction shall be computed upon the term of the sentence as imposed by the court, less jail time allowance, and in the case of an indeterminate sentence prisoner said reduction shall be computed upon the minimum term of such sentence, less jail time allowance. No prisoner, however, shall be released under the provisions hereof from a state prison until he shall have served at least one year. In the case of a prisoner confined in a penitentiary, said reduction shall be computed upon the term of the sentence as imposed by the court, including jail time allowance. Subject to the rules of the commissioner of correction, the maximum reduction of ten days in each month may, in the discretion of the board hereinafter provided for, be in whole or in part withheld, forfeited or cancelled, in accordance with the rules of the commissioner of correction for bad conduct, violation of prison rules or failure to perform properly duties assigned.”
Other relevant sections read as set forth below.
Section 230 (2):
“Every prisoner confined in a state prison or penitentiary, except a prisoner sentenced for an indeterminate term having a minimum of one day and a maximum of his natural life, may receive, for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed ten days for each month of the minimum term in the case of an indeterminate sentence, or of the term as imposed by the court in the case of a definite sentence. The maximum reduction allowable under this provision shall be four months per year, but nothing herein contained shall be construed to confer any right whatsoever upon any prisoner to demand or require the whole or any part of such reduction.”
Section 230 (4):
“Every prisoner confined in an institution under the jurisdiction of the state department of correction for an indeterminate term, except a prisoner sentenced for a term having a maximum of natural life, may receive, for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed two days for each month of the maximum term. For meritorious progress and achievement in a treatment program to which he has been assigned, following appropriate testing and classification, such prisoner may also receive a reduction of his sentence not to exceed three additional days for each month of the maximum term. In no event, however, shall the maximum reduction allowable under this subdivision exceed two months for each year of the maximum sentence, nor shall any such reduction be calculated under this subdivision to reduce the time actually served to a term less than the minimum sentence imposed by the court. . . .”
The Commissioner claims in his brief that the court below should have treated the instant case, not as a class action, Fed. Rule Civ. Proc. 23, but as a petition for habeas corpus with the attendant requirement that appellees exhaust their state remedies. Brief for Appellants 2. Appellants did not, however, raise this question in their jurisdictional statement, and did not argue it before the Court. In light of this, it becomes unnecessary to comment further on any possible exhaustion question.
He also has a maximum expiration date which is the date of the maximum sentence to which an inmate can be held if he receives no good-time credit at all. This date, unlike the other two, bears no direct relevance to the instant case.
Both prisoners here were sentenced to indeterminate terms. See §230 (1):
“. . . A sentence to imprisonment in a state prison having minimum and maximum limits fixed by the court or the governor is an indeterminate sentence.”
As the court below noted:
“There is no doubt that by its express wording Section 230 mandates the denial of good time credit for the time plaintiffs served in county jail awaiting trial and sentencing. Subsection 2 thereof provides that a state prisoner may receive, ‘for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed ten days for each month of the minimum term in the case of an indeterminate sentence . . . ,’ and subsection 3 states that ‘in the case of an indeterminate sentence prisoner said reduction shall be computed upon the minimum term of such sentence, less jail time allowance.’ (Emphasis added.)” 332 F. Supp. 973, 974-975.
See People v. Deegan, 56 Misc. 2d 567, 289 N. Y. S. 2d 285 (1968); Paul v. Warden, N. Y. L. J., May 21, 1969, p. 18, col. 6.
“In the case of a prisoner confined in a penitentiary, said reduction shall be computed upon the term of the sentence as imposed by the court, including jail time allowance." (Emphasis added.)
Brief for Appellees 5.
Id., at 5-6.
The court below correctly noted:
“[The] statutory scheme of §230, which is the subject of this lawsuit, is no longer the law in New York. On September 1, 1967, § 230 was replaced by §§ 803 and 805 of the Correction Law and §§ 70.30 and 70.40 of the new Penal Law, which sections apply to all convictions for offenses committed on or after that date (but not to convictions — as of plaintiffs herein — for offenses committed prior to the effective date). Thus, the scope of this case (and of the proposed class) is necessarily limited, for the challenged statute, § 230 (3) of the Correction Law, now applies only to those prisoners who were convicted for offenses committed before September 1, 1967, whose minimum terms have not yet expired, who have not yet met with the Parole Board, and who have not yet elected the ‘conditional release’ program offered by the new law and made available to old law prisoners by § 230-a of the Correction Law. Of these prisoners, a smaller class yet — comprised of those inmates who served time in county jail prior to sentence to state prison — actually feel the effect of §230 (3) ’s proscription against good time credit for jail time. Nevertheless, the briefs in this case attest to the continuing effect of that mandate on a substantial number of individuals.” 332 F. Supp., at 975 n. 4.
Brief for Appellants 12.
As noted above, this would make a difference of three and four months, respectively, in the time appellees Rutherford and Royster were eligible to appear before the Parole Board.
Tr. of Oral Arg. 30.
Brief for Appellants 14.
Tr. of Oral. Arg. 13.
Brief for Appellants 15.
Brief for Appellees 17. But the State notes that “some counties have absolutely nothing. Some have a little something.” Tr. of Oral Arg. 6.
See n. 1, supra.
Appellants further note that:
“Section 260.3 sets forth the criteria for awarding allowances and states:
“'(b) In evaluating the amount of allowance to be granted, the statutory criteria (i. e. good behavior, efficient and willing performance of duties assigned, progress and achievement in an assigned treatment program) shall be viewed in the light of the following factors:
“'(1) The attitude of the inmate;
“'(2) The capacity of the inmate; and
“'(3) The efforts made by the inmate within the limits of his capacity.’
“These factors are evaluated by a time allowance committee, whose purpose is to make recommendations to the superintendent as to the amount of good behavior allowance to be granted to inmates who are eligible to be considered for such allowance. 7 N. Y. C. R. R. 261.2. The time allowance committee awards good time on the following criteria [7 N. Y. C. R. R. 261.3]:
'"(d) The committee shall consider the entire file of the inmate and shall interview the inmate and then shall decide upon a recommendation as to the amount of good behavior allowance to be granted, applying the principles set forth in sections 260.3 and 260.4 of this Part.
'"(e) The committee shall not recommend the granting of the total allowance authorized by law or the withholding of any part of the allowance in accordance with any automatic rule, but shall appraise the entire institutional experience of the inmate and make its own determination.’ (Emphasis added.)” Reply Brief for Appellants 2-3.
See also the affidavit of the Deputy Commissioner of the Department of Correction, John R. Cain, who stated that:
“The actual allowance of 'good time’ is discretionary and is awarded as an incentive for good conduct. It is a means for encouraging participation in programs, efficient work and discipline.
“The state correctional system seeks to encourage rehabilitation by work participation by inmates, job training programs and education programs. An inmate can be evaluated in his work and participation in the facility’s programs and 'good time’ granted as an incentive. Prior to being received in the facility, however, an inmate who is in jail is not under the supervision of the State Correction Department and is not involved in the facility program. Since the inmate is not participating in the state programs while in jail there is no opportunity to evaluate him nor need to encourage his participation.” App. 19a.
Appellants further correctly note:
“In fact, until recently changed by federal policy, the federal prison system itself did not require the awarding of good time for pre-trial incarceration under 18 U. S. C. § 4161, which awards good time solely for good behavior. Section 4161 states that good time begins to run ‘with the day on which the sentence commences to run’, and the sentence does not start to run until the prisoner is received in a federal penitentiary. See Blackshear v. United States, 434 F. 2d 68 (5th Cir.1970). The federal courts have uniformly upheld the denial of the opportunity to earn good time on this jail time. Bandy v. Willingham, 398 F. 2d 333 (10th Cir.1968), cert. den. 393 U. S. 1006; Aderhold v. Ellis, 84 F. 2d 543 (5th Cir.1936), cert. den. 299 U. S. 587; Swope v. Lawton, 83 F. 2d 814 (9th Cir.1936).” Brief for Appellants 20-21.
See supra, at 268, and nn. 7 and 8. The court below stated:
“Whatever the merit in defendants’ attempted distinction, the fact remains that state prisoners can be, and, under certain circumstances, are, granted good time credit for jail time for reasons other than as a reward for participation in the various rehabilitative programs of the state prison system. The awarding of good time for jail time to these two classes of prisoners only reinforces the belief that the legislature’s primary aim in enacting the good time statute was to foster and insure the maintenance of prison discipline.” 332 F Supp., at 978.
At oral argument the following instructive colloquy occurred:
“Q. Then it is your position that the only purpose at all, sir, by the statute, exclusively, the only single purpose, is the disciplinary one?
“MR. SORGE: Your Honor, it is extremely difficult to say whether the only purpose is just for the discipline. I believe that the court has-
“Q. If a purpose is the rehabilitation one, then are you not in some trouble?
“MR. SORGE: If the main purpose is?
“Q. If a purpose, not the main purpose, a purpose.
“MR. SORGE: I do not believe so, Your Honor, because, as the district court stated, the overriding consideration in this case is disciplinary.
“Q. You go further then than the district court, I take it, because I read the district court’s opinion the same way Mr. Justice Brennan does, as saying that rehabilitation is a subordinate function and that its opinion is based on that. You say that it really is no function at all?
“MR. SORGE: I believe that if you take the state prisoners themselves, Mr. Justice, there might be a subordinate position. However, I would repeat that the overriding consideration is the disciplinary aspect of it.” Tr. of Oral Arg. 28-30.
See also the court’s statement that:
“Defendants contend that good time is granted as an incentive to the inmates to participate in these prison rehabilitation programs and that, since county jails are not equipped to provide such services, there is no basis for granting good time for time served therein. If it were clear that the awarding of good time was based solely and exclusively on an evaluation of an inmate’s performance in such programs so endemic to the state prison system, the denial of good time for jail time might be understandable; however, this does not appear to be the case. Rather, it seems that the overriding consideration in the granting of good time reductions is the maintenance of prison discipline.” 332 F. Supp., at 977.
The court below noted that the disciplinary purpose of the statute is demonstrated by the fact that “a prisoner is immediately and automatically credited with a maximum allowance of good time credit for future good behavior at the time his minimum parole date is initially fixed upon his arrival in state prison. In effect, then, a prisoner does not 'earn’ good time credit as time goes on for exemplary performance in assorted prison programs but rather simply avoids being penalized for bad behavior.” The court then cited § 235 of New York Correction Law providing that good time may be withheld as “ 'punishment for offenses against the discipline of the prison or penitentiary’ (emphasis added) . . . .” 332 F. Supp., at 977-978.
The statements above do demonstrate a disciplinary purpose for the statute, but do not negate the rehabilitative one. There is nothing to show that good-time credit may not be revoked for failure of the inmate to participate acceptably in the State’s rehabilitative program as well as for disciplinary violations. Indeed, § 230 (3) requires loss of good time for “bad conduct, violation of prison rules or failure to perform properly duties assigned." (Emphasis added.)
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_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.
U. S. FIBRES, INC., a Michigan Corporation, Plaintiff-Appellant and Cross-Appellee, v. PROCTOR & SCHWARTZ, INC., a Pennsylvania Corporation, Defendant and Third-Party Plaintiff-Appellee and Cross-Appellant, v. U. S. EQUIPMENT COMPANY, a Michigan Corporation Third-Party Defendant-Appellant and Cross-Appellee.
Nos. 73-2091 to 73-2093.
United States Court of Appeals, Sixth Circuit.
Jan. 17, 1975.
William H. Merrill, Detroit, Mich., Paul L. Nine, Carl J. Marlinga, Warren, Mich., for plaintiff-appellant.
Neill T. Peters, F. R. Damm, Detroit, Mich., for defendant-appellee.
Before CELEBREZZE and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
LIVELY, Circuit Judge.
In this diversity action the purchasers of manufacturing equipment sued the seller-manufacturer for damages. The plaintiffs sought to recover for alleged breach of express and implied warranties, fraud and negligence. In its counterclaim the defendant sought recovery on an account, which was undisputed, and damages allegedly incurred by it as the result of fraudulent misrepresentations of the plaintiffs. Following two lengthy hearings the district court entered judgment in favor of the defendant on all claims of the plaintiffs and on the stated account. The counterclaim based on fraud was dismissed. We affirm.
A complete statement of the facts and legal issues as developed in the district court is set forth in its opinions which are reported at 358 F.Supp. 449 and 358 F.Supp. 467. In dealing with the appeal we will attempt to avoid unnecessary repetition of matters covered in the reported opinions. The plaintiffs will be referred to as Fibres and the defendant as Proctor. The Uniform Commercial Code (UCC) applies to the transactions between the parties and they provided that the law of Pennsylvania governs the construction and interpretation of their written agreements. The various issues on appeal will be treated separately, though briefly, in view of the extended treatment of each by the district court.
The two contracts clearly contained an express warranty against defects in materials or workmanship. Proctor spent large sums in replacing and reworking portions of the equipment which were admittedly defective. However, Fibres maintains that other express warranties were created by detailed description of the ovens in the typewritten portion of the contracts and that these warranties could not be excluded by inconsistent disclaimer language appearing in later printed portions of the contracts. This argument overlooks the fact that both contracts, in the typewritten portions and before the description of the ovens, under the heading PERFORMANCE, provided that “in view of the variables present effecting (sic) the capacity of the machine, no guarantee can be extended.” Immediately following this disclaimer was a statement that “the Company’s standard warranty outlined later in this contract does apply.” The printed warranty clause, identical in both contracts, was as follows:
LIABILITY CLAUSE: The Companys liability hereunder shall be subject to the following:
General:
1. The Company warrants the machine against defects in materials or workmanship, but makes no other warranties, express or implied (except as set forth under “Patents”) unless the word “guarantee” is used. Warranties of merchantability or of fitness for a particular purpose or arising from a course of dealing or usage of trade, are specifically excluded. The Purchaser agrees that any affirmations of fact, description of the machine or sample or model machine herein referred to, whether or not the same relate to production or capability of the machine to perform, are not the basis of this contract, unless the word “guarantee” is used in connection therewith, in which case the same shall be express warranties.
Between the two disclaimers was the description upon which Fibres relies for its claim of express warranties. In the first contract the pertinent language was: “This conveyor is especially designed to hold a tolerance of ± 1/32" across the width of the batt, based on a 30 pound per square foot compressive force.” The second contract stated that —-“This conveyor is especially designed with a deflection tolerance of ± 1/32" across each conveyor plate. This deflection is further based on a uniformly distributed load of 30 pounds per sq. ft.” It is provided in UCC § 2-313(l)(b) that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Exclusion of express warranties is permissible under § 2 — 316(1) of the UCC, which provides that language or conduct creating warranties and that tending to negate them “shall be construed wherever reasonable as consistent with each other. . . . ”
If the machinery involved had been tried and proven in the manufacturing process in which Fibres intended to employ it, or if it had been sold by specification alone, the description might be held to create an express warranty. S — C Industries v. American Hydroponics System, Inc., 468 F.2d 852 (5th Cir. 1972). However, the evidence fully supports the finding of the district court that the parties were attempting to put together a combination of machinery to fabricate a product by an “unproven process.” Furthermore, the general manager of Fibres, Mr. Steuernagel, was fully aware of the “variables” referred to in the disclaimer of guarantee of performance. The language of description referred only to the expectations of the designers and in no way guaranteed that these expectations would be met. Furthermore, there is substantial evidence that executives of Fibres who participated in the purchase of the equipment never expected it to produce finished pads having a thickness tolerance of ± 1/32 inch across their width. Thus, this descriptive language was not “part of the basis of the bargain.” UCC § 2-313(l)(b). The district court correctly determined that the language which excluded an express warranty was not inconsistent with the language of description, UCC § 2-316(1), and gave it effect.
Fibres contends that it was entitled to recover under implied warranties of fitness for a particular purpose and of merchantability. An implied warranty of fitness for a particular purpose exists only “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods . . ..” UCC § 2-315. There is abundant factual support in the record for the district court’s finding that Fibres, acting through its agent Steuernagel, did not rely on Proctor’s skill or judgment in selection of the equipment with which it proposed to make dry resinated pads by Steuernagel’s new “secret process.” Therefore, there could be no implied warranty of fitness.
Reliance upon the seller is not a requirement in the case of implied warranties of merchantability. If the seller is a “merchant,” such a warranty is implied in every contract for the sale of goods “[u]nless excluded or modified.” UCC § 2-314. This warranty may be excluded only by language which mentions merchantability and is conspicuous. UCC § 2 — 316(2). The exclusion in this case, which was contained in the previously quoted liability clause, used the word “merchantability.” Thus, the question is whether this disclaimer was “conspicuous” as defined in UCC § 1 — 201(10):
(10) “Conspicuous”: A term or clause, is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous.” Whether a term or clause is “conspicuous” or not is for decision by the court.
Fibres relies principally on Boeing Airplane Co. v. O’Malley, 329 F.2d 585 (8th Cir. 1964), which applied Pennsylvania law in holding that a disclaimer “in the same color and size of other type used for the other provisions” of a contract was not conspicuous. Id. at 593. In that case the court was dealing with a warranty of fitness for a particular purpose rather than one of merchantability. A fundamental question was the meaning of “as is” in the dealings between the parties. In the present case the heading under which the disclaimer appeared met the requirement of § 1— 201. Neither in Boeing, supra, nor in the Pennsylvania cases relied on by Fibres, is it clear that the court considered contracts in which a heading in bold-type capital letters of the same size as all other headings, appeared at the beginning of the exclusion clause. We do not read these cases as holding the Pennsylvania rule to be that there can be no disclaimer as a matter of law if type of the same color and size is used in the text even though the heading is in capital letters.
It is significant that the official UCC comments under Section 1 — 201(10) state—
10. “Conspicuous.” New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.
As we have pointed out, near the beginning of each contract, in the typed portion where guarantee of performance was excluded, there was a reference to “the Company’s standard warranty outlined later in this contract.” From exhibits introduced by Proctor it is clear that the liability clauses of the contracts were scrutinized with care by Fibres. One examining these contracts was put on notice by the early disclaimer of performance that only the standard warranty of Proctor applied. The testimony of Fibres executives was that they were familiar with the contents of the printed portions of the contract. There was no surprise. Knowing that they were employing an untried combination of components, which had been successfully operated separately but not together, in an attempt to produce a familiar product by a new process, the principals of Fibres could not realistically have expected Proctor to extend the warranties which they now claim. Under the facts of this case the district court correctly held that attention could reasonably be expected to be called to the disclaimer. Conspicuousness is a question of law for the court. Adams Van Service, Inc. v. International Harvester Corp., Pa. Court of Common Pleas, Allegheny County (1973), 14 UCC Rep. Serv. 1142.
In denying Fibres’ claim based on fraud the district court found that Proctor made no material misrepresentations of fact. Upon conflicting evidence the court determined that it had never been the intention or understanding of the parties that Proctor guaranteed that the equipment would produce pads of uniform thickness. Having had no experience with this particular operation, Proctor could only give an opinion as to how the equipment would perform. Furthermore, the claim of Fibres that Proctor concealed its knowledge from Fibres that the equipment would not produce pads of uniform thickness is not borne out by the record. Fibres officials Clapp and Steuernagel testified that Proctor’s chief inspector told them before production began that he did not believe it was possible to maintain a tolerance of 1/32 inch across the pads with the type conveyor that was being used. When Christianson, a sales representative of Proctor, referred to this tolerance it was never with reference to the finished product. He described the success of the dryer in a different procedure and predicted similar results using Steuernagel’s “secret process.” This and other evidence relied upon by Fibres fell far short of establishing the elements necessary for proof of fraud.
All of the foregoing issues were decided by the district court on a motion for an involuntary dismissal under Rule 41(b), Fed.R.Civ.P. The court incorporated findings of fact in its opinion granting the motion, and we apply the “clearly erroneous” standard of review prescribed by Rule 52(a). Though there was a great deal of conflict in the testimony of witnesses, the findings of the district court are supported by substantial evidence and may not be set aside by this court. Furthermore, no erroneous application of rules of law to these facts has been demonstrated by Fibres.
Following the second hearing the district court made a finding of no actionable negligence on the part of Proctor. The recitation by the court of numerous problems encountered by Fibres in attempting to produce satisfactory batting is not inconsistent with this finding as Fibres contends. At the request of Fibres these problems were treated as defects in materials or workmanship and were remedied by Proctor at its own expense. Once these extended repairs were completed the ovens operated properly until Fibres went out of business. In finding that Proctor was not negligent either in design or manufacture the District Judge made a detailed analysis of the design and manufacture of the equipment. The finding is not clearly erroneous and may not be set aside by this court.
Having found no negligence on the part of Proctor the court had to consider the issue of contributory negligence only as it related to Proctor’s counterclaim. The evidence clearly supports the finding that as early as June, 1966 Fibres seriously overloaded the equipment. However, the court also found that there was no proof that either party realized at the time that overloading was occurring. It therefore held that Fibres had no duty to advise Proctor of this fact. Since Proctor’s counterclaim was based on the claim that Fibres’ failure to inform it of the overloading constituted fraud, no recovery was allowed. In view of these holdings it is clear that no damages were withheld from Fibres or awarded to Proctor by the district court on the basis of its findings with respect to overloading the equipment. Thus the extensive discussion in briefs of the existence and extent of overloading is immaterial in view of our conclusion that the district court’s findings on the negligence claim and the counterclaim for fraud must stand.
This court’s determination that the district court correctly denied any recovery by Fibres renders extended discussion of the clauses which limited damages under the contracts unnecessary. However, we note that UCC § 2-719 permits limitation or exclusion of consequential damages so long as it is not unconscionable. Unconscionability rarely exists in a commercial setting involving parties of equal bargaining power. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300 (S.D.N.Y.1970), aff’d, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971). See also Cryogenic Equipment, Inc. v. Southern Nitrogen, Inc., 490 F.2d 696 (8th Cir. 1974); K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970), 7 UCC Rep.Serv. 679.
The record supports the district court’s finding that “ . . . there was uneven resin distribution in much of plaintiff’s product.” Such uneven resin distribution explained the lack of uniform thickness in the pads, according to credited testimony. Thus, even if it were held that express and implied warranties existed with respect to the thickness tolerance of the pads or that Proctor did misrepresent the capability of the equipment to produce pads of uniform thickness, Proctor’s derelictions would not have been the cause of Fibres’ claimed losses. The one component of the entire production line that was clearly the responsibility of Fibres was the “lawn fertilizer spreader” which introduced dry resin into the cotton fibres to produce dry resinated pads. As the district court noted, the dryer “only receives what is fed into it.” If Steuernagel’s method of introducing the resin in this manner failed to produce an even distribution and this failure sufficiently explains the uneven thickness of the finished pads, the deficient result cannot be charged to Proctor under any theory of law.
Separate appendices were filed by the parties to this appeal. Rule 30 of the Federal Rules of Appellate Procedure provides for a single appendix. Furthermore, the brief of appellants exceeded the length permitted by Rule 28(g), Fed. R.App.P. Failure to follow these rules results in an unwarranted burden on the court.
Affirmed on appeal and cross-appeal. Each party will bear its own costs.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_state
|
03
|
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".
BRANDON v. UNITED STATES.
No. 11814.
United States Court of Appeals Ninth Circuit.
Aug. 6, 1951.
T. J. Brandon, Jr., in propria persona.
J. Earl Cooper, U. S. Atty., Anchorage, Alaska, for appellee.
Before DENMAN, Chief Judge, and HEALY and ORR, Circuit Judges.
DENMAN, Chief Judge.
Appellant, under the assumed name of Will Key Jefferson, was charged in count I of an indictment with having forged a check purported to have been signed by one Wosdon P. Lang, and in count II with having uttered and published the check with intent to defraud. He was found guilty and sentenced to three years’ imprisonment on each count, the sentences to run concurrently. He appeals to us. On such an appeal, if either sentence is held valid, we need not consider the other. Danziger v. United States, 9 Cir., 161 F.2d 299, 301.
Count I alleges, concerning the Lang check that Brandon, then named as Jefferson, did “knowingly, wilfully, unlawfully, fraudulently, and feloniously, with intent to injure and defraud, falsely make, forge, and counterfeit a check for the payment of money on the People’s National Bank of Paducah, Kentucky, the tenor and purport whereof was as follows: * * * said signature written on the face of said check purporting to be the genuine signature of Wosdon P. Lang as maker thereof.”
Brandon contends this count fails to charge the crime of forgery as stated in the Alaska statutes, because the name of the party intended to be defrauded is not alleged. There is no merit to this contention. The indictment substantially states the offense of Section 4856 of the Compiled Laws of Alaska, 1933, providing, so far as pertinent: “If any person shall, with intent to injure or defraud anyone, falsely make * * * forge, counterfeit * * * [any] check * * * or shall, with such intent, knowingly utter or publish as true and genuine any such false * * * forged, counterfeited * * * instrument * * *, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than two nor more than twenty years.”
That the name of the person intended to be defrauded need not be alleged appears from Section 4861 providing: “In any case where the intent to injure or defraud is necessary, by the provisions of this chapter, to constitute the crime, it shall be sufficient to allege in the indictment therefor an intent to injure or defraud without naming therein the particular person or body corporate intended to be injured or defrauded, and on the trial of the action it shall not be deemed a variance, but be deemed sufficient, if there appear to be an intent to injure or defraud the United States, or any state, territory, county, town, or other municipal or public corporation, or any public officer in his official capacity, or any private corporation, copartnership, or member thereof, or any particular person or persons.”
A brief history of Sections 4856 and 4861 Compiled Laws of Alaska 1933 reflects that the same were adopted as a part of the penal code for the Territory of Alaska by Act of Congress March 3, 1899, 30 Statutes at Large, 1263-1266. These provisions were taken from the laws of Oregon, October 19, 1864 and are presently embodied in the Oregon Compiled Laws, Volume 3, Penal Code as Sections 23-560 and 23-568. With this legislative history in mind, it would appear that the decisions by the Supreme Court of Oregon should be given controlling effect.
The Supreme Court of Oregon has held that an indictment is sufficient where it alleges an intent to injure or defraud without naming therein the particular person intended to be injured or defrauded. State v. McElvain, 35 Or. 365, 58 P. 525.
Appellant contends that the court erred in denying appellant’s motion for a change of venue. A review of the evidence shows its support of the court’s decision.
Brandon’s forgery of the check was proved by the evidence before the jury of the Lang check itself and three signatures of Brandon, using the name Will Key Jefferson, and the testimony of a competent handwriting expert, one Appel, that Brandon signed Lang’s name. Appellant contends that Appel’s testimony is invalid because he had seen other copies of the Jefferson signature, but the testimony is clear that what Appel relied on were the three Jefferson signatures in evidence. There is no merit in this contention.
Appellant contends that at the trial there was no evidence to show an intent to defraud anyone in making the check. Since the check was shown to have been forged by appellant, his use of the moneys obtained from one Cole, credit manager of the Northern Commercial Company, warrants an inference by the jury of his intent to defraud in forging the check. There was no error in denying appellant’s motion for a judgment of acquittal.
Appellant assigns error in several instructions given and to the refusal to give another requested by the appellant. In none of these did appellant state the grounds of his objections in compliance with Rule 30 of Federal Rules of Criminal Procedure, 18 U.S.C.A. However, we have examined appellant’s contentions and find them without merit, and that the appellant was not prejudiced by the court’s action respecting the instructions.
Appellant contends that the evidence of forgery of the check is entirely circumstantial and that it warrants as much the inference of innocence as that of guilt, seeking to invoke the principle stated in our opinion in Paddock v. United States, 9 Cir., 79 F.2d 872, 876. There is no merit in this contention. The evidence of forgery, if believed by the jury, warranted only the inference of guilt.
At the trial, appellant testified the check was given him by Lang as a six months’ prepayment of rent on a lease to him of an apartment. It was in a building requiring some construction, and appellant needed the prepaid rent for that purpose. The check had on its face a notation that it was for an amount equal to the six months’ rental plus other charges there stated. It is not questioned that appellant had made such an arrangement with another tenant for such an advance.
At the trial the lease was not produced. After the verdict, appellant moved for a new trial on the ground of newly discovered evidence, offering duplicate originals of the lease with Lang, which the court declined to consider. Reserving our jurisdiction of the appeal, we ordered the district court to consider and dispose of the motion.
At the hearing on the motion, the duplicate copies of the lease were offered in evidence. They were for a rental corresponding with the notation on the check. The court denied the motion. It found that the leases were known by the appellant to exist at the time of the trial and that he then made no attempt to find them. In so doing, the court was entitled to consider Brandon’s testimony, having in view his several prior criminal convictions.
On appellant’s motion, there was produced the report of a handwriting expert of the Federal Bureau of Investigation on photostatic copies of the leases and of the check. It showed that the handwriting of the signature Wosdon P. Lang on the check was unlike the handwriting of the Wosdon P. Lang on the copies of the leases. The photostatic enlargements of the two signatures on the two leases and the one on the check are before us. The Lang signature on the check seems a poor copy of those on the leases.
The motive for not producing them at the trial is apparent. The Lang signatures on the leases would have added weight to the testimony of the forgery based on the comparison of the check’s signature with that of Brandon’s handwriting. One cannot withhold such evidence at the trial and, being convicted, seek a second chance before another jury by then producing it.
We have stated the rule in such cases in Wagner v. United States, 9 Cir., 118 F.2d 801, 802. Speaking of the affidavits on such a motion for a new trial, we said: “We do not regard them as meeting the requirements, and particularly requirement (e) of Johnson v. United States, 8 Cir., 32 F.2d 127, 130. We quote from the opinion: ‘There must ordinarily be present and concur five verities, to wit: (a) The evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.’ ”
Even if the evidence had been newly discovered, it was not of such a nature that it probably would produce an acquittal.
The order denying the motion for a new trial and the judgment sentencing appellant on count I of the indictment are affirmed. For the reasons stated, the judgment on the concurrent sentence for the same period on count II is ignored.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
CENTRAL OF GEORGIA RY. CO. v. WATKINS.
Circuit Court of Appeals, Fifth Circuit.
February 10, 1930.
Rehearing Denied March 7, 1930.
No. 5626.
B. G. Earner and A. K. Merrill, both, of Dothan, Ala. (Farmer, Merrill & Farmer, of Dothan, Ala., on the brief), for appellant.
T. M. Espy, of Dothan, Ala. (J. M. Loflin, of Enterprise, Ala., on the brief), for appellee.
Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.
BRYAN, Circuit Judge.
Appellee recovered damages for personal injuries sustained by him in a collision between an automobile in which he was riding and ‘a passenger train of the appellant railroad company.
The declaration alleged that appellant was negligent in failing to give warning by bell or whistle as the train approached the crossing. The defense was based on pleas of not guilty and contributory negligence.
The collision occurred in a small town at a grade crossing, where the highway, extending north and south, and the railroad, extending east and west, intersect. Appellee was riding in the front seat of the automobile, on the right side, by invitation of its owner, who wasi driving it. The automobile approached the crossing from the north, and passed in front of an engine which was standing with steam up on the side track east of the highway, and about 60 feet north of the main line of the railroad company. After the automobile crossed the side track and got within about 30 feet of the main line, the view to the west was unobstructed, and at this point appellee saw the passenger train approaching from that direction. He called to the driver to “look out,” but the latter first looked to his left toward the engine, which was standing still on the side track, and apparently did not see the passenger train in time to avoid the collision. The automobile was proceeding at a slow rate of speed, and, according to some of the testimony, could have been stopped within a distance of 3 or 4 feet. According to witnesses for appellee, the inference could he fairly drawn that the bell was not rung or the whistle blown until just at the moment of the collision, though this was disputed by witnesses for appellant.
Error is assigned on the refusal of the court at the dose of the evidence to direct a verdict for appellant.
Whether proper warning was given of the approach of the train was a question for the jury; and, in our opinion, it was likeiwise a question for the jury whether appellee was guilty of contributory negligence. Contributory negligence of tbe owner and driver of the automobile, if it be assumed, cannot be imputed to appellee, who was riding in the car as a guest, or by invitation. Ordinarily, it is not the duty of one riding in an automobile by invitation to direct the movements of the driver, unless the former has knowledge of some danger that is not obvious or is unknown to the latter; but, even under such circumstances, the guest must exercise reasonable care for his own protection. Shearman & Redfield on Negligence, § 66 ; 20 R. C. L. 163; Huddy on Automobiles, §§ 820, 823; Wicker v. Scott (C. C. A.) 29 F.(2d) 807. It is suggested that it was appellees duty to jump out of the automobile in time to avoid the collision; hut the jury could well find that the time was too short for that, after it became apparent that a collision was inevitable.
Error is assigned on the refusal of the trial court to give certain requested special instructions in its charge to the jury. But they were fully covered by the court’s general charge.
Error is not made to appear by any of the assignments, and the judgment is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_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.
SHEWMAKER et al. v. CAPITAL TRANSIT CO.
No. 8535.
United States Court of Appeals District of Columbia.
Decided May 29, 1944.
Mr. Justin L. Edgerton, of Washington, D. G, for appellants.
Mr. H. W. Kelly, of Washington, D. G, with whom Mr. R. E. Lee Goff, of Washington, D. G, was on the brief, for appellee. Mr. S. R. Bowen, of Washington, D. G, also entered an appearance for appellee.
Before MILLER, EDGERTON and ARNOLD, Associate Justices.
MILLER, Associate Justice.
The injuries complained of in this case resulted from a collision between two automobiles. Appellants, as plaintiffs in the trial court, contended that the accident was caused by the negligent operation of a streetcar owned and operated by appellee. The trial court denied motions to direct a verdict, which were made by appellee, first, at the close of appellants’ case and, again, at the close of all the evidence. After the jury had returned a verdict for appellants the court entered judgment for appellee upon a motion to set aside the verdict, made pursuant to Rule 50 of the Federal Rules of Civil Procedure. This appeal is from that judgment.
The rule applicable in the District of Columbia on a motion for a directed verdict, in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted; a mere scintilla of evidence is not sufficient; the question is not whether there is any evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party upon whom the onus of proof is imposed; the burden being upon the plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to support either element the motion should be granted. The same rule is applicable on a motion to set aside the verdict under Rule 50 of the Federal Rules of Civil Procedure.
While a verdict may properly be directed when there is no more than a scintilla of evidence, or none upon which a jury could properly proceed to find a verdict for the party upon whom the onus of proof is imposed, that was not the situation of the present case. The trial judge is to be commended for adopting the practice suggested by Rule 50; thus permitting a full trial and determination of the issues, instead of taking the case from the jury and necessitating, in case of reversal, a second bite or even successive bites at the cherry. However, if the trial judge thereafter enters judgment n. o. v., then, as well as when he directs a verdict, his action must be subjected to the test stated in the preceding paragraph. Unlike the situation which exists when the, judge acts as the trier of facts, the appellate court is required to balance the weight of the evidence against the judge’s determination and in favor of the jury’s determination. The question is, not whether there is sufficient evidence in the record to support the findings and decision of the judge, but whether there is evidence upon which reasonable men might differ as to negligence and other elements of liability; whether a jury of reasonable men could properly reach a verdict in favor of the party upon whom the/ onus of proof is imposed.
A careful examination of the record persuades us that the evidence presented questions appropriate for the jury’s determination and that its verdict should stand.
Reversed.
28 U.S.C.A. following section 723c.
Tobin v. Pennsylvania R. R., 69 App. D.C. 262, 263, 100 F.2d 435, 436; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380, and eases there cited.
Roberts v. Capital Transit Co., 76 U. S.App. 367, 131 F.2d 871. See Pessagno v. Euclid Inv. Co., Inc., 72 App.D.C. 141, 144, 112 F.2d 577, 580; Duncan v. Montgomery Ward & Co., 8 Cir., 108 F.2d 848, 852, modified on another point, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Jaggers v. Southeastern Greyhound Lines, Inc., 6 Cir., 126 F.2d 762.
Pennsylvania R. R. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 77 L.Ed. 819; Jackson v. Capital Transit Co., 69 App.D.C. 147, 148, 99 F.2d 380, 381.
Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253, 61 S.Ct. 189, 85 L.Ed. 147.
Munsey v. Webb, 37 App.D.C. 185, 188, affirmed, 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162; LeFoe v. Corby Co., 38 App.D.C. 54; Standard Oil Co. v. Allen, 50 App.D.C. 87, 267 F. 645; Washington, Alexandria & Mt. Vernon Ry. v. Lukens, 32 App.D.C. 442, 454.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_casedisposition
|
C
|
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.
MILLER v. UNITED STATES.
No. 126.
Argued January 28, 1958.
Decided June 23, 1958.
De Long Harris argued the cause and filed a brief for petitioner.
Leonard B. Sand argued the cause for the United States. On the brief were Solicitor General Rankin, Acting Assistant Attorney General McLean and Beatrice Rosenberg.
Mr. Justice Brennan
delivered the opinion of the Court.
Petitioner, William Miller, together with Bessie Byrd and her brother, Arthur R. Shepherd, was tried and convicted in the District Court for the District of Columbia for conspiracy to commit violations, and violations, of the federal narcotics laws. 26 U. S. C. (Supp. V) § 4704 (a), 21 U. S. C. § 174, 18 U. S. C. § 371. The Court of Appeals for the District of Columbia Circuit affirmed, one judge dissenting, 100 U. S. App. D. C. 302, 244 F. 2d 750. We granted certiorari, 353 U. S. 957, to determine whether evidence seized at the time of petitioner’s arrest was properly admitted against the petitioner. The evidence was $100 of marked currency which was seized by the federal officers who arrested the petitioner and Bessie Byrd at their apartment.
On March 25, 1955, at 1:35 a. m., Clifford Reed was arrested, under an arrest warrant, on a Washington, D. C., street on suspicion of narcotics offenses. Reed revealed to Wilson, a federal narcotics agent, that he purchased heroin in 100-capsule quantities from the petitioner through Shepherd. Agent Wilson knew of the petitioner as one who had trafficked in narcotics and had been convicted for a narcotics offense in 1953. Reed said that he was to meet Shepherd later that morning to make a purchase. Agent Wilson enlisted his aid to apprehend Shepherd and the petitioner. About 3 a. m. another federal narcotics agent, Lewis, carrying $100 of marked currency, went with Reed in a taxicab to Shepherd’s home. Reed introduced Lewis to Shepherd as a buyer. Shepherd accepted the $100 and agreed to secure 100 capsules of heroin from the petitioner and deliver them to Lewis at Reed’s apartment. Shepherd proceeded alone in the taxicab to the petitioner’s apartment.
The taxicab was followed by agent Wilson, officer Wurms of the Metropolitan Police Department, and other officers in police cars. Shepherd was seen to leave the taxicab in front of the apartment house where the petitioner and Bessie Byrd occupied a two-room-and-bath basement apartment. The taxicab waited. Shepherd entered the basement but agent Wilson, who looked into the basement hall, could not see where he went. Shepherd came out of the basement within a few minutes and re-entered the taxicab. The taxicab was proceeding toward Reed's apartment when the officers following in the police cars intercepted it. Shepherd was arrested and searched. He did not have the marked bills on his person but admitted to agent Wilson and officer Wurms that a package of 100 capsules of narcotics found under the taxicab’s front seat was put there by him when the police cars stopped the taxicab. He said that he had taken the package from behind a fire extinguisher in the basement hall where he had been sent by a “féllow” with Reed who had promised him $10 for getting'it.
The federal officers returned immediately to the apartment building. About 3:45 a. m. agent Wilson and officer Wurms went to the door of the petitioner’s apartment. Officer Wurms knocked and, upon the inquiry from within — “Who’s there?” — replied in a low voice, “Police.” The petitioner opened the door on an attached door chain and asked what the officers were doing there. Before either responded, he attempted to close the door. Thereupon, according to officer Wurms, “we put our hands inside the door and pulled and ripped the chain off, and entered.” The officers had no arrest or search warrant. They did not expressly demand admission or state their purpose for their presence, nor did they place the petitioner under arrest until after they entered the apartment.
Bessie Byrd was also arrested in the apartment and turned over the cash she had in her housecoat. The cash included $34 of the marked currency. After an extended search the remaining $66 of marked currency was found, some in a hatbox in a closet, and the rest within the covers of a bed in the bedroom.
The Government contends that there was probable cause for arresting the petitioner and that the marked currency was properly admitted in evidence because it was seized as an incident to a lawful arrest. Harris v. United States, 331 U. S. 145. The petitioner’s argument breaks down into three contentions: (1) that the officers had no probable cause to arrest the petitioner without a warrant; (2) that the search was not justified as being an incident of a lawful arrest; (3) that the arrest, and therefore the search, was in any event unlawful because the officers broke the door of petitioner’s home without first giving notice of their authority and purpose in demanding admission. If any one of these contentions prevails, it is agreed that the marked money was inadmissible in evidence. In the view we take, we need consider only petitioner’s third contention.
The lawfulness of the arrest of petitioner depends upon the power of the arresting officers to “break” the doors of a home in order to arrest without warrant persons suspected of having committed narcotics offenses. Agent Wilson did not have statutory authority to arrest without a warrant although officer Wurms, as a member of the Metropolitan Police Department, did have such authority. This Court has said, in the similar circumstance of an arrest for violation of federal law by state peace officers, that the lawfulness of the arrest without warrant is to be determined by reference to state law. United States v. Di Re, 332 U. S. 581, 589; Johnson v. United States, 333 U. S. 10, 15. By like reasoning the validity of the arrest of petitioner is to be determined by reference to the law of the District of Columbia.
In making reference to that law we are mindful of our policy of not interfering with local rules of law fashioned by the courts of the District of Columbia. Fisher v. United States, 328 U. S. 463, 476; Griffin v. United States, 336 U. S. 704, 715. But the Government agrees with petitioner that the validity of the entry to execute the arrest without warrant must be tested by criteria identical with those embodied in 18 U. S. C. § 3109, which deals with entry to execute a search warrant. That section provides that an officer, executing a search warrant, may break open a door only if, “after notice of his authority and purpose,” he is denied admittance. The Government states in its brief that, “where an arrest is made on probable cause rather than a warrant, these statutory requirements must be met before an officer can force entry into an apartment.” These statutory requirements are substantially identical to those judicially developed by the Court of Appeals for the District of Columbia Circuit in Accarino v. United States, 85 U. S. App. D. C. 394, 403, 179 F. 2d 456, 465. Since the rule of Accarino bears such a close relationship to a statute which is not confined in operation to the District of Columbia, we believe that review is warranted here. Cf. Del Vecchio v. Bowers, 296 U. S. 280; Carroll v. United States, 354 U. S. 394, 414.
From earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest. Such action invades the precious interest of privacy summed up in the ancient adage that a man’s house is his castle. As early as the 13th Yearbook of Edward IY (1461-1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man’s house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party. Remarks attributed to William Pitt, Earl of Chatham, on the occasion of debate in Parliament on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!”
But the common law recognized some authority in law officers to break the door of a dwelling to arrest for felony. The common-law authorities differ, however, as to the circumstances in which this was the case. Hawkins says: “where one lies under a probable Suspicion only, and is not indicted, it seems the better Opinion at this Day, That no one can justify the Breaking open Doors in Order to apprehend him.” 2 Hawkins, Pleas of the Crown (1762), c. 14, § 7; see also Foster, Crown Law (1762), 320-321. Coke appears to have been of the same view, and to have thought that the breaking of a house was limited to cases in which a writ, now our warrant, had issued. Co. 4th Inst. 177. On the other hand, Hale says that “A man, that arrests upon suspicion of felony, may break open doors, if the party refuse upon demand to open them . . . .” 1 Hale, Pleas of the Crown (1736), 583.
Whatever the circumstances under which breaking a door to arrest for felony might be lawful, however, the breaking was unlawful where the officer failed first to state his authority and purpose for demanding admission. The requirement was pronounced in 1603 in Semayne’s Case, 5 Co. Rep. 91a, 11 E. R. C. 629, 77 Eng. Repr. 194, at 195: “In all cases where the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K[ing]’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors . . . (Emphasis supplied.)
The requirement stated in Semayne’s Case still obtains. It is reflected in 18 U. S. C. § 3109, in the statutes of a large number of States, and in the American Law Institute’s proposed Code of Criminal Procedure, § 28. It applies, as the Government here concedes, whether the arrest is to be made by virtue of a warrant, or when officers are authorized to make an arrest for a felony* without a warrant. There are some state decisions holding that justification for noncompliance exists in exigent circumstances, as, for example, when the officers may in good faith believe that they or someone within are in peril of bodily harm, Read v. Case, 4 Conn. 166, or that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal. 2d 301, 294 P. 2d 6.
But whether the unqualified requirements of the rule admit of an exception justifying noncompliance in exigent circumstances is not a question we are called upon to decide in this case. The Government makes no claim here of the existence of circumstances excusing compliance. The Government concedes that compliance was required but argues that “compliance is evident from the events immediately preceding the officers’ forced entry.”
The rule seems to require notice in the form of an express announcement by the officers of their purpose for demanding admission. The burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirement in this case. It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. Cf. People v. Martin, 45 Cal. 2d 755, 290 P. 2d 855; Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 798, 802 (1924). But even by that test the evidence upon which the Government relies was not sufficient to justify the officers’ failure expressly to notify the petitioner that they demanded admission to his apartment for the purpose of arresting him.
The single fact known to the officers upon which the Government relies is the “split-second” occurrence in which the petitioner evinced “instantaneous resistance to their entry,” an “almost instinctive attempt to bar their entry after they [the officers] had identified themselves as police ....”■ It is argued that this occurrence “certainly points up that he knew their purpose immediately . . . [and], at once, realized that he had been detected and that the officers were there to arrest him”; that “[i]t would be wholly unrealistic to say that the officers had not made their purpose known because they did not more formally announce that they were there to arrest him.”
But, first, the fact that petitioner attempted to close the door did not of itself prove that he knew their purpose to arrest him. It was an ambiguous act. It could have been merely the expected reaction of any citizen having this experience at that hour of the morning, particularly since it does not appear that the officers were in uniform, cf. Accarino v. United States, supra, 85 U. S. App. D. C., at 403, 179 F. 2d, at 465, and the answer “Police” was spoken “in a low voice” and might not have been heard by the petitioner so far as the officers could tell.
Second, petitioner’s reaction upon opening the door could only have created doubt in the officers’ minds that he knew they were police intent on arresting him. On the motion to suppress, agent Wilson testified that “he wanted to know what we were doing there.” This query, which went unanswered, is on its face inconsistent with knowledge. The majority of the Court of Appeals denied the import of the query by inferring that Miller knew Wilson and Wurms personally and recognized them as soon as he opened the door. That inference has no support in the record. But even if this inference were supportable, Miller’s recognition of Wilson and Wurms as police officers would not have justified them, in light of other facts known to them, in being virtually certain that Miller actually knew the reason for their presence. The officers knew that petitioner was unaware of Shepherd’s arrest; they knew that he was unaware that the currency was marked; they .knew that he was unaware that their presence was pursuant to a plan, initiated by Reed’s disclosures, to catch the petitioner in a criminal act. Moreover, they did not actually know that petitioner had made a sale to Shepherd and received the marked money, for Shepherd had not talked and had not been seen to enter petitioner’s apartment. The fact that the marked money was found in the apartment has no bearing upon the petitioner’s knowledge of the officers’ purpose since he did not know that the money was marked. This Court said in United States v. Di Re, supra, at 595: “We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.” The most that can be said is that the petitioner’s act in attempting to close the door might be the basis for the officers being virtually certain that the petitioner knew there were police at his door conducting an investigation. This, however, falls short of a virtual certainty that the petitioner knew of their purpose to arrest him. The requirement is not met except by notice of that purpose, for the Government admits that the officers had no authority to break the petitioner’s door except to arrest him. We must, therefore, conclude that the petitioner did not receive the required notice of authority and purpose.
We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence of the law for the individual’s right of privacy in his house. Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house. The petitioner could not be lawfully arrested in his home by officers breaking in without first giving him notice of their authority and purpose. Because the petitioner did not receive that notice before the officers broke the door to invade his home, the arrest was unlawful, and the evidence seized should have been suppressed.
Reversed.
MR. Justice Harlan concurs in the result.
The group included two Federal Bureau of Narcotics agents, Wilson and Pappas, officer Wurms of the District of Columbia Metropolitan Police Department, and officers Bowman and Thompson of the Virginia State Police, who were trainees in the narcotics program of the State of Virginia.
Officer Wurms testified:
“The Witness: Agent Wilson and I were at the front door of the apartment No. 1, 1337 Columbia Road. I knocked on the front door. I said — somebody asked, 'Who’s there?’ I said, ‘Blue’ [the petitioner’s nickname] — in a low voice, I said ‘Police.’
“I repeated it two or three times, in that manner.
“The door opened. There was a chain on the door. Blue Miller saw me, Agent Wilson, and I don’t know who else he saw but he tried to close the door and at that time we put our hands inside the door and pulled and ripped the chain off, and entered.”
At the trial, but not at the hearing on the motion to suppress, agent Wilson testified, “He said, ‘What do you-all want?’ And we says, ‘Police, you are under arrest, we want in.’ He says he was not going to let us in, or something like that, and so officer Wurms took ahold of the door and pulled it open.” But apparently the Government is satisfied that agent Wilson was mistaken in saying that there was mention of the purpose to arrest. His testimony on the motion to suppress as well as the testimony of officer Wurms, both on the motion and at the trial, is contrary. The Government in its brief refers to this testimony merely in footnotes. Its brief accepts the petitioner’s premise that the case should be decided upon the basis that the evidence shows that the officers did not formally announce their purpose. The Court of Appeals decided the case on the basis that Wilson did not make the statement. 100 U. S. App. D. C. 302, 306, 244 F. 2d 750, 754.
Narcotics agents were subsequently given authority by 26 U. S. C. § 7607, added July 18, 1956, to make an arrest where the agents have “reasonable grounds to believe that the person to be arrested has committed” a narcotics offense. In the District of Columbia peace officers having probable cause to believe that a felony is being, or has been, committed are empowered to arrest without a warrant. Wrightson v. United States, 98 U. S. App. D. C. 377, 378, 236 F. 2d 672, 673 (C. A. D. C. Cir.).
18 U. S. C. §3109:
“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”
The petitioner does not raise a question of the application of D. C. Code, 1951, § 4-141. See also § 4-145.
Judge Prettyman’s opinion for the Court of Appeals in Accarino v. United States, 85 U. S. App. D. C. 394, 179 F. 2d 456, discusses comprehensively the development of the law. See also the exhaustive article, Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 673, 798 (1924).
The Oxford Dictionary of Quotations (2d ed. 1953), 379. In Hansard, Parliamentary History of England (1813), vol. 15, column 1307, under the proceedings in the Commons on the cider tax in March, 1763, we find: “Mr. Pitt spoke against this measure, particularly against the dangerous precedent of admitting the officers of excise into private houses. Every man’s house was his castle, he said.”
Ala. Code, 1940, Tit. 15, §155; Ariz. Rev. Stat. Ann., 1955, § 13-1411; Deering’s Cal. Penal Code, § 844; Fla. Stat., 1957, 901.17; Idaho Code, 1947, § 19-611; Burns’ Ann. Ind. Stat., 1956, Replacement Vol., § 9-1009; Iowa Code Ann., 1949, § 755.9; Kan. Gen. Stat., 1949, 62-1819; Ky. Rev. Stat., 1953, §70.078; Dart’s La. Crim. Code, 1943, Art. 72; Mich. Stat. Ann., 1954, §28.880; Minn. Stat., 1945, §629.34; Miss. Code, 1942, §2471; Mo. Rev. Stat., 1949, §544.200; Mont. Rev. Codes, 1947, 94-6011; Neb. Rev. Stat., 1943, §29-411; Nev. Rev. Stat., 1957, 171.275; Clevenger-Gilbert’s N. Y. Crim. Code, 1956, § 178; N. C. Gen. Stat., 1953, § 15-44; Page’s Ohio Rev. Code Ann., 1953, § 2935.15; Okla. Stat. Ann., Tit. 22, §194; Ore. Comp. Laws Ann., 1940, §26-1530; S. C. Code, 1952, § 53-198; S. D. Code, 1939, §34.1606; Tenn. Code Ann., 1955, § 40-807; Utah Code Ann., 1953, 77-13-12; Remington’s Wash. Rev. Stat., 1932, § 2082; Wyo. Comp. Stat., 1945, § 10-309.
Code of Crim. Proc., American Law Institute, Official Draft (1930), §28:
“Right of officer to break into building. An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, as provided in section 21, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.”
Professor Wilgus sums up his discussion of the breaking of doors thus: “Before doors are broken, there must be a necessity for so doing, and notice of the authority and purpose to make the arrest must be given and a demand and refusal of admission must be made, unless this is already understood, or the peril would be increased.” 22 Mich. L. Rev. 798, 802. (Footnotes omitted.) The dissenting opinion herein, in footnote 1, mistakenly refers to this passage as if it were a holding “enunciated” by the Court of Appeals. In fact, this passage was merely quoted without approval. The holding was: “Upon one topic there appears to be no dispute in the authorities. Before an officer can break open a door to a home, he must make known the cause of his demand for entry. There is no claim in the case at bar that the officers advised the suspect of the cause of their demand before they broke down the door.” Accarino v. United States, 85 U. S. App. D. C. 394, 403, 179 F. 2d 456, 465.
Judge Holtzoff heard the motion to suppress over two months before the trial. Our examination of the record made at that time brings us into complete agreement with Judge Edgerton, who, dissenting in the Court of Appeals, said, “I find no evidence, and the court cites no evidence, that supports an inference that Miller even recognized the officers as the narcotics squad.” 100 U. S. App. D. C. 302, 311, 244 E. 2d 750, 759. Even if petitioner could have seen the officers sufficiently to make out their faces, there is no evidence that he knew them personally. The record at best supports an inference, not that either officer personally knew Miller, or that Miller had met, or even heard of, either officer, but only that the officers knew of him as a reputed narcotics violator. Judge Youngdahl presided at the trial and refused to hear a renewed motion to suppress because he considered the matter settled by Judge Holt-zoff’s ruling. Agent Wilson’s testimony at the trial was again at variance with his testimony before Judge Holtzoff as it had been on the question whether the officers had communicated their purpose to arrest. At the trial he testified that Miller had met him on one occasion before the night of the arrest. Apparently unwilling to rely on this testimony, in the face of its inconsistency, the majority of the Court of Appeals did not allude to it as the basis for its conclusion that Miller recognized the officers.
Compliance is also a safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder. See concurring opinion in McDonald v. United States, 335 U. S. 451, 460-461.
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_geniss
|
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. 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".
Fielding M. McGEHEE, III, Appellant v. CENTRAL INTELLIGENCE AGENCY.
No. 82-1096.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1982.
Decided Jan. 4, 1983.
Katherine A. Meyer, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant.
John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., and Emilio Jaksetic, Atty., C.I.A., Washington, D.C., were on the brief, for appellee.
Before WRIGHT, EDWARDS and BORK, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Separate opinion concurring and dissenting in part filed by Circuit Judge BORK.
TABLE OP CONTENTS
Page
Introduction_____________________________ 1097
I. BACKGROUND _____ 1097
II. THE USE OP A TIME-OF-REQUEST
CUT-OPP DATE......—......... 1100
A. Applicable Law_________________ 1100
B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date......... 1102
C. The Reasonableness of the Agency’s Procedure in This Instance________ 1103
Page
III. THE REFERRAL PROCEDURE_____ 1105
A. “Agency Records” Covered by the Act.......................... 1105
B. Treatment of Documents Obtained From Other Agencies____________ 1109
IV. INVOCATION OP THE “INTELLIGENCE SOURCE” EXEMPTION.... 1112
CONCLUSION.............. ni4
HARRY T. EDWARDS, Circuit Judge:
We are asked in this case to decide several questions concerning the scope of the duties imposed on government agencies by the Freedom of Information Act (“FOIA” or “the Act”). The District Court granted appellee’s motion for summary judgment on the theories that appellee had conducted a sufficiently thorough search for documents subject to disclosure and had released to appellant all of the materials required by the Act. In reaching these conclusions, the District Court upheld as reasonable an an-publicized Central Intelligence Agency (“CIA” or “the agency”) rule which had the effect of limiting the FOIA search to materials in the agency’s possession on the date when appellant made his initial request for documents. This “time-of-request cut-off” policy was approved by the trial court even though the agency failed to disclose any documents to appellant until compelled to do so by an order of the court almost two and one-half years after the original time of request. The District Court also granted appellee’s motion to dismiss from the lawsuit all records in the possession of the CIA that had been obtained from the State Department or the Federal Bureau of Investigation (“FBI”). Finally, the District Court relied solely on affidavits submitted by the CIA in upholding the nondisclosure of a number of disputed documents under FOIA exemptions (1) and (3). Because we conclude that the District Court’s rulings were founded upon misinterpretations of applicable legal standards, we reverse and remand for further proceedings.
I. Background
The outcome of this case turns substantially upon nuances in its facts. Accordingly, the procedural background to this appeal will be described at some length.
Appellant McGehee is a free-lance journalist and a relative of three victims of the gruesome demise of the “People’s Temple” in Jonestown, Guyana. Many of the circumstances surrounding the Jonestown Tragedy are well known, indeed notorious. In November, 1978, Congressman Leo J. Ryan and a portion of his staff traveled to Guyana to investigate allegations of mistreatment of some of his constituents in the Jonestown religious community. On November 18, as they were about to board a plane to leave, Ryan, three representatives of the media, and one apparent defector from the community were shot and killed. Within hours, almost all of the more than 900 members of the Jonestown congregation, including its founder, Jim Jones, either committed suicide or were murdered.
Despite the extensive attention given the Jonestown Tragedy, the character of the People’s Temple religious community, the events leading up to the catastrophe, and the manner in which so many people died remain somewhat mysterious. Proceeding on the assumption that the CIA possesses recorded information that sheds light on these matters, McGehee, on December 6, 1978, filed the FOIA request that gives rise to this controversy. McGehee initially asked for documents relating to several aspects of the development and fate of Jim Jones’ congregation. On December 22, at the suggestion of a representative of the agency, he narrowed his request to records pertaining to the “Peoples Temple.”
The treatment accorded McGehee’s request during the following month is not entirely clear from the record. It appears that the agency’s Information and Privacy Division (“IPD”), the office that coordinates responses to requests for information, determined that two other divisions—the Directorate of Operations (“DO”) and the Office of Security (“OS”)—were the offices most likely to possess documents of the sort McGehee was seeking. Accordingly, those two divisions were “tasked”—i.e., asked to search for and identify relevant records. Each division apparently was instructed to confine its attention to documents received on or before December 22, 1978, the day McGehee’s request was finalized. Soon thereafter OS informed IPD that it had found no such materials. An initial search by DO, on the other hand, revealed the existence of responsive documents, but DO at this time appears not to have informed IPD of its findings. Nor does DO seem to have made any effort at this point to review or even to retrieve the identified documents. Meanwhile, IPD learned that a third division, the National Foreign Assessment Center/Office of Central Reference (“NFAC/OCR”), had completed a computer search in response to an earlier FOIA request very similar to McGehee’s (the “Douglas request”) and had identified relevant documents in the agency’s possession. However, no immediate effort was made to retrieve those documents either. Instead, McGehee’s request (which was marked with some kind of notation of the location of records that might prove responsive) was placed at the end of a “processing queue,” the CIA’s system for dealing with FOIA requests on a “first-in-first-out basis.”
This initial flurry of activity had subsided by mid-January, 1979. Between that time and December, 1980, the agency did virtually nothing about McGehee’s request. Beginning in March, 1979, McGehee periodically contacted the CIA, either directly or through counsel, to ascertain the status of his request. The agency provided him with no information regarding the steps it had taken and gave him no definite indication of when any responsive documents would be released. Never did the agency inform McGehee that it had adopted December 22, 1978 as a “cutoff date” for its searches.
On November 21, 1980, McGehee filed suit in the District Court seeking to compel the CIA to respond to his pleas. On March 3, 1981, the court set a deadline of May 5,1981, by which time the agency was to complete its processing of McGehee’s request, release all nonexempt responsive material, and submit a Vaughn index cataloging any withheld documents. Soon thereafter the court granted the agency’s motion for a protective order, shielding the CIA from discovery by McGehee. On May 5, in compliance with the court’s directive, the agency revealed (for the first time) that it possessed 84 documents responsive to McGehee’s request. It disposed of those materials as follows: 12 were released in full; 18 were released with substantial portions deleted; 26 were withheld; 28 were forwarded to other government agencies, from which the CIA had originally obtained them.
The last set of records is one of the hubs of this controversy. It is undisputed that, of the 28 “other agency” documents, 27 had originated with the State Department and one with the FBI. In accordance with its standard procedure, the CIA declined to undertake any kind of substantive review of the “other agency” records and instead sent them to the agencies that first compiled them to enable those agencies to determine whether any material was exempt from disclosure. McGehee has not submitted a FOIA request to either the State Department or the FBI, insisting that the CIA is required by the Act to evaluate and release the documents in question. Nevertheless, the State Department has voluntarily reviewed the 27 records that it originally created and has released a majority of them to McGehee. The fate of the FBI document does not appear from the record.
In the summer of 1981, McGehee accidentally learned, from a letter written by a representative of the CIA to a third party, that the agency had been treating the time of his original request as a cut-off date for its FOIA search. Moreover, comments made in that letter raised the possibility that the agency had limited its searches to files denominated “People’s Temple” and had not sought information under any closely related headings—e.g., the Reverend James Jones or Jonestown. See App. 191.
On January 19,1982, despite these revelations, the District Court issued final judgment in the case. The court denied McGehee’s motion for an in camera inspection of the withheld and edited documents to test the basis for the agency’s refusal to release them, granted the CIA’s motion to dismiss from the lawsuit the documents it had obtained from the State Department and FBI, and granted the CIA’s motion for summary judgment as to the remainder of the suit. This appeal followed.
II. The Use of a Time-of-Request Cut-off Date
McGehee’s first challenge concerns the CIA’s decision to limit its search to records in its possession on the date when his request was finalized. He points out that the agency did not disclose any documents to him until compelled to do so by an order of the District Court almost two and one-half years after his original request. Under these circumstances, he argues, the agency failed to discharge its statutory obligation when it retrieved and released only documents that originated with and were in the possession of the CIA during the first month following the events to which his request principally related.
A. Applicable Law
We begin by reviewing the legal principles that govern McGehee’s claim. First, it is well established that the adequacy of an agency’s response to a FOIA request is measured by a standard of reasonableness. As this court recently noted:
[A]n agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it.
Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.Cir.1979) (footnotes omitted) (emphasis added). This same standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures is equally applicable to test the legality of an agency rule establishing a temporal limit to its search effort. In other words, a temporal limit pertaining to FOIA searches (such as the “time-of-request cut-off” policy that is at issue in this case) is only valid when the limitation is consistent with the agency’s duty to take reasonable steps to ferret out requested documents.
Second, we hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency. The Act explicitly assigns to the agency the burden of persuasion with regard to the closely related issue of the legitimacy of the agency’s invocation of a statutory exemption to justify withholding of material. Two considerations indicate that the same rule should govern the issue before us. One is that the information bearing upon the reasonableness of any temporal or other limitation on a search effort is within the agency’s exclusive control. The other is that the Act as a whole is clearly written so as to favor the disclosure of any documents not covered by one of the enumerated exemptions. Insofar as burdens of persuasion are generally assigned to parties advancing disfavored contentions, the agency should bear the responsibility of convincing the trier of fact that its less than comprehensive search is reasonable under the circumstances
Third, the fact that the subject of this appeal is the grant of appellee’s motion for summary judgment means that the agency must satisfy a significant legal standard in order to carry its burden. The standard has been stated as follows:
It is well settled in Freedom of Information Act cases as in any others that “[s]ummary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.”... [Moreover, the] “ ‘inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion.’ ”
Church of Scientology, 610 F.2d at 836 (footnotes omitted). Thus, for the CIA to have properly prevailed in the case at bar, it must have shown that no material fact relevant to the reasonableness of its use of a time-of-request cut-off date was in dispute and that the evidence established that the procedure employed was reasonable “as a matter of law.” In deciding whether the agency had made such a showing, the District Court was entitled to rely upon affidavits submitted by the agency, describing its search procedures and explaining why a more thorough investigation would have been unduly burdensome. Id. But such affidavits would suffice only if they were relatively detailed, nonconclusory and not impugned by evidence in the record of bad faith on the part of the agency. Id.
B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date
In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA’s decision to limit its search to documents in its possession as of the date of McGehee’s finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny.
The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be “reasonably describe[d].” That provision pertains to the subject matter, location and form of materials sought by a request, not to the times at which responsive documents are acquired. The CIA next directs our attention to two cases holding that an agency has no duty continuously to update its responses to a FOIA request. The doctrine tentatively established by those decisions is inapposite. The question presented in this case is whether, when an agency first releases documents to a requester, it may use as a cut-off date the time of his original demand. That an agency has no obligation, after it has once responded fully to a FOIA request, “to ‘run what might amount to a loose-leaf service’ ” for the benefit of the applicant has little bearing on the issue before us. Finally, the CIA points to case law suggesting that one cannot modify a FOIA request in mid-litigation. Those decisions establish, at most, that a requester is not permitted to alter or refine the subjects to which he originally directed attention; they have nothing to do with the legality of the use of the time of a request as a temporal limit to a FOIA search.
C. The Reasonableness of the Agency’s Procedure in This Instance
Having concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper, we are compelled to turn to the particular facts of the case before us to assess the reasonableness of the agency’s conduct. MeGehee directs our attention to circumstances that, on their face, east considerable doubt on the merits of the agency’s procedure. The CIA took almost two and one-half years to respond to McGehee’s request. Yet, when it finally released documents, the CIA chose to limit itself to records that originated with and were possessed by the agency during the first 35 days following the Jonestown Tragedy. Were these facts all that appeared in the record, we would be very hard pressed to sustain the agency’s actions.
The CIA attempts to dispel the skepticism to which the foregoing circumstances give rise by arguing that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an “administrative nightmare.” To support this claim, the agency points to the benefits of “precispon]” (the value of having a single cut-off date that all agency divisions know in advance), the “confusion” that might be engendered by different agency components using different cutoff dates (e.g., each division using the date at which it commenced searching for documents), the alleged cost and inconvenience to the agency of conducting the successive, duplicative searches that might be necessary if the date of a final response or the date of litigation were employed as a cutoff date, and the disruption of the agency’s fee schedules that would accompany the use of anything other than its present procedure.
In the absence of more detailed substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example:
Sample Procedure Applying a Reasonable “Cut-off” Date to a FOIA Search
Soon after the CIA first receives a request, IPD “tasks” divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the “queue,” IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine whether any material is exempt. Substantive review follows promptly and all nonexempt material is released.
We do not offer the foregoing Sample as a directive to the agency, a procedure with which it is henceforth bound to comply. Nor do we mean to endorse a procedure fraught with excessive time delays. In designing the system, we have taken for granted the fact that the CIA is experiencing inordinate delays in processing FOIA requests; a different procedure might be more suitable for an agency that responds to requests on a relatively current basis. In sum, we set forth the Sample Procedure merely to indicate that one can easily imagine a system that incorporates a cut-off date much later than the time of the original request, that results in a much fuller search and disclosure than the procedure presently used by the agency, that forecloses the necessity for an excessive number of supplementary demands (see note 42 infra), and that does not appear unduly burdensome, expensive, or productive of “administrative chaos.”
It is possible that circumstances unknown to us or to the District Court do indeed render unfeasible any such alternative, more responsive procedure. If so, the agency’s argument that its present practice is “reasonable” would be powerful. We therefore remand this portion of the case with instructions to afford the agency an opportunity to adduce additional relevant testimony. It should be clear, however, that to prevail on this issue, the agency will have to do better than it has thus far.
One additional aspect of this general problem merits brief attention. It would be extremely difficult for the CIA to convince us that it may “reasonably” use any cut-off date without so informing the requester. Such notification would involve an insignificant expenditure of time and effort on the part of the agency. And it would enable the requester to submit supplementary demands for information if he felt so inclined. Unless on remand some extraordinary showing is forthcoming of why the agency should not be required to inform requesters of the dates it is using, the CIA’s unpublicized temporal limitation of its searches should be held invalid.
III. The Referral Procedure
McGehee’s second allegation of error is that the District Court improperly granted the CIA’s motion to dismiss from the lawsuit the records it had obtained from the State Department and FBI. As was true with regard to the issue just discussed, the general principles governing McGehee’s claim are well known but their application to the specific question presented has never been resolved.
A. “Agency Records” Covered by the Act
The Supreme Court has recently clarified the conditions under which a federal court may compel an agency to release documents. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court held:
The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) “improperly”; (2) “withheld”; (3) “agency records.” Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.
Id. at 150, 100 S.Ct. at 968.
The CIA argues vigorously that the District Court’s decision in the instant case was proper under the third branch of this test. Records that are in the possession of the agency to which a FOIA request is submitted but that were originally compiled by another agency, the CIA insists, are not “agency records” within the meaning of the Act. So stated, the argument seems rather implausible, but this was indeed the theory on which the District Court rested its ruling.
Evaluation of this argument proves surprisingly difficult because of the absence of statutory or precedential guidance. As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of “agency records,” never defines that crucial phrase. A reading of the legislative history yields insignificant insight into Congress’ conception of the sorts of materials the Act covers. And we gain little by ransacking the case law interpreting the FOIA; no appellate court has expressed an opinion on the question of the legal status of documents prepared by one agency in the possession of another
This and other courts have, on occasion, been called upon to decide whether other materials of ambiguous form or origin fall within the category of “agency records.” It is upon some of those decisions that the District Court and the CIA principally rely in justifying the position they take in the instant ease. Unfortunately, none of the cases in question is apposite. It has been held that, under certain circumstances, records in an agency’s possession that originated with Congress do not constitute “agency records” for the purpose of the FOIA. Likewise, materials prepared by or for the judiciary that eventually find their way into the hands of an agency eovered by the Act have been held to fall outside the crucial category. The same is true of documents prepared by the President or his personal staff. But two factors distinguish all of these cases from the situation before us. First, each of the departments of government listed above is itself exempt from the coverage of the FOIA. Second, special policy considerations militate against a rule compelling disclosure of records originating in these three bodies merely because such documents happen to come into the possession of an agency. Congress, we have held, should not be forced to abandon either its long-acknowledged right to keep its records secret or its ability to oversee the activities of federal agencies (a supervisory authority it exercises partly through exchanges of documents with those agencies “to facilitate their proper functioning in accordance with Congress’ originating intent”). The courts, similarly, have an important interest in controlling the dissemination of their documents to the public, yet, to facilitate the operation of the penal system, often must make those records available to departments of government covered by the Act. Finally, the importance of the confidentiality of communications between the President and his immediate advisors, combined with the likelihood that records of those exchanges will find their way into portions of the “Executive Office of the President” covered by the Act, render undesirable a per se rule that such documents are “agency records.” In the present case, by contrast, the organs of government that first compiled the records—the State Department and FBI—clearly are covered by the Act. And no policy considerations comparabie to those requiring special protection for documents emanating from Congress, the courts or the President’s personal staff are applicable.
In sum, the question whether a document in the possession of one agency that originated in another constitutes an “agency record” for the purposes of the FOIA is not governed by either the terms of the statute, the legislative history or precedent. To resolve the issue, we are thus compelled to look to the general principles that underlie the Act as a whole.
It has often been observed that the central purpose of the FOIA is to “open[ ] up the workings of government to public scrutiny.” One of the premises of that objective is the belief that “an informed electorate is vital to the proper operation of a democracy.” A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions. Each of these objectives—and particularly the last—would be best promoted by a rule that all records in an agency’s possession, whether created by the agency itself or by other bodies covered by the Act, constitute “agency records.”
This conclusion is buttressed by consideration of the probable practical effect of a different rule. If records obtained from other agencies could not be reached by a FOIA request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access to the materials on the ground that it lacked “custody” of or “control” over the records and had no duty to retrieve them. The agency holding the documents could likewise resist disclosure on the theory that, from its perspective, the documents were not “agency records.” The net effect could be wholly to frustrate the purposes of the Act.
B. Treatment of Documents Obtained From Other Agencies
Our conclusion that the documents the CIA obtained from the State Department and FBI constitute “agency records” does not settle the fate of those materials. Two branches of the test delineated by the Supreme Court remain to be satisfied. The District Court should have compelled disclosure of the documents only if they were “(1) ‘improperly’; (2) ‘withheld’” by the CIA. Kissinger v. Reporters Committee, 445 U.S. at 150, 100 S.Ct. at 968. Unfortunately, the recent vintage of the Court’s three-pronged test means that there is very little case law directly concerned with the meaning of those crucial terms. Nor does the legislative history of the Act provide us much guidance. Once again, therefore, we are cast back upon the premises and objectives of the FOIA as a whole. Those considerations suggest the following definitions:
“ WithholdingCertainly a categorical refusal to release documents that are in the agency’s “custody” or “control” for any reason other than those set forth in the Act’s enumerated exemptions would constitute “withholding.” Interpretive problems arise only in the context of processing or referral procedures that are likely to result eventually, but not immediately, in the release of documents. The legal status of such procedures seems to us best determined on the basis of their consequences. We conclude, in other words, that a system adopted by an agency for dealing with documents of a particular kind constitutes “withholding” of those documents if its net effect is significantly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.
“Improper’’: We are persuaded by Justice Stevens’ opinion in Kissinger that sensible explication of the term “improper” in this context requires incorporation of a standard of reasonableness. Thus, “withholding” of the sort just described will be deemed “improper” unless the agency can offer a reasonable explanation for its procedure. The form such an explanation would be most likely to take would be a showing that the procedure significantly improves the quality of the process whereby the government determines whether all or portions of responsive documents are exempt from disclosure. Naturally, the more serious the resultant impediments to obtaining records or the longer the resultant delay in their release, the more substantial must be the offsetting gains offered by the agency to establish the reasonableness of its system. At the extreme, a procedure that, in practice, imposed very large burdens on requesters (eg., by compelling them to pay huge processing costs or to submit separate requests to a number of independent bodies) or that resulted in very long delays would be highly difficult to justify.
A principle implicit in the foregoing definitions is that, when an agency receives a FOIA request for “agency records” in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere.
There is insufficient evidence in the record to determine what result should be reached by applying these standards to the instant case. Neither the decision below nor the affidavits on which it was based make clear the nature of the referral procedure or exactly what advantages were gained by referring each of the documents obtained from the State Department and FBI to the originating body. Nor is the extent of the accompanying impairment of McGehee’s ability to gain access to those records apparent. We therefore remand the case with instructions to afford the parties opportunity to adduce additional relevant evidence.
We recognize that the standards we adopt today are not “bright line” tests. The District Court may find it difficult, given the absence of other germane precedent, to apply our holdings to the instant case even when all the facts have been ascertained. To mitigate that uncertainty, and to provide some guidance to courts confronted with similar problems in future cases, we set forth below a model for a referral system. We do not suggest that agencies are bound to accept our plan; we describe it merely to indicate one set of practices that would comport with the general principles embodied in the Act:
Sample Procedure for Processing Documents Originating with Other Agencies
An agency in possession of documents, responsive to a FOIA request, that it has received from another agency would forward them to the originating body (in lieu of processing them itself) if and only if they satisfied an “intent to control” test. Specifically, an intention on the part of the originating agency that it retain the authority to decide if and when materials are released to the public would have to be made evident by either (i) explicit indications to that effect on the face of each document or (ii) the circumstances surrounding the creation and transfer of the documents.
To minimize the resultant delay, the referral would have to be prompt and public. In other words, as soon as the agency retrieved responsive documents, and possibly even before it | undertook ah examination of their contents to determine whether they were exempt from disclosure, it would identify those records that originated elsewhere and, if they passed the aforementioned “intent to control” test, would immediately (i) inform the requester of the situation, (ii) notify the originating agency and, (iii) if necessary, forward to the latter copies of the relevant documents. To minimize the burden on the requester, this notification and referral would be accorded the status of a FOIA request; the person seeking information would thereby be relieved of the duty to submit a separate demand to the originating agency.
The system we outline, by promoting (i) the processing by the agencies to which requests are submitted of a substantial percentage of the “other agency” records in their possession and (ii) the rapid referral to the originating bodies of the remainder, would mitigate the two most serious hardships associated with the extant automatic referral systems: the inconvenience to requesters of being compelled to assert their rights in two or more independent administrative fora and the long delays resulting from the superimposition of two or more processing sequences.
If, in a given case, the “intent to control” test were satisfied but the agency to which the request was first submitted had not followed the procedures suggested above by the time litigation commenced, the district court would still have some options at its disposal that would enable it to ensure that the petitioner’s request was processed expeditiously without sacrificing the benefits accruing from a substantive review by the originating agency. The court might, for example, allow the defendant agency to submit affidavits or present witnesses from the originating agency, explaining which documents are exempt and why. Alternatively, the court could require the originating agency to appear as a party to the suit pursuant to Fed.R.Civ.P. 19(a). But these options would be makeshift arrangements; the preferable situation would be adherence to a set of review and referral guidelines of the sort described above.
IV. Invocation of the “Intelligence Source” Exemption
McGehee’s final allegation of error concerns the District Court’s decision to grant summary judgment on the ground that all material withheld by the agency was properly exempt from disclosure under the Act. The CIA defends the ruling below on the ground that it has established that the material in question is covered by FOIA exemptions (1) and (3). In the context of the instant case, the agency observes, those two provisions are functionally equivalent: both shield all information whose disclosure would result in revelation of the identities of “intelligence sources.”
The crucial issue, as this matter appears before us, is whether the District Court was warranted in granting the CIA’s motion for summary judgment solely on the basis of affidavits submitted by the agency. Here at last we have the benefit of a well-established body of precedent. A long line of cases, decided in this circuit and elsewhere, have prescribed the standards for reviewing claims of exemptions in this procedural context:
[Sjummary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (footnote omitted).
The CIA in the instant case satisfies the first and second branches of this composite test. The affidavits submitted by Louis J. Dube describe in considerable detail the grounds for the exemptions claimed by the agency and the reasons why each relevant document falls into one of the categories delineated. The agency likewise passes the third component of the test; no representation made in the Dube affidavits is controverted by other evidence in the record.
On the fourth and final requirement, however, the CIA stumbles. We find that the record contains significant evidence suggesting that the agency has not processed McGehee’s request in good faith. Our conclusion is founded principally on the combination of two facts: First, it took almost two and one-half years before the CIA processed McGehee’s reasonably straightforward request; indeed, the agency made no substantive response whatsoever until compelled to do so by order of the District Court. Second, the CIA failed to disclose the fact that it was using December 22, 1978, as a cut-off date. The cumulative weight of this evidence of bad faith is enough to vitiate the credit to which agency affidavits are ordinarily entitled. Accordingly, the District Court’s grant of summary judgment was erroneous.
It remains to be decided what should be the proper remedy on remand. McGehee urges two solutions on us. First, he requests an instruction to the District Court to permit him to conduct discovery to ascertain the basis of the agency’s claim that disclosure of the withheld material would reveal the identities of “intelligence sources.” Second, he seeks a directive to the District Court to conduct an in camera examination of the documents in question to determine whether the invocations of exemptions were justified.
With regard to the first option, the CIA argues vigorously that an explanation for its actions any fuller than that already made would itself compromise national security. Such a claim should not be disregarded lightly. Although evidence of agency bad faith, as we have shown, undermines the credibility of many of the CIA’s allegations, we are unwilling to respond by exposing the agency to McGehee’s discovery, at least if there exists any alternative method of testing the agency’s right to rely upon the statutory exemptions.
We turn, therefore, to the second proposed remedy. In a recent case, we summarized the considerations that should guide a district court in deciding whether to conduct an in camera inspection of withheld records. In Allen v. CIA
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_appel1_1_3
|
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)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
GOVERNMENT SUPPLIERS CONSOLIDATING SERVICES, INCORPORATED and Jack Castenova, Incorporated, Plaintiffs-Appellants, Cross-Appellees, v. Honorable Evan BAYH, Governor of the State of Indiana, and Honorable Kathy Prosser, Commissioner of the Indiana Department of Environmental Management, Defendants-Appellees, Cross-Apellants.
Nos. 92-1318, 92-1515.
United States Court of Appeals, Seventh Circuit.
Argued April 27, 1992.
Decided Sept. 17, 1992.
Ronald J. Waicukauski, White & Raub, Indianapolis, Ind., Bruce L. Thall (argued), Abramson Freedman & Thall, Philadelphia, Pa., for plaintiffs-appellants.
Robert S. Spear, Chief Counsel, Office of Atty. Gen., Federal Litigation, Arend J. Abel, John R. Maley, Barnes & Thornburg, David F. Hamilton (argued), Rosemary G. Spalding, Indiana Dept, of Environmental Management, Indianapolis, Ind., for defendants-appellees.
Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
The plaintiffs, who are brokers of municipal solid waste, arrange for trucks to haul waste from temporary storage sites in New York, New Jersey, and Pennsylvania to landfills in Indiana. Seeking a declaratory judgment and injunctive relief, they brought suit in the United States District Court for the Southern District of Indiana to challenge the constitutionality, under the Commerce Clause, of Indiana statutes regulating the trucking of municipal waste. The district court upheld all but one of the provisions at issue, and the plaintiffs appeal. The defendants cross-appeal, challenging both the district court’s determination that the plaintiffs had presented a controversy ripe for review and its determination as to the one provision struck down. For the reasons set forth in this opinion, we reverse in part and affirm in part.
I
BACKGROUND
A. The Challenged Provisions
The plaintiffs challenge a set of statutory provisions regulating the transport and disposal of municipal waste in Indiana. According to the plaintiffs, the challenged provisions, which were enacted as a package in 1991, are aimed at reducing or eliminating, and will in fact reduce or eliminate, the disposal of out-of-state waste in Indiana.
1. The backhaul ban
Under Indiana Code § 13-7-31-13.1, trucks that are used to haul municipal waste to Indiana landfills or disposal facilities may be used to haul only a limited number of other items. The statute provides that “municipal waste collection and transportation vehicles” may only be used to collect and transport the following:
(1)Municipal waste.
(2) Special waste (as defined in 329 IC 2-2-1 as in effect January 1, 1990).
(3) Hazardous waste regulated under:
(A) IC 13-7-8.5; or
(B) the federal Solid Waste Disposal Act (42 U.S.C. 6901 et seq. as in effect January 1, 1990).
(4) Waste described under IC 13-1-12-9'that results from the combustion of coal.
(5) Material that is being transported to a facility, except an incinerator or a landfill, for reprocessing or reuse.
(6) Wood, concrete, brick, and other construction and demolition materials.
(7) Dirt, sand, gravel, asphalt, salt, and other highway maintenance material.
(8) Coal, gypsum, slag, scrap metal, and other bulk industrial commodities.
(9) Infectious waste (as defined under IC 16-1-9.7-3).
Ind.Code § 13-7-31-13.1. The practical impact of this law is to require the use of semi-dedicated fleets of trucks to haul garbage to Indiana. As the district court stated, if this provision is enforced, “a significant number of the remaining truckers now willing to haul trash to Indiana will become unwilling because they cannot afford to dedicate their trucks to so limited a range of payloads.” No. 91 C 899, Order at 16 (R. 132) (Feb. 5, 1992).
2. Vehicle registration and stickering
Indiana enforces its backhaul ban by requiring that municipal waste collection and transportation vehicles be registered with the Indiana Department of Environmental Management, Ind.Code § 13-7-31-8, and bear identification stickers. Ind. Code § 13-7-31-8.2(d). The Department must issue the registration and identification stickers within thirty days after receipt of the application. Ind.Code § 13-7-31-8(d). The registration must be renewed every two years, Ind.Code § 13-7-31-8.1(a), and the fee for registration or renewal is $100. Ind.Code § 13-7-31-16.-1(a)(1). A person who owns, leases, or operates more than one municipal waste collection and transportation vehicle need obtain only one registration listing all such vehicles. Ind.Code § 13-7-31-8.2(a). A copy of the current registration must be carried by each vehicle at all times. Ind. Code § 13-7-31-8.2(c). All vehicles must bear stickers:
Vehicle identification stickers provided by the department, indicating that the vehicle carries municipal waste, must be affixed adhesively at all times in a prominent location on each side of each registered municipal waste collection and transportation vehicle’s cargo compartment or, at the option of the person to whom the registration is issued, on each side of a truck cab of a vehicle.
Ind.Code § 13-7-31-8.2(d)..Landfills are not permitted to accept a shipment of municipal waste if the vehicle carrying it does not have a vehicle identification sticker properly affixed. Ind.Code § 13 — 7—31— 14(1).
3. Surety bond and disposal fees
Indiana law also provides that “nonresident operators,” that is, brokers like the appellants, managers of transfer stations, or transporters of municipal waste, who are not residents of Indiana, must post a surety bond with the Indiana Department of Environmental Management. Ind.Code § 13-7-10.5-15. This provision is intended to “ensure the collection and payment of any civil penalties that the operator may be required to pay in Indiana because of the solid waste transfer activities of the operator.” Ind.Code § 13-7-10.5-15(l)(B). The amount of the surety bond and the time for payment are to be determined under rules adopted by the Solid Waste Management Board. Ind.Code § 13-7-10.5-15(l)(A). Such rules have not yet been adopted. In addition, the nonresident operator is “considered to appoint the Secretary of State as the operator’s agent for purposes of service of process in connection with any matter involving solid waste transfer activities.” Ind.Code § 13-7-10.5-15(2).
Lastly, the appellants challenge Indiana’s disposal fees. Indiana Code § 13-9.5-5-1 provides not only for fees that apply uniformly to all waste, regardless of origin, but also for fees that apply only to waste generated outside Indiana. These latter fees are to be determined by rules to be adopted by the Solid Waste Management Board, and “shall be set at an amount necessary to offset the costs incurred by the state or a county, municipality, or township that can be attributed to the importation of the solid waste into Indiana and the presence of the solid waste in Indiana.” Ind.Code § 13-9.5-5-l(b). Rules have not yet been adopted.
B. Facts
We give the facts as found'by the district court. Indiana is an economically favorable disposal site for municipal waste from other regions of the United States. Indiana’s first attempt to regulate the hauling of waste into Indiana was declared unconstitutional under the Commerce Clause in 1990. See Government Suppliers Consolidating Serv., Inc. v. Bayh, 753 F.Supp. 739 (S.D.Ind.1990). After this ruling, which was not appealed, Indiana enacted new provisions regulating the disposal of municipal waste. Those provisions are the ones at issue in the present case. The primary target of the provisions is a practice known as backhauling or crosshauling.
Truckers who haul municipal waste from the eastern United States to the Midwest normally are engaging in backhauling or crosshauling. The truckers haul goods from the Midwest to New York, New Jersey, or Pennsylvania; these trips (known as fronthauls) are a trucker’s main source of income. Instead of returning to the Midwest with empty trucks, they haul back trash for disposal in midwestern landfills. Trash collected in eastern cities is stored temporarily in transfer and recycling stations. At these stations, the waste is compacted and bound into large bundles. Brokers (like the appellants) identify truckers looking for backhauls of trash and arrange a pick-up for them from a transfer station and also arrange for disposal of the trash in a landfill in Indiana (or another midwest-ern state). Flatbed trailers, box-type semi trailers, and open-top dump trailers are used to carry the trash to Indiana. An individual trucker may haul waste to Indiana only once in several years or may haul waste regularly. The brokers do not have long-term contracts with truckers; arrangements for transport of each load of waste are made on an ad hoc, one-time basis.
Many customers of trucking companies refuse to load their goods onto any vehicle that has hauled municipal waste. As the appellants candidly conceded before the district court, trucking companies would prefer that their other customers remain unaware that their trailers have hauled municipal waste. Order at 32. Evidence at trial showed that even commercial entities that are not involved in food products do not want their products transported in trucks that previously hauled trash. These shippers were concerned about potential adverse effects on product reputation. Order at 27. Shippers, apparently thinking that if a truck is very clean it must have been recently washed after hauling garbage, have rejected trucks because they are too clean. As the district court noted, “this illustrates that shippers are more concerned with reputation' than with the actual health risks.” Order at 27 n. 10. One trucker testified in the district court that he would not voluntarily tell a shipper that a trailer had previously hauled trash because of the stigma attached to crosshaul-ing. Order at 32. However, in spite of pressure from shippers not to haul waste, “it is also clear that many truckers, especially small operators, are still willing to crosshaul trash. If the questioned provisions are enforced, then a significant number of the remaining truckers now willing to haul trash to Indiana will become unwilling because they cannot afford to dedicate their trucks to so limited a range of payloads.” Order at 16.
The district court found that, unlike out-of-state waste, “Indiana-generated municipal waste generally is not cross-hauled— that is, trash is usually shipped intrastate in traditional, dedicated garbage trucks, not dry vans.” Order at 25.
Today a broker must pay a trucker approximately $35 a ton for hauling municipal waste from New York to Indiana. If a dedicated fleet of garbage trucks is used, the cost will double to about $70 a ton. Including a typical Indiana tipping fee of $15 per ton (the disposal fee that must be paid to the landfill), the total disposal cost of crosshauled trash is approximately $50 a ton. If a dedicated fleet is used, the total cost for disposing of New York waste in Indiana will be $85 a ton. At $85 a ton, Indiana will no longer be the most economically reasonable state for the disposal of trash. According to the testimony of the brokers, transfer stations will not pay $85 a ton to dispose of waste; thus the back-hauling ban, if enforced, will eliminate interstate transport of waste to Indiana. Order at 28.
C. District Court Proceedings
The district court first determined that the plaintiffs’ challenges to all of the provisions described above were properly before it. It then examined the constitutionality of the prohibition on backhauling and the registration/stickering provisions as applied. The district court determined that the backhaul ban was facially neutral and applied identically to similarly situated waste haulers, regardless of their residence and the origin of the waste they carried. Therefore, it evaluated its constitutionality under the standard enunciated in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), noting that, under this standard, “a statute will not be held unconstitutional unless the burden imposed on commerce is clearly excessive in relation to the local benefits.” Determining that the putative local benefits (protection of health and of the reputation of Indiana products) justified the burden on interstate commerce (lower profits for waste haulers), the court upheld the statute.
The district court also upheld the registration and stickering provisions. Noting that the statute does not distinguish on its face between local trash haulers and national waste disposal companies, the district court also found that it did not discriminate in practical effect. Moreover, the court noted, “there is no evidence that an Indiana entity will benefit economically from the registration/stickering provision so it does not constitute economic protectionism.” Order at 31. According to the district court, the primary local benefit of the statute was to assist Indiana in enforcing its backhauling prohibitions. Also, registration and stickering would promote private enforcement of the backhauling ban: “All sides agree that if shippers see the stickers, they will probably not use the truck. Thus, crosshauling will be effectively eliminated by private enforcement.” Order at 31. The court rejected the plaintiffs’ arguments that “sticker stigma” was a burden on interstate commerce; rather, it noted, “the dormant Commerce Clause does not give trucking companies a constitutional right to conceal information from their customers.” Order at 32. In addition, the district court stated that, while “there [was] no doubt that enforcement of the vehicle registration greatly w[ould] change how the plaintiffs do business,” Order at 33, the Commerce Clause does not protect a particular method of doing business. Lastly, the court rejected the plaintiffs’ assertions that the registration and stickering requirements were duplicative and ineffective.
The district court reviewed the remaining two provisions at issue here, the disposal fee and surety bond, for facial validity. It upheld the disposal fee provision; however, it struck down the surety bond provision as an unnecessary burden on interstate commerce, noting that other provisions of the Indiana Code require out-of-state operators to register with the Indiana Department of Environmental Management, and that the registration process “should provide the state with all information it requires to adequately effectuate its judgments.” Order at 40.
D. Contentions of the Parties
Government Suppliers and Castenova submit that the district court erred in upholding the backhaul ban, the registration and stickering provisions, and the disposal fees to be imposed on out-of-state waste. They contend that the court should have examined the backhaul ban and the registration and stickering provisions under what they denominate the “per se” test, that is, the elevated scrutiny applied by the Supreme Court where the statute in question is discriminatory on its face or in practical effect. See, e.g., Brown-Forman Distillers v. New York State Liquor Auth., 476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986); Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979).
In a cross-appeal, Indiana submits that the plaintiffs’ challenge to the backhauling ban should be dismissed for lack of a case or controversy and that the plaintiffs’ challenges to the surety bond and the disposal fee are not ripe for judicial resolution, because as yet no implementing rules have been adopted. They also appeal the district court’s determination that the provision requiring out-of-state operators to post a surety bond is invalid under the Commerce Clause.
II
JURISDICTION
“The appropriate test to determine if there is an actual controversy, one ripe for decision, under the Declaratory Judgment Act is the one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270 [61 S.Ct. 510, 85 L.Ed. 826] (1941).” Oneida Tribe of Indians v. State of Wisconsin, 951 F.2d 757, 760 (7th Cir.1991) (citing Lake Carriers’ Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972)). “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.” Maryland Casualty, 312 U.S. at 273, 61 S.Ct. at 512. Indiana submits that the district court erred in finding that it had subject matter jurisdiction over the claims asserted by Government Suppliers and Castenova. It argues that, in challenging the backhaul ban, the plaintiffs have presented “no concrete, justiciable controversy.” Appellees’ Br. at 41. We find little merit in Indiana’s arguments on this point. Jurisdiction is clearly proper as to the backhaul ban and the registration and stickering provisions that accompany it. The plaintiffs do not themselves engage in backhauling; their business consists in arranging for others to do so. It is undisputed that their business would suffer severe adverse effects from enforcement of the backhaul ban. Such economic injury, though indirect, is sufficient to confer standing. Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The interest they seek to vindicate is within the zone of interests protected by the Commerce Clause. See Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320-21 n. 3, 97 S.Ct. 599, 602-03 n. 3, 50 L.Ed.2d 514 (1977); Bacchus Imports Ltd. v. Dias, 468 U.S. 268, 267, 104 S.Ct. 3049, 3055, 82 L.Ed.2d 200 (1984).
Indiana’s contention that the plaintiffs presented only an abstract, and therefore unripe, question appears to rest on the assertion that the plaintiffs did not specify what sorts of goods they claim the “Constitution mandates be allowed to travel in municipal waste vehicles, and under what circumstances.” Appellees’ Br. at 43. “In sum, Plaintiffs have asked the Court for a broad advisory opinion that they (or more precisely, the trucking companies with whom they do business) can haul in trash trucks a broad range of goods, the specifics of which the Court can only guess.” Id. However, as will become clear in our discussion, the legal issue presented “is one the resolution of which would be essentially unaffected by further factual development.” Peick v. Pension Benefit Guar. Corp., 724 F.2d 1247, 1261 (7th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 855 (1984). The case presents “a substantial controversy between parties having adverse interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Lake Carriers’ Ass’n v. MacMullan, 406 U.S. at 506, 92 S.Ct. at 1755.
The ripeness for facial review of the surety bond provision and the disposal fees is a closer question. The implementing regulations have not yet been written or adopted. However, as the Supreme Court stated in Pacific Gas & Electric Co. v. State Energy Resource Conservation & Development Commission, 461 U.S. 190, 201, 103 S.Ct. 1713, 1721, 75 L.Ed.2d 752 (1983), “[o]ne does not have to await the consummation of threatened injury to obtain preventative relief.” In order to protect against a feared future event, “the plaintiff must demonstrate that the probability of that future event occurring is real and substantial, ‘of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Salvation Army v. Department of Community Affairs, 919 F.2d 183, 192 (3d Cir.1990) (quoting Steffel v. Thompson, 415 U.S. 452, 460, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974)). When “present harms will flow from the threat of future actions,” Armstrong World Industries, Inc. v. Adams, 961 F.2d 405, 412 (3d Cir.1992), those present harms may mean a controversy is ripe for review. See Volvo N. Am. Corp. v. Men’s Int’l Professional Tennis Council, 857 F.2d 55, 63-64 (2d Cir.1988) (“the prospect or fear of future events may have a real impact on present affairs, such that a preemptive challenge is ripe”).
The district court found, based on defendants’ own affidavits, that Indiana intends to enforce the surety bond provision and disposal fee provision once enabling rules are promulgated, and that enforcement would affect the plaintiffs’ businesses. And, according to the plaintiffs, these statutes, though not yet enforced, have an immediate damaging effect on their businesses. As Judge Tinder recognized in the earlier case between the parties, “advance planning required for the interstate shipment of solid waste could well be impaired by the fear of increased future costs.” Government Suppliers Consol. Serv., Inc. v. Bayh, 734 F.Supp. 853, 861 (S.D.Ind.1990). Moreover, faced with future enforcement of provisions which, as the district court recognized, might eliminate disposal of out-of-state waste in Indiana, the appellants “are now incurring increased costs and diminution of revenues and profits based upon the need to secure and use disposal sites outside of the State of Indiana.” Appellants’ Combined Reply Br./Answering Br. at 12. In some cases, the absence of implementing regulations may render the actual effect of the statute too uncertain to make review possible. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986) (“A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.”); Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 438, 97 S.Ct. 2777, 2788, 53 L.Ed.2d 867 (1977) (“For [the Court] to review regulations not yet promulgated, the final form of which has been only hinted at, would be wholly novel.”). In the present case, however, what the statutes authorize is clear; only procedures and amounts are uncertain. There is no need to wait for regulations or specific applications to evaluate and make a conclusive determination as to the legal issue presented. See Pacific Gas & Elec. Co., 461 U.S. at 201, 103 S.Ct. at 1720; Armstrong World Indus., 961 F.2d at 412. The provisions are ripe for review.
Ill
ANALYSIS
The Commerce Clause not only gives the Congress the power to regulate, through the use of its legislative power, commerce among the states, but also limits the power of the states, even in the absence of federal legislation, to burden interstate commerce. See Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1851). In City of Philadelphia v. New Jersey, 437 U.S. 617, 623-24, 98 S.Ct. 2531, 2535-36, 57 L.Ed.2d 475 (1978), Justice Stewart, writing for the Court summarized this latter aspect of the Commerce Power and the need for “delicate adjustment of the conflicting state and federal claims”:
Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention “because of their local character and their number and diversity.” South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 185 [58 S.Ct. 510, 514, 82 L.Ed. 734]. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440 [98 S.Ct. 787, 793, 54 L.Ed.2d 664], The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-538 [69 S.Ct. 657, 664-665, 93 L.Ed. 865]:
“This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U.S. [511], 527 [55 S.Ct. 497, 502, 79 L.Ed. 1032], ‘what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.’ ”
The opinions of the Court through the years have reflected an alertness to the evils of “economic isolation” and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.
The jurisprudence of this “dormant” or “negative” Commerce Power described by Justice Stewart is the product of the inevitable tension between the need to preserve the capacity of the country to address national economic concerns and the need of state government to exercise its residual police powers for the betterment and protection of its citizens. It should not be surprising, therefore, that litigation in this area often centers on areas of acute economic and social concern where the interests of preserving the national capacity to act and of allowing state government to solve local problems is particularly urgent. Consequently, in these last decades of the twentieth century, environmental problems have produced heightened concerns about waste management, and garbage has become a frequent focal point of dormant commerce power jurisprudence.
Garbage is, under the prevailing ease law of the Supreme Court, indisputably an article of commerce, and “ ‘States are not free from constitutional scrutiny when they restrict’ ” its interstate movement. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, — U.S. -,-n. 3, 112 S.Ct. 2019, 2023 n. 3, 119 L.Ed.2d 139 (1992) (quoting Philadelphia v. New Jersey, 437 U.S. at 622-23, 98 S.Ct. at 2534-35). States faced with increased and rising waste volumes and foreseeable shortages of landfill space have attempted by various statutory means to slow down or halt the inflow of waste from other states where disposal costs are higher. In Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, the Supreme Court struck down a New Jersey law that, with a few minor exceptions, prohibited the importation of “solid or liquid waste which originated or was collected outside the territorial limits of the state.” More recently, in Fort Gratiot, — U.S.-, 112 S.Ct. 2019, and Chemical Waste Management, Inc. v. Hunt, — U.S. -, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992), the Court struck down Michigan and Alabama laws that discriminated against interstate commerce in trash. In these cases, the Court reaffirmed the basic principle behind Philadelphia v. New Jersey: one state may not “isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.” Philadelphia v. New Jersey, 437 U.S. at 628, 98 S.Ct. at 2538; see Chemical Waste, — U.S. at -, 112 S.Ct. at 2012; Fort Gratiot, — U.S. at -, 112 S.Ct. at 2024.
A. The Backhaul Ban, Registration, and Stickering
The heart of the Indiana regulatory scheme under review is the so-called back-haul ban and its attendant registration and stickering provisions. Our evaluation of these provisions requires that we set forth in more detail the principles developed by the Supreme Court to guide dormant Commerce Clause analysis. As the Court explicitly noted in Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 579, 106 S.Ct. 2080, 2084, 90 L.Ed.2d 552 (1986), there are two alternate analytical perspectives for problems under the dormant Commerce Clause. The “critical consideration” in determining the appropriate analysis “is the overall effect of the statute on both local and interstate activity.” Brown-Forman Distillers, 476 U.S. at 579, 106 S.Ct. at 2084.
Under the first test, a statute “which clearly discriminates against interstate commerce is unconstitutional ‘unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.’ ” Fort Gratiot, — U.S. at- -, 112 S.Ct. at 2023-24 (quoting New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 274, 108 S.Ct. 1803, 1808, 100 L.Ed.2d 302 (1988)). By contrast, under the second test (the Pike test), if a statute is neutral on its face, has only indirect or incidental effects on interstate commerce, and regulates evenhandedly, the statute will be upheld “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Under the Pike test, if a legitimate local purpose is “credibly advanced,” Chemical Waste, — U.S. at-n. 5, 112 S.Ct. at 2014 n. 5 (quoting Philadelphia v. New Jersey, 437 U.S. at 624, 98 S.Ct. at 2535), “then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike, 397 U.S. at 142, 90 S.Ct. at 847.
The district court applied the lesser level of scrutiny enunciated in Pike. It reasoned that the statutes under review were “facially neutral,” that they “treat[ ] similarly situated waste haulers alike, regardless of their residence or the origin of the wastes they carry. Neither intrastate nor interstate waste haulers may crosshaul municipal waste and any non-exempt item.” Order at 25. The district court rejected the plaintiffs’ argument that the backhaul ban was discriminatory because it affected primarily interstate haulers of waste (Indiana-generated waste generally is not crosshauled, but usually shipped intrastate in traditional, dedicated garbage trucks). In the district court’s view, the plaintiffs’ argument boiled down to an assertion that the statute would apply most often to out-of-state entities, and that circumstance alone did not render the statute discriminatory. Order at 25 (citing CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 88, 107 S.Ct. 1637, 1649, 95 L.Ed.2d 67 (1987); see Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th Cir.), cert. denied, 493 U.S. 955, 110 S.Ct. 367, 107 L.Ed.2d 353 (1989)).
However, a determination that a statute does not discriminate on its face and “purports to regulate evenhandedly” does not end the question of which scrutiny should apply. See Brimmer v. Rebman, 138 U.S. 78, 11 S.Ct. 213, 34 L.Ed. 862 (1891). When a statute discriminates “in practical effect” against interstate commerce, the fact that it purports to apply equally to citizens of all states does not save it. In Brimmer, the Court struck down a Virginia statute requiring that fresh meat brought from more than 100 miles away from the place of sale had to be inspected and imposing a significant inspection fee on the seller of the meat. Recently, in Fort Gratiot, the Supreme Court set forth approvingly the Brimmer Court’s analysis:
This statute [cannot] be brought into harmony with the Constitution by the circumstance that it purports to apply alike to the citizens of all the States, including Virginia; for ‘a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States, including the people of the State enacting such statute.’ Minnesota v. Barber, [136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (1890)]; Robbins v. Shelby Taxing District, 120 U.S. 489, 497 [7 S.Ct. 592, 596, 30 L.Ed. 694]. If the object of Virginia had been to obstruct the bringing into that State, for use as human food, of all beef, veal and mutton, however wholesome, from animals slaughtered in distant States, that object will be accomplished if the statute before us be enforced.
Brimmer v. Rebman, 138 U.S. 78, [83], 11 S.Ct. 213, 214, 34 L.Ed. 862 (1891) (as quoted by Fort Gratiot, — U.S. at -, 112 S.Ct. at 2025) (emphasis added); see also Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951).
In the case before us, Indiana has not “artlessly disclosed an avowed purpose to discriminate,” Dean Milk, 340 U.S. at 354, 71 S.Ct. at 298, and therefore, to determine what level of scrutiny to apply, we must examine the practical effect of the statutes in question on interstate commerce. Indiana argues that the district court was correct in applying the Pike test — that the backhaul ban and its accompanying registration and stickering provisions are facially non-discriminatory, regulate evenhandedly, and have only incidental effects on interstate commerce.
As the Supreme Court has noted, the “critical consideration is the overall effect of the statute on both local and interstate activity,” Brown-Forman, 476 U.S. at 573, 106 S.Ct. at 2081 (emphasis added), and whether the “effect is to favor in-state economic interests over out-of-state economic interests.” Id. Furthermore, “when considering the purpose of a challenged statute, [the] Court is not bound by ‘[t]he name, description or characterization given it by the legislature or the courts of the State,’ but will determine
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
DECOSS v. TURNER & BLANCHARD, Inc.
(Circuit Court of Appeals, Second Circuit.
November 15, 1926.)
No. 66.
1. Trial <§=>382 — -Trial judge, as trier of facts, must make firm decision on issues of fact, and cannot escape responsibility by statement that his mind is confused.
Trial judge, as trier of facts, must render firm decision on issues of fact raised by conflicting testimony, and cannot escape responsibility by mere statement that his mind is confused or unsettled.
2. Witnesses <@=>340(2) — Moral qualities must be considered in determining credibility of witnesses, and one witness having proper attributes outweighs any number not possessing such attributes.
Moral qualities must be considered in determining credibility of witnesses, and one witness having proper attributes of ability and credibility outweighs any number of witnesses not possessing such attributes.
3. Admiralty <®= i 17.
Appeal in admiralty is trial de novo, and appellate court may examine facts.
4. Master and servant'<@=>279(4).
Evidence held to show that injury sustained by stevedore while unloading ship was caused by negligence of fellow servant, precluding recovery.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel filed by Peter Deeoss against Turner & Blanchard, Inc., to recover damages for personal injuries sustained while in its service. Decree for respondent; libelant appeals.
Affirmed.
Milton A. Fischer, of New York City, for appellant.
E. C. Sherwood, of New York City (William L. O’Brion, of New York City, of counsel), for appellee.
Before HOUGH, MANTON, and MACK, Circuit Judges.
MANTON, Circuit Judge.
The appellant was employed by the appellee on a steamship at Pier 6, f'oot of Forty-Second street, Brooklyn. He was a member of a gang of stevedores who were unloading boxes and barrels through one of the hatchways to the dock. A net sling was used in lifting the barrels, and it was the duty of the appellant, with others, to take the barrels from their place of stowage in the hold of the vessel and prepare them for hoisting. .The claim upon which negligence is predicated is that pieces of wood —parts of broken boxes — had accumulated together with pieces of dunnage, and were on the floor of the hold in the clear space; that while tipping a barrel, which was being prepared for hoisting, the edge of the barrel struck a piece of wood, which flew up, striking him in the eye., and causing the loss of an eye. The barrels in question weighed about 700 pounds and were 3 feet high. Three men were engaged in moving each barrel. The appellant was using a hook, endeavr ofing to tip the barrel, when he says this accident occurred. In support of this claim, he called four men of his gang. The appellee produced one disinterested witness, who testified that one of the men engaged in moving the barrel was using a hand hook, and that it slipped, striking the appellant in the eye, causing the injury. The District Judge rendered an opinion, stating:
. “The trial resolved itself into a question of veracity. "* * “ There is no middle ground. Either one side or the other was telling the truth. In other words, the testimony is evenly balanced as to this determining point. * * * Either the watchman was telling the truth, or these companions of libelant’s were. The watchman’s story was neither improbable nor unlikely, nor can I see that anything in the way of motive existed. Nor was the story of the stevedores necessarily improbable or unlikely, although, if the watchman’s story is true, considerable motive may have existed in the mind of at least the companion of libelant, who unfortunately then had caused the injury.
“However, bearing in mind the burden resting on libelant, to prove by a fair preponderance of evidence, how the accident happened, the cause, as well as the effect, I am unable on this record to determine the cause. One story is as likely as the other. One witness’ statement is absolutely contradictory of the other. There is nothing in the record by which I can measure the respective credibility of the witnesses. I am therefore unable to determine by a fair preponderance of evidence what caused the accident.”
Thereupon, he said, “It is necessary for me to dismiss the complaint.”
The learned District Judge was called upon to decide where the truth was in this controversy. He had the advantage of seeing the witnesses and hearing them testify and through the process of cross-examination learning their interest and thus he had full opportunity of reaching a determination on the issue of fact presented. Such is the daily task of a trial judge where issues of fact axe presented. It will not do to escape the responsibility by a mere statement that the mind of the trier of facts is confused or unsettled as to the controversy. Either the libelant made out his claim or failed to do so, and a firm decision on this issue of facts should have been rendered. It was not a difficult task.
Within a courtroom, as without, many elements enter into the test of credibility of a witness. They have often been repeated in the cases. No measure need ordinarily be made because of quantity. It is the moral qualities which constitute credibility. One witness, having the proper attributes of ability and credibility, who exemplifies such as he testifies, outweighs any indefinite number of witnesses, who do not possess the same attributes, or might possess other attributes. When evidence is weighed to determine what is the fact proven thereby, the qualities going to make up the integrity of the witness are never bolstered up by numbers. The number of witnesses are ordinarily not to be counted by a jury or trial judge, in order to determine upon which side there is a preponderance. The evidence given by them is to be weighed by the familiar tests by which men determine the truthfulness of statements of other men in everyday life.
This being an appeal in admiralty, and therefore a trial de novo, we may and do examine the facts. Mr. Brasier, called by the appellee, was employed by the steamship line. He was a disinterested witness, and his testimony, when read, is most convincing. He showed no bias or motive to deceive. It was his duty to watch the men and guard against theft. His testimony is clear that the appellant’s injury was caused by a hook slipping and striking him in the eye. Without bias or motive, with a frankness to be commended, there was nothing to indicate why he should wrong an unfortunate workman who has sustained such an injury. On the other hand, the testimony given by the appellant’s fellow workmen contains many doubts and inconsistencies. It should not be accepted as establishing the claim that a piece of wood caused the injury.
The decree is affirmed, with costs.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_numresp
|
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 respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MERCEDES-BENZ OF NORTH AMERICA, INC., Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent, General Motors Corporation, Intervenor.
No. 89-1762.
United States Court of Appeals, District of Columbia Circuit.
Argued May 21, 1991.
Decided July 12, 1991.
David A. Vaughan, with whom Elliot B. Staffin was on the brief, Washington, D.C., for petitioner.
Kenneth N. Weinstein, Asst. Chief Counsel, Nat. Highway Traffic Safety Admin., with whom Stuart M. Gerson, Asst. Atty. Gen., Paul Jackson Rice, Chief Counsel and Enid Rubenstein, Atty., Nat. Highway Traffic Safety Admin, were on the brief, Washington, D.C., for respondent. Stephen Wood, Atty., Nat. Highway Traffic Safety Admin., Washington, D.C., also entered an appearance for respondent.
John Gibson Mullan, Washington, D.C., with whom Dennis R. Minano and Thomas L. Arnett were on the brief, Detroit, Mich., for intervenor.
Before MIKVA, Chief Judge, and WILLIAMS and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILLIAMS.
STEPHEN F. WILLIAMS, Circuit Judge:
In 1975 Congress designed a system to reduce American energy consumption through corporate average fuel economy (“CAFE”) standards for cars. See Title III of the Energy Policy and Conservation Act, Pub.L. No. 94-163, 89 Stat. 901 (1975), adding § 502 et seq. to the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 2002 et seq. (1988) (“the Act”). The National Highway Traffic Safety Administration (“NHTSA”), which administers the CAFE program, assessed a civil penalty against Mercedes-Benz for failing to meet the standard for model year (“MY”) 1985. Mercedes-Benz asks us to reverse the penalty and to require NHTSA on remand to entertain its claim that the standard should be set lower.
The only standard genuinely at issue here was set by Congress itself, against which Mercedes-Benz makes no constitutional claim. Mercedes-Benz’s only attack is on NHTSA, and the only conduct for which NHTSA is even theoretically vulnerable is its failure to amend the congressional standard. As Mercedes-Benz petitioned for an amendment of the 1985 standard only in August 1987 and the NHTSA Administrator lawfully rejected the petition on the ground that retroactive amendment would be inconsistent with the statutory scheme, see Passenger Automobile Average Fuel Economy Standards; Denial of Petitions for Rulemaking, 53 Fed.Reg. 15241, 15243/3 (1988); GMC v. NHTSA, 898 F.2d 165 (D.C.Cir.1990), there is no error in NHTSA’s rejection of Mercedes-Benz’s attack on the standard.
For certain model years, including 1985, Congress set the CAFE standard itself (27.5 miles per gallon); for model years 1981 through 1984, it authorized NHTSA to set standards no later than July 1, 1977. § 502(a)(3), 15 U.S.C. § 2002(a)(3). As to both groups of standards, Congress provided that NHTSA “may, by rule, amend” the previously established standard. § 502(a)(4), 15 U.S.C. § 2002(a)(4) (MY 1985 and later years); § 502(f)(1), 15 U.S.C. § 2002(f)(1) (MYs 1981-84; between “by rule” and “amend”, this latter section inserts “from time to time”). One may obtain judicial review of a rule establishing a CAFE standard by filing a petition in this court within 60 days of promulgation. § 504(a), 15 U.S.C. § 2004(a).
Petitioner Mercedes-Benz’s average fuel economy rating for 1985 was 23.6 mpg, nearly four miles per gallon below the congressional standard. At the conclusion of an enforcement proceeding initiated by NHTSA, see 15 U.S.C. §§ 2007(a)(1), 2008(b) (1988), Mercedes was assessed a civil penalty of $5,509,400, which it appeals. Mercedes does not quarrel with NHTSA’s math; the methodology for calculating fines is quite straightforward. Instead it urges that NHTSA wrongfully refused to entertain its substantive attack on the underlying CAFE standard in the enforcement proceeding.
The parties devote considerable energy to the general question of when a party who is subjected to enforcement proceedings for violating an agency rule, for which Congress has limited the time for challenges, may attack the rule’s validity. NHTSA, for example, reads Raton Gas Transmission Co. v. FERC, 852 F.2d 612, 615-16 (D.C.Cir.1988), as saying that where a party has allowed a statutory period for review to pass, it may attack the rule only under very limited exceptions, not including one for enforcement proceedings themselves. Mercedes-Benz, by contrast, cites NLRB Union v. FLRA, 834 F.2d 191, 195-96 (D.C.Cir.1987), for the view that a party may always, as a defense to an enforcement proceeding, attack the agency’s authority to promulgate the regulations. In an amicus brief, General Motors reminds us that before Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), pre-enforcement review was normally unavailable altogether. It argues that the combination of Abbott Labs with the congressional practice of imposing time limits should not be taken as forbidding the method of challenging a rule that used to be the only one allowed. As there are plenty of statutes where Congress has coupled a time limit with explicit preclusion of review, see Frederick Davis, Judicial Review of Rulemaking: New Patterns and New Problems, 1981 Duke L.J. 279, 297-308 (charting various congressional treatments of the matter), there is a case for inferring, when Congress provided a time limit but no explicit preclusion, that it intended to leave review open at enforcement — at least as to the rule’s substantive validity. Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 550-51 (3rd Cir.1976).
These authorities are not, ultimately, relevant to the disposition of this case. As to the 1985 model year, Mercedes-Benz objects not to an agency rule but to a congressional standard. NHTSA comes into the picture only because under the Act it “may, by rule, amend the average fuel economy standard ... for model year 1985 ... to a level which [it] determine[s] is the maximum feasible average fuel economy level for [that] model year.” § 502(a)(4), 15 U.S.C. § 2002(a)(4) (1988) (emphasis added). Mercedes-Benz reads this provision as creating a duty in NHTSA “to reevaluate the feasibility of the MYs 1984-1985 CAFE standards in order to ensure their continued validity in light of changing circumstances.” Mercedes-Benz Brief at 42. Mercedes-Benz claims that falling gasoline prices in the early 1980s rendered the 27.5 mpg standard infeasible for 1985 (by raising consumer demand for larger cars), and that NHTSA was bound to change it.
In essence this argument uses congressional provision of an escape hatch (NHTSA’s amendment authority) to (a) turn Congress’s 27.5 mpg standard into the agency’s standard (b) undermine its substantive validity as to any period for which it ceased to be “feasible” as Congress used that term in § 502(a)(4).
This doesn’t add up. A congressional standard is, apart from constitutional infirmities, valid until it is changed. Congress here provided a mechanism for change. Mercedes-Benz failed to invoke that mechanism until after MY 1985 became history. When it did so, NHTSA refused to make the change on the ground that retroactive amendments would disrupt the statutory scheme, and we upheld that refusal. GMC v. NHTSA, 898 F.2d 165 (D.C.Cir.1990). Thus, the standard was lawful unless NHTSA had some duty, in the face of declining gas prices, to amend the 1985 standard on its own initiative.
The statutory text undercuts any argument that NHTSA had such a duty. Congress said that NHTSA “may” amend, not that it “must” or “shall” amend. § 502(a)(4), 15 U.S.C. § 2002(a)(4) (1988). A fortiori, where no one asks for an amendment, NHTSA is not obliged to produce one. Mercedes-Benz argues that because NHTSA must “monitor” the success of the CAFE program and send annual reports to Congress, § 502(a)(2), 15 U.S.C. § 2002(a)(2), it must (therefore) adjust the statutory standard where conditions are appropriate. The conclusion does not follow: requiring NHTSA to monitor and report on the effects of CAFE standards more naturally suggests that Congress simply wished to be kept informed as to the consequences of the law, presumably with a view to making its own adjustments.
Mercedes-Benz also believes that in the proceeding for enforcement of the MY 1985 standard, NHTSA should have entertained Mercedes-Benz’s attack on the MY 1984 standard. The 1984 standard is relevant to the fine for MY 1985 because, had it been lower, Mercedes-Benz would have earned credits that it could have applied against the fine for 1985.
Here, of course, we do not deal with a congressional standard, so we cannot say, as readily as we did for the 1985 standard, that it was valid until amended or until rendered unconstitutional by changed circumstances. But even if we assume Mercedes-Benz’s general claim — that one against whom a NHTSA-promulgated CAFE rule is enforced may challenge its validity at enforcement despite the passage of the statutory time limit — NHTSA prevails anyway, as enforcement of the 1984 standard came and went without Mercedes-Benz’s attacking it. Although Mercedes-Benz was not charged a fine for MY 1984, it was given notice of its shortfall of over $3 million, see J.A. 186 (NHTSA notice to Mercedes-Benz), and it could have seized that occasion for attacking the 1984 standard. See id.; see also § 502(i)(1)(E), 15 U.S.C. § 2002(Z)(1)(E); 49 C.F.R. §§ 511.-11(b)(4), 511.12(a). Although the shortfall produced no fine, being offset by previously accumulated credits, surely that was the moment of enforcement. Any broader view would mean that the object of enforcement of a CAFE standard in any given year (an enforcement) necessarily occurring somewhat after the end of that year) could reach back to attack the standard applying to any past year that directly or indirectly was a source of potential credits. The most expansive view of enforcement challenges could not demand so much.
As Mercedes-Benz’s fine was imposed on the basis of a congressional standard whose constitutionality is not questioned and which has not been amended, the petition for review is
Denied.
. The fine is $5 for every tenth of a mile per gallon by which the manufacturer’s CAFE level falls short of the standard, multiplied by the total number of cars it produced or imported that year. Id.
. In determining feasibility, NHTSA is to consider the "(1) technological feasibility; (2) economic practicality; (3) the effect of other Federal motor vehicle standards on fuel economy; and (4) the need of the Nation to conserve energy.” § 502(e), 15 U.S.C. § 2002(e) (1988).
. When a manufacturer exceeds the applicable CAFE standards in any model year, it earns "credits" that can be used to offset civil penalties in model years in which the manufacturer incurs a shortfall. See § 502(l), 15 U.S.C. § 2002(f). Credits may be carried forward or back for up to three model years. Id.
Question: What is the total number of respondents in the case? Answer with a number.
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.
UNITED STATES of America ex rel. William G. CARROL, Petitioner-Appellant, v. Robert E. MURPHY, Warden of Auburn State Prison, Auburn, New York, Respondent-Appellee.
No. 480, Docket 28764.
United States Court of Appeals Second Circuit.
Submitted June 2, 1964.
Decided June 8, 1964.
William G. Carrol, pro se.
Amy Juviler, Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., of the State of New York (Samuel A. Hirshowitz, First Asst. Atty. Gen., Barry Mahoney, Deputy Asst. Atty. Gen., on brief), for appellee.
Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.
PER CURIAM.
William G. Carrol, now serving a New York sentence for burglary and grand larceny, petitioned the District Court for the Northern District of New York for a writ of habeas corpus on the ground that his conviction, affirmed by the Appellate Division in People v. Carrol, 18 A.D.2d 934, 238 N.Y.S.2d 558 (2d Dept.1963), resulted in part from the admission of a confession allegedly made in order to procure the release of his wife from custody. Judge Foley dismissed the petition, initially on the ground of failure to complete the New York appellate process and later, after a petition for reconsideration had disclosed that leave to appeal to the Court of Appeals had been denied on the merits, on the basis that coram ~n,obir might be available in New York.
The proceedings in the New York courts subsequent to our decision, on rather similar grounds, in United States ex rel. Martin v. Murphy, 2 Cir., 319 F.2d 897 (1963), order vacated June 1, 1964, demonstrate the unavailability of corain noble in New York in cases where, as here, the voluntary character of a confession had been fully litigated at the criminal trial. See People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962); People v. Liss, 14 N.Y.2d 570, 248 N.Y.S.2d 660, 198 N.E.2d 45 (1964). Indeed, the state does not dispute this. The issue on the merits is serious, relator contending that he had been held for 46 hours and confessed only in order to procure the release of his wife in whose car stolen goods had been planted, and the state responding that the delay in relator's arraignment was sought by his own counsel, that there were good grounds for suspecting the wife and taking her into custody, and that the confession was made on the advice of relator's lawyer. Although all this was developed in the state criminal trial, the general verdict of the jury is not conclusive. Haynes v. Washington, 373 U.S. 503, 515-516, 83 S.Ct. 1336, 10 L.Ed. 513 (1963). We do not wish to decide this issue without further proceedings before the district judge. Accordingly we reverse the order dismissing the petition and remand for appropriate findings and conclusions by the District Court, either on the basis of the state court record alone or on taking further evidence if the judge considers that this would be helpful in resolving disputed factual issues.
Reversed and remanded.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
J. A. HORNER, et al., Plaintiffs in Error, v. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit.
January 26, 1926.)
No. 7143.
In Error to the District Court of the United States for the Western District of Oklahoma.
Lewis R. Morris and David Tant, both of Oklahoma City, Okl., for plaintiffs in error.
Leslie E. Salter, Asst. U.' S. Atty., of Tulsa, Okl.
PER CURIAM.
Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rules 23 and 24.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_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, Plaintiff-Appellee, v. Dario DICESARE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kathleen FLANNERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose MARIN, Defendant-Appellant.
Nos. 84-5013, 84-5021 and 84-5056.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 8, 1985.
Decided July 10, 1985.
Reinhardt, Circuit Judge, filed concurring opinion.
Christine W.S. Byrd, Los Angeles, Cal., for plaintiff-appellee.
Stanley I. Greenberg, Los Angeles, Cal., Manuel Araujo, Santa Ana, Cal., for defendant-appellant.
Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.
WALLACE, Circuit Judge:
DiCesare and Flannery appeal their convictions entered after conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Marin appeals his conviction after a jury trial. We have jurisdiction under 28 U.S.C. § 1291. We affirm DiCesare’s conviction, but vacate Flannery’s conviction and remand for an evidentiary hearing. We vacate Marin’s conviction and remand for a new trial.
I
In January 1983, the government began investigating DiCesare after he and his wife insisted on depositing large amounts of cash in the First Los Angeles bank without filing the currency transaction reports required by 31 C.F.R. §§ 103.22, 103.25 (1984). On July 25, 1983, Glendale police seized approximately 33 pounds of cocaine at a hotel room in Glendale. DiCesare arrived at the hotel room and provided inconsistent explanations of his presence to the police. He was arrested, but later released.
A team of law enforcement officers from the United States Customs Service, and the Los Angeles and Glendale police departments began a surveillance of DiCesare. During late August, this surveillance revealed meetings and rendezvous between DiCesare and codefendant Marin under secretive and suspicious circumstances. The police observed DiCesare and Flannery drive in DiCesare’s automobile to the home of a suspected drug trafficker. Upon their return to Flannery’s apartment, DiCesare switched vehicles to Flannery’s BMW and returned to his apartment in Marina del Rey. Later, DiCesare placed a suitcase in the BMW’s trunk. The officers requested a narcotics canine, which “alerted” to the presence of narcotics in the trunk.
On the basis of these observations, Special Agent Rodriguez, a customs officer who had participated in the surveillance, obtained a search warrant for DiCesare’s and Flannery’s apartments from a Glendale municipal court judge. The search of DiCesare’s apartment revealed large quantities of cash, cocaine, other narcotics trafficking paraphernalia, and several envelopes containing large amounts of currency addressed to an attorney. The BMW also was searched, and the suitcase in the trunk contained six pounds of cocaine and a balance scale. Both DiCesare and Marin were arrested in DiCesare’s apartment. When the officers searched Flannery’s apartment, they found cocaine, paraphernalia and cocaine trafficking notations. Flan-nery also was arrested.
When Marin was arrested, he had a small child with him. The officers took custody of the child, and then drove to Marin’s apartment in an attempt to locate the child’s mother. Outside Marin’s apartment, the officers stopped Liguori, DiCe-sare’s secretary, and searched her purse. It contained an envelope addressed to the same attorney as the envelope containing currency that had been found in DiCesare’s apartment. The envelope found in Liguo-ri’s purse contained $9,700 in cash. The officers arrested Liguori. A later inventory search of the purse revealed cocaine and a rental receipt for Marin’s apartment.
At Marin’s apartment, the officers met several Spanish-speaking occupants. Although it is not clear whether the officers received permission to enter or whether the occupants understood why the officers were present, the officers entered the apartment with the avowed purpose of returning the child. Once in the apartment, the officers observed the following items in plain view: a utility bill with DiCesare’s name on it, a note pad containing figures that, in the officers’ opinions, were consistent with cocaine trafficking, and a large green suitcase. The officers first secured the apartment, and then requested a narcotics canine. When the dog arrived, it entered the apartment and alerted to the suitcase. Two hours after their initial entry, the officers decided to obtain a search warrant, and detained the occupants for several hours while awaiting the warrant. The search revealed $2,000 in cash next to an envelope addressed to the same attorney as the envelopes found in DiCesare’s apartment and Liguori’s purse. The search of the suitcase revealed no contraband.
DiCesare, his wife Beatrice, Flannery, Marin, and Liguori were indicted for a conspiracy in violation of 21 U.S.C. § 846 (count one: conspiracy to possess or distribute cocaine). In addition, Flannery and the DiCesares were indicted for the following violations: 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute) (count four: DiCesare and Flannery; count two: DiCesare alone); 18 U.S.C. § 924(c) (count three: carrying a firearm during a felony) (DiCesare alone); 26 U.S.C. § 5861(h) (count five: possessing a firearm with an obliterated serial number) (DiCe-sare alone); 18 U.S.C. § 371 and 31 U.S.C. §§ 5313, 5322 (count six: conspiracy of and a willful failure to report a domestic currency transaction) (both DiCesares). The firearm serial violation was later dismissed. Beatrice DiCesare entered a guilty plea, while Liguori’s charges were dismissed after she cooperated; neither is a party to this appeal. Both DiCesare and Flannery entered conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Pursuant to the plea agreement, counts two and three were dismissed against DiCesare at the time of sentencing, and count four was dismissed against Flannery. Marin entered a plea of not guilty, and was convicted by a jury on count one.
II
We first address the issues raised by DiCesare and Flannery, who joined in the motions of her co-defendants.
A.
DiCesare and Flannery contend that the district court erred by denying their motions for hearings required by Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (Franks). There are five requirements for a sufficient motion for a Franks hearing: (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983) (Kiser).
We review the denial of a Franks hearing de novo. See, e.g., United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985). DiCesare argues that five statements or omissions in Rodriguez’s affidavit warranted a hearing: (1) he used information from a search that was quashed three years previously; (2) he referred to an earlier arrest but failed to relate that the state subsequently declined to prosecute; (3) he advised the magistrate that the apartment trash revealed evidence of narcotics transactions when the trash could have been commingled; (4) he failed to disclose the unreliability of the canine; and (5) he misrepresented that DiCesare was using an alias.
An examination of DiCesare’s moving papers reveals only two allegations that arguably suffice to show an intentional or reckless omission or misstatement by Rodriguez: (1) the inclusion of the results from a three year old search, and (2) whether the trash could have been examined since it was deposited in a large common container. Thus, the remaining three statements fail to qualify. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684; Kiser, 716 F.2d at 1271. There was no error in the denial of a hearing on those two statements, however, because a hearing is required only if the challenged information is necessary to find probable cause. See id. Even without these statements in the affidavit, we conclude that the other allegations in the affidavit supported a finding of probable cause. Therefore, we affirm the district court’s denial of DiCesare’s and Flannery’s motion for a Franks hearing.
B.
Both DiCesare and Flannery argue that the district court erroneously denied their motions for other evidentiary hearings. We review the denial of an evidentia-ry hearing for an abuse of discretion. See United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.), amended on other grounds, 609 F.2d 433 (1979) (order).
Flannery argues that the disputed facts surrounding the execution of the search warrant at her apartment on August 26 and a second entry on September 14 require an evidentiary hearing. On August 26, the officers executed the search warrant for Flannery’s and DiCesare’s apartments. When they arrived at Flannery’s apartment, the main door was open, but the screen door was closed and locked. In Flannery’s declaration, she stated that the officers forcibly entered and announced simultaneously, and that “[pjrior to breaking open the door, none of the officers knocked, announced their identity, or stated the purpose of their presence.” Upon entry, Flannery stated that she was assaulted and verbally abused. The officer declared, however, that he saw Flannery speaking on the telephone and announced the presence of the police. He stated that Flannery became hysterical, dropped the telephone, and turned as if to flee. He then forcibly entered to prevent possible destruction of evidence. He flatly denied the occurrence of an assault and verbal abuse. Flannery introduced photographic exhibits supporting her version of the entry, and a supporting declaration of her sister to whom she was speaking at the time of the entry. Flannery’s sister declared that she heard the sound of entry, an announcement, and then obscenities and statements indicating a beating was taking place.
Flannery asserts that the officers violated 18 U.S.C. § 3109, the “knock and announce” statute. If the officers did violate the statute, the evidence seized during the search must be suppressed. See Miller v. United States, 357 U.S. 301, 313-14, 78 S.Ct. 1190, 1197-98, 2 L.Ed.2d 1332 (1958). The sworn statements and exhibits present directly contradictory accounts of the sequence of events, and thus whether the officers complied with the statute. We conclude that Flannery made an offer of proof “sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Ledesma, 499 F.2d 36, 39 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). Thus, an evidentiary hearing was required. See id. Moreover, this error was not harmless, because the search uncovered cocaine, paraphernalia, and papers suggestive of narcotics trafficking. We conclude that the district court abused its discretion by denying an evidentiary hearing on the August entry.
On September 14, the officers returned to Flannery's apartment with an arrest warrant. There is no dispute that her outside door was open, and that the inner screen door was closed but unlocked. When the officers arrived, they observed guests seated at a dining table, but did not see Flannery. According to Flannery, the officers merely entered and apprehended her without knocking or announcing their identity and purpose. According to the officers, they asked for Flannery, announced their identity and when Flannery entered the room, then entered to arrest her. Once again, the affidavits present contradictory reports of these events. Although section 3109 by its terms applies only to search warrants, the Supreme Court has held that the same criteria apply to arrests. See Miller, 357 U.S. at 306, 78 S.Ct. at 1194. If the officers failed to announce their identity and purpose or simultaneously did so and entered, they violated the section 3109 criteria. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Such a violation would not be harmless, because the incident search revealed additional tangible evidence.
We conclude that the affidavits establish a sufficiently definite offer of proof to require a hearing on the September entry and that the district court abused its discretion by denying the hearing. Ledesma, 499 F.2d at 39.
Both DiCesare and Flannery also appeal the denial of evidentiary hearings on whether the search of their apartment exceeded the scope of the warrant. We conclude that the district court did not abuse its discretion. Such a hearing is required only when there is a dispute concerning issues of fact relevant to the legality of the search. Id. See also United States v. Hickock, 481 F.2d 377, 379 (9th Cir.1973) (denial of an evidentiary hearing on a motion to suppress is not error when the movant presents no factual issues). In this case, DiCesare and Flannery do not contest the inventory of items obtained pursuant to the search. Thus, there were no facts in dispute relating to the scope of the search and we are unable to conclude that the district court abused its discretion by denying the request for a hearing. See, e.g., id.
DiCesare challenges the denial of an evidentiary hearing on the search of his secretary Liguori’s handbag. DiCesare, however, has no standing to challenge that search. For standing purposes, the only connection between DiCesare and Liguori was their joint criminal venture. We have rejected standing on that basis alone. See United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 509, 83 L.Ed.2d 399 (1984).
C.
Flannery argues that the search warrant for her apartment was unsupported by probable cause. We review the magistrate’s determination of probable cause under the “substantial basis” standard. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984). The affidavit presented the magistrate with three factual situations: (1) several meetings during a three-day period with DiCesare, including one on a boat during which the participants appeared to be using cocaine; (2) Flannery and DiCesare drove together to the home of a suspected narcotics trafficker and switched vehicles upon their return; and (3) a narcotics canine alerted to a suitcase DiCesare placed in the trunk of Flannery’s BMW. The canine’s sniff of the trunk was not a “search” requiring probable cause. See, e.g., United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983); United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). We conclude that under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to search Flannery’s car and her apartment.
D.
DiCesare and Flannery assert that Rodriguez, as a Customs officer, lacked authority to obtain a state search warrant. They argue that both rule 41(a), Fed.R. Crim.P., and 26 U.S.C. § 7607(1) prohibit Rodriguez from executing a state search warrant. We need not decide this issue, because even if they 'are correct, suppression would not be required. Both state and federal officers participated in the investigation and executed the warrant; had it been a state officer rather than Rodriguez who had done so, its validity would not be in question. Therefore, if a defect existed, it was merely a technical defect, and did not implicate any constitutional violations. See, e.g., United States v. Payner, 447 U.S. 727, 731-33, 100 S.Ct. 2439, 2444-45, 65 L.Ed.2d 468 (1980) (evidence should not be suppressed unless the defendant’s constitutional rights are violated). Since the warrant was supported by probable cause and was not executed improperly, no circumstances are present that warrant suppression. See, e.g., United States v. Harrington, 681 F.2d 612, 614-15 (9th Cir.1982); United States v. Pennington, 635 F.2d 1387, 1390 (10th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).
E.
DiCesare and Flannery argue that the Customs Service narcotics canine training manual should have been disclosed, because it provided information to attack the reasonableness of relying on responses of the dogs. Federal regulations prohibit disclosure “to the extent that [it] would ... [d]isclose investigative techniques and procedures.” 19 C.F.R. § 103.12(g)(5) (1984). DiCesare and Flannery argue that disclosure was proper because the government's papers filed in opposition were not proper and because the manual contained portions that, if disclosed, would not compromise investigative techniques. The district court reviewed the manual in camera and determined that disclosure of chapters three through five of the manual would involve such a compromise, and declined to order discovery. Even if the district court erred, however, we conclude that any error was harmless because DiCesare and Flannery were provided with the most critical information: the actual training records of the dogs used in the searches, and chapters one and two of the manual on dog training.
F.
DiCesare and Flannery argue that the indictment was insufficiently specific, thereby necessitating a bill of particulars. A bill of particulars is appropriate when the indictment is insufficient to per- . mit the preparation of an adequate defense. See Fed.R.Crim.P. 7(f); see, e.g., United States v. Inryco, Inc., 642 F.2d 290, 295 (9th Cir.1981), cert. dismissed, 454 U.S. 1167, 102 S.Ct. 1045, 71 L.Ed.2d 324 (1982). DiCesare and Flannery requested a bill for three reasons: (1) to obtain the names of any unknown coconspirators; (2) to determine the exact date on which the conspiracy allegedly began; and (3) to delineate all other overt acts that comprised the charged activity. These reasons, however, do not warrant a bill of particulars. See, e.g., United States v. Long, 449 F.2d 288, 294-95 (8th Cir. 1971) (exact times), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972); Wilkins v. United States, 376 F.2d 552, 562-63 (5th Cir.) (names of all coconspirators), cert. denied, 389 U.S. 964, 88 S.Ct. 342, 19 L.Ed.2d 379 (1967); Cook v. United States, 354 F.2d 529, 531 (9th Cir.1965) (all overt acts). Moreover, neither DiCesare nor Flannery specified any prejudice or surprise resulting from the denial of the bill. See, e.g., United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979); United States v. Cooper, 577 F.2d 1079, 1089 (6th Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978). The district court’s denial of the motion was not an abuse of discretion.
G.
Both DiCesare and Flannery moved for a severance under rule 14, Fed. R.Crim.P., because they wished to testify on one count but not on all counts. To justify severance on this ground, a defendant “must show that he has important testimony to give on some counts and a strong need to refrain from testifying on those he wants severed.” United States v. Nolan, 700 F.2d 479, 483 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). Neither DiCesare nor Flannery made any such showing in their moving papers, and each failed to list “the specific testimony he will present about one offense, and his specific reasons for not testifying about others.” United States v. Bronco, 597 F.2d 1300, 1303 (9th Cir.1979) (Bronco).
Flannery also requested severance because she was not charged on several counts and feared prejudice from testimony relating to those offenses. Separate offenses, however, may be tried together if a conspiracy existed that links them together. See, e.g., United States v. Abushi, 682 F.2d 1289,1296-97 (9th Cir.1982). The conspiracy charged in count one was sufficient to link all the offenses. Moreover, Flannery’s allegations of prejudice are insufficient. The policy in favor of joint trials outweighs the prejudicial impact of testimony about other offenses unless the right to a fair trial is abridged. See, e.g., United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980); Bronco, 597 F.2d at 1303. Flannery makes no such allegation in her moving papers. Thus, the denial of the severance motions was not an abuse of discretion.
Ill
We need discuss only three of the issues raised by Marin.
A.
Marin asserts that the evidence obtained during the search of his apartment must be suppressed. We agree. The following factual sequence is undisputed. The officers arrived at Marin’s apartment with the child, sought permission to enter, and then entered, perhaps even with permission. Once inside the apartment, the officers observed a utility bill with DiCesare’s name on it, and a note pad containing figures consistent with cocaine trafficking. At this point, the officers secured the premises, questioned the occupants and called for a narcotics canine. Upon arrival, the dog alerted to a green suitcase in Marin’s living room. Based on this information, the officers sought a search warrant and executed it some six hours after the initial entry, during which time the occupants were detained.
In Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Supreme Court observed that “[different interests are implicated by a seizure than by a search. A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests.” Id., 104 S.Ct. at 3387 (citations omitted). The Court then upheld the seizure of a dwelling prior to the execution of a warrant because the agents had probable cause unconnected with the seizure. Id. at 3389. Although the Court pointed to two instances in which seizures of property have been permitted on less than probable cause, see id. at 3387 n. 6 (postal packages and suitcases at airports), the Court made it clear that probable cause is necessary to seize a private home. See id. at 3387-91.
The seizure of Marin’s apartment was completed before the narcotics canine arrived; the occupants already had been detained, and additional officers had arrived. Assuming a valid entry, when the seizure occurred the officers had observed only two plausible pieces of evidence in plain view — the utility bill and the note pad. We conclude that under the totality of the circumstances, these items fail to provide the probable cause necessary to seize or search the apartment. See Segura, 104 S.Ct. at 3386-87 (using the “totality of the circumstances” test).
The government argues, however, that the warrant should be upheld because the dog was merely another police officer, its entry was therefore lawful and not an incremental intrusion on Marin’s privacy or possessory interests, and its sniff of the green suitcase was not a search. We need not decide whether the dog’s entry should be treated like that of any police officer or whether the sniff of a suitcase in a private home is a search. Cf. United States v. Place, 462 U.S. at 707, 103 S.Ct. at 2644 (sniff of a suitcase in a public place is not a search). These issues are irrelevant in this case. Even if the dog’s entry and subsequent sniff were lawful, the acquisition of probable cause during an unlawful seizure does not cure the illegality and does not constitute an independent source of probable cause. See United States v. Taheri, 648 F.2d 598, 600-01 (9th Cir.1981). The use of the canine was a direct and proximate result of the illegal seizure. But for the seizure, the officers would not have requested the dog, and but for the alert, probable cause did not exist to search the apartment. See Segura, 104 S.Ct. at 3391-92. If we upheld the admissibility of this evidence, we would encourage police to seize private dwellings without probable cause, then to bring in trained dogs to locate contraband in order to obtain the probable cause necessary for a warrant. Officers cannot seize a dwelling to find probable cause — first they must have probable cause to seize a dwelling. See id. at 3390-91.
Finally, we conclude that the failure to suppress was not harmless beyond a reasonable doubt. The police uncovered $2,000 in cash next to an envelope identical to the envelopes found in DiCesare’s apartment and Liguori’s purse, with the name of the same attorney written on it. This is significantly probative evidence of Marin’s membership in the conspiracy, the only offense for which he was charged. Therefore, we hold that the district court erroneously failed to suppress this evidence and that Marin is entitled to a new trial without the admission of the evidence seized at his apartment.
B.
Marin also argues that the district court erred by denying his motion to strike evidence admitted against him from the Glendale seizure on July 25,1983, involving DiCesare. On that date, officers seized approximately 33 pounds of cocaine and other items. Marin argues that it was error to deny the motion because insufficient evidence connected him to the events of July 26. We review this issue for an abuse of discretion. Cf. United States v. Ordonez, 737 F.2d 793, 811 (9th Cir.1984) (evidentiary rulings in general).
The seizure of July 25 and the surrounding events were among the overt acts in the conspiracy indictment against Marin. The existence of separate conspiracies is a question of fact, not of law, to be determined by the jury. See, e.g., United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). A defendant need not participate in all phases of a conspiracy to be part of a single conspiracy. See, e.g., United States v. Burreson, 643 F.2d 1344, 1348 (9th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106 (1981).
The district court instructed the jury to acquit if they found that Marin was a member of an uncharged conspiracy. Marin did not object to this instruction, although he now argues that it was an inadequate multiple conspiracy instruction. A proper instruction would cure an erroneous denial of the motion to strike. Since Marin did not object, however, we can reverse only if the instruction was plainly erroneous. See, e.g., United States v. Hall, 650 F.2d 994, 998 (9th Cir.1981) (per curiam); Fed.R.Crim.P. 52(b).
Even if the government failed to show a connection between Marin and the conspiracy on July 25, Marin is not absolved of liability. “[A] conspirator who joins a pre-existing conspiracy is bound by all that has gone on before in the conspiracy.” United States v. Saavedra, 684 F.2d 1293, 1301 (9th Cir.1982). If sufficient evidence supports Marin’s joinder in the conspiracy, and the conspiracy included the July 25 events, then the evidence properly may be used against him. Since we are remanding for a new trial, we need not decide the factual question now. We conclude, however, that the district court did not abuse its discretion by denying the motion to strike, and that the curative jury instruction was not plainly erroneous.
C.
Our decision to vacate Marin’s conviction does not relieve us of the responsibility to address Marin’s argument that the evidence was insufficient because if he is correct, his retrial would be barred by the double jeopardy clause. See, e.g., United States v. Bibbero, 749 F.2d 581, 585-86 (9th Cir.1984) (Bibbero); United States v. Harmon, 632 F.2d 812, 814 (9th Cir.1980) (per curiam) (Harmon). See also Tibbs v. Florida, 457 U.S. 31, 40-42, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982). In our review, however, we must consider all the evidence admitted at trial, including illegally obtained evidence, because “[i]t is impossible to know what additional evidence the government might have produced had the faulty evidence been excluded at trial, or what theory the government might have pursued had the evidence before the jury been different.” Harmon, 632 F.2d at 814; see Bibbero, 749 F.2d at 586 n. 3.
Our review of the evidence in the light most favorable to the government convinces us that a rational trier of fact could have found the elements of a conspiracy beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984). Marin assisted DiCesare in counting large sums of cash. He and DiCesare met with couriers at the airport. They met several times under suspicious circumstances and with secretive precautions. Identical envelopes bearing the same attorney’s name were found in both Marin’s and DiCesare’s apartments. DiCe-sare maintained Marin’s apartment and DiCesare was involved in cocaine trafficking.
We need not address Marin’s other arguments since the illegal seizure of his apartment requires a new trial.
We affirm DiCesare’s conviction, vacate Marin’s conviction and remand for a new trial, and vacate Flannery’s conviction and remand for an evidentiary hearing on whether the officers complied with the knock and announce statute during both the August and September entries. Since we find no merit to any of Flannery’s other assigned errors, if the district court finds after a hearing that the officers complied with the statute or that their compliance was excused, the district court may re-enter her conviction.
No. 84-5013: AFFIRMED.
No. 84-5021: VACATED AND REMANDED.
No. 84-5056: VACATED AND REMANDED.
. The concurrence suggests that dogs cannot be used to search private homes without the consent of the occupants, even if probable cause exists. It also suggests that, unless such consent is obtained, the use of dogs will be a barbaric procedure reminiscent of Nazi Germany and the pre-Civil War South. The standard proposed, consent in addition to probable cause, is a much higher standard than that of the fourth amendment, in which we may rely solely on probable cause.
No court that has considered the use of canines has suggested that their use is subject to any standard other than probable cause or one of its exceptions. See, e.g., United States v. Place, 462 U.S. at 701-07, 103 S.Ct. at 2641-44; United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985) (recognizing that a dog sniff of the exterior of a dwelling is more intrusive than the search of luggage at an airport, thus requiring probable cause); United States v. Beale, 736 F.2d 1289, 1290-92 (9th Cir.) (en banc) (discussing whether a particular dog sniff is a search subject to the fourth amendment), cert. denied, — U.S.-, 105 S.Ct. 565, 83 L.Ed.2d 565 (1984).
Since the seizure of Marin’s apartment took place without probable cause, we do not need to decide whether the use of the dog required something more than probable cause. Nor do we believe that it is appropriate to reach out to do so. We leave for another case whether a dog that may sniff a suitcase in an airport without probable cause, and sniff the exterior of a dwelling pursuant to a valid warrant, may cross the threshold of a home if the officers accompanying it have probable cause.
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_prejud
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" 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".
UNITED STATES of America, Plaintiff-Appellant, v. Sylvester ANDREWS, Defendant-Appellee.
No. 87-3109.
United States Court of Appeals, Eleventh Circuit.
Aug. 4, 1988.
Thomas E. Morris, Ernst D. Mueller, Asst. U.S. Attys., Jacksonville, Fla., Patty Merkamp Stemler, U.S. Dept, of Justice, Appellate Section/Criminal Div., Washington, D.C., for plaintiff-appellant.
Rosemary T. Cakmis, H. Jay Stevens, Federal Public Defenders, Jacksonville, Fla., for defendant-appellee.
Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX , Circuit Judges.
COX, Circuit Judge, became a member of the court after this appeal had been orally argued but has participated in this decision after listening to a recording of oral argument. See Eleventh Circuit Rule 34-4(g).
EDMONDSON, Circuit Judge:
This case concerns an inconsistency between jury verdicts finding one alleged co-conspirator guilty and the other not guilty in a joint trial. The indictment charged that defendant-appellee Sylvester Andrews and his co-defendant Robert Ford “did ... conspire ... together with each other to distribute cocaine.” When Andrews and Ford were tried together, the jury found Andrews guilty of conspiracy while finding Ford not guilty. The district court then granted Andrews’ motion for a judgment of acquittal based upon Herman v. United States, 289 F.2d 362 (5th Cir.1961), in which we held that “where all but one of the charged conspirators are acquitted, the verdict against the one will not stand.” Id. at 368. A panel of this Court affirmed Andrews’ judgment, stating that “[w]hile we think the full court may wish to reconsider Herman and its progeny, we are, for now at least, overcome by precedent.” United States v. Andrews, No. 87-3109, at 7 (11th Cir. Oct. 27, 1987) [833 F.2d 1019 (table)] (unpublished, non-argument calendar opinion). The panel’s opinion has been vacated by the full Court; we now overrule Herman and reverse Andrews’ judgment of acquittal.
NO CONSTRUCTIVE AMENDMENT
As a preliminary matter, before revisiting the issue in Herman, we address a separate question raised by Andrews. The indictment in this case charged that Ford and Andrews “did ... conspire ... together with each other to distribute cocaine”; no reference was made to other co-conspirators, named or unnamed. At trial, the district court gave a standard jury instruction on conspiracy law. The instruction read, in part, as follows:
In order to establish a conspiracy offense, it is not necessary for the government to prove that all of the people named in the indictment were members of the scheme or that those who were members had entered into any formal type of agreement.
... What the evidence in the case must show beyond a reasonable doubt is, first, that two or more persons in some way or manner came to a mutual understanding to try to accomplish a common and unlawful plan as charged in the indictment;
Now, a government agent, such as a confidential source or a police officer, cannot be a co-conspirator inasmuch as he is working for the government. Accordingly, in order to find one or both of the defendants guilty of the crime of conspiracy, you must find that each of them conspired with someone other than a government agent.
Record, vol. 2, at 289-91. Andrews contends that these isolated statements of the district court constructively “amended” the indictment in violation of his due process rights. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). According to Andrews, this supposed amendment would have allowed the jury to convict him of conspiracy with someone other than Ford.
Because Andrews raised no objections to the supposedly improper jury instructions at trial, we review his claim under the “plain error” standard. See Fed. Rule Crim. Proc. 52(b). We examine the district court’s instructions to ascertain whether they “so modifie[d] the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury’s indictment.” United States v. Johnson, 713 F.2d 633, 643 (11th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). To justify reversal of a conviction, the court’s instructions, viewed in context, must have expanded the indictment “either literally or in effect.” See id.
In its directions to the jury, the district court read the indictment and repeatedly linked the instructions to the indictment. Likewise, the court described the crime of conspiracy in terms of the “defendants” — namely, Ford and Andrews — and not just “persons.” The jury was instructed that it “must follow all of [the court’s] instructions as a whole. You may not single out or disregard any of the Court’s instructions on the law.” Record, vol. 2, at 284. And, in response to a question from the jury, the court chose to send the jury the whole packet of instructions along with the indictment. Id. at 305-11.
It is also crucial to examine the court's instructions in the light of the trial itself. The Record clearly reveals that the government’s evidence and arguments targeted the alleged conspiracy between Ford and Andrews; never did the government attempt to show that Andrews conspired with some other person allegedly present at the scene of the crime. The government called no witnesses — other than the government informant — who arguably could have participated in the drug deal. In fact, at trial Andrews and Ford — not the government-argued that other persons were present and could have been involved in the deal.
In the seminal case of Stirone v. United States, the Supreme Court pronounced the “rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Stirone, 361 U.S. at 215-16, 80 S.Ct. at 272; see also id. at 217, 80 S.Ct. at 273 (“a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.”). The “amendment” in Stirone occurred when the district court gave an instruction, over defendant’s objection, that expanded the charge to include not only sand but steel shipments, and the government offered evidence of both. See id. at 214-15, 80 S.Ct. at 271-72. The Supreme Court concluded that, “While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Id. at 217, 80
5.Ct. at 273.
No such amendment occurred in the instant case. The government never argued anything other than a conspiracy between Ford and Andrews. The district court’s instructions, although perhaps ambiguous in part, did not impermissibly expand the scope of the indictment. Andrews was not tried for an offense different from the offenses alleged in the indictment. The Herman issue is properly before us.
HERMAN v. UNITED STATES
In Herman, defendant-appellant George Herman and several co-defendants were indicted for conspiracy to ship and to receive stolen goods. Herman, 289 F.2d at 365. At their joint trial, the jury found Herman guilty and found his co-defendants not guilty. Id. On appeal the Herman Court noted that “[a] conspiracy cannot be committed by a single individual acting alone; he must act in concert with at least one other person.” Id. at 368. From this irrefutable proposition we made a precipitous leap: “where all but one of the charged conspirators are acquitted, the verdict against the one will not stand.” Id. Subsequent decisions of this Court have severely limited Herman’s reach, and we have never actually used it to reverse another conviction. Still, until today the whole court had not been called upon to revisit the precise issue in Herman, which involved the acquittal of all but one jointly charged, jointly tried co-conspirators.
A long line of United States Supreme Court precedent provides that “inconsistent jury verdicts among multiple defendants tried together on essentially the same evidence do not provide grounds for overturning an otherwise valid jury verdict which has adequate evidentiary support.” United States v. Irvin, 787 F.2d 1506, 1512 (11th Cir.1986) (criticizing Herman). See, e.g., Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 475, 83 L.Ed.2d 461 (1984). Thus, the Supreme Court has stated that “[ijnconsis-tency in a verdict is not a sufficient reason for setting it aside. We have so held with respect to inconsistency between verdicts on separate charges against one defendant, ... and also with respect to verdicts that treat codefendants in a joint trial inconsistently.” Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981) (citing Dunn and Dotterweich)
Recently, the Supreme Court reaffirmed that “there is no reason to vacate [a criminal defendant’s] conviction merely because the verdicts cannot rationally be reconciled.” Powell, 469 U.S. at 69, 105 S.Ct. at 479. Citing Dunn, the Powell Court stated that “where truly inconsistent verdicts have been reached, ‘[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ” Id. at 64,105 S.Ct. at 476 (quoting from Dunn, 284 U.S. at 393, 52 S.Ct. at 190). The Court discussed three reasons for “insulating” jury verdicts from attack on “inconsistency” grounds — “the Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity.” Id., 469 U.S. at 69, 105 S.Ct. at 479. Thus, “with few exceptions, ... once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury’s collective judgment.” Id. at 67, 105 S.Ct. at 477.
Upon reconsideration of the consistency issue as a full Court, we overrule Herman. Consistent verdicts are unre-quired in joint trials for conspiracy: where all but one of the charged conspirators are acquitted, the verdict against the one can stand. The compelling rationale of Dunn and its progency, including Powell, brings us to this conclusion. Andrews urges us to view the jury’s verdict in favor of Ford as a finding that no conspiracy existed between Andrews and Ford. There are, however, explanations for this inconsistency that have nothing to do with whether Andrews actually conspired with Ford to commit a crime. It is just as likely that the admittedly inconsistent verdicts in this case are “the result of mistake, or lenity, and therefore [they] are subject to the Dunn rationale.” Powell, 469 U.S. at 68, 105 S.Ct. at 479. Under the circumstances, “the best course to take is simply to insulate jury verdicts from review on this ground.” Id. at 69, 105 S.Ct. at 479.
Our holding today leaves criminal defendants with substantial protection. As the Supreme Court noted in Powell, “a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts.” Id., 469 U.S. at 67, 105 S.Ct. at 478.
Enough evidence of a conspiracy between Andrews and Ford exists to support the jury’s verdict against Andrews. The testimony of a government informant, a police officer, and a detective implicated the two co-defendants in the sale of cocaine which formed the basis of the indictment in this case. Although Andrews attacks the credibility and accuracy of the government witnesses’ testimony, the evidence certainly “could support [a] rational determination of guilty beyond a reasonable doubt.” Id. (citing Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).
Accordingly, we REVERSE the district court’s judgment of acquittal. We remand the case so that the district court can reinstate Andrews’ conviction under Count One (the conspiracy charge) and so that sentencing can take place.
. Count One of the indictment charged as follows: “In or about early August, 1986, ... in the Middle Judicial District of Florida, [Ford and Andrews] ... did unlawfully ... combine, conspire, confederate and agree together with each other to distribute cocaine" in violation of 21 U.S.C. sections 841(a)(1) and 846. The jury found Andrews guilty, and Ford not guilty, under this count. Count Two charged that Ford and Andrews "did ... distribute and cause to be distributed a quantity of cocaine”, “on or about August 7, 1986,” in violation of 21 U.S.C. section 841(a)(1) & 18 U.S.C. section 2. Both Ford and Andrews were found not guilty under this count.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981.
.Record, vol. 2, at 283 (the jury must "And the defendants guilty of the crime charged in the indictment.”); id. at 288 ("the indictment charges ..id. ("you will be given a copy of the indictment’); id. ("Count One charges that the defendant knowingly and willfully conspired together to distribute cocaine"); id. at 290 (the evidence must “show beyond a reasonable doubt” that "two or more persons” engaged in an "unlawful plan as charged in the indictment"); id. at 294 ("a separate crime or offense is charged against one or more of the defendants in each count of the indictment"); id. at 295 ("The defendants are on trial only for the specific offenses alleged in the indictment”).
. Record, vol. 2, at 283; id. at 288; id. at 291; id. at 294; id. at 295.
. In district court, Andrews never contended that the government did otherwise. In his "Motion for Judgment of Acquittal," Andrews acknowledged that *‘[t]he only other persons Mr. Andrews arguably could have conspired with are ‘Git’ and Carlton Smith. Nonetheless, the Government has never alleged — not in the pleadings nor in argument at trial — that Mr. Andrews conspired with anyone other than Mr. Ford.” Record, vol. 1, no. 85, at 3. Again, on appeal, Andrews admits that “the prosecutor did not argue Andrews conspired with anyone other than Ford”, although “the prosecutor referred to the standard jury instruction to the effect that a conspiracy requires ‘two or more persons’ to have a mutual, unlawful understanding." Brief of Appellee Sylvester Andrews on Rehearing En Banc, at 16.
. As we have already noted, the district court gave an explicit instruction that "in order to find one or both of the defendants guilty of the crime of conspiracy, you must find that each one of them conspired with someone other than a government agent.” Record, vol. 2, at 291 (emphasis added).
. See, e.g., Record, vol. 2, at 239-45 (closing argument of Andrews’ attorney); id. at 254-56 (closing argument of Ford’s attorney).
. Ambiguity does not necessarily mean that an alteration of the indictment occurred. And, "[a]s the law of this Circuit makes clear, it is not sufficient simply to demonstrate that an instruction had the potential to confuse a jury.” United States v. Pruitt, 763 F.2d 1256, 1260 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed. 896 (1986).
. Nor do we perceive that a variance occurred such as to prejudice the substantial rights of Andrews. See United States v. Figueroa, 666 F.2d 1375, 1379 (11th Cir.1982) (distinguishing a "constructive amendment" from a "simple variance.”)
. See, e.g., United States v. Mosquera, 779 F.2d 628, 630 (11th Cir.1986) (a single conviction will stand so long as the indictment alleges that the defendant conspired with others “known and unknown” and sufficient evidence supports the conviction); United States v. Irvin, 787 F.2d 1506, 1512-13 (11th Cir.1986) (Herman does not apply when some or all of the alleged co-conspirators were acquitted in a separate trial). Several opinions have strongly questioned the current validity and correctness of Herman. See, e.g., id. (citing United States v. Espinosa-Cerpa, 630 F.2d 328 (5th Cir.1980)).
. For general background on the "rule of consistency", see Comment, The Unnecessary Rule of Consistency in Conspiracy Trials, 135 U.Pa.L. Rev. 223 (1986).
. None of the "exceptions” noted by the Supreme Court in Powell, 469 U.S. at 67, 69 n. 8, 105 S.Ct. at 477, 479 n. 8, even remotely applies to the instant appeal.
. The district court correctly determined that Herman controlled its decision to acquit Andrews. Likewise, in affirming Andrews’ judgment of acquittal, our panel “recognize[d] that the inconsistent verdicts reached in Powell differ conceptually from the ‘inconsistency’ that underlies this appeal; so Herman was not overruled by Powell and Herman continues to bind us when ‘all but one of the charged conspirators are acquitted_’” Andrews, No. 87-3109, at 5-6 (quoting Herman, 289 F.2d at 368). Absent a clear, contrary holding by the Supreme Court, our panel and the district court adhered to our usual policy and considered themselves bound by Herman.
In Powell, the Supreme Court upheld a jury verdict that found the defendant-appellant guilty of using the telephone to facilitate a felony, yet innocent of the predicate felony. Powell, 469 U.S. at 60, 105 S.Ct. at 474. The instant case differs conceptually from Powell because Andrews was found guilty under a conspiracy charge that named only him and one other co-defendant, Ford, who was found not guilty. Cf. Dotterweich, 320 U.S. at 279, 64 S.Ct. at 135 (affirming conviction under verdict finding the president of a corporation guilty of introducing adulterated or misbranded drugs into commerce, but acquitting the corporation of the same charge); Harris, 454 U.S. at 340-48, 102 S.Ct. at 462-66 (denying relief to habeas petitioner who was convicted in state court in joint trial even though petitioner’s three co-defendants — who were found not guilty — allegedly participated in the same burglary).
. It is noteworthy that the United States Court of Appeals for the Ninth Circuit recently has rejected its own traditional "inconsistent jury verdict" rule as it pertains to conspiracies. The court stated as follows:
Because of the [United States v. Powell] decision, the broad language from [Lubin v. United States, 313 F.2d 419, 422-23 (9th Cir.1963) ] to the effect that the acquittal of all but one of the alleged co-conspirators requires the acquittal of the remaining defendant can no longer be relied upon.
United States v. Valles-Valencia, 823 F.2d 381, 382 (9th Cir.), modifying 811 F.2d 1232 (9th Cir.1987). Because they perceived the significance of Powell to be so clear and powerful, the Valles-Valencia panel even rejected the need for an en banc hearing before overruling the circuit’s precedent. Id.
. We believe that Judge Clark’s view of the Record — especially his transcript of the tape recording — invades the jury’s province as factfinder and, more important, is mistaken. The following facts are undisputed. The jury instructions — to which there was no objection — told the jury that "the defendants are on trial only for the specific offenses alleged in the indictment.” Andrews was indicted for conspiring only with Ford. The government argued for and introduced evidence of the Andrews-Ford conspiracy. Although on cross-examination the government, seeking to impeach Andrews’ story that others were involved, asked questions about his direct testimony, the government never argued that Andrews conspired with someone other than Ford or that Andrews could be convicted for conspiring with someone other than Ford, From these facts, we conclude that Andrews was tried for conspiring with Ford.
These facts make our case different from the cases cited by Judge Clark, including United States v. Salinas, 654 F.2d 319 (5th Cir. Unit A 1981), the case upon which he relies most heavily. In Salinas, Salinas was charged in the indictment with aiding and abetting a specific bank president, Woodul, in the misapplication of bank funds. At trial, no evidence linked Woodul to the improper bank loan. Put differently, no evidence supported the offense as charged in the indictment. The evidence showed that the aided and abetted person was actually another bank officer, Nance. The trial judge — faced with this difficulty — simply charged the jury that, if Salinas aided any bank officer, Salinas could be found guilty. A Fifth Circuit panel concluded that Salinas had not been tried and convicted for the same offense for which he had been indicted. We accept Salinas as precedent, but this case is unlike Salinas. In this case, evidence supported the offense charged in the indictment, and the trial judge repeatedly tied his jury instructions to the specific crime as charged in the indictment. For a case more similar to ours and rejecting a constructive amendment claim, see United States v. Ylda, 653 F.2d 912 (5th Cir. Unit A 1981).
On the Herman issue, Judge Clark says that this case is controlled by Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534 (1944). But, Hartzel cannot control this case because Hartzel is not an inconsistent jury verdict case. In Hartzel, the “only co-conspirators of petitioner named in the indictment” had their convictions set aside by judges on the ground of insufficient evidence. The Supreme Court did not address the significance of an acquittal of co-conspirators by a jury where the evidence would have allowed a verdict of guilty. Here, the trial judge found enough evidence of conspiracy to let the case against both defendants go to the jury, and we have found sufficient evidence to support a guilty verdict against Ford (had the jury found him guilty) or Andrews or both. Powell teaches us that a not-guilty verdict for Ford is not the same thing as a finding of insufficient evidence to allow a conviction.
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
sc_authoritydecision
|
B
|
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.
OREGON v. ELSTAD
No. 83-773.
Argued October 3, 1984
Decided March 4, 1985
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 318. Stevens, J., filed a dissenting opinion, post, p. 364.
David B. Frohnmayer, Attorney General of Oregon, argued the cause for petitioner. With him on the brief were William F. Gary, Deputy Attorney General, James E. Mountain, Jr., Solicitor General, and Thomas H. Denney, Virginia L. Linder, and Stephen F. Peifer, Assistant Attorneys General.
Gary D. Babcock argued the cause for respondent. With him on the brief was Stephen J. Williams.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and David A. Strauss; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales.
Justice O’Connor
delivered the opinion of the Court.
This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), without more, “taints” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent’s signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari, 465 U. S. 1078 (1984), and we now reverse.
I
In December 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk County, Ore., was burglarized. Missing were art objects and furnishings valued at $150,000. A witness to the burglary contacted the Polk County Sheriff’s Office, implicating respondent Michael El-stad, an 18-year-old neighbor and friend of the Grosses’ teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad’s mother answered the door. She led the officers to her son’s room where he lay on his bed, clad in shorts and listening to his stereo. The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent’s mother to step into the kitchen, where he explained that they had a warrant for her son’s arrest for the burglary of a neighbor’s residence. Officer Burke remained with Elstad in the living room. He later testified:
“I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house. And at that point I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, ‘Yes, I was there.’” App. 19-20.
The officers then escorted Elstad to the back of the patrol car. As they were about to leave for the Polk County Sheriff’s office, Elstad’s father arrived home and came to the rear of the patrol car. The officers advised him that his son was a suspect in the burglary. Officer Burke testified that Mr. Elstad became quite agitated, opened the rear door of the car and admonished his son: “I told you that you were going to get into trouble. You wouldn’t listen to me. You never learn.” Id., at 21.
Elstad was transported to the Sheriff’s headquarters and approximately one hour later, Officers Burke and McAllister joined him in McAllister’s office. McAllister then advised respondent for the first time of his Miranda rights, reading from a standard card. Respondent indicated he understood his rights, and, having these rights in mind, wished to speak with the officers. Elstad gave a full statement, explaining that he had known that the Gross family was out of town and had been paid to lead several acquaintances to the Gross residence and show them how to gain entry through a defective sliding glass door. The statement was typed, reviewed by respondent, read back to him for correction, initialed and signed by Elstad and both officers. As an afterthought, Elstad added and initialed the sentence, “After leaving the house Robby & I went back to [the] van & Robby handed me a small bag of grass.” App. 42. Respondent concedes that the officers made no threats or promises either at his residence or at the Sheriff’s office.
Respondent was charged with first-degree burglary. He was represented at trial by retained counsel. Elstad waived his right to a jury, and his case was tried by a Circuit Court Judge. Respondent moved at once to suppress his oral statement and signed confession. He contended that the statement he made in response to questioning at his house “let the cat out of the bag,” citing United States v. Bayer, 331 U. S. 532 (1947), and tainted the subsequent confession as “fruit of the poisonous tree,” citing Wong Sun v. United States, 371 U. S. 471 (1963). The judge ruled that the statement, “I was there,” had to be excluded because the defendant had not been advised of his Miranda rights. The written confession taken after Elstad’s arrival at the Sheriff’s office, however, was admitted in evidence. The court found:
“[H]is written statement was given freely, voluntarily and knowingly by the defendant after he had waived his right to remain silent and have counsel present which waiver was evidenced by the card which the defendant had signed. [It] was not tainted in any way by the previous brief statement between the defendant and the Sheriff’s Deputies that had arrested him.” App. 45.
Elstad was found guilty of burglary in the first degree. He received a 5-year sentence and was ordered to pay $18,000 in restitution.
Following his conviction, respondent appealed to the Oregon Court of Appeals, relying on Wong Sun and Bayer. The State conceded that Elstad had been in custody when he made his statement, “I was there,” and accordingly agreed that this statement was inadmissible as having been given without the prescribed Miranda warnings. But the State maintained that any conceivable “taint” had been dissipated prior to the respondent’s written confession by McAllister’s careful administration of the requisite warnings. The Court of Appeals reversed respondent’s conviction, identifying the crucial constitutional inquiry as “whether there was a sufficient break in the stream of events between [the] inadmissible statement and the written confession to insulate the latter statement from the effect of what went before.” 61 Ore. App. 673, 676, 658 P. 2d 552, 554 (1983). The Oregon court concluded:
“Regardless of the absence of actual compulsion, the coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible. In determining whether it has been dissipated, lapse of time, and change of place from the original surroundings are the most important considerations.” Id., at 677, 658 P. 2d, at 554.
Because of the brief period separating the two incidents, the “cat was sufficiently out of the bag to exert a coercive impact on [respondent’s] later admissions.” Id., at 678, 658 P. 2d, at 555.
The State of Oregon petitioned the Oregon Supreme Court for review, and review was declined. This Court granted certiorari to consider the question whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.
II
The arguments advanced in favor of; suppression of respondent’s written confession rely heavily on metaphor. One metaphor, familiar from the Fourth Amendment context, would require that respondent’s confession, regardless of its integrity, voluntariness, and probative value, be suppressed as the “tainted fruit of the poisonous tree” of the Miranda, violation. A second metaphor questions whether a confession can be truly voluntary once the “cat is out of the bag.” Taken out of context, each of these metaphors can be misleading. They should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment. The Oregon court assumed and respondent here contends that a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right, so that evidence uncovered following an unwarned statement must be suppressed as “fruit of the poisonous tree.” We believe this view misconstrues the nature of the protections afforded by Miranda warnings and therefore misreads the consequences of police failure to supply them.
A
Prior to Miranda, the admissibility of an accused’s in-custody statements was judged solely by whether they were “voluntary” within the meaning of the Due Process Clause. See, e. g., Haynes v. Washington, 373 U. S. 503 (1963); Chambers v. Florida, 309 U. S. 227 (1940). If a suspect’s statements had been obtained by “techniques and methods offensive to due process,” Haynes v. Washington, 373 U. S., at 515, or under circumstances in which the suspect clearly had no opportunity to exercise “a free and unconstrained will,” id., at 514, the statements would not be admitted. The Court in Miranda required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment. The Fifth Amendment, of course, is not concerned with nontestimonial evidence. See Schmerber v. California, 384 U. S. 757, 764 (1966) (defendant may be compelled to supply blood samples). Nor is it concerned with moral and psychological pressures to confess emanating from sources other than official coercion. See, e. g., California v. Beheler, 463 U. S. 1121, 1125, and n. 3 (1983) (per curiam); Rhode Island v. Innis, 446 U. S. 291, 303, and n. 10 (1980); Oregon v. Mathiason, 429 U. S. 492, 495-496 (1977). Voluntary statements “remain a proper element in law enforcement.” Miranda v. Arizona, 384 U. S., at 478. “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.... Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” United States v. Washington, 431 U. S. 181, 187 (1977). As the Court noted last Term in New York v. Quarles, 467 U. S. 649, 654 (1984) (footnote omitted):
“The Miranda Court, however, presumed that interrogation in certain custodial circumstances is inherently coercive and... that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. The prophylactic Miranda warnings therefore are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.’ Michigan v. Tucker, 417 U. S. 433, 444 (1974); see Edwards v. Arizona, 451 U. S. 477, 492 (1981) (Powell, J., concurring). Requiring Miranda warnings before custodial interrogation provides ‘practical reinforcement’ for the Fifth Amendment right.”
Respondent’s contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as “fruit of the poisonous tree” assumes the existence of a constitutional violation. This figure of speech is drawn from Wong Sun v. United States, 371 U. S. 471 (1963), in which the Court held that evidence and witnesses discovered as a result of a search in violation of the Fourth Amendment must be excluded from evidence. The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment violation is a confession. It is settled law that “a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is ‘sufficiently an act of free will to purge the primary taint.’” Taylor v. Alabama, 457 U. S. 687, 690 (1982) (quoting Brown v. Illinois, 422 U. S. 590, 602 (1975)).
But as we explained in Quarles and Tucker, a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the “fruits” doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. Dunaway v. New York, 442 U. S. 200, 216-217 (1979); Brown v. Illinois, 422 U. S., at 600-602. “The exclusionary rule,... when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” Id., at 601. Where a Fourth Amendment violation “taints” the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence. Taylor v. Alabama, supra, at 690. Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.
The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fif th Amendment violation. The Fif th Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm. See New York v. Quarles, supra, at 654; Michigan v. Tucker, 417 U. S. 433, 444 (1974).
But the Miranda presumption, though irrebuttable for purposes of the prosecution’s case in chief, does not require that the statements and their fruits be discarded as inherently tainted. Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution’s case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination. Harris v. New York, 401 U. S. 222 (1971). The Court in Harris rejected as an “extravagant extension of the Constitution,” the theory that a defendant who had confessed under circumstances that made the confession inadmissible, could thereby enjoy the freedom to “deny every fact disclosed or discovered as a ‘fruit’ of his confession, free from confrontation with his prior statements” and that the voluntariness of his confession would be totally irrelevant. Id., at 225, and n. 2. Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, “the primary criterion of admissibility [remains] the ‘old’ due process voluntariness test.” Schul-hofer, Confessions and the Court, 79 Mich. L. Rev. 865, 877 (1981).
In Michigan v. Tucker, supra, the Court was asked to extend the Wong Sun fruits doctrine to suppress the testimony of a witness for the prosecution whose identity was discovered as the result of a statement taken from the accused without benefit of full Miranda warnings. As in respondent’s case, the breach of the Miranda procedures in Tucker involved no actual compulsion. The Court concluded that the unwarned questioning “did not abridge respondent’s constitutional privilege... but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege.” 417 U. S., at 446. Since there was no actual infringement of the suspect’s constitutional rights, the case was not controlled by the doctrine expressed in Wong Sun that fruits of a constitutional violation must be suppressed. In deciding “how sweeping the judicially imposed consequences” of a failure to administer Miranda warnings should be, 417 U. S., at 445, the Tucker Court noted that neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the witness’ testimony. The unwarned confession must, of course, be suppressed, but the Court ruled that introduction of the third-party witness’ testimony did not violate Tucker’s Fifth Amendment rights.
We believe that this reasoning applies with equal force when the alleged “fruit” of a noncoercive Miranda violation is neither a witness nor an article of evidence but the accused’s own voluntary testimony. As in Tucker, the absence of any coercion or improper tactics undercuts the twin rationales— trustworthiness and deterrence — for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities. The Court has often noted: “‘[A] living witness is not to be mechanically equated with the proffer of inanimate eviden-tiary objects illegally seized.... [T]he living "witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he wall give.”’ United States v. Ceccolini, 435 U. S. 268, 277 (1978) (emphasis added) (quoting from Smith v. United States, 117 U. S. App. D. C. 1, 3-4, 324 F. 2d 879, 881-882 (1963) (Burger, J.) (footnotes omitted), cert. denied, 377 U. S. 954 (1964)).
Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into “custody” or his freedom has otherwise been significantly restrained. Miranda v. Arizona, 384 U. S., at 478. Unfortunately, the task of defining “custody” is a slippery one, and “policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.” Michigan v. Tucker, supra, at 446. If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
B
The Oregon court, however, believed that the unwarned remark compromised the voluntariness of respondent’s later confession. It was the court’s view that the prior answer and not the unwarned questioning impaired respondent’s ability to give a valid waiver and that only lapse of time and change of place could dissipate what it termed the “coercive impact” of the inadmissible statement. When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession. See Westover v. United States, decided together with Miranda v. Arizona, 384 U. S., at 494; Clewis v. Texas, 386 U. S. 707 (1967). The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against compulsory self-incrimination has not been intelligently exercised. See New York v. Quarles, 467 U. S., at 654, and n. 5; Miranda v. Arizona, supra, at 457. Of the courts that have considered whether a properly warned confession must be suppressed because it was preceded by an unwarned but clearly voluntary admission, the majority have explicitly or implicitly recognized that Westover's requirement of a break in the stream of events is inapposite. In these circumstances, a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an “act of free will.” Wong Sun v. United States, 371 U. S., at 486.
The Oregon court nevertheless identified a subtle form of lingering compulsion, the psychological impact of the suspect’s conviction that he has let the cat out of the bag and, in so doing, has sealed his own fate. But endowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect’s informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions. As the Court remarked in Bayer:
“[AJfter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” 331 U. S., at 540-541.
Even in such extreme cases as Lyons v. Oklahoma, 322 U. S. 596 (1944), in which police forced a full confession from the accused through unconscionable methods of interrogation, the Court has assumed that the coercive effect of the confession could, with time, be dissipated. See also Westover v. United States, supra, at 496.
This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. The Oregon court, by adopting this expansive view of Fifth Amendment compulsion, effectively immunizes a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. See 61 Ore. App., at 679, 658 P. 2d, at 555 (Gillette, P. J., concurring). This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to. the individual’s interest in not being compelled to testify against himself. Cf. Michigan v. Mosley, 423 U. S. 96, 107-111 (1975) (White, J., concurring in result). When neither the initial nor the subsequent admission is coerced, little, justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.
There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a “guilty secret” freely given in response to an unwarned but non-coercive question, as in this case. Justice Brennan’s contention that it is impossible to perceive any causal distinction between this case and one involving a confession that is coerced by torture is wholly unpersuasive. Certainly, in respondent’s case, the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at
Though belated, the reading of respondent’s rights was undeniably complete. McAllister testified that he read the Miranda warnings aloud from a printed card and recorded best. It is difficult to tell with certainty what motivates a suspect to speak. A suspect’s confession may be traced to factors as disparate as “a prearrest event such as a visit with a minister,” Dunaway v. New York, 442 U. S., at 220 (Stevens, J., concurring), or an intervening event such as the exchange of words respondent had with his father. We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.
I — I Elstad’s responses. There is no question that respondent knowingly and voluntarily waived his right to remain silent before he described his participation in the burglary. It is also beyond dispute that respondent’s earlier remark was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either “interrogation” was coercive. The initial conversation took place at midday, in the living room area of respondent’s own home, with his mother in the kitchen area, a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest. The arresting officers’ testimony indicates that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect but to notify his mother of the reason for his arrest. App. 9-10.
The State has conceded the issue of custody and thus we must assume that Burke breached Miranda procedures in failing to administer Miranda warnings before initiating the discussion in the living room. This breach may have been the result of confusion as to whether the brief exchange qualified as “custodial interrogation” or it may simply have reflected Burke’s reluctance to initiate an alarming police procedure before McAllister had spoken with respondent’s mother. Whatever the reason for Burke’s oversight, the incident had none of the earmarks of coercion. See Rawlings v. Kentucky, 448 U. S. 98, 109-110 (1980). Nor did the officers exploit the unwarned admission to pressure respondent into waiving his right to remain silent.
Respondent, however, has argued that he was unable to give a fully informed waiver of his rights because he was unaware that his prior statement could not be used against him. Respondent suggests that Officer McAllister, to cure this deficiency, should have added an additional warning to those given him at the Sheriff’s office. Such a requirement is neither practicable nor constitutionally necessary. In many cases, a breach of Miranda procedures may not be identified as such until long after full Miranda warnings are administered and a valid confession obtained. See, e. g., United States v. Bowler, 561 F. 2d 1323, 1324-1325 (CA9 1977) (certain statements ruled inadmissible by trial court); United States v. Toral, 536 F. 2d 893, 896 (CA9 1976); United States v. Knight, 395 F. 2d 971, 974-975 (CA2 1968) (custody unclear). The standard Miranda warnings explicitly inform the suspect of his right to consult a lawyer before speaking. Police officers are ill-equipped to pinch-hit for counsel, construing the murky and difficult questions of when “custody” begins or whether a given unwarned statement will ultimately be held admissible. See Tanner v. Vincent, 541 F. 2d 932, 936 (CA2 1976), cert. denied, 429 U. S. 1065 (1977).
This Court has never embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness. See California v. Beheler, 463 U. S., at 1125-1126, n. 3; McMann v. Richardson, 397 U. S. 759, 769 (1970). If the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison v. United States, 392 U. S. 219 (1968), precludes use of that testimony on retrial. “Having ‘released the spring’ by using the petitioner’s unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.” Id., at 224-225. But the Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State’s evidence, does so involuntarily. Frazier v. Cupp, 394 U. S. 731, 739 (1969). The Court has also rejected the argument that a defendant’s ignorance that a prior coerced confession could not be admitted in evidence compromised the voluntariness of his guilty plea. McMann v. Richardson, supra, at 769. Likewise, in California v. Beheler, supra, the Court declined to accept defendant’s contention that, because he was unaware of the potential adverse consequences of statements he made to the police, his participation in the interview was involuntary. Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and the quality of the evidence in the case.
J — I <1
When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State’s case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. See New York v. Quarles, 467 U. S., at 655-656. The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses, a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect’s will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing “taint” to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.
The judgment of the Court of Appeals of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Stevens expresses puzzlement at our statement that a simple failure to administer Miranda warnings is not in itself a violation of the Fifth Amendment. Yet the Court so held in New York v. Quarles, 467 U. S. 649, 654 (1983), and Michigan v. Tucker, 417 U. S. 433, 444 (1974). The Miranda Court itself recognized this point when it disclaimed any intent to create a “constitutional straitjacket” and invited Congress and the States to suggest “potential alternatives for protecting the privilege.” 384 U. S., at 467. A Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements. It has never been remotely suggested that any statement taken from Mr. Elstad without benefit of Miranda warnings would be admissible.
See, e. g., United States v. Bowler, 561 F. 2d 1323, 1326 (CA9 1977); Tanner v. Vincent, 541 F. 2d 932 (CA2 1976); United States v. Toral, 536 F. 2d 893, 896-897 (CA9 1976); United States v. Knight, 395 F. 2d 971, 975 (CA21968); State v. Montes, 136 Ariz. 491,496-497, 667 P. 2d 191,196-197 (1983); State v. Derrico, 181 Conn. 151, 166-167, 434 A. 2d 356, 365-366, cert. denied, 449 U. S. 1064 (1980); State v. Holt, 354 So. 2d 888, 890 (Fla. App.), cert. denied, 361 So. 2d 832 (Fla. 1978); Fried v. State, 42 Md. App. 643, 644-648, 402 A. 2d 101, 102-104 (1979); Commonwealth v. White, 353 Mass. 409, 232 N. E. 2d 335 (1967); State v. Sickels, 275 N. W. 2d 809, 813-814 (Minn. 197
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_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LORD BALTIMORE PRESS, INC., Respondent.
No. 8416.
United States Court of Appeals Fourth Circuit.
Argued Jan. 5, 1962.
Decided March 19, 1962.
Glen M. Bendixsen, Attorney, National Labor Relations Board (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Attorney, National Labor Relations Board, on the brief), for petitioner.
Earle K. Shawe, Baltimore, Md. (Sidney J. Barban, William J. Rosenthal, and Larry M. Wolf, Baltimore, Md., on the brief), for respondent.
Before SOPER, BRYAN and BELL, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge.
The order of the National Labor Relations Board requiring The Lord Baltimore Press to bargain with Amalgamated Lithographers of America is here resisted, fundamentally, upon the assertion that the election favoring the union as the collective bargaining representative of Baltimore’s employees was unfairly conducted. The immediate challenge is to the Board’s refusal to accord Baltimore a hearing on its exceptions to the election.
We stay the order’s enforcement because of the Board’s denial of the hearing. The election’s validity is thus made a premature question, to await the outcome of the further proceedings we order.
On May 8, 1959 Baltimore consented to an election, under the supervision of the Board’s Regional Director, to ascertain whether a certain unit of its employees desired Amalgamated as its bargaining representative. The election was held June 11, 1959 and the union won. Next day Baltimore filed objections to the election, at the same time asking that it be set aside. Presently pertinent, the objections stated that:
“(1) During the period immediately prior to the election Employer supervisory personnel engaged in. organizing and other activities on behalf of the Union, by which employees were induced, coerced and caused to favor the Union, sign cards for the Union and vote for the Union, all of which was unknown to the Employer until after the election.”
The supervisory personnel to which Baltimore had reference was one Crestón E. Ford, the foreman of its lithographic department. Following an ex parte investigation, including in camera interviews with the witnesses of whom it was apprised by the employer, the Regional Director concluded that the objections should be overruled and Amalgamated certified as the exclusive representative of ‘the Baltimore employees. To this report Baltimore filed exceptions. The Board denied them without a hearing, thinking a hearing unwarranted and unsought, and accordingly certified Amalgamated.
Thereafter, Baltimore declined to bargain with the union, contending that its selection as the collective agent was invalid. At the union’s instance the Board issued a complaint accusing Baltimore of an unfair labor practice as defined in § 8(a) (5) and (1) of the Act, 29 U.S. C.A. § 158(a) (5), (1). In the hearing on this complaint before the Examiner, Baltimore proffered oral and documentary evidence purporting to delineate the activities of Ford. Quoting from the offer made before the Examiner, the evidence it tendered would show that
“He [Ford] said that he knew the company had done and would do some dirty tricks to us and told them to look at what they have done to me. Further, that Mr. Ford told employees under his supervision ‘you fellows better sign a card and send them in’ under circumstances in which it was perfectly clear that he was talking about union cards which were the only cards being circulated in the plant at the time.
“Further, that Mr. Ford told witnesses under his supervision that the plant superintendent was just a hatchet man and the men had better get together and get the union in.
“Further, that many times and immediately before the election Mr. Ford stated to employees under his supervision that the plant wasn’t a family affair any longer, that the men didn’t any longer have the security they had before and that the fellows ought to have a union to protect themselves.”
This evidence the Examiner declined to hear. He was of the opinion that as the Board had already decided the dispute in the representation proceeding, the question was no longer open. Whereupon on his recommendation the Board entered the order it now seeks to enforce.
With the respondent Baltimore, we think it should have been heard on its exceptions in the election proceeding. Indwelling, of course, was a request for a hearing upon them. The Board’s Buies and Regulations, Section 102.69, allowed such a hearing. But we need not now enlarge on the point because, in the absence of a hearing at that stage, the employer should certainly have been accorded a hearing thereon in the complaint proceedings, and we discuss the point under that head.
The Examiner and the Board clearly erred in rejecting the testimony when last offered. Ford’s activities — if true — could not be lightly brushed off. The Board has repeatedly declared, and again recognizes in its brief here, that advocacy of the union by a supervisor-employee, unknown to the employer, is cause for annulment of the election. Shovel Supply Co., 118 N.L.R.B. 315 (1957); Parkchester Machine Corp., 72 N.L.R.B. 1410 (1947); Robbins Tire & Rubber Co., 72 N.L.R.B. 157 (1947). Awareness by Baltimore of Ford’s aiding of the union is not indicated in the evidence. Entreaties and importunities of the kind here suggested were not permissible and protected — “privileged”— under 8(c) of the Act, 29 U.S.C. 158(c) as expressing only “ * * * views, argument, or opinion * * * ”. Nor would they necessarily be neutralized by the alleged oral and written attempts of Baltimore to persuade the employees against unionization. It must be remembered that Ford denied any untoward conduct on his part. Whatever the truth the employer should have had an opportunity to present its side.
Baltimore's strictures on the supervisor’s electioneering, given increased countenance by a show of proof, raised “substantial and material factual issues”. Rules and Regulations, supra, Sec. 102.69(d). Actually, the report of the Regional Director in the election proceeding itself reflects evidence of partisan remarks by Ford, particularly “that he [Ford] knew that the Company had done some dirty tricks to us, ‘look what they done to me’ ” and “the plant superintendent was just a hatchet man”.
Such words would come with particular force from Ford. He had once been a superintendent and only recently demoted. His admonitions were directed to subordinates and he talked from 37 years of experience with Baltimore. Just then the company was in a critical period, passing from a family proprietorship of 80 years to a new ownership, a transition already creative of uneasiness among the employees. Though away on vacation from May 30 until June 9 (two days before the election), it is not clear that Ford’s absence erased his earlier campaigning.
The right of the employer to the audience of the Board in these circumstances was enjoined upon the Board in N. L. R. B. v. Poinsett Lumber & Mfg. Co., 221 F.2d 121 (4 Cir. 1955) by this court with precise language, as follows:
“If a hearing had been held and the evidence had been taken and passed upon by the Board in the representation proceeding, the Board would not be required to go into the matter again in the absence of special circumstances showing that it was in the interest of justice that this be done; but the evidence has not been taken nor a hearing accorded the company at any time even though substantial questions affecting the validity of the election had unquestionably been raised by its exceptions. We think that it is entitled to a hearing at some stage of the proceedings so that it may produce the evidence upon which it relies for consideration by the Board and for consideration by this court in proceedings to enforce or set aside the Board’s order. * * * ”
Similar holdings prevail elsewhere. N. L. R. B. v. Tampa Crown Distributors Inc., 272 F.2d 470 (5 Cir. 1959); N. L. R. B. v. Dallas City Packing Co., 230 F.2d 708 (5 Cir. 1956); N. L. R. B. v. West Texas Utilities Co., 214 F.2d 732 (5 Cir. 1954).
Certification of the election did not irrevocably seal it against review. Altogether interlocutory — just a step in the enforcement proceeding — it was as a matter of law subject to vacation or revision at any time before the trial of the unfair labor practice complaint became final. Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146,162, 61 S.Ct. 908, 85 L.Ed. 1251 (1941).
The order of the Board will be set aside with a direction to hear Baltimore's evidence and arguments in objection to the election.
Order set aside and remanded.
. National Labor Relations Act, § 10(c), 29 U.S.C.A. § 160(c).
. Id., § 10(e), 29 U.S.C.A. § 160(e).
. Id., § 9(e) (1) and (2), 29 U.S.C.A. § 159(c) (1) and (2).
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_district
|
H
|
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".
HOT SPRINGS COAL CO. v. MILLER.
No. 1848.
Circuit Court of Appeals, Tenth Circuit.
Nov. 2, 1939.
Rehearing Denied Dec. 19, 1939.
Cyril W. Armstrong, of Chicago, Ill. (Charles E. Lane, of Cheyenne, Wyo., and Clarence P. Parker, of Chicago, Ill., on the brief), for appellant.
Allen A. Pearson, of Cheyenne, Wyo., for appellee.
Before LEWIS, BRATTON, and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
The McPherson Oil Company, a Delaware corporation, Hot Springs Coal Company, an Illinois corporation, and others, filed their bill of complaint against Albert C. Miller in the District Court of the United States for the District of Wyoming. The parties will be referred to herein as they appeared in the court below.
Plaintiffs in their bill of complaint sought to establish title and ownership in themselves to a coal mining lease and certain coal mining permits covering government lands in Wyoming. The bill charged that the lease and permits were issued and taken in the name of defendant, but that he was a constructive trustee and took and held them as agent and in trust for plaintiffs and that plaintiffs were the owners of the interest in such lease and such permits. Plaintiffs prayed that a court of equity decree that plaintiffs furnished the money with which defendant was able to obtain the coal permit and was enabled to operate a wagon mine on the premises, and that defendant, in procuring the coal permit and in operating the mine, acted as agent and truste'e for plaintiffs; that a trust be declared ; that plaintiffs be decreed to be the beneficial parties in interest in the coal lease; that defendant be required to assign and transfer to plaintiffs the coal lease and permit; and for an accounting.
Defendant denied that he held the lease and permit for the benefit of plaintiffs, and stated that in taking the permit and lease he was under no duty to take the same in the name of and for the benefit of plaintiffs. Defendant alleged that he offered to hold the same for the benefit of plaintiffs and their stockholders upon condition that plaintiffs furnish necessary funds to operate, develop and prove the worth of the land; that plaintiffs failed, refused and neglected to furnish the financial assistance, and by reason of such failure it was necessary for defendant to carry on the development work at his own expense; that he had developed the property at an expenditure to himself of approximately $17,000. He prayed that the bill be dismissed and his title to the property quieted, but that in the event it be determined plaintiffs had an interest in the lease and permits, they be required to reimburse him by a day to be fixed for his expenditures, with interest thereon, and that in default of such reimbursement the entire interest, title and right of possession in and to the lands covered by the lease and permit be quieted and confirmed in him. A reply was filed by plaintiffs denying the allegations of defendant’s answer and alleging that plaintiffs furnished the money with which the development had been done. The case was tried to the court and during the trial thereof a settlement was made by plaintiffs and defendant, through their attorneys, which was approved by the court.
On January 4, 1938, the court entered a decree reciting that the parties had agreed in open court that the plaintiffs McPherson Oil Company and Hot Springs Coal Company, corporations, were indebted to Albert C. Miller in the sum of $11,500; that in addition thereto defendant was the owner of $1,000 deposited with the Commissioner of the General Land Office of the United States of America in lieu of a bond; that the plaintiffs pay to defendant the sum of $11,500 on or before July 1, 1938, and that upon the payment to defendant of said sum and upon plaintiffs or either of them securing the release and refund of the $1,-000 on deposit, or in the event they failed to secure the release, then upon the payment to defendant of the additional sum of $1,000, plaintiffs shall hold all the land involved in the coal permit and the mining lease in controversy, free and clear of any and all incumbrances except any royalties or other obligations to the United States government; that upon the payment of said sums of money by plaintiffs to defendant, plaintiffs shall become vested with the title to all the property in controversy and shall, upon making said payments, be entitled to the immediate possession thereof; that in the event plaintiffs, or any or either of them, fail to pay the amount found due the defendant on or before July 1, 1938, title to the coal mining permits and lease shall be and vest automatically in defendant, Albert C. Miller, free from any claim of plaintiffs or any of them, save and except certain personal property on the premises owned by plaintiffs.
The decree further recites that the court, having heard the stipulation, finds that it is just and proper and should be approved. The decree contained appropriate provisions to make effective the provisions of the agreement. The court in its decree reserved jurisdiction of the cause for the purpose of making any future orders as might be required.
On June 30, 1938, plaintiffs filed a motion asking that the decree be set aside, for the reason that plaintiffs’ attorneys did not have authority to make or enter into the settlement; that the real estate involved in the permit constitutes the major portion of the assets of the Hot Springs Coal Com.pany. By amendment to the motion further grounds were urged for vacation of the decree, namely, that the agreement violated the statutes of Illinois which require that a corporation cannot dispose of all its assets without complying with certain statutory requirements relating to the sale of the assets of a corporation.
This motion was heard by the court and on the 29th day of August, 1938, defendant filed his motion stating that plaintiffs had failed or refused to make the payments or any part of them provided for in the’ agreement incorporated in the decree of the court; that the time for payment had expired, and prayed for a final decree, quieting title to the property in controversy in defendant and against plaintiffs. On the 29th day of August, 1938, a final decree was entered by the court quieting the title of defendant in and to the lease and permits and barring plaintiffs from any right, title or interest in them. The notice of appeal recites that the appeal is taken from the decree of January 4, 1938, the order denying the motion to vacate and set aside the same, and the final decree of August 29, 1938.
The grounds urged for consideration for reversal of the decree are: 1st, That the attorneys representing plaintiffs did not have authority to make and enter the agreement; 2nd, That the decree is void because contrary to the Illinois statute prohibiting a corporation from selling and disposing of all of its assets without complying with certain statutory requirements; 3rd, That the court was without authority to make an alternative or conditional decree.
In its motion to vacate the judgment, plaintiffs contend that the attorneys for plaintiffs did not have authority to make and enter the agreement that was made. Plaintiffs were represented by two attorneys, Charles E. Lane of Wyoming, and Jacob Brisgall of Chicago, Illinois. The evidence establishes that after negotiations for a settlement had been completed, Mr. Brisgall called the president of the 'Hot Springs Coal Company and advised him of the proposed settlement. He did not inform him that in the event of plaintiffs’ failure to pay the $12,500, title to the property in controversy would be quieted in defendant. The president was informed of all other terms of the proposed settlement. Being informed of the terms of the proposed agreement, the president said, “All right, do the best you can.” There was. no testimony that the powers of Charles E. Lane were other than those of a general attorney. No evidence was offered tending to show that his authority was limited in any way. In the absence of an affirmative showing to the contrary, it is presumed that an attorney has authority to compromise and settle a case. Freeman, Judgments, 5th Ed., § 1346; 6 C.J., page 645, § 150; Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877, 66 A.L.R. 102, 106; East Line & R. River Ry. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 13 Am.St.Rep. 758; United States v. Beebe, 180 U.S. 343, loc. cit. 352, 2 S.Ct. 371, 45 L.Ed. 563.
It is, however, not necessary to determine whether plaintiffs’ attorneys had authority to make the settlement. All the proposed terms of the settlement were communicated to plaintiffs. They accepted and ratified the proposed settlement and attempted to carry it out. As has been stated, the decree of the court gave plaintiffs six months within which to pay defendant the $12,500 due him. On June' 6, 1938, the president of the Hot Springs Coal Company addressed letters to all of the stockholders of the company reciting the terms of the proposed settlement. This letter recited .the appearance of Brisgall and Lane in the litigation. It stated the provisions of the decree of the court requiring the payment to defendant of, $12,-500 by July 1, and that if such payment was not made by that time the mine would revert to defendant. The letter states that the delay in informing the stockholders was due to the protracted meetings of the Board of Directors to find ways and means to raise this sum and recites the failure of the officers to accomplish this. The letter then appealed to the stockholders for suggestions as to what could be done.
From this letter it is evident that the officers of plaintiff company had full knowledge of the settlement and of provisions of the decree providing for the quieting of the title in defendant if these payments were not made by July 1. Aside from any other evidence, this letter shows that plaintiffs were fully informed of the provisions of the settlement, ratified and accepted it and attempted to carry it out. As late as the date of this letter, no suggestion appears anywhere that the settlement was unauthorized or that it should be repudiated for want of authority to consummate it.
It was only on June 30, the last day for the payment of the $12,500, that plaintiffs attempted to set the decree aside for want of authority on the part of its attorneys to make the settlement. Conced-, ing for the purpose of this opinion, without so deciding, that plaintiffs’ attorneys were not authorized to make the settlement, it must be found that plaintiffs confirmed and ratified the settlement and are estopped to challenge the same.
It is further urged that the decree of the court is void because contrary to an Illinois statute (Smith-Hurd Ill.Rev.Stat. 1935, c. 32, § 157.72) which prohibits a corporation from disposing of all of its assets without complying with certain statutory requirements. Such a statute can relate only to voluntary disposals and sales of property standing in the name of a corporation and admittedly the property of the corporation. In this case the corporation claimed to be the owner of this property. It did not stand in the name 'of the corporation. At best, all that it had was an equitable interest in the property.’ It filed its petition in a court of equity, claiming to be the owner of the property by virtue of a trust, and praying the court "to determine its ownership and to quiet its title. Whether it was the owner of this property or not was the issue to be determined in the litigation. What, if any, interest it had in the property and the conditions and terms upon which it was the owner of any interest in the property was for the determination of a court of equity. The decree of the court in no wise constituted a sale or exchange of property belonging to plaintiffs within the purview of the Illinois statute. Fletcher on Corporations, vol. 6, page 1038; In re Norcor Mfg. Co. (Schmitt v. De Laney, et al.), 7 Cir., 97 F.2d 208; Baldwin et al. v. American Trading Co., 76 Cal.App. 80, 243 P. 710.
It is true, as contended by plaintiffs, that the trial court had power to vacate the consent decree and that the decree of the court entered January 4 was not a final decree. The difficulty in which plaintiffs find themselves is that they appealed to the court to vacate this conditional decree and set it aside. The court refused to do this, confirming its decree, and upon failure of plaintiffs to comply with the terms of the decree, entered a final decree quieting title of defendant to the property.
Any disposition of a pending action, not illegal, may be fairly agreed to by the parties, and if approved by the court, it should permit such disposition and enter judgment accordingly, and such judgment will be valid and binding upon the parties and their privies. 34 C.J., page 130, § 332; United States v. Parker, 120 U.S. 89, 7 S.Ct. 454, 30 L.Ed. 601; Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10, 27 L.Ed. 359; Harniska v. Dolph, 9 Cir., 133 F. 158; Simmons v. Baynard, C.C., 30 F. 532.
There is no dispute in this case as to the origin of the transaction leading to this controversy. Defendant went to Wyoming as the agent of plaintiff McPherson Oil Company, to supervise the completion of an oil well which that company was drilling. McPherson Oil Company also had some coal properties in that vicinity. After the completion of the oil' well, defendant prospected and explored adjoining coal lands and discovered a valuable vein of coal. Defendant made application for a lease and mining permits in his own name. It was ultimately agreed that plaintiffs should furnish the money and assets with which to do the development work on this mine and if it did so the defendant would hold this property as trustee for plaintiffs. Defendant contends that plaintiffs failed in any substantial way to carry out this agreement and by reason thereof he was compelled to expend a large amount of his own funds in the development of this property, amounting to at least $17,-000. Plaintiffs deny this. These were the issues to be determined by the court of equity in the pending litigation. The parties themselves arrived at an agreement by which it was agreed that plaintiffs owed defendant $12,500 for money advanced by him in the development of these properties. They agreed that before plaintiffs should have any interest in the property they should repay to defendant this sum of money, and if they did, the property was to be conveyed to the Hot Springs Coal Company for the benefit of all; if not, the title to the property was to be quieted in defendant, whose efforts and whose money up to this point made possible the develop;ment of the property. Plaintiffs agreed to this and attempted to raise the money with which to pay defendant. They wholly failed to do so. It was only on the last day before their right to any interest in the property expired under the agreement confirmed by the decree of the court that they advanced the contention that their attorneys had no authority to negotiate the settlement.
The settlement agreement was arrived at in open court. Plaintiffs were fully informed concerning all the terms of this settlement and attempted to carry it out. It was submitted to the court for -its • approval, which approval was within the equitable powers of the court to grant if it found the agreement equitable. This the court did.
A court of equity is empowered to make the provisions contained in the decree of the court in furtherance of justice between the parties. Broatch et al. v. Boysen et al., 8 Cir., 236 F. 516; Uehling v. Lyon et al., C.C., 134 F. 703; Soderberg et al. v. McRae et al., 70 Wash. 235, 126 P. 538; Robles v. Clarke, 25 Cal. 317; Stewart v. Ganley, 11 Colo. 458, 18 P. 619.
The decree of the trial court is 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_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America ex rel., Glenn SLEIGHTER, Appellant, v. William J. BANMILLER, Supt., Eastern State Penitentiary, Philadelphia, Pennsylvania.
No. 12275.
United States Court of Appeals Third Circuit.
Submitted Dec. 6, 1957.
Decided Dec. 17, 1957.
Glenn Sleighter, pro se.
George C. Eppinger, Chambersburg, Pa., for appellee.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
In the absence of an opinion by the district court, it is impossible for us to determine the basis of that court's decision in its denial of appellant’s petition for a writ of habeas corpus and to properly consider and pass upon the merits of
this appeal. Cf. United States ex rel. De-Vita v. McCorkle, 3 Cir., 1954, 216 F.2d 743.
The order of the district court will be vacated and the cause remanded for further proceedings in accordance with this opinion.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_r_stid
|
06
|
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.
Douglas James SCANLON, Plaintiff-Appellant, v. ATASCADERO STATE HOSPITAL and California Department of Mental Health, Defendants-Appellees.
No. 80-5201.
United States Court of Appeals, Ninth Circuit.
Argued Sept. 15, 1981.
Submitted Oct. 15, 1981.
Decided May 24, 1982,
677 F.2d 1271.
Certiorari Granted; Vacated and Remanded March 19, 1984.
S.C. No. 82-5812,
104 S.Ct. 1583, 80 L.Ed.2d 117.
Decided June 13, 1984.
Marilyn Holle, Western Law Center for the Handicapped, Los Angeles, Cal., for plaintiff-appellant.
James E. Ryan, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees; Prudence Kay Poppink, Employment Law Center, San Francisco, Cal., on brief.
Before DUNIWAY and FERGUSON, Circuit Judges and KELLAM, District Judge.
The Honorable Richard B. Kellam, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
DUNIWAY, Circuit Judge:
We consider for the second time Scan-lon’s claim of employment discrimination against the handicapped under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court dismissed the action on the ground of state immunity under the Eleventh Amendment. We reverse.
I. BACKGROUND.
Scanlon alleged that he suffers from diabetes mellitus and lack of vision in one eye, that California’s Atascadero State Hospital denied him a job as a graduate student assistant, and that this was discrimination in employment violating the Act. The state received federal financial assistance for the hospital under the Act. The defendants moved to dismiss on two grounds: (1) that § 794 does not apply to employment discrimination unless a primary objective of the federal financial assistance is to provide employment, and (2) that the Eleventh Amendment barred Scanlon’s federal claim. The district court dismissed on the Eleventh Amendment ground. We affirmed the dismissal, but on the ground that there can be no private claim for relief under § 794 unless a primary objective of the federal financial assistance is to provide employment. Scanlon v. Atascadero State Hospital, 9 Cir., 1982, 677 F.2d 1271, 1272. The Supreme Court, — U.S. -, 104 S.Ct. 1583, 80 L.Ed.2d 117, granted certiorari, vacated our judgment, and remanded for further consideration in the light of Consolidated Rail Corporation v. Darrone, 1984, — U.S. -, 104 S.Ct. 1248, 79 L.Ed.2d 568. Scanlon v. Atascadero State Hospital, 1984, — U.S. -, 104 S.Ct. 1583, 80 L.Ed.2d 117. Consolidated Rail is squarely in point on the § 794 question, and is contrary to our previous opinion.
We did not reach the Eleventh Amendment question in our opinion, 677 F.2d at 1272, but must do so now. Consolidated Rail did not touch on the issue of state immunity. No state or state agency was a defendant there.
II. STATE IMMUNITY UNDER THE ELEVENTH AMENDMENT.
Section 794 of the Rehabilitation Act broadly bars “discrimination under any program or activity receiving federal financial assistance ...” and § 794a(a)(2) provides remedies, procedures, and rights against “any recipient of Federal assistance____” The Act contains extensive provisions under which states are the express intended recipients of federal assistance. E.g., § 720 et seq. Accord 45 C.F.R. § 84.3(f) (implementing regulations broadly define “recipient” to include “any state or its political subdivision”). If states receive federal assistance under the statute, they plainly fall within the defined class of potential defendants.
The Eleventh Amendment of the United States Constitution broadly bars federal court actions by private parties, including actions by parties who are citizens of the state, against states and state agencies. See generally Pennhurst State School and Hospital v. Halderman, 1984, — U.S. -, ---, 104 S.Ct. 900, 906-08, 79 L.Ed.2d 67 (1984).
Section 5 of the Fourteenth Amendment gives Congress “power to enforce [its provisions] by appropriate legislation.” The question is whether Congress has done so in the Act that we are considering, where consent of the state can be inferred. We conclude that it has.
This is not a case in which the Act expressly provides for state liability, as some statutes do. See, e.g., Fitzpatrick v. Bitzer, 1976, 427 U.S. 445, 447, 96 S.Ct. 2666, 2667, 49 L.Ed.2d 614. Nor is this a case in which the legislative history makes it clear that Congress intended to make states liable, regardless of their consent. See, e.g., Hutto v. Finney, 1978, 437 U.S. 678, 693—94, 98 S.Ct. 2565, 2574-75, 57 L.Ed.2d 522.
Rather, this is a case in which a “congressional enactment ... by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumen-talities,” and “the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.” Edelman v. Jordan, 1974, 415 U.S. 651, 672, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662. Edelman was not such a case because “the threshold fact of congressional authorization to sue a class of defendants which literally includes states [was] wholly absent.” Id.
Other decisions of the Supreme Court apply the principle. Petty v. Tennessee-Missouri Bridge Commission, 1959, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804, was an action under the Jones Act, 46 U.S.C. § 688 et seq., which authorized personal injury actions by any seaman against his employer. Id. § 688. The states operated ferryboats under a compact to which Congress consented with a proviso that, the Court held, created a waiver of Eleventh Amendment immunity. In Parden v. Terminal Railway of the Alabama State Docks Department, 1964, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., provided that “Every common carrier by railroad ... shall be liable in dam-ages____” Id. § 51 (emphasis added). Under this broad statutory definition of potential defendants, a state’s subsequent voluntary operation of a railroad constituted consent to suit.
We have recently decided two cases in which we applied the same principle. In Mills Music, Inc. v. State of Arizona, 9 Cir., 1979, 591 F.2d 1278, 1283-85, the federal statute, the old Copyright Act, former 17 U.S.C. § 1 et seq., provided broadly that “any person ... shall be liable____” Id. § 101 (emphasis added) (compare present 17 U.S.C. § 50(a): “Anyone who violates ...”). We held that the state agency, by using a copyrighted song to promote a state fair, voluntarily engaged in regulated activity and thus waived its Eleventh Amendment immunity. In Department of Education, State of Hawaii v. Katherine D., 9 Cir., 1984, 727 F.2d 809, 818-19, the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq., a statute often associated with the Rehabilitation Act, provided a broad private right of action, id. § 1415(e)(2), in a context where state agencies would “inevitably” be parties to any dispute. We held that the state agency, by applying for and receiving federal funds under id. § 1412, waived its Eleventh Amendment immunity and consented to suit.
Scanlon, expressly alleged that Atascade-ro State Hospital is a recipient of federal financial assistance under the Rehabilitation Act, see Complaint 114 [ER 3], and in reviewing the dismissal of his action we must assume this to be the case.
We decline to follow cases holding that the Eleventh Amendment bars actions against states under § 794, such as Ciam-pa v. Massachusetts Rehabilitation Commission, 1 Cir., 1983, 718 F.2d 1, 3-4, and Miener v. State of Missouri, 8 Cir., 1982, 673 F.2d 969, 979-980-82. We disagree with those cases’ reliance on Edelman and Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Association, 1981, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132, in holding that state acceptance of Rehabilitation Act funds does not waive Eleventh Amendment immunity with respect to suit under § 794. As we have seen (p. 361) supra, Edelman itself distinguishes a case like this one. 415 U.S. at 672, 94 S.Ct. at 1360. Florida Dep't of Health is similar to Edelman. 450 U.S. at 150, 101 S.Ct. at 1034. In this case, there is more than the “mere fact” of state participation and, as we have shown, a different standard of waiver applies. See Katherine D., 727 F.2d at 819.
We conclude that the Eleventh Amendment does not bar Scanlon’s action because the state, if it has participated in and received funds from programs under the Rehabilitation Act, has implicitly consented to be sued as a recipient under 29 U.S.C. § 794.
The judgment is reversed and the action is remanded to the trial court for further proceedings consistent with this opinion.
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_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on 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".
PAGE, Internal Revenue Collector, v. LAFAYETTE WORSTED CO.
No. 2752.
Circuit Court of Appeals, First Circuit.
June 15, 1933.
Rehearing Denied July 26, 1933.
MORTON, Circuit Judge, dissenting.
Charles K. Hoover and Frank J. Ready, Jr., Sp. Attys., Bureau of Internal Revenue, both of Washington, D. C. (Henry M. Boss, Jr., U. S. Atty., of Providence, R. I., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for appellant.
Laurence Arnold Tanzer, of New York City (Francis J. O’Brien, of Providence, R. I., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
The Lafayette Worsted Company brought an action at law in the United States District Court for the District of Rhode Island against Frank A. Page, collector of internal revenue in that district, to recover taxes it claims were illegally assessed and collected. Jury trial was waived, and the case was tried before the District Judge. He entered judgment in favor of the plaintiff for $202,888.-20, with interest from January 19, 1926, and 'the defendant appealed.
The taxes in question are the meóme and excess profits taxes for the years 1918 and 1919. For 1918 the plaintiff’s return showed a tax liability of $811,443.94, which was paid in due course. Upon a reaudit in 1922, the Commissioner determined that the correct tax for 1918 was $801,261.06, and the difference was refunded. For the year 1919 the plaintiff’s return showed a tax liability of $586,-512.98, which was duly paid. Upon a reaudit in 1923 this amount was found to be too large by $4,378.68, and the excess was refunded.
In March, 1923, the plaintiff applied to the Commissioner for a special assessment of its taxes for the years in question under the provisions of sections 327 and 328 of the Revenue Act of 1918 (40 Stat. 1093). This application was granted by the Commissioner. The taxes for both years were accordingly redetermined upon a special assessment, so called. As a result of this special assessment, the Commissioner determined that the plaintiff had been overassessed $81,770.97 for the year 1918, and $86,021.56 for the year 1919. Those amounts were in due course refunded to the plaintiff.
In March, 1924, the Commissioner advised the plaintiff that his determination as to over-assessments for the years 1918 and 1919 was erroneous. Jeopardy assessments of the amounts previously refunded, plus interest and certain penalties, were made forthwith, followed shortly by notice and demand for payment. Litigation followed by which the plaintiff endeavored to prevent the collection of the jeopardy assessments. The plaintiff failed in the litigation; and in January, 1926, it paid the disputed assessments, in the amount of $81,770.97, with interest amounting to $13,014.27, and a penalty amounting to $4,088.55 for the year 1918,- and in the amount of $86^021.56, with interest amounting to $13,691.77 and a penalty of $4,301.08 for the year 1919. The total payments came to $202,888.20, which is the amount sought to be recovered in the present aetion. All payments were made under protest. The plaintiff has complied with all formalities required by law for the maintenance of this aetion.
The ease was tried on a stipulation of facts agreed to by both parties, with the right to introduce further evidence not inconsistent with the facts stipulated. The stipulation clearly covered all the facts relating to the assessment of the taxes for the two years in question, the amounts, and the refunds, and in addition certain correspondence between the Commissioner and the taxpayer relating to the reauditing of the tax, the allowance of the overassessments, and the re-examination of the. taxpayer’s application for reassessment of the taxes for the years under sections 327 and 328 of the 1918 act, and the jeopardy assessment. A deposition of the xYssistant Commissioner of Internal Revenue with certain exhibits thereto attached was offered by the plaintiff as bearing' on the grounds on which the Commissioner reopened the case and reversed his previous findings that there was an overassessment for the two years in question.
The District Court first excluded both the deposition and exhibits on the ground that it disclosed facts with reference to the business of other taxpayers engaged in similar business which should not, as a matter of public policy, be disclosed, and, in addition, was irrelevant to the issues in the case, apparently on the erroneous ground that the burden was on the Commissioner to prove on what grounds he based his jeopardy assessments. Austin Co. v. Commissioner (C. C. A.) 35 F.(2d) 910. Before the case was closed, however, he admitted the exhibits. The deposition was offered and marked and “left with the clerk for any subsequent use which may be made of it by the parties,” but was not admitted.
The bill of exceptions, it is true, does not state that it includes all the evidence bearing on the issue presented by the defendant’s exception; but from the bill of exceptions it clearly appears that the stipulation of facts, with the correspondence referred to, and the exhibits attached to the deposition, constitute all the evidence introduced at the hearing before the District Court, and on which the judge based his judgment. Since the record contains all the evidence on which the District Court based its judgment, the omission to so state in the bill of exceptions does not prevent the appellate court from considering the issue raised by a motion for a judgment for either party; exceptions being taken before judgment to the refusal to grant the motion. Board of Com’rs of Gunnison County v. Rollins, 173 U. S. 255, 19 S. Ct. 390, 43 L. Ed. 689; Crowe v. Trickey, 204 U. S. 241, 27 S. Ct. 275, 51 L. Ed. 454; St. Louis v. Western Union Tel. Co., 148 U. S. 92, 96, 13 S. Ct. 485, 37 L. Ed. 380.
While the motion for judgment by the defendant was not in the usual form, as it assigned as a reason that the plaintiff had not sustained the burden of proof that the taxes of the plaintiff have been overpaid, and that the taxes involved were erroneously assessed and collected, we think it raises an issue of law, if there was no substantial evidence to support a judgment for the plaintiff, or upon the facts stipulated and the evidence no other conclusion could be reached than that the defendant was entitled to judgment. While on a general finding of facts no issue of law is raised by exception to the judgment, Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113, a motion before judgment that judgment he entered for the defendant and refused and exception taken at the time, raises a question of law. Fleischmann Cons. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Maryland Casualty Co. v. Jones, 279 U. S. 792, 795, 796, 49 S. Ct. 484, 73 L. Ed. 960; St. Louis v. Western Union Tel. Co. supra; United States v. Smith (C. C. A.) 39 F.(2d) 851, 855.
The issue raised by the ruling' and exception hero is whether the Commissioner had authority, no fraud by the taxpayer being claimed, or mistake of fact being shown, to change an assessment once made and a refund paid, if done within the period of limitation for the assessment of taxes for the year in question.
The case of Woodworth v. Kales (C. C. A.) 26 F.(2d) 178, is cited as authority to the effect that, without fraud being shown, or mistake of law or in calculation, a Commissioner has no authority on the same state of facts to change an assessment once made and a refund paid. But in that ease the question was as to the value of securities in 3 913, and the change was made, not by the Commissioner who made the first valuation, but by a successor. Sections 1312 and 1313 of the Revenue Act of 1921 (42 Stat. 313), and sections 1006 and 1007 of the Revenue Act of 3924 (26 USCA § 1249 note, and § 1250), would have disposed of the ease without further consideration. The reasoning of the able judge, therefore, has not the weight it might have if it were alone decisive of the ease.
However, later. decisions of the Circuit Courts of Appeals, in the case of Austin Co. v. Commissioner, supra, and Oak Worsted Mills v. United States (Ct. Cl.) 36 F.(2d) 529, Id. (Ct. Cl.) 38 F.(2d) 699, and especially McIlhenny v. Commissioner (C. C. A.) 39 39. F.(2d) 356, 357, which was approved by the Supreme Court in Burnet v. Porter, 283 U. S. 230, 51 S. Cf. 416, 75 L. Ed. 996, establish a contrary rule to that laid down in the Woodworth Case, and governs this ease.
In the Mellhenny Case the court said: “But the sole question presented by the record before ns is not whether the first action of the Commissioner in allowing the deduction was right or wrong, hut whether having once determined the matter, and the tax computed upon such determination hav-
ing been paid, tbe Commissioner had power or authority, in the absence of fraud or other new evidence, to reopen the case, disallow the deduction theretofore allowed by him, and make a redetermination of the tax. In support of their contention that the Commissioner was without power to reopen the ease and make a redetermination, the petitioners, the taxpayer’s executors, rely upon Woodworth v. Kales (C. C. A. 6) 26 F.(2d) 178, and the Commissioner’s order of January 20, 1923, while the Commissioner finds support for his opposite view in Botany Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379; L. Loewy & Son v. Commissioner of Internal Revenue (C. C. A. 2) 31 F.(2d) 652; Holmquist v. Blair (C. C. A. 8) 35 F.(2d) 10; Austin Co. v. Commissioner of Internal Revenue (C. C. A. 6) 35 F.(2d) 910; sections 1312 and 1313 of the Revenue Act of 1921, 42 Stat. 227; and sections 1006 and 1007 of the Revenue Act of 1924, 43 Stat. 253 (26 USCA §§ 1249 note, 1250).. * * *
“In the ease at bar, the statutory procedure was not followed, in that there was no agreement in writing, or otherwise, that the determination and assessment of February, 1924, should be final and conclusive. As a consequence, we axe constrained to hold that the determination and assessment of 1924 were not final and conclusive, ánd that the Commissioner was not estopped or otherwise barred, by the payment and acceptance of the tax based on such determination and assessment, from reopening the case and making the further determination subsequently made by him.”
In passing on the conclusion of the Circuit Court of Appeals in the McIlhenny Case, the Supreme Court in the case of Burnet v. Porter said: “The Court of Appeals sustained the power of the Commissioner upon the authority of McIlhenny v. Commissioner of Internal Revenue [C. C. A.] 39 F.(2d) 356; and was clearly right in doing so.”
We think there was no evidence in the ease at bar to sustain the ruling of the District Court. The judgment is contrary to the law laid down in the McIlhenny Case. It may be noted in passing, too, that - the fact that a penalty was imposed in making the jeopardy assessments indicates that the Commissioner, on re-examination, must have had evidence of some irregularity on the part of the taxpayer.
The judgment of the District Court is reversed, and the ease is remanded to that court, with instructions to order a judgment for the defendant.
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_timely
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Alfred JOHNSON and Robert J. Jensen, Appellants, v. Lester R. NELSON, L. Boerebach, C. H. Bunkholt, Gunnar Peterson, E. H. Everetts, Ralph Hallberg, Harry Burns and Vern Thomay, Appellees.
No. 17298.
United States Court of Appeals Eighth Circuit.
Dec. 31, 1963.
Herbert S. Thatcher, Washington, D. C., for appellants; Francis X. Helgeson, Minneapolis, Minn., with him on the brief.
James C. O’Neill, St. Paul, Minn., for appellees; Bundlie, Kelley & Torrison, St. Paul, Minn., with him on the brief.
Before VOGEL, MATTHES and MEHAFFY, Circuit Judges.
MATTHES, Circuit Judge.
This action was instituted by eight members (appellees) of Local No. 386 (Local) of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, against Alfred Johnson and Robert J. Jensen (appellants), Local’s president and treasurer, respectively, under Title V — § 501(a) and (b) of the Labor-Management Reporting and Disclosure Act, (LMRDA) of 1959, 29 U.S. C.A. § 501(a) and (b) (commonly referred to as the Landrum-Griffin Act). In brief, the complaint alleged that appellants as officers of Local, occupied positions of trust and that their refusal to sign checks in payment of certain attorneys’ fees and other expenses which had been approved by the membership of Local, constituted a violation of their fiduciary obligations.
After a trial, the court, Judge Larson, found the issues for appellees and entered a judgment directing appellants to “prepare, execute, and deliver, forthwith, cheeks in full payment of the duly approved bills reimbursing Petitioners [appellees] for their attorneys’ fees and related expenses. * * * ” Appellants duly appealed from the judgment so entered.
The facts are uncontroverted, and inasmuch as they are exhaustively detailed in the trial court’s findings, D.C., 212 F.Supp. 233, 236-240 (1963), it is neither necessary nor desirable that we indulge in another complete recital of them. A concise résumé will suffice.
Local has approximately 2200 members. Under the constitution of the International Union, seven members in good standing constitute a quorum for a meeting. Bills for expenses incurred must be approved first by the trustees and then by the membership of Local before payment. The president and treasurer are required to sign checks in payment of approved bills.
Strong differences of opinion existed within Local regarding wage negotiations being conducted by incumbent officers; appellees and certain other members manifested their intention to present a slate of candidates to oppose appellants and other incumbent officers; at the nomination meeting, before appellees had nominated their opposition candidates, charges alleging violation of various union principles were preferred against appellees and others (most were opposition candidates) by one Carlson, the incumbent business agent of Local; a union trial was conducted by a Trial Board of which appellant Johnson was chairman. After three accused members were properly tried and acquitted, different trial procedures- — in violation of the union constitution — were adopted by the Trial Board, and the accused members were presumed to be guilty instead of innocent of the charges. Under the new procedures, the remaining accused members were tried, found guilty, and either fined or suspended. On appeal, despite obvious violations of the rights of appellees, the International Union affirmed the “unlawful” action of the Local Trial Board.
Appellees instituted an action in the United States District Court for the District of Minnesota, charging appellants and others with violation of Title I — § 101(a) (2) and (5) of LMRDA, 29 U.S.C.A. § 411(a) (2) and (5), and seeking to set aside the improper disciplinary action. After the court (Judge Devitt) granted a temporary injunction, the parties entered into a stipulation approved by the court whereby the decisions of the Local Trial Board and the penalties, imposed by that tribunal were set aside and withdrawn.
Appellees incurred attorneys’ fees in the amount of $3,475 in the federal court action and costs in the amount of $262.44 in the first union trials.
At a meeting the membership of Local approved payment of appellees’ attorneys’ fees incurred in the federal court action, but at a subsequent meeting rescinded this action.
In May, 1961, Carlson filed new charges against “various Petitioners [appellees] and other members.” Pursuant to the stipulation between the parties in the federal court case, the membership of Local elected a Special Trial Board to hear these charges. Appellee Nelson was the first accused to be tried. After trial but before the Special Trial Board had reported its decision to the membership, a representative of the International Union recommended a settlement of all issues to the Special Trial Board, including the payment of all attorneys’ fees and expenses for both groups.
Thereafter, the Special Trial Board dismissed the charges against appellee Nelson and recommended that the attorneys’ fees and expenses incurred by all parties in the two series of union trials and in the first federal court action be paid by Local. The membership of Local approved the recommendation of the Board. However, on August 18, 1961, in response to a letter from acting Local treasurer Romine, the General President of Internati final suggested that payment of attorneys’ fees incurred by appellees be deferred until investigation had been made. During a union meeting on August 21, 1961, appellant Johnson unsuccessfully attempted to rescind the prior approval by Local of the Special Board’s recommendation. Johnson then submitted to the membership the vouchers of appellees, item by item, for attorneys’ fees and other expenses incurred in the federal court action, and the membership approved each item.
On September 4, 1961, Johnson by letter requested an order from the International President directing Johnson not to pay the questioned bills. On September 6 and September 13, the officers of Local by unanimous vote (appellants abstaining) directed appellants to pay the bills. Appellants persisted in their refusal to do so.
On September 29, 1961, Romine and appellants were advised by the General President of International that investigation had been completed and that “in our opinion” appellees’ bills and expenses were “individual indebtedness of these members” and should not be paid by Local. Appellees were not contacted during this “investigation”. The letter further advised that there was no objection to payment of attorneys’ fees for the union trials.
At a meeting of Local on October 2, 1961, appellees’ attorneys requested Local’s officers, pursuant to Title V — § 501 (b) of the LMRDA, 29 U.S.C.A. § 501 (b), to take corrective or remedial action against appellants, or else appellees would themselves commence action. Appellants advised appellees to proceed, and this action was instituted on October 16,1961.
On November 15, 1961, the General Executive Board (GEB) of International unilaterally, on its own motion, determined that the action-of Local in approving the recommendations of the Trial Board respecting payment of appellees’ bills was null and ineffective. The GEB suggested that the membership of Local reconsider its authorization of reimbursement "for the reasons: (1) that it.is against the general policy of the Brotherhood to sanction expenditure of local union funds for such purposes and, (2) the expenditure of such funds for such purposes might well constitute a violation of Title V of the Landrum-Griffin Act.” The GEB further advised that if the Local nevertheless decided to conduct a vote on the question, the Local should take such vote by secret ballot referendum vote of the entire membership by mail. No union constitutional provisions were cited as authority for the determinations made by the GEB.
There are two basic questions presented for our consideration and determination. (1) the scope of Title V — § 501 of the Act, 29 U.S.C.A. § 501; (2) whether the conduct of appellants constitutes a violation of their fiduciary responsibilities and duties under Title V — § 501.
In summary, appellants’ position as to question (1) is that Title V of the Landrum-Griffin Act was designed to apply to situations where the action or non-aetion of union officials results in some pecuniary loss or disallowance to the membership as a group, and that the trust relationship imposed by Title V relates to financial or money-related responsibilities rather than to a broad “trustee” responsibility in regard to all activities and relationships between the officers of a union and the membership.
Careful analysis of Title V refutes the notion that the statute is narrow in its terms and scope and that it is limited solely to pecuniary responsibilities or the proper or improper use of union funds.
In explicit language, § 501(a) provides that officers and other representatives of a labor organization “occupy positions of trust in relation to such organization and its members as a group.” It is the duty of each such person, “taking into account the special problems and functions of a labor organization,” not only to hold its money and property solely for the benefit of the organization and its members, but to “refrain from dealing with such organization as an adverse party * * * in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization.”
Thus it plainly appears that the statute is broad in its reach. Officers and other union representatives may not act adversely to their organization or to the members as a group, or acquire a personal interest which is contrary to the interests of the organization. Being trustees the officers must subvert their own personal interests to the lawful mandates and orders of the organization.
The legislative history of the Act demonstrates that Congress intended that it should not be interpreted by the courts narrowly or strictly, but, to the contrary, that its confines are broad. Such history was painstakingly reviewed by Judge Larson in his opinion below, and appears in full, in two volumes published by the N.L.R.B. entitled “Legislative History of the Labor-Management Reporting and Disclosure Act of 1959.” See also United States Code Congressional and Administrative News, 86 Cong. 1 Sess., 1959, Vol. 2, pp. 2318-2514. For purposes of this opinion, it is sufficient to give attention to that portion of H.Rep. No. 741 on H.R. 8342 appearing in Vol. 1, Legis.Hist. of LMRDÁ, p. 839, and in United States Code Congressional and Administrative News, 86 Cong. 1 Sess., 1959, Vol. 2, pp. 2479-2480. Before so doing, we note, as did Judge Larson in detail, 212 F.Supp. at 285, that H.Rep. No. 741 on H.R. 8342 — known as the Elliott Bill — contained fiduciary provisions identical with those which became § 501(a) of the Landrum-Griffin Act.
The report in pertinent part provides:
“Union officials occupy positions of trust. They hold property of the union and manage its affairs on behalf of the members. It is the duty of union officers just as it is the duty of all similar trustees to put their obligations to the union and its members ahead of any personal interest.
****»-»
“We affirm that the committee bill is broader and sti’onger than the provisions of S. 1555 which relate to fiduciary responsibilities. S. 1555 applied the fiduciary principle to union officials only in their handling of ‘money or other property’ (see S. 1555, sec. 610), apparently leaving other questions to the common law of the several States. Although the common law covers the matter, we considered it important to write the fiduciary principle explicitly into Federal labor legislation. Accordingly the committee bill extends the fiduciary principle to all the activities of union officials and other union agents or representatives.” (Emphasis supplied).
The courts have with consistency refused to accede to the contention that § 501 is designed for the single purpose of establishing responsibility on the part of officers and other representatives in relation to the handling and managing of fiscal matters of the labor organization. Quite to the contrary, indication is clearly present in the reported cases that § 501 should receive a broad and liberal interpretation and application.
In Highway Truck Drivers and Helpers Local 107 v. Cohen, E.D.Pa., 182 F.Supp. 608 (1960), aff’d 284 F.2d 162 (3 Cir. 1960), cert. denied, 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744 (1961), the court made this pronouncement:
“Section 501, with which we are particularly concerned, is entitled ‘Fiduciary responsibility of officers of labor organizations.’ This section, quoted earlier, attempts to define in the broadest terms possible the duty which the new federal law imposes upon a union official. Congress made no attempt to ‘codify’ the law in this area. It appears evident to us that they intended the federal courts to fashion a new federal labor law in this area, in much the same way that the federal courts have fashioned a new substantive law of collective bargaining contracts under § 301(a) of the Taft-Hartley Act, 29 U.S.C.A. § 185(a). See Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972.” 182 F.Supp. at 617.
In Moschetta v. Cross, D.D.C., 48 LR RM 2669 (July, 1961), the court held that the right of the membership to a special convention had accrued and that the failure and refusal of the executive board and of the international officers to complete arrangements for and call a special convention was not authorized by the union constitution and constituted a breach of fiduciary duty under § 501. The court cited with approval Crocker v. Weil, 227 Or. 260, 361 P.2d 1014, 48 LRRM 2177 (1961). Compare also Holdeman v. Sheldon, S.D.N.Y., 204 F.Supp. 890 (1962), aff’d, 311 F.2d 2 (2 Cir. 1962).
In summary, we hold that § 501 imposes fiduciary responsibility in its broadest application and is not confined in its scope to union officials only in their handling of money and property affairs.
Appellants’ second contention — that even if Title V imposes a fiduciary responsibility in the broadest sense, the action complained of would not constitute a violation of such responsibility — has given rise to certain misapprehensions that are in need of clarification. Appellants have seemingly misconstrued the true nature of this action, have diverted attention away from themselves as local officers, have attempted to focus upon the directive of the International General Executive Board reinforcing appellants’ action, and have stated the issues in terms of a mere ministerial policy determination controversy between the International and the Local union members —thereby attempting to bring the case within the dictates of Parks v. International Brotherhood of Electrical Workers, 4 Cir., 314 F.2d 886 (1963), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). Appellants assert that:
“the policy directive of the General Executive Board — found by the court below to be the basis for its ultimate determination against appellants — goes only to a requirement that any use of local union funds for the payment of legal expenses incurred in private litigation in which it was sought to protect the rights of such individual members must be submitted to a vote of the membership as a whole before such payments could be permitted as a matter of general policy. There was no attempt to discipline members who had brought such litigation merely because of their resort to the courts; all that was required was that repayment of expenses be agreed to by a majority of all whose funds were to be used for that purpose. * * * While it may be true that Landrum-Griffin protects the rights of individuals to seek relief for vindication of their rights, it cannot be said that any portion of Landrum-Griffin requires that individual members be given reimbursement by their local union for any costs that they might have incurred in defense of their rights.
* * -**•*•»
“[T]he policy determination which the General Executive Board was authorized to make was consistent with and guided by the provisions of * * * the International Constitution which prohibit loaning or donating money from the local union treasury to members. * * *
* * * * *
“In union affairs, personality clashes are the order of the day; it takes no imagination to conclude that the courts will be flooded with litigation if Title V has a scope and application, as found below, sufficient to permit the courts to question every policy determination made by the governing body of a parent international union." (Emphasis supplied).
But the International is not a party to this action and its directive was considered below only for the purpose of determining whether it afforded appellants a valid reason for violating their fiduciary duty under Title V in not paying the bills as ordered by the duly authorized majority vote of the Local members. The trial court struck down the International directive, finding that it conflicted with Congressional policy as established in Title I of the Landrum-Griffin Act by discouraging the Local members from resorting "to the federal courts when internal redress for patent federal wrongs has proven futile in the past."
"This case nominally involves the alleged breach of a fiduciary duty and the non-payment of attorneys' fees, but what is really at stake here are the rights which were jeopardized by the union trials of July, 1960." 212 F.Supp. at 256.
In essence, this controversy narrows down to the following factual features: (1) Appellees-as revealed in the findings of fact below-were denied Title I rights in internal union trials, which culminated after much local internal union strife in which appellees had dared to express opposition to the incumbent local officers (appellants). In their brief, appellants "take no exception to the formal findings of fact made by Judge Larson and as otherwise set forth in his opinion," thereby conceding such treatment of appellees during the union trials as their presumption of guilt-in violation of the procedures set forth in the union constitution; (2) Despite the obvious violations by the Local Trial Board of the trial procedures and rights of appellees as set forth in the union constitution, the International Union affirmed the unlawful action of the Local Trial Board in suspending and fining appellees; (3) Charging violation of Title I-~ 101(a) (2) and (5) of the L1VIRDA, 29 U.S.C.A. § 411(a) (2) and (5), appellees sought to set aside the improper disciplinary awards in federal court. By stipulation approved and adjudged binding by the court, the decisions of guilt made by the Local Trial Board and the penalties imposed thereby were set aside and withdrawn; (4) After further local internal strife over payment of attorneys' fees incurred by appellees in their Title I action, and after further charges were levied against appellees, a Special Trial Board, constituted pursuant to stipulation entered into in the first federal court action, dismissed the charges against appellee Nelson, reprimanded both groups, and recommended that the attorneys' fees and expenses for both sides in the union conflict be paid by Local ; (5) Although payment of appellees' attorneys' fees and related expenses was duly approved by a constitutional vote of the membership of Local, appellants refused to pay these bills. On the contrary, appellants followed a course against the wishes of the' majority vote by soliciting support for their refusal from International; (6) Despite efforts by appellees, pursuant to Title V-~ 501(b) of LMRDA, to have the union officers take remedial action, appellants still refused to pay the duly approved bills; (7) Appellees brought this action in the federal court below under Title V to force appellants to comply with the desires of the majority of Local-as expressed in their authorized vote-and pay appellees' attorneys' fees and related expenses; (8) One month after this litigation began, the General Executive Board of the International Union, on its own motion sent a directive to Local stating that the majority vote approval was null and void because it was "the subject of an unauthorized recommendation and because [it was] not properly voted upon." No union constitutional provision was cited in support of its conclusion or its further suggestion that a vote of the entire Local membership be taken.
Under these pertinent facts and stripped of the details discussed in the opinion below, we are of the view that appellants’ refusal to pay appellees’ attorneys’ fees and related expenses as duly authorized by a majority vote of the local members constituted a violation of appellants’ fiduciary responsibility within the meaning of Title V of the Landrum-Griffin Act — independent of any action by the International Union. According to Title V — § 501(a), appellants “occupy positions of trust,” yet they have breached that trust relationship, and contrary to the statutory provision, have failed “to refrain from dealing with such organization [Local] as an adverse party or in behalf of an adverse party in any matter connected with his [their] duties * * Appellants— opponents of appellees in previous proceedings — have allowed their personal feelings towards appellees to interfere with their duties as officers; have refused to pay the bills even though approved by the membership; have employed various tactics in an unsuccessful attempt to attain local approval for their conduct; have solicited support for their wrongful behavior from the International; and have thus assumed positions adverse to the interests of the local union as expressed in a majority vote, duly authorized by the union constitution. And contrary to appellants’ assertion, the authorized payments do not constitute “donations,” for the local union itself received substantial benefit from the first federal action brought by appellees. Fair and orderly procedures were restored to union trials; integrity was restored to the internal democratic processes of Local. Additionally, we agree with the trial court’s conclusion that the eleventh-hour directive of International' furnished no excuse for the action taken by appellants.
Implicit in our determinations is the recognition that, under the circumstances of this case, denial of relief to appellees under Title V would discourage resort to the courts by union members to establish their Title I rights. Likewise, to allow the directive of the International to stand as a defense to appellants’ conduct would seriously undermine and frustrate appellees’ rights under Title I. No alleged policy determination, no directive by any union official will be allowed to impair freedom of speech within the union. As stated by the court below, “it seems obvious * * that there is no point in these Petitioners [appellees] or any other union members going to their union meetings if they are going to be met with letters such as the one in this case sent by the GEB on November 15, 1961.” 212 F.Supp. at 269. See and compare, Salzhandler v. Caputo, 2 Cir., 316 F.2d 445 (1963), cert, denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275; Young v. Hayes, D.D.C., 195 F.Supp. 911 (1961); Moschetta v. Cross, supra, 48 LRRM 2669; Gilbert v. Hoisting & Portable Engineers Local Union No. 701, Or., 384 P.2d 136 (1963); Madden- v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633, 151 N.E. 2d 73, 74 A.L.R.2d 772 (1958) ; Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769 (1951). The directive from International — though seemingly a mere policy determination on its face — not only attempts to contramand the majority vote taken by Local and to deprive appellees of “reimbursement for their legal expenses for the first Federal trials; it suggested that if more kangaroo courts were forthcoming, there would be no help from GEB. This would in turn cause the Petitioners [appellees], men of modest means, to have to again seek the aid of the Federal courts. This is the way that freedom of speech in the union hall is snuffed out; this is the way that tyranny begins.” 212 F.Supp. at 270.
Of course, it is of prime significance here that a duly authorized constitutional majority of Local’s members voted to pay appellees’ expenses; that these expenses were incurred pursuing rights which are of substantial benefit to Local as a whole; that a personal animosity toward appellees motivated appellants’ refusal to pay the expenses; and that International’s eleventh-hour “policy” directive was not based upon union constitutional authority, and was not, in fact, the real cause for appellants’ conduct. We are by no means announcing a rule requiring payment of attorneys’ fees to successful union member litigants in every Title I court proceeding — regardless of the circumstances. Vars v. International Brotherhood of Boilermakers, Etc., D. Conn., 215 F.Supp. 943, 952 (1963)— cited by appellants in oral argument— is not contrary to our decision here. In Vars, the union member asserting violation of rights under Title I attempted to recover his attorneys’ fees in that very Title I action, and — among other factual differences — there had been no union vote approving such expenses to be paid by the local.
Appellants additionally assert that Parks v. International Brotherhood. of Electrical Workers, D.Md., 203 F.Supp. 288 (1962), was very strongly relied upon by the court below, that the Parks case has since been reversed, supra, 314 F.2d 886, and that the principles laid down by the Fourth Circuit in its opinion reversing the district court are decisive of the issues in this case and require a reversal of the holding below. To be sure, the court below agreed with many of the pronouncements of the district court in Parks, but the ultimate decision below was not based upon the rationale of Parks. More importantly, the factual circumstances of the two cases are clearly distinguishable. The Fourth Circuit itself stated:
“This court recognizes that should it be demonstrated in an appropriate case that the basic reason for union discipline was that the plaintiff had resorted to a court of law to secure his rights and that other reasons were mere shams, such discipline would most likely be invalid both as a breach of fiduciary obligation and because it is prohibited under §§ 609 and 101(a) (4) of the LMRDA, 29 U.S.C.A. §§ 529 and 411(a) (4). But such a case would be different from the present one. * * * ” 314 F.2d at 911.
Parks is not decisive of the issues here involved.
Accordingly, we affirm.
. § 501(a) provides in part:
“The officers * * * and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordanee with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder, to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization * * *. A general exculpatory provision in the constitution and bylaws of such a labor organization or a general exculpatory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy.”
§ 501(b) provides the jurisdictional base for institution of an action by a union member against an officer or other representative for alleged violation of § 501 (a). Since no question regarding the § 501(b) requirements for institution of such an action is raised on appeal, we need not set forth the subsection here.
. § 411(a) (2) provides in part:
“Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings * *
§ 411(a) (5) provides:
“No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (0) afforded a full and fair hearing.”
. On oral argument, counsel for appellees asserted that the attorneys' fees and expenses of appellants in the first federal action have been paid by Local. Counsel for appellants indicated that he wasn't aware that such bills had been paid, and that, in any event; they should not have been.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, for the Use and Benefit of CARTER EQUIPMENT COMPANY, INC., Plaintiff-Appellee, v. H. R. MORGAN, INC. and National Indemnity Company, Defendants-Appellants.
No. 75-2362.
United States Court of Appeals, Fifth Circuit.
June 16, 1977.
Thomas W. Tyner, Hattiesburg, Miss., for H. R. Morgan & Nat’l Indemnity.
Francis T. Zachary, Hattiesburg, Miss., for H. R.. Morgan.
Wm. H. Cox, Jr., Jackson, Miss., D. Gary Sutherland, Hattiesburg, Miss., for plaintiff-appellee.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion January 10, 1977, 5 Cir., 1977, 544 F.2d 1271).
Before COLEMAN, GODBOLD and HILL, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is GRANTED. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED. The appellee, Carter Equipment Co., Inc. (Carter), suggests in its petition for rehearing that our decision disallowing the recovery of attorney’s fees in this Miller Act suit was erroneous. We agree and the following is to be substituted for the last paragraph of our prior opinion:
Finally, appellants insist that the district court erred in awarding attorney’s fees to Carter. The issue is whether a contractual provision for attorney’s fees between a subcontractor and its supplier is enforceable against the general contractor and its surety under the Miller Act. Carter asserts that since the equipment rentals provided for the recovery of attorney’s fees, this award is recoverable under the general terms of the payment bond, interpreted with a view toward the liberal purpose of the Miller Act.
The relevant statutory language provides that “[ejvery person who has furnished labor or material in the prosecution of the work provided for in such contract . who has not been paid in full therefor . shall have the right to sue on such payment bond . . . for the sum or sums justly due him”. 40 U.S.C.A. § 270b(a). It is important to note that the statute does not differentiate between the scope of coverage for the liabilities of subcontractors as opposed to the scope of coverage for the liabilities of general contractors. While the statute does impose some additional notice requirements on persons having no direct contractual relationship with the general contractor, insofar as financial coverage of the bond is concerned, a supplier of the subcontractor is equally as entitled to be “paid in full” for “the sums justly due him.”
The Supreme Court allowed the recovery of attorney’s fees in United States ex rel. Sherman v. Garter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). A provision for the award of attorney’s fees was contained in a contract between the general contractor and the trustees of an employees’ welfare fund. The Supreme Court held that the attorney’s fees were “sums justly due” under the Miller Act. Since there appears to be no statutory basis for distinguishing between the recovery allowed to the supplier of a subcontractor and that of a person dealing directly with the general contractor, we conclude that attorney’s fees are a recoverable item under this Miller Act bond. At least two other circuits have reached this same conclusion. Travelers Indemnity Co. v. United States ex rel. Western Steel Co., 362 F.2d 896 (9th Cir. 1966); D & L Construction Co. v. Triangle Electric Supply Co., Inc., 332 F.2d 1009 (8th Cir. 1964).
There is some authority in this circuit which would support a contrary conclusion. The court in United States ex rel. Mississippi Road Supply Co. v. Morgan, 542 F.2d 262 (5th Cir. 1976), posited that “[e]ven under the more liberal rules of construction applicable in Miller Act eases, precedent indicates that the terms of this bond would not support an award of attorney’s fees.” Id. at 269. However, the Mississippi Road Supply court was concerned with a hybrid bond that was neither fish nor fowl. The court merely recited this circuit’s position with regard to Miller Act bonds as reflected in Transamerica Insurance Co. v. Red Top Metal Inc., 384 F.2d 752 (5th Cir. 1967). The Supreme Court subsequent to Red Top Metal disapproved of our practice of looking to state law for resolution of the attorney’s fee issue. F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). Of course, we are bound to apply the decision in F. D. Rich to the instant suit and upon application of purely federal law we conclude that the contractual provision for attorney’s fees in this case is enforceable under the Miller Act bond.
REVERSED and REMANDED.
. ATTORNEY’S FEES. Should it become necessary that Lessor employ an attorney to enforce any of the provosions (sic) of this Agreement, to take possession of the equipment covered hereby or any part thereof, or to recover any sum of money due hereunder, Lessor shall be entitled to recover such reasonable attorney’s fees and expenses as shall be incurred in connection therewith.
. The language relied upon provides:
“NOW THEREFORE, if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract, . .
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
NORTHWEST EQUIPMENT SALES CO., a Washington Corporation, Plaintiff-Appellee, v. WESTERN PACKERS, INC., an Idaho Corporation, Defendant-Appellant, The Small Business Administration, United States Government, Defendants.
No. 78-1043.
United States Court of Appeals, Ninth Circuit.
July 10, 1980.
Herbert W. Rettig, Rettig, Rosenberry & Roberts, Caldwell, Idaho, for defendant-appellant.
William F. Almon, Halverson, Applegate, McDonald, Bond, Grahn, Wiehl & Almon, Yakima, Wash., for plaintiff-appellee.
Before SKELTON , Judge, and FARRIS and PREGERSON, Circuit Judges.
Hon. Byron G. Skelton, Senior Judge of the United States Court of Claims, sitting by designation.
FARRIS, Circuit Judge:
Western Packers, Inc. is appealing from the Idaho federal district court’s decision that appellee Northwest Equipment Sales Co. has a security interest in certain fixtures which is prior to the interest that Western acquired by purchasing the fixtures at a foreclosure sale. Under Idaho law, the foreclosure sale discharged Northwest Equipment’s security interest. We, therefore, reverse and remand for the district court to enter an order directing Northwest to refund the judgment paid by Western Packers.
FACTS
Northwest Equipment sold to Orchards, Inc. various items of fruit packing machinery, retaining a security interest to secure the purchase price. Orchards, Inc. affixed the machinery to real property which it purchased the day after affixation. Cold-house, Inc. succeeded to Orchard’s interest in both the real property and the fruit packing machinery. Coldhouse mortgaged the real property with its fixtures to First Security Bank of Idaho and to Gem County Development Company.
The Bank and Gem assigned their mortgages to the Small Business Administration (SBA). Coldhouse defaulted and the SBA foreclosed, selling both the real property and the fruit packing machinery to Western Packers. Northwest Equipment brought an action against both Western Packers and the SBA in an Idaho state court, alleging the priority of its purchase money security interest in the machinery. The SBA had the action removed to federal district court.
PROCEDURAL BACKGROUND
The appeal presents us for the second time with the conflict between the interests of Northwest Equipment and Western Packers in the fruit packing machinery purchased by Western at an SBA private foreclosure sale. Northwest Equipment initially sued both Western Packers and the SBA contending that each had purchased the machinery with knowledge of Northwest’s existing security interest. Thus, Northwest maintained, Western Packers and the SBA were not entitled to protection under Idaho Code § 28-9-313(4) (1967) as subsequent purchasers without knowledge.
The district court rejected Northwest’s contention. It held that the SBA’s interest had priority over Northwest’s because the SBA had purchased the entire interest of the original mortgagees, First Security Bank and Gem County Development, who themselves had taken mortgages on the machinery without knowledge of Northwest’s interest. The district court held further that Western Packers’ interest was prior to Northwest’s since Western had purchased the entirety of the SBA’s superior mortgage interest.
Northwest Equipment appealed from the district court’s judgment quieting title in Western Packers. We vacated the district court’s finding that the original mortgagee, Gem County Development, had taken its interest in the machinery without knowledge of Northwest’s purchase money security interest. Northwest Equipment Sales Co. v. Western Packers Inc., 543 F.2d 65, 67 (9th Cir. 1976). We remanded for further proceedings to determine whether Western Packers and the SBA had themselves taken without knowledge and were thus independently entitled to the protection of section 28-9-313(4) regardless of the priority of their predecessors’ interests.
The district court, on remand, found that the SBA had taken the mortgage interests of Gem and the Bank without knowledge of Northwest’s interest but that Western Packers had knowledge when it purchased at the SBA’s foreclosure sale. The district court concluded, therefore, that the SBA took the property clear of Northwest’s interest but that Western Packers, not being entitled to protection as a purchaser without knowledge under section 28-9-313(4), took the property from the SBA subject to Northwest’s interest.
DISCUSSION
Northwest does not dispute the district court’s finding that the SBA lacked knowledge of Northwest’s security interest when it took the assignment of the mortgages from Gem and the Bank. Nor does Northwest contest the district court’s conclusion, based on that finding, that the SBA took the machinery clear of the purchase money security interest under section 28-9-313(4). Both parties agree that the crucial question is whether Western Packers’ knowledge at the time of its purchase from the SBA precluded it from taking the machinery clear of Northwest’s interest.
Northwest Equipment argues that we resolved this question in the previous appeal. We disagree. The basis of our prior remand was our inability to accept the district court’s finding that there was “no evidence’’ in the record that Gem took its mortgage interest in the machinery without knowledge. 543 F.2d at 67. We stated further, in dictum, that “we would not make the assumption of law that the predecessors’ lack of knowledge fulfills the statutory requirement [of section 28-9-313(4)] for the S.B.A. and Western.” Id.
In light of the new facts which the district court found pursuant to our remand, we conclude that the priority of Western Packers’ interest is not governed by section 28-9-314(4). The SBA held a security interest in the fruit packing machinery both under the Uniform Commercial Code and under its real estate deed of trust which covered the real property and fixtures. The SBA’s interest based on its deed of trust is prior, under section 28-9-314(4), to Northwest’s Article Nine security interest. The SBA’s Article Nine interest in the machinery, being unperfected because of an improper filing, was not prior to Northwest’s.
Accordingly, Western Packers argues, the SBA’s sale was the foreclosure of a real estate mortgage governed by Idaho real estate law. Under Idaho Code § 45-1508, a foreclosure sale under a deed of trust “shall foreclose and terminate all interest in the property covered by the trust deed of all persons to whom notice is given under subsection (2) of section 45-1505 . . . .” The SBA gave notice to Northwest Equipment of the sale of both the fruit packing machinery and the real estate. Northwest does not challenge the validity of this notice or of any other aspect of the foreclosure sale procedure. Thus, if Western Packers is correct in maintaining that Idaho’s real estate mortgage foreclosure law governs, the SBA’s sale terminated Northwest’s interest. Idaho Code § 28-9-312(1) (1967) provides that section 28-9-313 governs the priorities between security interests in fixtures and interests in real estate. If Northwest’s interest has been terminated, then section 28-9-313 is inapplicable.
The result is the same even if the SBA’s sale was governed by Idaho’s commercial code, as Northwest Equipment asserts. Section 28-9-504(4) provides that, in a private foreclosure sale:
When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of this Part or of any judicial proceedings
. if the purchaser acts in good faith.
Northwest contends that Western Packers cannot satisfy the “good faith” requirement because of its knowledge of Northwest’s subordinate interest. It is not clear from the face of this subsection whether the good faith requirement applies to purchasers at all private sales or only those at sales which fail to comply with Part 5 of Article Nine. The parties have not cited and we have not found any Idaho cases resolving the issue. Section 28-1-203, however, imposes “an obligation of good faith” in the performance or enforcement of “every contract or duty” within the code. We will accept arguendo Northwest’s contention that Western Packers cut off Northwest’s interest only if Western Packers purchased the machinery in “good faith.”
The issue then becomes whether good faith is inconsistent with the purchasing an interest with knowledge of an existing subordinate claim. Section 28-1-201(19) defines good faith as “honesty in fact in the conduct or transaction concerned.” An examination of the priority and foreclosure scheme of Article Nine demonstrates that absence of knowledge of subordinate security interests could not be a prerequisite for a purchaser to buy property free of encumbrances at a foreclosure sale.
If absence of knowledge were required, the party whose interest would be undermined would be the secured party who was conducting the sale. Northwest, under such an interpretation of the good faith requirement, would be able to notify all prospective purchasers at the SBA’s sale either by filing a financing statement or by attending the sale and announcing its interest. The SBA would, thus, be able to sell only to someone willing to pay off Northwest’s interests. The SBA properly recorded its real estate mortgage without notice or knowledge of Northwest’s interest. Northwest could have protected itself by filing its financing statement properly. With certain specifically enumerated exceptions not applicable here, Article Nine consistently reflects the policy that conflicting interests in property should be resolved in favor of the party that properly filed and against the party that could have protected itself by filing but failed to do so.
CONCLUSION
The SBA properly recorded its real estate mortgage covering the machinery. The interpretation of the good faith requirement of section 28-9-504(4) which Northwest urges would devalue the interest acquired by a party in the SBA’s position in favor of a party that failed to properly avail itself of the Code’s protection. Western Packers purchased the fruit packing machinery in good faith and thus discharged Northwest’s interest.
We reverse and remand to the district court for entry of an order directing Northwest to refund the money paid it by Western Packers in satisfaction of the court’s judgment.
Reversed and remanded.
. The version of the Uniform Commercial Code adopted by Idaho in 1967 governs this case. Note that an amended version was adopted in 1979.
. The district court also concluded that Western Packers was not protected by Idaho’s successor-in-interest rule under § 28-9-312(2). Western has not appealed in this decision.
. Because this case is governed by Idaho foreclosure sale law and not by § 28-9-313(4), we need not decide whether the requirement of lack of knowledge under that subsection may be satisfied by a purchaser’s predecessor’s ignorance.
. Filing a financing statement alone might be insufficient since it would give prospective purchasers notice but not necessarily knowledge. Section 28-1-201 provides that knowledge means actual knowledge.
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_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
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASTER SLACK AND/OR MASTER TROUSERS CORP., Hardeman Garment Corp., Morehouse Garment Corp., Lauderdale Garment Corp., and Lobel-ville Garment Corp., Respondents.
No. 84-5387.
United States Court of Appeals, Sixth Circuit.
Argued April 4, 1985.
Decided Sept. 17, 1985.
Elliott Moore, W. Christian Schumann, Michael David Fox, Deputy Associate Gen. Counsel, N.L.R.B., National Labor Relations Board, Margaret Bezou, argued, Washington, D.C., for petitioner.
Thomas J. Hughes, Jr. (argued), Jackson, Lewis, Schnitzler & Krupman, Ann Bach-man Hale, Atlanta, Ga., for respondents.
Before KEITH and KRUPANSKY, Circuit Judges, and COHN, District Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
COHN, District Judge.
The National Labor Relations Board (the Board) petitions to enforce a supplemental back pay order directing respondents to make whole 28 discriminatees who were wrongfully discharged by Hardeman Garment Corp. (Hardeman), a subsidiary of Master Slack and/or Master Trousers Corp. Respondents challenge the Board order only as it relates to 11 discrimina-tees, and do not dispute the back pay awards ordered for the other 17. Their primary contention is that the Board erred in holding that certain findings made in the underlying unfair labor practices proceeding precluded respondents from contending in the back pay proceeding that a plant shutdown should cut off the back pay awards. Respondents also contend the Board’s back pay awards to two discrimina-tees are not supported by substantial evidence.
For the reasons stated below, we enforce the order only in part.
I. HISTORY
On July 20, 1973, the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Union), won an election among Hardeman’s production and maintenance employees at a plant located in Bolivar, Tennessee. The Union was certified by the Board on January 4, 1974.
Hardeman opposed the Union’s certification and continued to operate on the whole as if the Union didn’t exist. The Union filed several unfair labor practice charges from 1973 through 1974 over various company practices. The charges were consolidated and a single hearing was held before administrative law judge Thomas A. Ricci. As relevant here Judge Ricci found that Hardeman had violated Section 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(3), in terminating the night shift at the Bolivar plant, which resulted in the lay off of 20 workers, 3 days before the union election.
The Board, after exceptions were filed by both sides to Judge Ricci’s order, affirmed this ruling and determined that Hardeman had also violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), in laying off 8 more employees due to stricter enforcement of absenteeism and tardiness rules after the Union won the election. The Board further found Hardeman had violated Sections 8(a)(1) and (5) in failing to notify and bargain with the Union prior to the layoff of all employees (about 400) when the Bolivar plant was shut down in the fall of 1974 and also in failing to notify and bargain with the Union when the plant was reopened in 1975 and 80 employees were recalled. This court enforced the Board’s order. See NLRB v. Master Slack, 618 F.2d 6 (6th Cir.1980).
Judge Ricci, in discussing the appropriate remedy in the unfair labor practices proceeding, found that back pay awards in many cases should continue past the plant shutdown in 1974, even though he had earlier stated, “[tjhere is no contention by the General Counsel that the 1974 closing was occasioned by anything other than purely economic factors.” In their orders neither Judge Ricci nor the Board stated that back pay awards should run for any particular period; the orders merely stated that wrongfully discharged employees should be made whole “for any loss of pay or any benefits they may have suffered by reason of Respondent's discrimination against all of them.” Respondents did not object to Judge Ricci’s specific findings made about the length of the back pay periods in either their exceptions to the Board or in the enforcement proceeding before this court.
When the parties were unable to agree on compliance a supplemental hearing was held on June 23 and 24, 1981 before administrative law judge Philip P. McLeod. Judge McLeod rejected the company’s argument that the plant shutdown in 1974 should cut off back pay awards for all discriminatees. He concluded the doctrine of res judicata barred respondents from relitigating that issue since Judge Ricci had found that back pay awards in several instances continued past the shutdown. He further concluded that since respondents had acted unlawfully in shutting down and reopening the plant by failing to bargain with the Union the back pay awards should continue past that point.
In this proceeding for enforcement of the Board’s back pay order respondents contend Judge Ricci’s findings should not preclude relitigation on the effect of the plant shutdown on back pay awards. Respondents also contend there is not substantial evidence in the record to support the back pay awards to Willie Spencer and Margie Wilson.
II. ISSUE PRECLUSION
We must first determine whether Judge Ricci’s general finding that many back pay periods were to continue past the point of the plant shutdown precluded relitigation in the back pay proceeding on the effect of the plant shutdown on back pay awards. Generally, a factual finding which was necessary to support the judgment in a prior proceeding will bar relitigation on that issue in a subsequent proceeding involving the same parties. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 and n. 5, 99 S.Ct. 645, 649 and n. 5, 58 L.Ed.2d 552 (1979); Marlene Industries Corp. v. National Labor Relations Board, 712 F.2d 1011, 1015-16 (6th Cir.1983); United States v. Stauffer Chemical Co., 684 F.2d 1174, 1180 (6th Cir.1982), aff'd 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). The policies underlying this rule include the preservation of judicial resources and the protection of litigants. Montana, supra, 440 U.S. at 153-54, 99 S.Ct. at 973-74. The findings of agencies made in the course of proceedings which are judicial in nature should be given the same preclusive effect as findings made by a court. United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966).
Issue preclusion should only be applied where the identical issue sought to be relitigated was actually determined and necessarily decided in a prior proceeding in which the litigant against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. See Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Parklane Hosiery, supra, at 326 n. 5; Marlene Industries, supra, at 1015-16. A factual issue is “necessarily decided” if its determination was necessary to support the judgment entered in the prior proceeding. See 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4421, p. 192; Marlene Industries, supra, at 1015-16.
While the effect of the 1974 shutdown and 1975 reopening of the plant was actually litigated in the underlying unfair labor practices proceeding it was not necessary to the Board’s order. Accordingly Judge Ricci’s findings cannot preclude relitigation on that issue in the supplemental backpay proceeding.
“ Tt is basic to the law of [issue preclusion] that a finding in one proceeding cannot bind tribunals in subsequent cases unless the finding acted as a basis for final judgment in the first.’ ‘The determination of an issue in an earlier proceeding must be essential to the judgment; it cannot be dicta.’ ” (citations omitted)
Marlene Industries, supra, at 1015-16. See also Block v. Bourbon County Commissioners, 99 U.S. (4 Otto) 686, 693, 25 L.Ed. 491 (1878); Segal v. American Telephone & Telegraph Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.1979); Evans v. Wilkerson, 605 F.2d 369, 372 (7th Cir.1979).
Judge Ricci’s finding that back pay periods should continue past the point of the plant shutdown was not essential to either his order or the Board’s order; it was mere dicta. The Board’s order, like Judge Ric-ci’s order, simply states that respondents “shall ... [m]ake all ... [wrongfully discharged] employees whole for any loss of pay or any other benefits they may have suffered by reason of the respondent’s discrimination against all of them.” This is typical of orders in unfair labor practices proceedings where the Board simply determines if unfair labor practices have occurred and what remedies would effectuate the purposes of the Act. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 447, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); 29 C.F.R. § 102.45. The exact amount of back pay owing is not stated and is left to be determined in a subsequent back pay proceeding if the parties cannot resolve the amounts owing informally. See Deena Artware, supra; 29 C.F.R. § 102.52. Drawing an analogy from court cases, the unfair labor practices proceeding determines liability; a subsequent back pay proceeding, if necessary, determines damages.
The only factual determinations necessarily decided to enter an order that discharged employees be made whole are (1) that the respondent violated the Act in discharging employees, and, (2) that back pay is an appropriate remedy. See Section 10(c) of the Act, 29 U.S.C. § 160(c). It is not necessary to determine the exact amount of back pay owing nor whether subsequent events would have resulted in layoffs of discharged employees totally apart from the wrongful conduct.
“[Questions relating to the exact amount of back pay owing (including whether ... at some reasonably determinable date employment with [the company] would not have been available because [company] operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in [an] enforcement petition. Those issues may be explored in a compliance proceeding.”
Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255-56 (9th Cir.1978). See also, NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2nd Cir.1966).
In sum, Judge Ricci’s finding that back pay awards should continue past the point of the 1974 plant shutdown was not necessary to support his order or the Board’s order and therefore his finding does not bar relitigation on that issue. To the contrary, the determination of whether the shutdown should cut off back pay awards belonged in the back pay proceeding.
III. SECTION 8(a)(5) VIOLATIONS
This does not settle the matter since Judge McLeod did not solely rely on the doctrine of issue preclusion in ruling that the plant shutdown would not terminate back pay awards. He alternatively ruled against respondents because Hardeman violated § 8(a)(5) in failing to bargain with the Union when the plant was shut down in 1974 and reopened in 1975. He reasoned:
“Respondent’s argument [that the plant shutdown should terminate all backpay awards] overlooks the fact that the Board, with Circuit Court agreement, found the method in which Respondent effected both the layoff and recall to be unlawful in violation of Section 8(a)(5) of the Act. In order to find merit to this asserted defense of Respondent, one would have to invoke a presumption that if Respondent had acted lawfully and fulfilled its obligation to bargain with the Union in good faith, the exact same result would have occurred as did occur. Since it is impossible to determine what would have occurred if Respondent had fulfilled its lawful obligation to bargain with the Union, Respondent’s unlawful conduct could not serve to terminate backpay.”
Judge McLeod’s ruling, however, does not have factual support in the record and the remedy of back pay past the plant shutdown goes beyond the scope of proper remedies under the Act.
Section 10(c) of the Act, 29 U.S.C. § 160(c), charges the Board with “taking such affirmative action including reinstatement of an employée with or without back pay as will effectuate the policies of [the Act].” The Board’s discretion to fashion appropriate remedies for violations of the Act is quite broad and its choice of remedies should be set aside only if “it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969) (citation omitted).
Back pay awards are intended to “mak[e] employees whole for losses suffered on account of an unfair labor practice.” Id. (citation omitted). The purpose is to “restor[e] the economic status quo that would have obtained but for the company’s wrongful [act].” Id. It is improper, however, to award back pay if an employer can show that even if employees had been treated with total fairness they would have been discharged at a later date. See NLRB v. J.S. Alberici Construction Co., Inc., 591 F.2d 463, 470 n. 8 (8th Cir.1979); NLRB v. Amoco Chemicals Corp., 529 F.2d 427 (5th Cir.1976).
The Board ordered that backpay awards of employees discharged in 1973 continue past the shutdown of the Hardeman plant in the fall of 1974 solely because Hardeman failed to bargain with the Union over the effects of the shutdown and subsequent reopening of the plant. There was no finding, and no evidence, that the shutdown of the plant was motivated by any anti-union animus in violation of § 8(a)(3).
Backpay can be an appropriate remedy for a § 8(a)(5) violation. See Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254 (8th Cir.1970); Avila Group, Inc., 218 NLRB 633, 89 LRRM 1364 (1975); see also The Developing Labor Law, pp. 1676-1678 (Morris ed. 2d ed. 1985). It is a proper remedy where it serves to make whole employees for losses suffered due to an employer’s failure to bargain, and also where it creates an incentive for the employer to bargain in good faith with the union representing the employees. See Avila Group, supra. The backpay award in a failure to bargain case runs from the date of termination only until the parties reach agreement or a good faith impasse in bargaining, see The Developing Labor Law, supra, at 1677, and in any event is cut off if the union fails to request bargaining. Morrison Cafeterias, supra, at 254.
In this case the decision that back-pay awards for employees who had been wrongfully discharged over a year before the plant shutdown continue past the shutdown does not appear to serve any proper remedial purpose under the Act. All employees suffered equally due to Hardeman’s failure to bargain with the Union. The 11 employees listed in footnote 3 have no right under the Act, absent special facts, to preferential treatment over other employees. Seven of the 11 had been recalled to work before the plant shutdown. Backpay awards dating from the time each employee was wrongfully terminated until they were recalled or until the plant shutdown fully reestablishes the status quo and puts those individuals on an equal economic footing with all other plant employees. Any backpay awarded to remedy Hardeman’s failure to bargain, if appropriate at all, should be awarded equally to all employees affected by the plant shutdown, since all were equally injured by Harde-man’s failure to bargain, and not just to the 11 employees listed in footnote 3. The backpay awards for these 11 employees, insofar as they extend past the plant shutdown, appear to be punitive rather than remedial.
The Board’s order, awarding backpay past the plant shutdown only to certain employees, can be enforced only if there is evidence in the record to support the distinction made between employees who had been illegally terminated at an earlier date and all other employees. This requires a finding that had Hardeman bargained in good faith over the effects of the plant shutdown and the subsequent reopening the 11 employees listed in footnote 3 would have been given preferential hiring rights over all other employees.
Had Hardeman bargained in good faith with the Union several things could have happened. Hardeman and the Union could have reached an agreement to keep the plant totally or partially opened. However, even after bargaining in good faith, Harde-man could still have elected to shut down the plant for purely economic reasons. Hardeman was not required to bargain over the actual decision to shut down the plant but only over the effect of that decision on its employees. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981); NLRB v. Gibraltar Industries, Inc., 653 F.2d 1091 (6th Cir.1981). On the sparse record before us it is wholly speculative to state what would have happened had Hardeman bargained with the Union concerning the effects of the shutdown and reopening of its plant. It stretches credulity to suggest that the Union, charged with representing all plant employees, would have insisted that the 11 discriminatees listed in footnote 3 be given preferential hiring, disregarding their length of service in relation to other employees.
Backpay awards to the 11 employees listed in footnote 3 which extend past the plant shutdowns do not further any policy under the Act and will not be enforced.
IV. WILLIE SPENCER AND MARGIE WILSON
Respondents specifically challenge the Board's award of back pay to two discrimi-natees as not supported by substantial evidence in the record. Respondents argue Willie Spencer never looked for replacement work after being discharged from Hardeman and is therefore not entitled to back pay. Respondents also contend Margie Wilson failed to engage in a diligent search for interim employment after the second quarter of 1974.
When an employee is discharged due to anti-union animus there is a presumption that some back pay is owing. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2nd Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). The respondent has the burden of proving that a back pay award should be reduced due to a willful failure to seek interim employment. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978). This court recently summarized the law concerning the failure of discharged employees to mitigate damages in NLRB v. The Westin Hotel, 758 F.2d 1126 (6th Cir.1985):
“[A] wrongfully discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage.
Finally, it must be remembered that the Board’s conclusion as to whether an employer’s asserted defenses against liability have been successfully established will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board’s findings.”
Id. at 1130 (citations omitted).
A. Willie Spencer
Willie Spencer already had a day job when he was laid off by Hardeman. He did not look for other work until he was laid off from his day job. Respondents contend this demonstrates Spencer’s night job at Hardeman was only “supplemental”. Judge McLeod found that it was impossible to determine which job was “primary” and which “supplemental”, and that it was just as plausible to assume that had Spencer lost his day job he would have been content to work at only his night job at Hardeman. Judge McLeod’s determination is reasonable on the record before us; there is therefore substantial evidence to support the Board’s decision that Spencer was entitled to back pay, with the computation being tolled during the period he worked at his day job. After he was laid off from his day job, Spencer diligently looked for other employment. The Board’s order for back pay to Spencer is enforced, with the limitation set forth in Section III of this opinion.
B. Margie Wilson
Margie Wilson’s testimony was that she consistently applied for jobs from 1973 through 1980. Respondents contend her testimony showed that when she was employed during that period her efforts at working were half-hearted and that as a consequence she made herself unemployable.
Wilson explained the reasons she left each job where she was employed from 1973 through 1980. Judge McLeod credited her testimony, even though he found her answers were often “vague and indefinite.” He noted Wilson is rural and uneducated and that the vagueness in her testimony was probably caused by these factors coupled with the difficulty of remembering events spreading over 8 years prior to the hearing. There is substantial evidence in the record to support the Board’s order of back pay to Wilson; she made a “reasonable effort to mitigate damages.” Westin Hotel, supra, at 1130.
V. SUMMARY
The Board’s order of back pay for the 17 discriminatees listed in footnote 4 is enforced in full. Respondents do not challenge those awards. The Board order of back pay for the 11 discriminatees listed in footnote 3 is only enforced through the mid-third quarter of 1974, when the Harde-man plant shut down. Any backpay award to the employees listed in footnote 3 beyond that quarter is denied enforcement.
. These individuals are called discriminatees because their discharge was motivated by an anti-union discriminatory animus.
. Apart from Master Slack the other named respondents are all, like Hardeman, wholly owned subsidiaries of Master Slack. Master Slack and the other subsidiaries were joined as defendants solely for purposes of the back pay awards. See NLRB v. Master Stack, 618 F.2d 6 (6th Cir.1980).
. Earlie Cheairs, Ray Davis, Alma Jones, Nathaniel McClellan, Gladys McGowan, Doris McNeal, Wiley Murphy, Lurlene Pirtle, Willie Spencer, Ressie Ford Traylor, and Margie Wilson. Of these, Cheairs, Traylor, Pirtle, McNeal, McClellan, Jones, and Davis were rehired at various points in time from August, 1973 through May, 1974. However, they all lost their jobs when the Hardeman plant was shut down in the fall of 1974 and none of them were rehired when the plant reopened in 1975.
. Grace Beard, Mose Burkley, Peggy Peoples Harris, Freddie Jones, Mattie Jones, Earline Lake, Leroy Lake, Annie McKinnie, Percy McNeal, Donald Moss, Vera Norment, Juanita Phillips, Allan Lynn Russell, Johnny Russell, Leo Sain, Ernest Williams, and Patricia Williams.
. Willie Spencer and Margie Wilson, 2 of the 11 discriminatees listed in footnote 3, supra.
. This section states that it shall be an unfair labor practice for an employer to "discrimi-nat[e] in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage membership in any labor organization.”
. Sec. 8(a)(1) states that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights [to organize and participate in labor organizations]”.
. In Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984), the United States Supreme Court discussed the confusing variance in terminology surrounding the concept of preclusion:
“The preclusive effects of former adjudications are discussed in varying and, at times, seemingly conflicting terminology____ These effects are referred to by most commentators as the doctrine of ‘res judicata’. Res judicata is often analyzed further to consist of two preclusion concepts: 'issue preclusion’ and ‘claim preclusion’. Issue preclusion refers to the effect of a judgment in foreclosing relit-igation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit____
This Court on more than one occasion has used the term 'res judicata’ in a narrow sense, so as to exclude issue preclusion or collateral estoppel. When using that formulation, ‘res judicata’ becomes virtually synonymous with ‘claim preclusion’. In order to avoid confusion resulting from the two uses of ‘res judica-ta’, this opinion utilizes the term ‘claim preclusion' to refer to the preclusive effect of a judgment in foreclosing relitigation of matters that should have been raised in an earlier suit.”
In this case the parties and the Board all referred generally to the doctrine of “res judica-ta” even though the problem here is one of issue preclusion rather than claim preclusion. For the sake of clarity this court will follow the lead of the Supreme Court. Accordingly, the term "issue preclusion” will be used throughout this opinion in discussing whether respondent is foreclosed from relitigating issues decided in the prior unfair labor practices proceeding.
. Had the Board found that anti-union animus in violation of § 8(a)(3) had been the cause of the plant shutdown it could have awarded back-pay extending past the plant shutdown not only to employees illegally discharged prior to the shutdown but to all the employees at the plant. See NLRB v. National Car Rental System, Inc., 672 F.2d 1182, 1191 (3d Cir.1982); Electrical Products Division of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir.1980), cert. den. 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980).
. The record does not contain the date when Spencer was laid off from his day job.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_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.
CHICAGO & SOUTHERN AIR LINES, INC. v. WATERMAN STEAMSHIP CORP.
NO. 78.
Argued November 19, 1947. —
Decided February 9, 1948.
R. Emmett Kerrigan argued the cause and filed a brief for petitioner in No. 78.
Robert L. Stern argued the cause for petitioner in No. 88. With him on the brief were Solicitor General Perl-man, Robert W. Ginnane, Emory T. Nunneley and Oliver Carter.
Bon Geaslin argued the cause for respondent. With him on the brief were Francis H. Inge and Joseph M. Paul, Jr.
Mr. Justice Jackson
delivered the opinion of the Court.
The question of law which brings this controversy here is whether § 1006 of the Civil Aeronautics Act, 49 U. S. C. § 646, authorizing judicial review of described orders of the Civil Aeronautics Board, includes those which grant or deny applications by citizen carriers to engage in overseas and foreign air transportation which are subject to approval by the President under § 801 of the Act. 49 U. S. C. § 601.
By proceedings not challenged as to regularity, the Board, with express approval of the President, issued an order which denied Waterman Steamship Corporation a certificate of convenience and necessity for an air route and granted one to Chicago and Southern Air Lines, a rival applicant. Routes sought by both carrier interests involved overseas air transportation, § 1 (21) (b), between Continental United States and Caribbean possessions and also foreign air transportation, § 1 (21) (c), between the United States and foreign countries. Waterman filed a petition for review under § 1006 of the Act with the Circuit Court of Appeals for the Fifth Circuit. Chicago and Southern intervened. Both the latter and the Board moved to dismiss, the grounds pertinent here being that because the order required and had approval of the President, under § 801 of the Act, it was not reviewable. The Court of Appeals disclaimed any power to question or review either the President’s approval or his disapproval, but it regarded any Board order as incomplete until court review, after which “the completed action must be approved by the President as to citizen air carriers in cases under Sec. 801.” 159 F. 2d 828. Accordingly, it refused to dismiss the petition and asserted jurisdiction. Its decision conflicts with one by the Court of Appeals for the Second Circuit. Pan American Airways Co. v. Civil Aeronautics Board, 121 F. 2d 810. We granted certiorari both to the Chicago and Southern Air Lines, Inc. (No. 78) and to the Board (No. 88) to resolve the conflict.
Congress has set up a comprehensive scheme for regulation of common carriers by air. Many statutory provisions apply indifferently whether the carrier is a foreign air carrier or a citizen air carrier, and whether the carriage involved is “interstate air commerce,” “overseas air commerce” or “foreign air commerce,” each being appropriately defined. 49 U. S. C. § 401 (20). All air carriers by similar procedures must obtain from the Board certificates of convenience and necessity by showing a public interest in establishment of the route and the applicant's ability to serve it. But when a foreign carrier asks for any permit, or a citizen carrier applies for a certificate to engage in any overseas or foreign air transportation, a copy of the application must be transmitted to the President before hearing; and any decision, either to grant or to deny, must be submitted to the President before publication and is unconditionally subject to the President’s approval. Also the statute subjects to judicial review “any order, affirmative or negative, issued by the Board under this Act, except any order in respect of any foreign air carrier subject to the approval of the President as provided in section 801 of this Act.” It grants no express exemption to an order such as the one before us, which concerns a citizen carrier but which must have Presidential approval because it involves overseas and foreign air transportation. The question is whether an exemption is to be implied.
This Court long has held that statutes which employ broad terms to confer power of judicial review are not always to be read literally. Where Congress has authorized review of “any order” or used other equally inclusive terms, courts have declined the opportunity to magnify their jurisdiction, by self-denying constructions which do not subject to judicial control orders which, from their nature, from the context of the Act, or from the relation of judicial power to the subject-matter, are inappropriate for review. Examples are set forth by Chief Justice Hughes in Federal Power Commission v. Edison Co., 304 U. S. 375, 384. Cf. Rochester Telephone Corp. v. United States, 307 U.S. 125, 130.
The Waterman Steamship Corporation urges that review of the problems involved in establishing foreign air routes are of no more international delicacy or strategic importance than those involved in routes for water carriage. It says, “It is submitted that there is no basic difference between the conduct of the foreign commerce of the United States by air or by sea.” From this premise it reasons that we should interpret this statute to follow the pattern of judicial review adopted in relation to orders affecting foreign commerce by rail, Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654; News Syndicate Co. v. New York Central R. Co., 275 U. S. 179, or communications by wire, United States v. Western Union Telegraph Co., 272 F. 893, or by radio, Mackay Radio & Telegraph Co. v. Federal Communications Commission, 68 App. D. C. 336, 97 F. 2d 641; and it likens the subject-matter of aeronautics legislation to that of Title VI of the Merchant Marine Act of 1936, 46 U. S. C. § 1171, and the function of the Aeronautics Board in respect to overseas and foreign air transportation to that of the Maritime Commission to such commerce when water-borne.
We find no indication that the Congress either entertained or fostered the narrow concept that air-borne commerce is a mere outgrowth or overgrowth of surface-bound transport. Of course, air transportation, water transportation, rail transportation, and motor transportation all have a kinship in that all are forms of transportation and their common features of public carriage for hire may be amenable to kindred regulations. But these resemblances must not blind us to the fact that legally, as well as literally, air commerce, whether at home or abroad, soared into a different realm than any that had gone before. Ancient doctrines of private ownership of the air as appurtenant to land titles had to be revised to make aviation practically serviceable to our society. A way of travel which quickly escapes the bounds of local regulative competence called for a more penetrating, uniform and exclusive regulation by the nation than had been thought appropriate for the more easily controlled commerce of the past. While transport by land and by sea began before any existing government was established and their respective customs and practices matured into bodies of carrier law independently of legislation, air transport burst suddenly upon modern governments, offering new advantages, demanding new rights and carrying new threats which society could meet with timely adjustments only by prompt invocation of legislative authority. However useful parallels with older forms of transit may be in adjudicating private rights, we see no reason why the efforts of the Congress to foster and regulate development of a revolutionary commerce that operates in three dimensions should be judicially circumscribed with analogies taken over from two-dimensional transit.
The “public interest” that enters into awards of routes for aerial carriers, who in effect obtain also a sponsorship by our government in foreign ventures, is not confined to adequacy of transportation service, as we have held when that term is applied to railroads. Texas v. United States, 292 U. S. 522, 531. That aerial navigation routes and bases should be prudently correlated with facilities and plans for our own national defenses and raise new problems in conduct of foreign relations, is a fact of common knowledge. Congressional hearings and debates extending over several sessions and departmental studies of many years show that the legislative and administrative processes have proceeded in full recognition of these facts.
In the regulation of commercial aeronautics, the statute confers on the Board many powers conventional in other carrier regulation under the Congressional commerce power. They are exercised through usual procedures and apply settled standards with only customary administrative finality. Congress evidently thought of the administrative function in terms used by this Court of another of its agencies in exercising interstate commerce power: “Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control.” Humphrey’s Executor v. United States, 295 U. S. 602, 628. Those orders which do not require Presidential approval are subject to judicial review to assure application of the standards Congress has laid down.
But when a foreign carrier seeks to engage in public carriage over the territory or waters of this country, or any carrier seeks the sponsorship of this Government to engage in overseas or foreign air transportation, Congress has completely inverted the usual administrative process. Instead of acting independently of executive control, the agency is then subordinated to it. Instead of its order serving as a final disposition of the application, its force is exhausted when it serves as a recommendation to the President. Instead of being handed down to the parties as the conclusion of the administrative process, it must be submitted to the President, before publication even can take place. Nor is the President’s control of the ultimate decision a mere right of veto. It is not alone issuance of such authorizations that are subject to his approval, but denial, transfer, amendment, cancellation or suspension, as well. And likewise subject to his approval are the terms, conditions and limitations of the order. 49 U. S. C. § 601. Thus, Presidential control is not limited to a negative but is a positive and detailed control over the Board’s decisions, unparalleled in the history of American administrative bodies.
Congress may of course delegate very large grants of its power over foreign commerce to the President. Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294; United States v. Bush & Co., 310 U. S. 371. The President also possesses in his own right certain powers conferred by the Constitution on him as Commander-in-Chief and as the Nation’s organ in foreign affairs. For present purposes, the order draws vitality from either or both sources. Legislative and Executive powers are pooled obviously to the end that commercial strategic and diplomatic interests of the country may be coordinated and advanced without collision or deadlock between agencies.
These considerations seem controlling on the question whether the Board’s action on overseas and foreign air transportation applications by citizens are subject to revision or overthrow by the courts.
It may be conceded that a literal reading of § 1006 subjects this order to re-examination by the courts. It also appears that the language was deliberately employed by Congress, although nothing indicates that Congress foresaw or intended the consequences ascribed to it by the decision of the Court below. The letter of the text might with equal consistency be construed to require any one of three things: first, judicial review of a decision by the President; second, judicial review of a Board order before it acquires finality through Presidential action, the court’s decision on review being a binding limitation on the President’s action; third, a judicial review before action by the President, the latter being at liberty wholly to disregard the court’s judgment. We think none of these results is required by usual canons of construction.
In this case, submission of the Board’s decision was made to the President, who disapproved certain portions of it and advised the Board of the changes which he required. The Board complied and submitted a revised order and opinion which the President approved. Only then were they made public, and that which was made public and which is before us is only the final order and opinion containing the President’s amendments and bearing his approval. Only at that stage was review sought, and only then could it be pursued, for then only was the decision consummated, announced and available to the parties.
While the changes made at direction of the President may be identified, the reasons therefor are not disclosed beyond the statement that “because of certain factors relating to our broad national welfare and other matters for which the Chief Executive has special responsibility, he has reached conclusions which require” changes in the Board’s opinion.
The court below considered, and we think quite rightly, that it could not review such provisions of the order as resulted from Presidential direction. The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. Coleman v. Miller, 307 U. S. 433, 454; United States v. Curtiss-Wright Corp., 299 U. S. 304, 319-321; Oetjen v. Central Leather Co., 246 U. S. 297, 302. We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial Department.
The court below thought that this disability could be overcome by regarding the Board as a regulatory agent of Congress to pass on such matters as the fitness, willingness and ability of the applicant, and that the Board’s own determination of these matters is subject to review. The court, speaking of the Board’s action, said: “It is not final till the Board and the court have completed their functions. Thereafter the completed action must be approved by the President as to citizen air carriers in cases under Sec. 801.” The legal incongruity of interposing judicial review between the action by the Board and that by the President are as great as the practical disadvantages. The latter arise chiefly from the inevitable delay and obstruction in the midst of the administrative proceedings. The former arises from the fact that until the President acts there is no final administrative determination to review. The statute would hardly have forbidden publication before submission if it had contemplated interposition of the courts at this intermediate stage. Nor could it have expected the courts to stay the President’s hand after submission while they deliberate on the inchoate determination. The difficulty is manifest in this case. Review could not be sought until the order was made available, and at that time it had ceased to be merely the Board’s tentative decision and had become one finalized by Presidential discretion.
Until the decision of the Board has Presidential approval, it grants no privilege and denies no right. It can give nothing and can take nothing away from the applicant or a competitor. It may be a step which if erroneous will mature into a prejudicial result, as an order fixing valuations in a rate proceeding may fore-show and compel a prejudicial rate order. But administrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process. United States v. Los Angeles & Salt Lake R. Co., 273 U. S. 299; United States v. Illinois Central R. Co., 244 U. S. 82; Rochester Telephone Corp. v. United States, 307 U. S. 125, 131. The dilemma faced by those who demand judicial review of the Board’s order is that before Presidential approval it is not a final determination even of the Board’s ultimate action, and after Presidential approval the whole order, both in what is approved without change as well as in amendments which he directs, derives its vitality from the exercise of unreviewable Presidential discretion.
The court below considered that after it reviewed the Board’s order its judgment would be submitted to the President, that his power to disapprove would apply after as well as before the court acts, and hence that there would be no chance of a deadlock and no conflict of function. But if the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.
To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form — advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action. Hayburn’s Case, 2 Dali. 409; United States v. Ferreira, 13 How. 40; Gordon v. United States, 117 U. S. 697; In re Sanborn, 148 U. S. 222; Interstate Commerce Commission v. Brimson, 154 U. S. 447; La Abra Silver Mining Co. v. United States, 175 U. S. 423; Muskrat v. United States, 219 U. S. 346; United States v. Jefferson Electric Co., 291 U. S. 386.
We conclude that orders of the Board as to certificates for overseas or foreign air transportation are not mature and are therefore not susceptible of judicial review at anytime before they are finalized by Presidential approval. After such approval has been given, the final orders embody Presidential discretion as to political matters beyond the competence of the courts to adjudicate. This makes it unnecessary to examine the other questions raised. The petition of the Waterman Steamship Corp. should be dismissed.
Judgment reversed.
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED ADVERTISING CORPORATION OF TEXAS v. STIMSON et al.
No. 8183.
Circuit Court of Appeals, Fifth Circuit.
April 17, 1937.
Rehearing Denied May 18,1937.
J. Hart Willis, of Dallas, Tex., Geo. L. Wilkinson, of Chicago, Ill., and Edward H. Cumpston, of Rochester, N. Y., for appellant.
John H. Bruninga, of St. Louis, Mo., and Robert B. Holland, of Dallas, Tex., for appellees.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
This is an appeal from an interlocutory decree sustaining the validity, as to claims 2, 3, 12, and 13, of letters patent of the United States, Re No. 18,166 reissued August 25, 1931, to Jonathan Stimson for improvements in luminous display or reflector sign's. The appellees, Stimson and American Gas Accumulator Company, were decreed to be the owners of said patent and the exclusive licensees thereunder, respectively. The appellant, United Advertising Corporation of Texas, was adjudged to have infringed said four claims by the manufacture and installation of signs employing reflector units not manufactured or licensed by appellees. A permanent writ of injunction was issued restraining further infringement, and a master was appointed by the court to assess the damages sustained by appellees.
Claim 2 of the patent in suit refers to a light" source and luminous sign made of letters displayed by means of a reflecting area, composed of a series of reflecting units arranged in a contiguous relation, and constructed and positioned to cause a definite spread of the reflected light and to confine it to a selected field. Claim 3 is identical with claim 2, except therein it is specified that each of the reflecting units shall be so constructed as to cause a definite beam-spread of uniform intensity, the composite beam from’ all the units being confined within the selected field. Claim 12 refers to a reflecting sign in which the characters are outlined with units of reflecting areas adapted to reflect incident light from a distant source in the general direction of its origin with a slight spread of the reflected light. Claim 13 is the same as claim 12, except that the sign is described as having reflecting units arranged along the strokes of the characters.
Nowhere in the patent is there a description of the reflecting area or of the reflecting units, nor is there any direction as to how such reflection is to be accomplished. In the drawings accompanying the application, illustrations are given which disclose that the patentee contemplated the use of pressed or molded glass plates made up of cube-cornered prisms. These plates are known to give the effect of a multiplicity of contiguous triple reflector units. The sign which it is alleged infringes the patent is made up of multiple lens-mirror buttons, also known to have a retroreflec-tive effect on the light falling within their range of operation.
An ideal triple reflector would be made up of three triangular plane mirrors so shaped and placed that each would be at right angles to the other, forming a prism having a front or base which would make an equilateral triangle. In addition to the base, this prism would have three triangular sides,, each with a right angle at its apex and 45 degree angles at its base. When a ray of light traveling toward the base of the prism, in a line of not too great deviation from the perpendicular thereto, would strike one of the plane mirrors, its reflection being in accordance with the rule that the angle of reflection is equal to the angle of incidence, it would be reflected to a second mirror, thence to a third, thence back to its source, much the same as if it had encountered a single plane mirror perpendicular to the ray and of a size and shape equal to the projection of the triangular base on a plane perpendicular to the course of the light. This is because each of the three reflectors, being set in a different plane, and all being at angles with any plane passing through the line of direction in which the light travels, would reflect the light at angles which, when projected on any plane passing through the line of light, would total 180 degrees.
However, it is elementary that unre-fracted light does not travel in parallel lines, but that every beam is traveling with a definite spread which is in proportion to the square of the distance from its source. It is also known that a plane reflector does not interrupt this spread, but simply changes its direction, so that if the direction of reflection is opposite to the direction of radiation, the light from a single point will have spread over an area with dimensions twice those of the mirror when it returns to its source. It is also known that visible light does not radiate from a single point but, in every instance, comes -from an infinite number of points or a radiant surface. Hence, if the radiant surface is equal in size and shape to the mirror, the reflected light returns to its source in a beam of equal intensity over an area equal to that of the radiant surface, outside of, and immediately surrounding which, there is an illuminated area of diminishing intensity beginning with that of the inclosed area and disappearing altogether when its outside dimensions are three times as great
The lens mirror used by appellants does not embody any of the characteristics of the triple reflector. In principle, it focuses the beam of incident light by lens refraction, so that it is brought together at a point on a concave mirror so curved as to have its tangent at the point of reflection perpendicular to the axis of the cone of refracted light. This causes reflection of a cone of identical dimensions, but in which the rays of light have been reversed in their positions. Passing out through the same lens, they are again arranged in substantially the same relation as when they entered. In practice, with corrections for spherical and chromatic aberrations, and a slight deviation from a true focus, the lens mirror button produces a luminous area of uniform intensity with a light spread much greater than that of the incident light. It makes no difference whether the mirror be ahead of the focus or behind it, or whether the light converges in front of the lens, or scatters on leaving it; so long as the rays are not parallel, or nearly so, the reflected light is spread over a field the size of which is determined by the curvature of the lens and mirror, or their relationship to each other.
In the devices used by both appellant and appellees, manufacturing inaccuracies play an important part. In pressed or molded cube prism plate glass, bulges and ridges occur in the surface of the cube faces, or the same condition may result from irregular contraction while cooling. These irregularities are relied upon by ap-pellees to produce a spread in the light. However, another spread occurs because of unavoidable deviations from right angles on the edges of the cubes. A deviation in one angle results in a beam of reflected light which splits into two parts. Two inaccurate angles produce four beams, and three produce six. If the angles could be made accurately, a larger reflecting unit would produce a proportionately larger illuminating beam and beam-spread; but the angles cannot be made perfect, and the resulting split in the light produces dark spots which are the same size as the inaccurate units. Therefore, appellees use a multiplicity of small units in an effort to produce an area from which the reflected light from one unit overlaps that of another, and on which the dark spot resulting from an inaccurately formed cube corner will be as small as possible. The lens mir-' ror button would be useless if it produced a perfect focus upon a correspondingly perfect mirror with perfect corrections for aberrations. Hence, it is manufactured within certain limits of tolerance to produce the desired spread of light. With the irregular cube faces to produce the spread, cube-cornered glass cannot be manufactured with sufficient accuracy to prevent dark spots in the field.
The assignments of error which we think are well taken are based upon invalidity for want of novelty, lack of invention, and failure to disclose the means which would enable one skilled in the art to produce the result. A statement of our conclusions with reference to these assignments will render it unnecessary to discuss the charge of infringement.
Appellees admitted of record below, and in the argument here, that both the lens mirror used by appellant and the triple reflecting units disclosed by the Stimson patent were old, 'and that it was the combination which they claimed .to be patentable. These admissions are in accord with the proof of appellant upon the subject of prior art; and, since the reflecting prism means of the patent and the lens mirror button used by appellant were devoid of novelty, the use of such old reflecting means in the old combination of sign characters and reflectors did not produce any new function or result, and was lacking in patentable novelty or invention.
Appellees rely upon a controlled and narrowly confined beam spread as a novel improvement upon all prior inventions in the art. Conceding that such a contribution would have been valuable, we do not find the means for producing the result disclosed by the claims of the patent. It is said that Stimson wanted a narrow spread to confine and concentrate the light in the useful field where the public traveling on the highway was going to view his sign; that he wanted to confine the beam spread so as to get a more brilliant illumination within a more limited field. If this was what he had in mind, he failed to describe the means of its accomplishment in either the claims or specifications. Therefore, he has not paid the price of patent protection. Beidler v. United States, 253 U.S. 447, 40 S.Ct. 564, 64 L.Ed. 1006; Permutit Co. v. Graver Corporation, 284 U.S. 52, 53, 60, 52 S.Ct. 53, 55, 76 L.Ed. 163.
In claims 2 and 3, a light source in front of the sign is mentioned. Nothing is said concerning the direction of the reflected light, except that it shall be to a selected field. These claims would be satisfied by a reflector which illuminated the selected field with light originating outside the field, which function neither the triple reflector nor the lens mirror button would perform. In claims 12 and 13, the reflection is to be “back in the general direction of” the light from a distant source. Here, again, there is no requirement that the light source be within the selected field. It cannot be said that these claims embrace light from any source. Should such an invention be perfected, it would not bear on the patent in suit, since the only feature that the two would have in common would be that when the source of light falling upon the latter device was within the selected field, it would be reflected in that general direction. To allow the patent in suit to cover this common feature would be to allow a patent upon a result, rather than upon an art, machine, manufacture, or composition.
It is well established that a mere result cannot be patented. General Electric Co. v. Sundh Electric Co. (C.C.A.) 251 F. 283; Hale Manufacturing Co. v. Hafleigh & Co. (C.C.A.) 52 F.(2d) 714. Likewise, the reflection of light from a distant source, or from a given source, into a restricted field is a mere function or result. Whether the means of producing this result would furnish a recognizable claim for patentability need not be considered by us, since the patent here in suit does not disclose the means, which, according to Stimson’s testimony, were necessary for a reflecting sign. He says: “I was after a more narrowly confined beam spread all the time.” He describes his attempt to secure this “by means of greater accuracy in the molded structure,” and claims to have worked out a sectional type of mold which could not be made in the average glass mold-making shop. From December, 1922, to March, 1923, he was working to confine the beam spread in order to get a more brilliant illumination. It cannot be claimed that the means were obvious to one skilled in the art, because the method of controlling the beam spread is the essence of the invention claimed. To say it was obvious to the ordinary workman is to say there was .no invention, only an aggregation of old elements. Stimson admits that a reflected beam with no spread is not within the patent, but he refused in his testimony • accurately to define a narrow beam, and he failed to teach the public both how to practice the art and how to avoid infringement. In a sentence, what the patentee declared in claims 2, 3, 12, and 13 to be his invention is clearly shown to have been anticipated by the prior art, and what appel-lees now assert to be the invention is not disclosed by the patent in suit. It follows that the claims relied upon to support the decree appealed from are invalid.
For the reasons given, the decree of the District Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_attyfee
|
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 attorneys' fees 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".
H & J FOODS, INC., Plaintiff-Appellee, v. Gail REEDER, dba Nutrifoods Co., Defendant-Appellant.
No. 71-1669.
United States Court of Appeals, Ninth Circuit.
April 25, 1973.
Francis A. Utecht (argued), Fulwider, Patton, Rieber, Lee & Utecht, Long Beach, Cal., for defendant-appellant.
James W. Geriak (argued), James J. Short, Lyon & Lyon, Los Angeles, Cal., for plaintiff-appellee.
Before CHAMBERS, HAMLEY, and GOODWIN, Circuit Judges.
. Circuit Judge Hamley lias not participated in the within opinion, being temporarily disabled.
OPINION
CHAMBERS, Circuit Judge:
“Hunza” seems to be a word with some sales appeal when exploited in the rapidly growing health foods business.
A small operator, Floyd Hampson, who was using the name of Hunza for some of his products, registered the name as a trademark in the United States Patent Office in 1957. It was registered for: “Vitamin-Mineral Food Supplement, including Herbs and Grasses, in Powdered, Tablet and Tea Forms.” Hampson’s early advertising, before the health food business generally burgeoned, is marvelous. According to his claims, the Hunzas were a healthy little tribe of agrarians in the high mountains of Asia where the soil is especially rich and unique. Hampson had found himself a similar Eden, a farm near Cherry Creek hard by the little town of Duvall, Washington. There mud on the farm had the texture of hand cream. There Hunza grass was grown, but not allowed to mature. Its tender shoots were cut with a field chopper. Then it was idyllically processed by flash dehydration. One might remain lost in the puffery, except the great product, never touched by human hands, came down to reality with the postscript notation: “Does not contain alfalfa.”
Maybe Hampson was before his time (or maybe he just did not live in Southern California where one’s odd dreams can often be richly exploited), but he did not do well financially with his “great” product. Eventually in 1968 he sold his dreams and the trademark to Herman Jacobs, one of the owners of H & J Foods, Inc., for $500.00. Jacobs turned it over to the company. Tangibly, in addition to the copyright, there came along a lot of Hampson’s unused labels.
But somehow, someway, one Rowe, the predecessor of Reeder, the defendant, operating as Nutrifoods Co. in Southern California, became aware of the legend of Hunza and he started producing health foods, labelling them Hunza®. The printer’s bug ® is the historical symbol for a registered trademark. Neither Rowe nor Reeder ever attempted to register Hunza as a trademark. (H & J is also a Southern California food producer.)
Within a few months after the purchase, H & J had sued Reeder, seeking an injunction and an accounting of profits. The first count was for trademark infringement. The second was a pendent count for unfair competition. H & J Foods, Inc., received a judgment against Reeder of $26,519.07 plus interest and heavy costs, which included attorney fees of $14,040.00. The attorney fees are allowable under California’s statutory law on unfair competition. Fleischmann Distilling Corp. v. Maier Brewing Company, 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Friend v. H. A. Friend & Co., 416 F.2d 526 (9th Cir. 1969).
On this appeal, the whole result is attacked. We affirm the granting of the injunction, but hold that the assignment carried no right to profits before the date of the assignment. Further, this result will necessarily require a heavy reduction in the attorney fees allowed. Also, some adjustment will have to be made in the amount assessed as the cost of the accounting.
Reeder does not challenge the validity of Hampson’s registration of “Hunza.” He does, however, challenge the assignment of the mark to Jacobs. Most of his objections are to the district court’s findings of fact.
The claim that Reeder presses most vigorously is that the assignment was invalid because it was “in gross,” and an assignment apart from the business with which the mark has been associated. See Mister Donut of America v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969), and 15 U.S.C. § 1060.
While Hampson did not transfer much except the trifling amount of goodwill along with his trademark, the reason was that he had little else to transfer in the way of tangible assets related to “Hunza.” The district court found that “Herman Jacobs contacted Hampson and by assignment August 7, 1968, purchased from Hampson for $500 all right, title and interest in and to the trademark ‘Hunza,’ including the right to sue for past infringements, together with the goodwill of the business symbolized and appurtenant to the mark, Registration No. 644,085, and a quantity of ‘Hunza’ labels, advertising news releases, and promotional materials.”
Except as to past infringement, we believe the court’s finding is supported by the evidence, and is therefore proper. Hampson gave up the right to use the mark, “Hunza,” and Jacobs acquired all of Hampson’s related tangible assets of any conceivable value. In this case, this was sufficient. Cf. Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F. 2d 675 (C.C.P.A.1971).
Reeder further contends that H & J has used the “Hunza” mark on products so dissimilar to the registration specifications that the mark is invalid. Although we might have found differently, the district court found substantial similarity, and we do not believe that finding is clearly erroneous.
On H & J’s pendent claim arising under California’s unfair competition law, the court found that the public was likely to be deceived by Reeder’s use of the mark “Hunza,” and the bug,®. We express no opinion on the validity of the finding to the extent it involves use of ®. The finding of deception based on use of “Hunza” alone is sufficient, and it is supported by the evidence. See Payne v. United California Bank, 23 Cal.App.3d 850, 100 Cal.Rptr. 672 (1st Dist.1972). A specific finding of “palming off” was not necessary.
Much of the award stems from damages for infringement by Reeder prior to the assignment from Hampson to Jacobs. Such pre-assignment damages are disfavored, and they are allowed only when the right to sue is clearly spelled out in a valid assignment. George W. Luft Co., Inc., v. Zande Cosmetic Co., Inc., 142 F.2d 536 (2d Cir. 1944). Here, the only evidence of Hampson’s intent to assign the right to sue for past infringement is the following statement of Herman Jacobs. “[Hampson] also gave a remark. He said, ‘If you get the mark, you can sue that guy in Tulsa, Oklahoma, Akin [a former partner of Reeder], because he is using the mark illegally.’ ” We do not pass on the question whether this parol evidence was properly admitted. We do feel, however, this kind of testimony is insufficient to entitle H & J to pick up pre-assignment damages. The language, if admissible, is not express enough. This conclusion will have a heavy impact on the amount of damages, and as above indicated, the district court must reconsider on remand the amount of attorneys’ fees and the amount of costs.
The district court was not clearly erroneous in its implicit rejection of Reed-er’s “clean hands” argument.
As an epilogue, we note that probably counsel would have served their clients just as well without overridiculing each others’ briefs. The briefs, perchance, were written for their respective clients, not us.
The judgment is affirmed as to the granting of the injunction. Otherwise, the judgment is remanded for proceedings consistent with this opinion.
Each side will bear its own costs of the appeal.
. United States Patent Office Trademark Registration No. 644,085.
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
ROBERTSON v. UNITED STATES.
No. 388.
Argued March 31, 1952.
Decided June 2, 1952.
Samuel E. Blackham argued the cause for petitioner. With him on the brief was Clyde D. Sandgren.
Marvin E. Frankel argued the cause for the United States. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Slack and Harry Baum.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner is a musician and composer who between the years 1936 and 1939 composed a symphony. In 1945 Henry H. Reichhold, a philanthropist, established a music award offering $25,000, $5,000, and $2,500 for the three best symphonic works written by native-born composers of this hemisphere. The terms of the offer provided that none of the compositions could be published or publicly performed prior to entry in the contest and that each composition receiving an award would remain the property of the composer except that he would grant the Detroit Orchestra, Inc., (1) all synchronization rights as applied to motion pictures, (2) all mechanical rights as applied to phonograph recordings, electrical transcriptions and music rolls, and (3) the exclusive right to authorize the first performance of the composition in each of the countries whose citizens were eligible to enter the contest and to designate the publisher of the composition.
Petitioner submitted his symphony and on December 14, 1947, won the $25,000 award. He included that amount in his 1947 income tax return as gross income, claimed the benefits of § 107 (b) of the Internal Revenue Code (26 U. S. C. (1946 ed.) § 107 (b), 53 Stat. 878, as amended), and computed the tax as though the $25,000 had been received ratably during the years 1937, 1938, and 1939. Thereafter he filed a claim for refund on the ground that the award constituted a nontaxable gift. The Commissioner did not allow the claim but determined a deficiency on the ground that the tax should have been computed under § 107 (b) as though the award had been ratably received over the three-year period ending with 1947. Petitioner paid the deficiency, filed a supplemental claim for refund, and brought this suit to obtain it. The District Court held that the award was a gift and not taxable by reason of § 22 (b) (3) of the Internal Revenue Code. The Court of Appeals reversed. 190 F. 2d 680. The case is here on certiorari, 342 U. S. 896, because of the conflict between that decision and McDermott v. Commissioner, 80 U. S. App. D. C. 176, 150 F. 2d 585, decided by the Court of Appeals for the District of Columbia. And see Williams v. United States, 114 Ct. Cl. 1, 84 F. Supp. 362.
I.
In the legal sense payment of a prize to a winner of a contest is the discharge of a contractual obligation. The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract. See 6 Corbin on Contracts, § 1489; Restatement, Contracts, § 521. The discharge of legal obligations — the payment for services rendered or consideration paid pursuant to a contract — is in no sense a gift. The case would be different if an award were made in recognition of past achievements or present abilities, or if payment were given not for services (see Old Colony Trust Co. v. Com missioner, 279 U. S. 716, 730), but out of affection, respect, admiration, charity or like impulses. Where the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.
II.
Section 107 (b) defines “artistic work” as the “musical” or “artistic composition” of an individual, “the work on which . . . covered a period of thirty-six calendar months or more from the beginning to the completion” of the composition. In case the gross income from a particular artistic work in the taxable year is not less than a particular percentage (not material here), the tax attributable to the income of the taxable year may be computed as though it had “been received ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months.” The question is whether the amount of the prize should be taxed ratably over the 36 months ending with the close of 1947 (the taxable year in which it was received) or over the last 36 months of the period (1937 to 1939) when petitioner wrote the symphony.
The phrase in question, as it originated (H. R. 7378, 77th Cong., 2d Sess., § 128), read “ratably over the period of thirty-six calendar months ending with the close of the taxable year.” In that form the present tax would have been computed as the Commissioner contended, viz. the tax would be laid over a period of 36 months extending back from the close of the taxable year. The change in wording does not seem to us to have made a change in meaning. The present words “ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months” would on their face seem to refer to a period ending with the close of the taxable year and extending back a maximum of 36 months. That wording was adopted in order to treat the income as though it had “been received ratably over (1) the part of the period of the work which preceded the close of the taxable year, or (2) a period of 36 calendar months, whichever of such periods is the shorter.” See S. Rep. No. 1631, 77th Cong., 2d Sess., p. 109. The House Conferees, in agreeing to the change, stated that it “clarifies the language of the House bill.” H. R. Conf. Rep. No. 2586, 77th Cong., 2d Sess., p. 43. That history strongly suggests that the purpose was not to change the allowable period of allocation from one ending with the close of the taxable year to one covering any 36 months in the past when the work was done, but to prevent tax reduction by proration of income over a period of work greater than the duration of the work preceding the close of the taxable year. That is the construction given by Treasury Regulations 111, § 29.107-2; and while much more could be said, it seems to us that that construction fits the statutory scheme.
Affirmed.
Me. Justice Frankfurter, not having heard the argument owing to illness, took no part in the disposition of this case.
Mr. Justice Jackson dissents.
Section 107 (b) provides: “For the purposes of this subsection, the term ‘artistic work or invention’, in the case of an individual, means a literary, musical, or artistic composition of such individual or a patent or copyright covering an invention of or a literary, musical, or artistic composition of such individual, the work on which by such individual covered a period of thirty-six calendar months or more from the beginning to the completion of such composition or invention. If, in the taxable year, the gross income of any individual from a particular artistic work or invention by him is not less than 80 per centum of the gross income in respect of such artistic work or invention in the taxable year plus the gross income therefrom in previous taxable years and the twelve months immediately succeeding the close of the taxable year, the tax attributable to the part of such gross income of the taxable year which is not taxable as a gain from the sale or exchange of a capital asset held for more than 6 months shall not be greater than the aggregate of the taxes attributable to such part had it been received ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months.”
Section 22 (b) (3) of the Internal Revenue Code provides:
“The following items shall not be included in gross income and shall be exempt from taxation under this chapter: . . .
“The value of property acquired by gift, bequest, devise, or inheritance . . . .”
See note 1, supra.
Section 29.107-2 provides in part:
“The method of allocating the gross income from the artistic work or invention to the taxable years in which falls any of the calendar months (not exceeding 36 calendar months) included within the part of the period of work which precedes the close of the current taxable year may be illustrated by the following examples:
“Example (1). On October 1, 1942, A, an individual, who makes his returns on a calendar year basis and on the basis of cash receipts and disbursements, receives $36,000 in full payment for a musical composition, the work on which was commenced by A on July 10, 1938, and completed on January 29, 1943. Although the period of work covers 55 calendar months, allocations may be made to only the last 36 calendar months included within the part of the period of work which precedes the close of 1942 (the current taxable year). Therefore, $1,000 ($36,000 divided by 36) must be allocated to each of the 36 calendar months preceding January 1, 1943. Accordingly, $12,000 is allocated to 1940, $12,000 to 1941, and $12,000 to 1942 (the current taxable year).
“Example (%). Assume the same facts as in example (1) except that the period of work was commenced by A on July 1, 1941, and completed on September 1, 1944. Although the period of work covers 38 calendar months, allocations may be made to only the 18 calendar months which are included within the part of the period of work which precedes the close of 1942 (the current taxable year). Therefore, $2,000 ($36,000 divided by 18) must be allocated to each of 18 calendar months preceding January 1, 1943. Accordingly, $12,000 is allocated to 1941, and $24,000 to 1942 (the current taxable year).”
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
sc_casesource
|
026
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
McDONALD et al. v. CITY OF CHICAGO, ILLINOIS, et al.
No. 08-1521.
Argued March 2, 2010
Decided June 28, 2010
Alito, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, and III, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and an opinion with respect to Parts II-C, IV, and V, in which Roberts, C. J., and Scalia and Kennedy, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 791. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p. 805. Stevens, J., filed a dissenting opinion, post, p. 858. Breyer, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined, post, p. 912.
Alan Gura argued the cause for petitioners. With him on the briefs was David G. Sigale. Paul D. Clement argued the cause for the National Rifle Association of America, Inc., et al., respondents in support of petitioners. On the briefs were Stephen D. Poss, Kevin P. Martin, Scott B. Nardi, Joshua S. Lipshutz, and Stephen P. Holbrook.
James A. Feldman argued the cause for respondent City of Chicago et al. With him on the brief were Benna Ruth Solomon, Myriam Zreczny Kasper, Suzanne M. Loose, and Andrew W. Worseck.
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, James C. Ho, Solicitor General, C. Andrew Weber, First Assistant Attorney General, David S. Morales, Deputy Attorney General, Sean D. Jordan, Deputy Solicitor General, and Candice N. Hance, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Daniel S. Sullivan of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Gregory F. Zoeller of Indiana, Steve Six of Kansas, Jack Conivay of Kentucky, James D. “Buddy” Caldwell of Louisiana, Janet T. Mills of Maine, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Chris Koster of Missouri, Steve Bullock of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Michael A. Delaney of New Hampshire, Gary K. King of New Mexico, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Richard Cordray of Ohio, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry McMaster of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William C. Mims of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of Wyoming; for Academies for the Second Amendment by Joseph Edward Olson and David T. Hardy; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., and John P. Tuskey; for the American Civil Rights Union et al. by Peter J. Ferrara; for the American Legislative Exchange Council by Rick A. Haberman and K Scott Hamilton; for Appellants from the Ninth Circuit Incorporation Case of Nordyke v. King et al. by Donald E. J. Kilmer, Jr., and Jason A. Davis; for Arms Keepers by Andrew T. Hyman; for the Buckeye Firearms Foundation, Inc., et al. by L. Kenneth Hanson III; for the Calguns Foundation, Inc., by Erik S. Jaffe; for the Cato Institute et al. by M. Reed Hopper, Timothy Sandefur, Robert A. Levy, and Ilya Shapiro; for Constitutional Law Professors by Douglas T. Kendall, Elizabeth B. Wydra, and David H. Gans; for the Foundation for Moral Law by John A. Eidsmoe and Benjamin D. DuPré; for Gun Owners of America, Inc., et al. by William J. Olson, Herbert W. Titus, and John S. Miles; for the Heartland Institute by Nancy Lee Carlson; for the International Law Enforcement Educators and Trainers Association et al. by David B. Kopel; for Jews for the Preservation of Firearms Ownership by Daniel L. Schmutter; for the Maryland Arms Collectors’ Association, Inc., by Don B. Kates; for the National Shooting Sports Foundation, Inc., by Lawrence G. Keane, Christopher P. Johnson, and Laurin B. Grollman; for the Paragon Foundation, Inc., by Paul M. Kienzle III; for Professors of Philosophy et al. by Marc James Ayers and Mr. Kates; for Rocky Mountain Gun Owners et al. by Steven J. Lechner; for Safari Club International by Douglas S. Burdin and Anna M. Seidman; for State Firearm Associations by James W. Hryekewicz; for State Legislators by John Parker Sweeney and T. Sky Woodward; for Thirty-Four California District Attorneys et al. by C. D. Michel, Glenn S. McRoberts, and Hillary J. Green; for Women State Legislators et al. by Sarah Anne Gervase and M. Carol Bambery; and for Senator Kay Bailey Hutchison et al. by Mr. Clement, Jejfrey S. Bucholtz, and Adam Conrad.
Briefs of amici curiae urging affirmance were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Michael A. Scodro, Solicitor General, Jane Elinor Notz, Deputy Solicitor General, and David A. Simpson, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Douglas F. Gansler of Maryland and Anne Milgram of New Jersey; for American Cities et al. by Henry C. Su, Jerrold J. Ganzfried, Anita Alvarez, Paul A. Castiglione, Dennis J. Herrera, Jean Boler, Linda Meng, George A. Nilson, William R. Phelan, Jr., Randy Riddle, and Matthew D. Ruyak; for the Anti-Defamation League by Leonard M. Niehoff, Martin E. Karlinsky, Mark S. Finkelstein, Steven M. Freeman, and Steven C. Sheinberg; for the Association of Prosecuting Attorneys et al. by Clifford M. Sloan and Geoffrey M. Wyatt; for Historians on Early American Legal, Constitutional, and Pennsylvania History by Roderick M. Thompson; for the Oak Park Citizens Committee for Handgun Control by Robert N. Hochman, Carter G. Phillips, Jeffrey T. Green, and Christopher G. Walsh, Jr.; for Professors of Criminal Justice by Elizabeth A. Ritvo, Amanda Buck Varella, and Albert W. Wallis; for Thirty-Four Professional Historians and Legal Historians by Matthew M. Shors; for the United States Conference of Mayors by Lawrence Rosenthal and John Daniel Reaves; for the Villages of Winnetka and Skokie, Illinois, et al. by David T. Goldberg, Sean H. Donahue, Charles W. Thompson, Jr., and Katherine S. Janega; and for Representative Carolyn McCarthy et al. by Jennifer Milici and Christopher L. Hayes.
Briefs of amici curiae were filed for the American Public Health Association et al. by Julie D. Cantor and H. Philip Grossman; for the Board of Education of the City of Chicago et al. by Charles M. Dyke; for the Brady Center to Prevent Gun Violence et al. by A. Stephen Hut, Jr., Paul R. Q. Wolfson, D. Hien Tran, Jonathan E. Lowy, and Daniel R. Vice; for the Center for Constitutional Jurisprudence by Anthony T. Caso, John C. Eastman, and Edwin Meese III; for the Eagle Forum Education and Legal Defense Fund by Andrew L. Schlafly; for the Educational Fund to Stop Gun Violence by John E. Schreiber; for English/Early American Historians by Robert A. Goodin and Francine T. Radford; for the Goldwater Institute et al. by Clint Bolick, Nicholas C. Dranias, and Benjamin Barr; for Historians and Legal Scholars by Linda T. Coberly; for the Institute for Justice by William H. Mellor, Clark M. Neily III, and Robert J. McNamara; for Law Professor and Students by Douglas A. Berman, pro se, and William B. Saxbe; for the NAACP Legal Defense & Educational Fund, Inc., by John Payton, Debo P. Adegbile, Dale E. Ho, and Joshua Civin; and for the Rutherford Institute by John W. Whitehead.
Justice Alito
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, and III, in which The Chief Justice, Justice Scalia, Justice Kennedy, and. Justice Thomas join, and an opinion with respect to Parts II-C, IV, and V, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.
Two years ago, in District of Columbia v. Heller, 554 U. S. 570 (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (Chicago or City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.
I
Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws. A City ordinance provides that “[n]o person shall... possess... any firearm unless such person is the holder of a valid registration certificate for such firearm.” Chicago, Ill., Municipal Code § 8-20-040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. § 8-20-050(c). Like Chicago, Oak Park makes it “unlawful for any person to possess... any firearm,” a term that includes “pistols, revolvers, guns and small arms... commonly known as handguns.” Oak Park, 111., Village Code §§27-2-1 (2007), 27-1-1 (2009).
Chicago enacted its handgun ban to protect its residents “from the loss of property and injury or death from firearms.” See Chicago, Ill., Journal of Proceedings of the City Council, p. 10049 (Mar. 19, 1982). The Chicago petitioners and their amici, however, argue that the handgun ban has left them vulnerable to criminals. Chicago Police Department statistics, we are told, reveal that the City’s handgun murder rate has actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.
Several of the Chicago petitioners have been the targets of threats and violence. For instance, Otis McDonald, who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers. App. 16-17; Brief for State Firearm Associations as Amici Curiae 20-21; Brief for State of Texas et al. as Amici Curiae 7-8. Colleen Lawson is a Chicago resident whose home has been targeted by burglars. “In Mrs. Lawson’s judgment, possessing a handgun in Chicago would decrease her chances of suffering serious injury or death should she ever be threatened again in her home.” McDonald, Lawson, and the other Chicago petitioners own handguns that they store outside of the city limits, but they would like to keep their handguns in their homes for protection. See App. 16-19, 43-44 (McDonald), 20-24 (C. Lawson), 19, 36 (Orlov), 20-21, 40 (D. Lawson).
After our decision in Heller, the Chicago petitioners and two groups filed suit against the City in the United States District Court for the Northern District of Illinois. They sought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Fourteenth Amendments to the United States Constitution. Another action challenging the Oak Park law was filed in the same District Court by the National Rifle Association (NRA) and two Oak Park residents. In addition, the NRA and others filed a third action challenging the Chicago ordinances. All three cases were assigned to the same District Judge.
The District Court rejected plaintiffs’ argument that the Chicago and Oak Park laws are unconstitutional. See App. 83-84; NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the Seventh Circuit had “squarely upheld the constitutionality of a ban on handguns a quarter century ago,” id., at 753 (citing Quilici v. Morton Grove, 695 F. 2d 261 (CA7 1982)), and that Heller had explicitly refrained from “opin[ing] on the subject of incorporation vel non of the Second Amendment,” NRA, 617 F. Supp. 2d, at 754. The court observed that a district judge has a “duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction.” Id., at 753.
The Seventh Circuit affirmed, relying on three 19th-century cases — United States v. Cruikshank, 92 U. S. 542 (1876), Presser v. Illinois, 116 U. S. 252 (1886), and Miller v. Texas, 153 U. S. 535 (1894) — that were decided in the wake of this Court’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873). The Seventh Circuit described the rationale of those cases as “defunct” and recognized that they did not consider the question whether the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right to keep and bear arms. NRA, Inc. v. Chicago, 567 F. 3d 856, 857, 858 (2009). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have “direct application,” and it declined to predict how the Second Amendment would fare under this Court’s modern “selective incorporation” approach. Id., at 857-858 (internal quotation marks omitted).
We granted, certiorari. 557 U. S. 965 (2009).
II
A
Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons. Petitioners’ primary submission is that this right is among the “privileges or immunities of citizens of the United States” and that the narrow interpretation of the Privileges or Immunities Clause adopted in the Slaughter-House Cases, supra, should now be rejected. As a secondary argument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right.
Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only if that right is an indispensable attribute of any “ ‘civilized’ ” legal system. Brief for Municipal Respondents 9. If it is possible to imagine a civilized country that does not recognize the right, the municipal respondents tell us, then that right is not protected by due process. Ibid. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures. Id., at 21-23. In light of the parties’ far-reaching arguments, we begin by recounting this Court’s analysis over the years of the relationship between the provisions of the Bill of Rights and the States.
B
The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was “of great importance” but “not of much difficulty.” Id., at 247. In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government. See also Lessee of Livingston v. Moore, 7 Pet. 469, 551-552 (1833) (“[I]t is now settled that those amendments [in the Bill of Rights] do not extend to the states”).
The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system. The provision at issue in this case, § 1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law.”
Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment’s reference to “the privileges or immunities of citizens of the United States.” The Slaughter-House Cases, supra, involved challenges to a Louisiana law permitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel Miller’s opinion for the Court concluded that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79. The Court held that other fundamental rights — rights that predated the creation of the Federal Government and that “the State governments were created to establish and secure” — were not protected by the Clause. Id., at 76.
In drawing a sharp distinction between the rights of federal and state citizenship, the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment’s Privileges or Immunities Clause spoke of “the privileges or immunities of citizens of the United States,” and the Court contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause of Article IV, both of which refer to state citizenship. (Emphasis added.) Second, the Court stated that a contrary reading would “radically ehang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,” and the Court refused to conclude that such a change had been made “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Id., at 78. Finding the phrase “privileges or immunities of citizens of the United States” lacking by this high standard, the Court reasoned that the phrase must mean something more limited.
Under the Court’s narrow reading, the Privileges or Immunities Clause protects such things as the right
“to come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions... [and to] become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” Id., at 79-80 (internal quotation marks omitted).
Finding no constitutional protection against state intrusion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Justice Field, joined by Chief Justice Chase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth Amendment’s Privileges or Immunities Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Id., at 96; see also id., at 104. Justice Field opined that the Privileges or Immunities Clause protects rights that are “in their nature... fundamental,” including the right of every man to pursue his profession without the imposition of unequal or discriminatory restrictions. Id., at 96-97 (internal quotation marks omitted). Justice Bradley’s dissent observed that “we are not bound to resort to implication... to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.” Id., at 118. Justice Bradley would have construed the Privileges or Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Id., at 119. Justice Swayne described the majority’s narrow reading of the Privileges or Immunities Clause as “turn[ing]... what was meant for bread into a stone.” Id., at 129 (dissenting opinion).
Today, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation. See, e. g., Saenz v. Roe, 526 U. S. 489, 522, n. 1, 527 (1999) (Thomas, J., dissenting) (scholars of the Fourteenth Amendment agree “that the Clause does not mean what the Court said it meant in 1873”); Amar, Substance and Method in the Year 2000, 28 Pepper-dine L. Rev. 601, 631, n. 178 (2001) (“Virtually no serious modern scholar — left, right, and center — thinks that this [interpretation] is a plausible reading of the Amendment”); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an “overwhelming consensus among leading constitutional scholars” that the opinion is “egregiously wrong”); C. Black, A New Birth of Freedom 74-75 (1997).
Three years after the decision in the Slaughter-House Cases, the Court decided Cruikshank, the first of the three 19th-century cases on which the Seventh Circuit relied. 92 U. S. 542. In that case, the Court reviewed convictions stemming from the infamous Colfax Massacre in Louisiana on Easter Sunday 1873. Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men. Cruikshank himself allegedly marched unarmed African-American prisoners through the streets and then had them summarily executed. Ninety-seven men were indicted for participating in the massacre, but only nine went to trial. Six of the nine were acquitted of all charges; the remaining three were acquitted of murder but convicted under the Enforcement Act of 1870,16 Stat. 140, for banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms.
The Court reversed all of the convictions, including those relating to the deprivation of the victims’ right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose “is not a right granted by the Constitution” and is not “in any manner dependent upon that instrument for its existence.” Id., at 553. “The second amendment,” the Court continued, “declares that it shall not be infringed; but this... means no more than that it shall not be infringed by Congress.” Ibid. “Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” Heller, 554 U. S., at 620, n. 23.
C
As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’ claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (Thomas, J., dissenting).
We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.
At the same time, however, this Court’s decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
sc_issuearea
|
J
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
FIRST NATIONAL BANK IN PLANT CITY v. DICKINSON, COMPTROLLER OF FLORIDA, et al.
No. 19.
Argued October 16, 1969
Decided December 9, 1969
Robert S. Edwards argued the cause and filed briefs for petitioner in No. 19. Deputy Solicitor General Springer argued the cause for petitioner in No. 34. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Robert V. Zener, and Robert E. Kopp.
William Reece Smith, Jr., argued the cause for respondents in both cases. With him on the brief was V. Carroll Webb.
James F. Bell, by special leave of Court, argued the cause for the National Association of Supervisors of State Banks as amicus curiae urging affirmance in both cases. With him on the brief was Brian C. Elmer.
E. Barrett Prettyman, Jr., filed a brief for the First National Bank of Cornelia, Georgia, et al. as amici curiae urging reversal in both cases.
Briefs of amici curiae urging affirmance in both cases were filed by Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, J. Robert Coleman and Robert J. Castellani, Assistant Attorneys General, Robert Morgan, Attorney General of North Carolina, and Millard R. Rich, Jr., Assistant Attorney General, for the States of Georgia and North Carolina, and by Horace R. Hansen for the Independent Bankers Association of America et al.
Together with No. 34, Camp, Comptroller of the Currency v. Dickinson, Comptroller of Florida, et al., also on writ of certiorari to the same court.
Mr. Chief Justice Burger
delivered the opinion of the Court.
In these cases we are called upon to construe § 7 of the McFadden Act of 1927, 44 Stat. 1228, as amended, 12 U. S. C. § 36, as it relates to the definition of a branch bank for the purpose of determining the scope of branch banking available to a national bank in a State that prohibits branches for state banks.
12 U. S. C. § 36 (f) provides in pertinent part:
“(f) The term ‘branch' as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business ... at which deposits are received, or checks paid, or money lent.”
Florida prohibits all branch banking by state chartered banks; by statute a Florida bank may “have only one place of doing business,” and all the business of the bank is to be carried on at that place “and not elsewhere.” The issue must be resolved by determining what constitutes a “branch” or “additional office”; there is a threshold question of the extent to which this is governed by federal law.
The First National Bank in Plant City, Florida, is a national banking association organized and operated pursuant to the National Bank Act, 12 U. S. C. § 21 et seq.; it sought and received from the United States Comptroller of the Currency permission to operate two services for the convenience of customers; one was an armored car messenger service and the other an off-premises receptacle for the receipt of packages containing cash or checks for deposit. The Comptroller’s letter authorizing the armored car messenger service relied upon paragraph 7490 of the Comptroller’s Manual for National Banks, a relatively recent ruling which specifically authorizes such a service. A second letter authorizing construction of an off-premises receptacle authorized such a service “as an incident to” the bank’s ordinary business. Both letters contained explicit instructions to First National designed to insure that deposits so received would not become bank liabilities until actually in the hands of the bank teller at the chartered office or regular “banking house”; and that checks cashed for customers would be deemed paid at the bank when the cash was handed to the messenger, not when the cash was delivered to the customer by the armored car teller.
Relying on these letters, First National offered an armored car service and a secured receptacle for receipt of monies intended as deposits. The bank advertised “Full Service Banking at your doorstep . . .” and a “mobile drive-in . . . where customers may be served . . . .” A more detailed examination of the services shows that customers having an account with First National could, upon signing a “Comprehensive Dual Control Contract,” arrange to have the armored car call at their place of business to pick up cash and checks for deposit, or to bring cash to them in exchange for checks delivered to the armored car teller. The contract provided that in each situation the bank’s armored car messenger would be the agent of the customer. Additionally, proffered deposits were accompanied by a transmittal slip upon which the customer itemized the funds being deposited in the same manner as with deposits made at the chartered office of the bank. The transmittal slip contained a “Contract” which provided that in this off-premises transaction the bank was the agent of the customer, and that “the transmittal of said currency, coin and checks, shall not be deemed to be a deposit until delivered into the hands of the bank’s tellers at the said banking house.” Sums of cash for transmission to the customer were accompanied by a charge slip indicating that the customer’s account had been charged for the amount of the order.
The armored car was owned and controlled by the bank; the teller and driver-guard in the car were bank employees. The bank paid the cost of armored car operations and assumed complete responsibility for the monies, checks, and deposits during transit by means of an insurance policy bought and paid for by it to protect the customer and the bank. The armored car service operated six days per week in Plant City and the surrounding trade area in Hillsborough and Polk Counties. The armored car had a plate glass window, a sliding drawer, and a counter on one side where customers might be served. The truck bore the name of the bank and had two-way radiophone communication with the bank. All movements and routing of the armored car were directed by the bank. First National handled about $1,000,000 per week through the armored car.
The stationary off-premises receptacle for receipt of monies intended for deposit was located in a shopping center one mile from First National’s banking house in a space leased by the bank. The facility consisted of a secured receptacle for monies and night bags, together with a writing table supplied with envelopes and transmittal slips identical to those used by the armored car messenger service. The envelopes recited that the funds transported were accepted in accordance with the contract printed on the transmittal slip. A sign at the receptacle recited that the messenger who collected the funds acted as agent for the customer, that funds would not be deemed to have been deposited until delivered at the bank’s premises, and that insurance on the funds was provided by the bank. Customers maintaining an account with the bank who had signed the Comprehensive Dual Control Contract were issued a key to open the off-premises depository to drop off the night pouches in the receptacle. The armored car serviced the receptacle daily. The armored car teller, upon making pickups of such night pouches, promptly identified all monies and other items placed in the depository and immediately recorded them by the depositor’s number. The driver-guard verified all items collected by the teller and signed the written bank record identifying the monies obtained at the stationary depository.
On September 28, 1966, the Comptroller of the State of Florida, respondent herein, addressed a letter to First National advising it that the proposed depository then under construction and the provision of an armored car messenger service would each violate the prohibition under Florida law against branch banking. The letter requested that First National cease and desist all such operations.
First National then sued in the United States District Court for the Northern District of Florida seeking declaratory and injunctive relief against respondent. The United States Comptroller intervened as plaintiff on the side of First National; several state banks intervened to support the Florida Comptroller. The District Court granted judgment for petitioners, 274 F. Supp. 449 (D. C. N. D. Fla. 1967). The Court of Appeals reversed, 400 F. 2d 548 (C. A. 5th Cir. 1968). We affirm the Court of Appeals.
Federal Statute and Policy
The conditions under which national banks may establish branches are embodied in § 7 of the McFadden Act, 44 Stat. 1228, as amended, codified in 12 U. S. C. § 36. One such condition is that a “branch” may be established only when, where, and how state law would authorize a state bank to establish and operate such a branch, 12 U. S. C. §36 (c). First National Bank of Logan v. Walker Bank & Trust Co., 385 U. S. 252 (1966).
We have noted that the State of Florida permits no branch banking under a statute providing that banks are to “have only one place of doing business”; the business of the bank may be transacted at that place “and not elsewhere.” The parties agree generally that the McFadden Act permits national banks to branch if and only if the host State would permit one of its own banks to branch; the Florida Bank Comptroller insists that the State of Florida unequivocally forbids off-premises banking of any kind. Thus the lines are clearly drawn; the question presented is whether the activities of First National authorized by the United States Comptroller are branch banking.
At the outset we note that, while Congress has absolute authority over national banks, the federal statute has incorporated by reference the limitations which state law places on branch banking activities by state banks. Congress has deliberately settled upon a policy intended to foster “competitive equality.” Walker Bank, 385 U. S., at 261. State law has been utilized by Congress to provide certain guidelines to implement its legislative policy.
We need not review the legislative history of the McFadden Act and prior national bank legislation as it relates to this problem; that task was performed by Mr. Justice Clark in Walker Bank, supra, where a unanimous Court noted that the McFadden Act was a response to the competitive tensions inherent in a dual banking structure where state and national banks coexist in the same area. That Act reflects the congressional concern that neither system have advantages over the other in the use of branch banking. A House Report shows that in 1926 there was congressional concern to protect national banks from the unrestricted branch bank competition of state banks:
“The present situation is intolerable to the national banking system. The bill proposes the only practicable solution by stopping the further extension of state-wide branch banking in the Federal reserve system by State member banks and by permitting national banks to have branches in those cities where State banks are allowed to have them under State laws.” H. R. Rep. No. 83, 69th Cong., 1st Sess., 7 (1926).
The bill to which this report was addressed failed to pass in the Senate. In tracing the legislative history of the bill which passed the following year, this Court in Walker Bank, supra, observed:
“The intent of the Congress to leave the question of the desirability of branch banking up to the States is indicated by the fact that the Senate struck from the House bill the time limitation, thus permitting a subsequent change in state law to have a corresponding effect on the authority of national banks to engage in branching. The Senate Report concluded that the Act should permit ‘national banks to have branches in those cities where State banks are allowed to have them under State laws.’ ” 385 U. S., at 258, quoting from S. Rep. No. 473, 69th Cong., 1st Sess., 14 (1926).
At the time of its enactment into law, Representative McFadden stated that:
“As a result of the passage of this act, the national bank act has been so amended that national banks are able to meet the needs of modern industry and commerce and competitive equality has been established . . . .” 68 Cong. Rec. 5815 (1927). (Emphasis supplied.)
When the economic depression of the 1930’s brought on widespread bank failures, Congress responded by amending the McFadden Act with the passage of the Banking Act of 1933, which further strengthened the policy of competitive equality. Some Members argued that bank failures were due to the undercapitalization of small rural banks and sought to authorize national banks to engage in branch banking without regard to state law; but that approach was rejected. As finally passed, the Act was reported to the House by one of the members of the Conference Committee, Representative Luce, with this statement:
“In the controversy over the respective merits of what are known as ‘unit banking’ and ‘branch banking’ . . . branch banking has been steadily gaining in favor. It is not, however, here proposed to give the advocates of branch banking any advantage. We do not go an inch beyond saying that the two ideas shall compete on equal terms and only where the States make the competition possible by letting their oiun institutions have branches.’’ 385 U. S., at 260, quoting from 77 Cong. Rec. 5896 (1933). (Emphasis supplied.)
The policy of competitive equality is therefore firmly embedded in the statutes governing the national banking system. The mechanism of referring to state law is simply one designed to implement that congressional intent and build into the federal statute a self-executing provision to accommodate to changes in state regulation.
We reject the contention made by amicus curiae National Association of Supervisors of State Banks to the effect that state law definitions of what constitutes “branch banking” must control the content of the federal definition of § 36 (f). Admittedly, state law comes into play in deciding how, where, and when branch banks may be operated, Walker Bank, supra, for in § 36 (c) Congress entrusted to the States the regulation of branching as Congress then conceived it. But to allow the States to define the content of the term “branch” would make them the sole judges of their own powers. Congress did not intend such an improbable result, as appears from the inclusion in § 36 of a general definition of “branch.” On this point the language of the Court of Appeals perhaps overstated the relation of state law to the problem, since the threshold question is to be determined as a matter of federal law, having in mind the congressional intent that so far as branch banking is concerned “the two ideas shall compete on equal terms and only where the States [allow] their own institutions [to] have branches.” In short, the definition of “branch” in § 36 (f) must not be given a restrictive meaning which would frustrate the congressional intent this Court found to be plain in Walker Bank, supra
Federal Definition of Branch Bank
Against this background, we turn to the question whether the off-premises business activities conducted by First National amounted to “branch” banking within the meaning of the McFadden Act. Since national banks are “necessarily subject to the paramount authority of the United States,” First National Bank in St. Louis v. Missouri, 263 U. S. 640, 656 (1924), we consult that part of the McFadden Act that defines the term “branch.” 12 U. S. C. § 36 (f) provides:
“(f) The term ‘branch’ as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business ... at which deposits are received, or checks paid, or money lent.”
Although the definition may not be a model of precision, in part due to its circular aspect, it defines the minimum content of the term “branch”; by use of the word “include” the definition suggests a calculated indefiniteness with respect to the outer limits of the term. However, the term “branch bank” at the very least includes any place for receiving deposits or paying checks or lending money apart from the chartered premises; it may include more. It should be emphasized that, since § 36 (f) is phrased in the disjunctive, the offering of any one of the three services mentioned in that definition will provide the basis for finding that “branch” banking is taking place. Thus not only the taking of deposits but also the paying of checks or the lending of money could equally well provide the basis for such a finding. Although the District Court briefly discussed the possibility that checks were being paid, we confine ourselves to the question of whether deposits were received. Specifically, we must resolve the question whether the mobile armored car service and stationary deposit receptacle singly or together fall within the ambit of that section. As to the receiving of deposits, the functions of the two facilities are essentially the same, hence they may be considered together.
First National and the Comptroller of the Currency urge that the challenged activity does not amount to branch banking under § 36 (f). First National relies heavily, if indeed not entirely, upon carefully drawn contracts with its customers who use armored car or deposit receptacle services. The bank urges that, “deposit” being a word of art, the determination of when a deposit is made is not a casual one inasmuch as that determination fixes important legal relationships of the parties.
The bank also urges that creation of a deposit being purely a matter of intent, the issue is governed exclusively by the private contract. Since these contracts must be interpreted under state law, the argument runs, no “deposit” is actually received as such until monies delivered to the armored car or the receptacle are physically delivered into the hands of a bank teller at the chartered premises. Until such time the bank may not, under the contracts, be held to account for the customer’s funds.
We have no difficulty accepting the bank’s argument that the debtor-creditor relationship is a creature of contract and that the parties can agree that until monies are physically delivered to the bank no deposit will be credited to the customer’s account. We are satisfied, however, that the contracts have no significant purpose other than to remove the possibility that the monies received will become “deposits” in the technical and legal sense until actually delivered to the chartered premises of the bank.
We do not challenge the right of the contracting parties to fix rights and risks as between themselves; nothing in the law precludes the parties from agreeing, for example, that the bank does not assume the status of bailee, with liability for loss of money in transit. But while the contracting parties are free to arrange their private rights and liabilities as they see fit, it does not follow that private contractual arrangements, binding on the parties under state law, determine the meaning of the language or the reach of § 36 (f).
Because the purpose of the statute is to maintain competitive equality, it is relevant in construing “branch” to consider, not merely the contractual rights and liabilities created by the transaction, but all those aspects of the transaction that might give the bank an advantage in its competition for customers. Unquestionably, a competitive advantage accrues to a bank that provides the service of receiving money for deposit at a place away from its main office; the convenience to the customer is unrelated to whether the relationship of debtor and creditor is established at the moment of receipt or somewhat later.
We need not characterize the contracts as a sham or subterfuge in order to conclude that the conduct of the parties and the nature of their relations bring First National’s challenged activities within the federal definition ,of branch banking. Here, penetrating the form of the contracts to the underlying substance of the transaction, we are satisfied that at the time a customer delivers a sum of money either to the armored truck or the stationary receptacle, the bank has, for all purposes contemplated by Congress in § 36 (f), received a deposit. The money is given and received for deposit even though the parties have agreed that its technical status as a “deposit” which may be drawn on is to remain inchoate for the brief period of time it is in transit to the chartered bank premises. The intended deposits are delivered and received as part of a large-scale continuing mode of conducting the banking business designed to bring basic bank services to the customers.
Since the putative deposits are in fact “received” by a bank facility apart from its chartered place of business, we are compelled, in construing § 36 (f), to view the place of delivery of the customer’s cash and checks accompanied by a deposit slip as an “additional office, or . . . branch place of business ... at which deposits are received.”
Here we are confronted by a systematic attempt to secure for national banks branching privileges which Florida denies to competing state banks. The utility of the armored car service and deposit receptacle are obvious; many States permit state chartered banks to use this eminently sensible mode of operations, but Florida’s policy is not open to judicial review any more than is the congressional policy of “competitive equality.” Nor is the congressional policy of competitive equality with its deference to state standards open to modification by the Comptroller of the Currency.
Affirmed.
Florida Stat. § 659.06 (1) (a) (1965) provides:
“659.06 Place of transacting business; school savings; drive-in facilities.—
“(1) (a) Any bank or trust company shall have only one place of doing business, which shall be located in the community specified in its original articles of incorporation, and the business of the bank or trust company shall be transacted at its banking house so located in said community specified, and not elsewhere. . . .
“(2) With the prior written approval of the commissioner a bank may operate a drive-in facility or walk-up facility providing one or more tellers to serve patrons in vehicles and on foot. It shall not be necessary that such facility be a part of or physically connected to the main banking room or building of the bank if the facility is located on the property on which the main banking house is situated or on property contiguous thereto. Property which is separated from the property on which the main banking house is situated only by a street, walkway or alleyway shall, for the purposes of this subsection, be deemed contiguous to the property on which the main banking house is situated.
“The operation of any drive-in or walk-up facility which is not located on the property on which the main banking house is situated or on property contiguous thereto shall constitute a violation of subsection (1); provided, however, subsection (2) shall not apply to any facilities existing on or prior to January 1, 1965.”
Comptroller’s Manual for National Banks ¶ 7490.
“Messenger Service
“To meet the requirements of its customers, a national bank may provide messenger service by means of an armored car or otherwise, pursuant to an agreement wherein it is specified that the messenger is the agent of the customer rather than of the bank. Deposits collected under this arrangement are not considered as having been received by the bank until they are actually delivered to the teller at the bank’s premises. Similarly, a check is considered as having been paid at the bank when the money is handed to the messenger as agent for the customer.”
“Comprehensive Dual Control Contract
“As agent for the undersigned depositor, The First National Bank Messenger will transport monies of the depositor to and from the banking house.
“Under the Comprehensive Dual Control Contract, all monies, transported solely in padlocked money bags furnished by bank, shall be opened only under the dual control of two bank’s tellers. For this purpose, bank will retain a pass key for depositor’s bag(s); a key for each bag will be furnished depositor. The depositor expressly authorizes the service described and agrees to accept the bank’s count of monies as final.
“The First National Bank in Plant City maintains hazard insurance covering holdup, employee fidelity, etc., for the benefit of the depositor for all amounts delivered to bank’s messenger for delivery to bank and for all amounts requisitioned by depositor for delivery from bank to depositor. Unless otherwise authorized in writing, only the undersigned shall be permitted to receipt the bank’s messenger for monies delivered to depositor. . . .”
“Contract
“First National Bank, Plant City, Fla., as messenger and agent for Principal named on front side hereof, agrees to transmit the currency, coin and checks detailed on the front side hereof to the bank’s offices at 302 West Haines Street, Plant City, Fla. for deposit to Principal’s account. It is agreed and understood by Principal and the bank that in transmitting said currency, coin and checks, the bank is acting solely as agent for said Principal and that the transmittal of said currency, coin and checks, shall not be deemed to be a deposit until delivered into the hands of the bank’s tellers at the said banking house.
“The bank maintains hazard insurance covering holdup, employee fidelity, etc. for the protection of the Principal for all amounts and items delivered to the bank’s messenger by said Principal.”
The National Bank Act, 44 Stat. 1228, 12 U. S. C. §§ 36 (c) (1) and (2) provides:
“(e) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.”
See n. 1, supra.
In their briefs before this Court, the litigants are all in agreement that federal law alone applies to resolve the threshold question whether the challenged activity falls within the definition of “branch.” Reply Brief for the Comptroller of the Currency 2; Respondents’ Brief 41, 44.
Representative McFadden described the definitional section of the Act as providing that:
“Any place outside of or away from the main office where the bank carries on its business of receiving deposits, paying checks, lending money, or transacting any business carried on at the main office, is a branch.” 68 Cong. Rec. 5816 (1927).
5A A. Michie on Banks and Banking §§ 4a, 5, 14, 15 and 17 (1950); 10 Am. Jur. 2d Banks § 358 (1963); 9 C. J. S. Banks and Banking §269 (1938).
We need not here try to draw fine distinctions around relatively isolated, sporadic, and inconsequential transactions where a bank employee carries cash to a customer to cash a check, or secures a signature on a note in exchange for a check delivered off premises.
In 1963 Comptroller Saxon, author of ¶ 7490 in the Comptroller’s Manual for National Banks, supra, n. 2, declared that “[t]he branching powers of National Banks should, in my judgment, not be limited according to those policies which the individual States find appropriate to meet their local needs through State-chartered banks.” Saxon, Branching Powers and the Dual Banking System, 101 Comp. Currency Ann. Rep. 316, 318 (1963).
During the course of the congressional debates over what became the McFadden Act, Representative Stevenson remarked:
“[Y]ou have branches in the Federal reserve system established by the dictum of the Comptroller of the Currency, who has assumed to say that he can allow a national bank to establish as many agencies for receiving deposits and paying checks as he sees fit. . . . I will show presently that we cut that out, root and branch.” 66 Cong. Rec. 1627.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_const1
|
114
|
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.
INDEPENDENT SERVICE CORPORATION v. TOUSANT et al., Members of Industrial Accident Board.
No. 4034.
Circuit Court of Appeals, First Circuit.
May 4, 1945.
Edward C. Park, of Boston, Mass., and Philip F. Grogan, of Watertown, Mass. (Withington, Cross, Park & Mc-Gann, of Boston, Mass., of counsel), for appellant.
William Gardner Perrin, Asst. Atty. Gen., of Massachusetts (Clarence A. Barnes, Atty. Gen., of Massachusetts, of counsel), for appellees.
Maurice M. Goldman, of Boston, Mass., for Massachusetts State Federation of Labor, amicus curias.
Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.
MAHONEY, Circuit Judge.
This action involves the constitutionality of a Massachusetts statute. It was brought to enjoin the enforcement of § 25D of the Workmen’s Compensation Act, Chapter ,152, Gen. Laws of Massachusetts (Ter. Ed.), as amended by St. 1943, c. 529, § 7, which provides:
“No self-insurer or attorney acting in its behalf shall engage a service company or like organization to investigate, adjust, or settle claims under this chapter or to represent it in any matter before the department. Any violation of this section shall constitute reasonable cause for revocation of the license of a self-insurer under section twenty-five A of this chapter.”
Since November 15, 1943, the effective date of § 25D, the plaintiff has refrained from investigating, adjusting or settling claims for self-insurers, and the Industrial Accident Board has made it clear that it would revoke the license of any self-insurer who employed a service company to engage in such activities under the Act. As a result the plaintiff has lost contracts with self-insurers which would net it $2000 a year. It alleges that § 25D deprives it of liberty and property in violation of the Fourteenth Amendment.
The plaintiff, a Massachusetts corporation, was organized in 1936 as a “service company” to do safety engineering and statistical work. It investigated industrial accidents and advised employers as to methods and appliances designed to prevent such accidents. Among its clients were employers electing not to insure under the Workmen’s Compensation Act, insurance companies, and clients in public liability cases and casualty losses. Its contracts with non-insuring employers provided for the investigating of industrial accidents and the adjusting and settling of those claims. Those contracts alone fall within the prohibition of § 25D. There is no question but that the plaintiff may continue to do safety engineering and statistical work and to investigate industrial accidents for the purpose of preventing future accidents and arranging for medical care required by past accidents.
As originally enacted in 1911, the Massachusetts Workmen’s Compensation Act, as those adopted in other states about that time, was an elective compensation insurance law. In theory it was compulsory upon no one, neither employer, employee, nor insurer. Though elective in form it exerted pressure upon employers to carry compensation insurance by depriving them of certain of their common law defenses in actions brought by employees for personal injury. Since the Act was elective and not compulsory employers could refuse to take out workmen’s compensation insurance. Those employers thereby avoided the cost of insurance premiums which some regarded as too high in relation to the risks involved but retained their common law liability. Some employers who were willing to provide compensation benefits to their employees similar to those they would receive from an insurer under the Act, but directly out of the employers’ funds, developed substitute plans. Under these plans the employer carrying his own risk either provided for the investigating, adjusting and settling of claims within his own organization or employed a service company to do it for him. To insure savings the plans provided for the purchase of some form of stop-loss insurance which would indemnify the employer for any losses or claims paid which exceed a certain percentage of the amount he would have to pay for ordinary workmen’s compensation insurance. The figure fixed is usually 75% of that premium, and thereby the employer immunizes himself against his common law liability. Thus the employer setting up a substitute plan is in a position to limit his maximum cost to that of workmen’s compensation under the Act, and to the extent that the total costs of the service company, losses on claims paid, and the stop-loss insurance premium is less than the normal compensation insurance premium he makes savings and reduces the costs of workmen’s compensation. For example, if we take '100% as the cost of the normal premium the common allocation of costs under the substitute plan may be illustrated as follows: 10% for the service company, 15% for the stop-loss insurance premium, and 75% for the payment of losses. As the latter item is the largest the employer looks to it for savings, and to the extent that the service company keeps the amount of claims paid below the maximum figure not covered by stop-loss insurance the employer makes savings and the service company function is economically justified.
In 1943 the legislature enacted Chapter 529 adding § 25A through § 25D to the Act. This chapter in effect converts the Act from an elective compensation insurance law into a compulsory one by making the provision of workmen’s compensation mandatory with practically all employers. The employer, however, has an option in meeting the costs of compensation either of taking out insurance or acting as his own insurer. § 25A through § 25 C provide for the compulsory payment of compensation by insurance unless the employer elects to become a “self-insurer” under the Act. This he may do by obtaining a license from the Industrial Accident Board and complying with certain requirements respecting the furnishing of security for the payment of compensation to injured employees. The effect of this chapter with respect to the former non-insuring clientele of the plaintiff service company is to bring them and their employees within coverage of the Act but does not require such employers to purchase workmen’s compensation insurance. They may continue to finance the payment of workmen’s compensation out of their own funds, but § 25D precludes their continued reliance on service companies- such as the plaintiff in the investigating, adjusting and settling of claims.
The question to be decided is whether the provisions of § 25D prohibiting contracts between self-insurers and service companies is a reasonable exercise of police power. The plaintiff argues that the statute is arbitrary and discriminatory. It takes, the position that it was pursuing a lawful calling and argues that there is no rational ground for believing that it was reasonably necessary to prohibit self-insurers from employing service companies to accomplish the purposes of the Act as regulation would serve.
In an exhaustive opinion, the lower court considered the plaintiff’s arguments. Independent Service Corporation v. Tousant, D. C., 56 F.Supp. 75. Approaching the question from the standpoint of legislative power over employers who do not have policies of insurance complying with the Act, it noted that it is now well settled that the State has power to create a compulsory insurance system to secure adequate compensation to workmen for industrial accidents ; that instead of exercising that power to the full, the State may choose to allow the employer to remain outside the coverage of the Act providing that he gives up certain relevant rights; that since the legislature can deprive the non-insuring employer of his right to protect himself from liability by securing insurance which does not provide for the payment of compensation benefits “It is no great step from depriving an employer of his right to insure as he pleases to depriving him of his right to use a service company to investigate, adjust or settle claims of employees under the Workmen’s Compensation Act.” [56 F.Supp. 80]. The court below found some authorities who regarded service companies as proper and useful adjuncts to the administration of workmen’s compensation and others who regarded them as detrimental to the interest of employees and the system as a whole. Of the latter it said:
“They assert that a service company plan can survive only if the employer pays out less in settlements than he would have to pay as a premium to an insurance company; that the service company is therefore under an economic inducement to pay workmen low amounts as compensation for their injuries; that this economic inducement is not counterbalanced as in the case of lawyers by the professional discipline of the bar, or as in the case of insurance companies by the supervision of public authorities, or as in the case of settlement departments of the employer’s own business by neighborly sympathy and longstanding ties of mutual interest; and that the low payments under a service company plan not only prevent employees from getting uniform and hence fair compensation but also induce employers either not to join or to withdraw from a broad insurance scheme which would diversify and spread risks and would improve the administration and effectiveness of the Workmen’s Compensation Act.”
The court was of the opinion that m the light of the legislative materials and professional authorities before it the legislature could reasonably conclude that the use of service companies by self-insurers precluded workmen from receiving adequate compensation under the Act. Therefore it held thht the legislature “was not limited to an enactment which merely regulated the use of service companies by self-insurers; it had the power absolutely to prohibit their use,” citing Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Powell v. Pennsylvania, 127 U.S. 678, 685, 686, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Cf. United States v. Carolene Products, 304 U.S. 144, 151, 58 S.Ct. 778, 82 L.Ed. 1234.
The plaintiff contends that the lower court erred in failing to distinguish between self-insurers under a complusory act and non-insurers under an elective act and asserts that the only criticism of service companies before the legislature was directed at their use by non-insurers and is without any relevancy whatsoever with respect to their use by self-insurers under a compulsory act. The plaintiff further contends that the enactment of § 25D rests on the assumption on the part of the legislature that adjustments made by service companies for self-insurers qualified as such under § 25A of the Act would not be subject to the Act and to the supervision of the Industrial Accident Board. We see no merit in these contentions.
In our opinion the analysis of the District Court was correct. It is apparent from legislative history prior to November 15, 1943, the effective date of § 25D, that the use of substitute compensation plans which combined the use of service companies in the investigating, adjusting and settling of claims with stop-loss insurance putting a ceiling upon employers’ losses had been receiving considerable attention from the legislature. Furthermore we are satisfied that the criticism of service companies was not directed solely at their use by non-insurers outside the Act. In 1935 § 54A was added voiding stop-loss insurance policies which did not provide for the payment of compensation under the Act, and it was well understood that if this amendment had succeeded in forcing employers to carry workmen’s compensation insurance the business of service companies to that extent would have been circumscribed. In 1938 the Attorney General acted on complaints of abuses being practised by service companies, and in his report for the year ending November 30, 1938, Public Document No. 12, pp. 8, 9, it was stated that to sell their services service companies promise that the total amount paid to employees will not exceed the amount of premiums the employer would otherwise have to pay if he took out ordinary workmen’s compensation insurance; that they try to get injured workers to sign away their rights for the smallest amount possible, and that workers are generally forced to settle at very low figures, for if they sue at common law they risk losing their positions since the employer must meet adverse judgments out of his own funds and not an insurance company. The legislature had this report before it when it was considering the enactment of § 25D. It also had before it an article in 18 Boston University Law Review 1 (1938), which suggests that the history of the Massachusetts Workmen’s Compensation Act from 1911 until the depression began in 1929 was one of gradual expansion of the number of workmen covered, and that after 1929 the trend was reversed with employers in an effort to reduce expenses withdrawing from the Act to escape the cost of premiums.
In 1938 the legislature set up a Special Recess Commission for the purpose of investigating workmen’s compensation insurance. The report of that commission contained a majority and minority report on the subject of self-insurance revealing a substantial difference of opinion with respect to service companies. The majority thought that substitute compensation plans provided that service companies “would undertake to keep down the claims for injury in a given plant to a minimum through supervision of safety appliances and efficient and prompt attention to all injuries.” It cited testimony that some employers acting outside the Act dealt liberally with employees and paid benefits substantially the same as those provided under the Act and that both employers and employees seemed satisfied. It merely acknowledged the assertion “that costs were kept down through pressure upon employees not to assert claims, and failure to pay benefits as great as those provided for in the Act.” The minority report was far more critical. It provided in part: “When a workman was injured and there was negligence these substitute scheme promoters would then settle with the workers as cheaply as possible under the common law. If there were no negligence, as in 90% of the cases, then they would pay the worker practically nothing, and in many cases nothing, for the loss of a leg or an eye or an arm. Section 54A of the compensation act was passed to stop such substitute schemes. But it did not succeed in doing so. These substitute scheme promoters, therefore, are anxious to have a provision put in the law so that there may be self-insurance, that is, an employer who could pay his workmen directly, and the people who were formerly handling substitute schemes would then be handling the cases for self-insurers.” The period between 1938 and 1943 saw the introduction of numerous bills designed to legalize service companies. None of them became law.
In the light of legislative history and the materials on hand when the legislature considered § 25D, we are satisfied that there was a reasonable difference of opinion as to the place of the service company in the scheme of compulsory workmen’s compensation, and that the legislature could reasonably conclude that the economic pressure upon service companies to keep compensation payments down was so pressing as to constitute them an appropriate object of prohibition when considered in the light of an established public policy that workmen should receive adequate compensation for injuries. Therefore we are not disposed to upset the' conclusion of the legislature that there was something inherently harmful to the interest of workmen in the service company function.
This disposes of the contention of the plaintiff that it was pursuing a lawful calling, the abuse of which it concedes is subject to regulation. It also disposes of the arguments that since the Act is now compulsory and all compensation claims are subject to supervision by the Industrial Accident Board, the Board is in a position- to control abuses; and that if further regulation were necessary the legislature could set up direct controls over service companies and subject them to licensing requirements. Irrespective of the theoretical validity of the arguments they do not necessarily meet the actual problem. From the testimony taken at the trial it appears that more than 95% of all workmen’s compensation claims even under the amended Act are disposed of without close supervision by the Industrial Accident Board. Apparently it was the judgment of the legislature that the economic pressure upon service companies to keep the payments of losses down could not be restrained through regulation by the Industrial Accident Board since the latter dealt primarily with flagrant abuses and would not be a satisfactory control in the great mass of compensation cases.
Nor does the fact that insurance companies apparently may employ service companies without restriction necessarily indicate that § 25D is capricious. Insurance companies are subject to close and complete supervision. Moreover, the profit motive and fear of losses are less apparent. The insurance company may be prepared to pay compensation to the employees of one employer which exceeds the particular premium charged and make up its loss on other risks where compensation payments are less than premiums. It is also to be noted that premium rates are not fixed but adjustable according to loss experience of the risk.
It is clear that the State may require contributions to a state fund as the exclusive method of making payments required by a Workmen’s Compensation Act, Mountain Timber Co. v. Washington, supra; and that the State as a condition to permitting an employer to make such payments as a self-insurer, may prohibit him from insuring with a private company by requiring him either to contribute to a state fund or to act as his own insurer without the security of private insurance, Thornton v. Duffy, 254 U.S. 361, 41 S.Ct. 137, 65 L.Ed. 304. The present act gives the employer the option of taking out ordinary workmen’s compensation insurance or of acting as his own insurer. As a condition to obtaining a license as a self-insurer the Act provides that such self-insurer must not employ a service company. The plaintiff’s final contention is that the legislature has forbidden employers to contract with service companies for the purpose of ultimately driving them to provide for compensation benefits through conventional insurance and that in so doing it has gone too far in abridging freedom of contract. It distinguishes Mountain Timber Co. v. Washington, supra, and Thornton v. Duffy, supra, as dealing with state funds and asserts that the effect of the statute here is to require all employers to insure with private companies. We do not agree.
We have already adverted to materials before the legislature indicating that § 25D was enacted for reasons quite independent of those urged by the plaintiff. Nor are we of the opinion that the practical operation and effect of the statute will exert an unreasonable pressure upon employers, to insure with private companies. The plaintiff assumes that service companies are the sine qua non of self-insurance. Yet it will be conceded that the larger employer who maintains his own service department never has to turn to the service company for the investigating, adjusting and settling of claims against him. Nor are we satisfied that the smaller employer who cannot maintain his own service department is foreclosed from acting as a self-insurer. In this connection the decision of the Supreme Judicial Court in Friend Brothers, Inc., v. Seaboard Surety Co., 316 Mass. 639, 56 N.E.2d 6, 9, 153 A.L.R. 962, is to be noted. In that case the court held that § 54A of the Act which made void stop-loss policies taken out by non-insurers was not applicable to such policies issued to self-insurers under the Act and said:
“We do not believe that this statute,, which, as pointed out in Alecks’ case, supra, was for the purpose of compelling employers to insure under the act, was intended, after they had insured their employees by becoming self-insurers, to make it difficult for them to do so by denying them the right to reinsure. Such a construction would impute to the Legislature an intent to discourage self-insurance and to weaken the financial strength of the self-insurer who seeks by reinsurance to increase it for the benefit of himself and his employees. Where a statute such as St.1943, c. 529, makes it compulsory for one to insure his employees and gives him the choice of either insuring with an insurer or acting as a self-insurer, it would take clear and unequivocal language to convince us that one of these methods was to be regarded with less favor than the other. Such language is not to be found either in c. 529 or in section 54A.”
Section 25D was a part of c. 529. It would also seem therefore that the Supreme Judicial Court was not of the opinion that this section was enacted for the purpose of forcing employers to insure with private companies, or that that would be its only effect.
The judgment of the District Court is affirmed with costs to the appellees in this court.
New York Central R. v. White, 243 Ü.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas. 1917D, 642; Thornton v. Duffy, 254 U. S. 361, 41 S.Ct. 137, 65 L.Ed. 304.
Such as his common law defenses. New York Central R. v. White, supra; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Opinion of the Justices, 309 Mass. 571, 595, 596, 34 N.E.2d 527.
Alecks’ ease, 301 Mass. 403, 17 N.E.2d 173; Opinion of the Justices, 309 Mass. 596, 34 N.E.2d 527.
St.1935, c. 425. In Aleck’s Case, supra, the Supreme Judicial Court states that the reasons for § 54A are plain and points out that the willingness of some employers to risk the enlarged liability of the non-insurer to avoid paying premiums would increase if they could obtain at smaller expense liability insurance against the payment of damages in common law actions; and that “Thus the pressure which was intended to drive all employers into insuring under the Workmen’s Compensation Act would be removed, and the public policy of the Commonwealth that all employers should come under that act would fail.” [301 Mass. 403, 17 N.E.2d 175.]
Commonwealth of Massachusetts, Senate Report No. 456, February, 1939, Report of the Special Recess Commission appointed for the purpose of investigating Workmen’s Compensation, ’Silicosis, and Hazardous Employments, pp. 8-10, 25, 26.
House Bill No. 1765 of 1941 providing for legalization of service companies; House Bill No. 2038 of 1941 which would repeal section 54A and permit the issuance of stop-loss insurance policies; House Bills No. 2818 of 1941 and No. 1030 oí 1943 permitting stop-loss insurance; a substitute proposal identified as House No. 0000, May 4, 1943, expressly legalizing service companies was considered with open hearings by the Committee which reported out the bill that upon enactment became § 25D.
Tie plaintiff cites the decision in Friend Brothers, Inc. v. Seaboard Surety Co., supra, as showing that all sound reasons for opposing the use of service companies by employers had vanished with the amendment to the Act, making provisions for compensation compulsory but offering employers an option to become self-insurers under the Act.
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_numappel
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
METROPOLITAN LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. Werner H. KRAMARSKY, As Commissioner of the New York State Division of Human Rights, the New York State Division of Human Rights, and the New York State Human Rights Appeal Board, Defendants-Appellants.
No. 19, Docket 80-7185.
United States Court of Appeals, Second Circuit.
Originally Argued Sept. 25, 1980.
Decided May 11, 1981.
Petition for Rehearing June 9, 1981.
Decided Nov. 24, 1981.
Remanded from the United States Supreme Court June 24, 1983.
Decided Dec. 27, 1983.
Ann Thacher Anderson, Gen. Counsel, State Div. of Human Rights, New York City, for defendants-appellants.
Jeffrey A. Mishkin, New York City (Jeffrey D. Fields, Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for plaintiff-appellee.
Before KEARSE and CARDAMONE, Circuit Judges, and TENNEY, District Judge.
Honorable Charles H. Tenney, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation.
PER CURIAM:
For the reasons stated today in our opinion in Delta Air Lines, Inc. v. Kramarsky, 725 F.2d 146, on remand from the United States Supreme Court, Shaw v. Delta Air Lines, Inc., — U.S. —, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), we affirm the judgment of the district court enjoining enforcement of New York’s Human Rights Law, N.Y.Exec.Law § 296 (McKinney 1972 & Supp. 1980-81).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_crmproc2
|
8
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited.
GOVERNMENT OF the VIRGIN ISLANDS v. Angel RUIZ, Appellant in No. 73-1319. GOVERNMENT OF the VIRGIN ISLANDS v. Carlos CORCINO, Appellant in No. 73-1318.
Nos. 73-1318, 73-1319.
United States Court of Appeals, Third Circuit.
Argued Dec. 4, 1973.
Decided March 5, 1974.
Robert A. Ellison, Christiansted, St. Croix, V. I., for appellant in no. 73-1318.
David V. O’Brien, Merwin, Alexander & O’Brien, Christiansted, St. Croix, V. I., for appellant in no. 73-1319.
Julio A. Brady, U. S. Atty., Ishmael A. Meyers and John Wilbur, Asst. U. S. Attys., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before SEITZ, Chief Judge, and MARIS and GIBBONS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Appellants Ruiz and Corcino appeal from a judgment of sentence imposed by the District Court of the Virgin Islands. Ruiz and Corcino are two of four defendants named in an information charging murder, 14 V.I.C. § 922(a)(2) and robbery 14 V.I.C. § 1861 of one Lawrence Angus. The other two defendants named are Rafael San Kitts and Angel Ventura. Prior to the trial Ventura apparently became a fugitive. San Kitts pleaded guilty to the robbery count and testified for the government at the trial of Ruiz and Corcino. He implicated both in the robbery and murder. The government also introduced the sworn written statement of Ruiz, from which references to his co-defendants were deleted. Ruiz’ statement is substantially consistent with San Kitts’ testimony. Both Ruiz and Corcino took the stand and denied participation. Ruiz repudiated his statement and Cor-cino offered alibi testimony. The jury found both guilty on both counts and each was sentenced to life imprisonment for murder and fifteen years for robbery.
On this appeal Corcino contends:
(1) that his trial should have been severed from that of Ruiz because he was prejudiced by the admission of Ruiz’ statement. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
(2) that the trial court improperly limited the scope of cross-examination of San Kitts.
Both defendants contend:
(3) that they were prejudiced by the government’s failure to make full disclosure of exculpatory materials pursuant to Rule 16, Fed. R.Crim.P. and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
(4) that the trial court erred in refusing to admit into evidence a toxicological report on the blood and urine of the victim.
We will consider these contentions seri-atim.
1. THE SEVERANCE MOTION
Each defendant relying on Bruton v. United States, supra, moved before trial for a severance on the ground that the confession of one or more of the co-defendants would tend to incriminate him. At that stage the trial court, weighing the competing considerations favoring joinder under Rule 8 over severance under Rule 14, Fed.R.Crim.P., tentatively denied the motions for severance on condition that any statements, before they are admitted, be edited so that they refer only to the activity of the confessor and do not mention the activities of any co-defendant, and so that the contents be admitted by testimony and with the writing itself excluded. See United States v. Rickey, 457 F.2d 1027, 1030 (3d Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972); United States v. Lipowitz, 407 F.2d 597, 602 (3d Cir.), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969). The trial court also withheld final decision on Corcino’s motion for severance to be sure that in light of the evidence received at the trial there would be no tacit reference to him. At the trial the government produced a court reporter who on May 19, 1972 took a sworn deposition from Ruiz, the transcript of which had been edited in accordance with the court’s pre-trial ruling. Corcino’s counsel renewed his Bruton objection. (Tr. at 93). However, the court ruled that having reviewed the statement for conformity with the pretrial ruling, he would permit it to be read as edited with the understanding that he would entertain specific objections during the course of the reading. (Tr. at 94). The questions and answers were then read to the jury. They implicate Ruiz and other unnamed assailants in the robbery-murder. There is nothing in the statement as read identifying Corcino as one of the perpetrators. Thereafter San Kitts testified. He identified the perpetrators, besides himself, as Ruiz, Corcino and Ventura. He was extensively cross-examined both by Ruiz’ and by Corcino’s attorneys. After the government rested, Ruiz took the stand. He categorically denied participation and repudiated the May 19, 1972 statement, claiming it was the result of suggestion and coercion by the police. Ruiz was cross-examined by the prosecutor about the fact that in his May 19, 1972 statement he had implicated San Kitts and Corcino. (Tr. at 236). Corei-no’s attorney at this point made a motion for a mistrial. The court ruled:
“It is on the basis of Bruton that I deny the motion for a mistrial and also at this time, since Ruiz has taken the stand, deny your motion for a severance. You will recall I had reserved it. I reserved it only until such time as I would know whether Ruiz would take the stand. Now that he has taken the stand I finalize my decision that there won’t be a severance and I deny any mistrial because you have a right to have confrontation.” (Tr. at 241).
Thereafter the prosecutor’s cross-examination of Ruiz with respect to the May 19, 1972 statement continued until Ruiz’ attorney stated that he had no objection to the whole transcript being admitted. Corcino’s attorney stated:
“Defendant Corcino has no objection to its introduction, Your Honor.” (Tr. at 246).
It was admitted as exhibit G-6. Corcino’s attorney did not cross-examine Ruiz. He had the opportunity to do so. On this record we see no Bruton violation. See Wade v. Yeager, 415 F.2d 570 (3d Cir.), cert. denied, 396 U.S. 974, 90 S.Ct. 466, 24 L.Ed.2d 443 (1969). The severance motion was properly denied.
2. THE SCOPE OF CROSS-EXAMINATION OF SAN KITTS
San Kitts’ direct testimony implicating Ruiz and Corcino appears in eleven pages of the transcript. He was cross-examined for thirty pages by Ruiz’ attorney about discrepancies between his testimony and the several statements he had made to the police, and about his possible motives for testifying favorably for the government. He was then cross-examined by Corcino’s attorney for eight pages about discrepancies between his testimony and his prior statements and about his memory and his motives for testifying. On redirect the prosecutor, referring to a statement that had been used in cross-examination, developed that some of the discrepancies had resulted from threats by a defendant, asked certain clarifying questions, and concluded :
“Q. Assuming that there are some differences in the statements that you made, is it true or not that Angel Ruiz and Carlos Corcino were with you when Mr. Lawrence Angus was murdered and robbed ?
A. Yes, sir.” (Tr. at 172).
At that point, without objection from Corcino, the four statements given by San Kitts, about which he had already been extensively cross-examined, were received in evidence. (Tr. at 174). On recross, Ruiz’ attorney asked:
“Q. Will you tell the jury, the Court, the defendants, the United States Attorney and myself, please, Mr. San Kitts, where you lied in all of these statements?
[The Prosecutor]: Objection, Your Honor.
THE COURT: I will sustain the objection. We cannot go through all those statements again.” (Tr. at 175).
******
[Ruiz’ Attorney]: “I presume your Honor will give me the opportunity, then, to discuss with him the threats that he alleges were made against him, which was brought out on redirect.
THE COURT: Yes, you may.” (Tr. at 176).
Five pages of cross-examination on that subject follow. Corcino contends that the limitation of Ruiz’ cross-examination reflected in the quoted ruling prejudiced him. His attorney made no recross-examination, no offer of proof, and no protest with respect to the ruling. Aside from these obstacles to consideration of the ruling on his behalf, the ruling was, on the record as it stood at that point, a sound exercise of the court’s discretion in controlling the scope of cross-examination on credibility issues.
3. DISCLOSURE OF EXCULPATORY MATERIALS
The defendants contend that the government’s compliance with an apparently informal arrangement for production of materials pursuant to Rule 16, Fed.R.Crim.P. and Brady v. Maryland was grudging, tardy, and prejudicial. Turning to the specifics:
A. A knife obtained from San Kitts and the victim’s shirt were sent by the Virgin Islands police to the F.B.I. laboratory. The F.B.I. report, suggesting that the knife could not be related to the holes in the shirt (the victim died of multiple stab wounds), was produced at the trial and was received in evidence. The court made no findings as to the cause of the late disclosure. None was required since no prejudice occurred.
B. The knife referred to in the report was not produced prior to trial. It was produced at trial, introduced into evidence, and used extensively in the cross-examination of the medical expert who testified as to cause of death. It was referred to in San Kitts’ statement, which had been produced at pre-trial. Assuming tardy production, there was no prejudice.
C. The victim’s shirt was not produced apparently because the prosecutor never got it back from the F.B.I. But the discrepancies between the size of San Kitts’ knife, the wounds, and the cuts in the shirt as described in the F. B.I. report, were extensively explored. Again there was no prejudice.
D. A toxicological report as to the blood and urine of the victim were produced at the trial and fully examined by the defense attorneys. As will be seen hereafter, its exclusion was not prejudicial. No prejudice appears from its late production since it was in any event properly excluded.
E. Statements of San Kitts inconsistent with his testimony were produced at the trial. The defendants used them extensively in his cross-examination. They contend the statements should have been disclosed sooner. This contention is unsound. 18 U.S.C. § 3500(b). But assuming there was some obligation to make disclosure sooner, the extensive use made of the statements and their actual receipt in evidence negates any possibility of prejudice.
F. A tape recording of a statement by Corcino was disclosed at the pre-trial hearing. The prosecutor told the defense attorneys it was unusable. They neither listened to it nor interviewed the person in whose presence it was made. After Corcino testified, that person testified in rebuttal as to his recollection of Corcino’s testimony. There was no concealment, no possible surprise, and no prejudice.
G. One pretrial statement of Ruiz was not disclosed until after he took the stand. Withholding this statement was in clear violation of Rule 16(a)(1) since by informal agreement all Rule 16 materials were to be produced. The prosecutor’s reason for withholding the statement was that he believed it was taken without appropriate Miranda warnings, and that it would not be admissible. That reason is insufficient, since under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the statement could be used for impeachment purposes if the defendant took the stand. Thus the defendant’s attorney was entitled to be informed of it pursuant to his Rule 16(a)(1) motion. Its late production had the potential for creating a trap for a possibly forgetful defendant. We disapprove of the practice of withholding any statement by the defendant, admissible or not, when a Rule 16(a)(1) motion has been made. In this case, however, the trial court appreciated the problem presented by the late production and ruled that the undisclosed statement could not be used for impeachment purposes pursuant to Harris v. New York, supra. This ruling precluded any prejudice.
As to each of the items about which the defendants complain of late production, on this record there was no possible prejudice. But we take the occasion to suggest that a more meticulous attention to the government’s obligations under Rule 16 and Brady v. Maryland, supra, is highly desirable. We have no reason to believe that the tardy disclosures in this case were the result of any deliberate policy of concealment. An affirmative policy of prompt compliance would, however, avoid the risk of needlessly causing a mistrial or a reversal.
4. ADMISSIBILITY OF THE TOXICOLOGICAL REPORT
The government’s first witness, Burgos, established that the victim Angus was drinking in a bar from 10:00 p. m. until at least 3:00 a. m. and was “Well, a little high.” (Tr. at 32). Angus was murdered some time between 3:00 a. m. and 6:25 a. m., and on May 3, 1972, the police discovered his body near his car beside the road. Dr. Glenn, a pathologist who performed the autopsy, found thirteen stab wounds and multiple contusions or bruises, abrasions or scratches and lacerations of the face and scalp, abrasions of the left elbow, abrasions of the right lower leg, and a total depressive skull fracture. He testified that the major injuries were stab wounds which penetrated the heart and the aorta. His pathological report was admitted in evidence at the defendants’ request, and was used in examining Glenn in an attempt to show that San Kitts’ knife could not have caused the wounds. This attempt was not particularly successful. Ruiz’ attorney, referring to the pathological report said to the court:
“There is another item here and that is that in the state that Mr. Angus was that he was able to drive the car to the location at which he was murdered. The doctor conveniently left out additional diagnosis, which is in here, which is alcoholic intoxication, including samples. And the samples are incredible, 0.15 alcohol in his blood, 0.2 alcohol by weight in his urine.” (Tr. at 74).
The significance of this statement is that San Kitts testified, and Ruiz’ statement admitted that the defendants had followed Angus’ car, pulled ahead of it, and forced him to stop at the spot where he was killed. Arguably, if he was too intoxicated to drive, San Kitts and Ruiz were lying.
Attached to the pathologist’s report was a toxicological report on the victim’s blood and urine, prepared from samples sent to Puerto Rico by Dr. Glenn. The government did not object to the admissibility of the pathologist’s report, but did object to the toxicological report because the person who prepared it was not present. The court sustained this objection. Dr. Glenn was then cross-examined as follows:
“Q. Dr. in you report the list is pathological diagnosis, is that correct?
A. Yes.
Q. In that you have indicated on direct examination certain of the things that occurred that you diagnosed as causes of death, is that correct?
A. Yes.
Q. Would you read one of those which you did not read? What is the last item listed under pathological diagnoses ?
A. I have acute alcoholic intoxication with a question mark after it.
Q. Will you describe what it is, Doctor ?
A. Well, the reason I put that in, what we call our gross examination, is because during the autopsy the tissue of the body had a heavy alcoholic aroma. You can’t go by your notes to make a diagnosis of acute alcoholism or chronic alcoholism but you suspect. So I put that in there to indicate my suspicion of chronic alcoholism and a question mark after it to indicate it would be verified by a toxicological examination.” (Tr. at 78-79). Since Dr. Glenn had not performed the toxicological tests he could not say of his own knowledge what was the alcoholic level in the decedent’s blood. A day later, after Dr. Glenn had been excused both attorneys made an offer of proof with respect to the toxicological report.
“The admission of this report is crucial to the defense because in particular the toxicological report indicates certain matters in the blood, rather, correction, the urine of the deceased which raise a number of questions about his whereabouts from the last time he was seen alive from the time he was killed.” (Tr. at 252).
The government objected that it would be deprived of the opportunity to examine the doctor who prepared the toxicological report. The court sustained the objection. (Tr. at 255). No request was made for a continuance so that a witness might be produced who could authenticate the contents of the report.
The defendants contend that the report was admissible pursuant to 28 U.S. C. § 1732. We need not address that question, for even if we were to hold that the report was admissible without the presence of the toxicologist who made the tests we would and do find that their exclusion was not in the circumstances of this case prejudicial. The evidence already had the victim afloat in a sea of alcoholic beverages. At most, the report is cumulative. There is no claim that it would have suggested a cause of death other than stab wounds. If the alcoholic state of the deceased suggests that these wounds were inflicted at a different place and by different persons than San Kitts testified and Ruiz admitted, a remote suggestion at best, that alcoholic state was sufficiently established by Dr. Glenn’s testimony.
CONCLUSION
We find no error warranting a new trial for either defendant. The judgment of the district court will be affirmed.
Question: What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
sc_casedisposition
|
E
|
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.
OHIO v. GALLAGHER
No. 74-492.
Argued December 2, 1975
Decided April 5, 1976
Herbert M. Jacobson argued the cause for petitioner. With him on the brief was Lee C. Falke.
Jack T. Schwarz, by appointment of the Court, 421 U. S. 985, argued the cause and filed a brief for respondent.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., and Theodora Berger, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging reversal.
Per Curiam.
We granted certiorari to determine whether the' admission in evidence of statements made by an accused in response to in-custody questioning by his parole officer violates the rule of Miranda v. Arizona, 384 U. S. 436 (1966).
On June 21, 1972, the respondent, Terry L. Gallagher, was arrested and later charged with the armed robbery of a food store. On the morning following his arrest, two detectives advised respondent of his rights under Miranda and then questioned him.
Four days later, respondent’s parole officer, William Sykes, went to the jail to talk to him about the food store robbery as a possible violation of parole. Respondent refused to discuss it, but on a return visit a week later, Gallagher gave Sykes a detailed account of his participation in the crime. It is undisputed that, at no time, did the parole officer advise Gallagher that he had a right to remain silent or that any statements he made would be used as evidence against him. At trial, the parole officer was called as a prosecution witness and testified, over defense objection, to the incriminating statements made to him by Gallagher.
Respondent was convicted of armed robbery in the Ohio Court of Common Pleas. The Ohio Court of Appeals affirmed. 36 Ohio App. 2d 29, 301 N. E. 2d 888 (1973).
The Supreme Court of Ohio granted respondent’s motion for leave to appeal and reversed the judgment of conviction. 38 Ohio St. 2d 291, 313 N. E. 2d 396 (1974). In its opinion, the state court defined the question presented by respondent’s appeal as “whether testimony, concerning certain statements made by [respondent] to his parole officer about his involvement in a crime, was received at trial in violation of [respondent’s] privilege against self-incrimination, as guaranteed by Section 10, Article I of the Ohio Constitution, and the Fifth Amendment to the United States Constitution.” Id., at 294, 313 N. E. 2d, at 398-399. The Ohio Supreme Court held that testimony relating the statements of an accused in response to questions by his parole officer is inadmissible at trial if, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent and his right to be provided with counsel prior to questioning, and to warn him that any statement might be used as evidence against him. Id., at 297, 313 N. E. 2d, at 400.
From the briefs and oral argument, we are unable to determine whether the Ohio Supreme Court rested its decision upon the Fifth and Fourteenth Amendments to the Constitution of the United States, or Art. I, § 10, of the Ohio Constitution, or both. In its full opinion, the Ohio court cited with approval an excerpt from the opinion of the Court of Appeals for the Fifth Circuit in United States v. Deaton, 468 F. 2d 541 (1972), a case which, in the view of the state court, presented the precise question then before it. We are unsure whether the Ohio court made reference to Deaton merely to lend support to its view that a parolee is under heavy-pressure to cooperate with his parole officer or whether the court intended to demonstrate its reliance on a federal constitutional ground. Indeed, we cannot be certain that the Ohio court did not construe its constitutional provision to be identical to that contained in the Fifth Amendment and thus render judgment simultaneously under both state and federal law.
We also note that, except for per curiam opinions, it is the settled rule in Ohio that its Supreme Court speaks as a court only through the syllabi of its cases. See Cassidy v. Glossip, 12 Ohio St. 2d 17, 24, 231 N. E. 2d 64 (1967); see also Beck v. Ohio, 379 U. S. 89, 93 (1964). The italicized headnote which appears in the instant syllabus can be read as a holding based only on points of criminal law and the law of evidence; it contains nothing to indicate that a point of federal constitutional law is decided. Because we decline to speculate from the choice of words used in the syllabus and the authorities cited by the author of the opinion as to which constitutional provision formed the basis for the judgment of the state court, we vacate the judgment of the Supreme Court of Ohio and remand the cause to permit that court to explicate whether or not its judgment relies on federal law. California v. Krivda, 409 U. S. 33 (1972); Mental Hygiene Dept. v. Kirchner, 380 U. S. 194 (1965); Minnesota v. National Tea Co., 309 U. S. 551 (1940). We intimate no view on the merits of the Fifth and Fourteenth Amendment issue presented.
Vacated and remanded.
Mr. Justice Stevens took no part in the consideration or decision of this case.
420 U. S. 1003 (1975).
Statements elicited from the respondent during this police interrogation were later suppressed by the trial court on the ground that they were induced by promises of leniency and, as such, were involuntary.
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_counsel
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" 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".
SAFECO INSURANCE COMPANY OF AMERICA, Appellee, v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY, Appellant.
No. 85-1936.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1986.
Decided Feb. 28, 1986.
Gary B. Mims (Brault, Palmer, Grove & Zimmerman, Fairfax, Va., on brief), for appellant.
Mary McGowan (Joseph P. Dyer, Siciliano, Ellis, Dyer & Boccarosse, Fairfax, Va., on brief), for appellee.
Before PHILLIPS and SNEEDEN, Circuit Judges, and SENTELLE, United States District Judge for the Western District of North Carolina, sitting by designation.
SENTELLE, District Judge:
Merrimack Mutual was the insurer of one David Weitz under a homeowner’s policy including personal liability coverage. Weitz was operating a motorboat belonging to Barry Goldberg. Goldberg was injured by the apparently negligent operation of the boat by Weitz. Safeco at the time was the insurer of Goldberg under a boat owner’s liability insurance policy. Merrimack defended Weitz against the claims of Goldberg and paid a settlement of $165,-000. At various stages of the GoldbergWeitz controversy, Merrimack demanded Safeco’s participation in defense and ultimately demanded contribution to the settlement. Safeco denied coverage and brought this declaratory judgment action. Safeco’s denial was grounded on a policy provision which Merrimack argued was invalid under Virginia’s omnibus insurance statute. There being no dispute of facts, the court below took the case on cross-motions for summary judgment and allowed the motion of Safeco. We agree with the district court that the omnibus statute does not invalidate the coverage limiting clause involved in this case and, therefore, affirm.
The Safeco boat owner’s policy covering Barry Goldberg at the time of the injury provided liability coverage for bodily injury under provisions which defined “insured” to include “any person using such boat with the permission of the named insured provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission,____” Safeco concedes that at the time of Goldberg’s injuries Weitz was operating the boat as a permissive user within the scope of the permission of the owner and is, therefore, an insured within the meaning of the policy. However, Safeco denies coverage based on the following limitation on the scope of such coverage:
This policy does not apply:
5. to bodily injury to the named insured or any relative if a resident of the same household.
Merrimack, recognizing the existence of the limiting language of paragraph 5, nonetheless argues that Safeco’s liability coverage applies, asserting that paragraph 5 is an unlawful exclusion under Virginia’s “omnibus statute” prescribing the required terms and prohibited exclusions of insurance contracts. The basic statute is found at Section 38.1-381(a) of the Virginia Code and reads, in pertinent part, as follows:
No policy or contract of bodily injury liability insurance, ... covering liability arising from the ... use of any ... boat or other watercraft, shall be issued or delivered in this state to the owner of ... such watercraft ... unless it contains a provision insuring the named insured and any other person ... using the ... boat or other watercraft ... with the consent, express or implied, of the named insured, against liability for death or injuries sustained, or loss or damage occasioned within the coverage of the policy or contract as a result of negligence in the operation or use of such ... watercraft ... by any such person..... [Emphasis added.]
Many cases under this statute and its predecessor statute, Section 4326a of the Code of Virginia, have upheld various exclusions limiting liability coverage. Notably, Jenkins v. Morano, 74 F.Supp. 234 (E.D.Va.1947), applied Virginia law to a factual situation closely analogous to the one involved in this case. In Jenkins, the issue involved an automobile rather than a motorboat but, as in this case, the named insured owner of the vehicle in question was injured by the negligence of a permissive user and the insurer denied coverage under a contract provision excluding application to bodily injury claims of the named insured and certain related persons. The district court, applying Virginia law, found the contract language valid under the Section 4326a provision comparable to and to similar effect as the present omnibus clause. This holding apparently correctly stated the law of Virginia and continues to be good law except that the legislature in 1966 amended the omnibus clause by enacting Section 38.1-381(a2), which reads:
Any endorsement, provision or rider attached to, or included in, any such policy of insurance which purports or seeks in any way to limit or reduce in any respect the coverage afforded by the provisions required therein by this section shall be wholly void.
Merrimack argues that this provision renders invalid the contract language relied upon by Safeco. In support of this proposition, Merrimack argues the decision in Southside Distributing Co. v. Travelers Indemnity Co., 213 Va. 38, 189 S.E.2d 681 (1972). In that case, the Virginia Supreme Court voided an exclusion upon which Travelers relied. That exclusion applied where the permissive user and the injured party were both employees of the named insured. Recognizing that it had previously allowed such exclusions, the court held:
We conclude the purpose of Section 38.1-381(a2) was to prohibit the issuance of policies containing exclusions permitted under our previous interpretation of the “omnibus clause”. Otherwise, the statute would accomplish nothing. Accordingly, we hold that the “omnibus clause”, as amended by Section 38.1-381(a2) prohibits any exclusions from policy coverage except those expressly provided for by statute.
Merrimack asserts that this language should be controlling in the instant case.
Merrimack’s argument, however, ignores a further decision of the Virginia Supreme Court six years after Southside. That case, Transit Casualty Co. v. Hartman’s Inc., 218 Va. 703, 239 S.E.2d 894 (1978), upheld a limitation in the scope of coverage of an automobile liability policy which excluded payment for damage to property owned by the named insured. Two insured vehicles owned by Hartman’s collided. The collision carrier, under a separate policy, sought subrogation against the liability carrier, who asserted the relevant limitation. The court deferred to the maxim that an insurance contract, like any other contract, should be interpreted to give effect of the intention of the parties. Noting that the policyholder could have procured collision insurance from the liability insurer for an additional premium had he chosen to do so, the court declined to work a conversion of the policy, noting that:
[Construction of the contract urged by Hartman would produce the strange result that what is clearly only a policy of liability would be converted into a combination liability and collision policy, with no extra premium required for the additional coverage. Such a result not only would subvert the obvious intention of the parties but also would create a new contract different from what was contemplated when their bargain was struck.
Id., 239 S.E.2d at 897.
It appears to us that the court below correctly determined that Merrimack, like the insured in Hartman’s, supra, is attempting to convert a liability policy into a policy covering first-party loss. The court below correctly determined that the Virginia Supreme Court has held that the Legislature of Virginia did not by the enactment of the omnibus clause intend to accomplish any such result. What the legislature did intend was not an expansion of coverage but a prohibition of nonstatutory exclusions within the coverage afforded. In Hartman’s, as in the case at bar, the controverted provision of the policy is not an exclusion from coverage afforded but rather a limitation upon the coverage in the first instance to third-party rather than first-party losses.
In this case, as in Hartman’s, the named insured could have obtained coverage for at least a portion of his own damages had he chosen to contract for it and pay the premiums. At the time Goldberg contracted for the Safeco coverage, he was afforded the opportunity to obtain medical payments coverage for his own bodily injuries or injuries to others excluded under paragraph 5 above. He in fact contracted for $1,000.00 per person medical coverage.
In the Hartman’s decision, the Virginia court relied in part on its earlier holding in Bankers & Shippers Insurance Co. v. Watson, 216 Va. 807, 224 S.E.2d 312 (1976), where the court defined the purpose of the relevant portion of the omnibus statute to be the protection of the public from losses caused by the negligence of permissive users of insured vehicles. This thread of protecting the innocent public runs throughout the decisions of the Virginia court from Jenkins through Southside through Bankers & Shippers to Hartman’s. In Hartman’s, that policy of Virginia law was done no violence by the limiting language. The same is true in the case at bar.
It would, therefore, appear that the court below applied the law of the State of Virginia without error, and its decision is
AFFIRMED.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_state
|
06
|
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".
Owen Duane NUNNEMAKER, Petitioner-Appellant, v. Eddie S. YLST, Respondent-Appellee.
No. 89-15050.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 17, 1989.
Decided Feb. 21, 1990.
Juliana Drous, San Francisco, Cal., for petitioner-appellant.
Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.
Before FARRIS, PREGERSON and RYMER, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
PREGERSON, Circuit Judge:
Owen Duane Nunnemaker, a California state prisoner, appeals the district court’s dismissal of his petition for a writ of habe-as corpus filed under 28 U.S.C. § 2254. A California jury convicted Nunnemaker of first degree murder under Cal. Penal Code § 187. At trial, a psychiatrist called by the state prosecutor gave testimony on statements made by Nunnemaker in a post-arrest interview. Nunnemaker contends that the admission of the psychiatrist’s testimony violated his Fifth and Sixth Amendment rights, that his Fifth and Sixth Amendment claims are not barred by procedural default, and that he received ineffective assistance of counsel. In light of the Supreme Court’s recent decision in Harris v. Reed, - U.S. -, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), decided after the district court ruled on Nunnemaker’s petition, we reverse in part and remand the case to the district court for consideration of Nunnemaker’s Fifth and Sixth Amendment challenges to his conviction. We affirm the district court’s judgment that Nunne-maker was not deprived of effective assistance of counsel.
BACKGROUND
On January 30, 1976, Owen Duane Nunnemaker was convicted in California state court of first degree murder. He was sentenced to life in prison.
At trial, Nunnemaker introduced expert testimony to establish a diminished capacity defense then available under California law. To rebut this testimony the state prosecutor called as a witness a psychiatrist who interviewed Nunnemaker two days after his arrest. At the time of the interview, Nunnemaker was told that the psychiatrist was working for the prosecution. Nunnemaker, however, was not informed that he had the right to remain silent and the right to an attorney. At trial, defense counsel made several specific objections to certain statements made by the state’s psychiatrist, but failed to challenge the entire testimony on the grounds that it was based on an interview conducted in violation of Nunnemaker’s Fifth and Sixth Amendment rights.
On direct appeal to the California Court of Appeal, Nunnemaker raised for the first time his federal constitutional challenges to the testimony of the state’s psychiatrist. Affirming the conviction, the state appellate court expressly avoided these challenges and held that “the failure to interpose an objection during trial preclude[d its] consideration on review.” The state appellate court, however, considered on the merits — and rejected — Nunnemaker’s ineffective assistance of counsel claim. On direct appeal, the California Supreme Court denied Nunnemaker’s petition for hearing, without comment or case citation, on September 27, 1978.
Nunnemaker petitioned the California courts for a writ of habeas corpus. In his habeas petitions, he raised, among other claims, his federal constitutional challenges to the testimony of the state psychiatrist and his ineffective assistance of counsel claim. His petitions were denied.
Nunnemaker then filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Northern District of California. The district court dismissed the petition without prejudice because the petition did not make clear whether all state remedies had been exhausted. Nunne-maker filed a second petition for habeas relief in the California Supreme Court, arguing again that his statements to the state prosecution psychiatrist were “clearly inadmissible,” and stating in greater particularity his claim of ineffective assistance of counsel. That petition was also denied, without comment or case citation, by the California Supreme Court on April 7, 1988.
Nunnemaker filed another federal habe-as petition. The district court issued an Order to Show Cause on July 8, 1988. On December 9, 1988, the district court denied the petition. The court held that Nunne-maker’s state procedural default barred review of the Fifth and Sixth Amendment challenges to the prosecution’s psychiatrist testimony, and that Nunnemaker had not been deprived of effective assistance of counsel.
Nunnemaker filed a timely notice of appeal. This court has jurisdiction over the district court’s final order under 28 U.S.C. § 2253.
STANDARD OF REVIEW
We review the district court’s denial of habeas corpus relief de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, - U.S. -, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). The question whether Nunnemaker was deprived of effective assistance of counsel is a mixed question of fact and law reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir.1989).
DISCUSSION
I. Procedural Bar
This case presents the issue whether the California Supreme Court’s denial of an original petition for writ of habeas corpus without comment or case citation constitutes a “plain statement” sufficient to establish the procedural default bar of federal habeas review under the Supreme Court’s recent decision in Harris v. Reed, 109 S.Ct. 1038. We hold that it does not.
The Supreme Court has held that a state prisoner barred by procedural default from raising a federal constitutional claim in state court “could not litigate that claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default.” Engle v. Isaac, 456 U.S. 107, 110, 102 S.Ct. 1558, 1562, 71 L.Ed.2d 783 (1982) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). In Harris v. Reed, the Supreme Court applied this rule, but held that “a federal claimant’s [state] procedural default precludes federal habeas review ... only if the last state court rendering a judgment in the case rests its judgment on the procedural default.” 109 S.Ct. at 1043 (emphasis added). The Court explained that Wainwright v. Sykes’ holding that a state procedural default may bar federal habeas review is based on the adequate and independent state ground doctrine, under which the Court “will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Id. 109 S.Ct. at 1042 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 20 Wall. 590, 635-36, 22 L.Ed. 429 (1875)). The Court in Harris applied the “ ‘plain statement’ rule” of Michigan v. Long, 463 U.S. 1032, 1042 and n. 7, 103 S.Ct. 3469, 3477 and n. 7, 77 L.Ed.2d 1201 (1983), to state prisoner cases on federal habeas review, and held that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).
Under Harris, then, a procedural default bars review in federal habeas proceedings only if the last state court ruling on a case states the basis of its decision. Procedural default alone does not bar federal review; the state court’s ruling must have been based, at least in part, on an “adequate and independent” state procedural rule. Harris v. Reed, 109 S.Ct. at 1042. Harris undertakes to resolve the problem — often faced by district courts — of discerning from an ambiguous state court ruling the basis of a decision to deny habeas relief to a state prisoner raising federal constitutional claims. The plain statement requirement ensures that federal courts will decline to review state prisoners’ federal constitutional claims only where required by the interests of comity.
Here, the California Supreme Court was the “last state court to render judgment in the case.” That court did not clearly and expressly state its reliance on Nunnemaker’s procedural default when it denied his final habeas petition. The petition raised Nunnemaker’s objection to the testimony of the state’s psychiatrist and Nunnemaker’s ineffective assistance of counsel claim. From the record before us, we cannot say that the California Supreme Court’s denial of Nunnemaker’s final petition, without comment or case citation, was based on a procedural default rather than on the underlying merits of Nunnemaker’s claims. The rationale and plain language of Harris require that, where, as here, a state supreme court does not plainly state in its summary denial of an original habeas petition that its ruling rests on a state procedural bar, federal habeas review is not precluded.
In fact, the Supreme Court discussed in Harris the issue now before us. The Court addressed concerns raised over the burden the plain statement requirement would place on state courts ruling on habe-as petitions. The Court stated that “a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that ‘relief is denied for reasons of a procedural default.’ ” Harris v. Reed, 109 S.Ct. at 1044 n. 12. The California Supreme Court did not do that in this case.
The district court carefully reviewed Nunnemaker’s habeas petitions, but did not have the benefit of the Supreme Court’s later clarification of federal habeas law in Harris. We hold that the district court was not barred from reviewing Nunnemaker’s federal constitutional claims concerning the testimony of the state’s psychiatrist.
II. Ineffective Assistance of Counsel
Nunnemaker also contends that he was deprived of effective assistance of counsel, and that federal habeas relief should be granted for that reason. This Sixth Amendment ineffective assistance of counsel claim is based on Nunnemaker’s trial counsel’s failure to object to the admission of the state psychiatrist’s testimony on Fifth and Sixth Amendment grounds. The district court concluded that “[djefense counsel was clearly acting as the ‘counsel’ guaranteed by the Sixth Amendment.” We agree.
An ineffective assistance of counsel claim has two components:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A convicted defendant complaining of the ineffectiveness of counsel’s assistance must show that counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064.
The trial record demonstrates that Nunnemaker’s counsel vigorously objected to parts of the psychiatrist's testimony on various grounds. Further, because the state’s psychiatrist was subject to potentially damaging cross examination, trial counsel’s decision to allow the testimony, make specific objections, and impeach the witness on bias and credibility grounds may well have been a sound trial tactic.
Nunnemaker has not shown that his trial counsel’s performance “was not ‘within the range of competence demanded of attorneys in criminal cases.’” Id. at 687, 104 S.Ct. at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)).
CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED in part and REVERSED and REMANDED in part.
. The Sonoma County Superior Court denied Nunnemaker’s petition on February 25, 1985. The California Court of Appeal for the First Circuit denied his petition in late 1985. The California Supreme Court denied his first petition on December 3, 1986, and his second petition on April 7, 1988.
. The district court stated:
The petition is not entirely clear as to the procedural history of this matter. Petitioner states that none of his claims were raised by way of direct appeal in the California courts. However, petitioner did present these and other claims to the California Court of Appeal and Supreme Court by way of a habeas petition. The California Supreme Court denied the petition, citing In Re Waltreus, 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] (1965) and In Re Swain, 34 Cal.2d 300, 304 [209 P.2d 793] (1949). These citations are cryptic. Waltreus holds that arguments rejected on appeal will not be reviewed again in habeas; thus the implications of this citation contradict petitioner’s assertion that he did not raise these claims on appeal. Swain, in contrast, holds that habeas claims not pleaded with sufficient particularity must be dismissed without prejudice. This latter citation implies that at least some of petitioner’s claims were not presented on appeal, and the California Supreme Court declined to consider their merits on procedural grounds.
As to any claims raised on appeal to the state and rejected on the merits, petitioner has exhausted his state remedies and this court can hear his habeas petition.... However, any claims not raised on appeal, and whose merits the state courts have not considered on habeas, must be dismissed....
District Court Order, September 8, 1987, at 2.
. Where comity does not require it, federal courts should not deny review. “[T]he federal courts ... have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” Harris v. Reed, 109 S.Ct. at 1045 (Stevens, J., concurring).
. Nunnemaker’s last filing with the California Supreme Court was an original habeas petition, and not a petition for hearing on a denial of habeas relief based on a procedural rule. Under California law, a state prisoner seeking collateral review of his or her conviction may file separate, independent habeas petitions in the superior court, court of appeal, and supreme court. Cal. Penal Code § 1475. In addition, however, a state prisoner whose habeas petition is denied in the court of appeal may file a petition for review of that denial in the California Supreme Court. Cal. Penal Code § 1506. In McQuown v. McCartney, 795 F.2d 807, 809-10 (9th Cir.1986), we held that when a habeas case is before the California Supreme Court on a petition for hearing, rather than as an original habeas petition, a summary denial by the state supreme court is not a decision on the merits of the petition. See also Tacho v. Martinez, 862 F.2d 1376, 1378-80 (9th Cir.1988) (applying McQuown and holding that the Arizona Supreme Court’s denial of review of a trial court denial of habeas relief without case citation or comment was not a decision on the merits). Cf. Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir.1976) (“Where a petition for a writ of habeas corpus presenting a federal constitutional question is denied by a state court with no reason given, we will assume that the state court has had an opportunity to pass upon the merits of the issue and has resolved it against the petitioner.’’).
McQuown does not affect the present case, because the California Supreme Court denied Nunnemaker’s original habeas petition on April 7, 1988. That ruling was a "judgment” under Harris, and was the last rendered by a state court in Nunnemaker’s case. We do not now address the question whether, in light of Harris v. Reed, the California Supreme Court's summary denial of a petition for hearing on a denial of habeas relief based on a procedural rule bars federal habeas review.
. In Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir.1989), cert. denied, - U.S. -, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989), the Fifth Circuit held that, where a state trial court denied review of certain claims on state procedural default grounds but the appellate court "denied relief without written order,” the claims were procedurally barred. That court, however, did not reconcile its decision with the plain language of Harris that "a procedural default does not bar consideration of a federal claim ... unless the last state court rendering judgment in the case 'clearly and expressly’ states that its judgment rests on a state procedural bar," Harris v. Reed, 109 S.Ct. at 1043, and in fact discussed in detail the merits of the petitioner’s claims. We decline to follow Ellis v. Lynaugh.
. Nunnemaker raised this claim on direct appeal in the state court proceedings, and the state appellate court decided the merits of the claim. The state has made no argument that this claim was not properly before the district court. The district court correctly reached the ineffective assistance claim in its review of Nunnemaker’s habeas petition.
. This was the conclusion reached by the state appellate court on direct appeal.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
SENTRY INDEMNITY COMPANY, Plaintiff-Appellee, v. Frances PEOPLES, Defendant-Appellant.
No. 85-8795.
United States Court of Appeals, Eleventh Circuit.
Oct. 7, 1986.
Stephen F. Carley, Ga., for defendant-appellant.
Richard B. Eason, Jr., Atlanta, Ga., for plaintiff-appellee.
Before HILL and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
CLARK, Circuit Judge:
This appeal is taken from the district court’s grant of plaintiff’s motion for summary judgment in a declaratory judgment action filed by Sentry Indemnity Company seeking a declaration that its automobile insurance application forms were in substantial compliance with O.C.G.A. § 33-34-5(b) at the time that it entered into a contract to provide automobile insurance to the appellant, Frances Peoples, and that Peoples was thus not entitled to any Optional Personal Injury Protection (PIP) Coverage benefits under her insurance policy beyond those already paid to her by Sentry. We reverse.
Peoples signed an application for automobile liability insurance provided by Sentry on May 3,1978. At that same time, she signed the bottom of a separate form entitled “Georgia Automobile Supplementary Application — Offer to Purchase Additional Coverage.” That one-page form contained boxes to be marked for acceptance or rejection of various levels of optional PIP, collision, comprehensive, loss of use, towing & labor, and uninsured motorists coverage. At the bottom of the page, there was a single blank for the “signature of the Insured.” On Peoples’ application, the box labeled “No Optional PIP” was marked, as were boxes indicating the desired amounts of the other optional coverages. Peoples placed her signature at the bottom of the form in the space indicated. If no optional coverage is purchased, the basic PIP coverage in Georgia is $5,000.
On February 11, 1980, Peoples was involved in an automobile accident, and Sentry made a timely payment of basic PIP benefits to her. By letter of counsel dated October 6, 1981, Peoples requested additional retroactive PIP coverage and offered to pay any necessary premiums. This seemingly unusual request was apparently based upon the holding of the Court of Appeals of Georgia in Jones v. State Farm Mutual Automobile Insurance Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980), cert. dismissed, 248 Ga. 46, 280 S.E.2d 837 (1981). In that case, the plaintiff signed an application form for no-fault automobile insurance in the only place provided thereon for his signature, making no other marks on the form. The court found that the insurance company had thus violated Ga. Code Ann. § 56-3404b(b) (1978) (now O.C. G.A. § 33-34-5(b)). The court held that:
This statute contemplates that insureds who have not had an opportunity to accept or reject the optional no-fault coverage required to be offered under Code Ann. § 56-3404b(a) are deemed to have been given a “continuing” offer of such coverage from the date of the issuance of the liability policy until 30 days after being given the opportunity in writing to accept or reject the coverage ... [and that those insureds are] entitled to “accept” this offer, tender the premiums and enforce the resulting contract.
Jones, supra, 156 Ga.App. at 234, 274 S.E.2d at 626-27. Although Peoples’ application clearly contained the separate spaces for “acceptance or rejection of each of the optional coverages” as required, it was arguable after Jones that her application, like that of Jones, did not meet the requirement that “these spaces [be] completed and signed by the prospective insured” since each space for accepting or rejecting various optional types of coverage had been checked but there was not a separate signature for each one.
Apparently relying on the belief that her application was legally indistinguishable from that of Jones, Peoples attempted to take advantage of the “ ‘continuing’ offer of [optional] coverage” referred to by the court in Jones by sending the letter of October 6 requesting additional PIP coverage and offering to pay any necessary premiums. Sentry denied this request for optional PIP coverage, and Peoples subsequently filed suit claiming optional PIP benefits. Proceedings in that suit were then stayed pending the decision in Flewel-len v. Atlanta Casualty Co., 250 Ga. 709, 300 S.E.2d 673 (1983), in which the Supreme Court of Georgia first addressed itself to the interpretation of O.C.G.A. § 33-34-5(b).
In Flewellen, the court was presented with the question of whether the insureds were entitled to the $5,000 minimum PIP coverage as indicated on the faces of their policies or the $50,000 maximum optional coverage that the Jones decision indicated would still be available to them if the applications they had filled out had not conformed to the requirements of O.C.G.A. § 33-34-5(b). The application of Atlanta Casualty Company as completed by one of the plaintiffs, Mrs. Flewellen, contained merely a single signature at the end of the application. The application of Allstate Insurance Company as completed by the other plaintiff, Mrs. Van Dyke, on the other hand, contained a separate signature line adjacent to the options relating to PIP and a separate signature line adjacent to the options relating to property damage coverage, with the appropriate rejection boxes checked and the signature lines signed by the applicant. The court concluded:
We hold that the requirements of [O.C. G.A. § 33 — 34—5(b) ] are satisfied by two signatures, one for acceptance or rejection of the optional PIP and another to indicate acceptance or rejection of vehicle damage coverage. The Allstate application and the manner in which it was executed and signed by Van Dyke meets these requirements. The Atlanta Casualty application completed by Flewellen does not.
In the absence of such a rejection, the policy, therefore, provides $50,000 PIP coverage [which the insurer is required to offer under O.C.G.A. § 33-34-5(a)] from its inception. The insured has the right to demand and receive the benefit of $50,000 coverage upon tender by the insured of such additional premium as may be due and filing of proof of loss by the injured party.
Flewellen, supra, 250 Ga. at 712, 300 S.E.2d at 676.
Based upon the decision in Flewellen, Sentry decided that the form which had been signed by Peoples had not constituted a valid rejection of the optional PIP coverages and thus acknowledged and began paying Peoples’ claims for optional PIP benefits. On March 25, 1983, the attorney for Sentry wrote to Peoples’ attorney as follows:
This will further acknowledge your claim regarding optional coverage. We understand that a Motion for Reconsideration was filed in Flewellen v. Atlanta Casualty on March 14, 1983.
We note that the Supreme Court in its Flewellen decision rejected the “continuing offer” theory of Jones v. State Farm. The March 3rd ruling requires that unless the application contained two signatures — one to accept or reject optional PIP and one to accept or reject physical damage coverage — full optional coverages are automatically included in the policy from its inception. Thereafter, the only requirement to activate all terms of the policy is payment of any additional premium due and filing proof of loss by the injured party.
If there is no change in the final Flewel-len decision, the additional premium due will be $694.45, bill attached.
We intend to fully comply in good faith with whatever the final appellate decision may be, and promptly consider the merits of your claim.
Record, Vol. 1, Tab 9, Exhibit F. On April 21, 1983, he further wrote:
This will further acknowledge your claim for optional coverage. On March 28, 1983, [sic] the Motion for Reconsideration was denied in Flewellen.
The Supreme Court rejected the “continuing offer” theory of Jones v. State Farm. The only requirement to activate all terms of the policy is payment of any additional premium due and filing proof of loss by the injured party.
We are attaching timely payment of optional benefits based upon proof of loss to date of economic damages which are reasonable and necessary. The payment takes into consideration prior PIP payments and the premium quoted for full optional coverages based upon Flewel-len. We trust this handling meets with your approval.
Any additional proof of loss of economic damages you may have will be promptly considered.
Record, Vol. 1, Tab 9, Exhibit G.
Sentry further acknowledged provision of optional PIP coverage to Peoples pursuant to Flewellen in pleadings filed with the United States District Court for the Northern District of Georgia in the summer of 1983 as follows:
Sentry Indemnity Company did not offer Plaintiff [Peoples] optional “No-Fault” benefits until its obligation to do so under the authority of “Flewellen” because of the confusion reigning in the law up to the date of the Flewellen decision.
7.
Defendant [Sentry] does not contest its obligation to pay Plaintiff optional “No-Fault” benefits to which she may be entitled, which arose as a direct result of the automobile accident referred to above, upon proof of loss by the injured party.
8.
Defendant has tendered the optional PIP “No-Fault” benefits to which Plaintiff is entitled based upon proof of loss to date.
Record, Vol. 1, Tab 10, Supplementary Statement of Material Facts As To Which There is No Genuine Issue, at 2.
Defendant [Sentry] has provided optional PIP coverage and paid current PIP benefits due to date which are supported by reasonable proof of loss.
Record, Vol. 1, Tab 9, Exhibit U, at 2.
Defendant’s tender to Plaintiff [Peoples] of $1,594.96 and $266.67 of optional PIP benefits does not constitute an offer of settlement, but does constitute payment of benefits due to date. Defendant has provided optional coverage pursuant to Flewellen and tendered payment of benefits due to date which are supported by reasonable proof of loss. Further, Defendant has tendered payment of future benefits which are supported by reasonable proof of loss.
Record, Vol. 1, Tab 9, Exhibit V, at 1.
On August 5, 1983, the district court noted this agreement by Sentry to extend full optional PIP benefits:
There is no longer any dispute in this suit as to whether the insurance application complies with the requirements set forth by the Supreme Court of Georgia or whether the Plaintiff is entitled to the optional PIP benefits; the insurance company has notified the Plaintiff that it will extend the optional PIP coverage.
Because Sentry Indemnity Company has already agreed to extend the full amount of coverage, the Plaintiffs Motion for Summary Judgment is DISMISSED as moot.
Record, Vol. 1, Tab 9, Exhibit W, at 2.
With the optional benefits thus being paid by the insurance company, Peoples and Sentry were able to reach a settlement of their pending lawsuit whereby Sentry paid Peoples the amount claimed in optional PIP benefits through September 16, 1983, minus an allowance for optional PIP premiums. Peoples and her husband expressly reserved the right to make further claims for optional PIP benefits resulting from the 1980 accident as they might accrue after September 16, 1983 in the Release and Settlement Agreement.
Notwithstanding any terms or provisions to the contrary, this release is not intended and we expressly do not waive or release any claim for future optional PIP benefits which may be sustained subsequent to September 16, 1983 and the parties hereto do not waive any rights relevant thereto pursuant to Georgia Law or said policy.
I/we understand and agree that this settlement is in full compromise, accord and satisfaction, of doubtful and disputed claims, coverages, and damages, and that the payment of the above set forth consideration is not to be construed as an admission of liability under any coverages provided by Sentry Indemnity Company, which claims are denied and regardless of the adequacy of the compensation, is intended to avoid litigation, and that there is absolutely no agreement on the part of said Sentry Indemnity Company, or any other person, firm or corporation, to make any part or do any act or thing other than herein expressly stated and clearly agreed to.
Record, Vol. 1, Tab 9, Exhibit 0, at 2-3. The suit filed by Peoples was then dismissed with prejudice with consent of the parties and with the note by the district court that ‘Ttlhis Dismissal does not affect claims sustained after September 16,1983.” Record, Vol. 1, Tab 9, Exhibit N., at 1.
After the dismissal, Peoples filed further claims for optional PIP benefits stemming from the 1980 accident and accruing after September 16, 1983. These claims were not paid by Sentry. Then, on April 4, 1984, the Supreme Court of Georgia announced its decision in St. Paul Fire & Marine Insurance Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984). St. Paul presented the court with the following question:
[W]hether an application for optional no-fault motor-vehicle insurance coverage is in substantial compliance with the requirements of O.C.G.A. § 33-34-5(b) ... where the application contains separate spaces for the insured to indicate his acceptance or rejection of the optional coverages, but the insured’s signature appears only at the bottom of the page of the insurance application offering the optional coverages.
St. Paul, supra, 252 Ga. at 470, 314 S.E.2d at 216. The court held that “such a policy application is in substantial compliance with § 33-34-5(b).” Id. Distinguishing the case from Flewellen, the court wrote:
As stated by Chief Justice Hill in his special concurrence to our dismissal of the writ of certiorari in Nalley v. Select Ins. Co., 251 Ga. 722, 723, 313 S.E.2d 465 (1983), “While in deciding Flewellen, we held that two signatures satisfied the statutory requirements, we did not hold that two signatures were mandatory in every case.” Here, as in Nalley, although the optional coverage application has only one signature, it is clear from the form of the application that the intent of the insured was to reject optional PIP benefits and vehicle damage protection.
St. Paul, supra, at 470, 314 S.E.2d at 217 (emphasis in original).
Based upon its conclusion that the application completed by Peoples was legally indistinguishable from that in St. Paul in that both “contained] separate spaces for the insured to indicate his acceptance or rejection of the optional coverages, but the insured’s signature appears only at the bottom of the page of the insurance application offering the optional coverages,” id. 469, 314 S.E.2d at 216, Sentry filed the complaint for declaratory judgment in this case on April 23, 1984, seeking a judicial determination that the application form filled out by Peoples was in substantial compliance with O.C.G.A. § 33-34-5(b) and that Peoples is thus not entitled to any optional PIP benefits beyond those already paid her in the 1983 settlement.
Peoples argued to the district court, first, that Sentry’s form was not in substantial compliance and, second, that by entering into the settlement in the previous case, Sentry had accepted Peoples’ tendered premium for retroactive optional PIP coverage and thus entered into a contract to provide that optional coverage.
The district court held:
Plaintiff’s insurance application, like that in St. Paul, supra, consisted of two pages with signature lines at the bottom of each. The second page, also similar to that in St. Paul, is divided into different types of optional coverages, and the portion regarding optional PIP coverages contains boxes to be marked for accepting different amounts of coverage or rejecting all optional PIP coverages. Thus, the application is in substantial compliance with former O.C.G.A. § 33-34-5(b). Therefore, Defendant made a valid rejection of all optional PIP coverages when she executed the application on May 3, 1978.
The court finds no merit in Defendant’s argument that the settlement of the previous lawsuit constitutes a binding agreement by Plaintiff to provide maximum optional PIP coverage. That settlement was entered into prior to the decision in St. Paul, supra. However, the settlement agreement did not commit Plaintiff to honor future claims. In fact it was limited to all claims made through September 16, 1983. That agreement does not prevent Plaintiff from denying claims for optional PIP benefits arising after that date.
Record, Yol. 1, Tab 11, at 2-3.
On appeal, Peoples argues that, even if her application did indeed substantially comply with O.C.G.A. § 33-34-5(b), her demand for maximum optional PIP coverage constituted an offer, and Sentry’s “eventual acceptance of said offer by agreeing to grant Defendant said maximum optional no-fault coverage, quoting a premium therefore, paying benefits thereon and giving credit for the full premium therefore constituted an accepted of said offer and a contract was formed between the par-ties____” Brief of Appellant at 15.
We do not accept Peoples’ argument that her demand for optional PIP coverage was an offer and Sentry’s payment of benefits from such coverage was an acceptance. However, we do hold that a contract for maximum optional PIP coverage was formed, with the offer and acceptance being Sentry’s payment of optional PIP benefits in the months following the Flewellen decision and the deduction from those payments with Peoples’ consent of the full premium for such coverage.
Sentry argues that, even if such a contract was formed, it cannot be enforced because the consideration upon which it is based was given as a result of a mutual mistake of law. See O.C.G.A. § 13-5-4. The mistake which Sentry alleges concerns the validity of Peoples’ rejection of optional PIP coverage in 1978. In the wake of Flewellen, both parties seem to have assumed that the rejection was not valid and that Sentry was thus required to provide benefits under the optional coverage. In light, of St. Paul, however, Sentry now feels that the rejection was valid. The problem with Sentry’s argument here is that it is not based upon a mutual mistake of law but upon a change in the law from Flewellen to St. Paul, and a change of law does not operate under O.C.G.A. § 13-5-4 to make a contract unenforceable. As the author of the opinion for the court in Flew-ellen explained in his dissenting opinion in St. Paul: “The majority would rely on the principle of substantial compliance____ This is nothing less than a direct retreat from the position taken by this court one year ago in Flewellen. ” St. Paul, supra, at 471, 314 S.E.2d at 217 (Clarke, J., dissenting) (citation omitted).
Having decided that a binding contract for the provision of full optional PIP coverage and benefits was formed between Sentry and Peoples in 1983 after the Flewellen decision was announced, we need not reach the question of whether the policy application signed by Peoples in 1978 is in substantial compliance with O.C.G.A. § 33-34-5(b) under St. Paul.
REVERSED and REMANDED.
. O.C.G.A. § 33-34-5(b) (1978) provided in pertinent part:
Each application for a policy of motor vehicle liability insurance sold in this State must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) above and no such policy shall be issued in this State unless these spaces are completed and signed by the prospective insured.
. As Professor Corbin wrote:
In most cases in which money has been paid in the belief that it was due, such belief being induced by the existing judicial decisions, the payor has been held not entitled to restitution when those decisions are disapproved in a later decision. Of course, the later decision may be overruled too.
3 A. Corbin, Corbin on Contracts § 617 at 757 n. 61 (1960).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_treat
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Roy Kenneth SPARKS, Petitioner-Appellant, v. Dewey SOWDERS, Warden, Northpoint Training Center, Respondent-Appellee.
No. 87-5749.
United States Court of Appeals, Sixth Circuit.
Argued June 6, 1988.
Decided Aug. 4, 1988.
J. Kirk Griggs, II (argued), Lexington, Ky., for petitioner-appellant.
David Armstrong, Atty. Gen., Frankfort, Ky., Joseph R. Johnson (argued), for respondent-appellee.
Before KENNEDY and JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.
CONTIE, Senior Circuit Judge.
Petitioner, Roy Kenneth Sparks, appeals from the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we REVERSE the judgment of the district court and REMAND for an evidentiary hearing.
I.
Petitioner was charged with murder and first degree robbery by a Carter County grand jury in the commonwealth of Kentucky. The case went to trial in March of 1984. After three days of trial, during which the commonwealth introduced a tape recording of petitioner discussing his participation in the murder in great detail with a police informant, petitioner changed his plea to guilty and was sentenced to thirty-five years in prison on the murder charge. The first degree robbery charge was dismissed.
In his pro se memorandum which accompanied his petition, petitioner made the following allegations concerning his guilty plea.
On March 15, 1984, the third day of petitioner's trial, after defense counsel had already advised petitioner that if he didn’t plead guilty he would get life without parole, petitioner was informed that his mother was in the hospital in critical condition. Petitioner’s counsel then advised him that if he didn’t plead guilty he may never see his mother again. At this point petitioner was confused and under duress and finally agreed to plead guilty for a recommendation of thirty-five (35) years.
Before accepting his guilty plea, the court engaged in the following colloquy:
The Court: I understand from talking with counsel and the defendant and the commonwealth attorney and the other parties involved in this action that the defendant has changed his mind and desires to enter a plea of guilty, is that correct sir?
Mr. Gailbraith: Based on the recommendation of the prosecutor, that’s correct your Honor.
The Court: Mr. Sparks I understand that you desire to enter a plea of guilty to this charge, is that correct?
Mr. Sparks: Yes sir.
The Court: Have you been made any promises by anybody as to what the court would do other than the recommendation as to the sentence by the commonwealth attorney?
Mr. Sparks: No sir.
The Court: Has anyone put any pressure on you to enter a plea of guilty?
Mr. Sparks: No sir.
The Court: The plea is being made voluntarily?
Mr. Sparks: Yes sir.
The Court: Is it made because you feel like you are guilty of the charge?
Mr. Sparks: Yes sir.
The Court: Do you also understand that there is no right of appeal when you enter a plea of guilty that there is no right of appeal from that, do you understand that?
Mr. Sparks: Yes sir.
The Court: You still want to enter a plea of guilty?
Mr. Sparks: Yes sir.
The Court: Do you need any more time to discuss it with your attorney?
Mr. Sparks: No sir.
Subsequently, petitioner filed a motion to vacate his sentence alleging, inter alia, that his guilty plea was invalid as being involuntary and not intelligently made and that he was denied effective assistance of counsel. The motion was denied by the trial court. The court of appeals affirmed. 721 S.W.2d 726 (Ky.Ct.App.1986). The Kentucky Supreme Court denied discretionary review.
Petitioner filed a petition for a writ of habeas corpus in district court. He raised the following grounds in his petition: that the guilty plea was not knowingly, intelligently and voluntarily entered due to the trial court’s failure to inform him of the constitutional rights he was waiving by entering such a plea and that he was denied effective assistance of counsel by his counsel’s “mis-advice” and failure to challenge the defective indictment. In a memorandum in support of his petition, petitioner made the following assertion:
Concerning petitioner’s first contention, petitioner was charged with murder and tried as a non-capital offense. Therefore, the maximum penalty was life imprisonment with the requirement of serving eight (8) years before being eligible for parole. Has [sic] petitioner been convicted by a jury and sentenced to life imprisonment he would have served eight (8) years before being eligible for parole, however, petitioner received a thirty five [sic] (35) sentence and he is still required to serve more than seven (7) years before being eligible for parole. Had petitioner not been advised by counsel that he would get life without parole, he would have continued with his trial.
The petition was referred to a magistrate who took a totality of the circumstances approach to the issues presented, and recommended that the petition be denied. The district court took a similar approach and dismissed the petition, without holding an evidentiary hearing. Petitioner appeals from this dismissal.
Petitioner argues that the presentation of misinformation by his counsel denied him effective assistance of counsel and that the trial court’s failure to inform him, on the record, of the fundamental rights he was waiving by entering a guilty plea violated his due process right under the fourteenth amendment.
II.
A.
Petitioner argues that he was denied effective assistance of counsel. He concludes that due to the misinformation provided by his counsel he decided to plead guilty instead of proceeding with the trial and taking his chances with the jury. The two-part Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), test applies to challenges to guilty pleas based on ineffective assistance of counsel.
In the context of guilty pleas, the first half of the test is met by showing that an attorney’s actions were not within the range of competence demanded of attorneys in criminal cases. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).
The second, or ‘prejudice,’ requirement on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
Hill, 474 U.S. at 59, 106 S.Ct. at 370 (footnote omitted).
In Hill, the Court was confronted with the following question: “whether petitioner is entitled to an evidentiary hearing in a federal habeas proceeding where he has alleged that his guilty plea entered in state court was involuntary and resulted from ineffective assistance of counsel.” Hill, 474 U.S. at 60-61, 106 S.Ct. at 371-72. (White, J., concurring). The Court concluded that Hill was not entitled to an eviden-tiary hearing on his ineffective assistance of counsel claim because he had failed to make sufficient allegations to satisfy the prejudice prong of the Strickland test.
Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Indeed, petitioner’s mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted.
Id. at 60.
In the instant case, unlike Hill, petitioner has asserted and continues to assert that he would not have pleaded guilty had he been given the correct information concerning his eligibility for parole. Accordingly, we conclude that petitioner has made a sufficient allegation to satisfy the prejudice requirement of Strickland and warrant an evidentiary hearing. This, however, does not close the analysis, since petitioner also must allege facts which satisfy the first prong of Strickland.
Petitioner alleges that his trial counsel erroneously told him that if convicted he could receive a sentence of life without parole. It is uncontested that there is no such penalty as “life without parole” in Kentucky. Initially, we must decide whether petitioner’s trial counsel’s alleged misadvice concerning parole eligibility fell short of the range of competence demanded of attorney’s in criminal cases.
This court has yet to decide whether erroneous advice concerning parole eligibility can amount to ineffective assistance of counsel. See Brown v. Perini, 718 F.2d 784, 789 n. 4 (6th Cir.1983). However, this issue has been addressed by other circuits which have held or noted that misinformation concerning parole eligibility can be ineffective assistance of counsel. See Strader v. Garrison, 611 F.2d 61, 65 (4th Cir.1979) (when petitioner is grossly misinformed about parole eligibility dates by his lawyer, and he relies upon the misinformation, he is deprived of his constitutional right to counsel). See also, Cepulonis v. Ponte, 699 F.2d 573, 577 n. 7 (1st Cir.1983) (noting that misinformation may be more vulnerable to constitutional attack than lack of information); Czere v. Butler, 833 F.2d 59, 63 (5th Cir.1987) (noting without deciding that giving misinformation may satisfy the first prong of the Strickland test); Hill v. Lockhart, 731 F.2d 568, 572 (8th Cir.) (refusing to follow Strader because gross misinformation was not involved in the case), aff'd by equally divided court 764 F.2d 1279 (8th Cir.1984) (en banc), aff'd 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Brown, 718 F.2d at 789 n. 4 (distinguishing Strader on basis that the advice given by defense counsel could not be characterized as gross misadvice).
We now hold that gross misadvice concerning parole eligibility can amount to ineffective assistance of counsel.
In the instant case, petitioner alleges that his attorney advised him that he could receive the sentence of life without parole if he was convicted of murder. In reality, petitioner did not face such consequences, and would have been eligible for parole even if he were given a life sentence. Petitioner also alleges that had he been given the correct information concerning parole, he would not have pleaded guilty and would have continued with the trial. Given the petitioner’s allegations, we conclude that the petitioner is entitled to an eviden-tiary hearing on his ineffective assistance of counsel claim.
B.
Petitioner also argues that his plea was invalid because the trial court failed to enunciate the fundamental rights he was waiving by entering a guilty plea.
Petitioner relies on Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) for the proposition that a waiver of the important federal rights of privilege against self incrimination, right to trial by jury, and the right to confront one’s accusers cannot be presumed from a silent record. See also Roddy v. Black, 516 F.2d 1380, 1383-84 (6th Cir.) (“Boykin mandates that a conviction based on a guilty plea be reversed unless the ‘prosecution spread[s] on the record the prerequisites of a valid waiver’ of the constitutional rights which a defendant surrenders by pleading guilty”), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975).
In Fontaine v. United States, 526 F.2d 514, 516 (6th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976) this court stated that “Boykin does not require separate enumeration of each right waived and separate waivers as to each.” “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). In viewing guilty pleas, we look at the totality of the circumstances surrounding the plea. See Caudill v. Jago, 747 F.2d 1046, 1050 (6th Cir.1984); Brown v. Perini, 718 F.2d 784, 786 (6th Cir.1983).
In deciding whether petitioner’s plea was knowingly and voluntarily given, the district court made the following conclusions:
The Court has considered the entire record and has determined that the record indicates a knowing, intelligent, and voluntary waiver of his constitutional rights. It is obvious that the petitioner knew he was waiving the right to a jury trial and to confront witnesses when during the middle trial [sic] he decided to enter his guilty plea.
While the court did not err in finding that Sparks understood he was waiving his right to a jury trial, which was being stopped so he could plead guilty, and his right to confront witnesses, which he had been exercising, it failed to consider the effect that petitioner’s counsel’s alleged misadvice may have had on the knowingness and voluntariness of his plea.
Because the district court failed to consider petitioner’s attorney’s misstatements, we conclude that it erred when it found that the plea was knowingly and voluntarily given without conducting an evidentiary hearing. On remand, we direct the court to inquire into all of the circumstances surrounding petitioner’s guilty plea in making a determination of whether the plea was knowingly and voluntarily given.
Accordingly, we REVERSE the district court’s denial of the petition for a writ of habeas corpus and REMAND for proceedings consistent with this opinion.
. In its first brief before- this court, the commonwealth adopted the petitioner’s statement of the facts unequivocally. However, in its brief filed in response to the brief filed by petitioner's court appointed counsel, the commonwealth modified its adoption of the facts. It disavowed any knowledge of statements made concerning petitioner’s mother and disagreed with the assertion that petitioner was confused and under duress.
. On this appeal, petitioner does not raise this latter claim of ineffective assistance of counsel.
. At oral argument, the commonwealth represented that had Sparks been given a life sentence, he would have been eligible for parole in eight years and that given a thirty-five year sentence, he is eligible for parole in seven years.
. The misstatement was the attorney's assertion that petitioner could be sentenced to life without parole. The commonwealth attacks this argument by asserting that under the circumstances — i.e., the evidence presented against him and the offer to drop the first degree robbery charge —the petitioner would have pleaded guilty even if he had not been provided the incorrect information concerning parole. In his pro se memorandum filed below, petitioner directly contradicts this assertion. In deciding not to hold an evidentiary hearing, the district court adopted the argument of the commonwealth.
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. Sterling Leroy HAINES, Defendant-Appellant.
Nos. 88-5529, 88-5530
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 2, 1988.
Lucien B. Campbell, Federal Public Defender, P. Joseph Brake, Asst. Federal Public Defender, San Antonio, Tex., for defendant-appellant.
Helen M. Eversberg, U.S. Atty., Le Roy Morgan Jahn, Michael R. Hardy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-ap-pellee.
Before GEE, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
In this case we are faced with the claim that the statute making the sentencing guidelines applicable only to crimes committed after they went into effect is an unconstitutional ex post facto law as it applies to crimes committed before the guidelines were promulgated. This unique contention constitutes a complete miscom-prehension of the prohibition against ex post facto laws contained in Art. I § 9 of the United States Constitution. We affirm the refusal of the district court to use the sentencing guidelines in the case of this appellant whose criminal offenses were committed before the guidelines went into effect.
On January 4, 1988, appellant Sterling Haines pleaded guilty in one case to one count of mail fraud, 18 U.S.C. § 1341, and one count of equity skimming, 12 U.S.C. § 1709-2. At the same time he also pleaded guilty in another case to one count of escaping from custody, 18 U.S.C. § 751(a). All of these offenses were committed before November 1, 1987, the date upon which the United States Sentencing Guidelines became effective. United States v. Hurtado, 846 F.2d 995, 996 (5th Cir.1988).
Before sentencing, Haines moved the court to impose sentence in accordance with the sentencing guidelines. He argued that the guidelines should apply to convictions which take place after the November 1, 1987 date, although the crimes took place before that date. The district court denied the motion, and Haines was sentenced to a five-year term and two three-year terms, all consecutive. His appeal is timely.
The sentencing guidelines which went into effect on November 1, 1987, were developed by the United States Sentencing Commission under the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991, 994(a). On December 7, 1987, Congress amended the 1984 enabling statute by expressly limiting the applicability of the new guidelines to criminal offenses committed after the November 1, 1987, effective date. Sentencing Act of 1987, Pub.L. No. 100-182, sec. 2(a), 101 Stat. 1266. The contention by Haines is that since he was sentenced after November 1, 1987, the guidelines should have been applied and would have governed his punishment, with the result of more lenient sentences. Since the 1987 amendment prevented the guidelines from being applicable to his cases, the amendment is an unconstitutional ex post facto law because it foreclosed more favorable guideline sentences.
A retrospective amendment of sentencing guidelines would violate the ex post facto law if the amendment “makes more onerous the punishment for crimes committed before its enactment.” Miller v. Florida, - U.S. -, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). Obviously the 1987 statute and the guidelines did not and could not have made more onerous the punishment for crimes committed before its enactment. It was the very purpose of the amending statute to confirm that there could be no ex post facto claim that the sentencing guidelines had increased the punishment for offenses committed before they went into effect. Making them totally inapplicable to any criminal offense committed before they went into effect completely obviated that ex post facto possibility.
On the other side of the coin, there is absolutely no constitutional authority for the proposition that the perpetrator of a crime can claim the benefit of a later enacted statute which lessens the culpability level of that crime after it was committed. His culpability is adjudged on the basis of the laws that existed when he committed the crime.
The tenuous line of reasoning relied upon by Haines is that the Sentencing Reform Act of 1984, under which the guidelines were to be developed, was in effect at the time he committed the crimes. Thus, he would have been entitled to be sentenced under the guidelines if it had not been for the amendment in 1987 that made the guidelines applicable only to crimes committed after they went into effect. There are two answers to this line of reasoning. The first is that while the 1984 statute set up the commission which created the guidelines, the guidelines did not exist until after Haines committed the crimes for which he was sentenced. It is fanciful indeed to claim that he was entitled to the application of guidelines which did not exist.
But even beyond that, it is clear that when Congress enacted the Sentencing Reform Act of 1984 it intended the new guidelines, when they were developed, to apply only to offenses committed on or after their effective date. See the thorough presentation in United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988). Accord, United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1987). A congressional intention to make the guidelines applicable to crimes committed before they went into effect would result in ex post facto constitutional violations. Any ambiguity on this issue in the 1984 statute must be resolved by interpretation. Statutes are to be interpreted to avoid constitutional violation. “It is a cardinal principle that this Court will first ascertain whether construction of the statute is fairly possible by which the [constitutional] question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). This quotation is frequently cited in more recent cases, e.g., United States v. Security Industrial Bank, 459 U.S. 70, 78, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (1982); Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979).
This general rule of interpretation must be applied here. Thus, the later 1987 amendment made no change in the law. It merely confirmed the intent of the 1984 statute as Congress had enacted it. A contrary interpretation would lead to open and obvious violations of the ex post facto prohibition in the Constitution. Such clearly was not the intent of Congress. See generally United States v. Cooper, 685 F.Supp. 179, 180 (N.D.Ill.1988); 133 Cong. Rec. H10021 (Daily ed. Nov. 16, 1987) (statement by Representative Fish that the amendment was offered “to make it clear” that the new guidelines apply only to criminal conduct occurring after the guidelines went into effect).
We conclude that Haines was never entitled to be sentenced under the new guidelines because they were never applicable to his criminal offenses and the sentences flowing from them. His ex post facto claim is meritless.
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_r_state
|
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 "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.
Joseph A. CIRILLO and Martha R. Cirillo, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Joseph A. CIRILLO and Martha R. Cirillo, Respondents.
Nos. 13902, 13903.
United States Court of Appeals Third Circuit.
Argued Oct. 15, 1962.
Decided March 1, 1963.
James C. Larrimer, Pittsburgh, Pa. (Dougherty, Larrimer & Lee, Pittsburgh, Pa., on the brief), for taxpayers.
David I. Granger, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Attorneys, Department of Justice, Washington, D. C., on the brief), for Commissioner.
Before McLAUGHLIN and HASTIE, Circuit Judges, and DUMBAULD, District Judge.
HASTIE, Circuit Judge.
In June 1957, Joseph Cirillo and his wife, Martha, jointly filed their first income tax returns for the years 1945 to 1954, inclusive. They acted after having learned that revenue agents were investigating the husband’s tax liability. Throughout the years in question, the husband had received both a regular salary as a municipal employee, from which appropriate sums had' been withheld on account of income taxes, and modest fees earned in the part-time practice of law. The wife had received no income. The Commissioner disallowed certain deductions claimed in the delinquent returns and imposed penalties. The controversy ultimately reached the Tax Court,, which sustained the deficiencies determined by the Commissioner and held that part of each annual deficiency had resulted from fraud with intent to evade taxes. The Tax Court held both spouses liable for the amounts of the deficiencies not covered by salary withholdings and imposed an additional 50% fraud penalty for each year upon the husband alone. T.C. Memo 1961-192. The case is here on cross petitions wherein the spouses urge that the fraud penalty was both unjustified and erroneously computed, while the Commissioner claims that fraud penalties should have been imposed upon both husband and wife.
Before the Tax Court, Joseph Cirillo, whom we shall call the taxpayer, testified that he had failed to file timely returns, not because of any intent to defraud, but because he believed, on the basis of a summary mental calculation made at the end of each year, that the with-holdings from his salary alone were enough to cover all income taxes payable •on both his salary and his small net income from private law practice. Cf. First Trust & Sav. Bank v. United States, 8th Cir. 1953, 206 F.2d 97. However, he concedes that he kept no systematic records of receipts and expenditures in the course of his practice and made no detailed computation of his tax liability at the end of each taxable year. In the absence of such records, he urges that the good faith and reasonableness of his asserted belief that his taxes were covered by salary withholdings are substantiated by the subsequent detailed computations which appear in the delinquent returns filed in 1957. In summary, the tax liabilities, withholdings and consequent obligations and overpayments shown on those returns are as follows:
Although the Tax Court disallowed about half of the deductions claimed in these returns, the taxpayer relies on the court’s finding that “there is no contention or showing that the delinquent returns involved here are fraudulent”.
The taxpayer does not challenge the existence of deficiencies or their amounts as found by the Tax Court. Therefore, we have to consider only whether and to what extent fraud penalties were justified.
The evidence in this case strongly indicates that the taxpayer’s failure to file returns was a willful neglect of a statutory duty. As a lawyer, he must have been aware that one who earns several thousand dollars a year is obligated to file income tax returns. Each year he was reminded of his duty to file a return by the standard W-2 Form which he received from his employer. Moreover, he has been convicted of the misdemeanor of willful failure to file income tax returns for the years 1953 and 1954. United States v. Cirillo, 3d Cir., 1957, 251 F.2d 638, cert. denied, 1958, 356 U.S. 949, 78 S.Ct. 914, 2 L.Ed.2d 843.
But willful failure to file a timely return, which may create both criminal liability and an additional civil liability, does not in itself and without more establish liability for a fraud penalty, though it may be relevant in that connection. Jones v. Commissioner, 5th Cir., 1958, 259 F.2d 300. This is true because a fraud penalty can be imposed only where proof of a deficiency is supplemented by proof that the “deficiency is due to fraud with intent to evade tax”. Int.Rev.Code of 1939, § 293(b), ch. 2, 53 Stat. 88; cf. Int.Rev.Code of 1954, § 6653(b). First Trust & Sav. Bank v. United States, supra. The critical question is whether the circumstances attending a particular failure to file warrant an inference of intention to evade taxes. Moreover, the evidence must be evaluated in the light of the settled rule that fraud can be established only by clear and convincing proof or, as we have put it, “by something impressively more than a slight preponderance of evidence”. Valetti v. Commissioner, 3d Cir., 1958, 260 F.2d 185, 188. Accord, Goldberg v. Commissioner, 5th Cir., 1956, 239 F.2d 316. To justify a fraud penalty the circumstances surrounding the failure to file returns must strongly and unequivocally indicate an intention to avoid the payment of taxes. Powell v. Granquist, 9th Cir., 1958, 252 F.2d 56; cf. Bender v. Commissioner, 7th Cir., 1958, 256 F.2d 771.
Taxpayer contends that his willful failure to file was not and could not have been the result of a scheme to cheat the government out of taxes which he was obligated to pay, because he did not believe that he owed any taxes. We are aware that the Tax Court disbelieved this testimony and that it is not for this appellate court to assess taxpayer’s credibility as a witness. However, the Commissioner’s heavy burden of proof on the issue of fraud cannot be satisfied by mere disbelief of taxpayer’s testimony. The record must contain some convincing affirmative indication of the required specific intent.
Taxpayer’s delinquent returns lend considerable credibility to his testimony concerning the years from 1945 through 1951. Taking into account the expenses which he believed he was entitled to deduct plus the credit for income taxes withheld, taxpayer calculated that he had overpaid his taxes for each of those years by amounts in the order of fifty to one hundred seventy-five dollars. These delinquent returns were not fraudulent, and there is no showing or argument that any of the deductions claimed but disallowed were fictitious. Only because taxpayer was unable to substantiate them with the kind of records which the Commissioner properly demanded was it determined that he owed additional taxes for each of these years except 1948. And for that year it is agreed that he owes nothing. All of this corroborates taxpayer’s testimony that at the end of each of these years he believed that he owed the government no taxes beyond what had already been withheld from his salary.
In the face of this evidence, the Commissioner offered little to sustain his burden of proving fraud for the years 1945 to 1951. Apart from evidence which, as already pointed out, builds a very strong ease of willful failure to file without demonstrating the intent which accompanied that failure, the only evidence offered by the Commissioner was the taxpayer’s failure to keep systematic and detailed records of income and expenditures of his law practice. The significance of this omission is minimized by the fact that from 1945 through 1951, taxpayer’s practice was very small, never yielding receipts in excess of $2200 in any year and, in several years, yielding less than $1000. Indeed, government agents conceded that, even without such records, they were able to determine the amount of taxpayer’s earnings from bank deposit statements retained by him, and that there was no indication that taxpayer had received additional income not reflected in these statements. Thus, the only needed information which was lacking because of the taxpayer’s failure to keep books was a record of the expenditures which he made in the regular course of his law practice. In these circumstances, any inference that taxpayer’s unbusinesslike procedure was intended to conceal tax liability is too weak to achieve the clear and convincing character which proof of fraud must exhibit.
The years 1952, 1953 and 1954 present a different picture. In 1952, taxpayer’s gross income from his law practice increased very substantially to $4,169.70, four times as much as it had been in any year before 1951 and twice as much as it had been in 1951, while his deductible expenses did not increase proportionately. Moreover, withholdings did not increase substantially. As a consequence, the tax withheld from taxpayer’s salary in 1952 was more than $500 short of covering his total tax liability. Even his own calculations for 1952, made several years later, failed to disclose an overpayment such as those he consistently claimed for the years before 1952. And for 1953 and 1954, taxpayer’s delinquent returns admitted substantial deficiencies. Thus, the record indicates that at the end of 1952 and thereafter, even a rough calculation, honestly made, would at least have shown the taxpayer that there was need for a more careful analysis of income and expenditures to substantiate or dissipate his hope that no additional taxes were due. His disingenuous avoidance of accurate knowledge when the need for such knowledge must have been apparent was in itself a substantial indication of fraudulent intent.
We conclude, therefore, that the evidence of fraud was sufficiently clear and convincing to justify the imposition of fraud penalties for the years 1952, 1953 and 1954. Not so, however, for the years from 1945 through 1951.
Our next consideration is the method employed by the Tax Court in computing fraud penalties. Section 293(b) of the 1939 Code provides that “if any part of any deficiency is due to fraud”, a fraud penalty shall be imposed at the rate of “50 per centum of the total amount of the deficiency”. In this case the Tax Court added 50% to the taxpayer’s total liability for each year as a fraud penalty, without having subtracted either the amount withheld from salary or the amount of tax reported on the delinquent return.
In section 271(a) as amended, 58 Stat. 245 (1944), “deficiency” is defined as “the amount by which the tax imposed by this chapter exceeds * * * the amount shown as the tax by the taxpayer upon his return, if a return was made * * Section 271(b) (1) explicitly provides that “[t]he tax imposed by this chapter and the tax shown on the return shall both be determined -* * •» without regard to the credit under section 35 [for amounts withheld from wages] * * This language makes it clear that neither the existence nor the amount of the “deficiency” of a taxpayer who has failed to file a return is affected in any way by the existence of a withholding credit partially or fully offsetting his tax liability. Moreover, in the circumstances of this case the “total amount of the deficiency”, upon which the fraud penalty is based, must be the entire amount of the “tax imposed” for the year unless, under the section 271 definition of deficiency, it is permissible to deduct from that total tax liability the amount of tax shown on the delinquent return filed several years after the due date. We think this is not permissible.
1952 is the first year as to which we have concluded that fraud was proved. When the deadline for filing a 1952 tax return passed, a “deficiency” in the amount of “the tax imposed” came into existence. Because no return had then been filed, there simply was no “amount shown as the tax by the taxpayer upon his return” to be deducted from the total tax liability in computing the “deficiency”. And since the failure to file was fraudulent the taxpayer’s liability at that time included a fraud penalty measured by that deficiency. Thus, taxpayer has to take the position that although, from 1953 until his delinquent filing in 1957, he was liable for a 1952 fraud penalty measured by his total 1952 tax liability, he could terminate that liability for fraud by filing a delinquent return admitting his full tax liability. It is not surprising that the Tax Court has consistently refused to give any such effect to a delinquent filing, reasoning that the “return” contemplated by section 271 is a timely return. Charles F. Bennett, 1958, 30 T.C. 114; Maitland A. Wilson, 1946, 7 T.C. 392; see George M. Still, Inc., 1953, 19 T.C. 1072, aff’d mem., 2d Cir., 1955, 218 F.2d 639 (collection of fraudulent return by amended return does not affect computation of fraud penalty) ; cf. Simon v. Commissioner, 8th Cir., 1957, 248 F.2d 869 (carryback deduction does not affect computation of fraud penalty). We think this conclusion is consistent with the language and the scheme of the 1939 Code. It validates the Tax Court’s computation of 1952 and 1953 fraud penalties. The parties recognize that section 6653(c) (1) of the 1954 Code, which is applicable to the 1954 fraud penalty, has now explicitly provided that only a timely return is to be considered in determining the existence and amount of the underpayment which is the measure of the fraud penalty.
Finally, the Commissioner asks us to reverse the Tax Court’s holding that Martha Cirillo, unlike her husband, is not liable for fraud penalties. The Commissioner argues that the wife’s action in joining her husband in filing non-fraudulent delinquent returns for the years in question was sufficient to make her too liable for the fraud penalties.
Earlier cases have decided that a wife who is a party to a fraudulent joint return may be held liable for the fraud penalties assessed on account of her husband’s fraud in preparing that return, notwithstanding that she herself had no income, did not entertain any fraudulent intent, and, indeed, did not know that the return was fraudulent. Estate of Ginsberg v. Commissioner, 5 th Cir., 1959, 271 F.2d 511; Furnish v. Commissioner, 9th Cir., 1958, 262 F.2d 727, 731-734; Kann v. Commissioner, 3d Cir., 1953, 210 F.2d 247, cert. denied 1954, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1109; Boyett v. Commissioner, 5th Cir. 1953, 204 F.2d 205; Howell v. Commissioner, 6th Cir., 1949, 175 F.2d 240; Meyer J. Safra, 1958, 30 T.C. 1026, 1037. The feature which distinguishes the present case from those earlier cases and makes it one of first impression is that the joint returns here involved were themselves not fraudulent; rather fraud occurred and penalties attached earlier when the husband, with fraudulent intent, failed to file timely returns.
Whether this distinction warrants a different result depends upon the interpretation given to section 51(b) (1) of the 1939 Code, ch. 2, 53 Stat. 27, as amended, 62 Stat. 115 (1948) (now Int. Rev.Code of 1954, § 6013(d) (3)), which provides that where a joint return is filed “liability with respect to the tax” shall be joint and several. It is reasonable to view “the tax” for which the return-signing wife is liable as including both the amount stated in the joint return and any deficiency assessments on account of the incorrectness, inadequacy or bad faith of that filing. If a wife, however innocently, joins in a fraudulent return, any additional assessment for fraud is a tax obligation created by that filing and measured by the difference between the tax that should have been reported and the amount the spouses jointly reported. This rationale supports the cited cases involving fraudulent joint returns.
But in the present case the fraud penalty is neither imposed for nor measured by any deficiency based upon the joint return. Indeed, we have already pointed out in another connection that the deficiency upon which the present fraud penalty is based arose when the husband, with intent to evade taxes, failed to file a timely return. That deficiency did not subject the wife to any liability. Joseph A. Mundy, 1955, 14 CCH Tax Ct.Mem. 1067. In these circumstances, the fraud penalty is in no way dependent upon the joint return. For this reason it may reasonably be regarded as distinct from the tax liability which section 51(b) (1) imposes as a consequence of signing a joint return. Of course, this analysis leaves a wife who elects to sign a joint return liable for the tax shown on the return and any deficiencies which may be determined in connection with that filing. Neither the language of the statute nor any consideration of equity or tax policy provides a persuasive reason for imposing a broader liability. Accordingly, we agree with the Tax Court that Mrs. Cirillo did not become liable for fraud penalties.
So much of the Tax Court’s decision as imposed fraud penalties for the years 1945 to 1951, inclusive, will be reversed. Otherwise, the decision will be affirmed.
. The Tax Court’s computation was as follows:
* For each year the additional fraud penalty was 50% of the amount shown in. this column.
. Taxpayer complains that the admission into evidence of the record of his conviction of willful failure to file returns was error, and that, in any event, the court should have allowed him to show the limited scope of the evidence on which that conviction was based. He is mistaken. His conviction was admissible as evidence of the fact that his failure to file returns for the two years in question was willful, Richard F. Smith, 1958, 31 T.C. 1, 9; see Stagecrafters’ Club, Inc. v. District of Columbia Division of American Legion, D.D.C.1953, 111 F.Supp. 127, aff’d mem., 94 U.S.App.D.C. 74, 211 F. 2d 811; cf. Masters v. Commissioner, 3d Cir., 1957, 243 F.2d 335, 338-339 (admissibility of conviction on nolo contendere plea), if not as a conclusive determination of that fact, compare Meyer J. Safra, 1958, 30 T.C. 1026, 1034-35, nonacq., 1962 Int.Rev.Bull. No. 43, at 8, with Emich Motors Corp. v. General Motors Corp., 1951, 340 U.S. 558, 568-569, 71 S.Ct. 408, 95 L.Ed. 534 (dictum).
. Of course, tlie burden of proof on this issue was on the taxpayer. Burka v. Commissioner, 4th Cir., 1950, 179 F.2d 483.
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_state
|
14
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
W. James BROWN, an attorney on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Frank J. McGARR, Chief Judge of the United States District Court for the Northern District of Illinois, et al., Defendants-Appellees.
No. 84-1591.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 12, 1985.
Decided Oct. 3, 1985.
Rehearing and Rehearing In Banc Denied Oct. 31, 1985.
Edward T. Garney, Chicago, Ill., for plaintiff-appellant.
Nancy K. Needles, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendants-appellees.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
COFFEY, Circuit Judge.
The plaintiff, James Brown, appeals the district court’s holding that the Northern District of Illinois’ adoption of rules creating a trial bar to improve advocacy in the federal courts and to supervise the practice of law did not deprive him of property without due process of law. We Affirm.
I
The district court made the following findings of fact when granting the defendants’ summary judgment motion and they are not in dispute. As part of a study of the competency of trial lawyers practicing in the federal counts, the Devitt Committee, appointed by Chief Justice Burger, surveyed the legal community and held public hearings around the country. The Devitt Committee published two reports of its findings and, in both reports, recommended, inter alia, that federal district courts impose a rule requiring attorneys to have trial experience before being allowed to appear alone in trials. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations as part of a pilot program to improve the quality of advocacy in the federal courts. The Austin Committee published the proposed rules in the Chicago Law Bulletin and the Chicago Bar Record and held a public meeting on the proposed rules. On July 12,1982, after this extensive period of public examination and comment, the District Court for the Northern District of Illinois adopted rules requiring attorneys to belong to a “trial bar” before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case. The requirement of membership in the trial bar applies both to new admittees and to attorneys previously admitted to the bar of the Northern District of Illinois. In order to practice before the court as a member of the trial bar, an attorney must have four “qualifying units” of trial-type experience. N.D.Ill. General R. 3.00C(7). An attorney may receive a qualifying unit for participating as lead or as co-counsel at a trial, observing a trial in which a member of the trial bar supervises the observation, or participating in an approved trial advocacy course. Id. at C. At least two of the four qualifying units must be obtained by participating in actual trials as lead or as co-counsel. Id. at C(7). The court may, in exceptional circumstances, waive the trial bar membership requirement if the client consents to representation by a non-member. Id. at 3.10D. Prior to the adoption of the rules creating the trial bar, any member in good standing of the Northern District of Illinois Bar could appear alone in any proceeding.
The plaintiff, James Brown, was admitted to the bar of the Northern District of Illinois in 1977 but does not possess a sufficient amount of trial experience to be eligible for trial bar membership. After the rules were adopted, the plaintiff filed suit as a representative of a class of attorneys deprived of the right to appear in all proceedings without assistance, alleging that the rules of the Northern District of Illinois violated the Fifth Amendment prohibition against deprivation of property without due process of law. Because the subject matter of the complaint involved rules adopted by the Judges of the Northern District of Illinois, the case was reassigned to Senior Judge Myron L. Gordon of the Eastern District of Wisconsin. Judge Gordon held, 583 F.Supp. 734, in ruling on the defendants’ motion for summary judgment, that the rules violated neither the plaintiffs’ rights to substantive nor to procedural due process.
II
Brown asserts that the creation of the Federal Trial Bar of the Northern District of Illinois, in effect, disbarred him and that he had a due process right to “notice calculated to convey information regarding his disbarment pursuant to the adoption of the rules and an opportunity to defend against such action.” Brown also argues that neither the district court’s power to specify bar admission standards, nor its power to disbar attorneys for “deceit, malpractice, or other gross misconduct,” nor its power to make or amend rules authorize the court to deny an attorney his “vested right to practice law” (“a property right in his law license”) without affording the attorney “his due process rights to a hearing, to present evidence, to cross examine adverse witnesses, and to know upon what basis the defendants determined that they and other individuals of the class were not qualified to be trial attorneys.” Moreover, the plaintiff contends that not only the district court but also Congress lacked the authority to promulgate the rules creating the trial bar because the class’ “previously granted licenses to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited.” Finally, the plaintiff asserts that, even if the district court’s adoption of the rules involves a “basically legislative-type judgment,” our court should not apply the rule that “the fifth amendment’s requirements of individualized due process do not apply in the area of rulemaking.”
A. Adoption of the Rules was not a Disbarment Proceeding
By arguing that adoption of the trial bar membership rule in effect disbarred him for incompetence, Brown raises the issue of whether the imposition of the trial bar membership requirement was a proper exercise of the district court’s rule-making power or was an improper adjudication of his competence as an attorney. To determine whether an action was rule-making or adjudication, courts consider: (1) whether the action is generalized in nature, i.e., whether the action applies to specific individuals or to unnamed and unspecified persons; (2) whether the promulgating agency considers general facts or adjudicates a particular set of disputed facts; and (3) whether the action determines policy issues or resolves a specific dispute between particular parties. See United States v. Florida E. Coast R.R. Co., 410 U.S. 224, 244-46, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973). “Disbarment ... is a punishment or penalty imposed on the lawyer.” Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968). A court conducting a disbarment proceeding must determine for itself the facts of the attorney’s conduct and whether that conduct had been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). Thus, the ultimate result of a disbarment proceeding is a finding, based upon the conduct and actions of an individual attorney, that the individual attorney is unfit. Unlike a disbarment proceeding focused upon specific incidents of misconduct by an individual attorney, the district court’s trial bar rules were adopted in response to fact finding that was not focused on individual attorneys. The trial bar rules of the Northern District of Illinois are part of a pilot program implementing suggestions to improve advocacy in the federal courts advanced by the Committee to Consider Standards for Admission to Practice in the Federal Courts (“Devitt Committee”). The Devitt Committee, a national committee appointed by Chief Justice Burger in 1976 to study advocacy of representation problems in the federal courts, surveyed 1,500 law related organizations, solicited the comments of the legal community, and held public hearings on, inter alia, causes of any perceived inadequacies of representation. Report and Tentative Recommendations of the Committee to Consider Standards of Admission to Practice in the Federal Courts to the Judicial Conference of the United States, 79 F.R.D. 187, 193 (1978). Additionally, the Federal Judicial Center simultaneously conducted a series of research projects designed to gather information about the level of performance of advocates in the federal courts. Id. Based upon the comments received by the Devitt Committee and the results of the Federal Judicial Center studies, the Devitt Committee concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” Id. at 196-97. The experience requirement was recommended “to insure a substantial probability of adequate trial performances.” Id. at 196-98. Thus, the trial bar membership requirement was not designed to infallibly identify competent attorneys; rather, the provision was adopted as a method of improving the standard of advocacy in the district courts by requiring the attorneys to present evidence to the court of training in trial advocacy— i.e., the qualifying units. We hold that the finding of a correlation between trial experience and competence as a trial attorney, upon which the trial bar membership rule is based, is generalized fact finding, was not focused upon the competence of an individual attorney, and was legislative in nature. We also hold that the experience requirement is a determination of a policy issue rather than a resolution of a specific dispute between particular parties. Specifically, the trial bar membership requirement was adopted to prevent problems caused by inexperienced trial counsel such as, “ ‘Piper Cub’ advocates trying to handle the controls of ‘Boeing 747’ litigation,” and “on-the-job-training” at the expense of the client. Burger, The Specialized Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L.Rev. 227, 231, 233 (1973). “Whatever the legal issues or claims, the indispensable element in the trial of a case is a minimally adequate advocate for each litigant.” Id. at 234 (emphasis added). The client’s interests are ill-served when an untrained attorney faces a seasoned and experienced opponent. “The young doctor just graduated from the finest medical school is not permitted to take scalpel in hand to perform delicate surgery without a skilled and seasoned surgeon at his side.” Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175, 177 (1974). Adoption of an experience requirement is a sound, and overdue, recognition that young attorneys, like young physicians, must be trained by experienced practitioners. Brown’s argument that the district court’s imposition of the trial bar membership requirement, in effect, disbarred him for incompetence mischaracterizes the nature of the district court’s action. We hold that, contrary to the plaintiff’s assertions of disbarment, the district court’s trial bar membership rule, imposes what we believe is a necessary and long needed qualification requirement upon present and future members of the district court bar who wish to have the opportunity to appear alone before the court in any proceeding and is not a finding that nonmembers of the trial bar are incompetent. Consequently, Brown’s argument that he was entitled to notice and the right to be heard because he was disbarred is groundless.
B. The Power to Impose the Qualification Requirement
The authority to adopt rules relating to admission to practice before the federal courts was delegated by Congress to the federal courts in Section 35 of the Judiciary Act of 1789, Act of September 25, 1789, Ch. 20, 1 Stat. 73, 92 now codified as 28 U.S.C. § 1654. In addition to § 1654, 28 U.S.C. § 2071 provides in part that “[t]he Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business.” Fed.R.Civ.P. 83, promulgated by the Supreme Court pursuant to its rule-making authority, specifies that, “[e]ach district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules.” The district court found, and we agree, that “[e]very federal court which has construed [28 U.S.C. §§ 1654, 2071 and Fed.R.Civ.P. 83] has held that they permit a federal district court to regulate the admission of attorneys who practice before it.” See, e.g., Matter of Roberts, 682 F.2d 105, 108 (3d Cir.1982); Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975); Sanders v. Russell, 401 F.2d 241 (5th Cir.1968).
In addition to the authority delegated by Congress, federal courts have the inherent power to regulate the conduct of attorneys and to disbar attorneys. Theard, 354 U.S. at 281, 77 S.Ct. at 1276; Ex Parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856); see generally State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932) (reviewing cases from the Middle Ages to the nineteenth century). The courts’ authority and responsibility for insuring the quality of attorney advocacy has long been recognized by the Supreme Court:
“The authority of the court over its attorneys and counselors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions in private life. The highest interests are placed in their hands and confided to their management. The confidence which they receive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission are intended to secure those qualities.”
Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540, 19 L.Ed. 285 (1869). “[T]he power of disbarment is necessary for the protection of the public in order to strip a man of the implied representation by courts that a man who is allowed to hold himself out to practice before them is in ‘good standing’ so to do.” Theard, 354 U.S. at 281, 77 S.Ct. at 1276. Accordingly, we hold that the adoption of the requirement of trial bar membership was within the district court’s authority to regulate the admission of qualified attorneys who practice before the court.
We now turn to the question of whether Brown’s “previously granted license[ ] to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited by Congress or the district court.” “The legislature may undoubtedly prescribe qualifications for the office [of attorney and counselor] to which [an attorney] must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of the ordinary advocations of life.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 379, 18 L.Ed. 366 (1866); see also Dent v. West Virginia, 129 U.S. 114, 122-28, 9 S.Ct. 231, 233-35, 32 L.Ed. 623 (1888) (physician’s license). “The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will ... tend to secure them against the consequences of ignorance and incapacity as well as deception and fraud.” Dent, 129 U.S. at 122, 9 S.Ct. at 233. The qualifications placed on the license of a professional must be reasonably related to the profession and attainable by reasonable study or application. Id. at 122, 9 S.Ct. at 233; Garland, 71 U.S. at 379-80; Schware v. Bd. of Bar Exam. of State of N.M., 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The state may exclude from practice those who are not qualified to hold a professional license. Dent, 129 U.S. at 122-23, 9 S.Ct. at 233. Cf. Theard, 354 U.S. at 278, 77 S.Ct. at 1274. To protect society against unqualified licensed professionals, the State may require a licensed professional to satisfy additional conditions after the license is granted. Dent, 129 U.S. at 123, 9 S.Ct. at 233. See, e.g., Wis.S.C.R. 30.01 et seq. (continuing legal education requirement); Wis.Admin.Code § Med. 13 (1977) (continuing medical education for physicians). The decision to apply conditions retroactively, like a decision to adopt retroactive economic legislation, satisfies due process if it is justified by a rational legislative purpose. Pension Benefit-Guarantee Corp. v. R.A. Gray & Co., — U.S. —, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984).
Public attention was drawn to the problem of inadequate trial advocacy by Chief Justice Burger’s 1973 lecture expressing grave concern about the problem. Burger, The Special Skills of Advocacy, 42 Fordham L.Rev. 227 (1973). Indeed, several federal court of appeals judges expressed agreement with the Chief Justice. See, e.g., Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974) (“Too many lawyers come into court today with only a diploma to justify their claims to be advocates. They are untrained and unadvised in the immensely practical work of litigation.” Id. at 176); Bazelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1 (1973) (“I come upon these ‘walking violations of the sixth amendment’ week after week in the cases I review.” Id. at 2). The Devitt Committee, appointed by Chief Justice Burger in 1976, surveyed federal district judges and found that forty-one percent of them believe that the problem of inadequate advocacy is severe. 83 F.R.D. at 219. Twenty-five percent of the attorneys’ performances in trials evaluated by the judges for the Federal Judicial Center Study were rated as “less than good.” Id. The judges also expressed their belief that, “as a direct result of lawyer inadequacy, the interests of the clients were not fully protected.” The Federal Judicial Center study also revealed a correlation between the quality of trial performances and the prior experience of the attorneys evaluated. Id. at 222. Moreover, a 1978 American Bar Association telephone survey of 599 lawyers chosen at random revealed that forty-one percent believed that lack of trial competency was a serious problem. Burger, Some Further Reflections on the Problem of Adequacy of Trial Counsel, 49 Fordham L.Rev. 1, 9 (1980). The impact on our justice system caused by inadequate trial lawyers was succinctly stated by Chief Justice Burger:
“As the complexity and volume of both civil and criminal litigation escalates, the quality of advocacy directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice. Far too many civil cases are currently being tried which experienced, well-trained lawyers would negotiate to settlement. There are too many cases taking four, five, or six days to try, which truly competent attorneys would try in a third that time — or less. Because of this, persons who are waiting to have their cases tried must wait longer. In civil cases the inadequacy translates into delays that increase the costs of obtaining judgment and rob even a just judgment of much of its value, the same kind of “economic larcency” which inflation works on all of us. Delays in criminal cases, when combined with our very liberal bail release concepts of today, may leave some persons on the streets who are ultimately going to be found guilty and confined. Conversely, there is the risk that some defendants who cannot gain release may be confined for long periods. Long trial delay with defendants at large means the public is placed in continuing jeopardy.”
Id. at 19-20.
As we have discussed, the Devitt Committee, after reviewing its surveys and the Federal Judicial Center Studies, concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” 79 F.R.D. at 196-97. The experience requirement of the trial bar membership rule was recommended by the Devitt Committee “to insure a substantial probability of adequate trial performance” in response to evidence of the serious problem of inadequate trial advocacy and is analogous to the continuing legal education requirement imposed by some states. See, e.g., Wis.S.C.R. 30.01 et seq. The Devitt Committee recommended that present members of the district court bars be required to satisfy the experience requirement because, “the data on inadequacy is drawn from present bar members spanning all age groups and that exempting all present members as well as all who become members prior to the effective date of the new rules will exempt the very individuals whose inadequate performances justify new standards.” 79 F.R.D. at 200. Courts have looked with increasing favor on measures designed to insure an acceptable level of competency in licensed professionals. See, e.g., Marrese v. Interqual, 748 F.2d 373 (1984), cert. denied, — U.S. —, 105 S.Ct. 3501, 87 L.Ed.2d 632 (1985) (physicians’ peer review). We hold that the experience requirement is reasonably related to the practice of law and attainable by reasonable study or application. Furthermore, we hold that retroactive application of the experience requirement does not violate due process because it is justified by a rational legislative purpose — maintaining a high standard of advocacy in the federal courts.
C. Procedural Due Process
The district court held that because adoption of the trial bar membership requirement was an exercise of rulemaking rather than adjudicatory power, the Fifth Amendment’s requirement of individualized due process did not apply. Brown argues that we should not apply this rule, drawn from Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), because the agency involved in the Bi-Metallic case was created by and answerable to a state legislature. Brown notes that the Supreme Court found in Bi-Metallic that when Congress passes legislation, individual “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Id. at 445, 36 S.Ct. at 142. The plaintiff urges that his individual rights were not protected because “he had no voice” in either the selection of the advisory committee that solicited comments from attorneys in the Northern District of Illinois and reported their findings to the Northern District or in the selection of the district court’s appointed judges. However, we need not resolve this issue of whether federal judges are answerable to Congress in the same manner in which federal agencies are answerable to Congress because an examination of the record reveals that Brown received notice and an opportunity to be heard. Cf. Pension Benefit, 104 S.Ct. at 2719. Whether an affected party must receive individual notice depends upon the character of the action. When individual interests are adversely affected by a legislation action, publication of the statute puts all individuals on notice of a change in the law of the jurisdiction; individual notice is not required. Texaco v. Short, 454 U.S. 516, 531-38, 102 S.Ct. 781, 793-97, 70 L.Ed.2d 738 (1982). “[I]t has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.” Id. at 536, 102 S.Ct. at 796. See also Atkins v. Parker, — U.S. —, 105 S.Ct. 2520, 2529, 86 L.Ed.2d 81 (1985). On the other hand, in an adjudicatory hearing, procedural due process requires that an individual whose interest is at stake must be given, “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). As to the requirement of an opportunity to be heard, the significance of the plaintiff’s loss must be balanced with the governmental interest at stake. Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970). The court must consider three factors:
“First, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved in the physical and administrative burdens that the additional or substitute procedural requirement would entail.”
Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).
By arguing that he should have received individual notice, Brown urges us to create an exception to the rule that the legislative publication of a statute satisfies the notice requirement of procedural due process. See Texaco, 454 U.S. at 538, 102 S.Ct. at 797. We need not address Brown’s questionable contention that individual notice of a legislative type action with retrospective aspects is constitutionally compelled because, as the record demonstrates, ample notice was given. Cf. Pension Benefit, 104 S.Ct. at 2719. The Devitt Committee’s soliciting information about the adequacy problem and proposed solutions was patterned after the “notice and comment” procedure of the federal Administrative Procedures Act. Devitt, Improving Trial Advocacy, 72 F.R.D. 471, 475 (1976). The district court found that the Devitt Committee conducted a lengthy inquiry, which included a survey of the legal community’s views and four public hearings, and published its first report in 1978. 79 F.R.D. 187 (1978). The Devitt Committee held additional hearings after the publication of its first report and issued a final report in 1979. 83 F.R.D. 215 (1979). Both reports recommended that the experience requirement for admission to the trial bar be applied to present members of district court bars. 79 F.R.D. at 199-200; 83 F.R.D. at 223. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations. In ruling on the defendants’ motion for summary judgment, the district court found that, “[t]he Austin Committee published the proposed rules in the March 26, 1981, issue of the Chicago Law Bulletin and in the Mar.-Apr. 1981 issue of the Chicago Bar Record and invited interested parties to submit their views. All interested attorneys were invited to attend and participate in an open meeting on the proposed rules held on Apr. 26, 1981.”
Addressing the issue of Brown’s loss, examination of the district court’s rules reveals that the loss he has suffered is that he cannot appear alone at the trial of a civil case, and he cannot appear alone in criminal proceedings. N.D.Ill. General R. 3.10. The plaintiff retains his right to appear alone in every aspect of civil litigation except the actual trial, i.e., filing the complaint, discovery, motions and status hearings. Id.
Balanced against this restriction on his right to practice, is the significant government interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district courts. The material reviewed by the Devitt Committee confirmed the existence of the inadequacy problem and supported Chief Justice Burger’s observation that inadequate trial advocacy, “directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice.” 49 Fordham L.Rev. at 19-20. Addressing the issue of how to improve the quality of advocacy, the Devitt Committee discovered, “no one has yet devised an examination which will test one’s ability to be a courtroom advocate.” 79 F.R.D. at 196. The Devitt Committee adopted the experience requirement to insure a substantial probability of adequate trial performances. Id. Thus, the record reveals that the procedure followed in adopting the rules adequately identified the problem, researched various solutions, solicited public comment on both the problem and possible solutions, and properly determined that the problem of inadequate trial advocacy could be solved in part by requiring attorneys to demonstrate their competence by satisfying the.experience requirements. The district court found, and we agree, that the Committees’ “notice and comment” procedures were elaborate and fair. Balancing the plaintiffs’ loss against the significant governmental (and consumer) interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district court, we hold that the plaintiffs received notice reasonably calculated to appraise them of the pendency of the action and an adequate opportunity to be heard.
The decision of the district court is Affirmed.
. Rule 3.00C provides:
"C. Definitions
(1) Testimonial proceedings: Testimonial proceedings are proceedings conducted in open court before a District judge, U.S. magistrate, bankruptcy judge or trial judge of the state court in which the oral testimony of a witness is presented and the rules of evidence are applicable. Procedures limited to taking the deposition of a witness do not constitute testimonial proceedings for purposes of this Rule.
(2) Qualifying trial: A qualifying trial is either (a) a trial lasting at least one day in a trial court of record, involving substantial testimonial proceedings and going to the merits, or (b) an evidentiary hearing before a trial court of record equivalent to a trial in which testimonial evidence going to the merits is taken.
(3) Participation unit: A person is credited with one participation unit for each qualifying trial in which he/she participates as the lead counsel or the assistant to the lead counsel. Where a qualifying trial lasts more than three days, the person is credited with one additional participation unit for each three full days of trial in excess of the first three days. A maximum of four participation units can be credited for one trial.
(4) Observation unit: A person is credited with one observation unit for each qualifying trial he/she observes in which a member of the trial bar of this Court supervises the observation and consults with the person about the trial.
(5) Simulation unit: A person is credited with a simulation unit where, as part of a law school or continuing education course, he/she satisfactorily participates in a simulated trial that is recognized by the District Admissions Committee as being adequately supervised. The supervisor of the simulated trial may certify that the person’s performance was satisfactory.
(6) Qualifying units of trial experience: Participation units, observation units and simulation units as defined in this Rule are qualifying units of trial experience.
(7) Required trial experience: Required trial experience consists of four qualifying units of trial experience, at least two of which are participation units."
. Rule 3.10D provides:
“D. Waiver and Exceptional Cases
A judge may grant permission in a civil or criminal proceeding pending before him/her to an attorney admitted to the bar, but not to the trial bar, to appear alone in any aspect of the matter only upon written request by the client and a showing that the interests of justice are best served by waiving the experience requirements otherwise required by these Rules. Such permission shall apply only to the proceeding in which it was granted. Granting of such permission shall be limited to exceptional circumstances.”
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
UNITED STATES of America, Appellee, v. Harold HAMILTON, Appellant.
No. 77-2900.
United States Court of Appeals, Ninth Circuit.
Feb. 6, 1978.
Robert J. Lyman (argued), of Debus, Busby & Green, Phoenix, Ariz., for appellant.
John G. Hawkins, Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee.
Before WRIGHT and HUG, Circuit Judges, and INGRAM, District Judge.
Of the Northern District of California.
PER CURIAM:
Appellant asks this court to vacate convictions for two drug-offenses to which he pleaded guilty in the district court.
FACTS:
On March 3, 1977, Hamilton withdrew a general plea of not guilty and substituted guilty pleas on two counts of a four-count indictment. Pursuant to a plea agreement, the prosecutor successfully moved to dismiss the remaining counts. Hamilton moved to withdraw his plea after consecutive sentences were imposed. He appeals from the denial of that motion.
At the hearing on the change of plea, the trial judge relied on the prosecutor to advise appellant of the potential penalties on each of the two counts. The judge asked Hamilton, specifically whether he understood the penalties as explained by the prosecutor. Hamilton responded that he did. Neither the prosecutor nor the judge expressly informed Hamilton that the sentences could run consecutively.
Hamilton contends that his conviction must be vacated because the trial judge himself did not explain the potential penalties and because he was not told of the possibility of consecutive sentencing.
This appeal squarely presents the question of what procedures must be followed by a trial judge to satisfy the requirements of Fed.R.Crim.P. 11 governing acceptance of guilty pleas.
DISCUSSION:
Fed.R.Crim.P. 11 reads:
Rule 11. PLEAS
(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; .
Prior to its amendment in 1975, Rule 11 required only that a judge determine that a defendant’s plea was made with an understanding of its “consequences.” See Notes of the Advisory Committee on 1966 Amendments to Rule 11, reprinted in 8 Moore’s Federal Practice K 11.01[3] at 11-6 (1977).
If Rule 11’s requirements are not met, the defendant must be given the opportunity to plead anew. McCarthy v. United States, 394 U.S. 459, 471-472, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
1. Consecutive Sentences.
Hamilton argues that Rule 11 requires a judge to advise a defendant of the possibility of consecutive sentences before a guilty plea is entered. The 1975 version of the rule “summarizes roughly the holdings of the post-McCarthy decisions” interpreting the word “consequences.” J. Bond, Plea Bargaining and Guilty Pleas 84 (1977).
Those decisions held that any factor which necessarily affected the maximum term of imprisonment was a Rule 11 “consequence.” E. g., United States v. Myers, 451 F.2d 402, 404 (9th Cir. 1972). However, they did not require explanation of the possibility of consecutive sentencing, reasoning that the court’s power to impose consecutive sentences is explained implicitly “in the separate explanation of the possible sentences on each count.” Paradiso v. United States, 482 F.2d 409, 415 (3d Cir. 1973) (acknowledging that better practice would be to specifically advise); see also cases cited infra at n.4.
This reasoning is equally persuasive under the amended rule. Although at first glance the Notes of the Advisory Committee on 1975 Amendments to the Federal Rules of Criminal Procedure appear to suggest a contrary conclusion, they do not. They indicate that the objective of the 1975 amendments was to insure that a defendant knows the maximum sentence a judge may impose. Notes of the Advisory Committee on 1975 Amendments to Rules, Fed.R. Crim.P. 11, reprinted in 8 Moore’s Federal Practice ¶ 11.01[4] at 11-7 to 11-18 (1977) (hereinafter 1975 Committee Notes).
The 1975 Committee Notes, however, interpreted the rule as promulgated by the Supreme Court, prior to its alteration in Congress. The rule as originally proposed required disclosure of the “maximum possible penalty provided by law for the offense to which the plea is offered.” Id. at 11-9 (emphasis added).
The proposed rule thus reaffirmed the proposition that a defendant need be specifically advised of possible sentences only with respect to each offense. The 1975 Committee Notes suggest that because the penalty for an offense appears on the face of the statute defining the crime, a judge can ascertain exactly what to tell a defendant: “Giving this advice tells a defendant the shortest mandatory sentence and also the longest possible sentence for the offense to which he is pleading guilty.” Id. (emphasis added).
In Congress the proposed rule generated controversy for its failure to enumerate important rights that are waived by offering a plea of guilty. Those were enumerated by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When the House Judiciary Committee reported the measure which became Rule 11, the rule had been modified to include a requirement that a defendant be advised of the rights waived by a plea and the phrase, “for the offense to which the plea is offered,” was deleted from the section regarding advice about potential penalties. See H.R.Rep.No. 247, 94th Cong., 1st Sess. 21 (1975), reprinted in [1975] U.S.Code Cong. & Admin. News, p. 674, 693.
It appears that clearer explanation of the rights discussed in Boykin v. Alabama, supra, was the purpose of the committee’s revisions. We think that the accompanying deletion was merely a technical amendment to the rule’s text rather than an intentional enlargement of the judge’s duty to inform.
Although one could argue that Congress, in deleting the phrase, intended to require disclosure of the possibility of consecutive sentences, in the absence of an indication of such intent, we think amended Rule 11 was meant merely to simplify a judge’s task by emphasizing that the crucial consequences of entering a plea which must be explained to a defendant are the sentencing consequences, rather than other, less direct, implications of entering a guilty plea. See 1975 Committee Notes, supra at 11-10 (by implication). See generally J. Bond, Plea Bargaining and Guilty Pleas 148 (1975) (noting pre-amendment confusion in classifying consequences as direct or indirect). Cf. Sanchez v. United States, 572 F.2d 210 (9th Cir., 1977) (parole revocation is a collateral consequence).
Hamilton was advised by the prosecutor of a possible 15-year sentence, a $25,-000 fine, and a three-year special parole term (by the judge’s interjection) as to each of the two counts. The court reasonably concluded that this explanation implicitly alerted Hamilton to the possibility of consecutive sentencing. We agree.
2. Reliance on the Prosecutor.
Relying on McCarthy v. United States, supra, 394 U.S. at 471-72, 89 S.Ct. 1166, Hamilton contends that the trial judge’s reliance on the prosecutor to inform him of possible penalties renders his plea invalid and affords him the opportunity to plead anew.
The judge asked Hamilton whether he understood the penalties as explained by the prosecutor. That procedure satisfied the pre-1975 rule’s command that the judge determine that a defendant understands the consequences of his plea. United States v. Yazbeck, 524 F.2d 641, 642-43 (1st Cir. 1975) (per curiam) (dictum). Accord United States v. Coronado, 554 F.2d 166, 173-74 & nn. 11 & 12 (5th Cir. 1977) (direct appeal from conviction on a plea entered under the former version of Rule 11). The question remains whether it met the post-amendment requirement that the “court address the defendant personally” and “inform him of, and determine that he understands” the penalties that may be imposed. See id. at 174 n.12.
Requiring the court to inform a defendant of penalties does not necessarily mean that the words must literally issue from the judge’s lips. We conclude that a reasonable interpretation of Rule 11 is that it means a judge must insure that the defendant understands the possible penalties before his plea is accepted.
The court can, within certain limits, satisfy the requirement by directing that another advise the defendant in the court’s presence. The crucial requirement is that the judge be satisfied that the defendant understands the possible sentences and that such understanding be apparent in the record.
Our conclusion conforms to McCarthy v. United States, supra, which instructed federal judges to spread a defendant’s state of mind on the record at the time of the plea in order to avoid resort to after-the-fact speculation. 394 U.S. at 467, 89 S.Ct. 1166. Furthermore, permitting partial delegation in a case such as this is supported by repeated admonitions that Rule 11 not become the vehicle to transform plea hearings into ritualistic performances. See McCarthy, supra, at 467 n.20, 89 S.Ct. 1166; Guthrie v. United States, 517 F.2d 416, 418 (9th Cir. 1975); United States v. Youpee, 419 F.2d 1340, 1344 (9th Cir. 1969). Finally, it is supported by some evidence that the draftsmen attached no new special significance to the word “inform” as used in ■ the 1975 version of the rule.
United States v. Crook, 526 F.2d 708 (5th Cir. 1976), upon which appellant relies, is inapposite. In Crook the judge completely delegated his responsibilities, allowing the prosecutor to conduct nearly all of the Rule 11 examination. Moreover, only the prosecutor questioned the defendant on the voluntariness of his plea. The reviewing court properly concluded that the potentially intimidating effect of prosecutorial questioning raised fatal doubts regarding the voluntariness of the plea. Id. at 710.
In this case the trial judge carefully advised the defendant of all Rule 11 matters except penalties. He satisfied himself that Hamilton understood the penalties as explained by the prosecutor. He failed to “inform” Hamilton of possible penalties only in a literal sense.
Moreover, Hamilton, unlike the appellant in Crook, does not challenge the voluntariness of his plea except insofar as he alleges it was uninformed. However, his understanding of the penalties is readily discerned from his recorded responses in the Rule 11 hearing transcript.
The procedure followed by the trial court was consistent with both the mandate of Rule 11 and the holding of McCarthy v. United States, supra. We caution district judges, however, that deviation from literal compliance with the rule should be undertaken only with the utmost caution to insure that the record reflects observance of the rule’s substantive import.
In this case the requisite caution was displayed. The convictions are affirmed.
. The transcript of the Rule 11 hearing, with questions by the prosecutor, reads in relevant part:
Q: Are you aware of the fact that these [two] charges carry with them penalties of 15 years each?
A: I am, sir.
Q: And a possible fine of $25,000?
A: Yes, sir.
THE COURT: Just a moment. You have also got a minimum three-year special parole term.
Q (the prosecutor): And a minimum special parole term as to each count?
A: I understand.
Q: You have previously entered not guilty pleas as to all of these counts. Is it now your desire to withdraw as to Counts I and II your not guilty plea?
A: Right, and plead guilty.
Q: And enter a plea of guilty as to both counts.
A: Yes.
Q: You are aware of the maximum penalty as to each of those counts?
A: A 15-year maximum.
Q: And up to a $25,000 fine and a three-year special parole term as to each.
A: Yes.
THE COURT: That is a minimum three years.
. Boykin v. Alabama, supra, held that offering a guilty plea involves waiver of important constitutional rights (e. g., jury trial, confrontation, right against self-incrimination) and that a knowing, voluntary waiver of those rights cannot be presumed from a silent record.
. During four days of hearings, only one reference was made to Rule ll(c)’s sentencing provision. See Amendments to Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 36 (1975) (Charles Sevilla) (referring to United States v. Myers, 451 F.2d 402 (9th Cir. 1972)). See also Proposed Amendments to Federal Rules of Criminal Procedure: Hearing Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 2d Sess. (1974).
. See, e. g., Villarreal v. United States, 508 F.2d 1132, 1133 (9th Cir. 1974); Johnson v. United States, 460 F.2d 1203 (9th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 206, 34 L.Ed.2d 125 (1972); Hinds v. United States, 429 F.2d 1322, 1323 (9th Cir. 1970) (per curiam). See also United States v. Myers, 451 F.2d 402, 405 (9th Cir. 1972).
. The draftsmen noted that the former rule required the court to “inform” a defendant of the consequences of his plea. 1975 Committee Notes, supra at 11-9.
. However, in addressing the delegation issue, the court relied on authorities which dealt not with who should ask the questions, but rather with who should answer them. See 526 F.2d at 709-10. We think reliance on those cases was mistaken.
. Even as to penalties, the judge carefully followed the prosecutor’s explanation and interrupted to explain the special parole term.
. See n.1, supra.
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_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.
Santiago SANDOVAL, Petitioner-Appellant, v. Gerado ACEVEDO, Warden of East Moline Correctional Center, Respondent-Appellee.
No. 92-2089.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 26, 1993.
Decided May 20, 1993.
Robert P. Will, Jr. (argued), Will & Bris-coe, Waukegan, IL, for petitioner-appellant.
Thomas L. Ciecko, Deputy Atty. Gen., Martha E. Gillis (argued), Office of the Attorney General, Chicago, IL, for respondent-appellee.
Before POSNER and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
POSNER, Circuit Judge.
Santiago Sandoval was convicted by a jury in an Illinois state court of criminal sexual assault and was sentenced to 15 years in prison, the maximum punishment. After exhausting his state remedies he sought habeas corpus in a federal district court, lost, and appeals.
The only direct evidence of Sandoval’s guilt was the testimony of his victim (whom we shall call “S_” to protect her privacy), which we summarize: She was a divorced woman of 20 when she first met him, he a 27-year-old man who had been born in Panama, was divorced, and was working as a power lineman for Commonwealth Edison at a salary of $600 a week. After living together for several months they broke up because he would become violent and hit her when she refused his demands for sexual intercourse. They reconciled to the extent of resuming dating and were having ,a fine time at a night spot on New Year’s Eve when Sandoval became jealous upon being told by the disc jockey that S_ had been seen with another man. Sandoval calmed down and S_agreed to accompany him to his apartment to discuss their relationship. He again became angry, accused her of having slept with the other man, and finally announced “that he was going to fuck [her] one last time.” She resisted, but he dragged her on her back to the bedroom and then ordered her to roll over. Realizing that he meant to force her to submit to anal intercourse, she begged him not to have intercourse with her that way because they had had anal sex twice before and it had hurt her very badly. After forcibly sodomizing her, he compelled her to perform fellatio on him.
She fled, partially clothed, pounded on the first apartment door that she came to, and told the occupant in a manner that he described as “between anxious and hysterical” that she had been raped. He let her in, and she then called the police. This part of her testimony was corroborated by the occupant, and by the police officers who responded to her call and arrested Sandoval. The police also testified that she had bruises on her face.
Sandoval testified that while they were living together he and S_had had anal intercourse frequently, that she had enjoyed it and even on occasion had initiated it. When, at the nightclub on New Year’s Eve, he accused her of having been with another man, she tearfully confessed, and at his apartment afterward had initiated anal and oral sex with him. But he could not get over her betrayal of him with the other man and eventually ordered her to leave the apartment. She got upset, announced that “I’m going to screw you,” and stormed out of the apartment.
On direct examination of S_the prosecutor had asked her whether she had ever had anal sex with anyone besides Sandoval, and she had answered “No.” She had also testified that she had not dated since the rape. On cross-examination, defense counsel, after reminding S_of her denial that she had ever had anal sex with anyone besides Sandoval, said, “Now, you know a fellow named ...” — at which point the prosecutor interrupted with an objection. Out of the hearing of the jury, the defendant’s lawyer explained that he had a witness sitting in the hallway who would impeach S_’s testimony by testifying that he had had anal sex with her, that she had enjoyed it, and that he had seen her shortly before the trial “hanging all over a gentleman friend of hers” at a bar. The judge refused to allow the witness to testify but did instruct the jury, just before the closing arguments, that it was to disregard the testimony that S_had not had anal intercourse with anyone besides Sandoval.
The evidence was excluded on the authority of Illinois’ rape shield law, on which see the useful discussion in Comment, “Toward a Consistent Recognition of the Forbidden Inference: The Illinois Rape Shield Statute,” 83 J.Crim.L. & Criminology 395 (1992). The law is understood to forbid the introduction in a rape case of evidence concerning the victim’s sexual activities with persons other than the defendant. True, this is not quite what the law says. It says that in prosecutions for rape (called “criminal sexual assault” in Illinois) and related offenses, “the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill.Rev. Stat. ch. 38 ¶ 115-7(a). Evidence of sexual activity with other people besides the accused could often be described as evidence concerning — bearing on, related to — the past sexual conduct of the alleged victim with the accused. But that is not how the statute is interpreted. As explained in the decision of the Supreme Court of Illinois affirming Sandoval’s conviction, the statute limits evidence of the victim’s sexual activity to her activity with the defendant, period. People v. Sandoval, 135 Ill.2d 159, 176, 142 Ill.Dec. 135, 143, 552 N.E.2d 726, 734 (1990) (reversing the decision of the Illinois Appellate Court, which had reversed Sandoval’s conviction). The interpretation of the statute by Illinois’ highest court binds us, and establishes that the prosecutor violated state law when he asked S_about her history of anal intercourse with persons other than the defendant and that the defense lawyer violated state law when he tried to cross-examine her about it. The prosecutor is not authorized to waive the protections of the rape shield law — for they are protections as much for the rape victim as for the prosecution of rape cases — and if he does so this does not open the door to defense counsel to disregard the rape shield law in his cross-examination of the victim. Id. at 180, 142 Ill.Dec. at 140, 552 N.E.2d at 731.
But Illinois cannot, through a rape shield law or anything else, deprive a criminal defendant of his federal constitutional right to confront the witnesses against him, a right that has been held to imply the further right, though not one of unlimited extent, to cross-examine the prosecutor’s witnesses. Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-11, 39 L.Ed.2d 347 (1974); Stephens v. Miller, 989 F.2d 264, 267 (7th Cir.1993). In this as in most rape cases, the key witness, and only eyewitness (apart from the alleged rapist), was the victim of the alleged rape; and the essential part of her testimony — that she was forced against her will to submit to sexual intercourse with the defendant — was not directly corroborated, although there was some corroboration, as we shall see. The principle of the rape shield law, designed as it is to exclude evidence that even if relevant has little probative value but great capacity to embarrass and distract, evidence that is considered to shift the balance of proof too far in favor of the rape defendant, has been held to be constitutional. Michigan v. Lucas, — U.S.-, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). But the constitutionality of such a law as applied to preclude particular excidpatory evidence remains subject to examination on a case by case basis. Stephens v. Miller, supra, 989 F.2d at 267-268; Moore v. Duckworth, 687 F.2d 1063, 1065 (7th Cir.1982); United States v. Begay, 937 F.2d 515, 524 (10th Cir.1991).
Sandoval argues that once S_testified that she had never had anal intercourse with anyone besides Sandoval, and by so testifying buttressed her testimony that she had not consented to have anal intercourse with him on the night in question, defense counsel was entitled to impeach her testimony by asking her whether she had had consensual anal intercourse with X_, and if she denied that she had, to call X_to the stand and elicit testimony to the contrary from him. This line of inquiry would clearly have been precluded by the rape-shield statute, constitutionally applied, had she not testified about her history of anal intercourse. The essential insight behind the rape shield statute is that in an age of post-Victorian sexual practice, in which most unmarried young women are sexually active, the fact that a woman has voluntarily engaged in a particular sexual activity on previous occasions does not provide appreciable support for an inference that she consented to engage in this activity with the defendant on the occasion on which she claims that she was raped. And allowing defense counsel to spread the details of a woman’s sex life on the public record not only causes embarrassment to the woman but by doing so makes it less likely that victims of rape will press charges.
We must consider what difference it made that S_testified about her other sexual activities (or abstentions). If that testimony was irrelevant, the defense would not, under standard principles of evidence, have been permitted — and certainly would not have had a constitutional right — -to impeach the testimony with extrinsic evidence (that is, testimony by X_). Taylor v. National Railroad Passenger Corp., 920 F.2d 1372, 1375 (7th Cir.1990). But her testimony might have been thought relevant on the theory that it was calculated or at least likely to strengthen the prosecution’s ease by reducing the likelihood that she had consented to anal intercourse with Sandoval on the occasion in question. If so, the defense would have a stronger case for being permitted to rebut the testimony, if necessary by extrinsic evidence, lest the jury be left with a misleading impression. As we have emphasized, a rape shield statute cannot constitutionally be employed to deny the defendant an opportunity to introduce vital evidence, and impeaching evidence can be vital, J. Alexander Tan-ford & Anthony J. Bocchino, “Rape Victim Shield Laws and the Sixth Amendment,” 128 U.Pa.L.Rev. 544, 581-83 (1980), though whether or when impeachment by extrinsic evidence is constitutionally guaranteed is fortunately an issue we need not resolve. Compare Johnson v. Brewer, 521 F.2d 556, 562 (8th Cir.1975), with id. at 564 (dissenting opinion).
For if there was error of constitutional magnitude in excluding the particular evidence (which we do not decide), it was cured, or more precisely rendered harmless beyond reasonable doubt, by the judge’s instruction. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). We are well aware of the limited efficacy of most curative instructions — but not this one. When the judge instructed the jury to disregard S_’s denial of having engaged in anal intercourse with other men besides the defendant, the natural inference for the jury to draw — which is just the inference that the defendant would have wanted it to draw — was that she had had anal intercourse with other men. So the exclusion of the evidence that the defense wanted to offer did not harm the defense and therefore cannot be a ground for invalidating Sandoval’s conviction. In this respect the ease is like Moore v. Duckworth, supra. The victim of the alleged rape in that case was pregnant at the time she testified at trial. The defendant wanted to present evidence that she was pregnant by her boyfriend, not by him. The judge held that the evidence was inadmissible under the rape shield statute. We thought this an absurd interpretation of Indiana’s rape shield law, but bowed to it because it was the interpretation of the state’s highest court. But we added that “the absurdity of the Rape Shield Law cannot be overlooked if it denied [the defendant] a fair trial.” 687 F.2d at 1065. However, as the trial judge had employed strenuous and apparently successful efforts to prevent the jury from discovering that the rape victim was pregnant, we concluded that the defendant had not been unfairly harmed by the application of the rape shield law, and therefore could not obtain relief under the Constitution.
The next issue concerns the judge’s refusal to permit testimony about S_’s “hanging all over a gentleman friend.” The testimony was not excluded on the authority of the rape shield statute, presumably because it was not testimony about sexual activity — though that depends on how the term, which the Illinois rape shield law uses without defining, is interpreted. Comment, “Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence,” 1985 Wis.L.Rev. 1219, 1227-28 and n. 35. Also, the alleged incident of S_’s “hanging all over a gentlemen friend” did not occur prior to the alleged rape, but “prior” or “past” in rape shield laws is usually interpreted as prior to trial, rather than prior to the alleged rape. See United States v. Torres, 937 F.2d 1469, 1472 (9th Cir.1991), construing the federal rape shield provision, Fed.R.Evid. 412.
The evidence was not, however, such vital impeachment that its exclusion can be said to have deprived Sandoval of his constitutional rights. For the evidence of his guilt was very powerful despite the lack of direct corroboration for S_’s central testimony. Realistically, a jury called upon to decide guilt must compare the prosecution’s version of the incident giving rise to the case with the defense version. Spitz v. Commissioner, 954 F.2d 1382, 1384-85 (7th Cir.1992). The defense version asked the jury to believe that S_, after an extensive bout of sexual intercourse initiated by her and only reluctantly consented to by the pacific defendant, flew into a rage, bruised herself, ran half-naked into the hallway, and successfully impersonated a rape victim to a neighbor and two policemen. Anything is possible, but this is distinctly unlikely and its plausibility would not have been decisively enhanced had it been established that S_had exaggerated the effect of the rape when she testified that she hadn’t dated since the rape.
The last issue concerning the rape shield law brings us back to the mysterious Mr. X_An important part of S_’s testimony, it will be recalled, was that she disliked anal intercourse, found it painful, and begged Sandoval not to force her to have intercourse that way, implying that she might have consented, however reluctantly, to vaginal intercourse. He on the other hand, as we have noted, testified that she liked anal intercourse and initiated it on this and other occasions. If it could be proved that she had had and enjoyed anal intercourse with another man, never complaining about any pain, this could be thought not merely to contradict her testimony on an arguably collateral point (having to do with her sexual relations with other men) with a view to persuading the jury to disbelieve her testimony on the vital points, but to undermine her testimony that she did not consent to have anal intercourse with Sandoval on the night of the alleged rape, because pain was one of the reasons that she had offered for why she hadn’t consented. The Supreme Court of Illinois in Sandoval’s appeal held that the admission of X_’s evidence was barred by the rape shield law, 135 Ill.2d at 183, 142 Ill.Dec. at 145-46, 552 N.E.2d at 736-37, but that law, as we have said, cannot be allowed to prevent a defendant from putting on a defense to what is after all a very serious charge. And consent is, of course, a defense to rape.
But we do not understand defense counsel to have wanted to put on his witness waiting in the hallway for the purpose of impeaching S_’s testimony that she did not consent to have anal intercourse with Sandoval. So far as appears, Sandoval’s counsel would not have procured the witness had it not been for S_’s testimony about never having had anal intercourse with anyone else. He wanted the witness solely in order to contradict a body of testimony that the judge erased by his curative instruction. But if this is wrong and Sandoval wanted the witness also or instead in order to contradict S_’s testimony about consent, still we do not think its exclusion violated Sandoval’s constitutional rights. Sexual intercourse, whether vaginal or otherwise, is not uniformly pleasurable or painful. The fact that S_had had pleasurable anal intercourse with another man on another occasion would not show that she would have enjoyed having it with Sandoval on an occasion when he was enraged with her and wanted by penetrating her anally to humiliate and, quite possibly, physically hurt her. Indeed, by that logic rape shield laws would be unconstitutional to the core because their central aim is to prevent the drawing of an inference of consent from previous consensual intercourse with other men. This case is a little more difficult because the victim’s testimony was that she had found anal intercourse unpleasant with Sandoval when they were living together. This implies that she disliked the practice, an implication in tension with her having voluntarily engaged in it with another man — though of course we often consent to do things we don’t much like or even actively dislike.
But this just brings us back to the impeachment of her testimony that she had never had anal intercourse with anyone but Sandoval. The judge told the jury to disregard that testimony. The jury was left to ponder the implication that she had had anal intercourse with someone else. The jury surely realized that it undermined her contention that she found anal intercourse painful, and that by doing so it also undermined her testimony that she had not consented. Weighing all the facts and their implications, the jury convicted Sandoval. The thumb of the rape shield law was not on the balance; in effect, the judge’s instruction took that law out of the case. We can see this by supposing that S_had never testified about anal intercourse with other men. Then even without a rape shield law it is doubtful that testimony that she had enjoyed it with another man would be admissible, for it doesn’t, or at least shouldn’t, require a rape shield law to show that consent to sex with X on one occasion is not good evidence of consent to sex with Y on another.
Finally and unrelatedly, Sandoval challenges his sentence as excessive. The challenge can get nowhere. It was not raised in the Illinois supreme court, 16 Charles Alan Wright et al., Federal Practice and Procedure § 4007 at p. 554 (1977); and in any event a 15-year sentence for rape not involving serious physical injury, while severe, can hardly be thought so savage as to violate the limits, if any, which the Constitution places on the severity of prison sentences. Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 886 (1991). Sandoval challenges the following remarks by the sentencing judge: “I find it absolutely astounding that any human being would participate in this type of activity. Animals do not engage in this type of logic [?]. But animals react from instinct, and logically we are told that human beings are smarter than animals, because we have two matters that make us more superior. We can talk and we can reason and we are superior to animals. Sometimes I wonder.” And Sandoval points out that in another case this judge was rebuked by his judicial superiors for remarking, in sentencing a defendant for homosexual child abuse, “I cannot think of a worse crime than an aggravated sexual abuse crime. I can tolerate a murderer. I can tolerate a robber. I can tolerate a burglar. But when it comes to sex, you know, even an animal avoids fornication with an offspring from the same birth. You know, your act is very, very heinous. Your act is worse than that animal, at least the animal, by instinct, does different things, and a human being differs from an animal because we are supposed to know how to reason, how to think.” Quoted in People v. Zemke, 159 Ill.App.3d 624, 628, 111 Ill.Dec. 258, 260, 512 N.E.2d 374, 376 (1987). Although the accuracy, relevance, and tone of the judge’s remarks in sentencing Sandoval can be questioned, Sandoval points to no principle of constitutional law that would authorize a federal court to invalidate an otherwise lawful and constitutionally proper sentence because it did not appear to be the product of informed, measured consideration. It is not suggested that the judge took the defendant’s race, religion, or political opinions, or any other forbidden ground for punishment into account in determining the sentence. Cf. Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983); United States v. Neyens, 831 F.2d 156, 159 (7th Cir.1987).
The denial of habeas corpus is
AFFIRMED.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Martha L. BROWN, Plaintiff-Appellee, v. CAPITOL AIR, INC., Defendant-Appellant.
No. 723, Docket 85-7860.
United States Court of Appeals, Second Circuit.
Argued Jan. 30, 1986.
Decided Aug. 5, 1986.
Norman Leonard Cousins, New York City, for plaintiff-appellee.
Phillip D. Bostwick, Washington, D.C. (David J. Cynamon, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., of counsel), for defendant-appellant.
Before OAKES, WINTER and MINER, Circuit Judges.
WINTER, Circuit Judge:
Plaintiff Martha Brown brought an action in a New York state court on August 10, 1983, against Capitol Air, Inc. (“Capitol”) alleging various causes of action arising out of her forcible expulsion from a Capitol flight. That case is apparently pending in state court. Ms. Brown commenced the instant case as a separate action in the same New York state court on May 17, 1984, alleging a number of additional legal claims based on the same underlying events. The instant action was then removed to the United States District Court for the Eastern District of New York. Chief Judge Weinstein granted summary judgment against Ms. Brown but declined to impose sanctions under Fed.R. Civ.P. 11. Ms. Brown has not appealed; Capitol has.
This appeal raises the question whether a defendant who uses removal to a federal court to bifurcate litigation that would be most economically resolved as a single proceeding may recover sanctions under Rule 11 for what are additional and essentially unnecessary proceedings resulting from the removal. We answer the question in the negative and affirm the decision of the district court.
Both the pending state case and the instant action arose from events occurring on April 10, 1983, on Capitol Flight 220, originating in Los Angeles and terminating in New York. According to a flight attendant’s report written within a day after the flight, two women passengers became unruly on the leg of the flight between Los Angeles and Chicago. The flight attendants discovered that the women were drinking alcohol other than that served by the airline, in violation of Section 121.575 of the FAA regulations, 14 C.F.R. § 121.575(a), and asked the women to put the bottles away. Bad weather forced a delay on the Chicago to New York leg, and the plane was diverted to Philadelphia for refueling. According to the flight attendant’s report, the situation got worse, as the two women began singing songs about drugs and sex and shouting obscene language that offended other passengers. The flight personnel called the Philadelphia police, who took plaintiff and her sister into custody. Plaintiff was released within hours and returned home to New York by train.
Four days after the incident, plaintiff, a black woman, asked the Federal Aviation Administration (“FAA”) Office of Civil Rights to investigate the incident, claiming that she was not one of the passengers creating the disturbance and did not even board Flight 220 until it reached Chicago. She attributed her removal from Flight 220 to racial discrimination. This complaint triggered investigations by the FAA and the U.S. Department of Transportation Office of Civil Rights. In response to those investigations, Capitol submitted the flight attendant’s report and a written statement by the pilot. The FAA also received a passenger’s statement that the women causing the disturbance were indeed those who were taken off the plane by the police.
The FAA concluded that Ms. Brown had violated two FAA regulations concerning interference with a crew member and the drinking of alcoholic beverages not served by the airline. By letter of December 20, 1983, the FAA informed Ms. Brown that she was subject to a maximum penalty of $1,000 for each violation but offered to settle its claim for $500. Eventually, the FAA referred the violations to the United States Attorney for the Eastern District of New York to bring an action to assess and collect a civil penalty under 49 U.S.C. § 1473(b)(1) (1982). Ms. Brown did not defend the action, and a default judgment was entered against her in the amount of $2,000 on June 18, 1985. Meanwhile, on November 21, 1983, the Office of Civil Rights informed Ms. Brown that its investigation revealed that race was not a factor in her expulsion from the Capitol flight.
On August 10, 1983, Ms. Brown filed the first complaint against Capitol in state court alleging breach of contract, humiliation, statutory violations, false imprisonment, abandonment, and slander. Although there was diversity of citizenship between the parties and a sufficient amount in controversy, Capitol answered the complaint and allowed the time for removal to federal court to pass. See 28 U.S.C. § 1446 (1982).
Plaintiff’s second complaint in state court was served on Capitol on May 17, 1984. It alleged libel, slander, malicious prosecution, abuse of process, intentional infliction of emotional distress, and prima facie tort, and demanded $12 million in damages. The factual basis was again the events described above. Ms. Brown’s counsel, for reasons that are said to concern a statute of limitations problem, chose to bring this second case as a separate action with a view to consolidation with the prior suit rather than simply to amend the earlier complaint. As a result, removal to the federal court of the present action was permissible, a step that Capitol, represented by new counsel, immediately took. Thereafter, Capitol moved in the instant case for summary judgment and for sanctions under Rule 11.
Chief Judge Weinstein granted the motion for summary judgment but denied the motion for sanctions. Only Capitol has appealed.
We dispose first of a preliminary issue argued by the parties. Capitol bases its claim for sanctions, inter alia, on the failure of plaintiff’s counsel to make a “reasonable inquiry” into the factual and legal basis of the complaint before its filing as required by Rule 11. Plaintiff’s counsel in turn argues that this requirement of Rule 11 has no applicability to complaints filed in state court.
Rule 11, of course, does not purport to authorize sanctions for actions taken in state courts. It does, however, apply to proceedings following removal, Fed.R. Civ.P. 81(c), see Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1956), and sanctions may be imposed in appropriate circumstances for post-removal proceedings in the federal court. Capitol thus also argues that it is-entitled to sanctions for the actions it had to take to dispose of this matter after removal.
We may assume arguendo that plaintiff’s defense of her claim in federal court would justify sanctions under Rule 11, as not based on a reasonable belief that it was “well grounded in fact and [was] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law ...” Fed.R.Civ.P. 11. Even on that assumption, however, we do not believe that Capitol is entitled to sanctions under the unique circumstances of this case. The present action added only variations on legal themes to the action already pending in the state court, and, when consolidated with the latter, would not have required substantial additional resources to litigate. By failing to remove the first case and then removing the second, Capitol bifurcated this essentially unitary claim and effectively increased the costs of this litigation for itself, its adversary, and the courts.
In light of these circumstances and the purposes of Rule 11, it would be counterproductive to allow Capitol to recover sanctions from plaintiff for the largely superfluous proceedings in the federal court. One purpose of that Rule is to bring about economies in the use of judicial resources. Imposition of sanctions in these circumstances would reward one who caused diseconomies. Capitol had a legal right to remove the second case but no right to profit from that act under Rule 11.
In so ruling, we in no sense suggest that defendants who remove litigation from state to federal courts are not entitled to protection under Rule 11. We hold only that, in the very unique circumstances of this case, where removal effectively bifurcated what should have been a single action and thereby increased costs for everyone, the purposes of Rule 11 would not be served by imposition of sanctions on the plaintiff.
Affirmed.
. That Rule provides in pertinent part:
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record____ Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit____ The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading, motion, or other paper is signed in violation of this rule, the court ... shall impose upon the person who signed it, a represented party, or both, an appropriate sanction.
Fed.R.Civ.P. 11.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
sc_decisiontype
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
RYDER v. UNITED STATES
No. 94-431.
Argued April 18, 1995
Decided June 12, 1995
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Allen Lotz argued the cause and filed a brief for petitioner. With him on the briefs were G. Arthur Robbins and Alan B. Morrison.
Deputy Solicitor General Wallace argued the cause for the United States. On the brief were Solicitor General Days, Deputy Solicitor General Dreeben, Malcolm L. Stewart, and Paul M. Geier.
CHIEF Justice Rehnquist
delivered the opinion of the Court.
Petitioner, an enlisted member of the United States Coast Guard, challenges his conviction by a court-martial. His conviction was affirmed first by the Coast Guard Court of Military Review, and then by the United States Court of Military Appeals. The latter court agreed with petitioner that the two civilian judges who served on the Court of Military Review had not been appointed in accordance with the dictates of the Appointments Clause, U. S. Const., Art. II, § 2, cl. 2, but nonetheless held that the actions of those judges were valid de facto. We hold that the judges’ actions were not valid de facto.
Petitioner was convicted of several drug offenses, and was sentenced by a general court-martial to five years’ confinement (later reduced to three years), forfeiture of pay, reduction in grade, and a dishonorable discharge. He appealed to the Coast Guard Court of Military Review, which, except in one minor aspect, affirmed his conviction. 34 M. J. 1077 (1992). On request for rehearing, petitioner challenged the composition of that court as violative of the Appointments Clause of the Constitution because two of the judges on the three-judge panel were civilians appointed by the General Counsel of the Department of Transportation. The court granted rehearing and rejected this challenge. 34 M. J. 1259 (1992).
The Court of Military Appeals likewise affirmed petitioner’s conviction, 39 M. J. 454 (1994), although it agreed with petitioner that the appellate judges on the Coast Guard Court of Military Review had been appointed in violation of the Appointments Clause. The court relied for this conclusion on its previous decision in United States v. Carpenter, 37 M. J. 291 (1993), where it had decided that appellate military judges are inferior officers whose service requires appointment by a President, a court of law, or a head of a department. U. S. Const., Art. II, § 2, cl. 2. Despite finding a constitutional violation in the appointment of two judges on petitioner’s three-judge appellate panel, the Court of Military Appeals affirmed his conviction on the ground that the actions of these judges were valid defacto, citing Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). We granted certiorari. 513 U. S. 1071 (1995).
The defacto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U. S. 425, 440 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” 63A Am. Jur. 2d, Public Officers and Employees § 578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.
In Ball v. United States, 140 U. S. 118 (1891), a Circuit Judge assigned a District Judge from the Western District of Louisiana to sit in the Eastern District of Texas as a replacement for the resident judge who had fallen ill and who later died. The assigned judge continued to sit until the successor to the deceased judge was duly appointed. The assigned judge had sentenced Ball after the resident judge had died, and Ball made no objection at that time. Ball later moved in arrest of judgment challenging the sentence imposed upon him by the assigned judge after the death of the resident judge, but this Court held that the assigned judge “was judge de facto if not de jure, and his acts as such are not open to collateral attack.” Id., at 128-129.
Similarly, in McDowell v. United States, 159 U. S. 596 (1895), a Circuit Judge assigned a judge from the Eastern District of North Carolina to sit as a District Judge in the District of South Carolina until a vacancy in the latter district was filled. McDowell was indicted and convicted during the term in which the assigned judge served, but made no objection at the time of his indictment or trial. He later challenged the validity of his conviction because of a claimed error in the assigned judge’s designation. This Court decided that the assigned judge was a “judge de facto,” and that “his actions as such, so far as they affect third persons, are not open to question.” Id., at 601. The Court further observed that McDowell’s claim “presents a mere matter of statutory construction .... It involves no trespass upon the executive power of appointment.” Id., at 598. In a later case, Ex parte Ward, 173 U. S. 452 (1899), petitioner sought an original writ of habeas corpus to challenge the authority of the District Judge who had sentenced him on the grounds that the appointment of the judge during a Senate recess was improper. This Court held that “the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked.” Id., at 456.
In the case before us, petitioner challenged the composition of the Coast Guard Court of Military Review while his case was pending before that court on direct review. Unlike the defendants in Ball, McDowell, and Ward, petitioner raised his objection to the judges’ titles before those very judges and prior to their action on his case. And his claim is based on the Appointments Clause of Article II of the Constitution — a claim that there has been a “trespass upon the executive power of appointment,” McDowell, supra, at 598, rather than a misapplication of a statute providing for the assignment of already appointed judges to serve in other districts.
In Buckley v. Valeo, supra, at 125, we said “[t]he Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing ‘Officers of the United States’ but the drafters had a less frivolous purpose in mind.” The Clause is a bulwark against one branch aggrandizing its power at the expense of another branch, but it is more: it “preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power.” Freytag v. Commissioner, 501 U. S. 868, 878 (1991). In Glidden Co. v. Zdanok, 370 U. S. 530 (1962), we declined to invoke the de facto officer doctrine in order to avoid deciding a question arising under Article III of the Constitution, saying that the cases in which we had relied on that doctrine did not involve “basic constitutional protections designed in part for the benefit of litigants.” Id., at 536 (plurality opinion). We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred. Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.
The Court of Military Appeals relied, not without reason, on our decision in Buckley v. Valeo, 424 U. S. 1 (1976). There, plaintiffs challenged the appointment of the Federal Election Commission members on separation-of-powers grounds. The Court agreed with them and held that the appointment of four members of the Commission by Congress, rather than the President, violated the Appointments Clause. It nonetheless quite summarily held that the “past acts of the Commission are therefore accorded defacto validity.” Id., at 142. We cited as authority for this determination Connor v. Williams, 404 U. S. 549, 550-551 (1972), in which we held that legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment were not therefore void.
Neither Buckley nor Connor explicitly relied on the de facto officer doctrine, though the result reached in each case validated the past acts of public officials. But in Buckley, the constitutional challenge raised by the plaintiffs was decided in their favor, and the declaratory and injunctive relief they sought was awarded to them. And Connor, like other voting rights cases, see Allen v. State Bd. of Elections, 393 U. S. 544, 572 (1969); Cipriano v. City of Houma, 395 U. S. 701 (1969) (per curiam), did not involve a defect in a specific officer’s title, but rather a challenge to the composition of an entire legislative body. The Court assumed, arguendo, that an equal protection violation infected the District Court’s reapportionment plan, declined to invalidate the elections that had already occurred, and reserved judgment on the propriety of the prospective relief requested by petitioners pending completion of further District Court proceedings that could rectify any constitutional violation present in the court-ordered redistricting plan. Connor, supra, at 550-551. To the extent these civil cases may be thought to have implicitly applied a form of the de facto officer doctrine, we are not inclined to extend them beyond their facts.
The Government alternatively defends the decision of the Court of Military Appeals on the grounds that it was, for several reasons, proper for that court to give its decision in Carpenter — holding that the appointment of the civilian judges to the Coast Guard Court of Military Review violated the Appointments Clause — prospective application only. It first argues that the Court of Military Appeals exercised remedial discretion pursuant to Chevron Oil Co. v. Huson, 404 U. S. 97 (1971). But whatever the continuing validity of Chevron Oil after Harper v. Virginia Dept. of Taxation, 509 U. S. 86 (1993), and Reynoldsville Casket Co. v. Hyde, 514 U. S. 749 (1995), there is not the sort of grave disruption or inequity involved in awarding retrospective relief to this petitioner that would bring that doctrine into play. The parties agree that the defective appointments of the civilian judges affect only between 7 to 10 cases pending on direct review. As for the Government’s concern that a flood of habeas corpus petitions will ensue, precedent provides little basis for such fears. Ex parte Ward, 173 U. S. 452 (1899).
Nor does the Government persuade us that the inquiry into clearly established law as it pertains to qualified immunity counsels in favor of discretion to deny a remedy in this case. Qualified immunity specially protects public officials from the specter of damages liability for judgment calls made.in a legally uncertain environment. Harlow v. Fitzgerald, 457 U. S. 800, 806 (1982) (“[0]ur decisions consistently have held that government officials are entitled to some form of immunity from suits for damages” (emphasis added)). Providing relief to a claimant raising an Appointments Clause challenge does not subject public officials to personal damages that represent a “potentially disabling threa[t] of liability,” but only invalidates actions taken pursuant to defective title. The qualified immunity doctrine need not be extended to protect public officials from such attacks.
Similarly, the practice of denying criminal defendants an exclusionary remedy from Fourth Amendment violations when those errors occur despite the good faith of the Government actors, United States v. Leon, 468 U. S. 897 (1984), does not require the affirmance of petitioner’s conviction in this case. Finding the deterrent remedy of suppression not compelled by the Fourth Amendment, id., at 910, that case specifically relied on the “objectionable collateral consequence of [the] interference with the criminal justice system’s truth-finding function” in requiring a blanket exclusionary-remedy for all violations, id., at 907, and the relative ineffectiveness of such remedy to deter future Fourth Amendment violations in particular cases, id., at 918-921. No similar collateral consequence arises from rectifying an Appointments Clause violation, and correcting Appointments Clause violations in cases such as this one provides a suitable incentive to make such challenges.
The Government finally suggests that the Court of Military Appeals applied something akin to a harmless-error doctrine in affirming petitioner’s conviction, refusing to redress the violation because petitioner suffered no adverse consequences from the composition of the court. Brief for United States 38. The Government did not argue below that the error, assuming it occurred, was harmless, and there is no indication from the Court of Military Appeals’ summary disposition of this issue that it determined that no harm occurred in this case. We therefore need not address whether the alleged defects in the composition of petitioner’s appellate panel are susceptible to harmless-error review. The Government also argues, at least obliquely, that whatever defect there may have been in the proceedings before the Coast Guard Court of Military Review was in effect cured by the review available to petitioner in the Court of Military Appeals. Id., at 24, n. 16. Again, because of the hierarchical nature of sentence review in the system of military courts, we need not address whether this defect is susceptible to the cure envisioned by the Government.
Congress has established three tiers of military courts pursuant to its power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, § 8, cl. 14. Cases such as the present one are tried before a general court-martial consisting of a military judge and not less than five service members or by a military judge alone. Art. 16(1), UCMJ, 10 U. S. C. §816(1). Four Courts of Military Review (one each for the Army, Air Force, Coast Guard, and Navy-Marine Corps) hear appeals from courts-martial in cases where the approved sentence involves death, dismissal of a commissioned officer, punitive discharge, or confinement for one year or more. Art. 66, UCMJ, 10 U. S. C. § 866(b)(1). These courts, which sit in panels of three or more, exercise de novo review over the factual findings and legal conclusions of the court-martial. Art. 66(c), UCMJ, 10 U. S. C. § 866(c).
The court of last resort in the military justice system is the Court of Military Appeals. Five civilian judges appointed by the President and confirmed by the Senate constitute the court. Art. 142, UCMJ, 10 U. S. C. §942 (1988 ed., Supp. V). The court grants review in cases decided by the Courts of Military Review “upon petition of the accused and on good cause shown.” Art. 67, UCMJ, 10 U. S. C. § 867(a) (1988 ed., Supp. V). The scope of review is narrower than the review exercised by the Court of Military Review; so long as there is some competent evidence in the record to establish the elements of an offense beyond a reasonable doubt, the Court of Military Appeals will not reevaluate the facts. United States v. Wilson, 6 M. J. 214 (1979).
Examining the difference in function and authority between the Coast Guard Court of Military Review and the Court of Military Appeals, it is quite clear that the former had broader discretion to review claims of error, revise factual determinations, and revise sentences than did the latter. It simply cannot be said, therefore, that review by the properly constituted Court of Military Appeals gave petitioner all the possibility for relief that review by a properly constituted Coast Guard Court of Military Review would have given him. We therefore hold that the Court of Military Appeals erred in according defacto validity to the actions of the civilian judges of the Coast Guard Court of Military Review. Petitioner is entitled to a hearing before a properly appointed panel of that court. The judgment is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
The National Defense Authorization Act for Fiscal Year 1995, Pub. L. 103-337, § 924, 108 Stat. 2831, changed the nomenclature for the military-appellate courts. The previous “Court[s] of Military Review” were rechristened as the “Court[s] of Criminal Appeals” and the previous “United States Court of Military Appeals” was redesignated as the “United States Court of Appeals for the Armed Forces.” We adhere to the former names consistent with all previous proceedings in this ease.
The Appointments Clause reads in full:
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U. S. Const., Art. II, §2, cl. 2.
For similar reasons, we do not find instructive the Court’s disposition of petitioner’s challenge in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982). The Court declared the broad grant of jurisdiction to Article I bankruptcy courts unconstitutional and applied its decision prospectively only. Id., at 88. But in doing so, it affirmed the judgment of the District Court, which had dismissed petitioner’s bankruptcy action and afforded respondent the relief requested pursuant to its constitutional challenge. Id., at 57. So Northern Pipeline is not a case in which the Court invoked the de facto officer doctrine to deny relief to the party before it and therefore does not support the Government in this case.
The Government advances a virtual cornucopia of factors more or less peculiar to this case which it says validate the Court of Military Appeals’ exercise of discretion in this case and thus support affirmance. It points to the lack of any. substantial impact that the improper appointments had on petitioner’s appeal, to the lack of any constitutional right to appellate review, and to the deference owed the military and the public interest in avoiding disruption of that system. Brief for United States 22. At oral argument, it also contended that subsequent action taken by the Secretary of Transportation to cure the Appointments Clause error, the fact that petitioner’s underlying claims of error were meritless, and the fact that the civilian judges in this ease had previously served under proper appointments while on active duty were relevant criteria. Tr. of Oral Arg. 29-30, 33-34. The substance, if not the form, of several of these arguments is discussed and rejected in the text. Those that are not discussed are alternative grounds for affirmance which the Government did not raise below, see Answer to Supplement for Petition for Review in No. 68449 (Ct. Mil. App.), pp. 2-4, and which we decline to reach. Jenkins v. Anderson, 447 U. S. 231, 234-235, n. 1 (1980); FTC v. Grolier Inc., 462 U. S. 19, 23, n. 6 (1983).
The Court of Military Review “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact.” Art. 66(c), UCMJ, 10 U. S. C. § 866(c).
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_usc1
|
26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
SHERIDAN FLOURING MILLS, Inc., v. CASSIDY et al.
No. 1502.
Circuit Court of Appeals, Tenth Circuit.
Dec. 14, 1936.
George T. Evans, of Denver, Colo. (A. W. Lonabaugh, of Sheridan, Wyo., on the brief), for appellant.
Thomas G. Carney, Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., Sewall Key, Andrew D. Sharpe, and Frederic G. Rita, Sp. Assts. to Atty. Gen., and Carl L. Sackett, U. S. Atty., of Cheyenne, Wyo., on the brief), for appellees.
Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
Writ of certiorari denied 57 S. Ct. 491, 81 L. Ed.
PER CURIAM.
Sheridan Flouring Mills, Inc., brought this suit for an injunction, interlocutory and permanent, enjoining Cassidy, as collector of internal revenue, and Sackett, as United States Attorney, from requiring the plaintiff to file a return under title 3 of the Revenue Act of 1936, § 501, 49 Stat. 1734, 26 U.S.C.A. § 345, and from collecting from it any tax imposed by the provisions of such title.
The bill set up the requisite jurisdictional facts and further alleged: That the plaintiff obtained an interlocutory injunction in the District Court of the United States for the District of Wyoming in Sheridan Flouring Mills, Inc., Plaintiff, v. Thomas K. Cassidy, individually and as Collector of Internal Revenue of United States et al., No. 2463 In Equity, restraining the defendants therein from collecting from the plaintiff therein, processing taxes under the provisions of the Agricultural Adjustment Act, on condition that the plaintiff pay into the registry of such court, monthly, an amount equal to the taxes accruing against it under the provisions of the Agricultural Adjustment Act (as amended [7 U.S.C.A. § 601 et seq.]) that pursuant to such order, it paid into the registry of such court amounts aggregating $48,574.95; that thereafter the court entered its final decree in such cause directing the payment to the plaintiff therein of the amounts so deposited in the registry of the court and that plaintiff received from the clerk of such court $48,574.95; that the provisions of title 3 of the Revenue Act of 1936 (sections 501-506 [26 U.S.C.A. §§ 345-345e]) are unconstitutional and void; that the provisions of 26 U.S.C.A. § 322 and note (Revenue Act 1936, §. 322) and sections 1670 to 1675, inclusive, providing for the credit or refund of overpayments of taxes and of taxes illegally collected, and for suits at law to recover overpayments of taxes and taxes illegally collected are inapplicable to taxes sought to be imposed and collected under the provisions of title 3, and that plaintiff is without an adequate remedy at law in the premises.
From an order denying the temporary injunction and a decree dismissing the bill, plaintiff has appealed.
After lodging its appeal here, plaintiff filed its petition in this court for a temporary restraining order pending appeal.
The provisions of title 3 here material read:
•“Sec. 501. Tax on net income from certain sources
“(a) The following taxes shall be levied, collected, and paid for each taxable year (in addition to any other tax on net income), upon the net income of every person which arises from the sources specified below:
“(1) A tax equal to 80 per centum of that portion of the net income from the sale of articles with respect to which a Federal excise tax was imposed on such person but not paid which is attributable to shifting to others to any extent the burden of such Federal excise tax and which does not exceed such person’s net income for the entire taxable year from the sale of articles with respect to which such Federal excise tax was imposed.
“(2) A tax equal to 80 per centum of the net income from reimbursement received by such person from his vendors of amounts representing Federal excise-tax burdens included in prices paid by such person to such vendors, to the extent that such net income does not exceed the amount of such Federal excise-tax burden which such person in turn shifted to his vendees.
“(3) A tax equal to 80 per centum of the net income from refunds or credits to such person from the United States of Federal excise taxes erroneously or illegally collected with respect to any articles, to the extent that such net income does not exceed the amount of the burden of such Federal excise taxes with respect to such articles which such person shifted to others.” 26 U.S.C.A. § 345.
“Sec. 503. Administrative provisions
“(a) All provisions of law (including penalties) applicable with respect to taxes imposed by Title I of this Act [subchapters A, B and C of this chapter], shall, insofar as not inconsistent with this title [subchapter], be applicable with respect to the taxes imposed by this title [subchapter].” 26 U. S.C.A. § 345b.
The asserted right to relief in equity is predicated upon two principal propositions :
1. That title 3 is unconstitutional.
2. That the provisions of 26 U.S.C.A. § 322 and note (Title 1 of the Revenue Act of 1936, 49 Stat. 1731) relating to refunds or credits of overpayments of income taxes and to suits at law to recover same, and the provisions of 26 U.S.C.A. §§ 1670 to 1675, inclusive, relating to abatements, credits, and refunds of taxes and penalties erroneously, illegally, or wrongfully collected and to suits at law to recover same, have no application to taxes collected under title 3 or that their application thereto is so doubtful as to render its remedy to pay the; taxes and sue to recover them back at law uncertain.
The appeal from the denial of an interlocutory injunction and the petition for a stay here have been argued and submitted.
We pass the constitutional question and assume, but do not decide, in disposing of the matters now before us, that title 3 is unconstitutional.
26 U.S.C.A. § 1543, provides:
“No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”
It is settled that, notwithstanding the provisions of section 1543, supra, a court of equity may grant injunctive relief as against the assessment or collection of a federal tax, where extraordinary and exceptional circumstances render its provisions inapplicable. Dodge v. Brady, 240 U. S. 122, 126, 36 S.Ct. 277, 60 L.Ed. 560; Hill v. Wallace, 259 U.S. 44, 62, 42 S.Ct. 453, 66 L.Ed. 822; Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 510, 52 S.Ct. 260, 263, 76 L.Ed. 422. In the cáse last cited, the court said:
“And this court likewise recognizes the rule that, in cases where con dainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring ‘the case within some acknowledged.head of equity jurisprudence, a suit may be maintained to enjoin the collector.”
Counsel for plaintiff assert that section 322 is limited to an “overpayment of any tax,” that is to an exaction in excess of the amount due, and that the payment of a tax exacted under an unconstitutional statute is not an “overpayment,” since no tax is due.
They further assert that the intent and purpose of title 3 is to exact from those who either did not pay or paid and recovered back processing taxes under the Agricultural Adjustment Act, a tax equal-to 80 per cent, of the amount of such processing taxes that were shifted to others, on the ground of their unjust enrichment; that it is contrary to the intent and purpose of title 3 to refund the taxes imposed thereunder, even though their exaction is illegal; and, therefore, the provisions with respect to refunds and credits above referred to are inconsistent with title 3 and inapplicable to-the taxes sought to be imposed thereby.
They say this intent to exact the tax irrespective of its legality is further manifested by the provisions of title 7 of the Revenue Act of 1936, §§ 901-917, 49 Staff 1747 (7 U.S.C.A. §§ 623 note, 644 et seq.), limiting the right to refunds of taxes paid-under the Agricultural Adjustment Act.
We doubt that the word “overpayment” should be construed so narrowly as to make it applicable only to excessive payments. But if it should be so construed, then the general provisions of section 1670, supra, become applicable, if the tax is illegal.
Title 3 is no part of the Agricultural Adjustment Act. It is a distinct and separate title of the Revenue Act of 1936. It undertakes to levy a tax on net income of every person arising from certain specified sources, to wit, from the sale of articles, with respect to which a federal excise tax was imposed but not paid and shifted to others; or from reimbursement received by such person from his vendors of amounts representing federal excise taxes, which such person in turn shifted to his vendees ; or from refunds or credits of federal excise taxes -erroneously or illegally collected, the amount of which was shifted to others. And we find nothing in its provisions inconsistent with the refund of a tax imposed and collected thereunder if it is an unconstitutional exaction.
Section 503 (a) of title 3 (26 U.S.C. A. § 345b (a) is a common method of adopting, by cross-reference, the administrative provisions for one form of tax for the administration of another form of tax. See the provision in title 4, Revenue Act of 1932, § 627, 47 Stat. 269 (26 U.S.C.A. § 1420 et seq. note). The purpose of the phrase, “insofar as not inconsistent with this Title,” was to exclude from the reference administrative provisions covered by title 3, such as the time for filing returns, and for making payment of taxes and extensions of time for payment of taxes. See section 503 (b) and (c) of title 3 (26 U.S.C.A. § 345b (b, c). We think it was not intended to render inapplicable the provisions of section 322 and sections 1670 to 1675, inclusive.
Furthermore, if title 3 is unconstitutional, section 503 (a) falls as an integral part thereof leaving section 322 and sections 1670 to 1675, inclusive, unaffected. An unconstitutional enactment cannot limit or impair plaintiffs rights and remedies under the last-mentioned sections. It follows that if title 3 is unconstitutional a tax paid thereunder is either an overpayment within the provisions of section 322 or an illegal tax within the provisions of section 1670. In other words, if plaintiff pays the tax and sues to recover it, and title 3 is constitutional, it will not be entitled to recover back the tax, and if it is unconstitutional, it will be entitled to recover back the tax notwithstanding any possible limitation sought to be imposed by section 503 (a) of title 3.
Moreover, in the brief filed herein by Hon. Robert H. Jackson, Assistant Attorney General, and his associate counsel, section 503 (a), supra, is construed as rendering section 322 and sections 1670 to 1675, inclusive, applicable to the taxes imposed by title 3. We are of the opinion that if the construction of title 3 and particularly section 503 (a) thereof is doubtful, this administrative construction would bind the Commissioner of Internal Revenue in any future dealings with the plaintiff with respect to the taxes imposed by title 3. See American T. & T. Co. v. United States, 57 S.Ct. 170, 81 L.Ed. - (decided Dec. 7, 1936.)
The order denying an interlocutory injunction is affirmed.
The petition for a temporary injunction pending the appeal herein is denied.
A temporary injunction restraining the defendants from requiring plaintiff to file a return and from collecting any tax under the provisions of title 3 is granted for a period of fifteen days from this date and for such further time as this court may order, to enable plaintiff to petition the Supreme Court of the United States for certiorari and fqr a temporary injunction restraining defendants from requiring plaintiff to file a return and from collecting any tax under title 3, pending a disposition of the petition for certiorari.
The defendants will be enjoined from assessing or collecting any penalties against plaintiff for failing to file a return or to pay any tax under title 3 within the period the temporary injunction of this court is in force.
Section 822, supra, in part reads:
“(a) Authorization. Where there has been an overpayment of any tax imposed by this chapter, the amount of such overpayment shall be credited against any income, war-profits, or excess-profits tax or installment thereof then due from the taxpayer, and any balance shall be refunded immediately to the taxpayer.”
Section 1670, supra, in part reads:
“Authority to malee abatements, wed- . its, and refunds
“(a) To taxpayers — (1) Assessments and collections generally. Except as otherwise provided by law in the case of income, estate, and gift taxes, the Commissioner, subject to regulations prescribed by the Secretary, is authorized to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected.”
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MODERN PLATING CORPORATION, Respondent.
No. 15327.
United States Court of Appeals Seventh Circuit.
March 22, 1966.
Swygert, Circuit Judge, dissented.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul M. Thompson, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., for petitioner.
William B. Powell, Reno, Zahm, Fol-gate & Skolrood, Rockford, 111., for respondent.
Before DUFFY, SWYGERT and MAJOR, Circuit Judges.
MAJOR, Circuit Judge.
This case is here on petition of the National Labor Relations Board, pursuant to Sec. 10(e) of the National Labor Relations Act, as amended (Title 29 U.S. C.A. § 151 et seq.), for enforcement of its order issued against respondent on January 19, 1965. The Board’s decision and order are reported at 150 N.L.R.B. No. 115.
The alleged unfair labor practices occurred at Freeport, Illinois, where respondent is engaged in electroplating metals. No jurisdictional issue is presented.
The Board found, in agreement with the Trial Examiner, that the company violated Sec. 8(a) (1) of the Act by offering to grant a wage increase to employees to discourage their membership in the Union, by granting a wage increase to the employees for that purpose and by advising employees that they would lose rather than benefit from union representation.
Respondent resists enforcement of the order on the basis that there is no substantial evidence, when the record is considered as a whole, in support of the Board’s findings. With this contention we agree.
The incidents giving rise to the controversy took place around March 1, 1963. At that time respondent had 120 employees. There was no evidence of hostility on the part of respondent toward a union, and nothing to indicate other than an harmonious relationship between it and its employees.
In the last part of February 1963, a business representative of the Union (Lodge 1096, International Association of Mechanics, AFL-CIO) met with some of respondent’s employees, some fifteen or twenty of whom signed application cards and some began to wear union buttons in the plant.
On March 9, a group of employees consulted their supervisor about a wage increase. They were advised to send a delegation to the president’s office rather than to go en masse, and a group consisting of Frank Truman, Charles Eich-meier, Charles Nicklaus, James Thru-man, Robert Parker and Calvin Thompson went to the office of Richard Serva-tius, respondent’s president. The Board in its brief relates what purportedly took place at that time:
“Charles Nicklaus, acting as spokesman, asked Servatius whether it was true that his office was always open and that the men were free to come in and discuss matters with him. Serva-tius agreed that it was and Nicklaus said that the men had come in to ask for ‘a dime’ raise. Servatius then asked whether the men were speaking just for themselves or whether they were asking ‘for a union raise,’ that is, for the whole plant. Nicklaus said he referred to the whole plant.
“Servatius answered that he- could not afford it because he ‘had bills’ and was trying to get a new plant which would mean a lot of new bills coming up, but he pointed out that the men had ‘the best insurance in Freeport.’ The men stated that they, too, had bills, and Thompson remarked that it was necessary for him to hold two jobs to make ends meet. Thompson was wearing a Union button and Servatius asked him what it was and whether he was in the Union: Thompson said he was not. There was some further general talk and Servatius then asked, if a raise were considered, ‘would this union crap be dropped?’ Apparently, none of the employees answered this question, but Servatius then said that he would think it over and that the men could come back in 2 or 3 days and they would discuss it further.’’
This appraisement of what was said at the March 9 meeting is far more favorable to the Board than the record justifies, particularly that portion relied upon in support of its finding that the wage increases were promised and granted to discourage membership in the Union. Of the six employees who were present at the meeting, only three, James Thruman, Charles Nicklaus and Calvin Thompson, were witnesses. They all agreed that the purpose of the meeting was to make a request for an increase in wages. Only Thruman testified as to the “union crap” statement.. His testimony on this point was not corroborated by any other witness. On cross-examination he admitted that he heard nothing which connected the requested pay raise with the Union, as shown by the following:
“Q. During that conversation to which you have testified did you or anyone present make any reference to what wage rates would be in effect if the union got in?
“A. Not that conversation, I don't know. I didn’t no.
“Q. And you heard nothing or no one mention any wage rate that would be in effect if the union got in?
“A. If the union got in — no, I don’t recall that.”
Nicklaus who was spokesman for the group was not even certain that the word “union” was mentioned. He testified:
“Q. Did he [referring to Servatius] say anything about the union with the raise ?
“A. Well, we talked a little bit more about this raise part and he said that if he considered the raise would we consider — I wouldn’t quote, ‘union’, but would we consider dropping this mess, yes, would we consider dropping this mess that was going around there. I don’t know, he might have said union but I won’t swear to it.”
Thompson knew nothing about the “this union crap” statement; in fact, all that he remembered was that Servatius “looked at me and he asked if we was in the union, those who was wearing union buttons, and we said, no.”
Servatius admitted that after they asked for a raise he made inquiry as to the union buttons they were wearing and that:
“ * * * they requested a dime raise and they stated that this union talk would probably be stopped if they were granted this increase and I told them that we had been planning to give an increase of five cents an hour to anyone that hadn’t had a raise in the last 10 months.”
He further testified, without contradiction, that he told them that the company could not grant a 100 across-the-board increase but that he would give the request consideration and let them know in a day or two. He also stated that the company for three or four months had been considering a wage increase. On cross-examination he was asked:
“Q. * * * Do you recall saying to them, ‘Will all of this garbage talk be dropped’?
“A. After Nicklaus made that statement that the union talk would be stopped, I said, ‘You mean that union garbage will stop’, and he said, ‘Yes.’ ”
A day or two following the March 9 interview, Servatius stopped at Nicklaus’ work station and told him that there would be a 50 increase for all who had not had a raise within the preceding ten months. Two weeks later, fifty-two employees were given a 50 raise, one a 10^, and sixty-seven received no raise.
The record is silent as to the names of the fifty-three employees who received a wage increase. It is not even shown whether the six employees who attended the March 9 meeting received increases. There is no proof, not even a suggestion, that the wage increases were allowed on a discriminatory basis. All of the few employees who had signed union cards might have been included or all might have been excluded. Nothing is shown for certain other than that the increases were allowed in response to the request of the employees at the March 9 meeting and in conformity with a plan which respondent already had under consideration.
Even though we indulge in the dubious assumption that the Board’s findings as they relate to the March 9 meeting carry substantial support, it is not discernible how a reasonable inference can be drawn that wage increases were offered or allowed for the purpose of discouraging membership in the Union. Which could have been discouraged — the group to which increases were allowed or the larger group to which they were denied? It can hardly be the former because the increases were allowed by respondent at their request. If the increases had any effect on the latter group, it would have been an encouragement rather than a discouragement of their Union activities.
The Board cites three cases in support of its conclusion that the wage increases were allowed to persuade the employees to reject a union: N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435; Indiana Metal Products Corp. v. N. L. R. B., 202 F.2d 613, 620 (C.A. — 7), and N. L. R. B., v. Douglas and Lomason Co., 333 F.2d 510, 513-514 (C.A. — 8). None of these cases, with their widely different factual situations, is of any benefit to the Board here. For instance, in the Exchange Parts Company case the employees had not requested a meeting with their employer. There, the employer of its own volition, absent a request by its employees, took the initiative and announced increased benefits two weeks before a scheduled election.
The Board attempts to bolster its case with testimony concerning two widely separated and isolated statements made by supervisory employees and found to have been coercive. Employee Shenber-ger testified that Supervisor Stearns inquired of him, “How many guys had signed up for the union?” and that he replied, “A couple of them.” Further, “I believe, he said — he told us about the union- that was in there before and he said that we would be further from — or that we would be better off if we tear up the cards and forget about the union.”
On April 1, several of respondent’s employees and ex-employees held a party at the V.F.W. clubhouse in Rockford as an expression of regard for a fellow employee who had retired after about twenty-five years of service. Among those present were Alvin Leroy Loring, an invited guest, one of respondent’s foremen, and Ronald LeBaron, who had not been an employee of respondent for more than two years. LeBaron testified that sometime during the social affair, far removed from respondent’s premises, hé had a conversation with Loring in which the latter asked “if I was getting anything out of this organizing. I said no, just helping them and my local is all.” He testified that Loring stated, “I don’t know how the fellows can do any better or how the union can do these fellows any good. They are making as much money as anybody in town does right now with all of this overtime; if they get the union in they will probably only get a ten cent raise and- that will go for union dues anyhow,” and “He mentioned that if the union got in that all of the overtime would be closed off because they would employ a third shift.” On cross-examination, LeBaron testified:
“Q. Was there any statement made in that conversation, so far as you know, with respect to a rate of wages which would be in effect if the union got in?
“A. No, there was a discussion, but it was over the wages in Milwaukee. There was no discussion of wages here.”
In our judgment, the statements by Stearns and Loring, considered in connection with the surrounding circumstances, were no more than an expression of their views' or opinions-, permissible under Sec. 8(c) of the Act.
The Board’s petition for enforcement of its order is denied.
SWYGERT, Circuit Judge (dissenting).
I reluctantly dissent.
The trial examiner’s decision reads in part:
Based upon the testimony of Frank Thruman, Charles Nicklaus and Richard Servatius, and upon their demeanor while testifying, I find that the exchange occurred as the employees testified and that Servatius offered' to con-, sider granting a wage increase if the men would cease their Union activities.
Since we are ordinarily bound by the credibility resolutions of the examiner, I am of the view that there is substantial evidence in the record as a whole to support the Board’s finding that the respondent violated section 8(a) (1) of the National Labor Relations Act. In my opinion, this case falls squarely within the purview of N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), and Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007 (1944).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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.
Nickolas GUERRA, Sr., Appellant, v. UNITED STATES of America, Mary Guerra, Columbia Savings and Loan Association, United Bonding Insurance Company, Appellees.
No. 8697.
United States Court of Appeals Tenth Circuit.
Dec. 30, 1966.
Charles S. Vigil, Denver, Colo., for appellant.
John Burke, Denver, Colo., for appel-lees.
Before LEWIS, ALDRICH, and HICKEY, Circuit Judges.
By designation.
ALDRICH, Circuit Judge.
This is a civil suit by the United States to foreclose a substantial tax lien. The tax was assessed pursuant to I.R.C. § 4741 (1954), which imposes an excise tax of $100 per ounce, payable by the transferee, upon all transfers of marihuana to persons not registered under sections 4751 to 4753 of the Code. The defendant was admittedly not so registered, and the question before the court was whether he was, as alleged, a transferee of 74 pounds of marihuana. The district court ordered judgment for the government, and the defendant appeals.
The pertinent facts, as found by the court sitting without jury, United States v. Guerra, D.Colo., 1965, 237 E.Supp. 1, are as follows. On January 24, 1962, one Jesus Hernandez was promised $200 to drive a 1951 Oldsmobile, which he was told contained marihuana, from Juarez, Mexico, to Pueblo, Colorado. Hernandez was informed that he was to deliver the automobile to a man named Guerra, in Pueblo, and was given a telephone number which proved to be that of the defendant Guerra’s farm near Pueblo. Customs officials of the United States, having been told that the 1951 Oldsmobile would be carrying marihuana, picked up Hernandez’s trail in Juarez and followed him to his home in El Paso, Texas, where they observed him put Colorado license plates on the car. They then followed him into New Mexico, where he was arrested by state police near Alamogordo and was searched and charged with illegal possession of marihuana.
While Hernandez was in the custody of the state police the customs officers persuaded him to assist them by making the delivery as planned. Hernandez then set out from Alamogordo with customs officials riding with him in the car, and at times driving it, and with two government ears following. At one point on the journey Hernandez made a collect call to Guerra, which the latter accepted after Hernandez said that he had a “message from Mexico.” Hernandez told Guerra that he was “broke,” and Guerra wired $15 to enable him to pay traveling expenses.
When the caravan reached Walsen-burg, Colorado, two of the customs officials concealed themselves in the trunk of the Oldsmobile, maintaining radio contact with the two official cars that were following. Upon reaching Pueblo, Hernandez stopped at a gasoline station and' again called Guerra. Guerra came to the station and instructed Hernandez to follow him. He led Hernandez to his farm and told him to drive the car into the garage. Guerra then came into the garage, asked where the “load” was, and was told that it was inside the door panels and under the hood. Hernandez and Guerra together removed two or three paper bags, which were later shown to contain about one pound of marihuana each. Guerra said that the marihuana looked “O.K.” and went into his house. At this point the customs officers emerged from the trunk of the Oldsmobile and hid behind the car. Guerra reappeared with a jar, later shown to have contained marihuana, and said, “This is the type of stuff I have.” At this point the officers arrested him and finished emptying the Oldsmobile. There were, in all, seventy-five bags which the court found contained seventy-four pounds of marihuana.
Appellant’s first contention is that he never became a transferee of the marihuana and consequently never became liable for the tax. He claims that he “had no power to direct the disposition of or to exercise actual dominion over the marihuana simply because the alleged transfer had not yet progressed to that point when he was arrested.” We cannot agree. Appellant had knowingly guided the marihuana into his own garage: the transfer had been completed. It is true that he was prevented from putting the marihuana to the purpose for which he had ordered it, but the tax is imposed on the receipt of marihuana, not on the use to which it is subsequently put. The fact that possession following receipt was short-lived, and that the officers were prepared to seize the goods does not mean that the defendant did not receive them.
Nor can we accept appellant’s claim that the role played by government officials makes this transaction something other than a transfer. The officers neither devised nor directed the transportation scheme. In substance, what they did was not to interrupt it. They did no more than assist the carrying out of a mission that had been planned before they became aware of it. Defendant, meanwhile, performed every act necessary to bring the marihuana into his possession. On the court’s findings, he had known it was coming, had wired $15 to facilitate its transportation, had led the automobile that he knew contained it onto his own property with the intention of keeping it, and had taken some into his hands, and given instructions as to the rest. There is no basis for a claim that defendant was not a willing transferee. See United States v. Oropeza, 7 Cir., 1960, 275 F.2d 558. Equally, he was not entrapped, where there is no showing that, absent government participation, the events would not have occurred. The government agent did not even initiate the transaction by offering the opportunity. Cf. Osborn v. United States, 385 U.S. -, 87 S.Ct. 429, 17 L.Ed.2d - (Dec. 12, 1966); Sandoval v. United States, 10 Cir., 1960, 285 F.2d 605; Haynes v. United States, 5 Cir., 1963, 319 F.2d 620, cert. den. 375 U.S. 885, 84 S.Ct. 161, 11 L.Ed.2d 115.
Finally, defendant raises a series of contentions centering upon the claim that the tax imposed by section 4741 is penal, rather than civil, and consequently that he was entitled to the presumptions and defenses accorded a criminal defendant. The exact thrust of this contention is difficult to determine, since defendant has not favored us with any explicit statement of how he was prejudiced by the court’s treatment of this as a civil matter. The contention is erroneous at its core, however, since the Supreme Court has explicitly held that the statute may be treated as civil even though its primary purpose is not to provide governmental revenues, but to regulate traffic in marihuana. United States v. Sanchez, 1950, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47. Consequently, the government was not required to prove every • element of its case beyond a reasonable doubt.
Specifically, we find the court well warranted in concluding that there was a prearranged plan to have Hernandez deliver marihuana to Guerra and that Guerra knowingly accepted delivery of 74 pounds of it. No more was required.
Affirmed.
We might add that the defendant did not request the court to rule that the government had such a burden. For all we know, the court may, in fact, have felt that firmly convinced.
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_respond1_1_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
STURM v. CHICAGO & N. W. RY. CO.
No. 13337.
Circuit Court of Appeals, Eighth Circuit.
Sept. 30, 1946.
Ernest A. Michel, of Minneapolis, Minn. {Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellant.
Warren Newcome, of St. Paul, Minn. (Alfred E. Rietz, of St. Paul, Minn., and Nye F. Morehouse, of Chicago, 111., on the brief), for appellee.
Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.
PER CURIAM.
Gustav C. Sturm (who will be referred to as plaintiff), while employed by the defendant Railway Company (appellee) as a brakeman in Chicago, Illinois, fell from the top of a box car and was injured.. He brought this action under the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-■60, to recover damages for his injuries. In his complaint the plaintiff charged that the Railway Company was negligent in failing to equip the car from which he fell with an efficient hand brake as required by the Federal Safety Appliance Act of 1910, § 2, 45 U.S.C.A. § 11, and that his injuries were the proximate result of such negligence. The Railway Company denied that the brake was inefficient and that its alleged failure to operate properly caused the plaintiff’s injuries. The issues were tried to a jury. The evidence of the plaintiff tended to prove that the brake was inefficient and inoperative and that his injuries were due to its failure to operate. The evidence of the defendant tended to show that the brake was efficient and that the plaintiff’s injuries could not have resulted from a defect in the brake. Neither party moved for a directed verdict at the close of the evidence. The issues were submitted to the jury. There were no requests for instructions. No exceptions were taken to the trial court’s charge. The jury returned a verdict for the defendant, upon which a judgment was entered. The plaintiff has appealed from the judgment.
It is obvious that this appeal presents no question which is reviewable by this court. No ruling of the trial court is challenged. The question of the sufficiency of the evidence to support the verdict is not subject to review, since that question was not presented to the trial court by a motion for a directed verdict or any other equivalent action. Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175, 176, and cases cited. This court is without power to retry this case. It cannot concern itself with the credibility of witnesses or the weight of evidence; Booth v. Gilbert, 8 Cir., 79 F.2d 790, 792, 793; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 444; Dierks Lumber & Coal Co. v. Mabry, 8 Cir., 128 F.2d 1005, 1007; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520. The verdict of the jury, whether right or wrong, was completely determinative of the issues of fact tried and submitted.
The judgment 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 "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
|
sc_petitioner
|
027
|
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.
UNITED STATES v. RAINES et al.
No. 64.
Argued January 12, 1960.
Decided February 29, 1960.
Attorney General Rogers argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General White, John F. Davis, Harold H. Greene and David L. Norman.
Charles J. Bloch argued the cause for appellees. With him on the brief was Ellsworth Hall, Jr.
Mr. Justice Brennan
delivered the opinion of the Court.
The United States brought this action in the United States District Court for the Middle District of Georgia against the members of the Board of Registrars and certain Deputy Registrars of Terrell County, Georgia. Its complaint charged that the defendants had through various devices, in the administration of their offices, discriminated on racial grounds against Negroes who desired to register to vote in elections conducted in the State. The complaint sought an injunction against the continuation of these discriminatory practices, and other relief.
The action was founded upon R. S. § 2004, as amended by § 131 of the Civil Rights Act of 1957, 71 Stat. 637, 42 U. S. C. § 1971. Subsections (a) and (c), which are directly involved, provide:
“(a) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude ; any constitution, law, custom, usage, or regulation of any Státe or Territory, or by or under its authority, to the contrary notwithstanding.
“(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) . . . , the Attorney Gen-, eral may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. . . .”
On the defendants’ motion, the District Court dismissed the complaint, holding that subsection (c) was unconstitutional. 172 F. Supp. 552. The court held that the statutory language quoted allowed the United States to enjoin purely private action designed to deprive citizens of the right to vote on account of their race or color. Although the complaint in question involved only official action, the court ruled that since, in its opinion, the statute, on its face was susceptible of application beyond the scope permissible under the Fifteenth Amendment, it was to be considered unconstitutional in all its applications. The Government appealed directly to this Court and we postponed the question of jurisdiction to the hearing of the case on the merits. 360 U. S. 926. Under the terms of 28 U. S. C. § 1252, the case is properly here on appeal since the basis of the decision below in fact was that the Act of Congress was unconstitutional, no matter what the contentions of the parties might be as to what its proper basis should have been.
The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them. This was made patent in the first case here exercising that power — “the gravest and most delicate duty that this Court is called on to perform.” Marbury v. Madison, 1 Cranch 137, 177-180. This Court, as is the case with all federal courts, “has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U. S. 396; Heald v. District of Columbia, 259 U. S. 114, 123; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217; Collins v. Texas, 223 U. S. 288, 295-296; New York ex rel. Hatch v. Reardon, 204 U. S. 152, 160-161. Cf. Voeller v. Neilston Warehouse Co., 311 U. S. 531, 537; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 513; Virginian R. Co. v. System Federation, 300 U. S. 515, 558; Blackmer v. United States, 284 U. S. 421, 442; Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50, 54-55; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576; Tyler v. Judges of the Court of Registration, 179 U. S. 405; Ashwander v. TVA, 297 U. S. 288, 347-348 (concurring opinion). In Barrows v. Jackson, 346 U. S. 249, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it “would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” Id., at 256. The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined. The Court further pointed to the fact that a limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were in fact concretely presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.
The District Court relied on, and appellees urge here, certain cases which are said to be inconsistent with this rule and with its closely related corollary that a litigant may only assert his own constitutional rights or immunities. In many of their applications, these are not principles ordained by the Constitution, but constitute rather “rule[s] of practice,” Barrows v. Jackson, supra, at 257, albeit weighty ones; hence some exceptions to them where there are weighty countervailing policies have been and are recognized. For example, where, as a result of the very litigation in question, the constitutional rights of one not a party would be impaired, and where he. has no effective way to preserve them himself, the Court may consider those rights as before it. N. A. A. C. P. v. Alabama, 357 U. S. 449, 459-460; Barrows v. Jackson, supra. This Court has indicated that where the application of these rules would itself have an inhibitory effect on freedom of speech, they may not be applied. See Smith v. California, 361 U. S. 147, 151; Thornhill v. Alabama, 310 U. S. 88, 97-98. Perhaps cases can be put where their application to a criminal statute would necessitate such a revision of its text as to create a situation in which the statute no longer gave an intelligible warning of the con.duct it prohibited. See United States v. Reese, 92 U. S. 214, 219-220; cf. Winters v. New York, 333 U. S. 507, 518-520. And the rules’ rationale may disappear where the statute in question' has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. See Butts v. Merchants & Miners Transportation Co., 230 U. S. 126. The same situation is presented when a state statute comes conclusively pronounced by a state court as having an otherwise valid provision or application inextricably tied up with an invalid one, see Dorchy v. Kansas, 264 U. S. 286, 290; or possibly in that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application. Cf. The TradeMark Cases, 100 U. S. 82, 97-98; The Employers’ Liability Cases, 207 U. S. 463, 501. But we see none of the countervailing considerations suggested by these examples, or any other countervailing consideration, as warranting the District Court’s action here in considering the constitutionality of the Act in applications not before it. This case is rather the most typical one for application of the rules we have discussed.
There are, to be sure, cases where this Court has not applied with perfect consistency these rules for avoiding unnecessary constitutional determinations, and we do not mean' to say that every case we have cited for various exceptions to their application was considered to turn on the exception stated, or is perfectly justified by it. The District Court relied primarily on United States v. Reese, supra. As we have indicated, that decision may have drawn support from the assumption that if the Court had not passed on the statute’s validity in toto it would have left standing a criminal statute incapable of giving fair warning of its prohibitions. But to the extent Reese did depend oh an approach inconsistent with what we think the better one and the one established by the weightiest of the subsequent cases, we cannot follow it here.
Accordingly, if the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality. And as to the application of the statute called for by the complaint, whatever precisely may be the reach of the Fifteenth Amendment, it is enough to say that the conduct charged — discrimination by state officials, within the course of their official duties, against the voting rights of United States citizens, on grounds of race or color — is certainly, as “state action” and the clearest form of it, subject to the ban of that Amendment, and that legislation designed to deal with such discrimination is “appropriate legislation” under it. It makes no difference that the discrimination in question, if state action, is also violative of state law. Snowden v. Hughes, 321 U. S. 1, 11. The appellees contend that since Congress has provided in subsection (d) of the statutory provision in question here that the District Courts shall exercise their jurisdiction “without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided by law,” and since such remedies were not exhausted here, appellees’ action cannot be ascribed to the State. The argument is that the ultimate voice of the State has not spoken, since higher echelons of authority in the State might revise the appellees’ action. It is, however, established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments. See Cooper v. Aaron, 358 U. S. 1, 16-19. We think this Court has already made it clear that it follows from this that Congress has the power to provide for the correction of the constitutional violations of every such official without regard to the presence of other authority in the State that might possibly revise their actions. The appellees can draw no support from the expressions in Barney v. City of New York, 193 U. S. 430, on which they so much rely. The authority of those expressions has been “so restricted by our later decisions,” see Snowden v. Hughes, supra, at 13, that Barney must be regarded as haying “been worn away by the erosion of time,” Tigner v. Texas, 310 U. S. 141, 147, and of contrary authority. See Raymond v. Chicago Union Traction Co., 207 U. S. 20, 37; Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 283-289, 294; Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S. 239, 247; Snowden v. Hughes, supra; Screws v. United States, 325 U. S. 91, 107-113, 116. Cf. United States v. Classic, 313 U. S. 299, 326. It was said of Barney’s doctrine in Home Tel. & Tel. Co. v. Los Angeles, supra, at 284, by Mr. Chief Justice White: “[its] enforcement . . . would . . . render impossible the performance of the duty with which the Federal courts are charged under the Constitution.” The District Court seems to us to have recognized that the complaint clearly charged a violation of the Fifteenth Amendment and of the statute, and that the statute, if applicable only to this class of cases, would unquestionably be valid legislation under that Amendment. We think that under the rules we have stated, that court should then have gone no further and should have upheld the Act as' applied in the present action, and that its dismissal of the complaint was error.
The appellees urge alternative grounds on which they seek to support the judgment of the District Court dismissing the complaint. We do not believe these grounds are well taken. It is urged that it is beyond the power of Congress to authorize the United States to bring this action in support of private constitutional rights. But there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and .we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief. See United Steelworkers v. United States, 361 U. S. 39, 43, and cases cited. Appellees raise questions as to the scope of the equitable discretion reserved to the courts in suits under § 2004. Cf. id., at 41-42. We need not define the scope of the discretion of a District Court in proceedings of this nature, because, exercising a traditional equity discretion, the court below declined to dismiss the complaint on that ground, and we do not discern any basis in the present posture of the case for any contention that it has abused its discretion. Questions as to the relief sought by the United States are posed, but remedial issues are hardly properly presented at this stage in the litigation.
The parties. have engaged in much discussion concerning the ultimate scope in which Congress intended this legislation to apply, and concerning its constitutionality under the Fifteenth Amendment .in these various applications. We shall not compound the error we have found in the District Court’s judgment by intimating any views on either matter.
Reversed.
Subsection (a) was originally § 1 of the Enforcement Act of May 31, 1870, c. 114, 16 Stat. 140, and was brought forward as R. S. § 2004. The remaining subsections were added by the 1957 legislation. Subsection (b) forbids various forms of intimidation and coercion in respect of voting for federal elective officers, and the enforcement provisions of subsection (c) likewise apply to it; but subsection (b) is not involved in this litigation.
Holmes, J., in Blodgett v. Holden, 275 U. S. 142, 148.
Cf. Mountain Timber Co. v. Washington, 243 U. S. 219, 234. But a State’s determination of the class of persons who can invoke the protection of provisions of the Federal Constitution has been held not conclusive here. Tileston v. Ullman, 318 U. S. 44.
Certainly it cannot be said that the sort of action proceeded against here, and validly reachable under the Constitution (see pp. 25-26, infra), was so small and inessential a part of the evil Congress was concerned about in the statute that these defendants should be permitted to make an attack on the statute generally. Subsection (d) and innumerable items in the legislative history show Congress’ particular concern with the sort of action charged here. See, e. g., Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, on Proposals to Secure, Protect, and Strengthen Civil Rights of Persons under the Constitution and Laws of the United States, 85th Cong., 1st Sess., pp. 4-7, 36-37, 77, 81, 189, 205, 293, 300; Hearings before Subcommittee No. 5 of the Committee on the Judiciary, House of Representatives, on Miscellaneous Bills Regarding the Civil Rights of Persons within the Jurisdiction of the United States, 85th Cong., 1st Sess., pp. 656, 1220; 103 Cong. Rec. 8705, 12149, 12898, 13126, 13732.
Nor can there be any serious contention that the statute, as a civil enactment, would fail to give adequate notice of the conduct it validly proscribed, even if certain applications of it were to be deemed unconstitutional. Criminal proceedings under the statute must depend on violation of a restraining order embracing the party charged.
Cf., e. g., Illinois Central R. Co. v. McKendree, 203 U. S. 514; United States v. Ju Toy, 198 U. S. 253, 262-263.
Barney was a property owner’s action to enjoin state officials from construction of a rapid transit tunnel in a particular place. The suit was brought directly under the Fourteenth Amendment in federal court, and it was averred that the proposed action of the state officials was not authorized under state law. It does not appear that the complainant alleged that higher state administrative echelons were indisposed to halt the unauthorized actions or that the State offered no remedy at all to a property owner threatened with interference with his property by state officials acting without authority. There was not presented any specific federal statute expressly authorizing federal judicial intervention with matters in this posture.
Many of these contentions are raised by what appellees style a “cross-appeal.” Notice of cross-appeal was filed in the District Court, but the cross-appeal was not docketed here. However, since the judgment of the District Court awarded appellees all the relief they requested (despite rejecting most of their contentions, except the central one), no cross-appeal was necessary to bring these contentions before us if they can be considered otherwise. They would simply be alternative grounds on which the judgment below could be supported. In view of the broad nature of § 1252, which seems to indicate a desire of Congress that the whole case come up (contrast 18 U. S. C. § 3731, United States v. Borden Co., 308 U. S. 188, 193), we have the power to pass on these other questions, and since the District Court expressed its views on most of them, we also deem it appropriate to do so.
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_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.
Sol DIAMOND, Appellant, v. The CENTRAL RAILROAD COMPANY OF NEW JERSEY.
No. 11409.
United States Court of Appeals, Third Circuit.
Argued Jan. 4, 1955.
Decided Jan. 12, 1955.
Milford J. Meyer, Philadelphia, Pa. (Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., on the brief), for appellant.
John R. McConnell, Philadelphia, Pa. (Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief), for appellee.
Before MARIS, GOODRICH and STA-LEY, Circuit Judges.
PER CURIAM.
The sole question raised on this appeal by the plaintiff from what he regards as an inadequate judgment in a suit for personal injuries under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., is whether the trial judge erred in submitting the question of contributory negligence to the jury. The plaintiff concedes that the trial judge’s instructions on this question were proper if there was evidence from which the jury might find the plaintiff guilty of contributory negligence over and above his assumption of the risk of his employment. Our examination of the record satisfies us that there was such evidence. We accordingly find no error.
The judgment of the district court will be affirmed, each party to bear its own costs in this court.
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_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.
GENERAL ADJUSTMENT BUREAU, INC., a New York corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 14189.
United States Court of Appeals Seventh Circuit.
Dec. 31, 1963.
Harold Stickler, Chicago, Ill., Philip C. Lederer, Chicago, Ill., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Harold B. Shore, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Melvin Pollack, Atty., N. L. R. B., Washington, D. C., for respondent.
Isaac N. Groner, Washington, D. C., for Insurance Workers International Union, AFL-CIO, amicus curiae.
Before SCHNACKENBERG, KILEY and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
General Adjustment Bureau, Inc., a New York corporation, sometimes referred to herein as “the company”, petitioner, asks us to review and set aside an order of the National Labor Relations Board that the company was guilty of unfair labor practices, under §§ 8(a) (1), 8(a) (3) and 8(a) (4) of the National Labor Relations Act as amended (U. S.C. Title 29, Section 158(a) (1), (3) and (4)). By its order, the Board required the company to reinstate Larry Lefkowitz with full back pay from the date of termination of his employment, to cease and desist from conduct violating the statute and to post a notice that it intends to comply with said order.
In its answer to the petition, the Board has asked for enforcement of its order, which is reported at 142 NLRB No. 85. By leave of court, Insurance Workers International Union, AFL-CIO, has filed a brief as amicus curiae, in which it informs us that it was the charging party before the Board and participated in the proceedings there. The union asserts that we should compel enforcement of the Board’s order.
Lefkowitz entered the employ of the company in April 1958. He was assigned to casualty claim adjustments in the 12th region, which was the metropolitan area of Pittsburgh, Pennsylvania. His superior was Walter H. Mason, a regional casualty supervisor, who was called as a witness for the Board. Lefkowitz had above average ability as an adjuster. Regional manager C. A. Eblin, also a Board witness, on one occasion recommended Lefkowitz for a special assignment in the New York office which involved about 1000 claimants,
However, there was evidence that Mason, as Lefkowitz’ superior, instructor and work leader, was constantly critical of Lefkowitz for failing to keep in touch with his office on a daily basis and especially for failing to make prompt initial contact with the claimants, insureds and insurance companies, or agents on new files assigned to him. These delays engendered numerous complaints from claimants, policyholders and company loss representatives and agents. When complaints were made to Lefkowitz, he refused to concede that criticism was at any time warranted. This attitude on his part produced further and more serious complaints, to a point where two major insurance companies refused to permit their cases to be handled by Lefko-witz. As a result, a substantial part of the work which normally would be assigned to him had to be parceled out among other adjusters.
In February 1961, Lefkowitz and another adjuster, Earl Bradley, began an organizing drive in behalf of the Insurance Workers of America, AFL-CIO. The union filed a representation petition with the Board in March and both Lef-kowitz and Bradley testified in its behalf at a Board hearing on April 25.
On May 19, 1961, Mason, in a report prepared at Eblin’s request, recommended Lefkowitz’ transfer to a 1-man office or to an office in metropolitan New York.
On September 22, Mason, in a second report prepared at Eblin’s request, again recommended Lefkowitz’ transfer to a 1-man office. In this report, Mason said Lefkowitz had “demonstrated exceptional ability in the investigation and settlement of difficult claims”; that there had been no major complaints in the last few months about his work; and that his production record was “in keeping with the number of assignments received and the production record of the other men”.
The union lost a representation election covering the adjusters, in October, 1961.
Lefkowitz became interested in running as a candidate for the legislature of Pennsylvania. In the summer of 1961, he mentioned this to branch manager John L. McCoy. According to Lefkowitz, letters were circulated by the “Lefkowitz for Legislature Committeee” on behalf of his candidacy, soliciting funds and working support as early as October and November 1961, and Eblin tacked one of the solicitation letters on the company bulletin board. Lefkowitz told no one except possibly his wife of any reservation in his mind against running. He was required to file his primary petition on or about March 12, 1962.
On November 17, 1961, Lefkowitz telephoned Mr. Whitelaw in the New York office, whom he considered in charge of his situation, and, according to Lefko-witz, he told Whitelaw that he had no alternative but to resign and protect his employment record. Whitelaw asked if Lefkowitz’ files were in bad condition and Lefkowitz replied that he supposed they were by “ordinary” standards but not if the conditions under which he had been working were taken into consideration. Whitelaw asked Lefkowitz if he thought that he could do better work some place other than Pittsburgh but Lefkowitz preferred to remain in the area. Lefkowitz insisted that he told Whitelaw three times that his resignation was to take effect on March 1, 1962 and that, although Whitelaw tried to get him to move up the resignation date, he refused and Whitelaw thereupon accepted his resignation, but perhaps suggested that he put it in writing.
Asked whether Whitelaw then said anything to him to encourage him to resign, Lefkowitz testified:
“The only thing close he could have said would be to the effect that, ‘Well, possibly it is best,’ or some such language, but nothing, I don’t think, any further than that.”
On November 20, 1961, Lefkowitz appeared at the office of Eblin, with a draft of resignation addressed to Whitelaw. At his request Eblin caused his secretary to type the resignation letter. The letter was then mailed to Whitelaw in New York. It was addressed to White-law, dated November 20,1961, and reads:
“Dear Mr. Whitelaw:
“In keeping with our telephone conversation of November 17, 1961, I hereby tender by resignation, to be effective March 1, 1962.
“In the event of any Bureau exigency, I would willingly extend this for a period not to exceed thirty days (March 31, 1962).
“Most respectfully,
“Larry M. Lefkowitz”
According to Eblin, a Board witness, Lefkowitz, when he brought the draft of this letter in'for typing, stated he could not accept any new assignments but would be willing to spend the time until March 1, 1962, or, if they wanted him until the end of March, bringing his files up-to-date or closing them if possible.
Upon reading the letter on November 22, 1961, Whitelaw noticed that it purported to be a resignation to take effect on March 1, 1962, which was 3 months and 10 days in the future. This came as a surprise to him. Thereupon Whitelaw telephoned to Lefkowitz in Pittsburgh and had his secretary make shorthand notes of “his end of the conversation”, which were introduced in evidence and which the examiner found basically accurate. Whitelaw’s remarks related to whether this resignation date had been mentioned in the previous telephone conversation of November 17, 1961; the reason for a resignation date over 3 months in the future and Lefkowitz’ political plans; and the question as to whether a resignation taking effect so far in the future would be acceptable to the company. Lefkowitz stated that Whitelaw opened the conversation by asking whether a March 1st resignation date had been discussed in the previous conversation, and that he, Lefkowitz, replied that he had mentioned it three times. This was denied by Whitelaw.
In his direct testimony, Lefkowitz said he arrived at the March 1st date because it provided a three-month period, in which he thought that he could find suitable employment. However, on cross-examination he admitted that March 1st had been mentioned and that there was some conversation about formal procedure that he had to go through in running for the legislature, but not until March. In the phone call of November 22, 1961, Whitelaw asked Lefkowitz if in Pennsylvania he had “to get a petition”.
On November 24th Whitelaw called Lefkowitz and they discussed what he had to do about the formal procedure for ' entering the primary, required in the State of Pennsylvania. In this conversation Lefkowitz said that he could not -become-a'candidate before around March 12th and he would work off all of the files to the best of his ability by March 1st. He added:
“ * * * I am not the type of man that merely because I am leaving March 1, that I would leave these files go in any manner, shape or form. I told him that I would work on the files and close as many as possible so that I wouldn’t hand them over to another adjuster and another adjuster wouldn’t have to inherit them.”
To Whitelaw, Lefkowitz denied that he picked March 1 as the date for his resignation, so he could campaign for the legislature.
On November 27, 1961, Earl F. Leach, general manager, endorsed on the bottom of the Lefkowitz letter the words “Resignation Accepted” followed by his name and title. Thereupon, pursuant to his instructions, Leach’s assistant, Kenneth G. Critton, met Lefkowitz on November 28, gave him a copy of the signed acceptance of Leach and relieved him of further duties. The examiner found that Critton agreed that Lefkowitz’ pay would continue to March 1, 1962 but that he was to do no more work. He did no work for the company after November 28.
The record shows that approximately eleven days after the date he specified in his written resignation from the company, he actually did enter the Democratic primary for the legislature of Pennsylvania and waged a campaign. The primary election date was May 15, 1962. The charge made by the union to the Board on Lefkowitz’ behalf, to the effect that his resignation in November, 1961, was not a voluntary resignation, was not filed until May 14, 1962, the day before the primary vote.
On cross-examination, Lefkowitz admitted that since November 1961 on many occasions he told persons that he had resigned voluntarily to enter politics. On redirect examination by Board counsel, he sought to justify the statements to prospective employers by stating, “I was job hunting at the time and you don’t tell a prospective employer, I am afraid, that you are involved in union difficulty.”
1. There is no difficulty in determining that Lefkowitz did resign. The decisive question before us is whether the resignation of Lefkowitz was voluntary or coerced. The burden of pointing to proof that the resignation was in effect a “constructive discharge” rests upon the Board, which has raised that issue. We are not barred from setting aside the Board’s decision, if we cannot conscientiously find that 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 v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456.
2. In our necessarily curtailed recital of the facts leading up to the resignation, the essential elements thereof appear. For some period Lefkowitz’ services were unsatisfactory, a fact which both he and his employer repeatedly recognized. The record is devoid of any suggestion by the company that he would be discharged or that he should resign, although some of the staff questioned his value to the company. Instead efforts were made to assist him, even to the extent of offering to transfer him to another district, which he rejected. While in some manner he had been engaged in an activity directed toward unionization of the company’s employees, there is no evidence that he had ever been criticized or disciplined by the company in regard thereto or that this fact was even mentioned or considered. Our condensation of the evidence includes a reference to the company’s recognition of his above average capabilities as an adjuster and its recommendation of him for a special assignment in the New York office. However, his shortcomings in the matters which we have related engendered complaints from insurance claimants, policy holders, and others with whom he came in contact in his work. Lefkowitz refused to admit the justice of any of these criticisms, resulting, among other things, in the refusal of two insurance companies to permit their cases to be handled by Lefkowitz as an adjuster. The reassignment of this work to other adjusters necessarily disrupted the company’s normal operations.
In the summer of 1981, the company attempted to remedy the situation when regional casualty manager Mason recommended that Lefkowitz transfer to a 1-man office or to an office in metropolitan New York. This recommendation was repeated in September when Mason said in substance that Lefkowitz’ work had improved, and suggested that he be considered for transfer to an office in need of a single, experienced casualty adjuster where he would have the challenge of developing casualty business. However, at this time Lefkowitz considered becoming a candidate for election to membership in the Pennsylvania legislature and a committee in his behalf was soliciting funds for that purpose. The target date for filing his primary petition would be about March 12,1962. Against this background he called Whitelaw in the New York office on November 17, 1961 and told him he had no alternative but to resign and “protect my employment record”. He testified that he told Whitelaw three times that his resignation would take effect on March 1, 1962. On cross-examination, he was asked whether Whitelaw said anything to encourage him to resign and he answered that “the only thing close he could have said would be to the effect that, ‘Well, possibly it is best’, or some such language, but nothing, I don’t think, further than that.” The resignation followed on November 20, 1961. When Whitelaw called on November 24, Lefkowitz discussed with him the procedure required for entering the primary.
Was he forced to resign? If so, was it a forced resignation in which the man resigning was nevertheless able to specify the number of months before his resignation was to take effect ? This hardly seems plausible. Or was it a voluntary resignation, which not only would protect his employment record but also provide him with a convenient transfer from his adjusting work to an entry into the field of polities? He admitted that on several occasions he stated to various persons that he had resigned voluntarily to enter politics. We think that on those occasions he told the truth. Strangely, the Board was willing to accept as true his assertion that he lied on all of those occasions. The Board gave its approval to the examiner’s position, which she stated thus:
“I attach no significance to the fact that Lefkowitz told various people that he resigned to run for office. * * *»
We prefer not to adopt the illogical position taken by the Board, who would accept Lefkowitz as a martyr willing to confess deception of others to win the Board’s decision. As to all of his testimony up to and including the acceptance of his resignation, the examiner, the trier of facts, was the judge of the veracity of Lefkowitz as a witness and we make no attack upon his veracity on that subject. However, since he was granted the privilege of characterizing as true or false his repeated assertions of his purpose in voluntarily resigning, we hold that we are not barred by the veracity rule from granting relief to prevent a miscarriage of justice.
On the record as a whole, we find there is not substantial evidence to support the Board’s findings, upon which its order is based, because the record clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses. Universal Camera Corp. v. National Labor Relations Board, supra, 340 U.S. 490, 491, 71 S.Ct. 465, 466.
For these reasons, the Board’s order is set aside and its enforcement is denied.
Order set aside and enforcement denied.
. Mason and Eblin were not in the employ of the company when they testified.
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_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16175.
United States Court of Appeals Seventh Circuit.
March 26, 1969.
Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent.
Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges,
KILEY, Circuit Judge.
The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order.
Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries.
The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president.
The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices.
The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit.
Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative.
The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court.
The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act.
The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968).
The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear.
The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because
As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961).
Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State.
Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows:
The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.
That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved.
The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit.
In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here.
The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit.
The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate.
In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated.
The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings.
The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968).
A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965).
The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964).
The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940).
Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced.
MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs.
I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court.
This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious.
Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate.
In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows:
“National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.)
It states:
“Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.)
Then follows the heart of the decision:
“The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.)
Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases.
Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision:
“The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.”
In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous.
The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.”
Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief:
“Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.)
In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity.
There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected.
In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896):
“The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.)
In deciding this issue we stated (page 897):
“It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * *
“It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.)
The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case.
In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500):
“The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.)
The Board in its brief, in support of the instant petition, states:
“ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.”
In a footnote the Board states:
“For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.”
While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20):
“In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.)
Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383):
“It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office.
“The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.”
Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams.
I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision.
. 29 U.S.C. §160
sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * *
. In Singer the Board’s order was denied enforcement on other grounds.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
UNITED STATES v. KING COAL CO.
(Circuit Court of Appeals, Ninth Circuit.
May 11, 1925.)
No. 4401.
1. Collision <§=>73 — Moving vessel presumed in fault for collision with anchored vessel.
A collision between a moving vessel and one anchored in a proper place and carrying proper anchor lights is presumptively due to the fault of the moving vessel, which has the burden of proof to show absence of negligence.
2. Collision'<§=>71 (2) — Collision between moving and anchored vessel held not shown to be due to inevitable accident.
The blowing out of a fuse, causing the electrical steering gear of a submarine to become inoperative and the vessel to swing with the tide and come into collision with an anchored barge, held not to establish the defense of inevitable accident, where the vessel was suddenly put up against a strong running flood tide, throwing on the steering apparatus a load too great for the fuse to carry.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Rudkin, Judge.
Suit in admiralty for collision by the King Coal Company, owner of the barge Ruth, against the United States, owner of the submarine R-19. Decree for libelant, and the United ; States appeals.
Affirmed.
Suit brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats, of U. S. pt. 2, p. 1467).
Sterling Carr, U. S. Atty., of San Francisco, Cal., and Frank Maytham, Sp. Asst. Atty. Gen., for the United States.
Ira S. Lillick, of San Francisco, Cal., for appellee.
Before GILBERT, HUNT, and MORROW, Circuit Judges.
MORROW, Circuit Judge.
On October 11, 1918, the barge Ruth, owned by libelant, was anchored in San Francisco Bay, off the docks of-the Union Iron Works. The barge remained at this anchorage until October 18, 1918, when the submarine R-19, owned by the United States, coming down from Mare Island at about 8:45 p. m., turned into the Union Iron Works to take on supplies for San Pedro. The Ruth had the proper anchorage lights burning and the night; was clear. Objects on -the bay were normally visible. When the R-19 came within about 800 feet of the barge, at a speed of from 9 to 10 knots an hour, different commands were given by the commanding officer to reach the dock of the Union Iron Works. The navigation of the submarine resulted, in. its crashing into the barge, causing the damage for which this suit was brought. Libelant was awarded the sum of $19,179.26 for damages, together with costs. An order was entered dismissing the cross-libel, and the United States appeals.
There are two defenses:
First, that the barge was anchored in a forbidden area.
Second, that the aeeident was unavoidable.
Because of the alleged improper anchorage, a cross-libel was filed by the United States, claiming damages for injury to the submarine.
This suit was brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats. U. S. pt. 2, ,p. 1467).
The lower court held that the testimony was not definite and not easy of comprehension as to whether the barge was anchored in the forbidden area; but the testimony did show that the barge had been anchored there for about eight days previous to the aeei-dent, and no complaint had been made by the harbor authorities.
As to the second defense, the lower court held that the United States did not establish clearly that the accident was unavoidable.
It is alleged in the libel that at the time of the collision between the submarine R-19 'and the barge Ruth, the latter was at anchor in San Francisco Bay off the docks of the Union Iron Works, northeast by north about 1.800 feet.
In the cross-libel of the United States it is alleged that at a point about 1,200 feet off the shore from the wharves of the Union Iron Works, the submarine R-19 came upon and collided with the barge Ruth; that the latter was anchored at a point which obstructed the course of vessels landing or attempting to land at said wharves and at a point where anchorage was forbidden by the state harbor commissioners.
In the answer of the United States to the libel, it is alleged that the collision of the submarine R-19 with the barge Ruth occurred at a point approximately 1,500 feet off the docks of the Union Iron Works. It is denied that the barge was at said time about 1.800 feet off of.said docks, or any greater distance off said docks than, approximately 1;500 feet. It is-alleged that when the accident occurred, the submarine R-19 was attempting to make a landing at the Union Iron Works, and in doing so, proceeded to pass above the barge Ruth, and the current helped to sweep the submarine down against said barge.
The docks of the Union Iron Works are located at the southern extremity of the San Francisco water front. Between the docks of the Union Iron Works and the free and open space of waters of the bay is a strip of water, 1,500 feet wide, designated by the board of state harbor commissioners as forbidden anchorage. This strip of water extends along the water front of the harbor from Point Avisadero in a northwesterly direction to Pier No. 46. There is another strip of water 1,500 feet wide extending from the Western Pacific ferry slip, south of the Union Iron Works docks, across the Bay of San Francisco, in a northeasterly direction, to the Southern Pacific Railroad Company and the Western Pacific Railway Company training walls on the Oakland water front. This strip is also designated as forbidden anchorage.
These designations by the harbor commissioners of forbidden anchorages in the harbor were authorized by section 2524 of the Political Code of the State, since superseded and jurisdiction assumed by the United States by the Act of Congress of January 28,1915, creating the Coast Guard, etc. (38 Stat. pt. 1, p. 800; Comp. St. §§ 8459%a[l]-8459%a[6]), and section 7 of the River and Harbor Act of March 4, 1915 (38 Stat. pt. 1, p. 1053 [Comp. St. § 9959a]); but the strips of such forbidden anchorages do not appear to be buoyed or otherwise marked or designated, so that their boundaries on the water are not made visible to the ordinary observer. They appear to be ascertainable mainly by directions from maps and charts with reference to objects on shore, and by the experience of pilots.
The two strips^ of water designated by the harbor commissioners as forbidden anchorage passing in front of the docks of the Union Iron Works cross each other south of the Union Iron Works, leaving a triangular space of free and open water outside and between the strips of forbidden anchorage waters in front of the docks of the Union Iron Works.
These free and open water spaces in the harbor of San Francisco are .now designated as anchorage areas by the Secretary of War, exercising the jurisdiction of the United States in accordance with the rules and regulations issued February 9, 1921. But as the collision here in controversy occurred -October 18, 1918, we will refer to the areas as they were then designated.
Whether the barge Ruth was anchored within the free and open water of the harbor, or within the forbidden anchorage, passing immediately in front of the docks of the Union Iron Works, is exceedingly difficult to determine from the testimony; and the maps and charts are of but little assistance in fixing a definite location for the barge.
When the collision occurred, the side of the submarine scraped along the anchor chain of the Ruth and ran out several fathoms. 'Subsequently, the Ruth was beached, when the anchor chain was slipped and the anchor buoyed, and evidence was introduced tending to show where the anchor was found, but the directions and distances given are not clear. There is, however, testimony tending to show that the Ruth was anchored in the free and open water of the harbor, or, as we would say now, she was anchored within an authorized anchorage area.
The court below was unable to determine from the evidence and the maps and charts the location of the barge Ruth at the time of the collision. We, finding the same difficulty, resort to the more satisfactory testimony of Capt. Meyns, in command of the Merchant Towboat Company, who anchored the barge. This he did on October 11, 1918, and testified that he anchored her off the docks about 1,800 feet in open water. This would be in the open water or anchorage area, and beyond the forbidden anchorage in front of the docks of the Union Iron Works. This witness had been a captain of a tugboat in San Francisco Bay for 31 years, and had anchored more than a thousand vessels. He testified that it was a custom in the harbor of San Francisco for the harbor commissioners to notify any one when a vessel was anchored in forbidden anchorage, and compel them either to remove the vessel, or the vessel was removed by the harbor commissioners at the expense of the owner. The evidence shows that the barge remained where Capt. Meyns anchored her, without objection from the harbor commissioners, for a period of 8 days prior to the collision. There is a presumption in favor of the testimony of this witness by reason of his experience and reliability and the failure of the harbor commissioners to object to the anchorage of the Ruth.
We think, in view of all the facts, the court below was right in holding that the anchorage of the barge in a forbidden area was not established by the evidence, and that no negligence can be attributed to her on ¿that account.
As to the second defense, that the collision was unavoidable, Lieut. William F. Call-away, who was in command of the submarine at the time of the collision, testified:
“When I arrived at a point which I considered the proper one to make the turn into the Union Iron Works, considering the entrance of the harbor and anchored craft around there, I put the rudder right and brought the vessel around 90 degrees, or possibly a little more, and our course at that time was pointing — we had the tide slightly forward of the beam, that is, we were pointing slightly up against the tide — not perpendicular to it; slightly up against the tide, just up a little.”
He was asked, after having put the rudder right, what, if anything, was done with regard to switching from the engines to the motors :
“A. I don’t recall just the instant of shifting from the .engines to the motors. It-was about the time of the turn. We stopped .the engines and went to the electrical motors, to better be able to maneuver the ship, as the engines will not back.
“Q. Having put your rudder to the right, what, if anything, thereafter did you do with reference to the rudder? A. After we had made our right'turn and were headed on the course which I judged would best clear the traffic and carry us into the Union Iron Works, the left rudder was given in order to steady the ship on her course, and then order was given to ‘rudder amidships,’ which involved, of course, the right rudder.
“Q.- What, if anything, happened after the order was given for ‘rudder amidships’ ? A. After the rudder was given amidships, I noticed that the ship was not steady, was easing off to the left; so I gave ‘right rudder.’
“Q. What, if anything, happened then? A. The ship then kept easing off to the left. Before this we had seen the barge, which-afterwards turned out to be the Ruth, and noticed that we. were easing over toward her, was the reason we had given ‘right rudder.’
“Q. ‘Right rudder’ the second time? A. Yes; that is, from amidships. After you give the ‘amidships’ you ease off to the right; in fact, she was easing toward the left, down towards the Ruth. By that time I saw that we were going to pass her closely, and I increased the speed in order to get across, and then, after I saw that the bow would clear the Ruth, I gave -the orders for ‘hard left’ in order to throw the stern away from her, but just the time we were crossing her, or right at the time, it was reported that the electric cal steering gear was inoperative, and then I gave the orders to shift to hand steering. By that time we had crossed the bow'of the Ruth and struck her anchor chain, and our stern struck her a glancing blow on ■ the bow. After passing across her, we had the hand steering put in, and we rounded the stern of the Ruth, and came- up on her starboard side, and some time during that time we shifted back to the electrical gear.”
This witness testified further:
“It was necessary to use the electrical steering device going in. We had to cross the bow of the Ruth, practically, to make a 9’0-degree turn, and after we entered into the Union Iron Works’ basin we had to make another 90-degree turn in order to get into, the'slip. * * • The chief electrician reported to me, as his duty required, of the fuse blown in the steering circuit.”
On cross-etamination this witness said:
“I can’t recall the exact speed which I gave,, but it was probably around, ór I would say,. I would judge it was around nine knots, or-ten knots, and then after I saw that the ship was easing over to the left towards the Ruth,, I increased the speed in order to pass ahead, of her more quickly.”
The witness was asked:
“Can you state how far you were away-from the barge Ruth when you first observed, it? A. I can’t give the distance that I was. from the barge Ruth when I first observed; her, but I observed her long before we ever-made the 90-degree turn, because we had seen ships anchored before the entrance to, the Union Iron Works, and I was observing-not only the shore line, but the vessels around: the place where I intended to go in.
“Q. Can you state how far you were away-from the Ruth before it gave you any con-, cern as to the manner in which you would-maneuver your own vessel? A. I was considering the Ruth at the time I made my-right turn, because I had 'seen her before that, and we saw the vessel in front of the-entranee to the harbor, and I necessarily considered her when I made my right turn.”
The witness was asked:
“How do you account for the submarine-colliding with-the Ruth, then? A. The submarine collided with the Ruth due to the-steering gear becoming inoperative with left rudder on, and allowing the R-19 to gain, ground to the ieft, instead of pursuing the-course which I had contemplated pursuing.”
Lieut. Leverett S. Lewis, who was the navigator and at the wheel of the submarine-at the time of the collision, testified:
“When we got off the Iron Works, we-turned with the right rudder to head in to., the dock; as a usual thing, in making 90-degree turn, we use about 25 degrees right rudder.
“After we had completed' the turn of approximately 90 degrees, the captain ordered left rudder, to steady her on the new course, which is customary, and I put the controller to the left, putting on the left rudder to steady, her; there was about a four-knot tide, flood tide, at this time, and after we completed the turn, a barge was noted on our port bow at anchor.
“Q. That left rudder, you say, was for the purpose of steadying the submarine? A. That left rudder was for the purpose of steadying her on the new course. After a boat starts to turn, it turns very rapidly, and it is necessary to give her the opposite rudder for just a few seconds to steady her. As that happened at this time, the captain said ‘left rudder’ to steady her on the course, and then ‘rudder amidships.’
“Q. How long a time elapsed between the time of the order of ‘left rudder’ and ‘rudder amidships,’ approximately? A. Approximately five seconds.
“Q. Now, about how far was the submarine from the barge at the time that order was given, ‘rudder amidships’? A. The barge was about broad on our port bow, and in such a position that it seemed we would clear her by 100 feet.
“Q. What was the next maneuver? A. The captain evidently noticed at this time that the boat was starting to swing to the left, because he gave the order ‘right rudder,’ and immediately after that we noticed that the tide was setting us down on the Ruth, and the bow was not swinging to the right; and the captain then saw that although the bow of the submarine would clear the Ruth, it was possible that the stern would hit, so then he gave ‘full left rudder’ to throw the stern out, and went ahead on the motors to increase the speed. Our side scraped along the anchor chain of the Ruth and ran out several fathoms of the chain, and then the port side aft of the submarine hit the bow of the Ruth a glancing blow.”
This witness was asked:
“Q. What is your explanation as to the reason why this fuse blew out ? A. The only explanation I could offer is that the strong tide running at that time, the rudder was put up against the tide, and that the load was too great for the fuse to carry. The only other explanation would be defective fuse, and that very seldom happens, I believe.”
Robert S. Pearson was chief electrician on the submarine R-19 at the time of the collision with the barge Ruth. He testified that he was on the bridge at that time, saying:
“At that time we saw that the barge Ruth was in very close proximity to us, and the commanding officer ordered ‘hard right rudder,’ in order to be sure to clear her. x * * iji^g ru¿¿er evidently did not take, and the commanding officer, seeing that a collision might be caused, ordered ‘hard left rudder’; at that time the man in the conning tower, who was watching the indicator - — there is an indicator in the conning tower that designates by five degrees how the rudder acts — noticed that the steering gear was out of commission. The order was given to rig the hand-steering gear. Before this could be done, we raked the Ruth’s anchor chain, and our stern collided with her bow.”
. This witness was asked:
“What was the cause -of the refusal of the rudder to respond to the will of the operator under the command ‘right rudder’ ? A. Both fuses were blown out.”
Witness was asked:
“Have you ever known of a steering gear fuse to have blown out before? A. Not on the R type boats.”
These three witnesses were officers of the submarine R-19, called by the United States, and the situation was clearly stated by them, aside from the discrepancy in the testimony of the commanding officer and the navigator 'as to the time when the Ruth was discovered. The barge Ruth was at anchor with her anchor lights burning. Her anchorage was not in a forbidden area. Her visibility to moving shipping was normal, and her position was discovered in time for safe navigation on the part of the submarine. The presumption is, in such a situation, that the barge at anchor, properly lighted, was not at fault, while, on the other hand, the presumption is that the moving submarine, charged with reasonable caution, was at fault, and the evidence supports this presumption.
The United States contends that the collision was unavoidable, and that the commanding officer had the right to rely upon the electric steering apparatus, and that the blowing out of the fuse was an accident that could not be anticipated.
Counsel for the United States contend that the facts in this case bring it within the interpretation based upon the facts of the ease of The Olympia, 61 F. 120, 9 C. G. A. 393. The collision in that case occurred when the tiller rope on the Olympia broke. The court held that the accident was caused by a latent defect in the rope which could not have been discovered by reasonable inspection; consequently, the collision was held to have been caused by an inevitable accident. But in the course of his opinion, Judge Lurton of the Circuit Court of Appeals for the Sixth Circuit makes a distinction applicable here. He said:
“The defendants say, 'Our tiller rope broke, and the vessel became unmanageable, and the collision unavoidable.’ That only shows that the breaking- of the tiller rope was the cause of the collision. They must go further, and show that the cause which operated to break the tiller rope was unavoidable. The collision was but the result of the cause which produced a broken tiller rope. If that cause is not shown to be unavoidable, how can it be said that the collision was an inevitable accident? Unless the defendants can get rid of the negligence proved against them by showing the cause which broke this wheel rope, and that the result of that cause was inevitable, or by showing all the possible causes which might have produced such an effect, and then showing that the result of each one of these possible causes could not have been avoided by them, they have not met the burden of proof which rests upon them. ® Was it due to mismanagement of the steering wheel? The full force of the power of the steering engines suddenly thrown upon the steering gear might produce such a sudden strain as to snap the wheel rope. This full force could only be exerted by very suddenly putting the steering wheel hard over. If there was no necessity for putting the wheel hard over suddenly instead of slowly, and a parting was the result, negligence might well be imputed. But the evidence rebuts the theory that this was the probable cause.” Here is the distinction: “The evidence of the wheelman does not show that the wheel was put hard over, or suddenly handled in any way.”
Had the commanding officer, under the circumstances disclosed in the testimony, the right to put the electric steering apparatus, controlling the rudder, up against a strong running flood tide, throwing suddenly on the apparatus a load too great for the fuse to carry?
The burden is clearly upon the officers of the submarine to justify such dangerous navigation. ' The strain on the electrical apparatus should have been anticipated when too' great, a load was placed upon it. In the situation we have here presented, the doctrine-applicable is res ipsa loquitur — the situation speaks for itself — and fixes the charge of negligence upon the submarine.
The decree of the District Court is affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_state
|
15
|
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".
CITY OF BLOOMINGTON, INDIANA, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, etc., et al., Defendants-Appellees.
No. 88-2660.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 18, 1989.
Decided Dec. 6, 1989.
Rehearing and Rehearing En Banc Denied Jan. 23, 1990.
Joseph V. Karaganis (argued), A. Bruce White, Karaganis & White, Chicago, Ill., Geoffrey M. Grodner, Mallor, Grodner & Bohrer, James R. Trulock, II, Bloomington, Ind., for plaintiffs-appellants.
Joseph B. Carney, Baker & Daniels, Indianapolis, Ind., David R. Berz, Stanley M. Spracker, Weil, Gotshal & Manges, Washington, D.C., Bryan G. Tabler, Michael R. Fruehwald (argued), Stanley C. Fickle, Michael Rosiello, Barnes & Thornburg, Indianapolis, Ind., Anna Swerdel, Deborah J. Schmall, U.S. Dept, of Justice, Washington, D.C., for defendants-appellees.
Before CUMMINGS, CUDAHY, and EASTERBROOK, Circuit Judges.
CUMMINGS, Circuit Judge.
In April 1981 the City of Bloomington, Indiana, and its Utilities Service Board (collectively “City”) sued Westinghouse Electric Corporation for $149,000,000 damages and equitable relief alleging Westinghouse discharged waste containing polychlorinat-ed biphenyls (PCBs) into Bloomington’s sewers and into its Winston-Thomas Sewage Treatment Plant. In October 1981 the City filed an amended complaint adding Monsanto Company as a defendant and also covering the presence of PCB waste at the City’s Lemon Lane Landfill. The amended complaint sought $80,000,000 in damages and equitable relief from Monsanto. Proceedings were stayed in October 1983 to permit Westinghouse and the City to negotiate a settlement. The negotiations resulted in an agreement — referred to by the parties and the lower court as a consent decree — approved by Judge Dillin in August 1985.
In March 1986 the City filed its second amended complaint solely against Monsanto, reasserting liability under theories of public and private nuisance, trespass, abnormally dangerous activity, and negligence, and adding a wilful and wanton misconduct count as well as three counts under the Racketeering Influenced Corrupt Organizations Act (RICO). The ad damnum was $387,000,000.
On June 27, 1988, the district court handed down an opinion dismissing the counts of the second amended complaint based on nuisance, trespass, abnormally dangerous activity, and RICO. Two days thereafter the district court denied leave to file a third amended complaint and a week thereafter the case went to trial on the negligence and wilful and wanton misconduct counts contained in the second amended complaint. The jury found in favor of Monsanto and on July 18, 1988, judgment was entered in its favor.
The City has appealed basically on the ground that the trial evidence presented jury issues under the theories of nuisance, abnormally dangerous activity, and trespass, and that the trial court therefore erred in granting the defendant’s Rule 12(b)(6) motion to dismiss these claims. If the City is right, it is entitled to a new trial. We conclude, however, that the City had no viable claim against Monsanto based on those theories and therefore affirm.
I. Factual Statement
PCBs are chemical mixtures manufactured by Monsanto and others and sold for various industrial purposes, including insulation of high voltage electrical equipment such as capacitors and transformers.
Industrial experience showed that excessive long-term exposure to PCBs could cause skin rashes and liver disturbances. Consequently Monsanto confined its sales of PCBs to sealed containers for electrical uses, accepted used PCB fluid for reclamation and incineration, and informed customers of the latest information on the effects of PCBs. In 1970 Monsanto commenced using a warning label advising customers not to permit PCBs to enter the environment and in 1976 Monsanto announced that it would stop selling PCBs since substitutes were available for electrical equipment manufacturers.
One of Monsanto’s customers for PCBs was Westinghouse. Westinghouse used PCBs in its Bloomington plant where it manufactured capacitors. Westinghouse waste containing PCBs was hauled to various Bloomington area landfills, and small concentrations of PCBs also got into the sewer effluent of the Westinghouse plant.
In 1970, the sales agreement between Monsanto and the Westinghouse Blooming-ton plant contained a provision requiring Westinghouse to use its best efforts to prevent PCBs from entering the environment and Monsanto instructed Westinghouse how to dispose of PCBs so that they would not enter water systems, including the City’s sewage systems. Monsanto also made recommendations to reduce PCB discharges by treating waters before their release to sewers. Westinghouse took a number of steps to reduce PCB discharges from its Bloomington plant until Monsanto stopped selling any PCB products to that plant in September 1977.
Water containing PCBs from the Westinghouse plant was found in the City’s Lemon Lane Landfill and its Winston-Thomas Sewage Treatment Plant and connected sewers. The 1985 consent decree between the City and Westinghouse provides for an environmental cleanup with an estimated cost to Westinghouse in excess of $100,000,000. City Br. at 5. The decree provides for the excavation, removal, and incineration of PCB-contaminated material from the Lemon Lane Landfill, the Winston-Thomas Sewage Treatment Plant, and various other sites. In spite of this comprehensive program, the City, in its last proposed pleading against Monsanto, seeks an additional $750,000,000.
The City is not urging us to upset the judgment against it on its negligence and wilful and wanton misconduct theories that were tried to the jury. Rather it contends that the district court erred in dismissing the claims based on nuisance, trespass, and abnormally dangerous activity and that the City is therefore entitled to a new trial. We review a Rule 12(b)(6) dismissal under a de novo standard. Corcoran v. Chicago Park District, 875 F.2d 609, 609 (7th Cir.1989).
II. Analysis
A. Nuisance
The City endeavors to recover on the basis of public or private nuisance by stating that Monsanto only opposes nuisance liability on the ground that Monsanto’s own plant was not the source of the pollution. This is a misreading of Monsanto’s position. As the district judge recognized, the essence of the tort of nuisance is one party — here Westinghouse — “using his property to the detriment of the use and enjoyment of others.” Entry of June 27, 1988, at 4, citing Friendship Farms Camps, Inc. v. Parson, 172 Ind.App. 73, 359 N.E.2d 280, 282 (1977). The City has not refuted this requirement in either of its briefs, nor has it been able to find any cases holding manufacturers liable for public or private nuisance claims arising from the use of their product subsequent to the point of sale. Since the pleadings do not set forth facts from which it could be con-eluded that Monsanto retained the right to control the PCBs beyond the point of sale to Westinghouse, we agree with the district court that Monsanto cannot be held liable on a nuisance theory.
The City relies on the Restatement of Torts (Second) § 821D, which reads as follows: “A private nuisance is a nontrespas-sory invasion of another’s interest in the private use and enjoyment of land.” Here, however, there is no basis upon which to conclude that Monsanto — as opposed to Westinghouse — has invaded the City’s interest in the enjoyment of land. Section 821B defines a public nuisance as “an unreasonable interference with a right common to the general public.” Since there is no basis upon which to conclude that Monsanto itself interfered with such a right, that definition has not been satisfied either.
The uncontested record shows that when alerted to the risks associated with PCBs, Monsanto made every effort to have Westinghouse dispose of the chemicals safely. Westinghouse was in control of the product purchased and was solely responsible for the nuisance it created by not safely disposing of the product. County of Johnson v. United States Gypsum Co., 580 F.Supp. 284, 294 (E.D.Tenn.1984), modified on other grounds, 664 F.Supp. 1127 (E.D.Tenn.1985). The allegations do not support the proposition that Monsanto participated in carrying on the nuisance. Without such participation, Monsanto cannot be liable within the definition of the Restatement of Torts (Second) § 834. The dismissal of nuisance Counts XI and XII was warranted.
B. Trespass
Count XIII alleges that Monsanto’s conduct causing the PCB contamination of the City’s property constituted “trespass under Indiana law.” The district court dismissed Count XIII because the City did not allege that “Monsanto performed any intentional act, which act could have resulted in the trespass alleged.” Entry of June 27, 1988, at 5. The City contends that the dismissal was wrongful because of Judge Dillin’s “erroneous view of the intent required for trespass liability.” City Br. at 39. However, to support his ruling, the district judge relied on Hawke v. Maus, 141 Ind.App. 126, 226 N.E.2d 713, 716 (1967), which expressly stated that “it is not necessary that the trespasser intend to commit a trespass.” Rather the Appellate Court of Indiana explained that “it is required for trespass that there be an intentional act and an intent to do the very act which results in the trespass.” Id. This seemingly accords with the Restatement of Torts, which in pertinent part only imposes liability for trespass if the actor “intentionally ... enters land in the possession of the other, or causes a thing or a third person to do so,.... ” Restatement of Torts (Second) § 158(a) (emphasis supplied). To this extent intent is required.
In its brief, the City quotes Comment i to Section 158(a). The four illustrations in this Comment all require the actor’s intent. And as explained in Comment,/, there is no liability where a defendant has caused entry of a third person (here Westinghouse) unless the actor (here Monsanto) intentionally causes the third person to enter land by command, request, or physical duress. When Monsanto sold the PCBs to Westinghouse, Monsanto did not know that Westinghouse would deposit harmful waste on City property, and Monsanto certainly did not command, request, or coerce Westinghouse into doing so. Monsanto thus lacked any kind of trespassory intent.
In accordance with the Restatement principles, courts do not impose trespass liability on sellers for injuries caused by their product after it has left the ownership and possession of the sellers. Dine v. Western Exterminating Co., No. 86-1857, 1988 WL 25511 (D.D.C. March 9, 1988) (chlordane and heptachlor); National Gypsum Co., 637 F.Supp. at 656; W.R. Grace & Co., 617 F.Supp. at 133.
Monsanto did not deposit PCB wastes in City property nor did Monsanto instruct Westinghouse to do so. Therefore, any trespass was Westinghouse’s sole responsibility.
C. Abnormally Dangerous Activity
The district court also dismissed Count XIV of the second amended complaint dealing with abnormally dangerous activity. Indiana recognizes the doctrine of strict liability stemming from carrying on an abnormally dangerous activity. Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N.E.2d 406 (1963); Erbrich Products, 509 N.E.2d at 853. As reflected in the Restatement of Torts (Second) § 519, however, a plaintiff cannot recover unless the harm is caused by the activity of the defendant. Here the harm to the City’s sewage and landfill was not caused by any abnormally dangerous activity of Monsanto but by the buyer’s failure to safeguard its waste. In denying liability for an ultra-hazardous activity here, the district court pointed out that Monsanto did not control the PCBs contained in Westinghouse’s waste. This accords with the Restatement view because the Restatement confines strict liability to “[o]ne who carries on an abnormally dangerous activity.” Restatement § 519(1). Here that definition would include Westinghouse but not Monsanto.
The City relies on Indiana Harbor Belt Railway Co. v. American Cyanamid Co., 517 F.Supp. 314 (N.D.Ill.1981), to support the proposition that the manufacture of PCBs is an abnormally dangerous activity. Indiana Harbor Belt held that shipment of acrylonitrile, a toxic substance, was an abnormally dangerous activity. In Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 (1984), this Court explicitly distinguished Indiana Harbor Belt, and held the manufacture of handguns is not an ultrahazardous activity and that there can be no liability for merely manufacturing dangerous products.
Cases requiring liability impose liability for the ultrahazardous activity as a result of the use of the product. To recognize liability of a manufacturer or distributor would virtually make them the insurer for such products as explosives, hazardous chemicals or dangerous drugs even though such products are not negligently made nor contain any defects. Although such a social policy may be adopted by the legislature, it ought not to be imposed by judicial decree.
Martin, 743 F.2d at 1204, quoting with approval Riordan v. Int’l Armament Corp., 81 L 27923 (Circuit Court Cook County, Law Division, July 21, 1983) (emphasis in original), affirmed, 132 Ill.App.3d 642, 87 Ill.Dec. 765, 477 N.E.2d 1293 (1985). While both Martin and Indiana Harbor Belt were decided under Illinois law, there is no indication that Indiana law differs. Rather, the Court of Appeals of Indiana, in holding that the manufacture of chlorine gas is not abnormally dangerous, employed reasoning similar to that in Martin, stating, “If the rule were otherwise, virtually any commercial or industrial activity involving substances which are dangerous only in the abstract automatically would be deemed as abnormally dangerous. This result would be intolerable.” Erbrich Products, 509 N.E.2d at 856. In addition, the Erbrich Products court held that an activity could not be considered abnormally dangerous if the risks therefrom could be limited by the exercise of reasonable care. Id. The risks associated with the disposal of PCBs could have been limited by Westinghouse’s exercise of reasonable care.
The Fifth Circuit has also explored the limits of liability in this field in a cogent opinion by Judge Wisdom in Perkins v. F.I.E. Corp., 762 F.2d 1250, 1265 n. 43 (5th Cir.1985):
Even if §§ 519-520 of the Restatement (Second) of Torts were applicable, it appears that the defendants could not be held liable under those sections.... The comments to § 519 demonstrate that the marketing of a consumer product is not within the purview of the kinds of activities that section was meant to encompass. In particular, comment d states that “liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity." Restatement (Second) of Torts § 519 comment d (1977) (emphasis added). Thus, § 519 encompasses activities that are dangerous in and of themselves and that can directly cause harm to those “in the vicinity,” even though conducted with “the utmost care to prevent the harm.” Id. The storage of dynamite in a city is one paradigm given in comment e. The marketing of a handgun is not dangerous in and of itself, and when injury occurs, it is not the direct result of the sale itself, but rather the result of actions taken by a third party.
As in Martin, we are unwilling to extend the doctrine of strict liability for an abnormally dangerous activity to the party whose activity did not cause the injury. And, consistent with Erbrich Products, the manufacture of PCBs cannot be considered abnormally dangerous under Indiana law since the risks therefrom could have been limited by Westinghouse’s reasonable care. Finally, as in Perkins, the marketing of the PCBs was not dangerous itself, and the injury was rather the result of actions taken by a third party. The district court was correct in dismissing Count IV of the second amended complaint.
III. Denial of Motion to File Third Amended Complaint
The City’s proposed third amended complaint was presented two days after the court had dismissed the Counts of the second amended complaint based on nuisance, trespass, and abnormally dangerous activity. The third amended complaint, however, did not materially alter the prior pleading, but merely repeated factual materials that had already been considered by the trial court, stating at the end of each Count that these facts created liability. Because the proposed pleading did not assert new contentions or depend upon new evidence, there was no need to permit its filing. Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir.1983).
IV. Response to Dissent
The dissent argues that reliance on National Gypsum and W. R. Grace, which were decided under New Hampshire law, is inconsistent with Indiana law. New Hampshire has never adopted the Restatement of Torts (Second) with respect to nuisance liability. Contrary to the assertion in the dissent, neither has Indiana, even “in large measure.” Rather, Indiana evaluates nuisance claims under the statute cited by the dissent at 13 n. 1. The language of this statute is nearly identical to the language used to define nuisance in National Gypsum: “the term includes everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.” National Gypsum, 637 F.Supp. at 656. This similarity in language, added to the fact that neither New Hampshire nor Indiana has adopted the Restatement of Torts (Second) with respect to nuisance liability, lends credence to the assertion that Judge Dillin “justifiably relied” on National Gypsum in dismissing the nuisance claim against Monsanto.
The dissent also argues that the City should have been allowed to proceed with its case, at least to the summary judgment stage. The dissent twice concedes that it is doubtful that Bloomington’s dismissed claims would have survived summary judgment. In fact Judge Dillin’s decision to dismiss the nuisance, trespass, and abnormally dangerous activity claims was based not only on the pleadings but also on more detailed allegations and evidence contained in the parties’ statements of contentions and exhibits. Entry of June 27, 1988, at 3. Thus it is apparent that regardless of the label applied, Bloomington had ample opportunity to inform the court of the evidence it proposed to adduce at trial. Finally, the dissent suggests that this opinion sets a “potentially dangerous precedent” by insulating sellers from liability regardless of their activities before or after the sale of their product. Regardless of whether the touchstone for liability is control or substantial participation, it seems incongruous to penalize a manufacturer and seller for his good faith efforts to limit the potentially hazardous effects of his product once it has left his plant. The dissent suggests that had Monsanto done less, had they merely sold their product and walked away, they would have been less blameworthy. This seems to us a far more dangerous approach than that taken by this opinion.
Judgment affirmed.
. The third amended complaint was similar to its predecessor but was fleshed out with documentary references and requested $750,000,000 in damages. Each of the complaints against Monsanto strikingly increased the amount of damages sought from that defendant.
. Judge Dillin’s description of the consent decree gives an estimated cost to Westinghouse of from $13,000,000 to $65,000,000 for the cleanup. Entry of August 22, 1985, at 14.
.More specifically, the district court’s entry approving the consent decree describes Westinghouse’s undertakings as follows:
a. To excavate and remove materials from the six sites;
b. To remove sediment from certain streams and stream banks;
c. To construct a federal, state and city approved high temperature incinerator to incinerate PCBs, associated hazardous wastes and soil solid waste in accordance with the requirements of federal, state and local law;
d. To transport to the incinerator and incinerate the materials removed from the six sites;
e. To dispose of the ash and other by-products of the incineration process, in accordance with the requirements of law;
f. To perform certain interim remedial measures at the sites, including monitoring; and
g. To properly close, maintain and monitor each site after the PCBs and other materials have been removed.
Entry of August 22, 1985, at 15.
. For cases holding manufacturers not liable for nuisance claims arising from the use of their product subsequent to sale, Judge Dillin justifiably relied on two cases applying New Hampshire law, City of Manchester v. National Gypsum Co., 637 F.Supp. 646, 656 (D.R.I.1986) (asbestos), and Town of Hooksett School District v. W.R. Grace & Co., 617 F.Supp. 126, 133 (D.N.H.1984) (asbestos).
Monsanto does not rely on the Indiana statutory "coming to the nuisance” exception to the definition of a nuisance, so that there is no need here to determine its applicability. See Erbrich Products Co., Inc. v. Wills, 509 N.E.2d 850, 857-859 (Ind.App.1987).
. That section provides:
One is subject to liability for a nuisance caused by an activity, not only when he carries on the activity but also when he participates to a substantial extent in carrying it on.
. The Court of Appeals of the District of Columbia has recently adopted this result. Delahanty v. Hinckley, 564 A.2d 758 (D.C.Ct.App., 1989),:
The marketing of a hand gun is not dangerous in and of itself, and when injury occurs, it is not the direct result of the sale, but rather the result of actions taken by a third party. Furthermore, hand gun marketing cannot be classified as abnormally dangerous by applying the factors of Section 520. For example, any high degree of risk of harm, or any likelihood that such harm will be great, would result from the use, not the marketing as such, of hand guns.
. No court has held that the manufacture of PCBs is an abnormally dangerous activity. Apparently only two courts, neither addressing allegations against a manufacturer of PCBs, have considered the application of strict liability for abnormally dangerous activities to PCBs. In the first of these cases, Amland Properties Corp. v. Aluminum Co. of America, 711 F.Supp. 784 (D.N.J.1989), the court, applying New Jersey law, held that the question of whether disposal of PCBs was an abnormally dangerous activity was one for the jury. Similarly, in the second case, Ahrens v. The Superior Court of the City and County of San Francisco, 197 Cal.App.3d 1134, 243 Cal.Rptr. 420 (1st Dist.1988), the court held that the question of whether the use of PCB-containing transformers in urban office buildings was an abnormally dangerous activity was a question for the jury.
. The court also dismissed the RICO Counts of the second amended complaint, but the City does not contend this was erroneous.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_usc2sect
|
2751
|
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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 22. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellant, v. Richard J. LEARY, and F.L. Kleinberg & Co., Defendants-Appellees.
Nos. 86-2487, 86-2488.
United States Court of Appeals, Tenth Circuit.
May 2, 1988.
Bruce F. Black, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on the briefs), Denver, Colo., for plaintiff-appellant.
Michael F. DiManna, Di Manna & Jackson, Denver, Colo., for defendant-appellee, Leary.
Robert T. McAllister, Dill, Dill & McAllis-ter, Denver, Colo., for defendant-appellee, Kleinberg.
Before HOLLOWAY, Chief Judge, ANDERSON and TIMBERS, Circuit Judges.
Hon. William H. Timbers, United States Court of Appeals for the Second Circuit, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
The government appeals from the district court’s decision granting defendants’ motion to suppress evidence seized under a search warrant. We affirm the district court, holding that the defendants’ fourth amendment rights were infringed, that the search warrant was facially overbroad and invalid, and that the evidence seized should be suppressed.
I. Background
This appeal stems from the execution of a search warrant at the offices of the F.L. Kleinberg Company (“Kleinberg”) in Boulder, Colorado on August 23, 1984. Klein-berg and Richard J. Leary, a vice-president at Kleinberg, were subsequently indicted for conspiring to violate the Export Administration Act. 50 U.S.C.App. § 2410. Kleinberg and Leary, as defendants, moved to suppress the fruits of the search of the Kleinberg offices. The district court granted that motion and the government appeals pursuant to 18 U.S.C. § 3731.
The search warrant was obtained by federal customs agent John Juhasz on the basis of his affidavit alleging violations of the Arms Export Control Act, 22 U.S.C. § 2778, and the Export Administration Act. The affidavit recites in detail the purchase and attempted export of a Micro-tel Precision Attenuation Measurement Receiver by Kleinberg in 1984. In short, the affidavit alleges that Kleinberg did not have the proper license to export this particular piece of equipment and that Kleinberg was attempting to illegally export the receiver to the People’s Republic of China via a series of “front” companies in Hong Kong. The affidavit addresses only this single transaction and the companies involved in that transaction. No other companies, countries, or commodities are mentioned in the affidavit or alleged to be part of any illegal export scheme.
Based on the affidavit, a warrant was issued to search the Kleinberg offices and seize the following property:
Correspondence, Telex messages, contracts, invoices, purchase orders, shipping documents, payment records, export documents, packing slips, technical data, recorded notations, and other records and communications relating to the purchase, sale and illegal exportation of materials in violation of the Arms Export Control Act, 22 U.S.C. 2778, and the Export Administration Act of 1979, 50 U.S. C.App. 2410.
The warrant was executed on August 23, 1984 by Agent Juhasz and six other Customs officers. Twenty boxes of business records were seized including references to sales and sales contacts throughout the world, telexes to Australia and South Africa, information from applicants for employment with Kleinberg, Leary’s application with Shearson American Express for personal financial planning, Leary’s life insurance policy, and correspondence relating to other businesses for which Leary acted as sales representative.
After the indictment, Kleinberg and Leary moved to suppress all of the evidence seized in the search. The district court granted that motion, finding first that the affidavit was not supported by probable cause, and second, that the warrant did not sufficiently specify the evidence to be seized. The court also found that the “good faith” exception to the exclusionary rule adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) was inapplicable.
On appeal, the government argues (1) Leary and Kleinberg have no standing to raise a fourth amendment claim; (2) the warrant was sufficiently particular in specifying the items to be seized; (3) the warrant was supported by probable cause; and (4) even if the warrant is found upon review to be invalid, reliance on the warrant was “objectively reasonable” and the evidence should not be suppressed under the reasoning of Leon.
II. Standing
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) the Supreme Court abandoned a separate analysis of “standing” for claims of violations of the fourth amendment in favor of an analysis focusing on the “substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Id. at 133, 99 S.Ct. at 425. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Hansen, 652 F.2d 1374, 1379 n. 2 (10th Cir.1981). “Whether a person has standing to contest a search on fourth amendment grounds turns on whether the person had a legitimate expectation of privacy in the area searched, not merely in the items seized.” United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987) (citing United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980)). Determining whether a legitimate or justifiable expectation of privacy exists, in turn, involves two inquiries. First, the claimant must show a subjective expectation of privacy in the area searched, and second, that expectation must be one that “society is prepared to recognize as ‘reasonable.’ ” Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984) (quoting in part Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)); see also United States v. Owens, 782 F.2d 146, 150 (10th Cir.1986). The “ultimate question” is “whether one’s claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances.” Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Finally, standing is a legal question, and “[wjhere the facts are not in dispute, this court may review the question of standing de novo.” United States v. Kuespert, 773 F.2d 1066, 1067 (9th Cir.1985).
There is no doubt that a corporate officer or employee may assert a reasonable or legitimate expectation of privacy in his corporate office. Cf. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968) (“It has long been settled that one has standing to object to a search of his office, as well as of his home.”); United States v. Lefkowitz, 464 F.Supp. 227, 230 (C.D.Cal.1979) (corporate officers had sufficient privacy interest in corporate office suite), aff'd, 618 F.2d 1313 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); see also 4 W. LaFave, Search and Seizure § 11.3(d) (2d ed. 1987) [hereinafter LaFave]. Similarly, “it seems clear that a corporate defendant has standing with respect to searches of corporate premises and seizure of corporate records ” Id. at 316. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir.1988). In addition, except in rare circumstances, a warrant is as necessary to support a search of commercial premises as private premises. See Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1216 n. 5 (D.C.Cir.1981) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982).
Normally, our inquiry would end here. The government argues, however, that Leary and Kleinberg lack the requisite expectation of privacy in their offices and records because of the regulatory scheme imposed upon exporters by the federal government and the company’s “open door” policy toward government inspectors. For purposes of clarity, we repeat the government’s argument in some detail:
[T]he government would concede that if it were not for the regulatory scheme requiring that the defendants make, keep and produce the seized records to the government upon request, and the company’s open door policy, both defendants would be able to assert a privacy interest in the seized records under Rakas v. Illinois, 439 U.S. 128 [99 S.Ct. 421, 58 L.Ed.2d 387] (1978).
The standing argument asserted by the government is limited to the very unusual facts of this case_ [T]he defendants operated in a highly regulated industry where the law required them to make, keep and produce all documents relating in any way to an export. Furthermore, company policy was that the government could come, scheduled or unscheduled and ask for any file or information it needed. Thus, the government’s argument is that any privacy interest in the required records was waived by the company and Mr. Leary.
Mr. Leary must have known that under these circumstances any company record could be turned over to the government upon request at any time, whether he was present or not, without the government being required to resort to legal process.
The company’s position is somewhat different, because it could have revoked the policy at any time. But it did not. At the conclusion of the search the President, Frederick L. Kleinberg, invited the agents back to examine any remaining records at a later time.
Reply Brief of Appellant at 3-5 (citations omitted).
We find the government’s argument inherently misleading, as it attempts to concede an expectation of privacy with one hand and remove it with the other. Moreover, the argument confuses the law relating to searches or inspections of “regulated” industries with simple recordkeeping requirements. Nevertheless, we will analyze the government’s position in detail. The government’s standing argument consists of two related questions: First, do the regulatory requirements imposed on exporters licensed by the government and Kleinberg’s “open door” policy constitute “circumstances” that render Leary and Kleinberg’s expectation of privacy unreasonable? See Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Second, have Leary and Kleinberg “waived” their fourth amendment rights by participating in a regulated business and by adopting an “open door” policy, inviting government agents to inspect their business records? We address these questions in turn.
Federal regulations implementing the nation’s export control laws impose comprehensive recordkeeping requirements on exporters. It is clear, however, that licensed exporters retain their fourth amendment rights. The key provision is 15 C.F.R. § 387.13(f)(1) (1987):
Persons within the United States may be requested to produce records which are required to be kept by any provision of the Export Administration Regulations or by any order, and to make them available for inspection and copying by any authorized agent, official or employee of the International Trade Administration, the U.S. Customs Service, or the U.S. Government, without any charge or expense to such agent, official or employee. The [government] encourage[s] voluntary cooperation with such requests. When voluntary cooperation is not forthcoming, the Office of Export Enforcement and the Office of Antiboycott Compliance are authorized to issue subpoenas for books, records and other writings. In instances where a person does not comply with a subpoena, the Department of Commerce may petition a district court to have the subpoena enforced.
The district court properly analyzed the effect of these requirements:
The Department of Commerce could have requested inspection and copying of records relating to export at any time, and if the company refused to allow voluntary inspection, the government could have subpoenaed the records. This required procedure affords the protection of judicial review before records can be seized without permission.... The fact that a warrant is required for a full-scale criminal search and seizure of records required to be kept recognizes the fourth amendment’s protection of privacy even in these circumstances and restrictions on the government’s power to intrude on that privacy.
Mem. Opinion at 4. Cf. United States v. Molt, 444 F.Supp. 491 (E.D.Pa.), aff'd, 589 F.2d 1247 (3d Cir.1978); see also Railway Labor Executives’ Ass’n v. Burnley, 839 F.2d 575, 584 (9th Cir.1988) (“When no... plan [authorizing warrantless inspections] is built into the legislation regulating a specific industry, the [Supreme] Court has required a warrant as a condition of a reasonable search.”); Serpas v. Schmidt, 827 F.2d 23, 28 (7th Cir.1987) (“[A] history of pervasive regulation of an industry is not by itself enough to render the warrant requirement superfluous_ [T]he Supreme Court has sanctioned warrantless searches of commercial premises in certain industries subject to longstanding governmental oversight.... [however] [i]n each of these cases,... Congress expressly authorized the terms and conditions of searches on specified premises.”), cert. denied, — U.S. -, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988). Neither the export regulations nor the export statutes authorize a warrantless search and seizure of business records, see 22 U.S.C. § 2778(e); 50 U.S.C.App. § 2411; Brief of Appellant at 14, yet the government would have us hold that the regulatory scheme negates the licensed exporter’s right to challenge an invalid warrant. In other words, the government concedes that it must obtain a warrant but argues that it need not obtain a valid warrant. We refuse to adopt this reasoning.
Similarly, the company’s “open door” policy does not negate the defendants’ expectation of privacy. There is a distinction of constitutional significance between the company’s policy, which invited government agents to “visit... and ask for any file or information they want or need,” and a thorough search of the offices and seizure and removal of twenty boxes of files, including personal records and documents unrelated to the company’s regulated export activities. Leary and Kleinberg retained control over the premises and records and had the authority to restrict the government’s access by the terms of the policy. In sum, we find a reasonable expectation of privacy in these circumstances.
For substantially the same reasons, we reject the government’s argument that Leary and Kleinberg either waived their fourth amendment rights or consented to the search. When evaluating fourth amendment rights, there is no clear distinction between “consent” to a search and a “waiver” of one’s privacy interest. The government, however, attempts to draw a distinction in this case, that is, that Leary and Kleinberg either “consented” to the August 23 search, or evidenced an ongoing consent to be searched at any time (a “waiver”). Despite the government’s effort to cast this inquiry as one of waiver, the proper analysis focuses on consent. In fact, the Supreme Court has expressly rejected the use of “waiver” analysis in fourth amendment cases in favor of a “voluntary consent” test. See Schneckloth v. Bustamonte, 412 U.S. 218, 235-46, 93 S.Ct. 2041, 2052-57, 36 L.Ed.2d 854 (1973). Thus, to determine whether, by granting any ongoing consent, Leary and Kleinberg effectively “waived” their fourth amendment rights, our analysis is guided by the law developed for analyzing “consent” searches.
Initially, we reject any suggestion that Leary and Kleinberg specifically consented to the August 23, 1984 search. When a government agent claims authority to search under a warrant, “he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). In fact, the Supreme Court has stated that: “A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.” Bumper, 391 U.S. at 549, 88 S.Ct. at 1792.
Similarly, we find no evidence that Leary and Kleinberg granted an ongoing consent to searches by Customs officers. We recently addressed the question of consent in detail, recognizing that the Supreme Court requires that “consent to a Fourth Amendment search must be voluntary in fact and free of coercion under the totality of the circumstances....” United States v. Carson, 793 F.2d 1141, 1150 (10th Cir.) (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59) (emphasis in original), cert. denied, — U.S. -, 107 S.Ct. 315, 93 L.Ed. 2d 289 (1986). In addition, we have noted that consent “is a question of fact to be determined from the totality of all the circumstances [and] [t]he Government has the burden of proving that consent was given freely and voluntarily.” United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir.1985) (citations omitted).
There is no evidence that Kleinberg and Leary granted an ongoing consent to the search of their offices or records by participating in a regulated activity. The federal recordkeeping regulations leave exporters with a substantial privacy interest. Government agents may be required to resort to judicial process to obtain desired records. Absent a statutory scheme authorizing warrantless searches, there is no waiver of constitutional rights in the mere fact that Leary and Kleinberg chose to participate in an activity regulated and licensed by the government. See Marshall v. Barlow’s Inc., 436 U.S. 307, 312-14, 323-24, 98 S.Ct. 1816, 1820-21, 1826, 56 L.Ed.2d 305 (1978).
Nor do we find any ongoing consent in the company’s “open door” policy. As we noted earlier, Kleinberg did not invite the government to rummage through company files and carry out any documents that the agents found interesting. Equally important is the fact that “[w]hen the basis for a search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects.” Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977); see also United States v. Gay, 774 F.2d 368, 377 (10th Cir.1985) (“The scope of a consent search is limited by the breadth of the actual consent itself.”); United States v. Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir.) (“the government may not use consent to a search which was initially described as narrow as license to conduct a general search”), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985). Even if Kleinberg’s policy can be characterized as an ongoing consent to government searches, the government exceeded the scope of that consent in two respects. First, Kleinberg invited government agents to inspect and copy records, not seize them. Second, Kleinberg’s invitation extended only to those documents related to regulated export activities. The government searched and seized records dealing with Leary’s personal and financial affairs and business activities unrelated to exports.
In addition, we find a compelling policy reason to reject the government’s argument. As the regulations indicate, the government encourages voluntary cooperation with requests for export documents and information. Yet the government urges us to find that Kleinberg’s voluntary cooperation has resulted in a waiver of fourth amendment rights. This interpretation of the law would deliver a serious blow to the government’s “voluntary cooperation” efforts and discourage “open door” policies in the export industry.
Accordingly, we find no consent or “waiver” and conclude that both Leary and Kleinberg have had their fourth amendment rights infringed by this search and seizure and may seek suppression of the evidence. We proceed to review the adequacy of the search warrant.
III. Particularity
The fourth amendment requires that warrants “particularly describ[e]... the persons or things to be seized.” U.S. Const, amend. IV. This requirement prevents a “general, exploratory rummaging in a person’s belongings,” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) and “ ‘makes general searches... impossible and prevents the seizure of one thing under a warrant describing another. As to what is be taken, nothing is left to the discretion of the officer executing the warrant.’ ” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965) (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)). See Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988); Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985). “The particularity requirement [also] ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.” Voss, 774 F.2d at 404.
The test applied to the description of the items to be seized is a practical one. “ ‘A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.’ ” United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir.1982) (quoting United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir.1982)). Even a warrant that describes the items to be seized in broad or generic terms may be valid “when the description is as specific as the circumstances and the nature of the activity under investigation permit.” United States v. Santarelli, 778 F.2d 609, 614 (11th Cir.1985); see United States v. Strand, 761 F.2d 449, 453 (8th Cir.1985) (“degree of specificity required necessarily depends upon the circumstances of each particular case”). However, the fourth amendment requires that the government describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow, and “warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.” United States v. Fuccillo, 808 F.2d 173, 176 (1st Cir.), cert. denied, — U.S.-, 107 S.Ct. 2481, 96 L.Ed.2d 374 (1987).
The district court found the Kleinberg warrant overbroad. That legal conclusion is subject to de novo review on appeal. See United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir.1987); United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). Therefore, our task is to determine if the language of the Kleinberg warrant is sufficiently particular to achieve the requirements of the fourth amendment.
The warrant under scrutiny here included only two limitations. First, the documents to be seized had to fall within a long list of business records typical of the documents kept by an export company. Second, those documents had to relate to “the purchase, sale and illegal exportation of materials in violation of the” federal export laws. In this context — the search of the offices of an export company — these limitations provide no limitation at all. The warrant authorizes, and the customs agents conducted, a general search of the Kleinberg offices.
A. The warrant is facially overbroad.
The Kleinberg warrant suffers from three flaws. First, it authorizes a general search in conjunction with a federal crime and is overbroad on its face. In Foss v. Bergsgaard, 774 F.2d 402 (10th Cir.1985), we invalidated a similar warrant. The warrant in Foss authorized government agents to seize documents and records “[a]ll of which are evidence of violations of Title 18, United States Code, Section 371.” Id. at 405. We concluded that “[e]ven if the reference to Section 371 [the federal conspiracy statute] is construed as a limitation, it does not constitute a constitutionally adequate particularization of the items to be seized.” Id.
The government argues that Voss does not apply here because the export statutes describe a much narrower range of criminal activity. We disagree. While some federal statutes may be narrow enough to meet the fourth amendment’s requirement, the two statutes cited by the Kleinberg warrant cover a broad range of activity and the reference to those statutes does not sufficiently limit the scope of the warrant.
Moreover, a series of decisions from other circuits have held that reference to a broad federal statute is not a sufficient limitation on a search warrant. For example, in Roche v. United States, 614 F.2d 6, 7 (1st Cir.1980) the warrant authorized the seizure of books, records and documents “which are evidence, fruits, and instrumen-talities of the violation of Title 18, United States Code Section 1341 [mail fraud].” The court found this limitation to be “no limitation at all.” Id. at 8. The Ninth Circuit has consistently applied the same rule. In United States v. Cardwell, 680 F.2d 75, 77 (9th Cir.1982), “[t]he only limitation on the search and seizure of appellants’ business papers was the requirement that they be the instrumentality or evidence of violation of the general tax evasion statute, 26 U.S.C. § 7201. That is not enough.” The court’s reasoning in Card-well is equally applicable here:
“ ‘[Limiting’ the search to only records that are evidence of the violation of a certain statute is generally not enough.... If items that are illegal, fraudulent, or evidence of illegality are sought, the warrant must contain some guidelines to aid the determination of what may or may not be seized.”
Id. at 78. Where the warrant provides no such guidelines, it is impermissibly over-broad on its face. See also Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987) (warrant limited only by references to the general conspiracy statute and general tax evasion statute did “not limit the search in any substantive manner”); United States v. Spilotro, 800 F.2d 959, 965 (9th Cir.1986) (“effort to limit discretion solely by reference to criminal statutes was inadequate”); United States v. Abrams, 615 F.2d 541, 542-43 (1st Cir.1980) (warrant limited only by reference to records and federal fraud statute is overbroad); In re Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979) (over-broad warrant allowed “seizure of most every sort of book or paper... limited only by the qualification that the seized item be evidence of violations of... ‘18 U.S.C. 286, 287, 371, 1001 and 1014.’ ”).
We agree with the reasoning of these courts. As an irreducible minimum, a proper warrant must allow the executing officers to distinguish between items that may and may not be seized. See 2 La-Fave, § 4.6(a), at 235-36. The Kleinberg warrant does not provide that guidance. An unadorned reference to a broad federal statute does not sufficiently limit the scope of a search warrant. Absent other limiting factors, such a warrant does not comply with the requirements of the fourth amendment. See Andresen v. Maryland, 427 U.S. 463, 480-82, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976).
Nor did the list of business records to be seized provide any meaningful limitation on the Kleinberg search. The warrant encompassed virtually every document that one might expect to find in a modem export company’s office. Again, the fourth amendment requires more. See Id.; see also In re Grand Jury Proceedings (Young), 716 F.2d 493, 498 (8th Cir.1983) (“laundry list of various type of records is insufficient to save the search warrant”); Roberts v. United States, 656 F.Supp. 929, 934 (S.D.N.Y.1987) (“By listing every type of record that could conceivably be found in an office, the warrant effectively authorized the inspectors to cart away anything that they could find on the premises.”); cf. Cardwell, 680 F.2d at 78; Abrams, 615 F.2d at 543; Roche, 614 F.2d at 7; Lafayette Academy, 610 F.2d at 5.
We recognize that some lower courts have found similar warrants to be sufficiently particular. The government relies on United States v. Moller-Butcher, 560 F.Supp. 550, 557 (D.Mass.1983) where the district court found a warrant seeking “records which are required under the Export Administration Act, 15 C.F.R. § 387.13, by all businesses sending electronic equipment outside the United States” to be sufficiently particular. The district court in United States v. Gregg, 629 F.Supp. 958, 966-67 (W.D.No.1986), aff'd 829 F.2d 1430 (8th Cir.1987), approved a similar warrant. We are unpersuaded by these decisions. Neither court clearly explained why the warrant in question is sufficient; the analysis is brief and concluso-ry. Moreover, there are distinguishing features that limit the value of these decisions in our present inquiry.
The government also argues that the facial overbreadth of the warrant is not fatal because any doubts about what was to be seized “could be resolved by resort to the affidavit which was a part of the warrant and which the agents had with them at the location of the search.” Brief of Appellant at 38. We disagree. It is true that the particularity of an affidavit may cure an overbroad warrant, but only “where the affidavit and the search warrant... can be reasonably said to constitute one document. Two requirements must be satisfied to reach this result: first, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference.” 2 LaFave, § 4.6(a), at 241 (quoting Bloom v. State, 283 So.2d 134 (Fla.App.1973)); see Id. cases cited at n. 28; 3 C. Wright, Federal Practice and Procedure § 670, at 723 (2d ed. 1982); United States v. Medlin, 798 F.2d 407, 410 n. 1 (10th Cir.1986) (“When an affidavit is attached to a warrant and incorporated by reference into the warrant, it can be used to cure a lack of particularity.”); United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987) (affidavits did not accompany warrant); United States v. Strand, 761 F.2d 449, 453 (8th Cir.1985) (affidavit accompanied warrant but was not incorporated).
The Kleinberg warrant did not incorporate the affidavit; there is no reference to the affidavit on the face of the warrant. In addition, there is no clear evidence in the record to support the government’s assertion that the affidavit “was a part of the warrant.” Finally, and perhaps most importantly, the search itself was not limited by the affidavit. If the affidavit was available to the agents searching the Kleinberg offices, it certainly was not used to limit the search. The agents seized documents related to transactions, countries and commodities not mentioned in the affidavit. In fact, the agents seized documents unrelated to Kleinberg’s export business. Even if the technical requirements for incorporation were met, it would be improper to allow the affidavit to cure the lack of particularity in the warrant where the government agents relied on the breadth of the warrant, not the specificity of the affidavit, to define the scope of the search. Cf. United States v. Spilotro, 800 F.2d 959, 967 (9th Cir.1986) (“government’s argument that the agents were somehow constructively guided by the affidavit in executing the warrants is unpersuasive”); Lafayette Academy, 610 F.2d at 5 (“[S]elf-restraint on the part of the... executing officers does not erase the fact that under the broadly worded warrant appellees were subject to a greater exercise of power than that which may have actually transpired and for which probable cause had been established. The particularity requirement is a check to just this sort of risk.” (citations omitted)).
B. Information was available to make the warrant more particular.
In addition to being overbroad on its face, the Kleinberg warrant is flawed because information was available to the government to make the description of the items to be seized much more particular. Admittedly, a general description is not always invalid.
“Courts tend to tolerate a greater degree of ambiguity [in the warrant’s description] where law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant.”
United States v. Young, 745 F.2d 733, 759 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). In this case, however, the government’s argument that the warrant was “as specific as the circumstances and the nature of the activity under investigation permit” is untenable. Agent Juhasz’ affidavit in support of the warrant was very specific, alleging the attempted illegal export of a specific product to the People’s Republic of China via a series of specific companies in Hong Kong. Yet none of this information was reflected in the warrant. The warrant could have been limited to documents related to the Micro-tel transaction, to the companies suspected of participating in the illegal export, to the countries involved in the route of the export, Hong Kong and
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 22? Answer with a number.
Answer:
|
songer_usc1
|
28
|
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 v. CHICAGO, B. & Q. R. CO.
No. 5964.
Circuit Court of Appeals, Seventh Circuit.
April 12, 1937.
Harry W. Blair, Asst. Atty. Gen., John J. Boyle, U. S. Atty., of Madison, Wis., and D. B. Hempstead and A. C. Wiprud, Sp. Assts. to the Atty. Gen.
Andrew Lees, of La Crosse, Wis., and Andrew C. Scott and J. C. James, both of Chicago, 111. (Bruce Scott, of Chicago, 111., of counsel), for appellee.
Before SPARKS, Circuit Judge, and BRIGGLE and BALTZELL, District Judges.
SPARKS, Circuit Judge.
This is an appeal from a judgment of the District Court assessing damages in condemnation' proceedings instituted by the Government with respect to the navigation project of the Mississippi River, authorized by an Act of Congress approved January 21, 1927, 44 Stat. 1010. Two actions at law are involved, and numerous questions are presented, which render necessary a rather full statement of the issues of both causes and the manner in which they were disposed of.
On September 19, 1931, the Government filed its action No. 3683, to condemn 2.9 acres of land in the city of Alma, Wisconsin. It was alleged that that land was a part of the site of Lock and Dam No. 4 as contemplated by the project, which was about to be begun. The action was brought against appellee and numerous other corporate bodies and natural persons, who, it was alleged, constituted, as nearly as the Government could ascertain, all persons claiming to be the owners or occupants of those lands, or claiming any right, title, equity or interest therein.
On August 9, 1932, the Government amended its original petition by reducing the amount of land sought to be condemned to 1.6 acres, and retained as defendants the appellee and several hundred others who, as alleged, were claiming some interest therein. The amended bill further stated that the proposed dam should have a crest elevation of 667 feet mean sea level, intended to provide a pool no higher than 667 feet, mean sea level at the dam.
On August 17, 1932, the court, over the Government’s objections and exceptions, sustained appellee’s motion to make the amended petition more specific, and ordered the same done by filing plans of the lock and dam to be built, or sufficient information as to the structural and engineering features thereof, to enable appellee to determine and make proof of the damage to the remainder of its property resulting from the construction, operation and maintenance of the lock and dam.
On December 3, 1932, the Government complied with this order by amending its amended petition, in which it was stated, among other matters, that the dam would be of a nonnavigable type with a controlled spillway section 1,355 feet long, having a crest elevation of 667 feet mean sea level datum; that the top of the lock and guide walls would be at elevation 672 feet mean sea level, and that the spillway would be so controlled as to maintain a pool elevation at 667 feet. The official map filed with the amendment disclosed the elevation of the pool along the upper side of the dam to be 667.
Following the hearing on the amended petition, an order was entered January 14, 1933, granting the condemnation of the property described in the amended petition, and appointing commissioners to fix the compensation for its taking. On January 25, 1933, the Government applied for immediate possession of the condemned 1.6 acres, alleging the value thereof to be not in excess of $500. On the same day the court granted the application conditioned on the deposit of $110,000 with the court, as security for the payment of such just compensation as might be finally awarded. This order was complied with without objection or exception on the part of the Government. On January 31, 1933, on the motion of appellee, and over objections and exceptions by the Government, the court amended its order granting condemnation and appointing commissioners by adding to that portion of the order directing the commissioners to ascertain, award and report the compensation for the property taken as described in the amended complaint, the following words, “together with all damages to the remainder of respondent’s property resulting from the construction and operation of the lock and dam described in the petition herein.”
Pursuant thereto, the commissioners made, and on June 7, 1933, filed, their award for the value and damages to be sustained by reason of the appropriation. They were made in varying amounts to eleven named respondents in the aggregate sum of $4,627, and to appellee for the taking of its interest in the 1.6 acres of land in the sum of $160, together with damages to its roadbed, track and bridge across Beef River from Alma to Trevino, in Buffalo County, Wisconsin, in the sum of $84,296. From all of these awards the Government appealed on June 29, 1933, to the District Court.
On October 16, 1933, the Government filed its petition in law, No. 3767, against appellee and other defendants, to condemn certain lands in fee (none of which was owned by appellee), and certain easements in lands to an elevation of 670 feet above mean sea level datum (1912 adjustment) for flowage in connection with Lock and Dam No. 4. Included in this easement sought to be appropriated was a flowage easement upon that portion of appellee’s right of way within the area described in the petition which extends northwesterly, across what is known as Beef Slough, to a point about six miles above the 1.6 acre tract condemned in cause No. 3683. The petition in No. 3767 contained the following allegation:
“That your petitioner by naming herein any person or persons as owners or otherwise interested does not admit or intend to admit that any person or persons so named have any right, title, estate, or interest in or to the bed of the Mississippi river below ordinary high water mark, or the meander line, as against your petitioner in ■the improvement of navigation of said river.”
On December 11, 1933, the District Court granted the condemnation, and on motion of the Government it made an order on January 23, 1934, reducing the easements condemned to an elevation of 667 feet above mean sea level datum (1912 adjustment). This included the easement of appellee’s right of way. The commissioners filed their award on May 28, 1934, for the flowage easement condemned on appellee’s right of way in the sum of $81,194. From this award the Government appealed to the District Court.
The claims of appellee before the commissioners in causes numbered 3683 and 3767 embraced approximately the same portion of its right of way. All the flowage rights on appellee’s property sought by the Government in the second suit had been included in the original suit. For the purpose of trial they were.consolidated in the District Court. The cases were tried to a jury which, at appellant’s request, returned a special verdict by way of answers to interrogatories finding for appellee in the aggregate amount of $347,811.65, that is to say, $400 by way of compensation for appellee’s interest in the 1.6 acres, and $347,-411.65 for damages proximately caused by the continuous maintenance and operation of the Alma dam at a pool level no higher than 667 feet above mean sea level at the dam.
At and above the Alma dam for a distance of ten or twelve miles, the Mississippi valley consists of a flat alluvial flood plain about three miles wide, extending northwesterly from the dam between high rock bluffs. Larger floods cover the entire valley floor, except for occasional ridges and knolls which extend above the extreme high water. The main channel of the river in this area is the boundary between Minnesota and Wisconsin.
From a point about twelve miles upstream from the dam, the Mississippi valley floor lies at a much lower level and is covered with water ranging from a few feet to forty feet in depth, constituting a segment of the river, known as Lake Pepin, approximately twenty miles in length, and from two to three miles wide in places.
The two longest tributaries of the Mississippi in this region are the Beef and Chippewa rivers, which enter from the Wisconsin side. The Beef River drains about 440 square miles and enters the Mississippi, through Beef Slough, about a mile and' a half above the dam. The Chippewa drains an area of 9480 square miles and enters the Mississippi about 10.7 miles above the dam. Both tributaries have valleys similar to the Mississippi but vary in width in proportion to the size of' the stream. The valley of Beef River is about three-fourths of a mile wide near its mouth and becomes narrower towards its source. The Chippewa is about four miles wide at its mouth, and narrows down to about a fourth of a mile at a point fifteen miles from its mouth. The floors of these tributary valleys are also subject to inundation when they are in flood. A small tributary, known as Rush River, draining an area of about 200 square miles, enters Lake Pepin from the Wisconsin side twenty-eight miles above the dam. It is about eighty feet wide at its mouth.
Appellee’s railroad in the vicinity of Alma extends along the easterly bank of the Mississippi. Originally a portion of its tracks in front of Alma, and at the site of the lock and dam, was constructed on trestles, which was subsequently filled in with sand, gravel, earth, or other suitable substance, under claimed authority of an ordinance of the village of Alma, dated February 3, 1902. Upstream from the dam the railroad was constructed along bluffs for a distance of one and one-half miles, from which point, prior to 1928, it followed a winding course for several miles along the easterly bank of Beef Slough, continuing northwesterly and inland through the village of Nelson, Wisconsin, across the Chippewa River bottoms, over the main channel of the Chippewa at a point about one and one-half miles from the Mississippi, and then along the easterly shore of Lake Pepin. The railroad crosses Rush River at a point about one and one-half miles from the Mississippi. Rush River is located seventeen miles northwesterly from the Chippewa and twenty-eight miles from the Alma dam. Prior to 1928 the railroad crossed Beef River just above the point where it entered the channel of Beef Slough, which is about one and one-half miles upstream from the dam.
In 1927 appellee obtained a permit from the Secretary of War, revocable at the will of the latter, authorizing it to dredge Beef Slough at points near Alma to a depth not exceeding thirty feet nor within one hundred feet of any wing dam or main bank, and to use the dredged material for railroad embankment in accordance with plans shown on the drawings attached thereto, subject, however, to the conditions set foith in the permit forbidding impairment of navigable capacity, providing for the protection or removal of structures when future operations of the Government might require, without cost to the Government, and prohibiting unreasonable interference with navigation. The maps attached to the permit disclosed the work sought to be done and the manner in which it was to be accomplished. Pursuant to that permit appellee constructed an embankment across the abandoned channel of Beef Slough, diking or damming it in two places. It constructed a bridge, however, in the center of this embankment over a diversion ditch, through which the waters of Beef River were diverted at right angles to Beef Slough, and permitted to run into the Mississippi. In the state of nature, the waters of Beef River flowed into the channel of Beef Slough across which the embankment was constructed. That channel was perhaps three hundred feet in width, and in one place the water in Beef Slough was from ten to fourteen feet deep. The diversion ditch was sixty feet wide and five feet deep.
The primary question here presented first arose in cause No. 3683, when the court ordered the Government to make its petition more specific by filing plans of the proposed lock and dam, or sufficient information with respect thereto, to enable appellee to make proof of damage, if any, to the remainder of its property other than the 1.6 acres therein- sought to be condemned for the site of the lock and dam.
It is contended by the Government that it was entitled to appropriate the 1.6 acres, and in so doing it was not liable to appellee in that action for damages accruing by reason thereof to the remainder of appellee’s property. We do not understand this to be the law. In United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 163, 55 L.Ed. 165, 31 L.R.A.(N.S.) 1135, the Court said: “Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted.” That rule has been undeviatingly followed, both by prior and subsequent decisions, and it constituted ample authority to- warrant the court requiring appellant to make its complaint more specific by describing the intended use of the 1.6 acres. Before making the order the court was not required to pass upon the merits of appellee’s claims for they were not yet filed. Indeed, they could not be, until the information upon which they were based was presented by appellant as a result of the order.
At the trial the Government’s theory was developed more clearly, qnd appellee’s claims were presented with particularity. The latter extended over a territory twenty-eight miles in length immediately above the dam, and included damages at Beef Slough, the Chippewa river and valley and Rush River, which appellee claimed were proximately caused by the dam impounding the water.
In the meantime, after the commissioners had made their award in Cause No. 3683, which included damages to appellee’s property at Beef Slough, the Government filed its second suit, No. 3767, by which it sought to condemn a limited flowage easement at Beef Slough, alleging that it had already appropriated the land upon which the dam was to be- constructed. This, of course, included the 1.6 acres referred to in cause No. 3683. At this time there had been a change in the personnel of the District Court by virtue of the appointment of a new judge. The matter was referred to commissioners who reported damages in the second suit and from that report appellant also appealed to the District Court.
Both appeals being consolidated for trial, appellee proceeded on the theory, which the court adopted, that by virtue of the physical appropriation of the 1.6 acres, the Government impliedly agreed to compensate appellee for all proximate damages to its remaining property occasioned by the construction and use of the dam, and that recovery therefor was authorized by the Tucker Act, 28 U.S.C.A. § 41 (20); that unless appellee presented all of its claims for proximate damages to its remaining property at the time of the physical appropriation of the land it would be barred thereafter from recovering those omitted. Obviously appellee’s contentions in these respects are sound. True, appellee was’permitted subsequently to prove damages at Beef Slough which already had been proved, over the Government’s objection, in the first suit, but that was because of the Government’s voluntary act in bringing the second action, which seems to us to have been superfluous, and inconsistent with the rule in United States v. Grizzard, supra. If appellee had not asked that the complaint in the first action be made more specific, or if it had not presented its claim in that action for damages to its remaining property, but had merely gone to award on the value of its interest in the 1.6 acres of land, it might have been placed in a very embarrassing situation in its effort to recover damages to the remaining property on the theory of an implied contract, especially if the Government had chosen not to file any subsequent action for flowage easements, and certainly it was not necessary for it to do so. Moreover, if, under such circumstances, it subsequently filed the second suit for the flowage easement at Beef Slough, that of itself would hare furnished no basis for proving damages at the Chippewa or Rush river, for the injurious flow-age at Beef Slough was not the cause of the damage at the other places. The primary cause of the damage at each place was the construction and use of the dam on the land that was physically appropriated for that purpose, including the 1.6 acres. The Government contends, however, that as a result of the court’s theory it was compelled to accept and pay for more rights than it asked. This might be true, under a given state of facts, with respect to the second suit, and it furnishes an additional reason for the consolidation. The objection is not tenable as to the first action, because by its filing the Government impliedly agreed to pay for all damages to the remaining property, proximately caused by the use of that which it had physically appropriated. Hence it will be presumed to have demanded the right to cause the damage for which it was liable.
The character of appellant’s contention in this respect would seem to recognize the rule in the Grizzard Case, supra, and to manifest a legitimate purpose to place appellee, if it could, in the position to which we have just made reference. Hence, we think the court properly consolidated both cases for trial, thus not only avoiding any duplication of damages, and perhaps a multiplicity of suits, but securing to appellee an opportunity to have adjudicated all of its damages, if any, for which the Government was liable by reason of the physical appropriation of appellee’s land for its intended use.
True, there may have been instances of condemnation of land by the Government, where the taking constituted a sufficient basis for an implied promise on the part of the Government to compensate the owner for all proximate damages to his remaining land, and yet no damages were allowed. This was not because of any departure from the rule of measurement, but because the damage was uncertain, remote, speculative, or not proximately caused by the taking, or was caused by some intervening agency for which the Government was not liable. Likewise there have been cases where there was no physical appropriation, hence there was no implied promise, and the actions were based solely on tort for which the Government is never liable, and for which no citizen can sue. None of these cases is in conflict with the Grizzard Case. Illustrative of these cases is Christman v. United States, 74 F.(2d) 112, decided by this court. There an old dam in the Ohio River, at Louisville, was replaced by a new one eight feet higher tnan the old one. It was of modern type which permitted the wickets to be lowered, and they were always lowered in time of flood, • so that at those times the river had an unobstructed flow. Appellant owned a farm on a nonnavigablé tributary creek of the Ohio. The mouth of the creek was 54 miles up-stream from the dam, and the farm was 4 miles up the creek. There was no permanent filling of the creek channel as a result of the new dam. A part of Christman’s land was overflowed by the creek as a result of freshets from adjacent hills, and by backwater from the Ohio in times of flood. That had always been true and the dam had not affected the frequency, the extent or the duration of the overflows. The Government had not appropriated any part of the owner’s land by condemnation, or otherwise, and under those circumstances we sustained the finding of the District Court that there was no damage as a proximate result of the new dam for which the Government” was liable.
In United States v. Chicago, B. & Q. R. Co. (C.C.A.) 82 F. (2d) 131, 106 A.L.R. 942, the Government had condemned a certain floodway easement on and over a part of this appellee’s right of way and embankment near Hastings, Minnesota. It was made necessary by the construction of a dam in the Mississippi, as a part of the general navigable improvement plan of that river, out of which the subject matter of the instant case arose. The court there, in a clear and well-considered opinion, distinguishes the classes of cases to which we have referred, from the rule in the Grizzard Case, which it followed. It is sufficient to say, without further discussion, that we concur in the conclusions of the Eighth Circuit in that case in following the rule in the Grizzard Case.
It is contended by the Government that the verdict of the jury was based on damages which Were consequential, remote and speculative. We think it can not be denied that ail the damages covered by the verdict were indeed very real, and were quite conservatively estimated on substantial evidence. But, of course, if they were not proximately caused by the physical appropriation of the 1.6 acres, and the uses to which it was put, the verdict and judgment to that extent would be erroneous. Aside from the questions hereinafter discussed, however, we are convinced that all the damages covered by the verdict were proximate, and were not speculative, consequential or remote.
The record is quite voluminous and it would be impracticable to attempt to treat in detail the evidence affecting each item of damage. As this contention involves questions of fact we shall consider generally the evidence which we think substantially supports the verdict and judgment. The soil in this area is quite subject to erosion. The tributary rivers here involved carry enormous amounts of silt annually into the Mississippi which in turn, before the construction of the dam at Alma, carried it, or a greater portion thereof, down stream. The Chippewa, due to the declivity of its channel, has a very rapid flow, and hence deposits more silt in the Mississippi than any other stream in that area. It is illustrative, however, of what happened in a lesser degree with respect to all the streams. When the Mississippi was at normal low water mark it readily received the silt from the Chippewa, but at high water stage the waters of the Mississippi backed up into the mouth of the Chippewa, thus retarding the Chippewa’s flow and causing the silt to be deposited in its bed. When the waters subsided in the Mississippi, the current of the Chippewa again carried its silt, and much of that which had been deposited, into the Mississippi. It was said that the excessive deposits of silt from the Chippewa in years gone by had raised the bed of the Mississippi at this point, which resulted in the formation of Lake Pepin, just above it. The deposit of silt in the Chippewa, under circumstances as above stated, had caused the waters of the Chippewa to overflow its banks, thus causing distributaries, some temporary, and others oJ; a more or less permanent character. It was said, without denial, that Beef Slough had its origin, many years ago, as one of such dis-tributaries. It wended a devious course down the Chippewa Valley and entered the Mississippi at a point about nine miles below the mouth of the Chippewa. Fifty years ago Beef Slough was navigable, as was also the Chippewa, for quite a distance above its mouth. A few industries were located upon Beef Slough and used it as a means of transportation, the principal one being a logging company, which conducted an extensive business. The waters of Beef River likewise carried enormous amounts of silt, and on account of excessive deposits in its bed, it became less navigable throughout the years, and for that reason the logging company ceased business and moved its plant in 1889. The course of Beef Slough in numerous places has changed by the formation of distributaries, and many places which used to constitute the bed of the Slough have been covered with trees and vegetation for many years and are now used as pasture land. For many years there have been no industries located on it, and it has not been used for navigable purposes. Several years ago the Government constructed a dam and wing walls at or near the mouth of the Slough for the purpose of protecting and preserving the channel of the Mississippi against the ravages of the Slough, and they are referred to as a matter of special care to the Government in the permit issued to appellee by the Secretary of War, which has been hereinbefore referred to.
The damages awarded by the verdict were caused by the necessity of appellee raising and protecting its embankment, and raising and extending its bridges. They are especially referred to in interrogatories numbered 7 to 28, inclusive. The thirtieth merely asks for the total amount of the damages. Aside from the question of liability, it is obvious to us that the damages referred to in the 7th and 8th interrogatories were proximately caused by the dam. It would seem that this fact was conceded by the Government, except as to amount, by filing its second suit.
The other items of damage are based on the theory that the permanent raising of the water in the Mississippi above its natural flow will hold back the natural flow of its tributaries, causing the deposit of silt therein, thus raising the floors of the tributaries, which in turn will cause their overflow and the formation of distributaries, thereby flowing the water against appellee’s embankments, which in their present condition are not of sufficient height to withstand it, nor are their bridges of sufficient height and length to permit the water to pass. There is no doubt of the happening of this condition. It was not controverted. The only uncertainty involved related to the time when it would occur. The jury’s answers in this respect were based on substantial evidence from witnesses whose reputation and integrity were unquestioned and whose ability and knowledge were unassailed. We think the answers were fully justified, and that the damages awarded were the proximate result of the building of the dam; that there was no independent intervening” cause; and that the damages were neither remote, consequential nor speculative.
The public easement of navigation is limited to the natural levels, widths and flows of navigable streams, and riparian owners have a right to erect and maintain their properties in reliance upon those limitations. True, the burden of the natural servitude may be increased by the Government, but not without just compensation. United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L. Ed. 539; United States v. Chicago, B. & Q. R. Co., supra; United States v. Wheeler township (C.C.A.) 66 F.(2d) 977. Appellee’s properties were constructed in reliance upon the natural level, width and flow of the Mississippi in this area. True, it was subjected to attendant inconveniences and perhaps- damage by floods and temporary high waters, but appellee’s properties were constructed with that in view. The line of ordinary high water divides the upland from the river bed. The river bed is the land upon which the action of the water has been so constant as to destroy vegetation. It does not extend to nor include the soil upon which grasses, shrubs and trees grow. Harrison v. Fite (C.C.A.) 148 F. 781. Beyond that point the Government can not go without compensation for proximate damages.
It is contended by the Government that the impounded water does not, and will not, extend beyond the ordinary high water line. The' location of this line was disputed. The answer to interrogatory No. 6, submitted at the request of appellant, settles that dispute so far as this court is concerned, for it is supported by substantial evidence. A preponderance of the evidence supports appellee’s contention that the impounded water will extend above the ordinary high 'water mark as established by the jury, especially if the water is maintained at a mean'sea level of 667 feet at the dam, as provided by the plans and as now constructed. The Government attempts to parry this fact by the statement that, although the construction is sufficient to create such a mean sea level at the dam, the Government intends to maintain at that point only such water level as will maintain a mean sea level of 667 feet throughout the pool. It accordingly asked, at the conclusion of the evidence, for a nunc pro tunc order permitting it to amend its complaint by substituting the words “throughout the pool area” for the words “at the dam,” in the following averment: “The dam shall have a' crest elevation of 667 mean sea level intended to provide a pool no higher than 667 at the dam.” This request was denied by the court and we think rightly so. The dam was constructed, the right of use to its full capacity was fixed, and appellee’s damages could not then be limited by an averment that the Government did not intend to exercise its full right. Moreover, an elevation of 667 throughout the pool would include that portion of the pool next to the dam, and no matter what the elevation be at the dam it is bound to be higher further up stream. It can not be the same at one time throughout the pool. Under these circumstances the railroad’s compensation must be based upon the maximum use of the right acquired, rather than.upon its maximum intended use. Western Union Telegraph Company v. Polhemus (C.C.A.) 178 F. 904, 29 L.R.A.(N.S.) 465.
It is further contended by the Government-that the Chippewa and Beef rivers and Beef Slough are navigable waters of the United States, and that Beef River and Beef Lake are navigable waters of Wisconsin, hence the Government may, in the improvement of navigation, permanently raise the water level to the line of ordinary high water without liability. The answers to interrogatories numbered 1, 2, 3, 4 and 5 are determinative of this contention of navigability adversely to appellant. The answers are supported by substantial evidence which is quite convincing. See Harrison v. Fite (C.C.A.) 148 F. 781. By submitting these interrogatories appellant must have assumed, as we do, that they involved mere questions of fact. The answers thereto being supported by an abundance of substantial evidence we can not disturb them.
It is also contended by the Government that appellee’s property at certain places is constructed within the bed of the Mississippi. This contention refers more particularly to the 1.6 acres, and the embankment and tracks across Beef Slough. The answers to the interrogatories are utterly inconsistent with this contention. A perusal of the record convinces us that the contention is not sound, and the filing of tlie two condemnatory actions, wherein the Government impliedly agreed to pay damages therefor, gives us further assurance that our conclusion in this respect is correct. Appellant, however, regards the permit of the Secretary of War, and the application therefor, as an admission on the part of appellee that the Slough was a part of the Mississippi and was navigable. The facts of this record, however, disclose that the Slough was never a part of the Mississippi, except as a tributary, and that neither the Government nor the State of Wisconsin has regarded it as navigable for almost fifty years, except for the Government’s claim in the belated hours of these actions. The acts of appellee with respect to the permit may well be considered as merely precautionary, and they raise no inference against it. It is also noted that the land office surveyors had meandered the Slough and perhaps all other waters here involved, but that fact raises no inference as to their navigability because the land office had no authority to determine that fact. Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771; United States v. Ladley (D.C.) 4 F.Supp. 580.
Eight years after appellee had constructed its embankment across Beef Slough, and almost two years after the trial of these cases, the Secretary of War revoked the permit. This was of no avail to the Government’s right to prevail in these actions, first, because the waters of Beef Slough are not navigable; second, because the dredging had already been accomplished, and before it could be removed under the terms of the permit, if at all, it must have appeared that future operations by the United States required an alteration in the position of appellee’s authorized structures, or in the opinion of the Secretary of War, it would cause unreasonable obstruction to the free navigation. None of these facts were found by the Secretary of War, and there was no hearing upon them. We think Miami Beach Jockey Club v. Dern, 65 App.D.C. 369, 83 F.(2d) 715, upon which the Government relies, is not in point. In that case there was a hearing before any work had been done, and the waters involved were navigable.
It is further contended by the Government that appellee failed to establish any interest in the 1.6 acres condemned in Cause No. 3683. The action was required to be prosecuted in accordance with the laws of Wisconsin. See 33 U.S.C.A. § 591. It is the law of that state that where proceedings are instituted to condemn property, and the petition recites, as it must, title and ownership or interest by the defendant, the condemnor is thereby bound by such expressed recognition of title, and cannot be heard to assert the contrary nor compel one recognized as owner to prove or defend his title. Murray Hill Land Co. v. Milwaukee L., H. & T. Co., 126 Wis. 14, 104 N.W. 1003; Skalicky v. Friendship Electric Light & Power Co., 193 Wis. 395, 214 N.W. 388. The complaint in No. 3683 did not directly allege ownership in appellee, but rather a claim of ownership, and we are inclined to think that was sufficient under section 32.04, Wisconsin Statutes (1929). During the trial the Government never made any claim that it owned any part of this land, but tacitly acquiesced in appellee’s claim of ownership, and by instituting the action impliedly promised to pay for its value. Some of the purported title papers introduced without objection perhaps did not constitute the best evidence, such as uncertified copies and the like, but under the issues presented, appellee was not required to prove a merchantable title. See Tenney Telephone Co. v. United States (C.C.A.) 82 F.(2d) 788. There was no adverse claim presented to appellee’s claim, and there was testimony given that the 1.6 acres was'a part of appellee’s right of way through Alma, which it had owned and used as a right of way since 1884. This we think was sufficient to establish appellee’s claim of title.
The Government further contends that admittedly the By Golly Creek bridge was erroneously constructed too low to meet conditions as they were before the dam was built, and that is true. But appellee at the trial expressed its willingness to pay for curing that error, and its correction by appellee was contemplated by interrogatory 12, submitted by appellant. The answer is responsive thereto in view of the evidence with respect to the entire cost of the new bridge as it should now be. In other words, the evidence discloses that appellee will be required to pay considerably more for the new bridge at that point than the amount of the award in answer to interrogatory No. 12.
Many other contentions were made by the Government, including divers objections to the court’s rulings with respect to the admission of evidence. 'All these we have examined where there were proper objections made and proper exceptions saved, and we find no reversible error.
The Government also contends that the court erred in giving and refusing to give certain instructions. We are convinced that those refused were properly denied, and that those given, considered as a whole, constituted as fair a presentation of. the law on the issues involved as the Government was entitled to.
The Government further contends that the court erred in not requiring the jury to return a separate verdict in each case. There is no merit in this contention. At the close of the evidence the Government filed its written motion for a special verdict and tendered therewith 37 interrogatories for the jury to answer. The motion was entitled United States * * * vs. Certain land in Buffalo County, Wisconsin, containing 1760 acres; * * * et al., No. 3683 Law, No. 3767 Law. Of the interrogatories submitted to the jury those numbered 1 to 28 inclusive, were identically, or substantially, the same as twenty-eight of those requested by the Government. Those submitted to the jury, numbered 29 and 30, were not included in the Government’s request. The answer to interrogatory 29 is a complete answer to the question raised by the issues in the first action according to appellant’s contention. That, plus the answer to interrogatory 30, is completely responsive to the issues raised in the first action according to appellee’s theory, and it includes the issues attempted to be raised by the second suit. The
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_usc1
|
12
|
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.
AMERICAN LEGION POST NO. 90 OF VILLAGE OF MAMARONECK et al. v. FIRST NAT. BANK & TRUST CO. OF MAMARONECK et al.
No. 396.
Circuit Court of Appeals, Second Circuit.
July 22, 1940.
Burton C. Meighan, Jr., of New York City (Meighan & Necarsulmer and Louis A. Marchisio, all of New York City, and James S. May, of White Plains, N. Y., on, the brief), for plaintiffs-appellants.
Monroe J. Cahn, of White Plains, N. Y. (Lynch & Cahn and Harold M. Miller, all of White Plains, N. Y., on the brief), for defendants-appellees.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
CLARK, Circuit Judge.
In 1921, 83 citizens of the town of Mamaroneck subscribed a total sum of $15,641.75 towards the purchase of premises to be used for the erection of a Community House as a memorial to the veterans of the World War. Title to the land purchased was taken in the name of one McArdle, one of the subscribers to the fund. After this first flush civic spirit seems to have lagged somewhat, and funds were not forthcoming for the building of the house itself. In due time, therefore, decision was made by the subscribers to sell the premises, and by November, 1928, a purchaser was found for the land for the sale price of $160,000.
Meanwhile McArdle had died, and his wife, who took title to the property, deeded it to The First National Bank and Trust Company of Mamaroneck (the “old bank”) according to the arrangements which had been made on the advice of a title company for the proper effectuation of the contract of sale. The old bank accepted the conveyance, entered into the contract of purchase, eventually conveyed the property to the purchaser, and received back part of the purchase money in cash and a purchase money mortgage in the sum of $130,000 payable by March 1, 1930. Payments were made in due course, so that, by May IS, 1930, the old bank had received a final payment of the entire purchase sum, together with interest accruements. It made certain disbursements of expenses and payments on the principal to the subscribers. In January, 1932, the “new bank,” First National Bank of Mamaroneck, was organized to assume all the liabilities and obligations of the old bank; but it failed in January, 1933, at which time the Comptroller of the Currency found it to be insolvent and appointed a receiver for it. The old bank was likewise declared insolvent and a receiver appointed in February, 1934. The payments made against the account by the two banks totaled $102,318.81, leaving a balance on hand of $60,964.39, the amount here involved at the time of the failure of the new bank. The matter was before this court and these facts are recited in the case of Meeker v. Durey, 2 Cir., 92 F.2d 607, involving the issue of income tax liability on these funds. The present questions are whether the fund was held by the banks as a general deposit or as a trust, and if the latter, whether or ■ not certain securities set aside by the banks for their trust funds pursuant to statute may now be availed of for the payment of the balance due. The district court found only a general deposit and allowed plaintiffs merely their general claim.
The plaintiffs are a portion of the original subscribers .to the fund who are suing on behalf of themselves and all others similarly situated. The court below found that they were proper representatives of all the subscribers, and that this action was properly brought as a class suit under former Equity Rule 38, 28 U.S.C.A. following section 723, and Federal Rule 23, 28 U.S.C.A. following section 723c; that portion of the judgment below is not the subject of appeal. Nor is there appeal from so much of the judgment as allots to the subscribers a refund of income taxes in the amount of $20,188.99 secured by the receiver as a result of Meeker v. Durey, supra. In that case, which was a suit by the receiver of the new bank against the estate of the Collector of Internal Revenue, the plaintiff claimed a refund of taxes assessed against him as trustee or fiduciary in respect of this same fund. We held that the bank was not taxable as a fiduciary, since under New York law the deed to McArdle and the later deed to the bank gave rise only to a so-called passive trust; and we made an alternative ruling that even if the bank was a fiduciary, the income, consisting of gains on the sale, was not accumulated for the benefit, of unborn or uncertain persons. Hence the income, if any, was taxable to the subscribers, and' not to the bank.
The controlling statutory provisions in issue here are contained in a lengthy .'section of the Federal Reserve Act, § 11 (k), 12 U.S.C.A. § 248 (k), authorizing and empowering the Board of Governors of the Federal Reserve System to grant by special permit to a national bank applying therefor the right to act as trustee and in various other named representative capacities, including those of executor, administrator, or receiver, “or in any other fiduciary capacity” in which competing state banks may act. It is provided that national banks exercising the powers enumerated in this subsection “shall segregate all assets held in any fiduciary capacity from the general assets of the bank and shall keep a separate set of books and records showing in proper detail all transactions engaged in under authority of this subsection.” Then it is stated that “No national bank shall receive in its' trust department deposits of current funds subject to check or the deposit of checks, drafts, bills of exchange, or other items for collection or exchange purposes.” Next follows the provision specifically in issue: “Funds deposited or held in trust by the bank awaiting investment shall be carried in a separate account and ■ shall not be used by the bank in the conduct of its business unless it shall first set aside in the trust department United States bonds or other securities approved by the Board of Governors of the Federal Reserve System.” And the statute continues that in event of the bank’s failure the owners of the funds held in trust for investment shall have a lien on these securities so set apart, in addition to their claim against the estate of the bank.
In this case each of the banks here involved treated the funds received from the sale of the Community House property as part of its trust funds, carried the accounts thereof in its trust department, and set aside securities for the protection of this fund and its other trust funds. The method which was followed was not the allocating of separate securities of the bank to each trust fund, but merely the earmarking for the trust department of securities generally to cover the shifting balance due the trust department for all its trust funds. Since the assets of the bank set aside for the trust department are adequate to cover all the trust accounts, including the account now under discussion, it is obvious, and indeed not disputed, that the bank intended to protect this fund as a trust fund. The objections made are really three: that the fund was only a general deposit without priority, and the course of dealing indicates an intention that the bank should use the funds for its general purposes; that there was no agreement with the subscribers to hold the funds “for investment,” but only for distribution, thus taking the matter outside the quoted statute; and that, since no securities were set aside separately for .this particular fund, there were no securities available to which priority might attach.
1. We are clear that the hanks held the funds in a fiduciary capacity, and that the arrangement created something more than a general deposit. It is true that the court below made a specific finding of fact, which it repeated as a conclusion of law, that no agreement was at any time requested of, or made by, the old bank or the new bank that the said money should be held in trust or deposited in the trust department of the bank, or be invested on behalf of the contributors, or in any manner secured, with a further finding that the batiks carried the account in the trust department merely as a matter of convenience to themselves. There was testimony by the president of the old bank indicating that the funds had been received in trust, but this the court seems to have rejected. We think effect may he given to the finding to the extent of its holding that no express agreement as to the manner of carrying the fund was made; but a conclusion of law that this account was only a general deposit does not necessarily follow therefrom and is in truth at variance with other facts either admitted or clear of record.
As early as 1921 the McArdles executed a formal document expressly declaring that title to the property was held by Mr. Mc-Ardle “only as an intermediary” until it should be determined by the persons in charge of the Community House movement that it should be deeded to some one else, and they thereby agreed to deed the same when and how properly directed. From time to time thereafter McArdle was referred to as trustee of the Community House property. The bank, when it took title with full knowledge of this arrangement, necessarily did so as a similar “intermediary.” True, the language used seems to signify that McArdle first and the banks later were not to be express trustees. Indeed, it is made clear throughout that the subscribers to the fund or a committee thereof should give directions as to the disposition of the property. On the other hand, it is quite evident that these parties were acting as fiduciaries, and the characterization of the situation as a passive trust in our earlier decision seems the most apt designation. Certainly while the bank held title to the real estate it was something more than a mere debtor to the subscribers for the amount invested in the realty. When it collected the proceeds, it could hardly have altered its character to that of a mere debtor unless it acted in a manner clearly evidencing its intent to do so and unless the subscribers knew of and acquiesced in the change. Neither of these conditions is shown to have occurred.
Stress is placed upon the circumstance that the attorney for the subscribers, who was also attorney for the bank, requested deposit of tlie fund in the interest department of the hank, and later requested that the deposit be held so as to produce interest. But it is difficult to see why this circumstance, if it has any persuasive force, does not tend to indicate that the fund was held by the bank as a trust, rather than as a general deposit. A bank acting as trustee or fiduciary would be expected to produce an increment on funds in its hands. It would also naturally receive a fee for its services, as was the case here.
We turn to the “course of dealing” relied upon by the district court to show that the banks could use the funds for their general purposes. All incidents referred to seem either undecisive or even more suggestive of the fiduciary relationship than of the contrary. . First is the cii-cumstance just noted — that interest was credited at the rate of 3 per cent — a course which would seem to be more natural for trust funds than for general deposits. Next reference is made to the fact that the money was left with the bank for a long period of time. Such delay is explained by necessary incidents of the entire transaction, including the litigation with reference to income taxation; the delayed payments provided for in the contract of sale; the necessity of ascertaining who were the present representatives of the original subscribers, leading to the institution of a suit in the state court to determine such ownership; and the financial difficulties, the attempted reorganization, and the later receiverships of the banks. Finally, the large amounts disbursed 'from time to' time for expenses and attorney’s fees, directed by the committee, seem without particular significance. Of 'course, it was the committee, not the bank, which was in general charge of the transaction. But that, we think, goes no further than to show the relationship to be a passive, rather than an express, trust.
We conclude that, notwithstanding the district court’s finding, the account must be considered as one held by the banks in a fiduciary capacity, and not as a general account. In re Kountze Bros., 2 Cir., 103 F.2d 785, is not in point. There funds were deposited for a claimed special purpose, but we held the proof insufficient to show that there was an. intended segregation from the general accounts. There the private bankers did no.t hold the funds in a fiduciary capacity.
2. Perhaps more serious is the further claim that these were not funds held in trust “awaiting investment” and hence without the statute. We think, however, that this is too narrow a construction of the statute, and really defeats its intent. If trust funds held for investment are subject to the. statute, but trust funds held for distribution are only general assets of the bank, then we find a serious difference in result following from a very slight, even formalistic, change in the relations of the parties. It would be no great stretch to term this a fund held “for investment,” particularly since the desire of the subscribers for some increment on their funds was made so clear. It was not to be fully paid in for a year and a half; it was to bear interest at a substantial rate; it was subject to various difficulties of adjustment, including income tax litigation and other litigation which remained unsettled on the bank’s failure more than four years after the first receipts were had.
Moreover, a broader interpretation should be given to the statute. We think that the provisions for security include in general the fiduciary funds which the- bank is required to keep segregated from its general assets. Such, indeed, is the view taken by the Board of Governors of the Federal Reserve System in their Regulation F promulgated under the power to issue regulations granted by this same statute. This regulation provides that when funds received and held in the trust department of a national bank “awaiting investment or distribution” are deposited in the commercial or savings department of the bank to the credit of the trust department, security for the deposit must be provided in the shape of United States bonds or other specified assets of the bank. Defendants assert in their brief that this regulation was not called to the attention of the court below, and .that therefore we cannot take judicial notice of it. It seems, however, that, while an appellate court is not obligated to notice matters not brought to the attention of the trial court, Line v. Line, 119 Md. 403, 86 A. 1032, Ann.Cas.1914D, 192, yet it may take such notice where- necessary either to affirm, or to show the impropriety of, a decision below. Hunter v. New York, O & W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L.R.A. 246. With respect to a regulation required by the statute for the carrying into effect of its terms, we should not hesitate to take judicial notice so far as is necessary. The point is not decisive here, since all we are saying is that the interpretation made by the Board of Governors of the Federal Reserve System accords with our own. It also accords with the conclusions reached in the other cases cited. Carcaba v. McNair, supra; Fesenmeyer v. Salt Springs Nat. Bank, supra; see also Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184.
3. We do not think the objection that the securities were provided for all the trust funds without definite segregation is sound, especially when asserted by the bank’s receiver. Regulation F above does not require segregation. Such a course, if required, would be a burdensome one, undoubtedly adding to the expense of carrying a trust account, particularly in the case of smaller trusts, We do not see how it adds very much to the security of the funds; it may indeed make each fund less secure by restricting the securities available to it in the event of the bank’s failure. Cf. Legis., 37 Col.L.Rev. 1384. At any rate we think the intent of the statute was complied with. This makes unnecessary consideration of the further question of tracing of the trust funds argued in the briefs.
Plaintiffs also argue that adjudication should be had as to securities totaling $20,000 on deposit with the Superintendent of Banks of the State of New York by the new bank for the benefit of its trust funds. While the problem as to such funds would seem identical with that before us, no issue was made as to them by the case below, and we do not pass upon the matter,
We think that the securities which the new bank had set aside for the purpose of protecting these funds were legally available for the intended purpose and should be so employed. The judgment is therefore reversed to provide for this re-sulk
This particular provision, has been held to he a prohibition against receiving deposits of third persons and not applicable to deposits' of funds held by the bank itself. Carcaba v. McNair, 5 Cir., 68 F.2d 795, certiorari denied 292 U.S. 646, 54 S.Ct. 780, 78 L.Ed. 1497; cf. Fesenmeyer v. Salt Springs Nat. Bank, 2 Cir., 92 F.2d 599; and see, also, Ticonic Nat. Bank v. Sprague, 1 Cir., 90 F.2d 641, affirmed 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926.
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_jurisdiction
|
A
|
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.
KANE, WARDEN v. GARCIA ESPITIA
No. 04-1538.
Decided October 31, 2005
Per Curiam.
Respondent Garcia Espitia, a criminal defendant who chose to proceed pro se, was convicted in California state court of carjacking and other offenses. He had received no law library access while in jail before trial — despite his repeated requests and court orders to the contrary — and only about four hours of access, during trial, just before closing arguments. (Of course, he had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials.) The California courts rejected his argument that his restricted library access violated his Sixth Amendment rights. Once his sentence became final, he petitioned in Federal District Court for a writ of habeas corpus under 28 U. S. C. § 2254. The District Court denied relief, but the Court of Appeals for the Ninth Circuit reversed, holding that “the lack of any pretrial access to lawbooks violated Espitia’s constitutional right to represent himself as established by the Supreme Court in Faretta [v. California, 422 U. S. 806 (1975)].” Garcia Espitia v. Ortiz, 113 Fed. Appx. 802, 804 (2004). The warden’s petition for certiorari and respondent’s motion for leave to proceed in forma pauperis are granted, the judgment below is reversed, and the case is remanded.
A necessary condition for federal habeas relief here is that the state court’s decision be “contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1). Neither the opinion below7 nor any of the appellate cases it relies on, identifies a source in our case law for the law library access right other than Faretta. See id., at 804 (relying on Bribiesca v. Galaza, 215 F. 3d 1015, 1020 (CA9 2000) (quoting Milton v. Morris, 767 F. 2d 1443, 1446 (CA9 1985))); ibid. (“Faretta controls this case”).
The federal appellate courts have split on whether Faretta, which establishes a Sixth Amendment right to self-representation, implies a right of the pro se defendant to have access to a law library. Compare Milton, supra, with United States v. Smith, 907 F. 2d 42, 45 (CA6 1990) (“[B]y knowingly and intelligently waiving his right to counsel, the appellant also relinquished his access to a law library”); United States ex rel. George v. Lane, 718 F. 2d 226, 231 (CA7 1983) (similar). That question cannot be resolved here, however, as it is clear that Faretta does not, as § 2254(d)(1) requires, “clearly establis[h]” the law library access right. In fact, Faretta says nothing about any specific legal aid that the State owes a pro se criminal defendant. The Bribiesca court and the court below therefore erred in holding, based on Faretta, that a violation of a law library access right is a basis for federal habeas relief.
The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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:
|
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.
KEYES v. UNITED STATES.
No. 7743.
United States Court of Appeals for the District of Columbia.
Argued Jan. 9, 1941.
Decided March 10, 1941.
W. Gwynn Gardiner and James M. Earnest, both of Washington, D. C., for appellant.
Alexander H. Bell, Jr., of Washington, D. C., for appellees.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
GRONER, C. J.
This is an action begun by the Attorney General of the United States at the instance of the Alley Dwelling Authority to condemn certain real estate in the District of Columbia for the construction of dwellings for families and persons of low income. Appellant, the owner of two parcels within the area to be condemned, objected on a number of grounds. The trial court found her return to the rule insufficient as a matter of law, and granted the prayer of the petition, as a result of which appellant was required to surrender possession of her land. We allowed a special appeal.
In the argument here, appellant insists that her return contained meritorious defenses in the following respects: (1) The property cannot he condemned under the District of Columbia Alley Dwelling Act because it is neither in a square containing an inhabited alley nor necessary to provide accommodations for persons deprived of homes by the demolition of alley dwellings. (2) It cannot be condemned under any other housing laws because there is no showing either that it is unsanitary or unsafe or that the project includes the the demolition of a number of unsafe or unsanitary dwellings substantially equal to the dwellings to be constructed. (3) The legislative declaration on the un-healthfulness of alley dwellings upon which the validity of the law is said to depend, was based on a mistake or on facts which no longer exist. (4) The return contains denials which raise material issues of fact. (S) The Act is unconstitutional in that it authorizes the condemnation of private property for other than public uses.
We think there is no merit in these points.
In 1934 Congress enacted the “District of Columbia Alley Dwelling Act”, 48 Stat. 930, for the purpose of abolishing all alley dwellings in the District by July 1, 1944. The power to acquire property by condemnation under this Act was limited to squares containing inhabited alleys. By executive order, the President appointed the members of the “Authority” to carry out the Act. The United States Housing Act of 1937, 50 Stat. 888, 42 U.S.C.A. § 1401 et seq., provided for subsidies and loans to local housing agencies, and in 1938 Congress amended the local act, partly to bring it in line with the national plan. 52 Stat. 1186. Title I of the amended act included the original provisions in revised form and authorized the acquisition not only of property in squares containing inhabited alleys but also of other property necessary to provide accommodations' for persons deprived of homes by-the demolition of alley dwellings. Title II, added by the amendment, provided in § 202 that: “In addition to its other powers, the Authority shall have the power to acquire sites for and to prepare, carry out, acquire, lease, and operate housing projects, as defined in section 201 of this title, and to construct or provide for the construction, reconstruction, improvement, alteration, or repair of any such housing project, or any part thereof, in the District of Columbia.”
Section 201 referred to defined housing project to mean “any low-rent housing (as defined in the United States Housing Act of 1937), the development or administration of which is assisted by the United States Housing Authority”. Acting under this provision, the Authority addressed to the Attorney General a communication stating that it had received from the United States Housing Authority a loan of funds for the development of a low-rent housing project, that funds were available for the acquisition of the property required to be condemned, requesting the institution of proceedings to acquire by condemnation the property of appellant, ^ and stating “This acquisition is for the public use and purpose of effectuating the declared policy of Congress by providing dwellings for families and persons of low income in the District of Columbia”.
We are of opinion that the quoted paragraph from Title II of the Act vested in the Authority power to condemn sites for low cost housing projects in addition to and wholly independent of the provisions of Title I of the Act to provide facilities to persons whose alley dwellings have been demolished. This view is fortified by the language of Section 203, which provides that the local Authority shall be an agency to carry out the purposes of the national housing Act, and the provisions of the national housing Act declare the policy of the United States to be to promote the general welfare by employing government money to remedy the acute shortage of decent, safe, and sanitary dwellings for families of low income in rural or urban communities injurious to the health, safety, and morals of the Nation. In this view, appellant’s argument that Title I of the Act does not authorize the taking of her property, because the taking has no relation to the demolition of alley dwellings, is wholly beside the case. The resolution to take the land was specifically stated to be under Title II. The request to the Attorney General was likewise based on the provisions under that title, and the petition for condemnation declared and set out those provisions as the authority under which the proceeding was begun. And in Title II there is no requirement, as appellant contends, that the property to be acquired must itself be unsafe or unsanitary or that it can only be acquired in connection with a project which includes the demolition of unsafe or unsanitary dwellings. Of course, the two parts of the Act are related, and the elimination of slums, in the interest of public health and morals, is an important and vital part of the general plan. In fact, the Housing Act of 1937 requires the demolition of an equivalent number of unsafe or unsanitary dwellings as a condition to the grant of the subsidies under sections 10 and 11. This case, however, does not involve any of these subsidies. The acquisition of the property is to be made with the proceeds of a loan granted by the United States Housing Authority under section 9 of the Act, which imposes no such condition. The power to acquire property for housing projects in the District is not confined as contended. Cf. Housing Authority of Dallas v. Higgin-botham, 135 Tex. 158, 143 S.W.2d 79, 89, 90, 130 A.L.R. 1053; Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 23 N.E.2d 665, 668, 669; Chapman v. Huntington Housing Authority, W. Va., 3 S.E.2d 502, 513.
Appellant’s argument that she was entitled to show that alley dwellings are not, as declared, detrimental to public health and morals, comes too late in the history of this type of legislation, even if the point has, as we think it has not, any pertinence to a proceeding under Title II of the Distinct Act. But even if it were otherwise, appellant’s return sets forth only a conclusion that conditions with respect to the use of buildings in alleys as dwellings are not injurious to the public health, safety, morals, and public welfare. Something more is necessary to challenge the legislative declaration. The language of Justice Brandeis in Pacific States Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138, 101 A.L.R. 853, is pertinent: “When * * * legislative action ‘is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge, or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.’ Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 192, 79 L.Ed. 281. The burden is not sustained by making allegations which are merely the general conclusions of law or fact. * * * Facts relied upon to rebut the presumption of constitutionality must be specifically set forth. * * * A motion to dismiss, like a demurrer, admits only facts well pleaded.”
Appellant now contends that her answer raises material issues of fact on which she was denied the right to offer evidence. The argument is general and refers to no particular issue upon which evidence might be introduced or which might be determined in a manner to prevent the acquisition of her land. Upon examination of the record, we find that no substantial issue is raised. In the absence of more direct argument, we must assume that counsel does not seriously press the point.
Nothing more remains except to notice appellant’s objection that the Act is unconstitutional in that it authorizes condemnation of property for other than public uses. Appellant relies on United States v. Certain Lands in City of Louisville, 6 Cir., 78 F.2d 684, 687, certiorari granted, 296 U.S. 567, 56 S.Ct. 154, 80 L.Ed. 400, dismissed, 297 U.S. 726, 56 S.Ct. 594, 80 L.Ed. 1009. The Circuit Court of Appeals there held that the Federal Government had no power to condemn lands in Kentucky for the construction of low rent housing. The court said: “Decisions dealing with condemnation proceedings are to be considered in the light of the powers possessed by the sovereign seeking to exercise the right. What is a public use under one sovereign may not be a public use under another. * * * The State and federal governments are distinct sovereignties, each independent of the other and each restricted to its own sphere. * * * In the exercise of its police power a state may do those things which benefit the health, morals, and welfare of its people. The federal government has no such power within the states.”
If we shall assume that this opinion correctly states the law with relation to an attempt by the United States to condemn property for housing purposes in one of the states (cf. Oklahoma City v. Sanders, 10 Cir., 94 F.2d 323, 115 A.L.R. 363), it has no relevancy to a proceeding begun by the United States in the District of Columbia, for in that District Congress has plenary legislative power — all the power that a state has within the territory of the state, and more (cf. Neild v. District of Columbia, 71 App.D.C. 306, 110 F.2d 246) — and there can be no doubt that a state legislature may validly provide for low rent housing projects and authorize the condemnation of land for that purpose. Beginning with the leading case of New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153, 105 A.L.R. 905, the power under similar statutes has been sustained in a long line of decisions. Housing Authority of Los Angeles v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794; Marvin v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145; Williamson v. Housing Authority of Augusta, 186 Ga. 673, 199 S.E. 43; Krause v. Peoria Housing Authority, 370 Ill. 356, 19 N.E.2d 193; Edwards v. Housing Authority of Muncie, 215 Ind. 330, 19 N.E.2d 741; Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651; State v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725; Allydonn Realty Corp. v. Holyoke Housing Authority, Mass., supra; In re Brewster Street Housing Site in City of Detroit, 291 Mich. 313, 289 N.W. 493; Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656; Lennox v. Housing Authority of Omaha, 137 Neb. 582, 290 N.W. 451, 291 N.W. 100; Romano v. Housing Authority of Newark, 123 N.J.L. 428, 10 A.2d 181, affirmed, 124 N.J.L. 452, 12 A.2d 384; Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834; Knoxville Housing Authority v. Knoxville, 174 Tenn. 76, 123 S.W.2d 1085; Housing Authority of Dallas v. Higginbotham, Tex., supra.
On the whole case, we are of opinion that the action of the lower court was in all respects correct, and it is, therefore, affirmed.
Affirmed.
D.C. Code, Tit. 25:
‘TOO. Whenever ¡the head of any executive department or independent bureau, or other officer of the United States, or any board or commission of the United States, hereinafter referred to as the acquiring authority, has been, or hereafter shall be, authorized by law to acquire real property in the District of Columbia for the construction of any public building or work, or for parks, parkways, public playgrounds, or any other public purpose, such acquiring authority shall be, and hereby is, authorized to acquire the same in the name of the United States by condemnation under judicial process whenever in the opinion of such acquiring authority it is necessary or advantageous so to do; and in every such case the Attorney General of the United States, upon the request of such acquiring authority, shall cause a proceeding in rem for such condemnation to be instituted in the Supreme Court of the District of Columbia, holding a special term as a district court of the United States, which court, is hereby vested with jurisdiction of all such cases of condemnation with full power to hear and determine all issues of law and fact that may arise in the same.”
“109. The petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto—
“(3) A statement of the authority un-dor which and the public use for which said lands are taken.
“(2) A description of the lands taken sufficient for the identification thereof.
“(3) A statement of the estate or interest in said lands taken for said public use.
“(4) A plan showing the lands taken.
“(5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken.
“Upon the filing of said declaration of taking and of the deposit in the registry of the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just compensation awarded, interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment; but interest shall not be allowed on so much thereof as shall have boon paid into the registry. No sum so paid into the registry shall be charged with commissions or poundage.
“Upon the application of the parties in interest, the court may order that the money deposited in. the registry of the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceeding. If the compensation finally awarded in’ respect of said lands or any parcel thereof shall exceed the amount of the money so received by any person entitled, the court shall enter judgment against the United States for the amount of the deficiency.
“Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable.”
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_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.
Richard M. NIXON, Individually and as the former President of the United States, et al. v. Arthur F. SAMPSON, Individually and as Administrator of General Services, et al. Appeal of REPORTERS COMMITTEE FOR FREEDOM OF the PRESS et al. (two cases). The REPORTERS COMMITTEE FOR FREEDOM OF the PRESS et al., Appellants, v. Arthur F. SAMPSON, Individually and as Administrator of General Services. Lillian HELLMAN et al. v. Arthur F. SAMPSON, Individually and as Administrator of General Services, et al.
Nos. 75-2194—75-2196.
United States Court of Appeals, District of Columbia Circuit.
Argued May 10, 1977.
Decided March 22, 1978.
Mark J. Spooner, Washington, D. C., with whom Robert E. Herzstein, Andrew S. Krulwich, Simon Lazarus, III and Leonard B. Simon, Washington, D. C., were on brief, for appellants.
Charles S. Rhyne, Washington, D. C., with whom William S. Rhyne and Richard J. Bacigalupo, Washington, D. C., were on brief, for appellee, Woods.
Rex E. Lee, Asst. Atty. Gen., Irwin Gold-bloom, Deputy Asst. Atty. Gen. and David J. Anderson, Atty., Dept, of Justice, Washington, D. C., were on brief, for appellees, The Administrator of Gen. Services and the Counsel to the President.
Before BAZELON, Chief Judge, LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by BAZELON, Chief Judge.
BAZELON, Chief Judge:
Section 101(b)(1) of the Presidential Recordings and Materials Preservation Act (the Act), Pub.L. 93-526 (1974), 88 Stat. 1695, 44 U.S.C. § 2107 (Supp. V 1975), directs the Administrator of General Services (the Administrator) to take custody of all “papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon.” Appellee, Rose Mary Woods, sought to remove from the Administrator’s custody approximately fifty cartons of material that she claimed was her personal property. Appellants, Reporters Committee for Freedom of the Press, et al., (Reporters Committee), sought to prevent the removal of this material until regulations implementing the Act had been promulgated by the Administrator and accepted by Congress. On December 16, 1977, while this case was under consideration, these regulations became effective. 42 Fed.Reg. 63626 (1977).
I
The background of this litigation is extraordinarily complex. Soon after leaving office Mr. Nixon entered into an agreement with the Administrator of General Services, Arthur F. Sampson, concerning the disposition of the former’s “Presidential historical materials.” Mr. Nixon later brought suit in district court to enforce the implementation of this agreement. Mr. Sampson was a named defendant. Shortly thereafter two groups of plaintiffs, of which Reporters Committee was one, brought suit seeking to have these materials declared the property of the United States government, to enjoin their transfer to Mr. Nixon, and to gain access to them under the Freedom of Information Act. In one action Mr. Nixon was a named defendant, in another he was permitted to intervene. These two actions were ultimately consolidated with the suit brought by Mr. Nixon; the Watergate Special Prosecutor and Jack Anderson, a newspaper columnist, were both permitted to intervene in Mr. Nixon’s suit, the former as a defendant and the latter as a plaintiff. See Nixon v. Administrator of General Services, 408 F.Supp. 321, 331-32 (D.D.C. 1976); Nixon v. Sampson, 389 F.Supp. 107 (D.D.C.1975). These actions came collectively to be known as the “consolidated cases.”
On December 20, 1974, the day after the Act was signed into law, Mr. Nixon brought suit challenging its constitutionality. We stayed all action in the consolidated cases until the Act’s constitutionality could be determined. Nixon v. Richey, 168 U.S.App. D.C. 172, 513 F.2d 430 (1975). However, on August 7, 1975, appellee Rose Mary Woods sought leave to intervene in the consolidated cases in order to recover what she claimed were her personal papers. On September 2, we granted leave to intervene and modified our stay “to enable the District Court, in its discretion, to enter an order ... to authorize the return of the materials sought, nothing herein contained being intended to intimate any view as to the disposition by the District Court of any applications which may be made to it.” Joint Appendix (J.A.) at 35.
Ms. Woods subsequently intervened in the consolidated cases. She claimed that Ms. Mary M. Filippini, Administrative Assistant for the Office of Presidential Materials at the General Services Administration and prior to that a staff member of the Office of Presidential Libraries at the National Archives and Records Service, had examined certain materials and prepared a “List F” containing items that were “solely the personal materials and papers” of Ms. Woods. Ms. Woods sought to recover the approximately fifty cartons of material enumerated in List F. She appended an affidavit of Ms. Filippini in which the archivist stated that she had personally inspected and compiled List F, and that:
Basing my judgment on the same criteria used in collecting Nixon Presidential Materials from other White House staff members and staff offices prior to and since August 9, 1974, I find none of the items described on “List F” . . . to be “Presidential historical materials of Richard M. Nixon.”
J.A. at 89. Ms. Filippini appended to her affidavit an “Exhibit I” containing the “criteria” she had used in compiling List F. This Exhibit I was a White House memorandum of August 9, 1974, stating that:
Personal files include correspondence unrelated to any official duties performed by the staff member; personal books, pamphlets and periodicals; daily appointment books or log books; folders of newspapers or magazine clippings; and copies of records of a personnel nature relating to a person’s employment or service.
J.A. at 91. “Personal files” were those not considered to be historical materials.
Defendant Sampson answered Woods’ complaint and stated that he did not oppose her requested relief. No opposition was voiced by the Special Prosecutor or by any other defendant. Reporters Committee, however, a plaintiff in the case below, filed a “Protective Answer” opposing Woods’ complaint and denying that the materials sought were her personal property. J.A. at 116-18.
On November 19, Ms. Woods filed a motion for judgment on the pleadings stating that the contents of the Filippini affidavit were admitted by defendant Sampson “and remain uncontroverted.” J.A. at 125 — 26. Despite the opposition of Reporters Committee, the district court granted Ms. Woods’ motion on December 2, 1975. It noted specifically that “Defendants do not oppose the relief sought by Plaintiff-Intervenor.” J.A. at 149.
Reporters Committee appealed. Defendant Sampson has filed a brief in this court arguing that the district court’s decision she” Id be upheld.
On March 25, 1976, before oral argument was held on appeal, this court ordered the parties to begin negotiations so as “to stipulate those materials as to which no controversy exists.” We took this step because it appeared “that at least a substantial number of the materials enumerated in List F are so plainly the personal and private property of appellee Woods and so lacking in historical or commemorative value or significance as to preclude any colorable claim that they fall within the reach of Section 101 of the Presidential Recordings and Materials Preservation Act. . . . ”
By the time of oral argument well over half of the materials on List F had been released to Ms. Woods because the parties had stipulated that they were so plainly lacking in historical significance as to preclude any colorable claim that they fell within the reach of Section 101 of the Act.
II
Section 104(a) of the Materials Preservation Act, supra note 1, directs the Administrator to “submit to each House of the Congress a report proposing and explaining regulations that would provide public access” to the Presidential historical materials controlled by the Act. These regulations, however, were not in effect when Rose Mary Woods intervened in the consolidated cases to obtain the return of what she claimed were her personal papers. The ruling of the district court was thus that the affidavit of Ms. Filippini was sufficient, in the absence of such regulations, to establish that the materials sought by Ms. Woods were not within the purview of the Act. The regulations subsequently promulgated, however, set forth standards defining more fully the nature of the materials controlled by the Act and created an elaborate procedural system for the evaluation and transfer of materials according to these standards. 42 Fed.Reg. 63626 (1977). We need not reach the question whether the establishment of this procedural system, by itself, constitutes sufficient grounds now to dismiss Ms. Woods’ suit, see Bradley v. School Board of City of Richmond, 416 U.S. 696, 720, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Nixon v. Administrator of General Services, 433 U.S. 425, 459 n. 22, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), since we hold that the criteria used by Ms. Filippini in compiling List F were not in accordance with the standards required by the Act.
We view the essential question in this case to be the meaning of the “Presidential historical materials” over which Section 101(b)(1) of the Act directs the Administrator of General Services to acquire custody. Section 101(b)(2) states that, “[f]or purposes of this subsection, the term ‘historical materials’ has the meaning given it by section 2101 of Title 44, United States Code.” Appellee argues that § 101(b)(2) thus “adopts the standard of the archival art current at the time of the Act (December 19, 1974) without reference to regulations.” Brief for appellee at 21. Since appellee claims that Ms. Filippini used this standard in compiling List F, she urges that the district court’s judgment be affirmed.
Section 2101 of Title 44 of the United States Code, however, defines historical materials to include “books, correspondence, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects or materials having historical or commemorative value.” While this definition details with some particularity the meaning of the term “materials,” it provides little if any assistance in deciding which of these materials are of historical value. The deliberate vagueness of the section suggests that Congress intended this decision to be made in the context of surrounding circumstances, and specifically with reference to the purposes of the Materials Preservation Act. This conclusion is supported by the legislative history of the Act, which also indicates that Congress intended the Administrator’s regulations to develop guidelines, based in part on the experiences of Watergate, to determine which materials would be controlled by the Act.
The criteria Ms. Filippini used to compile List F, however, were developed before the passage of the Act and before the promulgation of the Administrator’s regulations. Exhibit I, which Ms. Filippini states sets forth the criteria she used in gathering List F, is dated August 9, 1974; indeed, Ms. Filippini is quite frank in stating that her judgment was based “on the same criteria used in collecting Nixon Presidential Materials from other White House staff members and staff offices prior to and since August 9, 1974.” J.A. at 89. We find that these criteria are not consonant with the purposes of the Materials Preservation Act. For example, § 104(a)(1) of the Act speaks of “the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term Watergate . . ..” See Nixon v. Administrator of General Services, 433 U.S. 425, 452-53, 97 S.Ct. 2777, 2795, 53 L.Ed.2d 867 (1977). Many of the abuses of power involved in Watergate were “unrelated to any official duties,” yet under the criteria of Exhibit I it appears that reference to such activities in correspondence would be labeled “personal” and found to be not Presidential historical materials. Similarly, the criteria employed by Ms. Filippini would apparently categorize as personal and not Presidential historical materials the “daily appointment books or log books” that constituted such important evidence in the Watergate affair. Moreover § 104(a)(6) of the Act speaks of “the need to provide public access to those materials which have general historical significance.” The criteria of Exhibit I do not articulate this concern.
Our conclusion that the criteria of Exhibit I are not compatible with the purposes of the Act is supported by the regulations promulgated by the Administrator. Under these regulations the Administrator will specifically retain control over materials related to abuses of governmental power popularly identified under the generic term “Watergate.” See 42 Fed.Reg. 63628 (1977) (to be codified in 41 C.F.R. § 105-63.-401-5). The regulations also have a more inclusive definition of “Presidential historical materials” than that expressed in Exhibit I:
(a) Presidential historical materials. The term “Presidential historical materials” (also referred to as “historical materials” and “materials”) shall mean all papers, correspondence, documents, pamphlets, books, photographs, films, motion pictures, sound and video recordings, machine-readable media, plats, maps, models, pictures, works of art, and other objects or materials made or received by former President Richard M. Nixon or by members of his staff in connection with his constitutional or statutory duties or political activities as President and retained or appropriated for retention as evidence of or information about these duties and activities. Excluded from this definition are documentary materials of any type that are determined to be the official records of an agency of the Government; private or personal materials; stocks of publications, processed documents, and stationery; and extra copies of documents produced only for convenience of reference, when they are clearly so identified.
(b) Private or personal materials. The term “private or personal materials” shall mean those papers and other documentary or commemorative materials in any physical form relating solely to a person’s family or other nonpublic activities, and having no connection with his constitutional or statutory duties or political activities as President or as a member of the President’s staff.
42 Fed.Reg. 63626 (1977) (to be codified in 41 C.F.R. § 105-63.104(a), (b)). Whereas the criteria of Exhibit I would require that that “correspondence unrelated to any official duties” be returned to Ms. Woods, the regulations would classify as “private or personal materials” only those “having no connection with . . . constitutional or statutory duties or political activities . .” The “daily appointment books or log books” that the criteria of Exhibit I would categorize as personal would, under the regulations, be considered at least prima facie Presidential historical materials, since they constitute “evidence of or information about” such constitutional or statutory duties or political activities.
The criteria used in compiling List F thus not having been in accordance with statutory standards, the district court was incorrect in granting judgment on the pleadings. Since an elaborate regulatory scheme has now been established by the Administrator, the most appropriate disposition of this case is to dismiss appellee’s suit without prejudice, and to remand her to her administrative remedies. Should those remedies prove unavailing, she will be able at that time to seek judicial review under § 105(a) of the Act. Since appellee will not be harmed by dismissal, there is no reason for the district court to retain jurisdiction. See United States v. Michigan National Corp., 419 U.S. 1, 5, 95 S.Ct. 10, 42 L.Ed.2d 1 (1974).
The judgment of the district court is therefore reversed and the case is dismissed without prejudice.
So ordered.
. Section 104 of the Act provides that:
(а) The Administrator shall, within ninety days after the date of enactment of this title, submit to each House of the Congress a report proposing and explaining regulations that would provide public access to the tape recordings and other materials referred to in section 101. Such regulations shall take into account the following factors:
(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of government power popularly identified under the generic term “Watergate”;
(2) the need to make such recordings and materials available for use in judicial proceedings;
(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings, to information relating to the Nation’s security;
(4) the need to protect every individual’s right to a fair and impartial trial;
(5) the need to protect any party’s opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials;
(б) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and
(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance.
(b)(1) The regulations proposed by the Administrator in the report required by subsection (a) shall take effect upon expiration of ninety legislative days after the submission of such report, unless such regulations are disapproved by a resolution adopted by either House of the Congress during such period.
. This court was not informed of the effective promulgation of the regulations until February 24, 1978. The two-month delay unfortunately placed an additional burden on our deliberations and represented a level of responsibility less than we have a right to expect. See ABA Code of Professional Responsibility EC 7-23 (1976).
. The agreement is reproduced in Nixon v. Sampson, 389 F.Supp. 107, 160-62 (D.D.C. 1975) (Appendix A).
. Complaint ¶ 11; J.A. at 38.
. In his brief, Sampson argues that “any undue delay after Miss Woods’ demand was made might well subject the United States to a claim for just compensation if its retention of those materials resulted in depriving her of personal property. By disputing the government and Miss Woods and delaying the ultimate resolution of this matter, appellants have substantially increased the exposure of the United States to such a recovery. In order to protect against this eventuality, the government intends to make a request for security from the appellants in the district court if this court takes any action other than an outright affirmance.” Br. at 7-8.
Compensation for the deprivation of personal property is authorized by § 105(c) of the Act:
If a final decision of such court holds that any provision of this title has deprived an individual of private property without just compensation, then there shall be paid out of the general fund of the Treasury of the United States such amount or amounts as may be adjudged just by that court.
. At oral argument counsel for appellants described these materials as consisting chiefly of “stenographic pads, ballpoint pens, books, and the like.” As for these materials, no present controversy exists, and they are no longer part of this case.
The materials that remain in controversy include files labelled: “Tapes — Gap Problems of Others”; “Butterfield, Alex (re: tapes)”; “Buzhardt Testimony (questions)”; “Logs”; “Re-bozo, C.G.”; “Tapes — Access (TSD handling of)”; “Mitchell”; “Safe Access Long — Oct. 4-7, 1973, Key Biscayne”; “Stans, Maurice”; “Panel (Tape Gap).”
. This is a question of statutory construction. We are not persuaded by appellee’s argument that our decision is controlled by “the doctrine of Law of the Case.” Brief for appellee at 22. Our September 2 order specifically declined to express or “intimate any view as to the disposition by the District Court of any applications which may be made to it.” Nor are we persuaded by appellee’s argument that judgment was appropriate in the proceeding below because no “defendant” objected to the release of the materials. Although the district court mentioned this fact in its order, J.A. at 149, the realistic alignment of the parties must be considered. Reporters Committee was formally a plaintiff in the consolidated cases, as was Woods, but it was in fact the party in an adversary relation with Woods in this matter.
. Section 104(a) of the Act requires the Administrator, in formulating regulations, to take into account several factors, including the need to inform the public about Watergate (§ 104(a)(1)), the need to provide public access to materials of “general historical significance” (§ 104(a)(6)), and “the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in [§ 104(a)(1)] and are not otherwise of general historical significance.” § 104(a)(7). See Nixon v. Richey, 168 U.S.App.D.C. 172, 186, 513 F.2d 430, 444 (1975). Senator Nelson, a sponsor of S. 4016, which would eventually become the Materials Preservation Act, stated that, since it would be “difficult within a short time to draft regulations governing public access” which would accommodate these competing interests, the Administrator’s regulations, together with their accompanying report, would “recommend which materials of historical significance should be retained.” 120 Cong. Rec. 33851 (1974). Senator Ervin, another of the Bill’s sponsors, stated that in drafting these regulations the Administrator should call upon the advice of the Special Prosecutor’s office. Id. at 33856. When Congressman Brademas, one of the primary supporters of S. 4016 in the House, was asked why the Administrator, who had entered into the original argument with Mr. Nixon, see note 3 supra, should now be trusted to draft such important regulations, the Congressman replied:
It is precisely because of the apprehension of the members of the committee with respect to that particular point that the bill contains language which directs the Administrator to submit to Congress, within 90 days after the enactment of the measure, regulations which would provide public access to the materials.
Secondly, it is precisely because we shared that apprehension that those regulations would not go into effect without an opportunity for both the House and Senate to review the regulations and to exercise a veto if we disapprove of them.
Id. at 37903.
. The Act was passed by Congress on December 10, 1974, and was signed into law on December 19. The Administrator’s regulations became effective on December 16, 1977.
. The regulations define the term “abuses of governmental power popularly identified under the generic term ‘Watergate’ ” to mean:
those alleged acts, whether or not corroborated by judicial, administrative or legislative proceedings, which allegedly were conducted, directed, or approved by Richard M. Nixon, his staff or persons associated with him in his constitutional, statutory or political functions as President, and (1) are or were within the purview of the charters of the Senate Select Committee on Presidential Campaign Activities or the Watergate Special Prosecutor Force; or (2) are circumscribed in the Articles of Impeachment adopted by the House Committee on the Judiciary and reported to the House of Representatives for consideration in House Report No. 93-1305.
42 Fed.Reg. 63626 (to be codified in 41 C.F.R. § 105-63.104(c)).
. Section 105(a) states:
The United States District Court for the District of Columbia shall have exclusive jurisdiction to hear challenges to the legal or constitutional validity of this title or of any regulation issued under the authority granted by this title, and any action or proceedings involving the question of title, ownership, custody, possession, or control of any tape recording or material referred to in section 101 or involving payment of any just compensation which may be due in connection therewith. Any such challenge shall be treated by the court as a matter requiring immediate consideration and resolution, and such challenge shall have priority on the docket of such court over other cases.
Appellee argues that § 105(a) provides an independent “jurisdictional basis” for the district court to determine, apart from the Administrator’s regulations, if “the papers here involved are the personal property of Ms. Woods and not Presidential historical materials.” Brief for appellees at 8, 28-30.
Whether or not § 105(a) confers such jurisdiction, we hold that the district court should defer in the first instance to the Administrator’s' regulatory scheme. The Supreme Court has emphasized “the Act’s requirement that the Administrator of General Services administer the . . . materials placed in his custody only under regulations promulgated by him providing for the orderly processing of such materials for the purpose of returning to [Mr. Nixon] such of them, as are personal and private in nature . . ..” Nixon v. Administrator of General Services, 433 U.S. 425, 436, 97 S.Ct. 2777, 2786, 53 L.Ed.2d 867 (1977). If § 105(a) were interpreted as authority for district courts to determine ad hoc whether particular items were “Presidential historical materials,” it would constitute a virtual invitation to bypass the “orderly processing” of such items “under regulations promulgated by” the Administrator. We decline to interpret § 105(a) in a manner so contrary to the central import of the Act.
Although appellee has informed us by way of a motion for summary affirmance that the Administrator’s regulations are presently under constitutional attack, see Nixon v. Soloman, C.A. No. 77-1395 (D.D.C.), we see no reason to alter our judgment. Even if the pending lawsuit were to delay the effective operation of the regulations, Ms. Woods has demonstrated no irreparable injury that will occur if she is required to wait, like the rest of the White House staff, until the regulations are fully operational. Indeed, over half the materials she seeks have already been returned to her. Particularly with respect to those materials that the parties have been unable to stipulate are “so lacking in historical or commemorative value or significance as to preclude any colorable claim that they fall within the reach of Section 101,” the purposes of the Act will be best served if we defer to the authoritative definitions and procedures of the Administrator.
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_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. Clarence SMITH, a/k/a "Texas Shorty,” Appellant.
No. 74-1353.
United States Court of Appeals, Tenth Circuit.
Aug. 22, 1975.
Mark L. Bennett, Jr., Topeka, Kan., for appellant.
Mary K. Briscoe, Asst. U. S. Atty. (E. Edward Johnson, U. S. Atty., and Bruce E. Miller, Asst. U. S. Atty., with her on the brief), for appellee.
Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
SETH, Circuit Judge.
The defendant, Clarence Smith, was indicted and tried for the first degree murder of a fellow inmate in the federal penitentiary at Leavenworth, Kansas. The jury returned a verdict of guilty of voluntary manslaughter, and defendant appeals.
Appellant’s first argument is that the trial court abused its discretion in allowing evidence of his prior convictions to be admitted. Prior to the start of the trial, the trial court heard appellant’s motion for a protective order to prevent the Government from cross-examining him about his prior criminal record. This record included convictions of armed robbery, burglary, and forgery, the latter being the record for his incarceration at Leavenworth. The motion was directed to the convictions of- robbery and burglary on the theory they did not pertain to credibility and therefore are beyond the permissible scope of cross-examination for impeachment purposes. The motion was denied, and appellant revealed each of his prior convictions on direct examination.
In United States v. Williams, 445 F.2d 421 (10th Cir.), coappellant Johnson had been advised the Government would be allowed to cross-examine him about his prior conviction of assault with intent to kill. This was before he took the stand in his trial for stealing television sets from an interstate shipment, and he then revealed the prior conviction on direct examination. This court there said:
“ . . . There appears to be a trend in legal thinking away from the traditional right of unlimited cross examination of defendants as to prior convictions when they testify in their own defense.
“This court, however, has continuously followed the time honored rule that when .a defendant in a criminal case takes the stand in his own defense, his credibility may be impeached and his testimony attacked in the same manner as any other witness, including reference to prior convictions. United States v. Perea, 413 F.2d 65 (10th Cir. 1969), cert. denied, 397 U.S. 945, 90 S.Ct. 960, 25 L.Ed.2d 125 (1970); Butler v. United States, 408 F.2d 1103 (10th Cir. 1969); Martin v. United States, 404 F.2d 640 (10th Cir. 1968); Burrows v. United States, 371 F.2d 434 (10th Cir. 1967). To minimize undue prejudice, we have recognized that the trial court has discretion in limiting cross examination of an accused on the subject of prior convictions. United States v. Bartello, 432 F.2d 1030 (10th Cir. 1970); United States v. Perea, supra; Butler v. United States, supra; Burroughs v. United States, supra; Maguire v. United States, 358 F.2d 442 (10th Cir. 1966). We find no abuse of discretion.”
Appellant relies on Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, for the proposition that in exercising its discretionary power, the trial court must hold a hearing to determine whether the prejudice resulting from the use of prior convictions outweighs their probative value. A pretrial hearing was held on the motion in the case before us, and appellant’s argument therefore appears to challenge the adequacy of that hearing. We do not read Luck or any other case as requiring a hearing as to the admissibility of prior convictions for impeachment purposes. Luck involved the District of Columbia’s statutory prior conviction rule and while it is obviously distinguishable in that it involved a statutory prior conviction rule, none of its reasoning requires a hearing in the exercise of the court’s discretionary power.
The hearing in the case before us was occasioned by appellant’s pretrial motion for a protective order, and we find no abuse of discretion in its denial. The indictment charged murder within a penitentiary. The defendant, the victim, and the eye witness were all inmates incarcerated on prior convictions. It was of practical necessity, therefore, that on voir dire of the jury panel and before the motion hearing, defendant’s counsel examined the panel with regard to defendant’s obvious status as a convict. During the trial, defendant freely cross-examined the Government’s eye witness about his prior convictions. After defendant took the stand, he called the prison records officer for the purpose of showing the victim’s convictions. He then called seven inmates, some of whom testified about violence in general at the penitentiary, most of whom testified about the violent reputation of the victim, and all of whom were questioned on direct or cross-examination about their own convictions. Viewing this record as a whole, we cannot see that the trial court abused its discretion or the defendant was unduly prejudiced by either denial of the pretrial motion or subsequent introduction of his prior convictions.
Appellant’s second argument is the trial court erred in giving an additional “Allen” type instruction to the jury after they had deliberated only three hours. The jury had so deliberated when released overnight, and was given the challenged instruction upon returning the following morning. Defendant immediately objected on the ground of coercion and prejudice, especially in light of the length of the trial, the volume of evidence received, the possibility of four different verdicts, and the fact that the last indication made by the jury was they were making progress. The instruction here concerned is basically the same as considered by this court in Munroe v. United States, 424 F.2d 243 (10th Cir.). Munroe is dispositive of appellant’s contention as to the Allen type instructions given during the deliberation of the jury, and before any deadlock was indicated. We are of the view that “Allen” instructions are not per se coercive, and each case is reviewed individually to determine whether the taint of coercion was present. See United States v. Wynn, 415 F.2d 135 (10th Cir.); Munroe v. United States, 424 F.2d 243 (10th Cir.); Goff v. United States, 446 F.2d 623 (10th Cir.); United States v. Cowley, 452 F.2d 243 (10th Cir.); United States v. Abbadessa, 470 F.2d 1333 (10th Cir.).
Appellant’s third argument concerns the trial court’s refusal to instruct on the lesser included offense of involuntary manslaughter. The theory of appellant’s case was self-defense, and the trial court properly instructed the jury that such a defense is a complete defense. The crime of involuntary manslaughter is inconsistent with the theory of self-defense.
Appellant’s fourth argument concerns denial of his motion for new trial on the ground that he was under the influence of drugs during trial and therefore incapable of assisting in his own defense.
It was while the jury was deliberating that appellant first advised his counsel he had been under the influence of drugs throughout the trial. An evidentiary hearing on his motion revealed appellant had requested and received a prescription of ten milligrams of Valium to be given three times per day. Medical testimony showed Valium to be a mild tranquilizer having possible but unlikely effects upon an individual’s mental capacities. Appellant testified that during his trial he would save his evening dosage and take it with the morning dosage, with the result that he would be “drowsy” and things would “pass right on by >1
The test of competency to stand trial is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824; Arnold v. United States, 432 F.2d 871 (10th Cir.). This test raises issues of fact as to which the defendant has the burden of proof. Johnston v. United States, 292 F.2d 51 (10th Cir.). Ignoring the self-administered aspect of the matter, the record does not show, and we have no reason to believe, that appellant’s use of Valium per se rendered him incompetent to stand trial. United States v. Tom, 340 F.2d 127 (2d Cir.). On the other hand, the record does show that appellant appeared to both the trial court and his own counsel to understand the proceedings and communicate rationally with counsel. We conclude there is adequate evidentiary support for the trial court’s conclusion that appellant failed to sustain his burden of proving his incompetency.
Appellant’s final argument is that he was denied trial by a jury of his peers. Before voir dire commenced, appellant, a Black, objected to the fact there were no Blacks on the jury panel. In making the objection he conceded he knew of nothing unlawful in the selection of the panel. His argument is that the result speaks for itself and constitutes a prima facie case of purposeful discrimination.
We find no case in which such a broad and unspecified objection has been held to constitute a prima facie case. As we recently stated in Leggroan v. Smith, 498 F.2d 168 (10th Cir.), a claim of discriminatory selection of jurors “necessarily requires a showing that a recognizable, identifiable class of persons, otherwise entitled to be jury members, has been purposefully and systematically excluded from jury service.” While the actual result of exclusion may by inference contribute to a showing of such system or purpose, result alone is insufficient to establish a prima facie case shifting the burden of proof to the Government. Appellant’s argument that the summary overruling of his objection prevented him from developing facts which would support his claim of discriminatory selection is equally without merit. Not only is the argument an admission that at the time he knew of no such facts, but also it ignores the statutory procedure available for challenging the selection process, 28 U.S.C. § 1867.
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:
|
sc_adminaction
|
017
|
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.
HUDSON et al. v. UNITED STATES
No. 96-976.
Argued October 8, 1997
Decided December 10, 1997
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scaua, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, X, joined, post, p. 106. Stevens, X, post, p. 106, and Souter, X, post, p. 112, filed opinions concurring in the judgment. Breyer, X, filed an opinion concurring in the judgment, in which Ginsburg, X, joined, post, p. 115.
Bernard J. Rothbaum argued the cause for petitioners. With him on the briefs were Jack L. Neville, Jr., Lawrence S. Robbins, C. Merle Gile, James A. Rolfe, and Lynn Pringle.
Deputy Solicitor the United States.- With him on the briefs were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney, and Paul R. Q. Wolfson.
Briefs of amicus curiae urging reversal were filed for the National Association of Criminal Defense Lawyers by Arthur F. Mathews and Lisa Kemler; and for the Washington Legal Foundation by Daniel J. Pepeo.
A brief of amici curiae urging affirmance was filed for 48 States and Territories by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and David M. Gormley, Assistant Attorney General, Jan Graham, Attorney General of Utah, Carol Clawson, Solicitor General, and Marian Decker, Assistant Attorney General, John M. Bailey, Chief States Attorney of Connecticut, Jo Anne Robinson, Interim Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Toetagata A. Mialo of American Samoa, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A Norton of Colorado, M. Jane Brady of Delaware, Robert A Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael G. Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Peter Vemiero of New Jersey, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Robert B. Dunlap II of the Northern Mariana Islands, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Jose Fuentes-Agosiini of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark W. Barnett of South Dakota, John Knox Walkup of Tennessee, Dan Morales of Texas, William H. Sorrell of Vermont, Julio A Brady of the Virgin Islands, Richard Cullen of Virginia, Christine 0. Gregoire of Washington, and William U. Hill of Wyoming.
CHIEF Justice Rehnquist
delivered the opinion of the Court.
The Government administratively imposed monetary penalties and occupational debarment on petitioners for violation of federal banking statutes, and later criminally indicted them for essentially the same conduct. We hold that the Double Jeopardy Clause of the Fifth Amendment is not a bar to the later criminal prosecution because the administrative proceedings were civil, not criminal. Our reasons for so holding in large part disavow the method of analysis used in United States v. Halper, 490 U. S. 435, 448 (1989), and reaffirm the previously established rule exemplified in United States v. Ward, 448 U. S. 242, 248-249 (1980).
During the early and mid-1980’s, petitioner John Hudson was the chairman and controlling shareholder of the First National Bank of Tipton (Tipton) and the First National Bank of Hammon (Hammon). During the same period, petitioner Jack Rackley was president of Tipton and a member of the board of directors of Hammon, and petitioner Larry Baresel was a member of the board of directors of both Tipton and Hammon.
An examination of Tipton and Hammon led the Office of the Comptroller of the Currency (OCC) to conclude that petitioners had used their bank positions to arrange a series of loans to third parties in violation of various federal banking statutes and regulations. According to the OCC, those loans, while nominally made to third parties, were in reality made to Hudson in order to enable him to redeem bank stock that he had pledged as collateral on defaulted loans.
On February 13,1989, OCC issued a “Notice of Assessment of Civil Money Penalty.” The notice alleged that petitioners had violated 12 U. S. C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§ 31.2(b) and 215.4(b) (1986) by causing the banks with which they were associated to make loans to nominee borrowers in a maimer that unlawfully allowed Hudson to receive the benefit of the loans. App. to Pet. for Cert. 89a. The notice also alleged that the illegal loans resulted in losses to Tipton and Hammon of almost $900,000 and contributed to the failure of those banks. Id., at 97a. However, the notice contained no allegation of any harm to the Government as a result of petitioners’ conduct. “After taking into account the size of the financial resources and the good faith of [petitioners], the gravity of the violations, the history of previous violations and other matters as justice may require, as required by 12 U. S. C. §§ 93(b)(2) and 504(b),” OCC assessed penalties of $100,000 against Hudson and $50,000 each against Raekley and Baresel. Id., at 89a. On August 31, 1989, OCC also issued a “Notice of Intention to Prohibit Further Participation” against each petitioner. Id., at 99a. These notices, which were premised on the identical allegations that formed the basis for the previous notices, informed petitioners that OCC intended to bar them from further participation in the conduct of “any insured depository institution.” Id., at 100a.
In October 1989, petitioners resolved the OCC proceedings against them by each entering into a “Stipulation and Consent Order.” These consent orders provided that Hudson, Baresel, and Raekley would pay assessments of $16,500, $15,000, and $12,500 respectively. Id., at 130a, 140a, 135a. In addition, each petitioner agreed not to “participate in any manner” in the affairs of any banking institution without the written authorization of the OCC and all other relevant regulatory agencies. Id., at 131a, 141a, 136a.
In August 1992, petitioners were indicted in the Western District of Oklahoma in a 22-eount indictment on charges of conspiracy, 18 U. S. C. §371, misapplication of bank funds, §§656 and 2, and making false bank entries, §1005. The violations charged in the indictment rested on the same lending transactions that formed the basis for the prior administrative actions brought by OCC. Petitioners moved to dismiss the indictment on double jeopardy grounds, but the District Court denied the motions. The Court of Appeals affirmed the District Court’s holding on the nonparticipation sanction issue, but vacated and remanded to the District Court on the money sanction issue. 14 F. 3d 536 (CA10 1994). The District Court on remand granted petitioners’ motion to dismiss the indictments. This time the Government appealed, and the Court of Appeals reversed. 92 F. 3d 1026 (1996). That court held, following HaVper, that the actual fines imposed by the Government were not so grossly disproportional to the proved damages to the Government as to render the sanctions “punishment” for double jeopardy purposes. We granted certiorari, 520 U. S. 1165 (1997), because of concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper. We now affirm, but for different reasons.
The Double Jeopardy Clause provides that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, “‘in common parlance,’” be described as punishment. United States ex rel. Marcus v. Hess, 317 U. S. 537, 549 (1943) (quoting Moore v. Illinois, 14 How. 13, 19 (1852)). The Clause protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U. S. 391, 399 (1938); see also Hess, supra, at 548-549 (“Only” “criminal punishment” “subjeet[s] the defendant to ‘jeopardy within the constitutional meaning”); Breed v. Jones, 421 U. S. 519, 528 (1975) (“In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution”), and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 Ú. S. 359, 366 (1983).
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering, supra, at 399. A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Ward, 448 U. S., at 248. Even in those eases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,” id., at 248-249, as to “transfor[m] what was clearly intended as a civil remedy into a criminal penalty,” Rex Trailer Co. v. United States, 350 U. S. 148, 154 (1956).
In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), provide useful guideposts, including: (1) “[wjhether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter (4) “whether its operation will promote the traditional aims of punishment — retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that “these factors must be considered in relation to the statute on its face,” id., at 169, and “only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249 (internal quotation marks omitted).
Our opinion in United States v. Halper marked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature. In that case, Irwin Halper was convicted of, inter alia, violating the criminal false claims statute, 18 U. S. C. § 287, based on his submission of 65 inflated Medicare claims each of which overcharged the Government by $9. He was sentenced to two years’ imprisonment and fined $5,000. The Government then brought an action against Halper under the civil False Claims Act, 31 U.S.C. §§ 3729-3731 (1982 ed., Supp. II). The remedial provisions of the False Claims Act provided that a violation of the Act rendered one “liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action.” Id., § 3729. Given Halper’s 65 separate violations of the Act, he appeared to be liable for a penalty of $130,000, despite the fact he actually defrauded the Government of less than $600. However, the District Court, concluded that a penalty of this magnitude would violate the Double Jeopardy Clause in light of Halper’s previous criminal conviction. While explicitly recognizing that the statutory damages provision of the Act “was not itself a criminal punishment,” the District Court nonetheless concluded that application of the full penalty to Halper would constitute a second “punishment” in violation of the Double Jeopardy Clause. 490 U. S., at 438-439.
On direct appeal, this Court affirmed. As the Halper Court saw it, the imposition of “punishment” of any kind was subject to double jeopardy constraints, and whether a sanction constituted “punishment” depended primarily on whether it served the traditional “goals of punishment,” namely, “retribution and deterrence.” Id., at 448. Any sanction that was so “overwhelmingly disproportionate” to the injury caused that it could not “fairly be said solely to serve [the] remedial purpose” of compensating the Government for its loss, was thought to be explainable only as “serving either retributive or deterrent purposes.” See id., at 448-449 (emphasis added).
The analysis applied by the Halper Court deviated from our traditional double jeopardy doctrine in two key respects. First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a “criminal” punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute “punishment.” In so doing, the Court elevated a single Kennedy factor — whether the sanction appeared excessive in relation to its nonpunitive purposes — to dispositive status. But as we emphasized in Kennedy itself, no one factor should be considered controlling as they “may often point in differing directions.” 372 U. S., at 169. The second significant departure in Halper. was the Court’s decision to “asses[s] the character of the actual sanctions imposed,” 490 U. S., at 447, rather than, as Kennedy demanded, evaluating the “statute on its face” to determine whether it provided for what amounted to a criminal sanction, 372 U. S., at 169.
We believe that Halper’s deviation from longstanding double jeopardy principles was ill considered. AlS subsequent eases have demonstrated, Hamper’s test for determining whether a particular sanction is “punitive,” and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. See Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 777, n. 14 (1994); United States v. Ursery, 518 U. S. 267, 284-285, n. 2 (1996). If a sanction must be “solely” remedial (i. e., entirely nonde-terrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause. Under Halper’s method of analysis, a court must also look at the “sanction actually imposed” to determine whether the Double Jeopardy Clause is implicated. Thus, it will not be possible to determine whether the Double Jeopardy Clause is violated until a defendant has proceeded through a trial to judgment. But in those eases where the civil proceeding follows the criminal proceeding, this approach flies in the face of the notion that the Double Jeopardy Clause forbids the government from even “attempting a second time to punish criminally.” Helvering, 303 U. S., at 399 (emphasis added).
Finally, it should be noted that some of the ills at which Halper was directed are addressed by other constitutional provisions. The Due Process and Equal Protection Clauses already protect individuals from sanctions which are downright irrational. Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). The Eighth Amendment protects against excessive civil fines, including forfeitures. Alexander v. United States, 509 U. S. 544 (1993); Austin v. United States, 509 U. S. 602 (1993). The additional protection afforded by extending double jeopardy protections to proceedings heretofore thought to be civil is more than offset by the confusion created by attempting to distinguish between “punitive” and “nonpunitive” penalties.
Applying traditional double jeopardy principles to the facts of this ease, it is clear that the criminal prosecution of these petitioners would not. violate the Double Jeopardy Clause. It is evident that Congress intended the OCC money penalties and debarment sanctions imposed for violations of 12 U. S. C. §§ 84 and 375b to be civil in nature. As for the money penalties, both §§ 93(b)(1) and 504(a), which authorize the imposition of monetary penalties for violations of §§ 84 and 375b respectively, expressly provide that such penalties are “civil.” While the provision authorizing debarment contains no language explicitly denominating the sanction as civil, we think it significant that the authority to issue debarment orders is conferred upon the “appropriate Federal banking agencies].” §§ 1818(e)(1)-(3). That such authority was conferred upon administrative agencies is prima facie evidence that Congress intended to provide for a civil sanction. See Helvering, supra, at 402; United States v. Spector, 343 U. S. 169, 178 (1952) (Jackson, J., dissenting) (“Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be-exclusively civil in nature, with no criminal consequences or connotations”); Wong Wing v. United States, 163 U. S. 228, 235 (1896) (holding that quintessential criminal punishments may be imposed only “by a judicial trial”).
Turning to the second stage of the Ward test, we find-that there is little evidence, much less the clearest proof that we require, suggesting that either OCC money penalties or debarment sanctions are “so punitive in form and effect as to render them criminal despite Congress’ intent to the contrary.” Ursery, supra, at 290. First, neither money penalties nor debarment has historically been viewed as punishment. We have long recognized that “revocation of a privilege voluntarily granted,” such as a debarment, “is characteristically free of the punitive criminal element.” Helvering, 303 U. S., at 399, and n. 2. Similarly, “the payment of fixed or variable sums of money [is a] sanction which ha[s] been recognized as enforeible by civil proceedings since the original revenue law of 1789.” Id., at 400.
Second, the sanctions imposed not an tive disability or restraint,” as that term is normally understood. While petitioners have been prohibited from further participating in the banking industry, this is “certainly nothing approaching the 'infamous punishment’ of imprisonment.” Flemming v. Nestor, 363 U. S. 603, 617 (1960). Third, neither sanction comes into play “only” on a finding of scienter. The provisions under which the money penalties were imposed, 12 U. S. C. §§ 93(b) and 504, allow for the assessment of a penalty against any person “who violates” any of the underlying banking statutes, without regard to the violator’s state of mind. “Good faith” is considered by OCC in determining the amount of the penalty to be imposed, § 93(b)(2), but a penalty ean be imposed even in the absence of bad faith. The fact that petitioners’ “good faith” was considered in determining the amount of the penalty to be imposed in this case is irrelevant, as we look only'to “the statute on its face” to determine whether a penalty is criminal in nature. Kennedy, 372 U. S., at 169. Similarly, while debarment may be imposed for a “willful” disregard “for the safety or soundness of [an] insured depository institution,” willfulness is not a prerequisite to debarment; it is sufficient that the disregard for the safety and soundness of the institution was “continuing." § 1818(e)(1)(C)(ii).
Fourth, the conduct for which OCC sanctions are imposed may also be criminal (and in this ease formed the basis for petitioners’ indictments). This fact is insufficient to render the money penalties and debarment sanctions criminally punitive, Ursery, 518 U. S., at 292, particularly in the double jeopardy context, see United States v. Dixon, 509 U. S. 688, 704 (1993) (rejecting “same-conduct” test for double jeopardy purposes).
Finally, we recognize that the imposition of both money penalties and debarment sanctions will deter others from emulating petitioners’ conduct, a traditional goal of criminal punishment. But the mere presence of this purpose is insufficient to render a sanction criminal, as deterrence “may serve civil as well as criminal goals.” Ursery, supra, at 292; see also Bennis v. Michigan, 516 U. S. 442, 452 (1996) (“[Forfeiture . . . serves a deterrent purpose distinct from any punitive purpose”). For example, the sanctions at issue here, while intended to deter future wrongdoing, also serve to promote the stability of the banking industry. To hold that the mere presence of a deterrent purpose renders such sanctions “criminal” for double jeopardy purposes would severely undermine the Government’s ability to engage in effective regulation of institutions sueh as banks.
In sum, there simply is very little showing, to say nothing of the “clearest proof ” required by Ward, that OCC money penalties and debarment sanctions are criminal.. The Double Jeopardy Clause is therefore no obstacle to their trial on the pending indictments, and it may proceed.
The judgment of the Court of Appeals for the Tenth Circuit is accordingly
Affirmed.
Tipton and Hammon are two very small towns in western Oklahoma.
The consent orders also contained language providing that they did not constitute "a waiver of any right, power, or authority of any other representatives of the United States, or agencies thereof, to bring other actions deemed appropriate.” App. to Pet. for Cert. 133a, 143a, 138a. The Court of Appeals ultimately held that this provision was not a waiver of petitioners’ double jeopardy claim. 14 F. 3d 536, 539 (CA10 1994).
Only petitioner Raekley was indicted for making false bank entries in violation of 18 U. S. C. § 1005.
E. g., Zukas v. Hinson, 1997 WL 623648 (CA11, Oet. 21, 1997) (challenge to FAA revocation of a commercial pilot’s license as violative of double jeopardy); E. B. v. Verniero, 119 F. 3d 1077 (CA3 1997) (challenge to “Megan’s Law” as violative of double jeopardy); Jones v. Securities & Exchange Comm’n, 115 F. 3d 1173 (CA4 1997) (challenge to SEC debarment proceeding as violative of double jeopardy); United States v. Rice, 109 F. 3d 151 (CA3 1997) (challenge to criminal drug prosecution following general military discharge for same conduct as violative of double jeopardy); United States v. Hatfield, 108 F. 3d 67 (CA4 1997) (challenge to criminal fraud prosecution as foreclosed by previous debarment from Government contracting); Taylor v. Cisneros, 102 F. 3d 1334 (CA3 1996) (challenge to eviction from federally subsidized housing based on guilty plea to possession of drug paraphernalia as violative of double jeopardy); United States v. Galan, 82 F. 3d 639 (CA5) (challenge to prosecution for prison escape following prison disciplinary proceeding as violative of double jeopardy), cert. denied, 519 U. S. 867 (1996).
In his concurrence, Justice Stevens criticizes us for reexamining our Halper opinion rather than deciding the case on what he believes is the narrower Blockburger grounds. But the question upon which we granted certiorari in this ease is “whether imposition upon petitioners of monetary-fines as in personam civil penalties by the Department of the Treasury, together with other sanctions, is ‘punishment’ for purposes of the Double Jeopardy Clause.” Pet. for Cert. i. It is this question, and not the Blockburger issue, upon which there is a conflict among the Courts of Appeals. Indeed, the Court of Appeals for the Tenth Circuit in this case did not even pass upon the Bloekbwrger question, finding it unnecessary to do so. 92 F. 3d, at 1028, n. 3.
In Kurth Ranch, we held that the presence a purpose effect is not dispositive of the double jeopardy question. 511 U. S., at 781. Rather, we applied a Kennedy-like test, see 511 U. S., at 780-783, before concluding that Montana’s dangerous drug tax was “the functional equivalent of a successive criminal prosecution,” id., at 784. Similarly, in Ursery, we rejected the notion that civil in rem forfeitures violate the Double Jeopardy Clause. 518 U. S., at 270-271. We upheld such forfeitures, relying on the historical support for the notion that such forfeitures are civil and thus do not implicate double jeopardy. Id., at 292.
“We... hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” United States v. Halper, 490 U. S. 435, 448-449 (1989).
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:
|
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.
PRECISE IMPORTS CORPORATION, Mitchell Mogal, Inc., and Topline Industries Corporation, Plaintiffs-Appellants, v. Joseph P. KELLY, Collector of Customs of the Port of New York, Irving Fishman, Deputy Collector of Customs, and United States of America, Defendants-Appellees.
No. 348, Docket 30777.
United States Court of Appeals Second Circuit.
Argued March 7, 1967.
Decided June 15, 1967.
A. Bernard King, New York City (Murray Rosof, New York City, on the brief), for plaintiffs-appellants.
David E. Montgomery, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, and Lawrence W. Schilling and Robert E. Kushner, Asst. U. S. Attys., New York City, on the brief), for defendants-appellees.
Before LUMBARD, Chief Judge, and WATERMAN and SMITH, Circuit Judges.
LUMBARD, Chief Judge.
Plaintiffs brought this action in the Southern District of New York for a declaratory judgment that seven shipments of knives which they imported in early 1962 “and knives similar thereto” were not barred from entry into the United States by the Switchblade Knife Act, 72 Stat. 562 (1958), 15 U.S.C. §§ 1241-44. The knives, except for a few samples, were released to plaintiffs before customs inspection on entry bonds, and were then ordered by the individual defendants, the Collector and Deputy Collector of Customs of the Port of New York, to be redelivered on the ground that they violated the Switchblade Knife Act. Plaintiffs appeal from the dismissal of their complaint after a trial before Judge Croake and á jury, upon the jury’s verdict that three knives from the shipments retained as samples by Customs and offered in evidence by the defendants were switchblade knives within the meaning of the act. They also appeal from a judgment for the United States, which was added as a defendant on its own motion, on its counterclaim for liquidated damages under the entry bonds for failure to redeliver the knives, in the amounts of $7,468.80 against plaintiff Precise Imports Corporation, $10,000 against plaintiff Mitchell Mogal, Inc., and $3,810.98 against plaintiff Topline Industries Corporation, plus interest. By stipulation of the parties, this counterclaim was tried before Judge Croake without a jury.
Before filing their answer, defendants moved to dismiss the complaint on the ground that 28 U.S.C. § 1588 vests exclusive jurisdiction to review “decisions of any collector of customs * * * excluding any merchandise from entry or delivery, under any provision of the customs laws” in the Customs Court. The motion was denied by Judge Feinberg, 218 F.Supp. 494 (S.D.N.Y. 1963), and defendants have not renewed this contention upon appeal. This court must nevertheless determine whether it has jurisdiction of this case. E. g., Mansfield, C. & L. M. Ry. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Shahmoon Indus., Inc. v. Imperato, 338 F.2d 449 (3 Cir. 1964). We agree with Judge Feinberg that we do have jurisdiction, because the Switchblade Knife Act, which prohibits transportation and distribution of switchblade knives in interstate commerce and their knowing introduction into interstate commerce, 72 Stat. 562 (1958), 15 U.S.C. § 1242, is a criminal statute of general application, not a “provision of the customs laws.” Cf. Croton Watch Co., Inc. v. Laughlin, 208 F.2d 93 (2 Cir. 1953). Compare Patchogue-Plymouth Mills Corp. v. Durning, 101 F.2d 41 (2 Cir. 1939). We therefore proceed to the merits of plaintiffs’ appeal.
The Switchblade Knife Act defines a switchblade knife as “any knife having a blade which opens automatically — (1) by hand pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both.” 72 Stat. 562 (1958), 15 U.S.C. § 1241(b). At the jury trial of their action for a declaratory judgment and an injunction, plaintiffs read into the record a one-sentence pretrial stipulation of the parties that “the knives involved in this action do not open automatically by button, inertia, gravity, or any combination of the foregoing upon arrival at the Port of New York,” and rested. The trial court denied defendants’ motion for a directed verdict, and held that defendants had the burden of proving that the knives in issue violated the act.
Defendants then called Joseph Lamb, Assistant Deputy Commissioner for Technical Services in the Bureau of Customs, who testified that he had modified each of three sample knives from plaintiffs’ shipments by filing down a rough corner on the heel of the blade and weakening the restraining spring slightly with an icepick, and demonstrated to the jury that the knives as modified opened with a flick of the wrist. Mr. Lamb stated that he had no special training in working with knives, and had worked from five to nine and one-half minutes on each knife. Defendants also called Louis A. Pinkussohn, an executive with an American manufacturer of knives, who expressed the opinion that the knives in evidence, which had stiletto blades from four and one-half to six and one-half inches long, were designed for use as daggers because their blades were sharp only at the point.
Judge Croake charged the jury, over plaintiffs’ objection, that it must find that the knives violated the Switchblade Knife Act, despite the stipulation that they did not open automatically upon entry, if it found that they could be made to open automatically by insignificant alterations and that one of the primary utilitarian purposes of their design and construction was for use as weapons. He also charged that in determining whether any alterations needed to make the knives open automatically were insignificant, the jury might consider the extent of the alterations, the time they took, and whether they required any special training or equipment or impaired the general usefulness of the knives. Finally, Judge Croake told the jury that in deciding whether use as weapons was one of the primary purposes of the knives’ design, it might consider whether their design suited them primarily for use as weapons, whether they had any use other than as weapons which could not be served as well or better by other forms of knives, whether any characteristics of the knives which increased their suitability as weapons were not required for any other use, and whether any characteristics which made it possible to make the knives open automatically somehow set them apart from other pocket knives not involved in this case. The jury returned a verdict that the knives in evidence were switchblade knives.
We approve Judge Croake’s charge, except for the suggestion that the jury consider whether any characteristics which made it possible to alter the knives in evidence to open automatically somehow distinguished them from other pocket knives, the relevance of which is not apparent to us. The report of the Senate Committee on Interstate and Foreign Commerce which recommended passage of the Switchblade Knife Act stated that the enforcement of state laws banning switchblade knives would be extremely difficult as long as such knives could be freely obtained in interstate commerce, and added:
“In supporting enactment of this measure, however, your committee considers that the purpose to be achieved goes beyond merely aiding States in local law enforcement. The switchblade knife is, by design and use, almost exclusively the weapon of the thug and the delinquent. Such knives are not particularly adapted to the requirements of the hunter or fisherman, and sportsmen generally do not employ them. It was testified that, practically speaking, there is no legitimate use for the switchblade to which a conventional sheath or jackknife is not better suited. This being the case, your committee believes that it is in the national interest that these articles be banned from interstate commerce.” S.Rep. No. 1980, 85th Cong., 2d Sess., reprinted in 2 U.S. Code Cong. & Ad. News 1958, at 3435-37.
The congressional purpose of aiding the enforcement of state laws against switchblade knives and of barring them from interstate commerce could be easily frustrated if knives which can be quickly and easily made into switchblade knives, and one of whose primary uses is as weapons, could be freely shipped in interstate commerce and converted into switchblade knives upon arrival at the state of destination. We decline to construe the act as permitting such facile evasion.
We recognize that penal statutes are to be strictly construed, so as to give fair warning of the acts they prohibit. E. g., MeBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1931). However, the canon of strict construction does not require that a penal statute be emasculated in disregard of the clear intent of the legislature in enacting it. See, e. g., United States v. Hood, 343 U.S. 148, 72 S.Ct. 568, 96 L.Ed. 846 (1952); United States v. Giles, 300 U.S. 41, 57 S.Ct. 340, 81 L.Ed. 493 (1937). This is especially true where the statute, although criminal, is first construed in a civil action. Cf., e. g., Johnson v. Southern Pac. Co., 196 U.S. 1, 17-18, 25 S.Ct. 158, 49 L.Ed. 363 (1904). Moreover, the requirement in the charge we have approved that the jury must find that one of the primary purposes of a knife is for use as-a weapon not only gives effect to the congressional intent to bar from interstate commerce knives which are well adapted only to use as weapons, but also ensures that the nature of a knife which is found under this standard to violate the act will give fair warning that it is a switchblade knife within the meaning of the act. We hold, therefore, that a knife may be found to be a switchblade knife within the meaning of the Switchblade Knife Act if it is found that it can be made to open automatically by hand pressure, inertia, or gravity after insignificant alterations, and that one of its primary purposes is for use as a weapon.
Plaintiffs argue that they should have been granted a declaratory judgment against defendants, notwithstanding the jury’s verdict, because defendants did not connect the knives presented in evidence with the shipments in issue, and because there was no proof that the other sample knives retained or the other knives in the shipments were similar to those in evidence. All these contentions assume that defendants had the burden of producing evidence that the knives in the shipments were prohibited by the act. It is not clear that this assumption is correct. But even assuming that defendants bore the burden of production, plaintiffs’ contention that it was not met lacks merit. After the three knives were introduced, plaintiffs were asked to stipulate that they came from the shipments in issue. Plaintiffs’ counsel replied that two of them, “in their original pre-worked-on condition, and when they were lawful, were imported by the defendant [sic] Mitchell Mogal.” He stated that no one in the courtroom could identify the other ."knife, and it was received on the rep:resentation of the Assistant United iStates Attorney that it could be proved "that it came from one of the shipments in issue.
As to the two knives concededly imported by plaintiff Mitchell Mogal, Inc., plaintiffs contend that it was not stipulated that they were imported in one of the shipments in issue. In light of defendants’ clear request for a responsive stipulation, however, we cannot accept this strained construction of the response of plaintiffs’ counsel.
As to the third knife, and as to plaintiffs’ contention that it was not shown that the knives introduced in evidence were representative of those released to them, it is sufficient to observe that plaintiffs did not seek the production of any other sample knives retained by defendants, and that defendants’ inability to produce any of the knives released to plaintiffs was due to plaintiffs’ own refusal to redeliver them on demand, as required by the entry bonds. In fact, defendants sought at the trial to have plaintiffs directed to produce some of the knives released to them, and plaintiffs’ counsel opposed the application, stating that “we haven’t got all these knives” and that “I don’t even know what knives, if any, can be produced.” We think that plaintiffs should have been directed to produce the knives, or to stipulate that the knives in evidence were representative. In any case, plaintiffs should obviously not be allowed to profit by defendants’ inability to produce the knives which had been released to the plaintiffs and which they bound themselves to redeliver and failed to redeliver. If, therefore, the third knife should have been more fully connected, which we do not decide, or the knives released were not shown to be similar to those in evidence, the corresponding portions of plaintiffs’ complaint should have been dismissed, and the court’s failure to do so certainly did not prejudice plaintiffs. We therefore affirm the dismissal of plaintiffs’ complaint upon the jury’s verdict.
The judgment for the United States on its counterclaim for liquidated damages under the entry bonds was proper, whether or not the knives were barred by the Switchblade Knife Act. One of the conditions of the entry bonds, which were on Customs Form 7551, was that the importer should
“redeliver or cause to be redelivered to the order of the collector of customs, on demand by him, in accordance with the law and regulations in effect on the date of the release of said articles, any and all merchandise found not to comply with the law and regulations governing its admission into the commerce of the United States,”
unless a superseding bond had been filed. Plaintiffs failed to return on demand any of the knives released to them under the bonds, and have not disputed the amounts of liquidated damages, fixed by 19 C.F.R. § 25.17(d) as the value of the knives on entry and the estimated duties and taxes on them.
Although the language of the bonds is not wholly free of ambiguity, we have concluded that plaintiffs were therefore liable to pay the liquidated damages whether or not defendants’ determination that the knives violated the Switchblade Knife Act was finally upheld. Cf. United States v. Dieckerhoff, 202 U.S. 302, 310-312, 26 S.Ct. 604, 50 L.Ed. 1041 (1906); United States v. Daniel F. Young, Inc., 46 F.Supp. 373 (S.D.N.Y.1942), aff’d per curiam, 134 F.2d 413 (2 Cir. 1943). The Bureau of Customs is mandated by 46 Stat. 728 (1930), as amended, 19 U.S.C. § 1499, not to release imported merchandise which is required to be inspected before inspecting it “except under * * * bond or other security * * * to assure compliance with all applicable laws, regulations, and instructions * *
In accordance with this mandate, the clear purpose of the entry bonds is to place Customs, if it demands the return of goods released under the bonds, in as good a position as if it had not released them. Cf. United States v. Huber, 41 C.C.P.A. (Customs) 69, 72-73 (1953). This purpose would be frustrated if plaintiffs were held to be liable under the bonds for failure to redeliver the knives only if the knives were finally held to violate the Switchblade Knife Act.
Affirmed.
. We are sure that the jury understood this portion of the charge, as we do, as suggesting that it inquire whether any use of the knives other than as weapons could be served as well or better by other knives.
. Since this suggestion clearly favored plaintiffs, who suggested in their summation that many, if not all, pocket knives can be altered so as to open automatically, we find in it no basis for reversal.
. The Switchblade Knife Act was given a similar construction in Goldman v. Angle, No. 4815 — Civil-J, S.D.Fla., Dec. 12, 1961.
Analogously, a firearm which lacks a firing pin but which can be fired with a small nail in place of the pin has been held to be within the National Firearms Act, Int.Rev.Code of 1954, § 5848(1). United States v. Cosey, 244 F.Supp. 100 (E.D.La.1965). Contra, United States v. Thompson, 202 F.Supp. 503 (N.D.Cal. 1962). Compare Model Penal Code § 5.06(2) and Commentary (Ten.Draft No. 13, 1961).
. The record indicates that defendants intended only to bar entry of the knives Into the United States, while permitting their reexport abroad; if so, the burden of persuasion in an action seeking to •compel admission of the knives may be upon the importer. It has apparently "been assumed that an importer seeking admission of merchandise which has been •denied entry on the ground that it infringes a registered trademark, see 60 Stat. 440 (1946), 15 U.S.C. § 1124, has the burden of persuasion. See, e.g., Croton Watch Co., Inc. v. Laughlin, 208 F.2d 93 (2 Cir. 1953); cf. Richard J. Spitz, Inc. v. Dill, 140 F.Supp. 947 (S.D.N.Y. 1956). It might be contended, however, that such an action is in the nature of an action of replevin, see Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (dictum) ; Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 9-13, 4 L.Ed. 169 (1817), and that in a replevin action the collector would have had to justify his retention of the merchandise. Cf. Goldman v. American Dealers Serv., Inc., 135 F.2d 398 (2 Cir. 1943) (dictum).
Even if the burden of persuasion as to the shipments before the court was upon the defendants, it is arguable that in a declaratory judgment action, even one for a declaration of non-liability, the plaintiff should bear the initial burden of producing evidence sufficient to justify a judgment in his favor. See, e.g., Preferred Acc. Ins. Co. v. Grasso, 186 F.2d 987, 991, 23 A.L.R.2d 1234 (2 Cir. 1951) (dictum); Developments in the Law— Declaratory Judgments — 1941-1949, 62 Harv.L.Rev. 787, 837 (1949).
. Plaintiffs contend that Mr. Pinkussohn should not have been allowed to testify, as he was not named in the pretrial order, and that his testimony as to the uses of the knives was irrelevant and inflammatory. But plaintiffs did not seek a continuance to meet Mr. Pinkussohn’s testimony, or indicate how they were prejudiced by it. It is clear that his testimony on the uses of the knives was relevant to the issue whether they were switchblade knives.
. Plaintiffs contend that the counterclaim was based not upon the entry bonds but upon 46 Stat. 734 (1930), 19 U.S.C. § 1514, as it alleged that no timely protest of defendants’ demands for liquidated damages had been made and that “the said amounts are now conclusively due and owing, pursuant to” 19 U.S.C. § 1514. That section, however, creates no cause of action; it merely provides that certain decisions of the Customs shall be final if not protested within sixty days. Moreover, the counterclaim referred specifically to defendants’ demands, copies of which were attached as exhibits to plaintiffs’ complaint, for liquidated damages under the entry bonds. Thus plaintiffs were apprised of the basis of the counterclaim, as is underscored by the fact that their reply to the counterclaim pleaded as a defense that the sureties on the entry bonds were indispensable parties. (The sureties were notified of the trial of the counterclaim, and stated that they did not wish to appear.)
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_fed
|
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.
Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. Ross V. DUNN, Trustee, et al., Appellees (three cases). Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. FIRST AMERICAN NATIONAL BANK et al., Appellees. Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. Robert W. STURDIVANT et al., Appellees.
Nos. 13271-13273,13301,13302.
United States Court of Appeals Sixth Circuit.
March 3, 1958.
Charlotte L. Worley, per se.
Robert W. Sturdivant, Elkin Garfinkle and Bass, Berry & Sims, Nashville, Tenn., for First American Nat. Bank et al.
Robert W. Sturdivant and Elkin Gar-finkle, Nashville, Tenn., for Sturdivant et al.
Robert W. Sturdivant, Fred Elledge, Jr., Andrew M. Gant, Jr., J. O. Bass, Elkin Garfinkle, William Berry, Nashville, Tenn., for Dunn et al.
Before ALLEN and MILLER, Circuit Judges, and JONES, District Judge.
SHACKELFORD MILLER, Jr., Circuit Judge.
The several proceedings in the District Court, in which these five appeals were taken, arise out of the bankruptcy of the National Specialty Company. These bankruptcy proceedings, which started in 1951, have had our consideration in three prior appeals. United States v. Worley, 6 Cir., 213 F.2d 509, certiorari denied, 348 U.S. 917, 75 S.Ct. 301, 99 L.Ed. 719, rehearing denied, 1955, 348 U.S. 940, 75 S.Ct. 361, 99 L.Ed. 736; Worley v. Elliott, 6 Cir., 231 F.2d 526, certiorari denied, 352 U.S. 855, 77 S.Ct. 82, 1 L.Ed.2d 66, rehearing denied, 1956, 352 U.S. 937, 77 S.Ct. 229, 1 L.Ed.2d 170; Worley v. National Specialty Co., 6 Cir., 243 F.2d 165. The factual situation is set out in those opinions and need not be repeated here. The present five appeals, prosecuted in forma pauperis, have been heard and considered together by the Court upon the records and briefs and arguments of appellant, Mrs. Charlotte Worley, individually, and as Admin-istratrix of the estate of Claude Henry Worley, deceased, pro se, and the attorneys for the appellees. The voluminous records, in the form presented to us, are very unsatisfactory. The numerous motions, briefs and reply briefs filed by the appellants, obviously drafted and written without the assistance of an attorney, largely fail to clearly present and meet the real issues involved. Our consideration of the records and briefs, however, results in the following conclusions.
Following the denial of petition for certiorari in United States v. Worley, supra, the appellants filed in the District Court on April 21, 1955, a petition for a new trial in said cause, which motion the Trustee in Bankruptcy moved to strike. Following a hearing before Judge Martin, a member of this Court, sitting as a District Judge by designation, an order was entered on May 6, 1957, denying the motion for a new trial and sustaining the motion to strike. An order was also entered directing the Referee to schedule a final meeting of creditors and report his actions therein to the District Court. Appeals No. 13,301 and No. 13,302 complain of these orders. Favorable consideration by this Court of these appeals is foreclosed by our previous rulings in United States v. Worley, supra, Worley v. Elliott, supra, and Worley v. National Specialty Co., supra, which has become the law of the case. We expressly stated in Worley v. Elliott, supra, 231 F.2d 526, 527, referring to our ruling in United States v. Worley, supra, 213 F.2d 509, “Our decision has become the law of the case in this respect and will not be reconsidered by us nor relitigated in the District Court.” We closed the opinion in that case with the statement, “The decrees of the bankruptcy court are affirmed and it is directed to proceed as expeditiously as possible with the final liquidation of the estate.” Appellants’ motion for a new trial filed in the District Court after denial of certiorari by the Supreme Court was properly overruled by the District Judge. In addition to the lack of merit in the motion, obviously, it was not timely. The order directing a final meeting of creditors looking to the closing of the bankruptcy proceedings was clearly proper and in keeping with the directive of this Court in Worley v. Elliott, supra. We now repeat that directive and call appellants’ attention to the fact that there should be an end to a case in litigation, and that when litigants have had their day in court and a final judgment rendered, the successful party and the court should not be burdened with successive efforts thereafter to relitigate the same issues. Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 525-526, 51 S.Ct. 517, 75 L.Ed. 1244. See also our previous opinion in Worley v. National Specialty Co., 243 F.2d 165, 166.
Appeals Nos. 13,271, 13,272 and 13,273 arise out of actions filed by the appellants in the District Court. Motions to dismiss on behalf of the appellees in each case were sustained by the District Judge, who filed a written explanation of the ruling.
The claim in No. 13,271 was for salary alleged by Mrs. Worley to be due and owing her by the bankrupt corporation. The District Judge ruled that the exclusive remedy was to file the claim with the Referee in the bankruptcy proceeding; that the United States had not given its consent to the type of action being asserted against it, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; United States v. Worley, supra; and that the allegations were insufficient to establish liability against the other individual appellees.
The claim in No. 13,272 was for recovery by appellants personally of corporate funds of the bankrupt alleged to have been misappropriated. The District Judge ruled that a stockholder has no personal cause of action against an officer of the corporation for misappropriation of assets, which right of action accrues to the trustee in bankruptcy, and that the proper procedure for the assertion of an unliquidated claim against a bankrupt estate was to file the claim with Referee in Bankruptcy.
The claim in No. 13,273 was the alleged improper settlement of claims by the Trustee in Bankruptcy. The District Judge ruled that the settlements complained of had been expressly approved by the Court in other proceedings after examination of the facts pertaining thereto.
Orders of dismissal were entered on March 4, 1957, in the two cases first above referred to, and on February 26, 1957, in the third case above referred to. Notice of appeal was filed in each case on March 8, 1957. On March 18, 1957, appellants filed in the District Court in each case a motion to dismiss the appeal and that the Court alter and amend its judgment. These motions were also argued before Judge Martin who on May 6, 1957, entered an order in each case which stated that upon consideration of the entire record in the cause and the arguments of the attorneys appointed by the Court to represent the appellants, it appeared that insofar as the motion sought to alter and amend the judgment previously entered, it raised matters that had previously been adjudicated adversely to the appellants, and no error appearing in the judgment, the motion was denied. The present appeals were taken on June 6, 1957, from these orders of May 6, 1957.
In our opinion, the three actions were properly dismissed by the District Judge in the orders of February 26, 1957, and March 4, 1957, and there was no error in the entry of the subsequent orders on May 6, 1957, denying the appellants’ motion to alter and amend the judgment in each ease.
The judgment in each of the five appeals is affirmed.
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
|
028
|
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.
ARIZONA v. CALIFORNIA et al.
No. 8,
Orig.
Decided June 3, 1963 Decree entered March 9, 1964— Amended decree entered February 28, 1966 — Decided and supplemental decree entered January 9, 1979 — Decided March 30, 1983
Second supplemental decree entered April 16, 1984
SECOND SUPPLEMENTAL DECREE.
The Court having, on March 30, 1983, rendered its decision on the several Exceptions to the Final Report of the Special Master herein, approving the recommendation that the Fort Mojave Indian Tribe, the Chemehuevi Indian Tribe, the Colorado River Indian Tribes, the Quechan Indian Tribe, and the Cocopah Indian Tribe be permitted to intervene, approving some of his further recommendations and disapproving others, all as specified in this Court’s opinion, 460 U. S. 605 (1983), the following supplemental decree is now entered to implement the decision of March 30, 1983.
IT IS ORDERED, ADJUDGED, AND DECREED:
A. Paragraphs (2) and (5) of Article 11(D) of the Decree in this case entered on March 9, 1964 (376 U. S. 340, 344-345), are hereby amended to read as follows:
(2) The Cocopah Indian Reservation in annual quantities not to exceed (i) 9,707 acre-feet of diversions from the mainstream or (ii) the quantity of water necessary to supply the consumptive use required for irrigation of 1,524 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with priority dates of September 27,1917, for lands reserved by the Executive Order of said date; June 24, 1974, for lands reserved by the Act of June 24, 1974 (88 Stat. 266, 269);
(5) The Fort Mojave Indian Reservation in annual quantities not to exceed (i) 129,767 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 20,076 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with priority dates of September 19, 1890, for lands transferred by the Executive Order of said date; February 2,1911, for lands reserved by the Executive Order of said date; provided that the quantities fixed in this paragraph, and in paragraphs 1, 2, 3, and 4 shall be subject to appropriate adjustments by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined.
B. Paragraph 1(A) of the Decree of January 9, 1979 (439 U. S. 419, 423) is hereby amended to read as follows:
I
ARIZONA
A. Federal Establishments’ Present Perfected Rights The federal establishments named in Art. II, subdivision (D), paragraphs (2), (4), and (5) of the Decree entered March 9, 1964, in this case:
Annual
Defined Area Diversions Net
of Land(Acre-Feet) Acres Priority Date
1) Cocopah Indian Reservation 7,681 1,206 Sept. 27, 1917
2) Colorado 358,400 53,768 Mar. 3, 1865
River Indian 252,016 37,808 Nov. 22, 1873
Reservation 51,986 7,799 Nov. 16, 1874
8) Fort Mojave Indian Reservation 27,969 4,327 Sept. 18, 1890 75,566 11,691 Feb. 2, 1911
C. In addition to the mainstream diversion rights in favor of the Indian Reservations specified in Paragraph 1(A) of the Decree of January 9, 1979, as amended by Paragraph B of this decree, a mainstream diversion right of 2,026 acre-feet for the Cocopah Reservation shall be charged against the State of Arizona with a priority date of June 24, 1974.
D. Except as otherwise provided herein, the Decree entered on March 9, 1964, and the Supplemental Decree entered on January 9, 1979, shall remain in full force and effect.
E. The allocation of costs previously made by the Special Master is approved and no further costs shall be taxed in this Court, absent further proceedings after entry of this Decree.
F. The Special Master appointed by the Court is discharged with the thanks of the Court.
G. The Court shall retain jurisdiction herein to order such further proceedings and enter such supplemental decree as may be deemed appropriate.
Justice Marshall took no part in the consideration or decision of this matter.
The quantity of water in each instance is measured by (i) diversions or (ii) consumptive use required for irrigation of the respective acreage and for satisfaction of related uses, whichever of (i) or (ii) is less.
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_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".
F. T. TURNER v. Burnett DICKEY.
Circuit Court of Appeals, Sixth Circuit.
April 4, 1929.
No. 5172.
J. W. Canada, of Memphis, Tenn., for appellant.
Hunter Wilson, of Memphis, Tenn., for appellee.
PER CURIAM.
Judgment of the District Court 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_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.
Michael O. WATSON, Petitioner-Appellant, v. A. R. JAGO, Superintendent, Respondent-Appellee.
No. 76-1979.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 3, 1976.
Decided and Filed June 14, 1977.
James R. Willis, Stephen O. Walker, Cleveland, Ohio, Michael O. Watson, for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Allen P. Adler, Columbus, Ohio, for respondent-appellee.
Before WEICK, PECK and LIVELY, Circuit Judges.
JOHN W. PECK, Circuit Judge.
Appellant Michael Watson was indicted by a Cuyahoga County, Ohio, grand jury for deliberate and premeditated murder in the first degree, in violation of former section 2901.01 of the Ohio Revised Code. At trial, appellant claimed self-defense. The jury found appellant guilty of the lesser included offense of murder in the second degree, and appellant was sentenced to life imprisonment. After appealing to the Cuyahoga County Court of Appeals and to the Ohio Supreme Court, appellant sought collateral review of his conviction in the federal district court by petition for writ of habeas corpus. The district court, however, denied the petition.
Appellant has brought this appeal, making several arguments in support of his petition. We reach only one, that appellant was denied due process of law under the Fourteenth Amendment when he was forced during the state court trial to defend against a charge of felony-murder, which was not contained in the indictment. Because we agree with appellant on this issue, we reverse and remand the case to the district court with instructions to grant the writ of habeas corpus.
I
On February 6, 1973, in the late afternoon, appellant and a friend, John Bell, entered the store of a Cleveland, Ohio grocer, William Dallas. Bell asked the grocer’s wife, who was working in the store along with her husband, for a six-pack of beer. Mrs. Dallas got the beer from the cooler and set it on the counter. William Dallas then came over and asked Bell for some identification to show that he was of age to buy the beer. A conversation concerning credentials followed. The conversation ended when appellant drew a pistol and shot Mr. Dallas twice. One bullet struck Dallas in his left arm. The other bullet struck Dallas in the head, killing him. Mrs. Dallas witnessed the shooting.
According to Mrs. Dallas, immediately before the shooting, appellant had said to Mr. Dallas that he had credentials and had asked whether Mr. Dallas wanted to see them. According to appellant and Bell, however, Mr. Dallas had pulled a gun, and appellant claimed that he had fired in self-defense. Most of the store owners in the area were armed, and on that day, Mr. Dallas had carried a gun in the pocket of his white butcher-type apron. The police later found the gun owned by Mr. Dallas on the floor, under the victim’s body. That gun had not been fired.
Immediately after the shooting, appellant and Bell fled the scene without the beer in a red 1964 Cadillac, which had transported appellant and Bell to the store and which had carried two other friends. A description and the license plate number of the automobile were given to the police by a witness in the vicinity of the store. A couple of hours later, the automobile was stopped. Three males were arrested, but appellant escaped on foot. Six days later, on February 12,1973, appellant surrendered to the police.
Appellant was indicted for deliberate and premeditated first degree murder only. Nevertheless, at the state court trial, the prosecutor in his opening statement, after reading the indictment for deliberate and premeditated murder, asserted that:
“... the evidence... will convince you beyond a reasonable doubt that this man Watson [appellant] did in fact maliciously, premeditatively and while in the act of a robbery murder Willie Dallas.”
Defense counsel, before making his opening statement, moved to dismiss the indictment. He argued that it was an infringement of a defendant’s right to notice of criminal charges to be brought against him by the State for the prosecutor to present a case on the basis of felony-murder when the indictment specified only a charge of first degree murder with deliberate and premeditated malice and did not include a charge of felony-murder. The prosecutor, when asked by the Court to reply to this argument, stated that premeditated murder and felony-murder were both first degree mur-. der and that the indictment, by charging first degree murder, did not have to include a statement that the indictment was for felony-murder for a defendant to be prosecuted on that charge. The trial court overruled the motion to dismiss, and the trial proceeded with the presentation of the State’s case.
The prosecutor called several witnesses: Mrs. Dallas, the wife of the victim; a witness who was near the scene of the crime; Willie Waldon and Gerald Ford, friends of appellant who waited in the Cadillac when the killing took place; Peter Becker, a police detective who interrogated Ford after the shooting; and a police officer who arrived at the scene of the crime shortly after the killing. Much of the questioning focused on the possible robbery.
When the prosecution stated that it would rest its case, defense counsel, out of the jury’s hearing, moved to withdraw the charge of first degree murder from the jury’s consideration. Defense counsel argued that there was no evidence to support a possible jury verdict of first degree murder, first, because there was no evidence of premeditation or deliberation on appellant’s part and secondly, because there was no evidence to show the commission of a robbery. The prosecutor disagreed, responding that the evidence did show a premeditated killing and that he had proven a prima facie case of robbery. The Court denied the defense motion.
After a short recess, the prosecutor in proceedings between the Court and counsel in the Court’s chambers, requested the Court not to charge the jury on first degree felony-murder. The prosecutor stated that the proof showed that some of the elements of armed robbery were present and that such facts were relevant with respect to the complete circumstances of the case.
Defense counsel immediately protested. He reminded the Court that at the start of the trial he had moved for the exclusion of any reference to a felony-murder because the indictment did not mention felony-murder. He further argued that because the Court allowed the trial to proceed with the inclusion of the felony-murder charge and because the defense had patterned its cross-examination in large part on the refutation of inferences supporting a charge of felony-murder, to drop the felony-murder charge would be prejudicial since it would preclude the defense counsel from talking about what he had tried to establish on cross-examination.
The prosecutor replied that the effect of not charging the jury on felony-murder was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” (State Court Trial Transcript 171.) The prosecutor denied that there could be prejudice in removing that one count since there was evidence to support a verdict of deliberate and premeditated first degree murder. The evidence of a robbery was characterized as “ancillary” to the deliberate and premeditated murder.
The Court agreed with the prosecution and made a tentative ruling that the jury would be charged only on deliberate and premeditated first degree murder. Defense counsel stated for the record that it was a strange situation for the State to start out by saying that it would prove felony-murder along with premeditated murder, to deny that there had to be a separate indictment for felony-murder from premeditated murder, to spend a great part of its case trying to prove felony-murder, and then, after resting its case, to seek withdrawal of the felony-murder charge and admit that a separate indictment was needed for felony-murder. Nevertheless, the Court adhered to its tentative decision to charge only deliberate and premeditated first degree murder.
The trial proceeded with the defense calling appellant and John Bell and the prosecution calling Mrs. Dallas in rebuttal. After the Court denied certain defense motions, the Court charged the jury on deliberate and premeditated first degree murder as charged in the indictment. The jury found appellant not guilty of deliberate and premeditated first degree murder but guilty of the lesser included offense of second degree murder.
Appellant appealed unsuccessfully to the Cuyahoga County, Ohio Court of Appeals and to the Ohio Supreme Court. His case is now before us because the district court denied his petition for a writ of habeas corpus. The question which we reach deals with the fact that appellant was forced to defend against a charge of felony-murder that was not brought by the grand jury in the indictment. There are two main issues with respect to this question: (1) whether there was a constructive amendment to the indictment, and (2) whether, if there was a constructive amendment, it violated appellant’s constitutional rights under the Fourteenth Amendment in this state court, as opposed to federal court, trial.
II
Under the Fifth Amendment’s provision that no person shall be held to answer for a capital crime unless on the indictment of a grand jury, it has been the rule that after an indictment has been returned its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930). In 1887, the Supreme Court in Bain, supra, 121 U.S. at 9-10, 7 S.Ct. 781, held that a defendant could only be tried upon the indictment as found by the grand jury and that language in the charging part could not be changed without rendering the indictment invalid. In Stirone, supra, 361 U.S. at 217, 80 S.Ct. at 273, the Supreme Court stated that Bain “stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” This rule has been reaffirmed recently several times in this Circuit. United States v. Maselli, 534 F.2d 1197, 1201 (6th Cir. 1976); United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976). Although the language in Bain is broad, it has been recognized that Bain and Stirone do not prevent federal courts from changing an indictment as to matters of form or surplus-age. Russell v. United States, supra, 369 U.S. at 770, 82 S.Ct. 1038; United States v. Hall, 536 F.2d 313, 319 (10th Cir. 1976); United States v. Dawson, 516 F.2d 796, 801 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975); Stewart v. United States, 395 F.2d 484, 487-89 (8th Cir. 1968); United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970); United States v. Huff, 512 F.2d 66 (5th Cir. 1975).
In Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061, 1071 (1969), this definition of an amendment prohibited by Stiro,ne and Bain, as opposed to the concept of a variance in proof from the indictment, appears:
An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.
These definitions have been quoted with approval by several courts of appeal. United States v. Pelose, 538 F.2d 41, 45 n. 8 (2d Cir. 1976); United States v. Somers, 496 F.2d 723, 743 n. 38 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Bursten, 453 F.2d 605, 607 (5th Cir. 1971), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972).
This distinction between an amendment and a variance is critical because a variance is subject to the harmless error rule, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), whereas an amendment prohibited by Stirone and Bain is prejudicial per se. United States v. Bryan, 483 F.2d 88, 96 (3d Cir. 1973); United States v. DeCavalcante, 440 F.2d 1264, 1271 (3d Cir. 1971);. Gaither v. United States, supra, 413 F.2d at 1072. Sometimes, however, there is a problem in identifying when an amendment is made to an indictment. That problem occurs when the charging terms of an indictment have not been literally changed but have been effectively altered by events at trial. United States v. Somers, supra, 496 F.2d at 744.
Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, involved a “constructive” amendment. The defendant was found guilty, but the Supreme Court reversed the conviction, stating that the defendant’s right to be tried only on charges presented in an indictment returned by a grand jury had been destroyed even though the indictment had not been formally changed. Stirone v. United States, supra, 361 U.S. at 217, 80 S.Ct. 270.
Under Stirone, the question to be asked in identifying a constructive amendment is whether there has been a modification at trial in the elements of the crime charged. United States v. Somers, supra, 496 F.2d at 744; United States v. DeCavalcante, supra, 440 F.2d at 1272; United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). Such a modification would result in a constructive amendment. Of course, if a different crime was added to the charges against which the defendant had to meet, there would have been a constructive amendment. United States v. Sir Kue Chin, 534 F.2d 1032, 1036 (2d Cir. 1976); United States v. Holt, 529 F.2d 981 (4th Cir. 1975).
Applying this test to the present case, there clearly was a constructive amendment made to the indictment if appellant is correct in stating that felony-murder was added to the charges against which appellant had to defend at the state trial. Under Ohio law, a felony-murder conviction cannot be sustained under an indictment charging first degree murder with premeditated and deliberate malice. The Ohio Supreme Court in State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964), held that although felony-murder and premeditated murder were both included in the same paragraph of the then existing first degree murder statute, felony-murder and premeditated murder constituted separate offenses. For appellant to be convicted of felony-murder he would have had to be indicted for that crime.
The question that the present case poses is whether, under the facts of this case, felony-murder was effectively added to the charges against which appellant had to defend. The district court held that there was no factual basis from which to conclude an amendment had been made to the indictment, even though the prosecutor, during the State’s case, improperly tried to prove felony-murder. The district court reasoned, and on appeal appellee contends, that there was no amendment to the indictment because the prosecutor’s opening statement included a reading of the indictment and because the trial court’s charge to the jury was only for deliberate and premeditated first degree murder and did not include a charge of felony-murder.
However, the prosecution and defense counsel throughout the State’s case relied on the trial court’s ruling and sought respectively to prove and negate commission of a robbery at the time of the shooting. On cross-examination, defense counsel elicited from Mrs. Dallas the statements that neither appellant nor Bell said “stick it up,” that neither appellant nor Bell gave any indication that they were robbing or attempting to rob the store, that neither appellant nor Bell took anything of value in the store, and that neither appellant nor Bell acted — until the shooting — as other than normal customers.
In response, the prosecution called Henry Towns, a witness in the vicinity of the store. Towns described seeing appellant and Bell run up a street away from the area of the grocery store and enter a waiting red 1964 Cadillac, which quickly sped away from the scene. Towns further testified that he saw either appellant or Bell with something under his arm and that he thought that the bar next to the Dallas grocery store had been robbed.
After brief testimony from an intervening witness, the prosecution called Gerald Ford. The prosecution’s sole purpose in calling and vigorously questioning Ford was to prove a robbery. After the prosecution was granted permission to cross-examine Ford as a hostile witness, he was asked whether in the car after the shooting if appellant had admitted to his friends that in the store he told William Dallas that it was a “stickup.” Ford first denied that appellant had said anything about a stickup and then asserted that he could not remember. The prosecutor read from Ford’s statement, which was taken by police after he was arrested and which incriminated the appellant. Ford said that he had signed the statement but repeated his claim that he did not remember that he had stated anything about a robbery. In permitting the prosecutor to cross-examine Ford as a hostile witness, the Court gave as its “principal reason” for allowing the cross-examination the fact that the State in its opening statement contended that the killing took place during an attempted robbery.
When cross-examined by defense counsel, Ford denied that there was any conversation among the four friends in the Cadillac about an effort to rob the grocery store. Ford also testified that the statement he gave was made under pressure of possible criminal charges against him at a time when he was not free to leave the police station.
The prosecution also called two police detectives, Peter Becker, who was one of the two officers who took Ford’s statement, and William Vargo, who was an officer who arrived at the scene of the crime shortly after the killing. On direct examination, Becker was questioned about the nature of his interrogation of Ford to show that the statement was freely given. On cross-examination, Becker admitted that Ford never said that any of his three companions in the Cadillac on the day of the shooting ever stated to Ford that appellant and Bell had the intention of robbing the store. Vargo admitted on cross-examination that when he turned over the dead body of William Dallas, he saw that the right hand of Dallas was inches away from where his gun lay on the floor. Shortly thereafter, the prosecution stated that it would not ask that the Ford statement be formally received into evidence.
It thus clearly appears that the strategy of counsel was vitally affected by the trial court’s ruling allowing the prosecution to prove felony-murder. The trial proceeded on the basis that, under the Ohio first degree murder statute, former Ohio Revised Code § 2901.01, to uphold a conviction of first degree murder, the State had to prove that appellant purposely killed another person and that appellant either killed with deliberation and premeditation or killed during the commission of a felony. State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11 (1951); Robbins v. State, 8 Ohio St. 181 (1857); Note, The Felony Murder Rule in Ohio, 17 Ohio St. L.J. 130 (1956). A major portion of the trial, during the State’s case, concerned the possible robbery and not facts going to a determination of premeditation. The trial court ruling that the State could prove felony-murder was critical to defense strategy because appellant at trial claimed self-defense, which is not a defense to felony-murder.
The trial court thus permitted a constructive amendment and then, upon request of the prosecution, permitted a withdrawal of the amendment. As the prosecutor aptly put it, when he asked the trial court not to charge the jury on felony-murder, the effect was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” The Ohio grand jury had not put such a felony-murder count in the indictment.
Ill
Because the law of a constructive amendment has developed in the context of federal court trials and the Fifth Amendment, it must be determined whether appellant’s constitutional rights under the Fourteenth Amendment were violated in his state court trial. The problem stems from the fact that the rule against amendments contained in Ex Parte Bain, supra, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, and Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, rests on the Fifth Amendment’s guarantee of a grand jury indictment before a person can be held to answer for a capital crime. Ex Parte Bain, supra, 121 U.S. at 10, 13, 7 S.Ct. at 786, 788, made clear the Fifth Amendment basis for the rule:
If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says, “no person shall be held to answer,” may be frittered away until its value is almost destroyed.
[A]fter the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.
The Fifth Amendment’s guarantee of a grand jury indictment in cases of capital crimes, however, has never been incorporated into the Fourteenth Amendment and hence is not applicable to the states. In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not require a grand jury indictment in a prosecution by the State of California for a capital crime. While it is true that Hurtado once stood in a line of Supreme Court cases that refused to incorporate Bill of Rights guarantees relating to criminal procedure into the Fourteenth Amendment and while it is true that such older precedent, except for Hurtado, has been overruled and most of the Bill of Rights guarantees relating to criminal procedure have been incorporated into the Fourteenth Amendment as fundamental rights, Hurtado remains good law. Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Picard v. Connor, 404 U.S. 270, 273, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Saunders v. Buckhoe, 346 F.2d 558, 559 (6th Cir. 1965).
In addition, even if a state adopts a grand jury system, federal constitutional requirements, binding in federal criminal cases are not binding on the states, Alexander v. Louisiana, supra, 405 U.S. at 633, 92 S.Ct. 1221, except with respect to the racial or national composition of grand juries. Carter v. Jury Commission, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Thus, with respect to amendments, federal courts have viewed their legality as “primarily a matter of state law.” United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975). See Henderson v. Cardwell, 426 F.2d 150, 152 (6th Cir. 1970); Stone v. Wingo, 416 F.2d 857, 859 (6th Cir. 1969).
By statute, Ohio law allows certain amendments. Ohio Revised Code § 2941.30 at the time of appellant’s trial provided, and now provides:
The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form of substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment or information or to cure a variance between the indictment or information and the proof, the accused is entitled to a discharge of the jury on his motion, if a jury has been impaneled, and to a reasonable continuance of the cause, unless it clearly appears from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. In case a jury is discharged from further consideration of a case under this section, the accused was not in jeopardy. No action of the court in refusing a continuance or postponement under this section is reviewable except after motion to and refusal by the trial court to grant a new trial therefor, and no appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court finds that the accused was prejudiced in his defense or that a failure of justice resulted.
In the present case the Ohio Revised Code § 2941.30 would not permit an amendment that changed the indictment to add another, different crime. See Breinig v. State, 124 Ohio St. 39, 42-43, 176 N.E. 674 (1931); Hasselworth v. Alvis, 76 Ohio Law Abs. 238, 143 N.E.2d 862 (1956); Horsley v. Alvis, 281 F.2d 440 (6th Cir. 1960). In no way was Ohio Revised Code § 2941.30 involved in the present case. According to Breinig, such a far reaching amendment as occurred in the present case would violate fundamental laws, cloaking the defendant with the right under the Ohio State Constitution to “demand the nature and cause of the accusation against him.” 124 Ohio St. at 42-43, 176 N.E.2d at 676.
More important to appellant’s petition for a writ of habeas corpus is the fact that an amendment to an indictment in certain cases can implicate rights under the United States Constitution which are applicable to the states, such as fair notice of criminal charges, double jeopardy, and effective assistance of counsel. See United States ex rel. Wojtycha v. Hopkins, supra, 517 F.2d 425. This Court in United States v. Pandili-dis, supra, 524 F.2d at 648, recognized that:
. the rules governing the content of indictments, variances and amendments are designed to protect three important rights: the right under the Sixth Amendment to fair notice of the criminal charge one will be required to meet, the right under the Fifth Amendment not to be placed twice in jeopardy for the same offense, and the right granted by the Fifth Amendment, and sometimes by statute, not to be held to answer for certain crimes except upon a presentment or indictment returned by a grand jury.
There is no question that the Fourteenth Amendment encompasses the right to fair notice of criminal charges. The Supreme Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), in dealing with the Due Process Clause of the Fourteenth Amendment, stated that:
A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence..
Likewise, in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), the Supreme Court declared that:
No principle of procedural due process is more clearly established than that of notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.
See United States v. Maselli, supra, 534 F.2d 1197, 1201; United States v. Beard, 436 F.2d 1084, 1086-88 (5th Cir. 1971); Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960). Also, under the Fourteenth Amendment, states are obliged to observe the prohibition against double jeopardy, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and allow counsel sufficient time to prepare a defense. Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
To allow the prosecution to amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not brought by the grand jury unquestionably constituted a denial of due process by not giving appellant fair notice of criminal charges to be brought against him. See DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937). As a matter of law, appellant was prejudiced by the constructive amendment. See Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. DeCavalcante, supra, 440 F.2d 1264; Gaither v. United States, supra, 134 U.S.App.D.C. 154, 413 F.2d 1061. The fact that the charge to the jury only included first degree premeditated murder according to the indictment could not cure the prejudice to the appellant. Furthermore, an amendment cannot properly be justified by a prosecuting attorney on the ground that defense counsel should have sought a bill of particulars. Russell v. United States, supra, 369 U.S. at 769-70, 82 S.Ct. 1038; United States v. Norris, supra, 281 U.S. at 622, 50 S.Ct. 424.
The order of the district court is reversed, and the case is remanded to the district court with instructions to grant the writ of habeas corpus, conditioned on the State’s right to retry the appellant. See Price v. Georgia, 398 U.S. 323,
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - commercial disputes - debt collection, disputes over loans. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
ROOSEVELT et al. v. MISSOURI STATE LIFE INS. CO. et al.
No. 10254.
Circuit Court of Appeals, Eighth Circuit.
Aug. 1, 1935.
C. E. Daggett, of Marianna, Ark. (J. B. Daggett, of Marianna, Ark., Walter Chandler and J, H. Shepherd, both of Memphis, Tenn., Daggett & Daggett, of Marianna, Ark., and Chandler, Shepherd, Owen & Heiskell, of Memphis, Tenn., on the brief), for appellants.
George B. Rose, of Little Rock, Ark. (Allen May and Warren Rogers, both of St. Louis, Mo., Richard B. McCulloch, of Marianna, Ark., and ’ Rose, Hemingway, Cantrell & Loughborough, of Little Rock, Ark., on the brief), for appellees.
Before GARDNER, SANBORN, and WOODROUGli, Circuit Judges.
Rehearing denied. Sept. 23, 1935.
GARDNER, Circuit Judge.
Appellees Missouri State Life Insurance Company and Burk Mann, trustee, commenced this suit in equity to foreclose a real estate mortgage deed of trust which secured payment of $240,000 and interest. The deed of trust covered lands in several counties in Arkansas. Defendants in the lower court were Hughes Investment Company, a corporation, Arthur F. Douglas, record owner of the land, and various individuals comprising a committee known in the record as the committee for the protection of holders of bonds sold through G. L. Miller & Co., Inc., and others. The Hughes Investment Company filed an answer denying the allegations of the bill for foreclosure. The committee and Arthur F. Douglas filed answer and cross-bill. The issues before us are those raised by this cross-bill and the answer thereto.
In the cross-bill it is alleged that the committee were the victims of a fraud perpetrated by the Missouri State Life Insurance Company and its representatives, in a transaction involving the exchange by the committee of property known as the Medical Arts building in Memphis, Tenn., for a consideration partly in cash and partly in a first mortgage note secured by a deed of trust on Arkansas lands. The committee demanded damages for fraud and deceit in the sum of $210,000.
The case was referred to a special master, with directions to take the testimony and to report findings of fact and conclusions of law. In due time the master made and reported findings to the effect that the fraud alleged had been committed, and that the committee had suffered damages thereby in the sum of $210,000. Exceptions to the report were filed, and the lower court, upon hearing, sustained all of the exceptions and filed findings of fact and conclusions of law of its own, and entered decree thereon in favor of the appellees, dismissing the cross-bill for want of equity, and decreeing foreclosure of the trust deed for the full amount of the debt thereby secured. From this decree, the cross-complainants appealed to this court, and, because of procedural defects, we reversed the judgment. Roosevelt v. Missouri State Life Ins. Co., 70 F.(2d) 939. On remand to the lower court, this defect was remedied, and thereupon the lower court again made findings of fact and conclusions of law which are identical with those formerly made, and entered decree of foreclosure and dismissed the cross-bill. The record having been perfected, the case is now before us on the merits.
To understand the relationship of the insurance company, the committee, and other parties, and the nature of the transaction in which fraud is alleged to have been perpetrated, it is necessary to detail some otherwise unrelated facts which appear in the court’s findings, or from undisputed evidence.
A Mrs. Rees owned a lot in the business section of Memphis, Tenn. G. L. Miller & Co., of New York, investment bankers, made a specialty of taking mortgages upon urban property to secure bond issues which they sold, using the proceeds in financing the construction of buildings. This concern and Mrs. Rees became interested in the erection of a building on her lot in Memphis, to be called the Medical Arts building. To that end Mrs. Rees and a Mr. Sackett organized a corporation called the Madison Building Company, to which Mrs. Rees conveyed the lot. The Madison Building Company executed to G. L. Miller & Co. a mortgage to secure a bond issue amounting to $825,000. These bonds were sold to a great number of persons. Mrs. Rees at first took for her interest in the property a second mortgage, which she afterwards exchanged for preferred stock in the Madison Building Company. Before the building was completed, G. L. Miller & Co. failed. A receiver was appointed to take charge of the building in the suit of a mechanic’s lienholder. The trustee for the bondholders intervened, and the receivership was extended for their protection. Other holders of mechanics’ liens intervened. The Madison Building Company filed an answer, setting up that the mortgage was usurious.
A great part of the building had not been divided up by partitions, and with but little of it rented, the income was not adequate to pay the carrying charges. The total claims ahead of Mrs. Rees amounted to $1,010,500. In this condition of her affairs, she placed them in the hands of Fred Callahan, a lawyer in Memphis, Tenn., who made various unsuccessful efforts to refinance so as to save something for her, but accomplished nothing until he met Burk Mann, who suggested to him that the Missouri State Life Insurance Company would be glad to exchange some of its lands in Arkansas for the office building in Memphis. Mr. Mann was a member of a firm of Arkansas attorneys who represented the life insurance company in its Arkansas foreclosure business, being regularly retained and on a salary basis. After considerable negotiations between the insurance company and Callahan, they entered into a contract on the 21st day of July, 1927, by which it was provided that Callahan was to deliver to the insurance company $850,000 in bonds, secured by a first mortgage on the Medical Arts building; that a corporation which he would organize, and which would execute the mortgage, would finish the building °and clear it of liens, and to guarantee his so doing, he would deposit with the insurance company the sum of $31,000. In consideration of the delivery of the bonds, the insurance company was to pay Callahan $100,000 in cash, from which the $31,000 to be deposited to secure completion of the building was to be deducted, and convey to him by warranty deed, free of all liens except the taxes and assessments becoming payable after the year 1927, lands to be selected by Mann, of the value of $750,000, according to the cost to the insurance company on the day they were transferred to its real estate division after foreclosure. The insurance company also agreed that it would loan to Callahan $120,000 on $220,000 in value of the lands, valued as above set forth. The insurance company also agreed to convey to Callahan, or his nominee, lands which the insurance company carried on its books at a value of $430,000, which lands were to be used by Callahan in settling with the holders of the bonds on the Medical Arts building. The insurance company further agreed that it would give Callahan, or his assigns, an option to borrow $215,000 from the insurance company, which loan should be secured by a first mortgage on the $430,-000 list of lands. The contract further provided that unless the deal should be concluded on or before October 15, 1927, it should become null and void at the option of the insurance company. This time was, on August 22, 1927, extended to November 15, 1927.
After this contract with the insurance company had been tentatively agreed upon, but before the date of the execution of the formal contract, Callahan had several meetings with the committee representing the bondholders of G. L. Miller & Co., appointed by the United States District Court at New York City in a bankruptcy proceeding of the G. L. Miller & Co. On July 17th and 18th, Callahan submitted to the committee a proposal for contract, and this proposal was accepted by the committee, but it was contemplated by the parties that a formal contract would be executed at a later date; and on August 3, 1927, the committee and Callahan entered into a formal contract which was, however, subject to the approval of the United States District Court for the Southern District of New York. By the terms of this contract, the committee agreed to transfer to Callahan the title to the Medical Arts building, free of liens, and as consideration for such transfer, Callahan agreed to pay the committee $170,000 in cash, and to deliver to the committee a first mortgage note for $430,000 to be executed by a corporation to be organized by Callahan and to be secured by a mortgage on approximately' 8,500 acres of land theretofore acquired by the real estate division of the insurance company by foreclosure of first mortgages, the value of such lands to be ascertained by their cost to the insurance company.
On September 3, 1927, an agreement was entered into between the insurance company and the committee, in pursuance of the contract with Callahan, and by this contract the insurance company agreed directly with the committee that the insurance company would carry out its contract with Callahan. The committee hesitated to recommend to the court the confirmation of the contract, and demanded of Callahan that there either be more land included in the mortgage, or that the amount of the loan by the insurance company be increased from $215,000 to $240,000. On September 7, 1927, the insurance company agreed to increase the loan to $240,000 oh the land conveyed, as the basis of the $430,000 mortgage, and on that date the insurance company delivered to the committee the appraisals and other information which Callahan had contracted to present not later than the date of the hearing before the court.
On the evening of September 8, 1927, Callahan had a long interview with the New York attorneys of the committee, as a result of which, and at the suggestion of the committee’s attorneys that he “put in writing his statement as to the value of these lands in order that we could have something for the consideration of the committee and of the court in definite form,” he wrote to the chairman of the committee, Mr. Roosevelt, a letter which Mr. Foster, one of the committee’s attorneys, helped him to prepare from the data at hand, in which he set forth accurately the acreage, the character of each tract of land, the amount of the original loan upon it by the insurance company, and the foreclosure cost. This letter shows that the lands aggregated 10,128 acres, appraised by the insurance company before its original loans were made at $889,158, and costing on foreclosure sales $430,378.36. At this interview, Callahan stated that he had not seen any of the lands on which the $430,000 mortgage was to be executed, but he presented letters from leading real estate firms in Memphis, Tenn., giving the average value of improved and unimproved lands in the counties where these lands lay. He embodied in his letter an analysis of these estimates, showing the value of cleared lands in Crittenden county $93.75 per acre, uncleared lands $17.50 per acre, and a similar average valuation for each of the other counties. Mr. Mann was present at the conference, but took no part in it, and stated in reply to inquiry that he knew nothing about the lands. He was requested to appear in court the following day, but declined so to do, saying that he could give the court no information.
Since the letter of September 8th was written by Callahan at the request of representatives of the committee, and was apparently intended to summarize in written form his statements as to the value and general character of the lands, and since it was prepared for the purpose of use by the committee and the court, and since no objection has appeared to its fairly representing what was said by Callahan, we shall again refer to it as the best and most accurate evidence of what he did say at this conference.
It is here observed that the letter lists each tract of land separately, classifies the acreage of each tract, and places a value on each class of land. For instance, tract No. 90 is listed as 1,800 acres cultivated land at $100; 200 acres pasture at $50; 200 acres timber at $30; 100 acres lake, no value. Tract No. 92 is listed as 160 acres cultivated land at $75; 100 acres almost cleared at $60; 60 acres timber at $40. Submitted with the letter were pliotostatic copies of inspectors’ reports. These reports were those made by the insurance company’s inspectors as the basis for making the original loans. The letter closes with the following paragraph:
“While I have not personally inspected any of the lands, and the information furnished you is based upon appraisals made by the Missouri State Life Insurance Company, and from other sources mentioned above, I feel that it is fair to assume that the Insurance Company employed competent inspectors, and that the appraisals made by said inspectors, which I herewith submit, furnish the best available data as to the value as of the date of inspection, i would further state that Mr. C. W. Watson, of Marx & Bensdorf, and Mr. C. F. Williams, of Bolton Smith & Company, have no personal interest in this matter and are both connected with old and reliable firms of Memphis, Tennessee.”
On the next day, Mr. Roosevelt, chairman of the committee, and Mr. Callahan appeared before the United States District Court, Judge Mack presiding, and a hearing was had. Some of the bondholders objected to the proposed arrangement, calling attention to the fact that the farm lands were of very little value at that time, and that they did not think the Memphis property should be exchanged for farm land, but the court finally approved the arrangement on condition that the loan should be increased from $215,000 to $240,-000, and that the committee should not be required to bid for the Medical Arts building more than $500,000. At this hearing, the letter of Callahan to the committee was read in open court, and Mr. Callahan was interrogated by Judge Mack relative to the properties. The court inquired of the committee whether it had had an inspection and appraisements of the land and Mr. Roosevelt replied that they had not, but that they could have the lands appraised in ten days at a cost of $500. He asked for no postponement of the hearing in order that an appraisement might be made, and the proposed exchange was finally approved by the court.
Following this meeting in New York, Callahan returned to Memphis and organized the Hughes Investment Company, to which the 10,128 acres of land were conveyed on October 28, 1927, and on the same day the Hughes Investment Company made a mortgage of $430,000 to William P. Metcalf and the First National Bank of Memphis, as trustees for the committee. The committee was required to exercise its option to borrow $240,000 on the lands within ninety days, which option was extended by the insurance company from time to time at the request of the committee.
In May, 1928, the committee had an appraisement of the lands made, which showed in detail their condition and valued the whole at $258,550.50, and on October 27, 1928, after knowledge of the value fixed by this appraisement, the committee exercised the option to obtain the loan of $240,000. On October 30, 1928, the Hughes Investment Company, which held title to the land, executed a- $240,000 mortgage on it to Burk Mann as trustee for the insurance company. On October 31, 1928, the Hughes Investment Company conveyed the land to Arthur F. Douglas as agent for the committee. The trustees in the $430,000 mortgage, at the request of the committee, subordinated it to the $240,000. The committee actually received' the $240,000 January 9, 1928, less $20,000 to pay taxes that had accrued on the land and the expense of recording the mortgage and subordination agreement.
The committee gave no notice, either to the insurance company or to Callahan, of an intention to repudiate the transaction or to claim that they had been induced to enter into it by fraud, until the cross-complaint was filed in this cause on January 24, 1930, and the Hughes Investment Company remained in possession of the lands until their conveyance to Douglas as agent for the committee, and the committee then continued in possession of the property, receiving the rents and profits until a receiver was appointed in this cause on the 9th of November, 1929. It is to foreclose this $240,000 mortgage that this suit was brought.
The questions on this appeal may be grouped as follows: (1) Whether the findings of the master were reviewable by the District Court, and, if so, to what extent; (2) whether the Missouri State Life Insurance Company, by fraudulent misrepresentation or concealment through Callahan and Mann, or either, mislead the committee as to the condition and value of farm lands; and (3) whether the appellants by their acts have waived their right to sue for. damages for fraud and deceit, or are es-topped so to do.
The contention of appellants that the findings of the master were not reviewable by the lower court was, we think, disposed of adversely to the appellants by this court on the former appeal. Roosevelt v. Missouri State Life Insurance Co., 70 F.(2d) 939.
Equity Rule 61% (28 USCA following section 723) specifically provides that: “The report of the master shall be treated as presumptively correct, but shall be subject to review by the court, and the court may adopt the same, or may modify or reject the same in whole or in part when the court in the exercise of its judgment is fully satisfied that error has been committed.”
True, the rule provides that when a case or any issue is referred by consent, and the intention is plainly expressed in the consent order that the submission to the master is as an arbitrator, the court may review the same only in accordance with the principle covering a review of an award by an arbitrator; otherwise, the report of the master is not conclusive, but only advisory, and is subject to review by the court, and the court may either approve or disapprove, modify, or recommit the report, or it may do as it did in this' case, disaffirm the report, act upon the evidence reported, and enter its own findings. Boesch v. Graff, 133 U. S. 697, 10 S. Ct. 378, 33 L. Ed. 787; Denver v. Denver Union Water Co., 246 U. S. 178, 38 S. Ct. 278, 62 L. Ed. 649; Armstrong v. Lone Star Refining Co. (C. C. A. 8) 20 F.(2d) 625; Parker v. Interstate Trust & Banking Co. (C. C. A. 5) 56 F.(2d) 792; Roosevelt v. Missouri State Life Ins. Co. (C. C. A. 8) 70 F.(2d) 939; Holt Mfg. Co. v. C. L. Best Gas Traction Co. (D. C.) 245 F. 354; Edwards Co. v. La Dow (C. C. A. 6) 230 F. 378; Stokes v. Williams (C. C. A. 3) 226 F. 148; Byers v. Federal Land Co. (C. C. A. 8) 3 F.(2d) 9; Simkins Federal Practice § 843.
The report of the master, when submitted to the trial court, is clothed with the presumption of correctness, and if it is approved by the trial court it is clothed with the presumption of correctness in the appellate court, but where the trial court, notwithstanding this presumption, has disapproved and set aside the report, then it cannot be said that the presumption of correctness is attributable to it in the appellate court. That presumption is overcome by the adverse finding of the lower court, and we must accept the findings of the court as presumptively correct, although the presumption is doubtless weakened by the fact that its findings are in conflict with those made by the master. Where, as in the instant case, findings of the master and the court conflict, it is the duty of this court to examine the evidence and determine the facts.
While this suit was commenced as one in equity, the issues involved are those arising on the cross-complaint of the appellants, by which they pleaded an action at law to recover damages for fraud and deceit. To entitle a party to recover in such an action, there must have been actual fraud resulting in damages. As said by us in Boatmen’s Nat. Co. v. Elkins & Co., 63 F.(2d) 214, 216: “To sustain an action for damages for fraud and deceit, the representation made (1) must have been as to material facts; (2) it must have been knowingly false; (3) it must have been made with the intention that it should be acted upon by the person to whom made; (4) that person must have been ignorant of its falsity; (5) he must have relied on its truth; and (6) the false representation must have been the proximate cause of the injury or damage.”
The elements and characteristics of such an action are well stated by this court in an opinion by Judge Hook in Kimber v. Young, 137 F. 744, 747, where it is, among other things, said: “To afford sufficient basis for an action of deceit the representation must have been of material facts, and must have had such relation to the transaction in hand as to operate as an inducement to the action or omission of the complaining party (Slaughter’s Adm’r v. Gerson, 13 Wall. 379, 383, 20 L. Ed. 627; Smith v. Chadwick, 20 Ch. Div. 27); and it must have been relied on by him (Marshall v. Hubbard, 117 U. S. 415, 6 S. Ct. 806, 29 L. Ed. 919; Ming v. Woolfolk, 116 U. S. 599, 6 St. Ct. 489, 29 L. Ed. 740; Stratton’s Independence v. Dines [C. C.] 126 F. 968, 977). The basis of the action of deceit is the actual fraud of defendant — his moral delinquency; atid therefore his knowledge of the falsity of the representation, or that which in law is equivalent thereto, must be averred and proved. There is much confusion in the authorities upon this subject, due in part to the erroneous assumption that that which is merely evidence of fraud is equivalent to the ultimate fact which it tends to prove, and also to the assumption, likewise erroneous, that an untrue representation which would be sufficient to support a suit in equity for a rescission of a contract is equally as available in an action of deceit. * * * The false representation relied on as the ground of an action of deceit must have accomplished the purpose of deception. Ming v. Woolfolk, supra. The plaintiff must have used due diligence to discover for himself the truth or falsity of the representation (Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203), or the relations of the parties to each other or the location or character of the subject-matter of the transaction must have been such as to excuse investigation and to justify his reliance upon the assertion of the other. Again, the representation must be of existing and ascertainable facts, and not mere promissory statements based upon general knowledge, information, and judgment. Sawyer v. Prickett, 19 Wall. 146, 22 L. Ed. 105; Patent Title Co. v. Stratton (C. C.) 89 F. 174, 178. It was said in Union Pacific Ry. Co. v. Barnes [(C. C. A.) 64 F. 80], supra: ‘An action for false and fraudulent representations can never be maintained upon a promise or a prophecy.’ Nor is mere expression of opinion sufficient, though it be false, and be expressed in strong and positive language. Johansson v. Stephanson, 154 U. S. 625, 14 S. Ct. 1180, 23 L. Ed. 1009. Positive statements as to value are generally mere expressions of opinion and as such cannot support an action of deceit. Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166; Blease v. Garlington, 92 U. S. 1, 9, 23 L. Ed. 521.”
See, also, United States v. Beebe, 180 U. S. 343, 21 S. Ct. 371, 45 L. Ed. 563; Southern Development Co. v. Silva, 125 U. S. 247, 8 S. Ct. 881, 31 L. Ed. 678; Woods-Faulkner & Co. v. Michelson (C. C. A. 8) 63 F.(2d) 569; Boatmen’s Nat. Co. v. Elkins & Co. (C. C. A. 8) 63 F.(2d) 214; Gleason v. Thaw (C. C. A. 2) 234 F. 570; Kell v. Trenchard (C. C. A. 4) 142 F. 16.
The charge of fraud is based upon certain alleged misrepresentations by Callahan as to the nature, character, condition, value, and income of these Arkansas farm lands at the conference held at the New York hotel on the evening of September 8, 1927, and in the District Court of New York on the following day. At the conference, Mr. Mann was present, and it is claimed that his silence was such as to imply an acquiescence of the Missouri State Life Insurance Company, which he represented, in the statements made by Callahan. It is important, in considering this testimony, to note the relation of the parties. The bondholders’ committee consisted of intelligent business men, who, in all they did, acted under advice of counsel. At this conference, they were represented by members of the committee and by at least three attorneys, and at the court hearing which followed, they were represented by eminent counsel. One of their attorneys had, prior to that time, been driven 150 miles through the territory where a considerable portion of the lands were located, and the committee had a local attorney at Memphis, Tenn. There were no trust relations between the parties, and they were at liberty to deal with each other at arms length. At the conference there was apparently a great deal of general discussion as to the land values. There was before the committee at this conference the report of the insurance company’s inspectors on each of these tracts of land on which the insurance company had originally made a loan. This report contained an appraisal of each tract of land. There was before the committee evidence as to the amount of the loan originally made by the insurance company, the fact that the mortgage had been foreclosed, and the amount at which the property had been bid in by the insurance company. These report's of the inspectors classified the lands embodied in each tract and separately placed a valuation on each class of land. There were before the committee letters from certain real estate firms in Memphis, Tenn., giving an estimate of certain classes of land in the counties in which these properties were located, but giving no information as to these' particular lands, and Mr. Roosevelt expressed the view that these real estate firms were reliable, and he seems to have had some acquaintance with certain of their members.
At that conference, Callahan specifically said that he had never seen nor inspected any of the lands in question. Mr. Foster, one of the committee’s attorneys who attended the conference, in his testimony relative to this conference, says: “After a long conference preliminary, we suggested that Mr. Callahan put in writing his statement as to the value of these lands in order that we could have something for the consideration of the committee and of the court, in definite form.”
In referring to the letter, this witness further says: “In preparing the figures, the analysis of the various tracts was obtained from the appraisal reports, with the exception of the foreclosure costs, which was merely a statement by the Missouri* Life Insurance Company. Mr. Callahan then reduced the computation of the foreclosure costs, divided by the number of acres, to an average of slightly under $42.50. Then 'Mr. Callahan computed with my assistance the average value of cleared! and uncleared land in the counties of Crittenden, Jefferson, Mississippi and Poinsett,, taking the average values given by Bolton-. Smith and Marx & Bensdoi;f, and then applying these average figures for cleared! and uncleared land to the amount of cleared or cultivated land on the one hand, and to the timbered and uncleared land, and obtained a value on this average valuation* basis of $577,923.75, before making any allowance for the value of the improvements. He then took the aggregate value-of the improvements as shown on the appraisal reports, $99,750.00, and added that figure to the total value of the lands without improvements, making a total valuation of $677,673.75.”
The committee, therefore, knew exactly how the letter was prepared, and had in-their hands the data from which it was-compiled, and apparently accepted it as a. summary in written, definite form of his. statements as to the value of the lands. It was not only prepared at the suggestion of' the committee for that purpose, but was. used by the committee and the court as. representing all that Callahan knew with reference to these properties. We have already adverted to the fact that Callahan at no time represented that he had any personal knowledge as to the character, condition, or value of these lands, and in his letter, after stating that he had not personally inspected any of the lands, he refers to the-appraisals as made by the inspectors of the insurance company in the following language : “I feel that it is fair to assume that the Insurance Company employed competent inspectors and that the appraisals made by said inspectors, which I herewith submit, furnish the best available data as. to the values as of the date of the inspection.”
This is in the nature of an argument,, and it refers to values, not at the time of the conference, but at the time the appraisals were made, which was in 1918 to-1920. The evidence indicates that either at the conference, or on the following day, he said that the lands throughout the delta were all alike and equally suitable for cotton farming. He said that the lands were.overflowed to a minor extent by a levee break. He also gave it as his opinion that the fair rental was $10 per acre for cotton lands. At the hearing before Judge Mack, Mr. Roosevelt, with his three attorneys, appeared, as did also Mr. Callahan. At this hearing, Judge Mack pointed out that there were no figures as to the present values of the lands, and that there were opinions only as to the general average of land in the counties. Callahan said he was making a statement from his knowledge concerning conditions in and about Memphis, his home, and that the lands involved were across the river; that he was not a land man, but a lawyer, but he was a large landowner and felt that he was qualified to say something at least concerning the prospects or future of farm lands in his section. He pointed out that during the World War, cotton planters were prosperous, and that after the war cotton sold for less than it cost to produce it; that planters lost their lands, but cotton had gone up very rapidly, and he expressed the opinion that there would be no telling where the end would be. He said: “Income from those 5600 acres of land should be between $15.00 and $10.00 per acre. I am speaking of usual conditions in the cotton belt, and the land rent usually runs from $10.00 to $15.00 per acre.”
Here the court interrupted: “How much of that land is cotton land?” Mr. Callahan replied-: “How much of it is cultivated?” This interrogation seems to have been addressed to Mr. Foster, one of the committee’s attorneys. At any rate, Mr. Foster spoke up and said, “5,500 acres.” Mr. Callahan then said his client (Mrs. Rees) reasonably should expect an income of from fifty to fifty-five thousand dollars from these lands. The court then said that the taxes and interest would amount to $36,000. Callahan said: “That would leave, your Honor, if my guess is right, that would leave some twenty or twenty-five thousand dollars, or fifteen or twenty thousand dollars of it to the present holders, with the prospect of things getting better, and how they can get worse I cannot imagine, and that would leave a margin above that.”
The court asked about the levee break, and Callahan said that his understanding, from reliable sources, was that only one plantation was affected by the overflow. The court said: “You do not know what the effect on that particular parcel is, of the break?”
Callahan answered: “No, sir, your Hon- or, I do not; but I do know this, I know that plantations thirteen miles away from the bad break at Stops Landing, that the effect was beneficial in that it made the land more fertile and much better for planting purposes, and my own plantation was improved by the deposit of new soil or silt, as they call it on the plantation. Now, that is all I can say on that subject.”
Referring to the statements from the Memphis real estate agents, the court said: “But none of these appraisals refer specifically to this land, they refer to the general average of lands in those counties.”
Callahan then said: “Well, for six hundred miles, your Honor, — of course this is just my statement — but for six hundred miles the delta looks all alike, one plantation looks just like another, and the man who gives you his guess knows about the general values of the delta, and those appraisals cover almost completely the value of the particular plantations as if he had made a specific appraisal of these particular plantations.”
In this entire recital, there cannot be said to be a statement of any present material fact. As to rental values generally, what Callahan said was less than an opinion — it was prophecy, and known to be such at the time the statements were made. In this connection he used the words “prospects or future.” As to the statement with reference to the overflow of the lands, he disclaimed any knowledge,' but stated the effect of overflow on lands some 13 miles distant from the break, and there is no suggestion of any proof that either of these statements were false. As to his general statement that for 600 miles the delta looks all alike, it is observed that he says: “Of course, this is just my statement.” Mr. Foster had viewed these lands on his 150-mile drive, but, in addition to all this, the statement bears on its face evidence that it was given as a general statement, which was not intended to apply to individual peculiar differences in the various tracts. In fact, the court and the committee were advised by the very letter which Callahan had prepared, in which he summarized the appraisal reports of the insurance company, that these lands were not all alike. These appraisals showed valuation on cultivated lands from $75 to $150 per acre, and on timber land from $20 to $60 per.acre. The letter which was read at the hearing showed that there were not only timber lands and cultivated lands, but partly cleared tracts, roughly cleared tracts, cleared land, some “slashed” land, partly marshy; 760 acres in Poinsett county was described as being “unimproved, valued a,t $60.00 per acre in timber.” Then, too, the letter from Bolton Smith & Co. showed that the average value of cultivated land in Jefferson county runs from $75 to $100 an acre, while cut-over lands in Jefferson county runs from $75 to $100 an acre; that cut-over lands and the woods lands would run from $10 to $25 an acre
Question: What is the second general issue in the case, other than economic activity and regulation - commercial disputes - debt collection, disputes over loans?
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_state
|
52
|
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".
GOVERNMENT OF the VIRGIN ISLANDS v. Patricia ROMAIN, Appellant.
No. 78-1868.
United States Court of Appeals, Third Circuit.
Argued April 23, 1979.
Decided June 18, 1979.
Judith L. Bourne, Asst. Federal Public Defender, Christiansted, St. Croix, U. S. V. I., for appellant.
Mark L. Milligan, Asst. U. S. Atty., Chris-tiansted, St. Croix, V. I., for appellee.
Before ROSENN, MARIS and HUNTER, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The appellant, Patricia Romain, an inmate of the Golden Grove Adult Correctional Facility, St. Croix, was found guilty by a jury of assaulting a matron of the facility, Myrtle Michael, in violation of 14 V.I.C. § 296(3). This appeal is taken from the district court’s order of June 14, 1978, sentencing the appellant to serve a term of eighteen months in prison, the term to run concurrently with the sentence the appellant is already serving.
The appellant contends on appeal (1) that the evidence was insufficient to support the district court’s denial of the appellant’s motion for a judgment of acquittal or to support the jury’s verdict, (2) that the verdict represented an impermissible coerced compromise resulting from the trial court’s insistence that the jurors continue their deliberations after they had reported themselves deadlocked and (3) that the appellant was denied a fair trial due to the government’s failure, through negligence, to produce two defense witnesses. We have considered these contentions and find them to be wholly without merit. However, our examination of the record reveals an error which we are obliged to notice and which requires reversal of the conviction and a new trial, namely, the request of the trial judge to the jury that he be informed of the jury’s numerical division on the question of the defendant’s guilt or innocence.
The trial took place on May 30, 1978. The following day, after the jury had been deliberating for several hours, the foreman of the jury notified the trial judge that the jury was unable to arrive at a decision. The trial judge then sent a note to the foreman asking for advice on how the jury was divided and requesting that the numbers be inserted in two spaces provided at the bottom of the note. The note was returned to the trial judge with the spaces filled in indicating a division of ten to two.
The Supreme Court has held that the trial judge’s inquiry of a jury which is unable to reach agreement as to its numerical division is reversible error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). The Court reasoned as follows:
We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to .the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.
272 U.S. at 450, 47 S.Ct. at 135-36.
We are not here concerned with the question whether the rule stated in Bras-field v. United States is one of constitutional dimension and, therefore, applicable to state as well as federal courts as held in State v. Aragon, 89 N.M. 91, 547 P.2d 574, 580 (Ct.App.1976), and People v. Wilson, 390 Mich. 689, 213 N.W.2d 193 (1973). But see Ellis v. Reed, 596 F.2d 1195 (4th Cir. 1979), contra. For it is, at the least, a rule adopted by the Supreme Court under its supervisory power over the courts of the United States and, thus, applicable to the courts of the Third Federal Judicial Circuit, of which the District Court of the Virgin Islands is one. See Government of Virgin Islands v. Solis, 4 V.I. 615, 619-620, 334 F.2d 517, 519-520 (3d Cir. 1964).
The failure of counsel to bring this error to the court’s attention does not preclude its correction on appeal since the error, once committed, cannot be cured. Brasfield v. United States, supra, 272 U.S. at 450, 47 S.Ct. 135.
The judgment of the district court will be reversed and the cause remanded for a new trial.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_casesource
|
159
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
INTERNATIONAL ASSOCIATION OF MACHINISTS et al. v. GONZALES.
No. 31.
Argued December 12, 1957.
Decided May 26, 1958.
Plato E. Papps and Eugene K. Kennedy argued the cause for petitioners. With them on the brief was Bernard Dunau.
Lloyd E. McMurray argued the cause and filed a brief for respondent.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Claiming to have been expelled from membership in the International Association of Machinists and its Local No. 68 in violation of his rights under the constitution and by-laws of the unions, respondent, a marine machinist, brought this suit against the International and Local, together with their officers, in a Superior Court in California for restoration of his membership in the unions and for damages due to his illegal expulsion. The case was tried to the court, and, on the basis of the pleadings, evidence, and argument of counsel, detailed findings of fact were made, conclusions of law drawn, and a judgment entered ordering the reinstatement of respondent and awarding him damages for lost wages as well as for physical and mental suffering. The judgment was affirmed by the District Court of Appeal, 142 Cal. App. 2d 207, 298 P. 2d 92, and the Supreme Court of California denied a petition for hearing. We brought the case here, 352 U. S. 966, since it presented another important question concerning the extent to which the National Labor Relations Act, 49 Stat. 449, as amended, 29 U. S. C. §§ 141-188, has excluded the exercise of state power.
The crux of the claim sustained by the California court was that under California law membership in a labor union constitutes a contract between the member and the union, the terms of which are governed by the constitution and by-laws of the union, and that state law provides, through mandatory reinstatement and damages, a remedy for breach of such contract through wrongful expulsion. This contractual conception of the relation between a member and his union widely prevails in this country and has recently been adopted by the House of Lords in Bonsor v. Musicians’ Union, [1956] A. C. 104. It has been the law of California for at least half a century. See Dingwall v. Amalgamated Assn. of Street R. Employees, 4 Cal. App. 565, 88 P. 597. Though an unincorporated association, a labor union is for many purposes given the rights and subjected to the obligations of a legal entity. See United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 383-392; United States v. White, 322 U. S. 694, 701-703.
That the power of California to afford the remedy of reinstatement for the wrongful expulsion of a union member has not been displaced by the Taft-Hartley Act is admitted by petitioners. Quite properly they do not attack so much of the judgment as orders respondent’s reinstatement. As Garner v. Teamsters Union, 346 U. S. 485, could not avoid deciding, the Taft-Hartley Act undoubtedly carries implications of exclusive federal authority. Congress withdrew from the States much that had theretofore rested with them. But the other half of what was pronounced in Garner — that the Act “leaves much to the states” — is no less important. See 346 U. S., at 488. The statutory implications concerning what has been taken from the States and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation. See Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 474-477.
Since we deal with implications to be drawn from the Taft-Hartley Act for the avoidance of conflicts between enforcement of federal policy by the National Labor Relations Board and the exertion of state power, it might be abstractly justifiable, as a matter of wooden logic, to suggest that an action in a state court by a member of a union for restoration of his membership rights is precluded. In such a suit there may be embedded circumstances that could constitute an unfair labor practice under § 8 (b) (2) of the Act. In the judgment of the Board, expulsion from a union, taken in connection with other circumstances established in a particular case, might constitute an attempt to cause an employer to “discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership . . . 61 Stat. 141, 29 U. S. C. §158 (b)(2). But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8 (b)(1) of the Act states that “this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . .” 61 Stat. 141, 29 U. S. C. § 158 (b) (1). The present controversy is precisely one that gives legal efficacy under state law to the rules prescribed by a labor organization for “retention of membership therein.” Thus, to preclude a state court from exerting its traditional jurisdiction to determine and enforce the rights of union membership would in many cases leave an unjustly ousted member without remedy for the restoration of his important union rights. Such a drastic result, on the remote possibility of some entanglement with the Board’s enforcement of the national policy, would require a more compelling indication of congressional will than can be found in the interstices of the Taft-Hartley Act. See United Constr. Workers v. Laburnum Constr. Corp., 347 U. S. 656.
Although petitioners do not claim that the state court lacked jurisdiction to order respondent’s reinstatement, they do contend that it was without power to fill out this remedy by an award of damages for loss of wages and suffering resulting from the breach of contract. No radiation of the Taft-Hartley Act requires us thus to mutilate the comprehensive relief of equity and reach such an incongruous adjustment of federal-state relations touching the regulation of labor. The National Labor Relations Board could not have given respondent the relief that California gave him according to its local law of contracts and damages. Although, if the unions’ conduct constituted an unfair labor practice, the Board might possibly have been empowered to award back pay, in no event could it mulct in damages for mental or physical suffering. And the possibility of partial relief from the Board does not, in such a case as is here presented, deprive a party of available state remedies for all damages suffered. See International Union, United Automobile Workers v. Russell, post, p. 634.
If, as we held in the Laburnum case, certain state causes of action sounding in tort are not displaced simply because there may be an argumentative coincidence in the facts adducible in the tort action and a plausible proceeding before the National Labor Relations Board, a state remedy for breach of contract also ought not be displaced by such evidentiary coincidence when the possibility of conflict with federal policy is similarly remote. The possibility of conflict from the court’s award of damages in the present case is no greater than from its order that respondent be restored to membership. In either case the potential conflict is too contingent, too remotely related to the public interest expressed in the Taft-Hartley Act, to justify depriving state courts of jurisdiction to vindicate the personal rights of an ousted union member. This is emphasized by the fact that the subject matter of the litigation in the present case, as the parties and the court conceived it, was the breach of a contract governing the relations between respondent and his unions. The suit did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under § 8 (b)(2). This important distinction between the purposes of federal and state regulation has been aptly described: “Although even these state court decisions may lead to possible conflict between the federal labor board and state courts they do not present potentialities of conflicts in kind or degree which require a hands-off directive to the states. A state court decision requiring restoration of membership requires consideration of and judgment upon matters wholly outside the scope of the National Labor Relations Board’s determination with reference to employer discrimination after union ouster from membership. The state court proceedings deal with arbitrariness and misconduct vis-a-vis the individual union members and the union; the Board proceeding, looking principally to the nexus between union action and employer discrimination, examines the ouster from membership in entirely different terms.” Isaacson, Labor Relations Law: Federal versus State Jurisdiction, 42 A. B. A. J. 415, 483.
The judgment is
Affirmed.
Me. Justice Black took no part in the consideration or decision of this case.
“In determining the question of whether the exclusive jurisdiction to grant damages in a case of this kind lies in the Labor Relations Board, it is first necessary to determine the character of the pleadings and issues in this case. The petition alleged a breach of contract between the union and plaintiff, one of its members. ... It took the form of a petition for writ of mandate because damages alone would not be adequate to restore to petitioner the things of value he had lost by reason of the breach. No charge of 'unfair labor practices’ appears in the petition. The answer to the petition denied its allegations and challenged the jurisdiction of the court, but said nothing about unfair labor practices. The evidence adduced at the trial showed that plaintiff, because of his loss of membership, was unable to obtain employment and was thereby damaged. However, this damage was not charged nor treated as the result of an unfair labor practice but as a result of the breach of contract. Thus the question of unfair labor practice was not raised nor was any finding on the subject requested of, or made by, the court.” 142 Cal. App. 2d 207, 217, 298 P. 2d 92, 99.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES v. PELTIER
No. 73-2000.
Argued February 18, 1975 —
Decided June 25, 1975
William L. Patton argued the cause for the United States. On the brief were Solicitor General Bork, Acting Assistant Attorney General Keeney, Mark L. Evans, and Peter M. Shannon, Jr.
Sandor W. Shapery, by appointment of the Court, 419 U. S. 1044, argued the cause and filed a brief for respondent.
Sanford Jay Rosen filed a brief for the Mexican American Legal Defense and Educational Fund as amicus curiae urging affirmance.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Four months before this Court’s decision in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), respondent was stopped in his automobile by a roving border patrol, and three plastic garbage bags containing 270 pounds of marihuana were found in the trunk of his car by Border Patrol agents. On the basis of this evidence an indictment was returned charging him with a violation of 84 Stat. 1260, 21 U. S. C. § 841 (a) (1). When respondent’s motion to suppress the evidence was denied after a hearing, he stipulated in writing that he “did knowingly and intentionally possess, with intent to distribute, the marijuana concealed in the 1962 Chevrolet which he was driving on February 28, 1973.” The District Court found respondent guilty and imposed sentence. On appeal from that judgment, the Court of Appeals for the Ninth Circuit, sitting en banc, reversed the judgment on the ground that the “rule announced by the Supreme Court in Almeida-Sanchez v. United States . . . should be applied to similar cases pending on appeal on the date the Supreme Court’s decision was announced.” 500 F. 2d 985, 986 (1974) (footnote omitted) . We granted the Government’s petition for certiorari. 419 U. S. 993 (1974).
In Almeida-Sanchez, supra, this Court held that a warrantless automobile search, conducted approximately 25 air miles from the Mexican border by Border Patrol agents, acting without probable cause, was unconstitutional under the Fourth Amendment. In this case the Government conceded in the Court of Appeals that the search of respondent’s automobile approximately 70 air miles from the Mexican border and the seizure of the marihuana were unconstitutional under the standard announced in Almeida-Sanchez, but it contended that that standard should not be applied to searches conducted prior to June 21, 1973, the date of the decision in AlmeidaSanchez. In an inquiry preliminary to balancing the interests for and against retroactive application, see Stovall v. Denno, 388 U. S. 293, 297 (1967), the majority of the Court of Appeals first considered whether this Court had “articulated a new doctrine” in Almeida-Sanchez, 500 F. 2d, at 987. See, e. g., Chevron Oil Co. v. Huson, 404 U. S. 97, 106 (1971); Milton v. Wainwright, 407 U. S. 371, 381-382, n. 2 (1972) (Stewart, J., dissenting). Concluding that Almeida-Sanchez overruled no prior decision of this Court and instead “reaffirmed well-established Fourth Amendment standards” that did not “disturb a long-accepted and relied-upon practice,” 500 F. 2d, at 988, the Court of Appeals held:
“[Respondent] is entitled to the benefit of the rule announced in Almeida-Sanchez, not because of retro-activity but because of Fourth Amendment principles never deviated from by the Supreme Court.” Id., at 989.
The judgment of conviction was reversed, and the case was remanded to the District Court to suppress the evidence seized from respondent’s automobile.
Although expressing some doubt about the applicability of the old law-new law test as a precondition to retro-activity analysis, id., at 990, the six dissenters joined issue with the majority over the proper interpretation of Almeida-Sanchez. The dissenters concluded that AlmeidaSanchez had announced a new constitutional rule because the decision overruled a consistent line of Courts of Appeals precedent and disrupted a long accepted and widely relied upon administrative practice. Border Patrol agents had conducted roving searches pursuant to congressional authorization, 66 Stat. 233, 8 U. S. C. § 1357 (a)(3), and administrative regulation, 8 CFR § 287.1 (a)(2) (1973), which had been continuously upheld until this Court’s decision in Almeida-Sanchez. Since Almeida-Sanchez stated a new rule, the dissenters concluded that the applicability of that decision to pre-June 21, 1973, roving patrol vehicle searches should be determined by reference to the standards summarized in Stovall v. Denno, supra. For the reasons expressed in Part II of Judge Wallace’s opinion in United States v. Bowen, 500 F. 2d 960, 975-981 (CA9), cert. granted, 419 U. S. 824 (1974), the dissenters concluded that Almeida-Sanchez should be accorded prospective application.
Despite the conceded illegality of the search under the Almeida-Sanchez standard, the Government contends that the exclusionary rule should not be mechanically applied in the case now before us because the policies underlying the rule do not justify its retroactive application to pre-Almeida-Sanchez searches. We agree.
I
Since 1965 this Court has repeatedly struggled with the question of whether rulings in criminal cases should be given retroactive effect. In those cases “[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials,” Williams v. United States, 401 U. S. 646, 653 (1971), the doctrine has quite often been applied retroactively. It is indisputable, however, that in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby coneededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. Linkletter v. Walker, 381 U. S. 618 (1965); Johnson v. New Jersey, 384 U. S. 719 (1966); Stovall v. Denno, supra; Fuller v. Alaska, 393 U. S. 80 (1968); Desist v. United States, 394 U. S. 244 (1969); Jenkins v. Delaware, 395 U. S. 213 (1969); Williams v. United States, supra; Hill v. California, 401 U. S. 797 (1971).
We think that these cases tell us a great deal about the nature of the exclusionary rule, as well as something about the nature of retroactivity analysis. Decisions of this Court applying the exclusionary rule to unconstitutionally seized evidence have referred to “the imperative of judicial integrity,” Elkins v. United States, 364 U. S. 206, 222 (1960), although the Court has relied principally upon the deterrent purpose served by the exclusionary rule. See Mapp v. Ohio, 367 U. S. 643 (1961); Lee v. Florida, 392 U. S. 378 (1968); see also United States v. Calandra, 414 U. S. 338 (1974); Michigan v. Tucker, 417 U. S. 433 (1974). And see also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 668-672 (1970).
When it came time to consider whether those decisions would be applied retroactively, however, the Court recognized that the introduction of evidence which had been seized by law enforcement officials in good-faith compliance with then-prevailing constitutional norms did not make the courts “accomplices in the willful disobedience of a Constitution they are sworn to uphold.” Elkins v. United States, supra, at 223. Thus, while the “imperative of judicial integrity” played a role in this Court’s decision to overrule Wolf v. Colorado, 338 U. S. 25 (1949), see Mapp v. Ohio, supra, at 659, the Mapp decision was not applied retroactively: “Rather than being abhorrent at the time of seizure in this case, the use in state trials of illegally seized evidence had been specifically authorized by this Court in Wolf.” Linkletter v. Walker, supra, at 638 (footnote omitted). Similarly, in Lee v. Florida, supra, this Court overruled Schwartz v. Texas, 344 U. S. 199 (1952), and held that evidence seized in violation of § 605 of the Federal Communications Act of 1934, 48 Stat. 1103, 47 IT. S. C. § 605, by state officers could not be introduced into evidence at state criminal trials:
“[T]he decision we reach today is not based upon language and doctrinal symmetry alone. It is buttressed as well by the ‘imperative of judicial integrity.’ Elkins v. United States, 364 U. S. 206, 222. Under our Constitution no court, state or federal, may serve as an accomplice in the willful transgression of ‘the Laws of the United States,’ laws by which ‘the Judges in every State [are] bound ....’” 392 U. S., at 385-386 (footnotes omitted).
But when it came time to consider the retroactivity of Lee, the Court held that it would not be applied retroactively, saying:
“Retroactive application of Lee would overturn every state conviction obtained in good-faith reliance on Schwarts. Since this result is not required by the principle upon which Lee was decided, or necessary to accomplish its purpose, we hold that the exclusionary rule is to be applied only to trials in which the evidence is sought to be introduced after the date of our decision in Lee.” Fuller v. Alaska, supra, at 81.
The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the “imperative of judicial integrity” is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner. It would seem to follow a fortiori from the Linkletter and Fuller holdings that the “imperative of judicial integrity” is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law even if decisions subsequent to the search or seizure have held that conduct of the type engaged in by the law enforcement officials is not permitted by the Constitution. For, although the police in Linkletter and Fuller could not have been expected to foresee the application of the exclusionary rule to state criminal trials, they could reasonably have entertained no similar doubts as to the illegality of their conduct. See Wolf v. Colorado, 338 U. S., at 27; § 605 of the Federal Communications Act of 1934; cf. Nardone v. United States, 302 U. S. 379 (1937).
This approach to the “imperative of judicial integrity” does not differ markedly from the analysis the Court has utilized in determining whether the deterrence rationale undergirding the exclusionary rule would be furthered by retroactive application of new constitutional doctrines. See Linkletter v. Walker, supra, at 636-637; Fuller v. Alaska, supra, at 81; Desist v. United States, supra, at 249-251. In Desist, the Court explicitly recognized the interrelation between retroactivity rulings and the exclusionary rule: “[W]e simply decline to extend the court-made exclusionary rule to cases in which its deterrent purpose would not be served.” 394 U. S., at 254 n. 24.
This focus in the retroactivity cases on the purposes served by the exclusionary rule is also quite in harmony with the approach taken generally to the exclusionary rule. In United States v. Calandra, 414 U. S., at 348, we said that the exclusionary rule “is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” It follows that “the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Ibid. We likewise observed in Michigan v. Tucker, 417 U. S., at 447:
“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.”
The “reliability and relevancy,” Linkletter, supra, at 639, of the evidence found in the trunk of respondent’s car is unquestioned. It was sufficiently damning on the issue of respondent’s guilt or innocence that he stipulated in writing that in effect he had committed the offense charged. Whether or not the exclusionary rule should be applied to the roving Border Patrol search conducted in this case, then, depends on whether considerations of either judicial integrity or deterrence of Fourth Amendment violations are sufficiently weighty to require that the evidence obtained by the Border Patrol in this case be excluded.
II
The Border Patrol agents who stopped and searched respondent’s automobile were acting pursuant to § 287 (a) (3) of the Immigration and Nationality Act of 1952, 66 Stat. 233, 8 U. S. C. § 1357 (a)(3) That provision, which carried forward statutory authorization dating back to 1946, 60 Stat. 865, 8 U. S. C. § 110 (1946 ed.), authorizes appropriately designated Immigration and Naturalization officers to search vehicles “within a reasonable distance from any external boundary of the United States” without a warrant. Pursuant to this statutory authorization, regulations were promulgated fixing the “reasonable distance,” as specified in § 287 (a) (3), at “100 air miles from any external boundary of the United States,” 22 Fed. Reg. 9808 (1957), as amended, 29 Fed. Reg. 13244 (1964), 8 CFR § 287.1 (a) (2) (1973).
Between 1952 and Almeida-Sanchez, roving Border Patrol searches under § 287 (a) (3) were upheld repeatedly against constitutional attack. Dicta in many other Fifth, Ninth, and Tenth Circuit decisions strongly suggested that the statute and the Border Patrol policy were acceptable means for policing the immigration laws. As Mr. Justice Powell observed in his concurring opinion in Almeida-Sanchez:
“Roving automobile searches in border regions for aliens . . . have been consistently approved by the judiciary. While the question is one of first impression in this Court, such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United States where the problem has been most severe.” 413 U. S., at 278.
It was in reliance upon a validly enacted statute, supported by longstanding administrative regulations and continuous judicial approval, that Border Patrol agents stopped and searched respondent’s automobile. Since the parties acknowledge that Almeida-Sanchez was the first roving Border Patrol case to be decided by this Court, unless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm. Cf. Chevron Oil Co. v. Huson, 404 U. S. 97 (1971); Lemon v. Kurtzman, 411 U. S. 192 (1973). If the purpose of the exclusionary rule is to deter unlawful police conduct then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. Admittedly this uniform treatment of roving border patrol searches by the federal judiciary was overturned by this Court’s decision in AlmeidaSanchez. But in light of this history and of what we perceive to be the purpose of the exclusionary rule, we conclude that nothing in the Fourth Amendment, or in the exclusionary rule fashioned to implement it, requires that the evidence here be suppressed, even if we assume that respondent’s Fourth Amendment rights were violated by the search of his car.
The judgment of the Court of Appeals is therefore
Reversed.
Mr. Justice Stewart dissents from the opinion and judgment of the Court for the reasons set out in Part I of the dissenting opinion of Mr. Justice Brennan, post, at 544-549.
App. 28. The stipulation provided that it “would not [have been] entered into- had the [respondent’s] motion to suppress in the case been granted.” Ibid.
The Fifth Circuit had reached a contrary conclusion in United States v. Miller, 492 F. 2d 37 (1974).
The Court acknowledged the “power of the Federal Government to exclude aliens from the country” and the constitutionality of “routine inspections and searches of individuals or conveyances seeking to cross our borders.” 413 U. S., at 272. While searches of this sort could be conducted “not only at the border itself, but at its functional equivalents as well,” ibid., the Court concluded that the search at issue in the case “was of a wholly different sort.” Id., at 273.
388 U. S., at 297: “The criteria guiding resolution of the question [of retroactivity] implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (e) the effect on the administration of justice of a retroactive application of the new standards.”
By the time Linkletter v. Walker, 381 U. S. 618 (1965), was decided, Mapp v. Ohio, 367 U. S. 643 (1961), had already been applied to three cases pending on direct review at the time Mapp was decided. Ker v. California, 374 U. S. 23 (1963); Fahy v. Connecticut, 375 U. S. 85 (1963); Stoner v. California, 376 U. S. 483 (1964). Those cases were decided without discussion of retroactivity principles, and they have not been interpreted as establishing any retroactivity limitation of general applicability. See Linkletter, supra, at 622; Johnson v. New Jersey, 384 U. S. 719, 732 (1966); Desist v. United States, 394 U. S. 244, 252-253 (1969).
Title 8 U. S. C. § 1357 (a) (3):
“Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
“within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.”
“Any employee of the Immigration and Naturalization Service authorized so to do under regulations prescribed by the Commissioner of Immigration and Naturalization with the approval of the Attorney General, shall have power without warrant ... to board and search for aliens any vessel within the territorial waters of the United States, railway car, aircraft, conveyance, or vehicle, within a reasonable distance from any external boundary of the United States.”
United States v. Thompson, 475 F. 2d 1359 (CA5 1973); Kelly v. United States, 197 F. 2d 162 (CA5 1952); Roa-Rodriquez v. United States, 410 F. 2d 1206 (CA10 1969); United States v. Miranda, 426 F. 2d 283 (CA9 1970); United States v. Almeida-Sanchez, 452 F. 2d 459 (CA9 1971), rev’d, 413 U. S. 266 (1973). In support of these holdings, the Courts of Appeals have relied upon cases sustaining searches and seizures at fixed checkpoints maintained within 100 air miles of the border. See nn. 9, 10, and 11, infra. Whether fixed-checkpoint searches and seizures are constitutional notwithstanding our decision in Almeida-Sanchez is before us in United States v. Ortiz, No. 73-2050, cert. granted, 419 U. S. 824 (1974); United States v. Bowen, 500 F. 2d 960 (CA9), cert. granted, 419 U. S. 824 (1974).
Haerr v. United States, 240 F. 2d 533 (1957); Ramirez v. United States, 263 F. 2d 385 (1959); United States v. De Leon, 462 F. 2d 170 (1972), cert. denied, 414 U. S. 853 (1973).
Fernandez v. United States, 321 F. 2d 283 (1963); Barba-Reyes v. United States, 387 F. 2d 91 (1967); United States v. Avey, 428 F. 2d 1159, cert. denied, 400 U. S. 903 (1970); Fumagalli v. United States, 429 F. 2d 1011 (1970); Mienke v. United States, 452 F. 2d 1076 (1971); United States v. Foerster, 455 F. 2d 981 (1972), vacated and remanded, 413 U. S. 915 (1973).
United States v. McCormick, 468 F. 2d 68 (1972), cert. denied, 410 U. S. 927 (1973); United States v. Anderson, 468 F. 2d 1280 (1972).
Mr. Justice Brennan’s dissent also suggests that we were wrong to reverse the judgment affirming Almeida-Sanchez’ conviction if we uphold the judgment of conviction against Peltier. But where it has been determined, as in a case such as Linkletter, that an earlier holding such as Mapp is not to be applied retroactively, it has not beeti questioned that Mapp was entitled to the benefit of the rule enunciated in her case. See Stovall v. Denno, 388 U. S., at 300-301. Nor did the Government in Almeida-Sanchez urge upon us any considerations of exclusionary rule policy independent of the merits of the Fourth Amendment question which we decided adversely to the Government.
In its haste to extrapolate today’s decision, that dissent argues that this decision will both “stop dead in its tracks judicial development of Fourth Amendment rights” since “the first duty of a court will be to deny the accused’s motion to suppress if he cannot cite a case invalidating a search or seizure on identical facts” and add “a new layer of factfinding in deciding motions to suppress in the already heavily burdened federal courts.” Post, at 554, 560. Whether today’s decision will reduce the responsibilities of district courts, as the dissent first suggests, or whether that burden will be increased, as the dissent also suggests, it surely will not fulfill both of these contradictory prophecies. A fact not open to doubt is that the district courts are presently required, in hearing motions to suppress evidence, to spend substantial time addressing issues that do not go to a criminal defendant’s guilt or innocence. In this case, for example, the transcript of the suppression hearing takes almost three times as many pages in the Appendix as is taken by the transcript of respondent’s trial. App. 5-36.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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".
Margaret DeKORWIN, etc., Plaintiff, v. The FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants; The FIRST NATIONAL BANK OF CHICAGO, as Trustee, etc., Petitioner, v. Marie Louise BRILL, Respondent-Appellee, and Frank Bloch et al., Respondents-Appellants.
No. 13992.
United States Court of Appeals Seventh Circuit.
June 6, 1963
Bruce J. McWhirter, Roland D. Whitman, Clarence H. Ross, Chicago, 111., Ross, Hardies & O’Keefe (formerly Ross, McGowan, Hardies & O’Keefe), Chicago, 111., of counsel, for appellants.
Charles Rivers Aiken, Richard F. Watt, Chicago, 111., for appellee.
Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Frank Bloch, David Tonkin, Corrado J. DeSantis, Angela DeSantis, Jerome D. Kass, Lita A. Kass, Carl H. Kline and Edyth R. Levy, respondents, have appealed from a decree of the district court, entered September 26, 1962. The court ordered that, there being no reason for delay, the decree be entered as a final judgment.
The court's decree was based upon the report of a master in chancery, which included findings of fact and conclusions of law.
This appeal concerns the validity and the nature of two assignments, made by Marie Louise Brill (then known as Marie Louis Tonella), of Santa Monica, California, appellee, on December 29, 1949 to Leonard P. Levy, hereinafter referred to as Levy, of Philadelphia, Pennsylvania, of parts of her 1/isth share of the right, title and interest in and to the income and principal of the estate of Otto Young, deceased, payable at the death of Marie Julia Pratt out of the principal of the trust created by the will and codicil of said Otto Young, to the extent of $250,000 as to exhibit MAR-B and $100,000 as to exhibit MAR-C. Both assignments were executed by Brill in Santa Monica, California.
Each respondent claims a portion of the interest transferred under these assignments, by virtue of subassignments made to them by Levy.
From the evidence heard, the master in chancery determined that Brill’s %sth share of the trust estate, when ascertained and ready for distribution, if she survived Mrs. Pratt, her mother, would approximate $1,400,000.
Brill’s mother stopped her allowance in 1949 and she became destitute. She was referred to Samuel Cohen, described on his letterhead as the owner of “Allied Investment & Discount Corporation, in Philadelphia, Pa.” Its business is trust estate financing and general financing. After making an assignment to Cohen of a $250,000 remainder interest, for which Cohen paid her $45,000, Brill made several similar assignments to Levy, including said MAR-B and MAR-C.
In this case Brill’s counsel contends that Levy was guilty of fraud in procuring the execution of the assignments. The master did find fraud. However, we deem it unnecessary to decide whether fraud was proved. We note from the master’s report that when the assignments were executed by her, in California, her attorney was present. The district court did not expressly find that fraud existed, although it approved the master’s report and adopted its findings and conclusions.
1. In this case the district court has jurisdiction by virtue of the diversity of citizenship of the parties. DeKorwin v. First National Bank of Chicago, 7 Cir., 156 F.2d 858, 861 (1946).
2. The validity and the nature of the two assignments in question are governed by the law where they were made. DeKorwin v. First National Bank, 7 Cir., 275 F.2d 755, 760. That is California. In the courts of California the common law of England has been declared to be the rule of decision. In re Elizalde’s Estate, 182 Cal. 427, 188 P. 560, 562 (1920).
3. The master in chancery held the assignments invalid as sales under the Uniform Sales Act in effect in California, but the district court expressly refrained from basing its decree on that act. We prefer to take the position that the assignments were made to secure a loan, as also held by the master and the district court.
Our position is supported by the fact that Levy required Brill to furnish him with insurance upon her life. The insurance requirement by Levy on the life of Brill is substantially relevant to the test of whether the transaction was a loan or a sale. As was said in Provident Life & Trust Co. v. Fletcher, S.D.New York (1916), 237 F. 104, 108, by Judge Learned Hand:
“ * * * the first question of law which arises is whether the transaction, without the security of any life insurance policies, was usurious. * * * The general test is whether the principal is put at any genuine hazard. * * * under all the possible circumstances, the principal must be repaid.”
At 109 of 237 F., he added,
“ * * * In all these cases, either in one way or another, the payment of principal was secured beyond any but colorable hazard.”
This case was affirmed in 2 Cir., 258 F. 583 (1919). See also DeKorwin v. First National Bank, supra, 275 F.2d 761.
In citing both Provident Life and DeKorwin, we are referring to the common law as announced by New York courts.
Levy advanced $75,000 to her in return for assurance that he would collect $350,000 in the future, the actual date being dependent upon the length of life of the life tenant, Mrs. Pratt, who was seventy-two years old when Levy advanced the money in December, 1949. We thus see that Levy advanced Brill money, and Brill, using her remainder interest in the Otto Young Trust, undertook to secure for him a refund in kind, and, to guard against her own death before that of her mother, Levy required her to furnish him adequate life insurance at her own expense.
We have carefully examined the evidence in the record and find that it proves clearly that Levy, before he would enter into the transactions in question with Brill, insisted that she at her expense make this provision to protect him against the possible termination of her remainder interest by her death prior to that of her mother. Thus, he not only used the cost of the insurance in reducing the amount which he paid her for the assignments, but she was prevailed upon to make an initial payment of $2,000 as premium on the insurance.
The facts unerringly point to the conclusion that this transaction is a loan.
Respondents in their brief admit that, under California law, the determination of whether a transaction is a sale or a loan follows the same principle as we announced in In re Oakes, 267 F.2d 516 at 518 (1959), where we said:
“ * * * If it is a sale, we are not concerned with the question of interest, and if it is a loan then we are required to determine whether the interest charged is usurious.”
Respondents have cited several California decisions, only one of which involves facts having any similarity to those in the case at bar. It is Martyn v. Leslie, 137 Cal.App.2d 41, 290 P.2d 58 (1955). We shall not encumber this opinion with a recital of the complicated transactions involved in that case. Suffice it to say that no agreement to procure life insurance or any other kind of insurance was there involved. The word “insured” crept into the opinion, 290 P.2d at 66, where the court said:
“It is true that by means of the ‘United Purchase Agreement’ defendants insured themselves not only against loss, but of a profit. However, they did not thereby exact any payment from the plaintiffs. The plaintiffs were under no obligation to exercise their option, and there was no evidence that they were in anywise obligated to reimburse King or United if they purchased the 15 per cent interest. The evidence is all to the contrary.” (Italics supplied.)
By way of contrast, in the case at bar the record is replete with evidence, including exhibits, answers of Levy to interrogatories, and his own testimony, as well as that of Brill, that the insurance on Brill’s life, at her expense, was exacted by Levy, without which the transaction involving the assignments would not have been consummated by Levy. Martyn v. Leslie is not inconsistent with the result which we reach in this ease.
4. Respondents point out that the maximum interest rate allowed by law in Illinois is 7%, Ill.Rev.Stat. ch. 74, §§ 4, 6, 8 (1961), while in California it is 10%, West’s Cal. Const. Art. 20, § 22. They then contend that, inasmuch as the assignments were executed in California, which described Brill as “of Santa Monica, California” and that the corpus of the trust and the place of its administration are in Illinois, the resolution of the claim of usury requires a preliminary determination as to the applicable conflict of laws principles of the forum state, Illinois.
Brill agrees that the conflicts rule of Illinois controls.
In George v. Haas, 311 Ill. 382, 143 N.E. 54, plaintiff, George, sued in the municipal court of Chicago for the balance due on a promissory note which drew interest at 10%. Defendant Haas contended that no interest could be recovered because the rate of interest provided for was usurious. From a judgment for both principal and interest defendant appealed and the Appellate Court reversed. On further appeal, the Illinois Supreme Court stated, 311 Ill. at 385, 143 N.E.2d at 55:
“ * * * If a contract is executed in one state, to be performed in another state or country, the law of the place where the contract is to be performed will determine its validity and the nature and extent of the obligation. If a contract is made in one state, to be performed in another, and the states are governed by different laws, the law of the place where the contract is to be performed will prevail over the law where the contract was entered into, and it will be enforced under the law of the place of performance. Parties are presumed to contract with reference to the law of the state where their contract is to be performed, and to be governed by such law, rather than the law of the state where the contract was entered into. This rule has been declared and applied in practically every variety of contract, including bills of exchange, promissory notes, and checks drawn in another state payable in this. * * ff
While respondents rely on Walker v. Lovitt, 250 Ill. 543, 95 N.E. 631, and Oakes v. Chicago Fire Brick Co., 388 Ill. 474, 58 N.E.2d 460, we believe that the reliance is not well-founded. In Walker, the court, 250 Ill. at 546, 95 N.E. at 622, applied the principle that when a contract for the payment of money is silent on the subject, the place of payment is presumed to be the place of making. Subsequently the same court in Oakes explained Walker, 388 Ill. at 477, 58 N.E.2d at 462:
“ * * * In the later case of Walker v. Lovitt, 250 Ill. 543, 95 N.E. 631, it was as definitely stated that the rule is well settled that the validity, construction and obligation of a contract must be determined by the law of the place where it is made or is to be performed. Clearly, that rule was applicable in that case because the note involved was executed and, by presumption, was payable in the same state. No question of conflict of laws could, therefore, be directly involved.” (Italics supplied.)
In Oakes, the court approved and followed its holding in the George case, supra.
We hold that the Illinois law on usury applies in this case.
5. By its final decree of September 26, 1962, the district court ordered that respondents, having received the sum of 42½¢ of each dollar in the face amount of their subassignments, were not entitled to any further payments out of Brill’s share in the Otto Young Trust Estate, “the amounts these subassignees have received being sufficient fully to satisfy any and all valid claims by them arising from the assignments of December 29, 1949, and their subassignments thereunder. These subassignees’ claims to additional sums or amounts based on the specified assignments and sub-assignments are without merit and are denied, and they are dismissed for want of equity.”
An order of March 10, 1961, reflecting a partial settlement agreement between respondents and Brill, provided for the payment to each respondent, out of a deposit held by the court clerk, of a sum equal to 42½% of the principal amount of each respondent’s claim, without prejudice to the rights of either party. Levy testified that a price of approximately 44¢ on the dollar for a share in the assignments in question was a fair price for subassignees to pay in January 1950 (when the subassignments were made by Levy). Respondents in their brief recognize that testimony and do not dispute it. The inference that they paid such an amount is irresistible.
We are satisfied, therefore, that, from substantial evidence in the record, together with the reasonable inferences to be drawn therefrom, the 42½¢ referred to in the district court’s final decree finds almost precise support in the evidence and that the slight, apparent variance in amount does not justify our disturbing the decree upon that ground alone.
For these reasons, the decree from which this appeal has been taken is affirmed.
Decree affirmed.
. The First National Bank of Chicago is joined as trustee thereof.
. The assignee of Brill’s brother, Graveraet Young Kaufman, in a similar transaction with assignee Rosen, in New York City, was more fortunate in his dealing because he avoided paying the premium on the insurance taken out on his life for the benefit of Rosen. DeKorwin v. First National Bank, supra.
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
TELE-COMMUNICATIONS OF KEY WEST, INC., Appellant v. UNITED STATES of America et al.
No. 84-5008.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 30, 1984.
Decided April 2, 1985.
Jay L. Cohen, Washington, D.C., with whom Fred Israel, Washington, D.C., was on the brief, for appellant. Alan R. Plutzik, Washington, D.C., entered an appearance for appellant.
Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lam-berth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before WRIGHT and MIKVA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
This is an appeal from a District Court order dismissing, for failure to state a claim, a complaint filed by Tele-Communications of Key West, Inc. (TCI), a purveyor of cable television service. The issue presented is whether the dismissal was, in fact, proper under Federal Rule of Civil Procedure 12(b)(6). As discussed below, we hold that the District Court erroneously dismissed TCI’s First and Fifth Amendment claims but properly dismissed TCI’s statutory antitrust claim. Consequently, we affirm in part and reverse and remand in part.
I. Background
The undisputed facts underlying this case are as follows. For ten years, from 1974 through 1983, TCI (and its predecessor-in-interest) provided cable television service to Homestead Air Force Base in Florida. In June of 1983, however, the Air Force requested bids for cable television service to the base from a variety of parties. After receiving bids, the Air Force awarded an exclusive service contract to another company and ordered TCI to remove its cables and other equipment from the base’s cable television right-of-way by the end of December 31, 1983.
On December 13, 1983, TCI filed an action in the District Court here requesting injunctive and declaratory relief. See Complaint for Declaratory and Injunctive Relief for Injury to First Amendment Rights, Fifth Amendment Rights and Antitrust Violations, Appendix (App.) at B. Specifically, TGI requested an order requiring the Air Force to allow TCI to leave its cable equipment where it was; such an order would have enabled TCI to continue service to the base. See Complaint, supra, at 9. TCI also requested that the court issue a declaratory judgment to the effect that any attempt on the part of the Air Force to prevent TCI from continuing to serve those on the base who desired such service would violate TCI’s First and Fifth Amendment rights and the Sherman Antitrust Act. See id. at 8-9.
The same day TCI also filed a motion for a preliminary injunction, contending that it would be irreparably harmed if it was not granted relief by December 31, 1983. See Motion for Preliminary Injunction. The next day, December 14, 1983, a hearing on this motion was set for December 27, 1983.
On December 23, 1983, the Air Force filed a motion to dismiss TCI’s entire complaint for failure to state a claim or, in the alternative, for summary judgment. TCI, on December 27, 1983, then filed an opposition to the motion to dismiss and a motion to strike the Air Force’s motion for summary judgment or, in the alternative, for a discovery and briefing schedule for cross-motions for summary judgment. In these responses TCI asserted that the standard for dismissal had not been met and that the standard and procedures for summary judgment had not been complied with. See Opposition to Defendants’ Motion to Dismiss Under Rule 12(b)(6); Plaintiff’s Motion and Memorandum of Points and Authorities to Strike Defendants’ Motion for Summary Judgment or, in the Alternative, for a Discovery and Briefing Schedule for Cross-Motions for Summary Judgment.
On December 27,1983, the District Court heard oral argument on TCI’s motion for a preliminary injunction and on the Air Force’s motion to dismiss. At that time the court observed that it would not dispose of the case on summary judgment because to do so would be unfair. See Excerpt of Proceedings at 3, App.L. The next day, December 28, 1983, the District Court issued an order and memorandum opinion dismissing the complaint and denying the request for a preliminary injunction. See Tele-Communications of Key West, Inc. v. United States, 580 F.Supp. 11 (D.D.C.1983).
TCI now appeals from the dismissal of its claims for permanent injunctive and declaratory relief, asserting that that dismissal was erroneous under the Rule 12 standards or as a summary judgment. The Air Force, on the contrary, defends the District Court’s decision as procedurally proper and substantively correct. After determining the correct standard of review and evaluating the propriety of the District Court’s decision, we will examine the District Court’s disposition of each of TCI’s claims.
II. The Standard for Our Review of the District Court’s Decision
TCI’s first contention on appeal is that reversal is required because the District Court erroneously considered materials outside the pleadings in considering the motion to dismiss. The Air Force does not disagree with the proposition that the District Court had such external materials before it at the time it was contemplating the motion to dismiss; the Air Force explains this phenomenon by noting that TCI’s request for a preliminary injunction was before the court at the same time and that the Air Force presented extra-pleading materials in opposing that motion. See brief for appellees at 5 n. 3. The Air Force apparently contends, however, that the District Court did in fact, in its review of the motion to dismiss, take all the facts alleged in TCI’s complaint as true. See id. at 5. Based on this interpretation of the District Court’s decision, the Air Force disagrees with TCI’s contention that reversal is mandated. The Air Force also contends in the alternative that if the District Court did consider materials outside of TCI’s complaint, the District Court’s decision should be affirmed as a summary judgment. See id. at 5 n. 3.
We conclude that, in the circumstances of this case, the dismissal cannot properly be treated as a summary judgment, even if materials outside of TCI’s complaint were considered by the District Court. We also conclude, however, that although consideration of external materials is improper under a Rule 12(b)(6) motion to dismiss, reversal based on such consideration alone would serve no useful purpose. Where such consideration has occurred, rather, normal 12(b)(6) review will be in order.
A. Potential for Reviewing the District Court Decision as a Summary Judgment
The normal course of action when materials outside the complaint are considered is for a nominal motion to dismiss to be treated as a motion for summary judgment. As Rule 12(b) states, “If, on a [Rule 12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” See also Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972) (per curiam), Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 595 F.2d 711, 719 n. 41 (D.C.Cir.1978); Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 949 (D.C.Cir.1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976).
There are constraints on a court’s ability to thus transform a motion to dismiss, however. Specifically, Rule 12(b) provides further that, if a motion to dismiss is converted to a motion for summary judgment, “all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” See also Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982). Under Rule 56 such materials include affidavits and documentary evidence that would show that a genuine issue of material fact existed. Rule 56 contains a similar but more explicit constraint: “The motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing [on the motion].” Rule 56(c).
Thus a reviewing court should not automatically treat a dismissal where external materials were not excluded as a summary judgment, although such treatment may be the most common result of such a situation. Rather, the reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.
Here, treatment of the dismissal as a summary judgment would not be appropriate. The motion was served on TCI on December 23, 1983, and argument was heard on December 27, 1983 — a mere four days later. This scheduling complies with neither the explicit 10-day requirement of Rule 56(c) nor the reasonable-period-for-response requirement of Rule 12(b). (The four-day period, as TCI notes in its brief, spanned a weekend and included Christmas and Christmas Eve.) Consequently, the motion cannot properly be recast as a motion for summary judgment, and the District Court’s decision must stand or fall as a pure Rule 12(b)(6) dismissal.
B. Review of the District Court Decision as a Dismissal under Rule 12(b)(6)
As recently reaffirmed by this court, “Dismissal for failure to state a claim for relief is proper only when ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ All factual doubts must be resolved and all inferences made in favor of the plaintiff[ ].” Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C.Cir. 1984) (en banc) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (emphasis added by the Ramirez court; footnotes omitted)). Further, as implied by the summary judgment discussion above, a Rule 12(b)(6) disposition must be made on the face of the complaint alone.
Consideration of external materials, which would normally initiate conversion of the motion to one for summary judgment, cannot properly take place under a dismissal for failure to state a claim. This limitation cannot be avoided simply because the party against whom the dismissal was granted desired an expeditious disposition of a concurrent motion for a preliminary injunction. Such reasoning would allow circumvention of the Rule 12/Rule 56 constraints whenever a claim was joined with a request for preliminary relief. This is not a result allowable under the Federal Rules.
As noted above, TCI contends that any action by the District Court that was inconsistent with the Rule 12 requirements makes that court’s dismissal automatically reversible. Thus TCI apparently would have us reverse and remand if the District Court failed to take the facts as alleged in TCI’s complaint and considered materials outside of its pleading. We do not believe that this course would serve the interests of justice or of judicial economy. Although it is clearly improper for a District Court to fail to comply with the technical and substantive requirements of the applicable federal rules, we do not see what purpose would be served by remanding a case to the District Court for a purely legal determination that we are fully competent to make ourselves. We note that this is proper only where no factual determinations need be made, that is, where the question is entirely one of law. Such is the case with a motion to dismiss for failure to state a claim. Consequently, where we determine that the District Court has.improperly failed to follow the strictures of Rule 12, we will determine whether the dismissal was appropriate in any case under Rule 12 as properly applied rather than remand for such a determination in the District Court.
In reality, therefore, our review in a case in which the District Court improperly considered materials outside of the complaint is similar to normal review of Rule 12(b)(6) dismissals: For this court to affirm such a dismissal, it must be self-evident from the face of the complaint, resolving all doubts and drawing all inferences in favor of the plaintiff, that the plaintiff is not entitled to any relief. Our review will differ only in that we must be especially careful to scrupulously avoid making factual assumptions which appear reasonable or even obvious from the record but which cannot properly be drawn from the plaintiff’s complaint. With this in mind, we turn to the specific claims raised by TCI and dismissed by the District Court.
III. Review of the Dismissal of TCI’s Claims
A. First Amendment Claim
In its complaint TCI alleged that “defendants have dedicated certain rights-of-way, poles, support structures and land for use in the provision of cable television services and programming to the servicemen and their families residing at Homestead Air Force Base. Those facilities are essential to the conduct of a cable television enterprise at Homestead Air Force Base.” Complaint, supra, 11 8, App. B. TCI further alleged that it was in the business of providing cable television service and that the defendants, through a solicitation process, had determined that TCI could no longer operate on the base, that is, use the facilities essential to operating on the base. See id. at 1T1f 2, 13-14, 17-19. TCI also alleged that “[t]here are no legal or practical reasons why two companies cannot compete directly to provide cable television services to customers at Homestead Air Force Base.” Id. at 1120. Finally, TCI alleged that, given these facts, the Air Force’s planned exclusion of TCI from the base violated TCI’s First Amendment right to disseminate “inter alia, news, entertainment and information to residents of Homestead Air Force Base * * Id. at 1123.
In comparison with TCI’s factual allegations, the District Court, in its memorandum opinion accompanying its dismissal of TCI’s claim, noted that “[pjlaintiff seeks access to a military installation dedicated to military use.” 580 F.Supp. at 14. The District Court also stated that “granting access to multiple cable television companies would involve significant burdens on the military installation and its mission, and would negate legitimate advantages the Air Force enjoys as a result of limiting access to a single such cable television firm.” Id. (The District Court noted in a footnote that it was obliged to consider the effects of multiple cable companies rather than two because eight companies had bid for the contract. Id. n. 2.) The District Court went on to explicate precisely what those advantages enjoyed by the Air Force were: “In the Air Force’s view, permitting multiple cable operators onto the base rather than soliciting competitive bids for the rights to an exclusive franchise would also raise costs to individual subscribers, thus implicating the military’s interest in the morale of those in its service. It is apparent, then, that the government’s restriction on access to the base is grounded on legitimate and rational military objectives.” Id. Using these factual assumptions, the District Court concluded that, although TCI does “enjoy[] the protections of the First Amendment,” id. at 13, “[ijnasmuch as the challenged denial of access involves a forum traditionally not open to public communication, rationally furthers a legitimate government interest, and is content neutral, it does not violate plaintiff’s First Amendment rights.” Id. at 15.
The facts relied upon by the District Court in reaching this conclusion, however, appear nowhere in TCI’s complaint. In fact, they are exactly the opposite factual assumptions from those a court would make if it, as required, took the assertions in the complaint as given and then resolved all factual doubts and inferences in favor of the pleader. TCI alleged that the rights-of-way necessary to conduct cable television services had been dedicated to such use; the District Court found that the entire military installation was dedicated to military use (presumably with no exceptions). TCI alleged that no legal or practical burdens would accrue from two cable television companies competing and in no way indicated that more than two companies might end up competing; the District Court assumed that eight companies might compete and that this would constitute a significant burden. Thus the District Court’s factual assumptions cannot serve as the basis for an affirmable Rule 12(b)(6) dismissal of TCI’s First Amendment claim.
Thus we must consider whether, applying the correct standard and using TCI’s factual allegations only, TCI’s complaint did in fact state a First Amendment claim. First, we must decide the question whether TCI’s enterprise is protected by the First Amendment at all. If it is, we must then consider whether TCI has stated a valid First Amendment claim, taking as true the factual allegations in its complaint and applying the applicable law.
The District Court found that, under this court’s decision in Home Box Office, Inc. v. FCC, 567 F.2d 9, 43-51 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977), TCI’s activity of providing cable television service was entitled to some First Amendment protection. See 580 F.Supp. at 13. With this step of the District Court’s analysis, we agree entirely. See also Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1404 (9th Cir.1985); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir.1982); Community Communications Co. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981), cert. dismissed, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1054 & n. 70 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Whether or not TCI produces any original programming of its own, its activities of transmitting and packaging programming mandate that it receive First Amendment protection. See Omega Satellite Products, supra, 694 F.2d at 127; Weaver v. Jordan, 64 Cal.2d 235, 49 Cal. Rptr. 537, 411 P.2d 289, cert. denied, 385 U.S. 844, 87 S.Ct. 49, 17 L.Ed.2d 75 (1966); cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (applying First Amendment to sale and distribution of publications). Thus we turn to the subsequent question whether TCI has adequately alleged that its First Amendment rights were violated in the instant situation.
The next step, therefore, is to determine whether, under the applicable First Amendment law, the particular factual allegations made by TCI state a viable claim. This determination self-evidently depends upon the contours of the applicable First Amendment law. Unfortunately, describing the contours of that law is difficult because of a lack of direct precedent on the question.
As noted by the parties, however, there is a substantial body of Supreme Court case law that confronts the general problem of allowing access to government-owned property for the purpose of exercising First Amendment rights; this is the body of'cases that comprise'the public forum doctrine jurisprudence. The public forum docixinfí, as described by these cases, defines situations in which the government cannot close government-owned property to parties who desire to use that property as a forum for exercising their First Amendment rights. Specifically, these cases appear to provide for three categories of government-owned property — two types of public forums and one “nonforum” category. See generally Perry Education Ass ’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-956, 74 L.Ed.2d 794 (1983) (summarizing the three categories discussed below).
First, property that historically has been both open to the public and available to anyone for use as a forum for the exercise of the First Amendment right of free speech constitutes an unconditional public forum. Such forums include facilities like streets and parks. See, e.g., United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (public sidewalks). Second, property that has not been traditionally open for speech but that has been opened by the government as a forum for speech, often for a particular type of speech, also constitutes a public forum. Such property as municipal theaters, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), and school classrooms that are held open for student use, see Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), falls into this second category of public forums. See also Lebron v. WMATA, 749 F.2d 893 (D.C.Cir.1984) (subway display space). In contrast, property that has been neither historically open to the public nor specifically opened by the government for use as a forum for speech does not constitute a public forum. Property such as military bases with restricted access, see Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), and intra-school mailboxes, see Perry, supra, has been held to fall into this third “nonforum” category.
The designation of property as a public forum or as a “nonforum” carries with it substantive effects regarding the extent and type of restrictions that the government may place upon the speech by the general public that may occur there. Government restrictions on speech in public forums of either the first or second type are subject to strict requirements. In public forums the government may restrict speech only (1) by enforcing time, place, and manner restrictions if those restrictions are content-neutral and narrowly tailored to serve a significant government interest, or (2) by imposing content-based exclusions if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. See Perry, supra, 460 U.S. at 45-46, 103 S.Ct. at 954-956. With respect to nonforums, however, the government may “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. at 46, 103 S.Ct. at 955; see also U.S. Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 131 n. 7, 101 S.Ct. 2676, 2686 n. 7, 69 L.Ed.2d 517 (1981).
Applying this public forum jurisprudence to the factual allegations in TCI’s complaint, we find that TCI has adequately alleged a First Amendment cause of action. TCI alleged in its complaint that there were no reasons, practical or legal, why two cable television companies could not simultaneously use the cable rights-of-way on Homestead Air Force Base. This allegation, if taken as true, would mean that TCI’s First Amendment rights had been infringed if the right-of-way was a public forum of either kind or if it was a nonforum: If the property is a public forum, the government may restrict speech only to serve significant (if content-neutral) or compelling (if not content-neutral) interests; if the property is a nonforum, the government may restrict speech only if such restriction is reasonable. An allegation that there were no reasons for restricting speech thus states a claim under either analysis. (It does appear, however, that TCI also adequately alleged that the right-of-way was a public forum by its allegation that the Air Force had dedicated the right-of-way for cable television use.) Thus we hold that TCI did state a First Amendment claim upon which relief could be granted. Consequently, we reverse and remand to the District Court.
Because of the relative novelty of TCI’s claim, we add an observation on the effect of our holding. We note first that two of the three circuits that have previously considered the issue of cable television’s right of access to government-owned property for the purpose of communicating to viewers have not used the public forum doctrine in their analysis. These two circuits, rather, seemed instead simply to balance the competing interests involved. See Community Communications, supra, 660 F.2d at 1375-1380 (balancing the competing interests of the cable television company’s desire to communicate and the municipality’s need to preserve certain public resources that might be burdened by the provision of cable television service); see also Omega Satellite Products, supra, 694 F.2d at 127-128 (balancing interests of cable company with burden on public resources and assumed fact that cable television represents a natural monopoly). The third circuit to address this issue did note the potential relevance of the public forum doctrine but did not hold that the public forum doctrine governed without alteration in this context; it seemed to use the doctrine merely as additional support for a conclusion already reached on other grounds. See Preferred Communications, Inc., supra, 754 F.2d at 1407-1409.
We note also that the Supreme Court has often stated that “[ejach medium of expression * * * must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975). See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (plurality opinion); FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3039, 57 L.Ed.2d 1073 (1978); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). Thus, although historical First Amendment jurisprudence signals the analytic approach to be used in determining the First Amendment protection due a new medium, a court describing that protection must be careful to adapt that jurisprudence to the new context.
In light of these observations, we wish to make clear that our holding that TCI has stated a First Amendment claim under public forum jurisprudence is not a holding that a different and perhaps more appropriate First Amendment analysis may not properly be developed during the proceedings on remand.
B. Fifth Amendment Claim
The same allegations in TCI’s complaint that preclude a Rule 12(b)(6) dismissal of its First Amendment claim also preclude such a dismissal of its Fifth Amendment claim. As noted above, the District Court found that the Air Force had legitimate government interests in denying access to TCI. The District Court went on to note that “[n]o due process violation has occurred since plaintiff’s First Amendment rights have not been infringed and there is no dispute over the conduct of the bid process itself.” 580 F.Supp. at 15. Having determined that TCI’s complaint did in fact state a First Amendment claim, we must now reexamine the dismissal of the Fifth Amendment claim as well, bearing in mind that none of the District Court’s subsidiary factual conclusions can be adopted unless they are clearly alleged in the complaint.
From the complaint we glean three factual assumptions that must be made in this Rule 12(b)(6) determination: First, that the Air Force had dedicated the necessary property to cable television transmission; second, that TCI had been denied access to this property; and third, that there were no reasons for not allowing two cable companies to use that property. See Complaint, supra, at if 118, 17-18, 20. Using these factual allegations, we now apply Fifth Amendment law to determine whether a claim was stated by TCI.
The Due Process Clause of the Fifth Amendment has been held to include an equal protection provision. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Under equal protection doctrine, differential treatment of parties is constitutional only if adequately related to a sufficient governmental interest. Ordinarily, the test is that it must be rationally related to a legitimate state interest. Where the differential treatment burdens the exercise of a fundamental right such as the First Amendment’s freedom of speech, however, equal protection demands more. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972) (“discriminations among pickets must be tailored to serve a substantial governmental interest”); see also Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274 (1972).
As noted above, TCI’s complaint clearly states that there are no legal or practical reasons why two cable television companies cannot compete directly to service Homestead Air Force Base. This allegation suffices to withstand a motion to dismiss for failure to state a claim, whether or not TCI’s First Amendment rights may have been infringed. For even if TCI’s First Amendment rights have not been burdened, the restriction on TCI may violate the equal protection requirement if it is not rationally related to a legitimate governmental interest. See Perry, supra, 460 U.S. at 54, 103 S.Ct. at 959. TCI’s allegation states that the government has no reasons, legitimate or compelling, for excluding one television station and not another. Consequently, although the ultimate merit of such a claim may be extremely doubtful unless TCI’s First Amendment rights have in fact been burdened, dismissal is not appropriate. The complaint states a claim and, regardless of the likelihood of success, if the complaint states a claim it must withstand the Rule 12(b)(6) motion to dismiss. Thus the District Court’s dismissal of TCI’s Fifth Amendment claim was incorrect and must be reversed.
TCI’s brief also presents an argument that centers around the statutory easement provision which authorizes the type of easement at issue here to be granted by the Air Force. See 16 U.S.C. § 420 (1982); 43 U.S.C. § 961 (1982). Although the content of this argument is not entirely clear, it appears to break down into one purely statutory claim — that the Air Force, by granting an easement to one party, granted an easement to any party desiring one — and one statutorily-rooted constitutional claim — that this statute created a property right in TCI that was then unconstitutionally taken by the Air Force. Although these arguments were not specifically raised in TCI’s complaint (the complaint contains no reference to the statutory provisions in question or to any easement as such), the District Court, apparently responding to TCI’s raising of it in a brief filed after its complaint, made specific findings on the issues. The District Court found that (1) the statute did not automatically provide that, where an easement is granted to one party for a particular purpose, any other party is also automatically entitled to an easement for that purpose, and (2) TCI’s easement, effective until 11:59 P.M. on December 31, 1983, expired automatically at that time so that TCI had no continuing property interest that might be unlawfully abrogated by the Air Force. See 580 F.Supp. at 15.
With respect to the first finding, we believe the District Court correctly decided the issue. (Consequently, we need not decide whether the complaint adequately alleged it.) The statute here specifically states that the governmental body with jurisdiction over the lands in question “is authorized and empowered * * * to grant an easement for rights-of-way * * * to any citizen, association, or corporation of the United States * * The plain language of this statute indicates that the government body can grant the easement to one party if it wishes. It does not follow that once an easement is granted any party may use that easement.
The District Court’s handling of the second question is more troublesome. The District Court found that, as the Air Force alleged, the easement given to TCI simply expired at the end of 1983. This, however, is a factual assumption which was not alleged in the complaint. What TCI alleged in its complaint was that the Air Force had dedicated certain property to transmission of cable television and that TCI was not being allowed to use that property. The question, therefore, is whether this allegation stated a claim beyond those discussed above. We conclude that it did not. As the District Court noted, no allegations of improper bid procedures appeared in the complaint. Thus no procedural due process claim was stated. Further, no allegation appeared that TCI had a property interest in the right-of-way. Consequently, no takings claim was stated. Therefore, we find only that TCI has stated an equal protection Fifth Amendment claim.
C. Sherman Antitrust Act Claim
TCI, in its complaint, also alleged that the government, acting as a common agent for the service people stationed at Homestead Air Force Base, acted in such a way as to establish a monopoly in service of cable television to the base. See Complaint, supra, at f 42. TCI further alleged, however, that access was also allowed for the purpose of “furnishing * * * cable television services to Air Force facilities at Homestead Air Force Base including but not limited to the hospital and to various duty rooms, day rooms, and recreational areas.” Id. at 1113.
In its brief, TCI admits that United States governmental entities generally are exempt from the antitrust laws, but argues that this case should be distinguished because the Air Force was acting as a representative for the individual service people on the base. This argument, however, is not sufficient to build this into a viable claim, even if our holding in Sea-Land Service, Inc. v. Alaska Railroad, 659 F.2d 243, 244 (D.C.Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982) (“Congress did not place the United States or its instrumentalities under the governance of the Sherman Act”), would allow such a result. TCI itself stated in its complaint that the Air Force was also acting to ensure service to common areas. Thus it was not acting solely as a representative for the individuals on the base. In sum, the District Court was correct in dismissing TCI’s antitrust claim, and we affirm it on that point.
IV. Conclusion
The District Court’s dismissal of TCI’s First and Fifth Amendment claims is reversed and remanded. The dismissal of TCI’s antitrust claim, however, is affirmed. For clarity’s sake, we note additionally that the reversal with respect to the First and Fifth Amendment claims applies only to the District Court’s dismissal of these claims under Rule 12(b)(6): Although the District Court decision at issue here was not appropriate as a summary judgment, our decision does not preclude the possibility of summary judgment on
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_genresp2
|
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.
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.
ASSOCIATED GENERAL CONTRACTORS OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants. v. Alan ALTSHULER et al., Defendants-Appellees.
No. 73-1250.
United States Court of Appeals, First Circuit.
Heard Oct. 2, 1973.
Decided Nov. 30, 1973.
Certiorari Denied April 22, 1974.
See 94 S.Ct. 1971.
James J. O’Leary, Boston, Mass., with whom Joseph P. Rooney, Ansel B. Chaplin, Gaston, Snow, Motley & Holt, Boston, Mass., and James E. Flynn, Jr., Cambridge, Mass., were on brief, for plaintiff s-appellants.
Dennis L. Ditelberg, Asst. Atty. Gen., and Gershon M. Ratner, Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John F. Houton, Asst. Atty. Gen., Michael J. Hoare, Sp. Asst. Atty. Gen., Benjamin Jones, and Robert City, Boston, Mass., were on brief, for defendants-appellees.
Robert T. Moore, Atty., Dept, of Justice, with whom William J. Kilberg, Sol. of Labor, J. Stanley Pottinger, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., and David L. Rose, Atty., Dept, of Justice, were on brief, for The Secretary of Labor of The United States, amicus curiae.
Jerry Cohen, Morris Shubow, John Henn, John Reinstein, Matthew Fein-berg, Charles A. Levin, Mark A. Michelson, and Stephen R. Moore on brief for Civil Liberties Union and American Jewish Congress, New England Region, amici curiae.
Before COFFIN, Chief Judge, MOORE and McENTEE, Circuit Judges.
Of the Second Circuit, sitting by designation.
COFFIN, Chief Judge.
This is an appeal from a judgment sustaining, as constitutional and in accord with state law, certain contract requirements imposed by the Commonwealth of Massachusetts upon contractors engaged in publicly funded construction work at Boston State College. Appellants are thirteen individual construction companies, now engaged in construction of public buildings for the Commonwealth, and a membership corporation comprised of one hundred forty-five general contracting firms which together perform approximately eighty per cent of all construction in the Commonwealth. Each of the appellants was a prospective bidder for the Boston State College contract.
In relevant part, § IB of the contract requires that the contractor
“... maintain on his project, which is located in an area in which thére are high concentrations of minority group persons, a not less than twenty percent ratio of minority employee man hours to total employee man hours in each job category ft
Section V, ¶ 3, of the contract provides, however, that the contractor must hire only “competent” workers. The Secretary of Transportation and Construction for the Commonwealth, who is charged with enforcing the contract provisions, interprets this to mean that § IB requires the hiring of only “qualified” workers. The district court has interpreted the contract in the same way.
The contract also requires that the contractor engage in special referral procedures as well as traditional referral methods, cooperate with a Liaison Committee composed of various representatives from community groups, make weekly compliance reports to the Liaison Committee and the Massachusetts Commission Against Discrimination (M.C. A.D.), and permit the M.C.A.D. access to books, records, and accounts containing employment information.
The contract further stipulates that the M.C.A.D. will investigate any alleged non-compliance with the contract terms and notify the contractor of both its findings and recommendations as to how he might comply with the terms. If the contractor fails to accept the recommendations and in addition the M.C.A.D. determines that the contractor has not taken “every possible measure to achieve compliance”, the M.C.A.D. will report its findings to the Bureau of Construction and recommend that specific sanctions be imposed. Before imposing any sanctions, however, pursuant to the Commonwealth’s Administrative Procedures Act, M.G.L.A. c. 30A §§ 10, 11, and according to the Secretary of Transportation and Construction, the Bureau will provide the contractor with notice of the findings and a hearing in which he may challenge them.
Because the federal government pays a portion of the construction costs of the Boston State project, contractors are also required to accept federal bid conditions, promulgated by the United States Secretary of Labor pursuant to § 201 of Executive Order No. 11246 (30 F.R. 12319, as amended, 32 F.R. 14303; 34 F.R. 12985) and 41 C.F.R. 60. The specific contractual elements of the federal bid conditions are derived from the Boston Area Construction Program (the Boston Plan), a “hometown” equal employment opportunity plan prepared by the local construction industry in cooperation with the Department of Labor. Unlike the Commonwealth’s § IB, the federal Boston Plan sets area-wide percentage objectives for minority hiring within each trade, rather than percentage goals for each project. Under the Boston Plan the responsibility for fulfilling the objectives does not lie with the individual contractor; he merely agrees to hire whatever minority workers are referred to him by the trades unions in the course of the plan’s operation. Moreover, while § IB requires that contractors take “every possible measure” to comply with the contract terms, the Boston Plan necessitates merely a “good faith” effort by the contractor. A fourth point of difference between the two plans is that the Boston Plan places the burden of proving noncompliance upon the government agency, while § IB places the burden of proving compliance, once non-compliance has been alleged, upon the contractor himself.
Appellants challenge the constitutionality of § IB of the contract requirements imposed by the Commonwealth on three grounds: They contend, first, that' § IB varies so significantly from the federal bid conditions of the Boston Plan that it violates the Supremacy Clause of Article VI; second, that § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment; and finally, that § IB permits the imposition of sanctions without proper notice or an opportunity to be heard, in violation of the Due Process clause of the Fourteenth Amendment. Appellants also contend, pursuant to the pendent jurisdiction of this court, that § IB involves the M.C.A.D. in activities which go beyond the scope of its enabling legislation.
I
In order to deal with appellants’ first contention, that § IB violates the Supremacy Clause because the federal Boston Plan must necessarily preempt § IB, it is necessary to set out the context in which this case arises.
We note at the outset that the construction industry has been particularly slow, throughout the nation, to open itself to racial minorities. For this reason, in 1967 the federal government launched pilot plans in several cities designed to increase minority employment on federally funded construction projects by way of “affirmative action” programs. Executive Order 11246, under which the Secretary of Labor was authorized to promulgate such programs, required that contractors “take affirmative action to ensure that applicants are employed... without regard to race.... ” Affirmative action itself was defined as “specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and time tables ”
After several different affirmative action programs had been implemented, with varying degrees of success, in 1970 the government permitted particular communities to develop their own “hometown” affirmative action programs. If the Secretary of Labor approved the plans, the plans would receive federal funding, and local contractors who complied with them would thereby comply with the mandate of Executive Order 11246.
The Boston Plan emerged from negotiations between representatives. of buildings trades unions, contractors, and minority communities in the Boston area, and was approved by the Secretary of Labor in the fall of 1970. Although it fulfilled its first year goal of training and placing three hundred sixty minority workers, relationships with the minority community representatives deteriorated to the extent that the Department of Labor withheld second year funding until a revised plan could be negotiated. The new plan, beginning operations in January, 1972, did not have the participation of representatives of Boston’s minority communities. In addition, although put into effect two years after the original Boston Plan had commenced, the revised plan retained the same minority employment goal as that of the original plan.
At about the same time as the revised Boston Plan was put into effect, the Commonwealth began an inquiry of its own into the need for a separate state affirmative action program. The inquiry revealed that despite the existence of the federal Boston Plan, minority membership in all of the nineteen participating unions amounted to less than four per cent of union membership, while minorities comprised approximately twenty-three per cent of the population of Boston. Since virtually all of the contractors who engage in state funded projects rely upon these predominantly white unions for workers, minority employment in the construction trades continued to be extremely low. The Commonwealth also determined that the Boston Plan had no provision for the collection of reliable data on the actual number of hours worked by minority workers placed on construction jobs. Finally, in the opinion of the Commonwealth’s Office of Transportation and Construction, the Boston Plan lacked adequate enforcement machinery. On the basis of these findings the Commonwealth concluded that the federal Boston Plan had not gone far enough, and that a separate, state affirmative action program was required for construction projects in which state funds were committed.
The contract for the construction of Boston State College is the first to incorporate both the Commonwealth’s own § IB bid conditions, promulgated under authority of the Governor’s Executive Order No. 74, and the federal Boston Plan bid conditions. The Assistant Secretary of Transportation and Construction for the Commonwealth has determined that there exist adequate journeymen, apprentices, and trainees within Boston’s minority community to provide at least twenty per cent of the work force for the project, as well as for other projects anticipated in the area. It is estimated that the total work force required for the Boston State Project will vary between forty-seven and one hundred fifty persons; contractors on the project must therefore take “every possible measure” to employ between ten and thirty qualified minority workers.
Appellants contend that because the Commonwealth’s § IB affirmative action program places different requirements upon contractors than those of the Boston Plan, the two are in conflict, and that the state plan must therefore be declared invalid. Appellants point out, most particularly, that under § IB, contractors must bear the burden of showing that they have taken “every possible measure” to comply, whereas under the Boston Plan, they must have made merely a “good faith effort” and the burden of showing non-compliance rests with the government agency. They also stress that the record keeping and referral requirements of § IB are more onerous than those of the Boston Plan.
In deciding whether state regulations should be invalidated because they conflict with federal law, courts have tended to examine both the possibility of broad conflict in “purposes and objectives” between the two schemes, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1940), and the likelihood of specific conflict in the implementation of the two programs.
Clearly, the broad purposes which lay behind the federal Boston Plan and the Commonwealth’s § IB are congruent. Affirmative action, defined in the President’s Executive Order as “. steps to guarantee equal employment. including... the development of specific goals and time tables. ” has the same meaning as affirmative action as defined in the Governor’s Executive Order: “... positive and aggressive measures to insure equal opportunity.” Both plans envisage minority hiring goals as a means of achieving equal opportunity.
Nothing in the President’s Executive Order requires that affirmative action taken under the Order be uniform throughout the country, nor does it necessitate that the federal government be the source for every program. An important aspect of federal implementation is the development of “hometown” plans, conceived and developed by local contractors, unions, and minority representatives. And in at least one instance the federal government has relied upon a plan originally conceived by state officials for their own state funded contracts. See Illinois Builders Ass’n v. Ogilvie, 327 F.Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972).
Nor is there any indication that the federal government has intended to preempt this field. Federal preemption should not be presumed, absent “a clear manifestation of intention” to preempt the field. Schwartz v. Texas, 344 U.S. 199, 202-203, 73 S.Ct. 232, 97 L.Ed. 231 (1952); see also New York State Department of Social Service v. Dublino, 405 U.S. 413, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). The President’s Executive Order merely requires that contractors take some “affirmative action” and directs the Secretary of Labor to “use his best efforts” through “state and local agencies” as well as federal agencies. The Secretary of Labor has stated, as amicus curiae, that the federal program is not meant to preempt state programs such as the Commonwealth’s § IB. And congressional policy in this area, as expressed in Title VII of the Civil Rights Act of 1964, the statute most closely analogous to the President’s Executive Order, is clearly one of encouraging state cooperation and initiative in remedying racial discrimination. Title VII, 42 U.S.C. § 2000h-4 expressly disclaims any intent to preempt state action. See also Voutsis v. Union Carbide, 452 F.2d 889 (2d Cir. 1971), cert, denied, 406 U. S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1971).
Even if there is no conflict between the purposes and objectives of the two schemes, the state plan might still be invalid if there is a showing of “such actual conflict between the two schemes of regulation that both cannot stand in the same area....” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); see also Perez v. Campbell, 402 U.S. 637, 649-653, 91 S. Ct. 1704, 29 L.Ed.2d 233 (1971). While we acknowledge that § IB may be more demanding than the Boston Plan, and may well involve higher administrative costs, there is no reason to suppose that contractors could not comply with both at the same time. By complying with § IB’s minority hiring goals on projects funded by both the state and the federal government, contractors would also comply with the Boston Plan’s goals. The reporting requirements are different for the two plans, but this merely necessitates the filing of two different sets of reports.
The only place where the two plans might be found slightly incompatible is in the area of trade union referrals. Recognizing that union reluctance to admit minorities to apprenticeship programs has been one primary reason for the small percentage of minorities in the construction trades, the Boston Plan focusses upon encouraging areawide minority recruitment into the unions, and therefore does not alter the patterns of contractor reliance upon the unions for referrals. The Commonwealth’s § IB, however, facilitates referrals from sources other than the unions by providing alternative mechanisms for recruiting minority workers.
We think, however, that there is little likelihood that § IB would discourage union initiative in training and recruiting minorities. The Commonwealth’s program will operate on a small scale, only within neighborhoods with a high minority population; the contractors for the Boston College project are required to employ approximately thirty minority workers. The federal Boston Plan is designed to train and place three hundred sixty minority workers each year drawn from all over the state. Therefore, despite the Commonwealth’s program, buildings trades unions will be obligated to continue their efforts at recruiting minority workers and referring them to contractors. Furthermore, the Commonwealth’s program does not prohibit union referrals. It merely provides other sources for referrals. Thus, § IB might actually induce a stepped-up program of union recruitment if the unions are desirous of maintaining contractor reliance upon union referrals.
We conclude, therefore, that § IB presents no challenge to the Supremacy Clause.
II
Appellant’s second contention, that the Commonwealth’s § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment, presents a more difficult issue, the implications of which stretch far beyond this particular dispute.
The first Justice Harlan’s much quoted observation that “the Constitution [is colorblind]... [and] does not. permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights”, Plessy v. Ferguson, 163 U.S. 537, 554, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (dissenting opinion) has come to represent a long-term goal. It is by now well understood, however, that our society cannot be completely colorblind in the short term if we are to have a colorblind society in the long term. After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed. Discrimination has a way of perpetuating itself, albeit unintentionally, because the resulting inequalities make new opportunities less accessible. Preferential treatment is one partial prescription to remedy our society’s most intransigent and deeply rooted inequalities.
Intentional, official recognition of race has been found necessary to achieve fair and equal opportunity in the selection of grand juries, Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); tenants for public housing, Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968); Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736 (N.D. Ill. 1969); school administrators, Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); and children who are to attend a specific public school, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
The intentional, official recognition of race in the selection of union members or construction workers has been constitutionally tested and upheld' in two contexts. The first is where courts have ordered, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), remedial action for past discrimination. In fulfilling their “duty to render a decree which will so far as possible eliminate the discriminatory effects of the past... ”, Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965), courts have ordered unions to grant immediate membership to a number of minority applicants, United States v. Wood, Wire, and Metal Lathers International Union, Local No. 46, 471 F.2d 408 (2d Cir. 1973), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); to begin an affirmative minority recruitment program, United States v. Sheet Metal Workers International Ass’n, Local No. 36, 416 F.2d 123 (8th Cir. 1969); to match normal referrals with minority referrals until a specific objective has been obtained, Heat and Frost Workers, Local 53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969); or to take on a certain number of minority apprentices for each class of workers, United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), cert, denied, 404 U. S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Courts have also ordered employers to hire minority employees up to thirty per cent of the total work force, Stamps v. Detroit Edison, 365 F.Supp. 87 (E.D. Mich. 1973); to hire one minority worker every time two white workers were hired, up to a certain number, Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); and in our own Castro v. Beecher, 459 F.2d 725 (1972), we order that black and Spanish-speaking applicants for police positions, who had failed to measure up to a constitutionally impermissible set of hiring standards, be given priority in future hiring.
The second context in which race has been recognized as a permissible criterion for employment is where courts have upheld federal affirmative action programs against challenges under the Equal Protection clause or under the anti-preference provisions of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(j). Recognizing that the discretionary power of public authorities to remedy past discrimination is even broader than that of the judicial branch, see Swann v. Charlotte-Mecklenburg, supra at 16 of 402 U.S., 91 S.Ct. 1267; cf. Katzenbach v. Morgan, 384 U.S. 641, 653, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), courts have upheld the specific percentage goals and time tables for minority hiring found in the Philadelphia Plan, Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, 311 F.Supp. 1002 (E.D. Pa. 1970), aff’d, 442 F.2d 159 (3d Cir. 1971), cert, denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971), the Cleveland Plan, Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, 908 (1969), cert, denied, 396 U.S. 1004 (1970), the Newark Plan, Joyce v. MeCrane, 320 F.Supp. 1284 (D. N.J. 1970), and the Illinois Ogilvie Plan, Southern Illinois Builders Ass’n v. Ogilvie, 327 F. Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972).
Despite ample precedent for using race as a criterion of selection where the goal is equal opportunity, we approach its use in the present case with care. This marks the first time, to our knowledge, that a court has been asked to sanction a plan for hiring a specific percentage of minority workers that requires an employer to take “every possible measure” to reach the goal on each job site, and places upon him the burden of proving compliance, under threat of serious penalties if that burden is not sustained. It is but a short step from these requirements to a demand that an employer give an absolute percentage preference to members of a racial minority, regardless of their qualifications and without consideration for their availability within the general population. The Commonwealth’s affirmative action plan forces us to address a fundamental question: are there constitutional limits to the means by which racial criteria may be used to remedy the present effects of past discrimination and achieve equal opportunity in the future?
There are good reasons why the use of racial criteria should be strictly scrutinized and given legal sanction only where a compelling need for remedial action can be shown. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (2d Cir. 1969). Government recognition and sanction of racial classifications may be inherently divisive, reinforcing prejudices, confirming perceived differences between the races, and weakening the government’s educative role on behalf of equality and neutrality. It may also have unexpected results, such as the development of indicia for placing individuals into different racial categories. Once racial classifications are imbedded in the law, their purpose may become perverted: a benign preference under certain conditions may shade into a malignant preference at other times. Moreover, a racial preference for members of one minority might result in discrimination against another minority, a higher proportion of whose members had previously enjoyed access to a certain opportunity.
In the present instance, there is no question that a compelling need exists to remedy serious racial imbalance in the construction trades, particularly in Rox-bury, Dorchester, and South End, where minorities constitute approximately forty per cent of the population, and yet only about four per cent of the membership of buildings trades unions, and where there has been a long history of racial discimination in those unions. Such an imbalance within the relatively lucrative, highly visible, and expanding construction trades undermines efforts at achieving equal opportunity elsewhere in the economy, and contributes to racial tensions.
Even where a long history of discrimination and continuing racial imbalance compels the remedial use of ¡racial criteria, however, the means chosen to implement the compelling interest should be reasonably related to the desired end. See Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, supra, 311 F.Supp. at 1011; cf. McLaughlin v. Florida, 379 U.S. 184, 193, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). A program which included unrealistic minority hiring goals might impose an unreasonable burden on the employer and upon qualified workers who were denied jobs because they were not members of the racial minority. Unrealistically high goals are likely, in addition, to forment racial tensions and to prompt employers to circumvent the rules.
A program of affirmative action might be considered to impose unrealistic and unreasonable hiring goals if it included a racial preference that could not be fulfilled, or could be fulfilled only by taking on workers who were unqualified for the trainee, apprentice; or journeyman status for which they were hired. Equal opportunity is an elusive concept, but at its core it carries the simple mandate that opportunities should be open to all on the basis of competence alone. Thus, it would be consistent with the goal of equal opportunity to give first priority to members of a minority that had previously been denied equal opportunity, if those members were otherwise as qualified as were qualified members of the majority population. In order that this special treatment be meaningful, of course, there should be equal opportunity to gain the training necessary to qualify.
While § IB says nothing about hiring “qualified” minority workers, § V, ¶ 3 of the same contract requires that the contractor hire only “competent” workers. The district court has interpreted § IB in light of § V, U 3, to require that the twenty per cent minority employees of § IB be “qualified” for the status to which they were assigned. The Commonwealth’s Secretary of Transportation and Construction, who is charged with implementing these provisions, has interpreted § IB in the same way.
Appellants maintain, however, that the goal of twenty per cent minority workers on each construction site, combined with the contractor’s burden of proving that he has taken “every possible measure to achieve compliance” with the goal, will necessarily move the contractor to hire unqualified minority workers, rather than run the risk of incurring sanctions. While we think that this is an unwarranted concern, given that the Boston State College project will require approximately thirty minority workers, we concede that, in principle, a high percentage goal for minority hiring combined with a high burden of proving compliance might create the likelihood that unqualified workers would be hired.
Despite the fact that the Secretary of Transportation and Construction alleges that the twenty per cent goal was based upon an assessment of current availability of minority journeymen, apprentices, and trainees, courts are ill equipped to judge the accuracy of such assessments. It becomes important, therefore, that affirmative action plans, such as the Commonwealth’s § IB, contain fair procedures for contractors to make a showing that insufficient qualified minority workers are available. Thus, any reasonable program designed to remedy racial imbalance must incorporate the necessary elements of due process. So long as contractors receive notice and a meaningful opportunity to challenge any allegations of non-compliance and prove that they have taken whatever efforts are required of them to comply, it is less important that a particular percentage goal might be Slightly optimistic or unrealistic, given current availability of qualified minority workers.
Appellants’ contention that § IB violates the Equal Protection clause is therefore intimately tied to their contention that § IB, in violation of thp Due Process clause, permits the imposition of sanctions without proper notice or an opportunity to be heard, an issue to which we now turn.
Ill
Appellants’ due process claim concerns § IB.2 of the contract provisions, which sanctions listed below.... [T]he Commission (M.C.A.D.) shall make a final report of non-compliance, and recommend to the Bureau [of Construction] the imposition of one or more of the sanctions listed below.... [T]he Bureau shall impose one or more of the following sanctions, as it may deem appropriate.... ”
The M.C.A.D.’s determination of noncompliance is made ex parte. Contractors are notified of the findings and given an opportunity to take specific steps which would, in the opinion of the M.C.A.D., bring them into compliance, but contractors are not permitted to challenge the findings of non-compliance at this juncture.
The Bureau of Construction is required, pursuant to the Commonwealth’s Administrative Procedure Act, M.G.L.A. c. 30A §§ 10, 11, to hold a hearing before any penalties may be imposed on the contractors for non-compliance. What is in dispute is the scope of this hearing. Appellants maintain that § IB.2 allows, at most, a challenge to the particular sanction which the M.C.A.D. has recommended, in favor of what might be contended to be a more appropriate sanction, but not a challenge to the truth of the M.C.A.D.’s basic findings of non-compliance. If appellants’ interpretation of § 1B.2 were correct, their due process claim would have some merit because contractors would be subject to serious penalties, such as debarment from participation in state contracts for three years, without having had an opportunity to contest the findings on which the imposition of the penalty was based. See Boddie v. Connecticut, 401 U.S. 371, 377-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).
We do not think, however, that § IB.2 must necessarily be interpreted to require such a narrowing of the scope of the administrative hearing. The contract states that the Bureau “shall impose” one of the sanctions only “as it may deem appropriate to attain full and effective enforcement.” It would seem perfectly consistent with this mandate for the Bureau to determine for itself that the contractor had in fact taken “every possible measure” to achieve compliance, despite the findings of the M. C.A.D. to the contrary, and that any sanction would be inappropriate. The presumption of constitutionality customarily accorded state statutes, e. g., United States v. Carolene Products, 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), would dictate that we apply this interpretation. The Supreme Judicial Court of Massachusetts has, moreover, construed certain other Commonwealth statutes, facially lacking express provisions for notice and hearing, as impliedly calling for such due process requirements. See Rohrer, Petitioner, 353 Mass. 282, 230 N.E.2d 915 (1967); O’Leary, Petitioner, 325 Mass. 179, 89 N. E.2d 769 (1950).
The Commonwealth’s Secretary of Transportation and Construction has given the foregoing interpretation to § IB.2, and has stipulated that no sanctions may be imposed against a contractor until he has had a full hearing before officials of the Bureau of Construction in which he may challenge any findings of non-compliance by the M.C. A.D. Since the Secretary is entrusted with interpretation and implementation of the contract privisions, his view is at least entitled to “respectful consideration”, Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935). We see no reason not to accept his interpretation in this case, Law Students Research Council v. Wadmond, 401 U.S. 154, 162, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), and indeed condition our holding on the consistent application of this interpretation. We conclude, therefore, that § IB so construed does not violate the Due Process clause of the Fourteenth Amendment.
Since contractors are provided with notice and a full opportunity to contest allegations of non-compliance, they may thereby show that insufficient qualified minority workers were available. Therefore, in light of our preceding analysis, we find that § IB does not violate the Equal Protection clause of the Fourteenth Amendment.
IV
Appellants’ final contention, which comes within the compass of our pendent jurisdiction, is that the Commonwealth’s § IB program involves the M.C.A.D. in activities that are prohibited by the anti-preference clause of M.G. L. A. c. 151B, § 4. This clause provides, in relevant part that “... nothing contained in this chapter or in any rule or regulation issued by the Commission [M.C.A.D.] shall be interpreted as requiring any employer, employment agency or labor organization to grant preferential treatment to any individual or to any group because of the race. of such individual or group.... ”
The anti-preference clause has not been interpreted
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America v. Walter E. ASHE, Appellant. UNITED STATES of America v. Walter E. ASHE, Appellant.
Nos. 71-1033, 71-1509.
United States Court of Appeals, District of Columbia Circuit.
Argued April 12, 1972.
Decided March 26, 1973.
Michael Nussbaum, Washington, D. C. (appointed by this Court) for appellant. James P. Davenport, Washington, D. C., also entered an appearance for appellant, in No. 71-1033.
Herbert M. Silverberg, Washington, D. C. (appointed by this court) for appellant in No. 71-1509.
Guy H. Cunningham, III, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. John D. Aldock, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee.
Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
LEVENTHAL, Circuit Judge:
This is the third time that we have been asked to review some phase of the Government’s case against Walter Ashe. In this latest chapter of the proceedings, Ashe was found not guilty by reason of insanity of a violation of 22 D.C. Code § 2801, carnal knowledge of a female child under sixteen years of age. In 71-1033, Ashe appeals the finding of guilt of the commission of the act, which is implicit in an acquittal by reason of insanity. In 71-1509, he appeals from the determination, following a Bolton hearing for his continued custody on the basis of dangerousness because of mental illness.
I.
The indictment charges that on October 14, 1967, Walter Ashe had sexual relations with his daughter Mary, then age ten. The Government’s evidence consisted of the testimony of Mary Ashe; the corroborative evidence of Mary’s then eight or nine year old brother Walter, Jr. and of their mother Mrs. Ashe, both of whom were witnesses to the incident; the testimony of Thomas Ashe, a still-younger brother, who was not a witness to the event itself; and the expert testimony of a pediatrician who examined Mary after the incident. On May 9, 1968, Ashe was brought to trial. Mrs. Ashe invoked her marital privilege. Mary and Walter, Jr. were questioned in order to judge their competency to give evidence. Walter, Jr.’s responses were unclear, and he eventually became unresponsive. At length, defense moved for a mistrial in order that a more thorough examination of Ashe’s capacity to stand trial be undertaken. This motion was granted by District Judge Smith.
Ashe was determined fit to stand trial and on October 2, 1968, a second trial was begun before District Judge Green. At this trial, the Government rested its case substantially upon the evidence of Mary and Walter, Jr. Mary’s testimony was elicited only with the greatest of difficulty. The first time she took the stand, she did not give damaging testimony. She was excused and later recalled and eventually, after she refreshed her recollection by reading over the statement she had made to the police, her testimony did establish a corpus delicti. The Government sought corroboration from Walter, Jr.; the child’s response to the questions he was asked were badly garbled and generally difficult to understand. Walter, Jr. did not seem able to place himself at a particular place at a particular time, and his testimony taken as a whole did not specifically corroborate the incident charged in the indictment.
The District Court, sum sponte and over the objection of Ashe, raised the question of insanity, and Dr. Mauris Platkin, a St. Elizabeths psychiatrist, testified that Ashe had a personality structure which was not inconsistent with committing deviant sexual acts. (Tr. p. 544: “. . . it is not at all improbable that he could have committed this kind of act. It certainly relates to this condition.”) The jury found Ashe guilty, rejecting the insanity issue. Appeal was taken to this court, and on May 12, 1970, we vacated the conviction and remanded. United States v. Ashe, 138 U.S.App.D.C. 356, 427 F.2d 626 (1970). We noted that the Government’s case on corroboration was very thin, and that the real corroboration had come from Dr. Platkin. This we held to be unduly prejudicial. “[T]he judge interposing an insanity defense did have the obligation to establish bifurcated trial or some other protective procedure to avoid prejudice to the defendant from the court’s insistence of airing a defense interposed contrary to the defendant’s will.”
On August 20, 1970, the Government began civil commitment proceedings against Ashe under 21 D.C.Code § 541 et seq., but the Commission on Mental Health found that Ashe was not dangerous because of mental illness.
A third trial was consequently begun on November 30, 1970. The proceedings were bifurcated, ánd the Government’s case developed much more smoothly than it had in the trial of October, 1968. Mary Ashe’s testimony was direct and to the point, Walter, Jr. coherently corroborated her story, and Thomas Ashe also gave evidence which was generally corroborative as well. After hearing the evidence, the jury brought in a verdict of guilty, whereupon the second stage of the trial — dealing with the insanity issue — was begun. Only one witness was presented, Dr. Robert Robertson of St. Elizabeths. After Dr. Robertson was heard, the jury retired and quickly brought back a verdict of not guilty by reason of insanity. Ashe was committed to St. Elizabeths for observation, and on February 16, 1971, a Bolton hearing was begun before Judge Green, testing the question of whether continued retention in custody should be ordered due to Ashe’s dangerousness because of mental illness. The Bolton jury found, after hearing almost a dozen witnesses, that Ashe was dangerous due to his mental illness. Judge Green thereupon remanded him to the custody of St. Elizabeths until such time as he was no longer dangerous.
Ashe petitioned for habeas corpus, claiming that his detention for observation at St. Elizabeths was longer than that authorized by Judge Green and that he had not been accorded treatment nor the “least-restrictive alternative” in his disposition. This petition was summarily dismissed by the District Court. We vacated the dismissal in Ashe v. Robinson, 146 U.S.App.D.C. 220, 450 F.2d 681 (1971), and remanded for further proceedings. Nothing has been done about this remand to date, and counsel informed us at oral argument that no further action in that matter is contemplated.
II.
The Notice of Appeal in 71-1033 was somewhat ambiguous as to what decision was being appealed from. The Government argues that this appeal is evidently from the interlocutory finding of “guilty” by the jury, but that a “guilty” verdict in a bifurcated proceeding, if followed by a verdict of not guilty by reason of insanity, is not a “final decision” within the meaning of the rule that permits appeals only from such decisions. The Government further argues that Ashe failed to file his notice of appeal within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure. The appeal was noted 13 days after the insanity verdict of the jury and several months prior to the Bolton hearing.
We disagree with the Government’s contention. We conclude that we have jurisdiction to hear the appeal, and to consider both the sufficiency of the Government’s case underlying the implicit finding of guilt and the validity of the detention order. We need not determine whether a bare verdict of not guilty by reason of insanity is “freighted with sufficiently substantial indicia of finality to support an appeal” see Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Fort, 133 U.S.App.D.C. 155, 409 F.2d 441 (1969). Certainly the court ordered Ashe’s commitment for examination based solely on the jury verdict, and this culminated in an order for continuation of commitment following a Bolton hearing. Since we have consolidated the appeal from the verdict of not guilty by reason of insanity, and the appeal 71-1509, from the order of continued commitment, we do not have to decide the technical question as to whether our consideration of the question presented derives from one appeal, or the other, or both.
III.
Appellant contends that Walter Ashe, Jr. was not a competent witness. For support, appellant cites Walter, Jr.’s performance at the voir dire before Judge Smith in the mistrial and his testimony, upon which we commented in Ashe-I, at the trial before Judge Green in 1968. In both of these instances, Walter — in startling contrast to his performance at the third trial — was almost an unreachable witness. Although it is difficult to isolate any determinative single reason therefor, it is reasonably plain that poor language skills, together with the intimidation of the courtroom and the obvious painfulness of the subject — which precipitated the dissolution of the Ashe family and the childrens’ dispersion into Junior Village and various foster homes —worked a severe inhibition on the child.
Counsel submits that our first opinion, Ashe-I, in effect held that Walter, Jr. was not competent to testify, or that at least his testimony was non-corroborative. If it was non-corroborative, then of course the Government’s proof in Ashe-I failed for want of the corroboration we require in proof of sex offenses. And if, in turn, the Government’s proof failed in Ashe-I, then the rule in our circuit is clear that another trial cannot be brought.
The Government’s response to this chain of reasoning is that even if there had been no corroboration, there was still ample evidence to convict Ashe of simple assault. We do not need to pass upon this response. We believe that Walter, Jr.’s testimony in Ashe-I was sufficient to meet the corroboration requirement. That rule must be applied in light of its purpose, to prevent fabrication of easily-fabricated crimes, and not to interpose a technical barrier that rejects a substantial showing of guilt. We attribute most of the deficiencies of Walter, Jr.’s testimony in Ashe-I to inferior language skills and emotional turmoil which have since substantially abated. The transcript from Ashe-11 certainly suggests a child functioning well within the limits of intellectual normality. We are sensitive to the point that Walter, Jr.'s testimony in Ashe-1 was weak and garbled, but we attribute the weakness to interference factors rather than to any fundamental inability to observe with accuracy. A family where a father is having indecent or incestuous traffic with his children is surely a family in turmoil. In addition to the ordinary and normal testimonial inadequacies which are a part of immaturity, the children of such families are likely to exhibit all sorts of emotional abnormalities which may often prevent their effective communication, especially in a context as intimidating as g crowded, unfamiliar courtroom. Unless we want in effect to wipe the enforcement of the carnal knowledge statute out of the incest situation, we must be prepared to accept evidence from some seriously mixed-up young witnesses, and to be flexible in assessing their competency and evidentiary sufficiency.
Our opinion in Ashe-I recognized that the Government’s case was thin, but we did not hold it legally insufficient. The thin Government evidence meant that the error of permitting Dr. Platkin’s testimony in evidence, without protecting precautions such as bifurcation having first being taken, could not be harmless. We are satisfied that the retrial cured this prejudice. The record in Ashe-I indicates that the competency determination was made in open court outside the presence of the jury. The transcript shows that the defendant was present, as is his right under the Sixth Amendment. The procedure was sound. The jury’s finding of guilt, which is a part of its total determination of not guilty by reason of insanity, is not infected by legal insufficiency or error, and will not be disturbed.
IV.
We now address the issues raised in 71-1509, which attacks certain aspects of the Bolton hearing. At the end of that hearing, the jury found that Ashe was dangerous because of mental illness and Judge Green thereupon ordered his commitment.
A. Appellant claims that the jury voir dire was not adequate for purposes of discovering whether there were some prospective jurors who, knowing that Ashe had recently been found to have committed a felonious sex crime and had been declared insane, might be prejudiced on the question of whether Ashe was now “dangerous as a result of mental illness.” Counsel submitte'd twelve questions, which are set out in footnote 2. The questions Judge Green asked were these (Tr. pp. 27, 28) :
1. Are there any of you who feel any sort of prejudice toward people who have been confined in jail, mental hospitals, Saint Elizabeths, or would this be such that it would prevent your reaching a fair decision in this case?
2. Do any of you feel that the conviction of a crime, committing an act of sex with one’s own daughter, would necessarily make one committable to a mental hospital ?
3. Do any of the members of the panel have any employment or patients or anyone in their family who has ever been employed at Saint Eliza-beths Hospital or been a patient there ?
4. Does any member of the panel have anyone in their family or have ever themselves suffered from any mental disease or defect?
5. Are there any reasons at all why any member of the panel would prefer not to sit on a case of this kind ?
Seven of the prospective jurors told the court of some misgiving they had, based on the questions asked, and six of these were, upon further questioning by the court, excused. While the questions probing the ability of the jurors to render a fair verdict might have been improved, we are satisfied that they did an adequate job of discovering possible prejudice. Certainly appellant cannot claim reversible error for the denial of the argumentative — and equally unfocused — questions requested by appellant.
B. Appellant also argues that the experts were improperly asked whether, in their opinion, Ashe was or would be dangerous. Ashe relies on our decision in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967). As counsel succinctly put it at argument, “Expert witnesses should never be allowed to speak the magic words.”
There are different vectors of considerations that culminate in a psychiatrist’s resultant conclusion as to “dangerousness,” yea or nay. Some aspects are primarily determined by his expertise, and others by his value preferences in matters involving community values where the ultimate decisions must be made by the court and jury. The same may also be said of “mental illness” as a legal concept, for this is not controlled by the medical conception. Yet it has not been suggested that a psychiatrist may not speak, in parlance that is natural and understandable, of mental illness. The possibility of confusion must be obviated by attentive explanation, sorting out of factors, and cross-examination.
The issue of “dangerousness” is different from the issue of “productivity.” Washington held that experts called to testify on the issue of insanity must not speak in terms of productivity. Our concern was against oversteering of the jury on the ultimate decision of criminal responsibility, one that “intertwine[s] moral, legal and medical judgments,” King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967). The problem of “oversteering,” identified in Washington, is not avoided completely but it is substantially diluted here, in a Bolton hearing on the issue of dangerousness. As we pointed out in Brawner a critical reason for the Washington opinion was the lack of a generally accepted meaning for the “product” term. But we specifically held that the expert could testify on the causal relationship between mental disease and the existence of substantial capacity for control at the time of the act. And so in the case at bar, where there is no use of a term like “product” that has no accepted meaning, the expert can testify on the ultimate causal issue. The jury can be expected, with reasonable confidence, to assess the concept of “dangerousness” for itself and in such a way as to reflect community values.
In a Bolton hearing, the jury is aware that the witness is not making a scientific finding as to a past fact, but is making an estimate as to the future— the kind of judgment that doubtless reflects some margin of doubt yet is part of his clinical function. Of course the judge clearly charges it is the jury’s role to make the determination. Such steering by experts as exists is due not to words and misunderstandings as to the natural tendency to be respectful of the comments of those who have given special study to a subject. It would likely persist ‘to substantially equivalent degree if the expert were merely asked to give his conclusions as to the consequences he foresaw if the individual were released to the community. The substantive criterion for committability is fixed by the statute. It uses terms and concepts that are common parlance for both experts and laymen. The jury needs whatever help the experts can provide, and that should not be cramped by interdicting the use of these terms in the testimony.
On the other hand, the jury hearing a psychiatrist’s testimony of dangerousness, should be informed of its various components: to what extent it reflects a predicting of behavior (often palpably dangerous); whether it is prediction of an occurrence of a kind of behavior that, however deviant, might be considered by the jury to lie in the realm of the private, the eccentric, or the offensive, but not the dangerous. The expert must be prepared to state the bases for his conclusion and be aware that the attorney, seeking to expose the predicate of the expert’s conclusion is not necessarily challenging his expertise within its proper realm, but may properly be seeking to ask the jury to come to a different ultimate conclusion on the basis of the community-value factor involved. Following the lead of our Brawner opinion we hold that henceforth the Washington Appendix should be used in Bolton hearings, following adjustment for the difference in issues, should be sent to the experts in advance of hearing, and should be read at least once to the jury.
C. Appellant strongly contends that Dr. Reisen should have been qualified as an expert in psychiatry and allowed to testify as such. Dr. Reisen is a physician with several years of background — both practical and academic — in psychiatry. He is not a board-certified psychiatrist or neurologist, but of all the physicians who testified, Dr. Reisen knows Ashe best. At oral argument, we were advised that Dr. Reisen is in charge of the observation ward at St. Elizabeths, and is entrusted by the Hospital with considerable unsupervised responsibility. Based on what we glean from the record and what we heard at oral argument, we conclude Dr. Reisen could have qualified as an expert in psychiatry.
We do not however find reversible error, for these reasons: First, counsel at trial did not detail the extent of the responsibility which St. Elizabeths has entrusted to Dr. Reisen. More important, Dr. Reisen was permitted to testify as a physician and to express his opinion on Ashe’s probable future dangerousness. He was not allowed to testify directly on Ashe’s mental status. But other questions, intimately related to mental status, were allowed. Specifically, he was allowed to testify about how, in his opinion, Ashe would function in the community if released from the hospital. The thrust of that question operates, in effect, in the same way as a question put in terms of mental illness and dangerousness. The witness’s projection of the individual’s functioning, in the absence of commitment, necessarily embraces an appraisal of the individual’s mental and emotional capacities and behavioral controls.
Finally, Ashe’s counsel was able to present the testimony of Dr. Paul Weis-berg, who did qualify as a psychiatric expert, that appellant was not suffering from mental illness. Dr. Weisberg’s testimony on direct was clear and unequivocal, and the skillful cross-examination by the Assistant U.S. Attorney did little to dislodge or becloud any of that testimony. Dr.. Reisen’s greater familiarity and contacts with Ashe might have given his opinion more weight with the jury. But in a context where the judge was not advised of critical aspects of Dr. Reisen’s responsibility at St. Elizabeths, and permitted Dr. Reisen to give testimony concerning the functioning of Ashe if released, we do not think the interest of justice would be served by a finding of reversible error because he did not expressly corroborate Dr. Weis-berg’s testimony on the absence of present mental illness.
D. Appellant’s last major argument challenges the “preponderance of evidence” standard which the Bolton jury was charged it must use in its findings of mental illness and dangerousness. Our opinion in United States v. Brown is the contrary.
We have considered appellant’s other arguments and find them without merit.
Affirmed.
. Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).
. Appellant’s proposed voir dire questions were:
1. The law controlling this case requires that a person be both mentally ill and likely to, injure himself or others before lie’s involuntarily confined in a mental institution.
2. Are there any of you who do not agree that there are many so called mentally ill or disturbed persons who are walking the streets, enjoying their liberty, and not harming anyone (including themselves) ?
3. Are there any of you who, after searching your feelings, feel any sort of prejudice towards people who have been confined in jail, mental hospitals — St. Elizabeths— which might render you unable to reach a fair decision in this case.
4. Are there any of you who do not agree that the burden is on the government to establish that the defendant is mentally ill and likely to injure himself and others, and the fact that he is in the courtroom today does not raise a presumption of either?
5. Are there any of you who feel that the conviction of a crime of incest, or committing an act of sex with one’s daughter, necessarily should make one committable to a mental hospital?
6. Do you jurors agree that the burden is on the government to establish in this case that as the result of a mental illness the defendant is likely to repeat the act of which he stands convicted, or commit some other dangerous act, in order to commit him to SEH?
7. Do you jurors agree that while psychiatrists may testify as to their opinion in this case, it is not binding on you and you may choose to disregard it, or weight it lightly, if your own experience and intuition and judgment lead you to another conclusion?
8. Do you jurors agree that patients at St. Elizabeths Hospital are not presumptively dangerous?
9. Do you jurors agree that mental patients — or people suffering from some mental disturbance — are not necessarily dangerous to society, or themselves, and should not necessarily be confined in mental institutions?
10. Do any of you have any mental illness in your family or among your close friends, which might prevent you from rendering a fair decision in this case?
11. Do any of you have policemen or law enforcement officers in your family?
12. Are there any reasons — perhaps reasons which you may find hard to articulate — which would make any of you uncomfortable in sitting on this kind of case and rendering a fair decision?
. J. Goldstein and J. Katz, Dangerousness and Mental Illness; Some Observations on the Decision to Release Persons Acquitted By Reason of Insanity, 70 Yale L.J. (1960) 225.
. United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972, en banc).
. See opinion at p. 38, 471 F.2d at p. 1006: “It is the responsibility of all concerned — expert, counsel and judge — to see to it that the jury in an insanity case is informed of the expert’s underlying reasons and approach, and. is not confronted with ultimate opinions on a take-it-or-leave-it basis. The Appendix to Washington is useful in this regard— assuming appropriate modification.
. 155 U.S.App.D.C.—, 478 F.2d 606 (1973).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_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.
Jesus Padilla ENRIQUEZ, Raul Franco, Appellants, v. UNITED STATES of America, Appellee.
No. 17276.
United States Court of Appeals Ninth Circuit.
Aug. 15, 1961.
David C. Marcus, Los Angeles, Cal., for appellants.
Francis C. Whelan, U.S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, Edward M. Medvene and Ernest A. Long, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG and KOELSCH, Circuit Judges.
BARNES, Circuit Judge.
Appellants were indicted in three counts (III, IV and VII) of a se.ven count indictment. Count III charged each with sale and Count IV the concealment of certain narcotics, each in violation of 21 U.S.C.A. § 174 and each occurring on August 2, 1960. Count VII charged each defendant and others with a conspiracy to sell and conceal the same narcotics in violation of 21 U.S.C.A. § 174. The central figure in all seven counts was one Rosalio Hernandez Trigueros, Jr. In the conspiracy count it alleged the object thereof was that Trigueros would arrange to transfer heroin to prospective purchasers, and that the five remaining defendants would supply Trigueros with the needed heroin. The sole overt acts charged against defendants were:
(a) that on August 2, 1960, Enriquez drove coappellant Franco to a meeting where Franco met with codefendant Diaz;
(b) that on August 2, 1960, Enriquez and Franco met with defendant. Trigueros in a certain alley.
Prior to trial, defendants Ferrell and Trigueros pleaded guilty to Count I, and defendant Diaz pleaded guilty to Count VII. All defendants went to trial on the remaining counts. Defendant Rose Montez was acquitted; appellants and the other defendants were convicted on all counts.
Jurisdiction below rests on 21 U.S.C.A. § 174; and here on 28 U.S.C. § 1291.
Victor Maria, an undercover agent for the Federal Bureau of Narcotics, purchased narcotics from defendant Trigueros on July 20, 1960. Neither appellant was involved in that sale. We now adopt the government’s factual statement of subsequent events; and we assume it represents the view most favorable to the government, which on this appeal we are required to accept as true.
“At approximately 3:35 P.M. on August 2, 1960 Agent Maria met defendant Trigueros at the intersection of Date and Maple, Montebello, California. Trigueros entered the government vehicle and in the ensuing conversation Agent Maria asked Trigueros if he was ready to deliver some heroin. Trigueros replied that he had made arrangements to get some heroin but that the source of supply would be unavailable until 4:30.
“At 4:30 P.M. on August 2, 1960, defendant Diaz joined Trigueros and Agent Maria in the government vehicle. Diaz directed Agent Maria to drive to the Samoan Bar. During the drive to the Samoan Bar, Diaz in discussing the purchase of heroin identified ‘Sleepy’ as the man they were going to see.
"Upon arrival at the Samoan Bar, Trigueros and Diaz alighted from the government vehicle and walked to the Samoan Bar; shortly thereafter said individuals returned and re-entered the government vehicle.
“Upon re-entering the government vehicle, Diaz stated that ‘he wasn’t there,’ and directed Agent Maria to proceed west on Whittier Boulevard. Diaz further stated that they were to meet ‘Sleepy’ and mentioned that ‘Sleepy’ was a cabinet maker who was remodeling a store on Whittier Boulevard. Agent Maria, following Diaz’ directions, proceeded to the fear of 4780 Whittier Boulevard, where Trigueros and Diaz left the government vehicle and entered the rear door at said address.
“Approximately thirty minutes later, Trigueros returned to the government vehicle and asked Agent Maria if he knew how to ‘cut’ heroin. Agent Maria replied affirmatively, and Trigueros stated that if he, Maria, did not cut the heroin, ‘they’ would and Agent Maria would get ‘burnt.’ Trigueros then said, ‘Wait a minute. We get it ready.’ Trigueros was then observed to return to the premises at 4780 Whittier Boulevard.
“At this time, Agent Licuanan left his point of surveillance and walked past the front of the premises at 4780 Whittier Boulevard. As Agent Licuanan passed the store he observed defendants Diaz, Trigueros, Enriquez (Sleepy Padilla) and Franco as well as Augustine Ramirez engaged in conversation in the shop.
“Thirty minutes later Trigueros and Diaz again returned to and entered the government vehicle and directed Agent Maria to the corner of Eastman and Whittier, Montebello, California, where Agent Maria was instructed by Diaz to park the government vehicle. Shortly thereafter, a 1958 Chevrolet Impala drove up and parked near the government vehicle. Agent Maria observed an unidentified male leave the Chevrolet Impala, approach the government vehicle and instructed Diaz and Trigueros that ‘the stuff is ready. Get the money and follow me.’ The Impala, with the unidentified male following on foot, proceeded to an adjacent alley.
“Agent Maria gave Trigueros $600, Trigueros left the government vehicle and disappeared into the adjacent alley; Diaz remained with Agent Maria. In the ensuing minutes Agent Maria observed the previously identified black Impala drive past the location of the government vehicle on three occasions. Trigueros was observed to be a passenger in the Impala on these occasions. Trigueros then returned to the government vehicle and handed Agent Maria a rubber contraceptive containing a brown powder, Government’s Exhibit 2-C.”
An unsuccessful attempt to purchase heroin from Trigueros on August 17, 1960, followed. A successful attempt to purchase heroin from Trigueros on August 26, 1960, followed. In neither one of these contacts was either appellant involved.
The evidence hereinabove cited discloses no involvement of either appellant, other than the statement of codefendant Diaz that “Sleepy,” (Padilla) was the source of supply, and that on August 2 1960, certain other defendants were in the presence of and had a conversation with appellants. Neither bit of evidence would, we think, be sufficient without more, to sustain the conviction of either defendant.
The government thus must rely primarily on the testimony of one Augustine Ramirez, sixteen years of age and “a third cousin” of the appellant Franco, who worked with defendants doing cabinet work at 4780 Whittier Boulevard on August 2nd, 1960, working out of a cabinet shop located at 4010 Whittier Boulevard in the County of Los Angeles, California. That testimony is as follows, as set forth by the government:
“Sometime between mid-April and July of 1960, appellant Franco and Ramirez had a conversation in Franco’s cabinet shop located at 4010 Whittier Boulevard, in which Franco told Ramirez that he would make a ‘connection’ for ‘Jess’ (Enriquez) and after that he would not handle the ‘stuff’ as it was too dangerous. (The word ‘stuff’ as understood and used by Ramirez referred to heroin.)
“Early in July, 1960, in Franco’s cabinet shop, 4010 Whittier Boulevard, Ramirez had a conversation with appellant Enriquez in appellant Franco’s presence. Enriquez told Ramirez that if any heroin came in, to put it some place in the shop. On more than one occasion, deliveries of heroin were made to the cabinet shop and Ramirez on each occasion hid the heroin in the shop. Subsequently, Franco and/or Enriquez would inquire as to whether the heroin had been delivered and following Ramirez’ ‘Yes’ answer, Enriquez would go to and pick up the heroin.
“During July and August 1960, Ramirez worked with appellants Franco and Enriquez at 4780 Whittier Boulevard making fixtures for a clothing store not yet open to the public. On occasion, during working hours, Ramirez observed persons enter the premises, speak to Franco or Enriquez and then enter the restroom with Franco or Enriquez. After a brief stay in the restroom Enriquez or Franco would emerge from the restroom and be observed in the process of putting money in their pockets. At times, after Enriquez visited the restroom, Ramirez observed Enriquez deliver money to Franco.
“On August 2, 1960, Ramirez was working at 4780 Whittier Boulevard with appellants Franco and Enriquez. During the day, Ramirez observed Arnold Diaz and Ross Trigueros enter the store and converse with Franco and Enriquez for a while. After Trigueros and Diaz left the store, Franco instructed Ramirez to accompany Enriquez to Franco’s cabinet shop at 4010 Whittier Boulevard, adjacent to Eastman and Whittier. Enriquez and Ramirez proceeded to the cabinet shop in Franco’s black 1958 Impala Chevrolet. Near the cabinet shop, on Eastman, Enriquez halted the black Chevrolet Impala and instructed Ramirez to leave the vehicle and tell Trigueros or Diaz that ‘the stuff would be ready.’ Ramirez told Trigueros that the heroin was ready and walked to the cabinet shop. Enriquez instructed Ramirez to lock up the cabinet shop. Enriquez and Trigueros who had by that time arrived at the shop, departed in Franco’s black 1958 Chevrolet Impala. Later, Franco and Enriquez returned to the cabinet shop, picked up Ramirez and took him home.
“Subsequent to action of August 2, 1960, appellants Franco and Ramirez had an argument concerning payment of approximately $135 by Franco to Ramirez. Ramirez stopped working for Franco as a result of the nonpayment of wages. Sometime thereafter, Ramirez again approached Franco requesting payment and was rebuffed.
“Following Franco’s refusal, Ramirez said, ‘Don’t be surprised if anything happens’, and Franco replied, ‘If anything happens, I am going to kill you.’
“The cross-examination elicited the fact that Ramirez was photographed and fingerprinted by Agent Maria on the date he was initially contacted. (Agent Maria testified this was done because it was apparent that Ramirez knew people in the narcotic traffic and this information would facilitate the relocation of Ramirez if needed); that Ramirez did not know he was to testify until the day before the commencement of the trial on October 25, 1960; and that Ramirez had no revenge motive for testifying in the trial.”
Appellants’ brief does not contain, as our Rule 18, 28 U.S.C., requires, a specification of the errors relied upon. This appeal, therefore, requires no action by us, save to dismiss. We dislike, as does any court, to punish clients for the failures of their attorneys. We will therefore assume the “Topical Index,” listing eight points, serves the purpose of specifying the alleged errors. They are as follows:
“Point I The defendants’ Motion for Judgment of Acquittal Should have been Granted at the Close of the Government’s Case as to Counts 3 and 4 of the Indictment.
“Point II The Defendants’ Motion for Acquittal on Count 7, ‘Conspiracy’, Should Have Been Granted
“Point III The Court erred with Respect to Defendants Franco and Enriquez in Permitting Conversations to be Admitted in Evidence Prior to the Establishment of any Prima Facie Conspiracy, and in Not Striking the Conversations With Respect to These Names (sic) Defendants and in Permitting Such Evidence to be Considered By the Jury as Binding Upon All Defendants.
“Point IV The Trial Court Committed Prejudicial Error in Permitting the Cross Examination by the Prosecutor of Defendant Enriquez.
“Point V The Prosecutor and Agents of the Narcotics Bureau were Guilty of Prejudicial Misconduct which Denied the Defendants, Franco and Enriquez, due Process of Law, in the Manner in which the testimony of Augustine Ramirez was Secured and Used in the Trial
“Point VI The trial court committed Error Prejudicial to the Rights of the Defendants in its Remarks to Defense Counsel
“Point VII The Court Erred in Denying the Motion for New Trial
“Point VIII The Appellants herein were not Accorded the Regularity and Fairness which should Characterize the Due Administration of Criminal Justice in the Federal Courts.”
We find no merit in appellants’ Points I and II, that the motions for acquittal should have been granted as to either the substantive or conspiracy counts. It is sufficient for us to state, viewing the evidence most favorably to the government, as we must, that we find sufficient questions of fact to have the issue go to the jury, and to support its verdict of conviction. The evidence of Augustine Ramirez if believed, was alone, sufficient for that purpose. We will consider the objections to the admissibility of that testimony later herein.
Appellants’ Point III is with respect to (a) permitting conversations of alleged conspirators in evidence prior to the establishment of the conspiracy, and (b) in permitting such evidence to be binding against appellants Franco and Enriquez, and not striking it.
This again is primarily and essentially a problem of the proper order of proof, and thus, within the sound judicial discretion of the trial court. Parente v. United States, 9 Cir., 1957, 249 F.2d 752, 754; United States v. Sansone, 2 Cir., 1956, 231 F.2d 887, certiorari denied 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500; Fuentes v. United States, 9 Cir., 1960, 283 F.2d 537; Williams v. United States, 9 Cir., 1961, 289 F.2d 598.
While counsel for appellants Enriquez and Franco moved generally for a judgment of acquittal, based on the lack of evidence to prove the guilt of either defendant, no motion was made to strike any evidence alleged to have been improperly offered or received because of lack of proof that a conspiracy involving such defendants had already been proved. We have already held there was sufficient evidence to go to the jury on all counts. The denial of the general motions acquittal— the only motions made below at the conclusion of all evidence — was proper. There is sufficient evidence here, if it was all properly admitted and believed by the jury, to establish a direct connection and participation by appellants in the sale, concealment and delivery of the narcotics on August 2, 1960.
We find, upon reading of the record, no merit whatsoever, in appellants Point VI with respect to remarks made by the Court during the trial. No cases are cited to support this contention, and the lengthy recital of testimony discloses exactly what appellants describe and no more: a court’s impatience with counsel for appellants. The record itself discloses the reason. Whether justified or not, impatience on the part of the court as here demonstrated, is not reversible error.
We find no merit in appellants’ first Point VIII — (p. 85 of Brief) (that the sentence imposed on appellants was heavier than that on other defendants.) The peculiar circumstances present in Saldana v. United States, 1961, 365 U.S. 646, 81 S.Ct. 783, 5 L.Ed.2d 855 (reversing 9 Cir., 274 F.2d 352) do not here exist.
We find no merit in appellants’ ninth point (second point numbered VIII, p. 89 of Brief). As appellants concede, it is purely a discretionary matter whether a person twenty-one years of age or under is to be sentenced under the Federal Youth’s Correction Act, 18 U.S.C. § 5010 (b).
Appellants’ Point VII rests on evidence relied upon and referred to under Point V, which we will consider hereafter.
We find error in Point IV, the cross-examination of the defendant Enriquez.
Enriquez took the stand on behalf of defendant Montez (Tr. 454.) His direct testimony was strictly limited, as the transcript discloses:
“By Mr. Arthur (counsel for Montez) : Mr. Enriquez — may I ask you, prior — that is, before this trial commenced — had you ever met personally or had you ever heard of a person by the name of Rose Natalie Montez, the defendant in this case? A. No sir, never.”
He was then asked twenty-six questions, to four of which objections were sustained. The first two questions relating to his knowing a defendant other than the one mentioned on direct examination, were proper; subsequent questions went far beyond the scope of the direct examination. Tr. p. 457-467.
Appellee admits the general rule to be that “the scope of cross-examination is limited to the factual area covered on the preceding direct examination.” Gov. Brief, p. 20. Moyer v. Aetna Life Ins. Co., 3 Cir., 1942, 126 F.2d 141 at 143, citing Philadelphia and Trenton R. R. Co. v. Stimson, 14 Pet. 448, 39 U.S. 448, 10 L.Ed. 535. But the government urges this general rule of cross-examination is “subject to enlargement within the discretion of the trial judge,” to show bias or prejudice (Wills v. Russell, 1879, 100 U.S. 621, 625, 25 L.Ed. 607) or to lay a foundation for other evidence, including prior contradictory statements (idem) ; or to identify the witness with his community, (Alford v. United States, 1931, 282 U.S. 687, 691, 51 S.Ct. 218, 75 L.Ed. 624; 3 Wigmore, Evidence (2d ed.) Sec. 1368 1(1) (b), or to test the truth of the statements made on direct, so as to affect the credibility of a witness, or to show intent. United States v. Manton, 2 Cir., 1939, 107 F.2d 834, 835. Clearly, says the government, the questions asked in cross-examination “would have been properly explored if the prosecution had taken the witness as its own,” (Gov. Brief p. 24) citing D’Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, 339.
We agree with the government’s interpretation of the law, but not that law’s applicability to the facts of this case. United States v. Mantón, supra, had to do with testing on cross-examination “the truth of the statements * * * made on direct.” [107 F.2d 845.] (Emphasis added.) D’Aquino, supra, [192 F.2d 369] relates to a defendant “[who] took the stand and undertook to testify upon direct examination concerning * * sundry subjects. She subjected herself to cross-examination on behalf of the prosecution as fully as any other witness in the case,” (as the government states) but only with respect to those matters which were within “the proper scope of cross-examination,” and which had to do with intent.
“Counsel for appellant objected to the cross-examination upon this point on the ground that it was improper as relating to matters that were not touched upon on direct examination of the witness. We think that appellant’s contention is based upon a misunderstanding of the proper scope of cross-examination. Appellant had given testimony in her direct examination designed to show both directly and circumstantially her good intent and her lack of intent to betray the United States. Thus, the whole question of appellant’s intention was open to inquiry upon cross-examination and the cross-examiner was entitled to bring up for examination any matter which rightly had a bearing upon intent.” 192 F.2d 338 at page 370.
And see Bell v. United States, 4 Cir., 1951, 185 F.2d 302, 310; Travis v. United States, 10 Cir., 1959, 269 F.2d 928, 939.
We recognize that the nature and extent of what constitutes proper cross-examination is almost exclusively a matter of discretion with the trial court. We agree that it should be, yet the prosecution cannot have unlimited rights; Blitz v. United States, 153 U.S. 308, 312, 14 S.Ct. 924, 38 L.Ed. 725; and if the questions here asked with respect to other defendants and other activities of the witness and relating to occasions and dates never touched upon on direct examination are permissible, at the very least, a cross-examiner should be required to explain to the court how and why such questions come within the scope of a proper cross-examination, i. e., after objection is made by defendant’s counsel, to require the government to make some offer of proof. No explanation was here offered. We see none that could justify the questions asked. Appellee urges that the appellant Enriquez could have been called as the government’s own witness, but he was not.
It is true that we find little that might constitute substantial or clearly prejudicial error as a result of the ruling the court made. The witness denied being present at the 4780 Whittier Boulevard address at the time when other witnesses had placed him there. He made no admissions. He denied the alleged conversation with respect to heroin on August 2, 1960, stating he was not in Whittier on that date. Yet we cannot know what influence such apparently innocent answers may have had on the jury.
The same error is urged with respect to appellant Franco, who also took the stand to deny he had ever seen, heard of, or spoken to the defendant Montez. He was then cross-examined, though “not to the same extent” as Enriquez. The same observations herein made as to Enriquez’ cross-examination are applicable to Franco’s appearance and cross-examination. It was also error, though perhaps not so aggravated, because fewer questions were asked on cross that did not relate to the direct examination. It is true that Raul Franco thereafter took the stand on his own behalf, and testified at some length on cross-examination. This opened much-wider the gates through which the government’s cross-examination was permitted to pass. But it did not justify questions asked of the defendant Franco as to whether or not he had committed a crime, i. e., stolen clothing of some one on August 19th or 20th, (Tr. p. 580-1). No offer of proof of conviction of a felony was made or suggested. This-alone was clearly sufficient to prejudice a. jury against Franco, and perhaps Enriquez, and suggests that a reversal of their conviction is required.
When the government has a right to a limited cross-examination (which relates to impeachment of the testimony gone into on direct examination, or anything relating to the witnesses’ credibility) it is extremely difficult for any trial court to know where the dividing line between proper and improper cross-examination should be fixed. For that reason, if no other, the discretion given to the trial court must be large. Recognizing that, we still find prejudice to each appellant’s defense in what here took place, under the peculiar facts of this case, and the limited evidence before the jury as to the participation of the defendants in the sale and possession of the narcotics.
We are thus brought to the last point —whether the government and its employees were guilty of prejudicial misconduct, denying appellants due process of law “in the manner in which the testimony of Augustine Ramirez was Secured and Used in the Trial.”
As appellants twice summarize it in their brief:
“(U)p until five days prior to the trial, Augustine Ramirez had not talked to any government agent or disclosed to any person what he claimed his testimony would be, or what he knew concerning defendants Franco and Enriquez. It is apparent what happened. The trial date was approaching with no evidence against Enriquez and Franco. Agent Maria testified he began looking for Augustine Ramirez and did not locate him until the 21st day of October, 1960, some days before the trial. He took him to the Federal Narcotics Bureau and fingerprinted him, mugged him, refreshed his memory, and then produced him at the trial four days later as a witness.”
We have carefully read the testimony and have particularly noted the wide latitude the trial judge permitted counsel for appellants in probing into any possible bias, prejudice, desire for revenge, untruthfulness, or inconsistencies on the part of Ramirez.
We find ourselves not completely satisfied that the appellants received a fair trial. Counsel for appellants contents himself with reciting the facts, and then concludes, “the manner in which this testimony of Ramirez was secured, elicited and presented to the jury constituted a denial of due process of law.” While we cannot agree with this, we do believe the lack of evidence as to the defendant’s participation with admittedly guilty defendants in Narcotics Act violations, other than the testimony of the sixteen-year-old witness, makes the government’s improper cross-examination of the defendants reversible, rather than harmless, error. The same questioning under a different state of facts, might be considered error, but harmless. Here we cannot in good conscience so hold.
The judgment of conviction as to each defendant is Reversed, as to each count.
Because these defendants may be tried again, we add the following comment: Appellants urge a second specific error in the asking of a question relating to “stuff” Martinez had said was in the appellants’ shop: “When you speak of ‘stuff’, Mr. Ramirez, what are you referring to?” Answer: “Heroin.” Tr. 250, Par. 2-4. Appellants’ counsel moved to strike the answer. This motion was denied, and this is claimed prejudicial error. Say appellants, “Here was a sixteen-year-old youth giving an answer that only an expert forensic chemist could give. It was the gist and heart of the case.”
Counsel misunderstands the purpose of the question. Ramirez was not asked as an expert whether the substance he saw was actually heroin. If that had been the only testimony as to what substance introduced in evidence within the envelopes marked Exhibits 1-C, 2-C and 3-C actually was, appellants’ point would have been well taken. Ramirez was asked what he “meant” (i. e., what he was referring to) by use of the word “stuff.” In answer, he stated heroin. The same rule of evidence would have applied had a witness referred to a “reefer” or “H.” What did the witness mean? He alone could say. Cf. Parente v. United States, 9 Cir., 1957, 249 F.2d 752, 756; Batsell v. United States, 8 Cir., 1954, 217 F.2d 257, 262.
There is no question but that the argot of drug addiction contains many strange terms. The trial judge below, however, could not have been on the Federal Criminal Bench in California a month before learning that “stuff” is a well-recognized synonym for narcotics of one type or another, usually heroin or some other opium derivative. There was no error in permitting this question and answer.
. We are further confused by the use of certain language in appellants’ brief. We have solved the problem by assuming that appellants’ brief uses the word “interpolate” when meaning “interrogate” (p. 13, 1. 4; p. 22, 1. 1, 3 and 13; p. 79, 1. 21) and “intercession” when meaning “interference” (p. 24, 1. 16; p. 32, 1. 6). Cf. Webster’s Unabridged Dictionary, any edition.
. As a matter of fact, counsel for all defendants stipulated the substance contained within envelopes marked Exhibits 1-0, 2-0 and 3-0, was heroin. As to 1-O, when received by the government chemist in envelope marked Exhibit 1-B, it was twenty-six and one-half per cent heroin, 2-0 when received was forty-four and one-half per cent heroin, and 3-C was twelve and seven-tenths per cent heroin. The balance was procaine or novocaine. Tr. p. 129 and Brief.
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_capric
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. 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".
ACER REALTY CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 12350.
Circuit Court of Appeals, Eighth Circuit.
Dec. 28, 1942.
Gus O. Nations, of St. Louis, Mo. (R. Shad Bennett, of Clayton, Mo., and Nations & Nations, of St. Louis, Mo., on the brief), for petitioner.
S. Dee Hanson, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Helen R. Carloss, and Willard H. Pedrick, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before GARDNER, WOODRGUGH, and THOMAS, Circuit Judges.
THOMAS, Circuit Judge.
This case is presented here on a petition of the taxpayer to review a decision of the United States Board of Tax Appeals redetermining, and modifying and' confirming a deficiency in petitioner’s income taxes for the taxable years ended January 31, 1936, 1937, and 1938. The modifications made by the Board were favorable to the petitioner, and the Commissioner has not excepted. The opinion of the Board is reported in 45 B.T.A. 333.
The deficiency found by the Commissioner and in controversy here involves two items of the petitioner’s income tax returns for the taxable years. First, petitioner claimed deductions for salary paid its president for the years 1936, 1937, and 1938 of $10,075, $9,750, and $11,700 respectively, and for salary paid to its secretary-treasurer for the same years of $1,550, $1,650, and $1,800. The Commissioner allowed deductions for the president’s salary in the amount only of $1,200 for each year and for that of the secretary-treasurer in the amount of $600 a year. Second, the Commissioner added to the petitioner’s reported income for the year 1938 the sum of $8,700 as rentals constructively received in that year.
In disallowing the deductions claimed for officers’ salaries the Commissioner stated in his notice of deficiency that the amounts claimed are held to the extent of the amounts disallowed “to be in excess of reasonable allowances for salaries or other compensation for personal services actually rendered.”
In affirming the Commissioner the Board held that the payments to officers and disallowed “were not made as compensation of these two officers, as such. They were made for unusual, nonrecurrent services, the cost of which is represented now in the value of the capital assets thus acquired and now owned by petitioner.”
The petitioner complains in substance that the Board erred in deciding the controversy as.to deductions for salaries on a factual basis not framed by the pleadings or referred to in the evidence; and that the sole issue of fact raised by the pleadings was whether the services rendered by the officers to the corporation were worth the total amount paid for them. Consequently, it is urged, the Board had no jurisdiction to go outside of that issue and determine the case upon the question of the essential character of the services rendered.
On this question there is no merit in petitioner’s contention. The Board went no further than to find the facts and to apply the law to those facts. The Commissioner introduced no evidence at the hearing before the Board, and the testimony introduced by the petitioner abundantly supports its findings.
In brief the facts are that the petitioner is a corporation, the capital stock of which is owned almost wholly by the parties who were its president and secretary-treasurer respectively during the taxable years. The business of the corporation is chiefly the holding of title to approximately 50 acres of land in St. Louis County, Missouri, and leasing it to the Glenwood Sanatorium Company, a corporation owned also by the same parties who were the officers of the petitioner. A large building program consisting of the construction of buildings for the use of the tenant Sanatorium Company was carried through during the years 1933 to 1938 inclusive. Instead of having the work done by contractors the officers whose salaries are involved performed all the services necessary to the management of the construction of the buildings. The savings to the petitioner on the building program thus effected were in excess of $100,000. The petitioner’s evidence shows that the president’s services alone for this character of work were worth $12,000 a year for the four-year period, and that the secretary-treasurer’s services for the same class of work were worth approximately one-sixth as much. No evidence was produced to show the value of the officers’ salaries as such.
Except for the period from July, 1930, to July, 1932, the officers never at any time drew salaries until June 1, 1934, on which date the president was voted a salary of $325 a month and the secretary-treasurer a salary of $50 a month. On February 1, 1935, these salaries were increased to $650 and $100 a month respectively. On August 1, 1935, they were again increased to $975 and $150 a month respectively, and they remained at these amounts until February 1, 1938, when the building program was completed.
The substantive rights of the government and of the petitioner are controlled by §§ 22(a) and 23(a) of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev. Code §§ 22(a) and 23(a). Under the statute deductions for corporate salaries can be allowed only when such payments constitute “ordinary and necessary expenses paid or incurred * * * in carrying on any trade or business.” A capital expenditure is not deductible as an “ordinary” business expense. It is well-settled that money paid out for the acquirement of something of permanent use or value in one’s business is a capital investment and not deductible from income as an “ordinary” business expense. Duffy v. Central Railroad Company, 268 U.S. 55, 45 S.Ct. 429, 69 L.Ed. 846; Willcuts v. Minnesota Tribune Co., 8 Cir., 103 F.2d 947, 950, certiorari denied 308 U.S. 577, 60 S.Ct. 93, 84 L.Ed. 483; Houston Natural Gas Corp. v. Commissioner of Internal Revenue, 4 Cir., 90 F.2d 814, 816; Great Northern Ry. Co. v. Commissioner of Internal Revenue, 8 Cir., 40 F.2d 372. This rule of law is not .controverted by the petitioner. It argues that the character of the services rendered by its officers was not in issue, only their value.
On this issue we agree with the Board that petitioner is mistaken. Under the statute, supra, there could be but one question, namely, whether the payments represented reasonable allowances for services performed in carrying on the business of the corporation. If the salaries were in part paid for other services they were not ordinary expenses. When petitioner appealed to the Board and challenged the decision of the Commissioner, it took upon itself the burden of establishing its contention that the payments were not only reasonable in amount but also that they were ordinary and necessary in carrying on its business. Instead of sustaining that burden its proof affirmatively showed that the expenditures were not ordinary and necessary expenses paid or incurred in carrying on its business but, on the other hand, that they were in large part, if not entirely, capital investments.
In an appeal to the Board the burden is upon the taxpayer “to show that it was entitled to the deduction which the Commissioner had disallowed, and that the additional tax was to that extent illegally assessed.” Reinecke v. Spalding, 280 U.S. 227, 233, 50 S.Ct. 96, 98, 74 L.Ed. 385. The taxpayer must show that the assessment is wrong upon any proper theory. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224. Upon appeal the Board “may investigate anew the issues between the government and the taxpayer, and upon the determination of the appeal it may affirm, set aside, or modify the findings and decision of the Commissioner.” Blair v. Oesterlein Co., 275 U.S. 220, 227, 48 S.Ct. 87, 89, 72 L.Ed. 249. Neither the Board nor this court is bound by the reason assigned by the Commissioner for his decision. If the disallowance is right it must be affirmed by the application of the correct rule of law. Helvering v. Gowran, supra; Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037; J. & O. Altschul Tobacco Co. v. Commissioner of Internal Revenue, 5 Cir., 42 F.2d 609, 610.
The petitioner asserts that the Board erred in finding that the services of the president and secretary-treasurer were of the reasonable value of $1,200 and $600 per year respectively because there was no evidence to support such finding. The answer to this claim is that the Board made no such finding either expressly or impliedly. It found only that the Commissioner did not err in holding that the salaries paid in excess of these amounts were not ordinary expenses paid in carrying on petitioner’s regular business. The allowances made by the Commissioner were not in issue in the absence of a cross-appeal, and they were neither considered nor passed upon by the Board.
The petitioner asked the Board to amend its findings and to grant a further hearing or a rehearing to afford it an opportunity to present further evidence upon the type and character of services rendered by its officers. The application was denied, and the petitioner complains. The motion does not set out the evidence by which it is proposed to establish that the services rendered were of a character or type different from that shown at the hearing. Such further evidence, whatever it may be, would be in conflict with the testimony in the record and with the verified statements in the petition filed on appeal to the Board. Under these circumstances, the Board should not be reversed for denying the requests. See Scott v. Commissioner, 8 Cir., 117 F.2d 36, 40.
The second element of the controversy is whether petitioner was in constructive receipt of rent from its tenant, the Sanatorium Company, for the year 1938 in the amount of $8,700. Petitioner carries its accounts on a cash basis and contends that it did not so receive such rentals.
The evidence tends to show that the agreed rental for the year 1938 was $18,-000 subject to an increase in some amount on condition that the new buildings under construction at the beginning of the year should be completed and ready for occupancy before the end of the year. While the building program was under way the tenant had advanced to the petitioner on account sums totaling $10,500 and had paid on the 1938 rentals the sum of $9,300, leaving an unpaid balance, likewise carried on account, of $8,700. It was “the purpose”, so petitioner’s vice-president testified, “not to make an offsetting entry until it was determined whether the buildings would be ready.” Sometime prior to the end of the year it was known that the buildings would not be ready for occupancy at any time during the year, and consequently that the rental would not be increased. The secretary-treasurer of the petitioner at the time of the hearing, who was also its attorney during the taxable period, testified: “I claim we could offset it, but we don’t have to. * * * There was no reason why Acer could not credit $8,700 on the amount they owed Glenwood and there was no reason why they should.”
Referring to the ruling of the Commissioner including the $8,700 in income, the taxpayer, in its petition on appeal to the Board, said: “There would be a tax saving to petitioner by virtue of this ruling and it is not seriously protested, although it is not conceded that the Commissioner had the legal right to enforce such a ruling.”
The Board found that “the intention of the parties was that these mutual debts were to be treated as parts of one transaction. The offset of one debt against the other was intended and petitioner had an absolute right to make it during the tax year. Cf. Bailey v. Commissioner, 103 F.2d 448.” We think that the requirements of constructive receipt are satisfied and the petitioner could not, by merely delaying the making of a book entry, postpone this rent receipt to a future period.
The evidence supports the Board’s finding that the intention and purpose of the parties were to set off these mutual debts; to make an offsetting entry in their books when but not until it was determined whether the buildings would be ready for occupancy during the year 1938; that before the end of the year the fact that the buildings would not be ready was determinable; and that petitioner had the right to make the set-off entry within the taxable year. The consent of the tenant inhered in the agreement. The question for decision, therefore, is whether the petitioner for tax purposes had the right to delay the entry and postpone the “rent receipt to a future tax period.”
It is true, as contended by the petitioner, that “Mutual debts do not per se extinguish each other.” Bailey v. Commissioner of Internal Revenue, 5 Cir., 103 F.2d 448, 449. It is also the law that “Where the taxpayer does not receive payment of income in money or property realization may occur when the last step is taken by which he obtains the fruition of the economic gain which has already accrued to him.” Helvering v. Horst, 311 U.S. 112, 115, 61 S.Ct. 144, 146, 85 L.Ed. 75, 131 A.L.R. 655. These rules are not inconsistent with the present decision. The principle here applicable is “that the powe to dispose of income is the equivalent c ownership of it.” Harrison v. Schaffner, 312 U.S. 579, 580, 61 S.Ct. 759, 760, 85 L.Ed. 1055. The revenue acts are “not so much concerned with the refinements of title as * * * with actual command over the property [which is] taxed — the actual benefit for which the tax is paid.” Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916; Harrison v. Schaffner, supra, 312 U.S. at page 581, 61 S.Ct. 759, 85 L.Ed. 1055. The last act necessary to give petitioner command over the $8,700 of rentals for 1938 was not the book entry but the failure to complete the buildings for occupancy in that year. The right of command existed upon the occurrence of that event and any delay in making the proper book entry could not change it. Upon petitioner’s theory, if the set-off entry should never be made the tax would never accrue. Riley Inv. Co. v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 85 L.Ed. 36. Negligent or willful delay in making a proper book entry cannot be used to defeat the taxing power. “* * * the taxpayer, even on the cash receipts basis, who has fully enjoyed the benefit of the economic gain represented by his right to receive income, can [not] escape taxation because he has not himself received payment of it from his obligor.” Helvering v. Horst, supra, 311 U.S. at page 116, 61 S.Ct. at page 147, 85 L.Ed. 75, 131 A.L.R. 655. The taxpayer in the instant case enjoyed the benefit of the economic gain when the right to receive credit for the rent accrued. The gain need not be collected by the taxpayer in order that it be taxable. Helvering v. Stuart, 63 S.Ct. 140, 87 L.Ed. -. Constructively received income is taxable when the amount is definitely liquidated and available to the taxpayer without restriction. Penn v. Robertson, 4 Cir., 115 F.2d 167, 175. The facts found by the Board meet these conditions.
The decision of the Board of Tax Appeals is affirmed.
Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond2_1_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. William ERICKSON and W. J. Jones & Son, Inc., Appellees. FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. Eugene BENNETT and W. J. Jones & Son, Inc., Appellees.
Nos. 19791, 19792.
United States Court of Appeals Ninth Circuit.
April 12, 1965.
Rehearing Denied May 20, 1965.
Erskine B. Wood, John R. Brooke, Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for appellant.
Philip Levin, Pozzi, Levin & Wilson, Dennis J. Lindsay, Garry P. McMurry, Krause, Lindsay & Nahstoll, Portland, Or., for appellees.
Before ORR, MERRILL and BROWNING, Circuit Judges.
PER CURIAM.
Appellees Erickson and Bennett are longshoremen who were injured by a falling boom aboard the Steamship Alexandria. Erickson and Bennett each filed a libel against the vessel and its owner, appellant Fidelity Shipping Company, alleging that their injuriés were the proximate result of unseaworthiness of the Alexandria. Appellant impleaded appel-lee stevedoring company, W. J. Jones & Son, employer of Erickson and Bennett, claiming a right to indmenity due to an alleged failure to perform stevedoring services in a safe, proper, and workmanlike manner. Trial was had and the trial judge found that the appellees were injured as a proximate result of the unseaworthiness of the Alexandria. Specifically, the supply of steam was found to be inadequate to properly operate the boom and the brake inadequate to prevent the boom from falling. He also found in favor of W. J. Jones & Son on the third-party indemnity claim. He found no failure on the part of W. J. Jones & Son or its employees to perform the stevedoring services here in a safe, proper, and workmanlike manner.
We have examined the record in this case and find substantial evidence to support each of the above findings.
Appellant contends that the amount of damages awarded to Erickson was excessive. Our examination of the record convinces us that there is no merit to this contention.
Affirmed.
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:
|
songer_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
COMMISSIONER OF INTERNAL REVENUE v. GERSTLE.
No. 8426.
Circuit Court of Appeals, Ninth Circuit.
March 25, 1938.
James W. Morris, Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, Louise Foster, and M. Leo Looney, Jr., Sp: Assts. to Atty. Gen., for petitioner.
Francis W. Murphy, of San Francisco, Cal., for respondent.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
This case was brought here on petition to review a decision of the Board of Tax Appeals. The question presented is whether the respondent is entitled to deduct for income tax purposes his proportionate share of operating losses sustained by syndicates of which he was a member. Specifically, it is whether the syndicates are associations within the meaning of section 2(a) (2) of the Revenue Act of 1926, and section 701 (a) (2) of the Revenue Act of 1928, 26 U. S.C.A. § 1696(3), providing that for the purposes of the act “the term ‘corporation’ includes associations, joint-stock companies, and insurance companies”; or whether, as contended by respondent and as held by the Board, the syndicates are joint ventures. If the latter, the members are taxable as individuals and have the right to deduct each year their proportionate share of the operating losses of the syndicates. If the syndicates are associations, and therefore, taxable entities, their losses are personal to them and cannot be deducted by any one else.
Income taxes for the years 1927, 1928, and 1929 are involved. The material facts are stipulated and disclose the following situation: For many years prior to 1927 the respondent and the several other members of the syndicates involved had been directors of corporations owning large department stores in San Francisco and Oakland. In 1927 it was decided to build a new store in Oakland some blocks away from the then business district. The respondent and his associates decided to purchase properties in the immediate vicinity of the proposed new store in order that they might realize profits from an expected increase in value of the neighboring real estate. The original plan was expanded somewhat to include the purchase of other properties in Oakland in anticipation of a general rise in real estate values. Four syndicates in all were organized within a few weeks of each other, the members contributing to a pool to be used for the purchase of the properties thereafter acquired. At the outset it was their purpose to purchase certain properties which they believed could be quickly resold at a profit. It was not then the purpose to improve any of the properties acquired. The management of the properties was intended to be such only as would be necessarily incident to the ownership in the interim between purchase and anticipated sale.
The syndicate agreements were made in writing by three syndicate managers and those who affixed their signatures as members. All four agreements are identical in form. It was recited that the syndicate members are desirous of acting jointly in the purchase, management, and sale of real properties in Oakland, and for that purpose have requested the syndicate managers to act as their agents and trustees. The parties agreed that the managers should purchase, manage, and sell the real properties for the account of the members, the managers to have complete discretion in the selection of the properties to be purchased, the amount of the purchase price, the details of management, the terms of sale and of mortgage, and of all other matters related to the syndicate operations. The properties purchased might be taken in any names the managers might determine'. It was provided that each member on executing the agreement should set down after his name the amount he would contribute to the operations, “and his interest in the properties, profits, obligations, debts and losses of the syndicate shall be that proportion thereof which the amount set after his signature bears to the total of the amounts set after the signatures of all the syndicate members.” It was agreed that the funds required for the operations of the syndicate should be provided by the members, who were to pay to the manag -rs, on call, their respective proportions of the total sum called for, “provided that no syndicate member shall be called upon, prior to the termination of the syndicate, to pay a greater aggregate amount than that set after his signature hereto.” The managers were empowered to borrow money in their own names or in the names of others for the benefit of the syndicate, and the members were liable for the repayment thereof in proportion to their respective interests. The managers, who might act by majority, were not'to be responsible for any act performed in good faith, and were to be indemnified and held harmless by the members from any loss or liability that they might be subjected to. In the event of vacancies, successors to syndicate managers might be appointed by the members. The managers were entitled to compensation under certain conditions. The syndicate might be terminated by the managers or by members holding at least two-thirds of the beneficial interest, and upon termination the syndicate property was to be delivered to the members in their proper proportions, and if there should be a loss, each member was required forthwith to pay his proper proportion to the managers. No assignment by a syndicate member of his interest could be made effective until written notice thereof had been delivered to the managers, “nor shall any assignment release the syndicate member so assigning from liability hereunder unless the syndicate managers shall so agree in writing.” The agreements were to be executed in any number of counterparts, each constituting a single agreement. No certificates or other evidence of interest were provided for in the agreement, nor were any ever issued.
Syndicate No. 1 was the original syndicate, through which six properties were purchased. The purpose of syndicate No. 2 was the purchase and resale of St. Mary’s College property. Syndicate No. 3 acquired two properties, and syndicate No. 4 was formed to acquire what is called the Gross property. No other properties were purchased.
The anticipated rise in values did not occur. There was instead a decline which continued throughout the subsequent years. By reason of these circumstances, the syndicate managers were compelled to operate certain of the buildings and to rent the remaining unimproved properties, these latter being temporarily appropriated for a variety of purposes. Prior to 1930, two properties only were resold, the remainder in the latter year being transferred to corporations.
At the commencement of the operations an arrangement was made with 'a bank to provide the funds origjnally required for the purchase of the several properties, these funds being advanced on the notes of the syndicate managers. The acquisitions were made on the recommendation of the bank and a firm of real estate brokers in Oakland. Believing that a disclosure of the identities of the real parties in interest would result in an immediate increase in. prices, precautions were taken to conceal the identities of the members of the syndicate. Accordingly, title to all properties was taken in the name of one or the other of two title companies.
The syndicates, as such, had no name. There were no officers except as the managers might be so considered. The agreements provided the sole evidence of the interest of the several members, and each member received an executed counterpart. While the agreements gave the managers broad and exclusive powers, the practice was to decide all questions of importance only after the views of all concerned had been obtained. The managers did not organize. The bank, as fiscal agent, kept all records pertaining to syndicate affairs. It rented the improved properties, collected the rents, and paid all expenses. From time to time the syndicate members were called upon to supply funds to the bank proportionate to their respective subscriptions. The funds advanced by the bank on the notes of the syndicate managers, both for the acquisition and subsequent maintenance of the properties, were repaid directly to the bank by the members on calls prepared and issued by the bank directly to the members. As security for the repayment of advances, the bank held declarations of trust covering the syndicate assets executed- by the title companies — the holders of the record title — these declarations of trust being executed with the consent of the managers. The bank was compensated for the services rendered by it.
Large operating losses were sustained by the syndicates during the years in question. The members deducted on 'their individual returns for those years their respective proportions of the losses, and these were disallowed by the Commissioner. The Boai;d disagreed with the Commissioner, holding that the syndicates were not associations taxable as corporations, and that operating losses were allowable to the members.
In Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 295, 80 L.Ed. 263, the court, after reviewing the decisions in Crocker v. Malley, 249 U.S. 223, 39 S.Ct. 270, 63 L.Ed. 573, 2 A.L.R. 1601; and Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949, said: “While it is impossible in the nature of things to translate the statutory concept of ‘association’ into a particularity of detail that would fix the status of every sort of enterprise or organization which ingenuity may create, the recurring disputes emphasize the need of a further examination of the congressional intent.” Definitions-of the term “association” showing the ordinary meaning of the term as “applicable to a body 'of persons united without a charter ‘but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise,”’ were there said to be helpful, but not to be accepted to the extent of making mere formal procedure a controlling test. “While the use of corporate forms may furnish persuasive evidence of the existence of an association, the absence of particular forms, or of the usual terminology of corporations, cannot be regarded as decisive.” Again, it is said that “the inclusion of associations with corporations implies resemblance ; but it is resemblance and not identity.” Certain salient features of corporate organization, as furnishing analogies, are pointed out by the court. Thus it is said, in substance, that a corporation, as an entity, holds the title to the property embarked in the undertaking; it furnishes centralized management through representatives ; it insures continuity of enterprise; it facilitates the transfer of beneficial interests and the introduction of large numbers of participants; and it permits the limitation of personal liability of participants to the property embarked in the undertaking.
Certain of these features were present in the syndicates involved. While title to the assets was not taken in. the supposed entity or in the syndicate managers, continuity of the enterprise was effected, insuring against disturbance resulting from death or from the transfer of ownership of beneficial interests. Centralized management was provided for in the agreements, notwithstanding in practice there was general consultation before important decisions were reached. See - Helvering v. Coleman-Gilbert Associates, supra, note. In other respects, these syndicates lack analogy to corporations. Two of the characteristic advantages of corporate organization have been generally thought to be the limited liability of the members, and a ready divisibility and transferability of beneficial interests, making toward the inclusion in the enterprise of large numbers of participants. The liability of the syndicate members was not limited. Their beneficial interests were not readily or conveniently transferable. There were no shares, certificates, or other evidence of interest beyond each member’s copy of the agreement. While, in a few instances, divisions were made of their interest by members, orally or in writing, those acquiring proportionate shares of the interest of these members' were never consulted, and no calls were ever made upon them. Their relations were entirely with the member with whom they had originally dealt and from whom their respective interests were acquired. While, as was said in Morrissey v. Commissioner, supra, “the test of an association is not to be found in the mere formal evidence of interests or in a particular method of transfer,” yet the absence of familiar provision for adequate evidence of interest or of any convenient method of transfer is important to be considered.
In A. A. Lewis & Co. v. Commissioner, 301 U.S. 385, 57 S.Ct. 799, 801, 81 L.Ed. 1174, it was said that the trust reviewed in Morrissey v. Commissioner, supra, “was a medium for the carrying on of a business enterprise by the trustees-and participation in the profits by numerous beneficiaries whose interests were represented by transferable share certificates, thus permitting the introduction of new participants without affecting the continuity of the plan. The certificates represented both preferred and common shares. We pointed out that the corporate analogy was evidenced by centralized control, continuity and limited liability, as well as by the issue of transferable certificates.”
An attempted analysis of the character and functions of the syndicates here involved leads to no entirely satisfying conclusion as to what they are. In some respects they resemble partnerships, in others corporations, and in the main they are markedly different from either. The Board held that they were joint ventures, citing the definition of such given in 33 C.J. 841 as “a special combination of two or more persons, where, in some specific venture, a profit is jointly sought, without actual partnership or corporate designation.” It was thought by the Board that the assets acquired through the syndicate activities were the property of the members, as tenants in common, citing McCausey v. Burnet, 60 App. D.C. 201, 50 F.2d 491, and Clark v. Sidway, 142 U.S. 682, 12 S.Ct. 327, 35 L.Ed. 1157. It seems clear that the members were equitable owners of the real property acquired, and that their beneficial interests were not merely personal claims against the syndicate managers.
No useful purpose would be 'served by further review of the many authorities dealing with various aspects of this difficult subject. Attention will be called only to two recent cases involving opposite sets of facts and illustrating the views that have been taken following on the decision of Morrissey v. Commissioner, supra. These are Monrovia Oil Co. v. Commissioner, 9 Cir., 83 F.2d 417, decided by this court, and Myers v. Commissioner, 89 F.2d 86, decided by the Circuit Court of Appeals for the 7th Circuit.
We hold that the syndicates were not associations within the meaning of the applicable statute, and the decision of the Board is therefore affirmed.
And see the cases immediately following: Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273; Helvering v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275; Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
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:
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.