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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
SAMPLE FURNITURE SHOPS, Inc., v. COMMISSIONER OF INTERNAL REVENUE.
No. 4812.
Circuit Court of Appeals, Fourth Circuit.
Oct. 17, 1941.
Walter E. Barton, of Washington, D. C. (Joseph R. Curl, of Wheeling, W. Va., on the brief), for petitioner.
Carolyn E. Agger, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and Michael H. Cardozo, iv, Sp. Assts. to the Atty Gen., on the brief), for respondent.
Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.
PER CURIAM.
The Commissioner of Internal Revenue made an assessment against the Sample Furniture Shops, Inc., a West Virginia corporation, as transferee of the assets of Patrick King for his unpaid income tax amounting to $3,584.37 for the calendar year 1937. The corporation petitioned the Board of Tax Appeals for review which, after hearing, affirmed the Commissioner’s determination with a minor adjustment, finding a deficiency due from the transferee in the amount of • $3,538.70. The corporation here petitions for review of that determination.
The statutory basis for the transferees liability is Section 311(a) (1) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Code, § 311(a) (1), which imposes upon a transferee of property of a taxpayer, the liability, at law or in equity, for the tax (including interest) imposed upon the transferor by Title 1 (Income Tax) of the Revenue Act, § 101 et seq., 26 U.S.C.A. Int.Rev.Code, § 101 et seq.
From the findings of fact made by the Board, it appears that Patrick King had been conducting a retail furniture business in Wheeling, West Virginia for some years prior to October 29, 1937, and shortly prior thereto, he had proposed to open another similar store in Youngstown, Ohio and had stocked it with furniture of the value of $15,000 to $20,000, no part of which had been paid for. On October 29, 1937, King formed a West Virginia corporation to continue the business and at once transferred to it the stock of the Youngstown store, and issued to himself and wife 99 of the 100 issued shares of the corporation’s capital stock of the par value of $100 per share. The corporate resolution of that date recited that the corporation purchased the assets of the business, and in consideration therefor authorized the issuance to King of sufficient capital stock to compensate him for his equity in the business “after closing of the books and accounts December 31, 1937”; and the corporation assumed the “liabilities of P. King, doing business as the Sample Furniture Shops, 16 — 16th St.”. After December 31, 1937, King also transferred the stock and fixtures and equipment of the Wheeling store to the corporation without issuance of any additional shares of stock. King’s equity in the business was estimated by him to have been $20,000 to $24,000 in excess of his liabilities.
The corporation was almost immediately in financial difficulties, because in February 1938, some of its creditors were substituted as directors of the corporation, and early in May of the same year, it made a general assignment for the benefit of creditors. The record does not disclose the result of the liquidation, nor a list of the liabilities of the corporation or of King. The latter had no assets of any value as of December 31, 1937, except the shares of stock which had been issued to him, and apparently he had no personal debts other than the tax liability.
King filed a tentative income tax return for 1937 prior to March 15, 1938, which was prepared for him by the accountant of the corporation, then under management of the creditors. $75 was paid on account of the estimated amount by the check of the corporation, and charged to King’s account. Thereafter King filed a completed return which disclosed a net income of $30,515.06, on which a tax in the amount of $3,627.05 was shown to be due. The return also showed that (with the exception of an item of $381.74 received by King as salary from the corporation) his whole income for 1937 consisted of the net profit of his Wheeling furniture business in the amount of $31,-208.14.
The conclusion of the Board that the corporation was liable as transferee at law was based on its construction of the corporate resolution for the purchase of the assets of King in which the corporation had assumed the “liabilities of P. King, doing business as the Sample Furniture Shops”. The Board held that the liabilities so assumed included the personal income tax liability of King. As the Board thus held that the corporation was liable at law, it found it unnecessary to consider the possible liability as transferee in equity. The contention of the corporation here is that this construction of the resolution was erroneous as a matter of law; and that the findings made by the Board do not justify our determination that the corporation was liable as a transferee in equity. The argument in support of the first point is that the proper construction of the resolution necessarily limits the liabilities assumed to those purely incident to the conduct of the business, thus excluding the personal federal income tax liability of King. Ordinarily it is true that where a stranger purchases a business and assumes its liabilities, the latter would not include personal obligations of the vendor not related to the business; but in construing the corporate resolution here involved, which does not clearly exclude King’s tax liability, it is entirely permissible to look to the surrounding facts and circumstances of the particular case. In considering these we note, as did the Board, that King’s income for 1937 arose (with a minor exception for which adjustment was made by the Board) wholly from the business itself; and the sale was not made to a stranger but to a corporation wholly dominated at the time by King, and under circumstances from which it could well be inferred that the corporation was hardly more than a legal fiction, although the Board made no specific finding on this point. The circumstances also suggest that if King had not intended the corporation to assume his tax liability, which was comparatively substantial in amount, a fraud would have resulted on the federal revenues. The rather slender record affords no explanation of the singular fact that a business which in 1937 produced a net profit of over $30,000, and had an estimated equity of $24,000 at the end of 1937, suddenly thereafter became practically insolvent; and the reasonable inference would seem to be that both King and the corporation were really insolvent at the time of the transfer. .
We are not unmindful that the burden of proof was upon the Commissioner to establish the liability of the transferee; but looking at the findings of fact as made by the Board, supported by the evidence in the record, we are unable to say that its construction of the corporate resolution, that the personal tax liability of King was assumed by the corporation, was erroneous as a matter of law. We therefore affirm the decision of the Board.
Affirmed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_habeas
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
PETITION OF SHORTRIDGE et al. In re A. C. WAGY & CO.
Circuit Court of Appeals, Ninth Circuit.
July 1, 1927.
No. 5189.
1. Bankruptcy <§=1.81/2. 20(1) — Jurisdiction of bankruptcy courts is exclusive of ail other courts (Bankruptcy Act [Comp. St. § 9585 et seq.]).
It is well settled that jurisdiction of courts of bankruptcy, established by the Bankruptcy Act (Comp. St. § 9585 et seq.), is exclusive of all other courts, whether state or federal.
2. Bankruptcy <§=>181/2 — Equity receivers held not entitled to corporation’s books and papers as against receivers in bankruptcy appointed in another division of district.
Equity receivers of corporation held not entitled to custody of its books and papers, held by commissioner of corporations, as against bankruptcy receivers appointed in another division of district, in view of exclusive jurisdiction of bankruptcy court under ■ Bankruptcy Act (Comp. St. § 9585 et seq.).
3. Bankruptcy <§=I00(I), 114(1) — Orders of adjudication in bankruptcy, or appointing receivers, fair on their face, are not subject to collateral attack.
Order of adjudication in bankruptcy, and order appointing receivers, fair on their face, are not subject to collateral attack, in appellate court or elsewhere.
4. Bankruptcy <8=114(1) — Court’s finding of necessity for appointment of receivers held conclusive until set aside on direct appeal.
Finding of bankruptcy court that appointment of the receivers was absolutely necessary for the preservation of the estate held conclusive, until set aside on direct appeal.
Petition for Certiorari to the District Court- of the United States for the Southern District of California.
Petition by S. M. Shortridge, Jr., and another, as equity receivers of A. C. Wagy & Co., for certiorari to review order appointing receivers in bankruptcy and directing Commissioner of Corporations to deliver hooks and records and other documents to receivers so appointed.
Petition denied.
Arnold C. Lackenbach, of San Francisco, Cal., for petitioners.
Louis W. Myers, of Los Angeles, Cal., for District Judge.
Shaw & McDaniel and Louis W. Myers, all of Los Angeles, Cal., for respondents Carnahan and Scott.
Before HUNT and EUDKIN, Circuit Judges.
HUNT and EUDKIN, Circuit Judges.
May 23, 1927, one Eobert Van Norden filed his bill of complaint in the District Court of the United States for the Southern Division of the Northern District of California against A. O. Wagy & Co., a corporation, for the recovery of upwards of $4,000, and for the appointment of a receiver. Upon the filing of the bill of complaint, and with the consent of the defendant therein named, S. M- Short-ridge, Jr., and E. H. Cochran were appointed receivers of the property and assets of the defendant corporation, and have duly qualified and entered upon the discharge of their duties as such. May 25, 1927, the receivers thus appointed petitioned the District Court of the United States for the Southern Division of the Southern District of California, praying that they might be appointed as ancillary receivers in that district. May 28, 1927’, the last-mentioned court denied the petition for the appointment of Shortridge and Cochran as ancillary receivers, and appointed Joseph Scott and H. L. Carnahan as such.
June 1, 1927, three creditors filed an involuntary petition in bankruptcy against Wagy & Co., in the Southern District, and on the same day Scott and Carnahan were appointed receivers in bankruptcy, with the usual rights and powers of such receivers. June 16, 1927, Wagy & Co. filed a voluntary petition'in bankruptcy in the Southern District and was thereupon adjudged a bankrupt. On the same day Scott and Carnahan were reappointed receivers in bankruptcy on petition of the bankrupt. June 22, 1927, a second adjudication in bankruptcy was made upon the involuntary petition theretofore filed. June 13, 1927, the District Court for the Northern District made and entered an order in the suit there pending, directing and commanding the commissioner of corporations of the state of California to forthwith deliver and turn over to the receivers appointed by that court all records, books of account, correspondence, and other documents of every kind and character theretofore taken, seized, or received by the commissioner and belonging to the corporation.
June 14, 1927, the District Court for the Southern District issued a restraining order in the bankruptcy proceeding, on petition of the receivers appointed by that court, enjoining and restraining the commissioner of corporations from delivering or turning over the books of account, records, correspondence, and other documents belonging to the corporation, as directed by the order made and entered in the Northern District. The receivers appointed in the Northern District thereupon petitioned this court for an order directing the judge of the District Court of the Southern District to show cause why the order appointing the receivers in bankruptcy, and the order directed against the commissioner of corporations should not be annulled and canceled. We issued a show cause order as prayed, and from the returns made by the judge against whom the order was directed, and the receivers appointed by him, and from the original petition filed in this court, the foregoing facts appear.
Many important questions have been raised or suggested by the respective parties on the argument before this court, such as a want of jurisdiction in the District Court of the Northern District to appoint the receivers; invalidity of the order appointing the ancillary receivers in. the Southern District, such order having been made on the petition of the receivers appointed in the Northern District, without the institution of any other suit or proceeding there; want of jurisdiction in the bankruptcy court to appoint the receivers, and a want of jurisdiction in this court to review the orders complained of; but the necessity for an early decision is such that we will simply direct our attention to what we deem the controlling question in the case.
It is well settled that the jurisdiction of the courts of bankruptcy established by the national Bankruptcy Act (Comp. St. § 9585 et seq.) is exclusive of all other courts, whether state or federal. As said by the Supreme Court in Re Watts and Sachs, 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933:
“And the operation of the bankruptcy laws of the United States cannot be defeated by insolvent commercial corporations applying to be wound up under state statutes. The Bankruptcy Law is paramount, and the jurisdiction of the federal courts in bankruptcy, when properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive. * * * rpjjg generai as between courts of concurrent jurisdiction is that property already in possession of the receiver of one court cannot rightfully be taken from him without the court’s consent, by the receiver of another court appointed in a subsequent suit, but that rule can have only a qualified application where winding up proceedings are superseded by those in bankruptcy as to which the jurisdiction is not concurrent.”
Again, in United States Fidelity & Guaranty Co. v. Bray, 225 U. S. 205, 32 S. Ct. 620, 56 L. Ed. 1055, the same court said:
“We think it is a necessary conclusion from these and other provisions of the act that the jurisdiction of the bankruptcy courts in all ‘proceedings in bankruptcy’ is intended to be exclusive of all other courts, and that such proceedings include, among others, all matters of administration. * * * A distinct purpose of the Bankruptcy Act is to subject the administration of the estates of bankrupts to the control of tribunals clothed with authority and charged with the duty of proceeding to final settlement and distribution in a summary way, as are the courts of bankruptcy. Creditors are entitled to have this authority exercised, and justly may complain when, as here, an important part of the administration is sought to be effected through the slower and less appropriate processes of a plenary suit in equity in another court, involving collateral and extraneous matters with which they have no concern, such as the controversy between the complainant and the indemnitor banks. Of the fact that the suit was begun in the Circuit Court with the express leave of the court of bankruptcy, it suffices to say that the latter was not at liberty to surrender its exclusive control over matters of administration or to confide them to another tribunal.”
See, also, United States v. Wood (C. C. A.) 290 F. 109; In re Yaryan Naval Stores Co. (C. C. A.) 214 F. 563; In re American & British Mfg. Corporation (D. C.) 300 F. 839.
Such being the exclusive nature of the jurisdiction conferred on the bankruptcy courts, the solution of the question before us is not difficult. Nor need we concern ourselves with the validity or propriety of the different orders, when made by the different courts, because tbe disposition of tbe case must rest on facts and conditions as they exist at present. Tbe order of adjudication in bankruptcy and tbe order appointing receivers in that proceeding are fair upon their face, and are not subject to collateral attaek in this court or elsewhere. It is contended that there was no necessity for the appointment of the receivers in bankruptcy, inasmuch as the assets of the bankruptcy, corporation were already in the custody of receivers appointed by the two courts; but the court below found that the appointment of such receivers was- absolutely necessary for the preservation of the estate, and that finding is conclusive unless or until set aside on a direct appeal.
The question, therefore, is this: As between the equity receivers appointed in the Northern District and the bankruptcy, receivers appointed in the Southern District, which has the superior right to the custody of books and papers belonging to the bankrupt and not now in the possession or custody of the receivers appointed by either court? If the jurisdiction of the bankruptcy court is paramount and exclusive, it seems to us that this question admits of but one. answer. Should the equity receivers gain possession of the books and documents in question, it would become their duty to immediately surrender them to the receivers appointed by the bankruptcy court, on a proper demand tberefor, and why. should they, reach their proper custody in this roundabout way. Any attempt at a double administration of this estate by two sets of receivers can only result in needless .expense, delay, confusion, and ■unseeming conflict. To prevent just such things, bankruptcy courts were established, and endowed with full and complete jurisdiction to enforce a- single and simple administration.
The petition is denied.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
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songer_appel1_2_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
BRICKLAYERS AND STONE MASONS UNION, LOCAL NO. 2, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Associated General Contractors of Minnesota, Intervenor.
No. 76-1595.
United States Court of Appeals, District of Columbia Circuit.
Argued 8 June 1977.
Decided 9 Aug. 1977.
Samuel I. Sigal, Minneapolis, Minn., with whom Stephen D. Gordon, St. Paul, Minn., was on the brief, for petitioners.
Andrew F. Tranovich, Atty., N.L.R.B., Washington, D.C., of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of Court, with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Michael S. Winer, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on the brief, for respondent.
Larry A. Hanson, St. Paul, Minn., with whom A. Patrick Leighton, St. Paul, Minn., was on the brief, for intervenor.
Vincent J. Apruzzese, Springfield, N.J., filed a brief on behalf of Associated Gen. Contractors of America, as amicus curiae, urging denial of petitioner’s petition for review.
Before WRIGHT and WILKEY, Circuit Judges, and WILLIAM B. JONES, United States Senior District Judge for the United States District Court for the District of Columbia.
Sitting by designation pursuant to Title 28, U.S.C. § 294(c).
Opinion for the court filed by WILKEY, Circuit Judge.
WILKEY, Circuit Judge:
This case arises on the petition of Bricklayers and Stone Masons Union, Local No. 2, Bricklayers, Masons and Plasterers’ International Union of America, AFL-CIO (the Bricklayers); Construction and General Laborers Local 563, Laborers’ International Union of North America, AFL-CIO (the Laborers); International Union of Operating Engineers, Twin City Local No. 49, AFL-CIO (the Engineers); and Plumbers Union Local No. 15, United Association of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (the Plumbers). The petition for review seeks to have set aside a decision and order of the National Labor Relations Board (the Board) issued on 17 June 1976, which found that the four Unions had violated Section 8(e) of the National Labor Relations Act (the Act). There is also before the court a cross-application by the Board for enforcement of the order issued against the Bricklayers, Laborers, Engineers, and Plumbers.
We note at the outset that the court has been materially assisted by particularly able briefs and arguments of counsel, whose obvious competence in this field of law enabled them to dispense with wasteful attention to unessentials. After careful consideration of how the law applies in this case, we affirm the order of the Board and grant the cross-application for enforcement for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Facts
The facts as found by the Board are not in dispute. During the summer of 1973 the Elk River, Minnesota School District contracted with Gunnar I. Johnson & Son, Inc. (Johnson) as general contractor, Gorham Construction Company, Inc. (Gorham) as prime mechanical contractor, and Design Electric, Inc. (Design) as prime electrical contractor for constructing an elementary school. Johnson employed members of the Bricklayers, Laborers, and Engineers and Gorham employed members of the Plumbers, all of which unions are affiliates of the AFL-CIO. Design, however, employed members of the Christian Labor Association, Local No. 84, an independent organization not affiliated with AFL-CIO.
Work began at the construction site in August 1973. On 24 October the International Brotherhood of Electrical Workers, Local No. 110 (Electrical Workers), an affiliate of the AFL-CIO, caused a sign to be posted at the construction site stating:
Notice to the Public — Electrical Work Being Performed on This Job is at Substandard Wages and Benefits by Design Electric — This Notice is for Information of the Public and is not Intended to cause any Person to Refuse to Pick Up or Deliver or to Perform any Service — IBEW L.U. # 110.
Employees of Johnson and Gorham, appearing for work at their usual starting time, left the jobsite upon seeing this sign and refused to perform any work thereon.
The Associated General Contractors of Minnesota (AGC) represents Minnesota contractors, including Johnson, in contract negotiations with the construction trades unions. After the Electrical Workers’ sign was posted, AGC recommended that Johnson establish reserved gates to isolate the dispute. Johnson then posted signs at the construction site, designating the east gate for the employees and suppliers of Johnson and Gorham, the neutral employers, and the west gate for the employees and suppliers of Design, the primary employer. Thereafter, the Electrical Workers picketed the west gate only. Except for a short time on 31 October 1973, the Johnson and Gorham employees refused to enter the east gate, reserved for Johnson and Gorham, until their work stoppage was enjoined by the District Court on 28 March 1974.
On 1 March 1974, AGC, Johnson, and Gorham jointly filed a complaint in the United States District Court for the District of Minnesota against the four Unions, seeking a temporary restraining order against their members from refusing to work upon the jobsite. The complaint also sought an order requiring the Unions to arbitrate the dispute in accordance with the mandatory arbitration provisions in their respective contracts. On 28 March 1974, the court, finding “concerted action by [the Unions] and their members to effect a work stoppage on the project,” granted a temporary restraining order and directed the parties’ to arbitrate the dispute. The order also required the Unions to post notices at the project indicating that they did not condone the work stoppage, and that the collective bargaining agreements required all members to return to work. The Unions complied with the order, and work resumed at the project on 29 March 1974.
B. The Arbitrator’s Ruling
In April 1974 AGC, Johnson, and Gorham and the Unions arbitrated the meaning of the picket line clauses contained in their respective contracts. The picket line clauses in the contracts of the Bricklayers, Laborers, and Operating Engineers stated:
PICKETS, BANNERS AND STRIKES. The Employer may not request or instruct any Employee except Watchmen or Supervisory personnel to go through a picket line except to protect life or property. The Unions agree that there shall be no cessation of work or any recognition of picket lines of any union without first giving prior notice to the Employer or his Association.
The picket line clause in the Plumbers’ contract was worded differently:
Refusal to pass through a lawfully permitted picket line will not constitute a violation of the agreement.
Before the arbitrator the Unions maintained that their members’ refusal to enter the jobsite through the neutral gate was protected by the picket line clauses and that the work stoppage was not secondary activity. The Employers argued that the picket line clauses, under the Unions’ construction, were secondary boycott provisions violative of Section 8(e) of the Act.
On 5 June 1974 the arbitrator decided that the Johnson and Gorham employees could determine that the primary picket line of the Electrical Workers at the Design gate actually existed at the Johnson and Gorham neutral gate, and their decision not to enter the jobsite through the Johnson and Gorham neutral gate was protected under the picket line clauses. In rejecting the contention that no picket line existed at the neutral Johnson and Gorham gate, the arbitrator found:
The question whether a picket line exists [at the Johnson and Gorham gate] is one of fact. The evidence presented at the hearing established that the individual employees resolved that question of fact by deciding that the picket observed was a picket that they would honor.. The neutral arbitrator finds, therefore, that the decision to regard the Local 110 [Electrical Workers’] banner as a picket line affecting them was a decision made by the individual employees who refused to work and that the decision was one that they might reasonably make under these circumstances. The employees themselves have decided that a picket line exists even at the neutral gate. The neutral arbitrator holds that the picket line clause protects that decision as one reasonably made and not contrary to law.
He also found that “none of the Unions had taken the position or attempted to enforce or apply an illegal picket line clause within the meaning of the proscription of Section 8(e) of the Federal Act.”
On the next day (6 June 1974) the Unions posted almost identical notices to their members advising them of the arbitrator’s decision and stating:
Accordingly, under our contract, you have the right to decide whether or not to work on this job in the presence of the Electricians Local 110 banner. It is up to you to decide whether to honor or not the Electricians’ banner.
Thereafter AGC filed unfair labor practice charges against the Unions alleging that the picket line clauses violated Section 8(e) of the Act. On 30 August 1974 AGC, Johnson, and Gorham also filed a motion with the District Court to vacate the arbitrator’s award, alleging that the underlying contracts violated Section 8(e). On 23 December 1974, the District Court denied the motion to vacate and deferred the Section 8(e) issue to the Board.
C. The Decision of the Board
The Board found that the picket line clauses of the Bricklayers, Laborers, Engineers, and Plumbers were in violation of Section 8(e) of the Act. The Board found that the picket line clauses of all four Unions were “entered into” under Section 8(e) for the purposes of Section 10(b)’s six month statute of limitations by consistently maintaining the position, accepted by the arbitrator, that these clauses protected their members from discipline for refusing to enter the job site through the neutral gate at the Elk River School District project. The Board found that the picket line clauses in the contracts of the Bricklayers, Laborers and Operating Engineers violated Section 8(e) as written because the clauses on their face were broad enough to sanction refusals to cross secondary picket lines. The Board further concluded that all four picket line clauses, including the Plumbers’ clause, violated Section 8(e) when they were construed by the arbitrator to protect employees from discipline for refusing to pass through a neutral gate when a primary picket line was stationed elsewhere on the common work situs. The Board also concluded that these picket line clauses, as interpreted, were not saved from illegality under Section 8(e) by the construction industry proviso to that Section.
Thus, in issuing the order here under review, the Board decided four issues emanating from the dispute described in Part I. A., supra: 1) that the relevant portions of the contract clauses in issue were “enter[ed] into” within the time period specified in Section 10(b) of the Act; 2) that the picket line clauses in the contracts of the Laborers, Bricklayers, and Engineers were per se violative of Section 8(e); 3) that the picket line clauses in all four Union contracts (including that of the Plumbers) were, as interpreted by the arbitrator, violative of Section 8(e); and 4) that the picket line clauses in all four contracts were not saved by virtue of the construction industry proviso to Section 8(e). We agree with the Board on all four points, and we shall examine each of these issues in this order in our analysis which follows.
II. ANALYSIS
A. Statute of Limitation
Section 10(b) of the Act states that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board....’, Section 8(e) makes it an unfair labor practice for an employer and a union “to enter into” a so-called “hot cargo” clause; this section has been interpreted to cover the reaffirmation or reentering into of a hot cargo clause within the six month limitation period prescribed in Section 10(b). Since the picket line clauses at issue in this case were executed outside the Section 10(b) period, reaffirmation of the clauses within the Section 10(b) period is a precondition to unfair labor practice liability.
The Board found that the picket line clauses had been reaffirmed within the Section 10(b) period because the Unions had consistently “maintained... the continued enforceability of [the] clauses” during the course of the arbitration proceedings, and, of course, willingly accepted and sought to utilize the broad interpretation of the clause accorded by the arbitrator. In drawing this conclusion, the Board relied on its repeatedly articulated position that reaffirmation of a disputed clause can be “evidenced by arbitration proceedings wherein the parties are disputing the interpretation to be given that clause.”
The Unions attack the Board’s finding as to reaffirmation on two grounds: First, the Unions contend that there was no reaffirmation because they were compelled to proceed to arbitration by an order of the District Court. In the Unions’ view, they were reluctant and unwilling participants in the arbitration proceedings and therefore did not voluntarily “enter into” an agreement within the meaning of Section 8(e). Secondly, the Unions seek to set aside the finding as to reaffirmation by pointing to the decision of the arbitrator construing the picket line clauses as protecting only lawful primary conduct, not employee refusals to honor an illegal secondary picket line. That is, the Unions contend that their activities were outside the section 10(b) period because of the arbitrator’s decision that the clauses were not illegal. We reject both of the arguments put forth by the Union with respect to the reaffirmation of the picket line clauses.
The Unions’ argument that there was no reaffirmation because the arbitration proceeding was compelled by an order of the District Court is deficient in several respects. This argument does not contest the notion that arbitration proceedings can serve as sufficient evidence of reaffirmation; rather, the Unions contend that they must be legally excused from the consequences of their reaffirmation because they were “acting under compulsion of a presumptively valid Court order...,” Thus, the Unions’ argument is one based on the unfairness of having to defend the picket line clauses in an arbitration proceeding in which they did not desire to participate. This argument ignores the fact that the Unions had contractually agreed to the arbitration procedure that was implemented by the District Court order. Thus, although it is true that the Unions did not desire to arbitrate this particular dispute, they had bound themselves to the arbitration concept in their contracts with their employers. This decision of the Unions to insert an arbitration clause in their respective contracts was presumably arrived at as the result of an arms-length bargaining process in which all parties to the contract exercised the prerogatives attendant to the concept of freedom of contract.
The Unions suggest that the order of the District Court coerced them into a defense of the picket line clauses before the arbitrator and that this coercion violates the due process rights of the Unions. To the extent that a coercion argument would have any relevance in this context, it would have to focus on the bargaining process leading to the inclusion of the arbitration clauses in the various contracts. No such coercion is alleged or suggested by the Unions; given this, the order of the District Court emerges simply as a technique to effectuate the intent of the parties as embodied in their contractual understanding.
In addition to the argument that the District Court’s order somehow represented an unwarranted coercion of the Unions to arbitrate the dispute, the Unions suggest that the mere fact that there was an arbitration proceeding forced them to defend the picket line clauses as being lawful. That is, the Unions contend that AGC’s conduct in bringing the unfair labor practice charge which eventually led to the court-ordered arbitration “invited and caused the asserted [reaffirmation].” The Unions appear to believe that their position with respect to the lawfulness of the picket line clauses was dictated by the conduct of the charging party, and that, therefore, they should not be held legally responsible for the reaffirmation of the clauses before the arbitrator.
This is, of course, a mistaken belief; the Unions were free to pursue any arguments or lines of reasoning they chose to at the arbitration proceeding. While in practical terms it may be inevitable that a union will defend the legality of its actions once a dispute arises and arbitration commences, the Unions cannot be heard to disclaim responsibility for its position merely because another party initiates action to trigger the contractually-based arbitration procedures. Thus, the Unions are fully responsible for the position they took in defending the legality of their members’ actions and this defense constitutes a reaffirmation of the disputed clauses under well-established precedent. For the Unions to attempt to escape responsibility for their position by presenting a defense of coercion or compulsion is to attempt to deny the employers the rights granted to them in the bilateral contracts.
As the second ground for attacking the Board’s finding of reaffirmation, the Unions argue that there was no reaffirmation because the arbitrator interpreted the clauses as applying to lawful activity. In this argument, the Unions appear to draw a distinction between the reaffirmation of a lawful picket line clause and the reaffirmation of an unlawful picket line clause; in the Unions’ view, the former does not constitute a reaffirmation for purposes of the Section 10(b) statute of limitations. The Unions’ position is, in effect, that they had no intent to reaffirm an illegal picket line clause; the assumption is that the Unions would not have reaffirmed the clauses if they had known them to be illegal. Since the Board found the clauses to be illegal after the reaffirmation before the arbitrator, the Unions believed that the reaffirmation cannot be attributed to them.
The Board pierced and destroyed this argument quite accurately and thoroughly when it stated that the Unions’ position
goes to the merits of the alleged violation and not to the question of whether [the Unions] have reaffirmed the clauses. Indeed, [the] position contains its own admission that [the Unions] continue to reaffirm the effectiveness of the clauses— albeit only against primary activity.
Reaffirmation and legality represent two distinct analytical concepts and two distinct stages of analysis in this context, each with different concerns and purposes underlying them.
The Unions appear to misconceive the concerns underlying the reaffirmation concept. In analyzing a reaffirmation question, a court will look to see if there are “acts of continued enforcement of a contract” in order to determine if the relevant party is insisting upon the continued viability and legality of the clause. If the party continues to rely on the disputed clause, it is then appropriate for another party to instigate an unfair labor practice charge in order to resolve a contrary interpretation of the clause which he may entertain. Under the terms of Section 10(b), if such a charge is filed within six months, the Congressionally chosen time constraints have been satisfied.
In the context of this case, the charging party (AGC) could with confidence be assured by the position taken by the Unions before the arbitrator and by their actions taken thereafter in advising their members of the members’ “right” to engage in a work stoppage that the Unions continued to insist and believe that the picket line clauses protected the members from discipline or discharge. Under such conditions, the charging party could be confident that it was not initiating a conflict resolution process in which the party being charged no longer adhered to its disputed contractual interpretation. The actions taken by the Unions (for which actions they are fully responsible) indicate clearly that the Unions reaffirm their position that the picket line clauses protected the choices of the individual members not to enter the neutral gate.
The subjective intent or evaluation of the parties as to the legality of the disputed clauses is irrelevant to the question of whether the parties have manifested a reaffirmation of the clauses. The question of the legality of contractual clauses is vested in various bodies at different stages in the resolution of a dispute — the arbitrator, the Board, and the courts are vested with the authority to make these legal determinations with varying degrees of finality. Reaffirmation serves the purpose of ensuring that a dispute is properly before one of these bodies for decision; it does not depend on the substantive legal decision reached by one of the bodies or on the subjective speculation of the parties as to the question of legality.
Therefore, the Unions’ argument that there was no reaffirmation because the Unions and the arbitrator believed the clauses to be lawful as applied is irrelevant. What is relevant is that there were identifiable acts of reaffirmation which convince us that the disputed clauses were reentered into within six months of the filing of the charges by AGC.
B. Facial Invalidity
The Board found that the picket line clauses in the contracts of the Laborers, Bricklayers, and Engineers were violative of Section 8(e) on their face. The Board has repeatedly held that to the extent that picket line clauses are “broad enough to apply to secondary picketing having no connection with disputes concerning jobsite subcontracting, [such clauses are] prohibited by Section 8(e)... It is clear that the clauses of the Laborers, Bricklayers, and Engineers are broad enough, on their face, to apply to such prohibited conduct. In this appeal the Unions state that for the purpose of the argument here the three clauses can be taken to be “overly broad on their face.”
The picket line clause in the Plumbers’ contract, which refers only to refusals “to pass through a lawfully permitted picket line,” does not suffer from the same facial invalidity as do the other clauses, and this distinction was properly recognized by the Board. The controversy before the court at this time does not focus on this issue of facial invalidity; rather, the parties disagree as to the legality of the four clauses as interpreted and applied by the arbitrator.
C. Interpretation and Application of the Picket Line Clauses
The Board found that the picket line clauses in the contracts of all four unions violated Section 8(e) as interpreted and applied by the arbitrator. We agree with the Board’s conclusion.
In analyzing the question of the legality of the picket line clauses, we agree with the Unions that it is “necessary to ascertain whether the activity sought to be protected by the contract constitutes secondary activity under the Act.” While the Unions have correctly identified this major concern, they have at times focused on the wrong activity (the primary activity at the Design Electric gate) in presenting their arguments to this court. It is vital that the analysis be focused on the activity which is the object of the dispute and the resulting unfair labor practice charge. The relevant activity to be examined is the refusal of the individual employees to enter the neutral gate of the Johnson and Gorham employers. All the parties agree that the picket line established at the Design Electric gate by Local 110 was lawful primary activity; this characterization does not, however, advance the analysis of the nature and character of the activity that took place at the neutral gate. It is this activity directed at Johnson and Gorham, the neutral employers, that controls our disposition of this case. With the focus now set on the proper sphere of underlying conduct sought to be protected by the disputed contractual clauses, we may now turn to an exposition and application of the relevant legal principles to this conduct.
Analysis of the picket line clauses as interpreted by the arbitrator must begin with the well established principle that separate contractors working on a construction site are not engaged in a joint enterprise, but instead retain their independent status. In particular, on the Elk River project there were no contractual relationships at all between Johnson, Gorham and Design Electric. Each contractor was on the project under contract with the School District as a result of being the successful bidder pursuant to competitive bidding required by Minnesota law on public projects.
Simply because contractors are on a common construction site, a Union may not picket or strike a neutral contractor because the Union has a dispute with another prime contractor on the construction site. The concept of separate gates is now well established as a means of isolating the dispute to the primary contractor, thus to avoid enmeshing the neutral contractor in the dispute. With the concept of separate gates in operation, it follows that a picket line at the neutral gate is the same in law as a picket line at a totally different job site, i. e., it must be justified (or not) by whatever is going on at that job site or behind that neutral gate. By definition a neutral gate is for employees of neutral — uninvolved— employers. It follows, therefore, that a picket line on a construction site maintained at the neutral employer’s gate constitutes secondary activity and is therefore a violation of Section 8(b)(4)(B) of the Act. Picket line clauses which seek to protect such secondary activity are in violation of Section 8(e) of the Act.
Under Section 8(e) an agreement between a neutral employer and a Union that Union members can refuse to handle goods (“hot cargo”) produced by an employer whose employees are on strike is an unfair labor practice. Similarly, under Section 8(e) an agreement allowing the employees of a neutral employer to strike in support of a primary strike is also an unfair labor practice. While the triggering event in such a case is a primary strike or dispute between the struck employer and its employees, the secondary strike or refusal by the employees of the neutral employer to handle the goods is secondary activity, with the objective of causing the neutral employer to cease to do business with, or to refuse to handle the goods of, the struck employer.
A similar analysis is appropriate with respect to determining whether picket line clauses are void under Section 8(e). While the picket maintained by Local 110 at the Design gate was primary as to Design, there is no disagreement that the same picket, if stationed at the Johnson-Gorham neutral gate, would be secondary because the primary dispute was with Design. It cannot be disputed that the picket line clauses would not protect the Union members in refusing to cross a picket line maintained by Local 110 at the neutral gate.
The arbitrator, in his decision, apparently decided that Local 110 was in some manner picketing at the Johnson and Gorham gate, as well as at the Design gate. While somewhat confusing, the arbitrator appears to say the contract clauses allow the employees to determine that a picket exists at a location where in fact one does not exist (at the Johnson-Gorham gate), and then to refuse to cross that non-existent picket line. However, any picket line maintained by Local 110 at the Johnson-Gorman gate — whether deemed “factual,” “imaginary,” or otherwise — any such picket line would be a secondary picket line. The designation of a “neutral gate” is precisely to avoid a picket line being placed at such neutral gate, i. e., to say that there is no reason or legal right for any picket line to be placed here, because this gate is to be used by employees of an employer who, it is agreed, has no connection with a dispute going on elsewhere. Thus the picket line clauses as interpreted and applied by the arbitrator were clearly in violation of Section 8(e) as having authorized in advance a refusal to cross a secondary picket line.
In support of their position that the picket line clauses were interpreted to protect only lawful activity in this case, the Unions characterize the conduct of their members as “a lawful response to primary activity” and as “permissible secondary effects of lawful primary activity.” The Unions contend that “the nature of the activity giving rise to the effect is the critical point of inquiry.” That is, the Unions would have us focus on the primary activity at the Design Electric gate, activity which is admitted to have been legal by all parties to this case. Since the refusal of the employees to enter the neutral gate can be said to have had its genesis in this lawful activity, the Unions believe that the refusal to enter through the neutral gate must be accorded lawful status because it is a “response” to or an “effect” of the legal primary activity at the Design Electric gate.
The theory put forth by the Unions is both analytically unsound and contrary to national labor policy. Perhaps this is best seen by reference to the Unions’ reply brief, wherein they sum up the heart of their argument, “The relevant focus of the inquiry for purposes of Section 8(e) is the character of underlying conduct sought to be protected, rather than its net result. Where, as here, the underlying conduct is lawful primary activity, enforcement of contractual language protecting such activity through arbitration must be deemed lawful.” The fatal flaw in this argument is that, while the underlying conduct sought to be protected is claimed to be the lawful primary activity, analytically this is not accurate. It is true that the picket protection clause also includes a protection of lawful primary activity at the Design Electric gate, and this is a legitimate objective, but the picket protection clause here includes an attempted protection of conduct at the neutral gate for Johnson and Gorham employees. This is the “underlying conduct,” the conduct of the Johnson-Gorham employees at the neutral gate, which is sought to be protected here.
This is what the dispute is all about. The “underlying conduct” which is “sought to be protected” here is not the primary picket line at the Design Electric gate, but the “responses” to the “lawful primary activity,” i. e., the refusal to enter at the neutral gate. There is nothing sought by either the Unions or the employers, nothing in dispute, which will affect in any way the picket line at the Design Electric gate, or the response of Design Electric employees or other workers to that picket line at that gate. It was uncontradicted at oral argument that the underlying conduct here in dispute and sought to be protected by the picket protection clause was indeed the conduct, the response, of the individual workers at the neutral gate; otherwise, there is no purpose to this case.
This “response,” this “underlying conduct,” at the neutral gate cannot be other than secondary conduct, whether the picket line be conceived of as “imaginary” or established there by live persons. It cannot be protected by the picket clause, because secondary conduct, whether in response to legitimate primary activity or in response to illegitimate secondary activity (for example, picket line, real or imaginary), is illegal under both 8(b)(4)(B) and 8(e). The failure to limit the picket clauses to lawful responses makes them per se unfair labor practices.
A contrary decision would undermine the right of the independent contractors to remain neutral in a labor dispute in which they were not involved. Unless national labor policy is changed so as to abrogate this right, we must analyze cases such as this one with this right to remain neutral as a factor in the analysis.
The Unions also contend that the arbitrator’s interpretation of the picket line clauses is outside the reach of Section 8(e) because the clauses protect only individual refusals to cross picket lines, not union-induced refusals. In the Unions’ view, if there is no evidence of inducement, the clauses “cannot be said to sanction [secondary conduct.].” However, inducement, whether by unions or individuals, is simply not an element of a Section 8(e) violation. Section 8(e) prohibits the entering into of contract terms sanctioning a secondary boycott. This court reached this conclusion in Truck Drivers Union, Local No. 413 v. NLRB, holding that “there is no merit to the union’s suggestion that this case is outside the reach of Section 8(e) because it protects individual refusals, not union-induced refusals. We read our own cases as having rejected this argument.... ” To engraft inducement as an element of a Section 8(e) violation would resurrect Local 1976, Carpenters v. NLRB (Sand Door), the decision which Congress overruled in enacting Section 8(e) as part of the Land-rum-Griffin Amendments to the Act. In Sand Door the Supreme Court held that, while the secondary boycott provisions prohibited union inducement of employees to refuse to handle goods or perform services to force their employer to cease doing business with another employer, they did not proscribe a voluntary agreement between an employer and a union to boycott another employer. Section 8(e) was enacted to remedy this loophole in the statutory scheme by prohibiting voluntary agreements to engage in secondary boycott conduct.
In summary, the arbitrator’s interpretation of the Unions’ picket line clauses sanctions impermissible secondary conduct in ruling that the employees of the neutral contractors Johnson and Gorham could decide that a picket line existed at the neutral gate and that it was permissible for them to refuse to work. The Board properly refused to permit the Unions to do “by indirection what they can’t obtain directly, that is, achieve contractual protection for the employees when refusing to enter the premises of a neutral employer because another employer is involved in labor problems on the same jobsite.” The refusal to enter the neutral gate cannot be considered lawful activity without doing violence to the careful balance of the rights and responsibilities of unions and employees as delineated by the Supreme Court in NLRB v. Denver Bldg, and Construction Trades Council.
D. The Construction Industry Proviso
Congress exempted from Section 8(e) those agreements “between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work”. The Board found that the picket line clauses here under review were not saved from illegality by the construction industry proviso, which “as an exception to the Landrum-Griffith Act’s overriding aim to prohibit secondary boycotts is [to be] strictly construed.”
In making construction site hot cargo clauses lawful, Congress left standing the Supreme Court’s decision in NLRB v. Denver Bldg. Trades Council, which declared unlawful the picketing of a neutral employer on the construction site with the object of making the project an all-union job. Congress made clear its intention that such construction site clauses could only be enforced by lawsuits and not by strikes or other economic action.
The instant picket line clauses, as interpreted by the arbitrator, immunize employees of neutral employers from discipline or discharge for refusing to work on a construction site whenever there is a primary picket line somewhere on the site. The neutral employers will be subjected to strike (economic) pressure to seek the removal of the offending primary employer from the construction site whenever their employees adopt the course sanctioned by their collective agreement. In the Muskeg-on Bricklayers case, the Board stated:
We can see no difference in practical effect in terms of prohibited self-help between a situation where a union induces employees to strike after employer violations of a lawful “hot cargo” clause in order to remedy such breach, clearly unlawful action, and a situation where, in order to prevent such breach, the union tells the employees that if the employer should violate the “hot cargo” clause in the future the employees may cease work with impunity. The latter is the effect of Respondent’s proposed “hot cargo” clause.
While it is true that the Unions here did not expressly urge their members to strike in support of the Electrical Workers Union’s protest, the operation of the picket line clauses in conferring advance permission to Union members to refuse to work has the same effect as if the Unions had urged a strike. Thus, under the arbitrator’s interpretation, the picket line clauses look to the Unions’ members to enforce these secondary picket line clauses through economic self-help action and not to judicial enforcement, as Congress intended when it legitimized hot cargo clauses in the construction industry. Indeed, the negotiation of picket line clauses permitting employees to refuse to cross secondary picket lines with impunity contemplates, as the Sixth Circuit indicated in similar circumstances, “strike action sanctioned by the union in advance rather than at the moment of breach.”
In summary, the instant picket line clauses, which are designed to insure that union standard wages are paid by all of the multiple employer contractors on any construction project where the Unions’ members are employed, are secondary boycott provisions. In providing that employees can honor secondary picket lines without being disciplined, the clauses sanction work stoppages to enforce the Unions’ objectives. This sanctioning of economic pressure takes these clauses outside the narrow construction industry exemption and therefore the clauses violate Section 8(e) of the Act.
CONCLUSION
The Unions’ arguments in this case are based on misconceptions as to the proper analytical stance to assume when examining the undisputed facts of the ease. A properly focused analysis of the facts in this case must center on the actions of the individual Union members in refusing to enter the neutral gate on the Elk River construction site. The Board concluded, and we agree, that this action was illegal secondary conduct. Since the Unions had entered into and reaffirmed the validity of picket line clauses which were interpreted as sanctioning this impermissible secondary activity, the clauses must fall as being violative of Section 8(e) of the Act. Accordingly, the
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
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sc_respondent
|
135
|
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.
WILLIAMS et al. v. ZBARAZ et al.
No. 79-4.
Argued April 21, 1980
Decided June 30, 1980
Stewart, J., delivered the opinion of the Court, in which Burger, C. J.. and White, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, ante, p. 329. Marshall, J., ante, p. 337, Blacemun, J., ante, p. 348, and Stevens, J., ante, p. 349, filed dissenting opinions.
Victor G. Rosenblum argued the cause for appellants in No. 79-4. With him on the briefs were Dennis J. Horan, John D. Gorby, and Patrick A. Trueman. William A. Wen-zel III, Special Assistant Attorney General of Illinois, argued the cause for appellants in No. 79-5. With him on the briefs were William J. Scott, Attorney General, and James C. O’Connell and Ellen P. Brewin, Special Assistant Attorneys General. Solicitor General McCree argued the cause for the United States in No. 79-491. With him on the briefs were Assistant Attorney General Daniel and Eloise E. Davies.
Robert W. Bennett argued the cause for appellees in each case. With him on the brief were Lois J. Lipton, David Goldberger, Aviva Futorian, Robert E. Lehrer, and James D. Weill.
Together with No. 79-5, Miller, Acting Director, Department of Public Aid of Illinois, et al. v. Zbaraz et al., and No. 79-491, United States v. Zbaraz et al., also on appeal from the same court.
Briefs of amici curiae urging reversal in all cases were filed by Robert B. Hansen, Attorney General, Paid M. Tinker, Assistant Attorney General, and Lynn D. Wardle for the State of Utah; by Bronson C. La Follette, Attorney General of Wisconsin, F. Joseph Sensenbrenner, Jr., Assistant Attorney General, and William J. Brown, Attorney General of Ohio, for the States of Wisconsin et al.; by George E. Reed and Patrick F. Geary for the United States Catholic Conference; and by Daniel J. Popeo for the Washington Legal Foundation. John J. Degnan, Attorney General, Erminie L. Conley, Assistant Attorney General, and Andrea M. Silkowitz, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal in No. 79-5. James Bopp, Jr., and David D. Haynes filed a brief for the National Right to Life Committee, Inc., as amicus curiae urging reversal in No. 79-4.
Briefs of amici curiae urging affirmance in all cases were filed by Paul Bender, Thomas Harvey, and Roland Morris for Jane Roe et al.; and by Margo K. Rogers and Eve W. Paul for the Planned Parenthood Federation of America, Inc., et al.
Briefs of amici curiae in all cases were filed by Francis X. Bellotti, Attorney General of Massachusetts, Garrick F. Cole, Assistant Attorney General, John D. Ashcroft, Attorney General of Missouri, Paul L. Douglas, Attorney General of Nebraska, and William J. Brown, Attorney General of Ohio, for the Commonwealth of Massachusetts et al.; by Dorothy T. Lang for the Physicians National Housestaff Association et al.; and by Francis D. Morrissey for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology.
Mr. Justice Stewart
delivered the opinion of the Court.
This suit was brought as a class action under 42 U. S. C. i 1983 in the District Court for the Northern District of Illinois to enjoin the enforcement of an Illinois statute that prohibits state medical assistance payments for all abortions except those “necessary for the preservation of the life of the woman seeking such treatment.” The plaintiffs were two physicians who perform medically necessary abortions for indigent women, a welfare rights organization, and Jane Doe, an indigent pregnant woman who alleged that she desired an abortion that was medically necessary, but not necessary to save her life. The defendant was the Director of the Illinois Department of Public Aid, the agency charged with administering the State’s medical assistance programs. Two other physicians intervened as defendants.
The plaintiffs challenged the Illinois statute on both federal statutory and constitutional grounds. They asserted, first, that Title XIX of the Social Security Act, commonly known as the “Medicaid” Act, 42 U. S. C. § 1396 et seq. (1976 ed. and Supp. II), requires Illinois to provide coverage in its Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered. Second, the plaintiffs argued that the public funding by the State of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment.
The District Court initially held that it would abstain from considering the complaint until the state courts had construed the challenged statute. The plaintiffs appealed, and the Court of Appeals for the Seventh Circuit reversed. Zbaraz v. Quern, 572 F. 2d 582. The appellate court held that abstention was inappropriate under the circumstances, and remanded the case for further proceedings, including consideration of the plaintiffs’ motion for a preliminary injunction. On remand, the District Court certified two plaintiff classes: (1) a class of all pregnant women eligible for the Illinois medical assistance programs who desire medically necessary, but not life-preserving, abortions, and (2) a class of all Illinois physicians who perform medically necessary abortions for indigent women and who are certified to obtain reimbursement under the Illinois medical assistance programs.
Addressing the merits of the complaint, the District Court concluded that Title XIX and the regulations promulgated thereunder require a participating State under the Medicaid program to provide funding for all medically necessary abortions. According to the District Court, the so-called “Hyde Amendment” — under which Congress has prohibited the use of federal funds to reimburse the costs of certain medically necessary abortions — does not relieve a State of its independent obligation under Title XIX to provide Medicaid funding for all medically necessary abortions. Thus, the District Court permanently enjoined the enforcement of the Illinois statute insofar as it denied payments for abortions that are “medically necessary or medically indicated according to the professional medical judgment of a licensed physician in Illinois, exercised in light of all factors affecting a woman’s health.”
The Court of Appeals again reversed. Zbaraz v. Quern, 596 F. 2d 196. Reaching the same conclusion as had the Court of Appeals for the First Circuit in Preterm, Inc., v. Dukakis, 591 F. 2d 121, the court held that the Hyde Amendment “alters Title XIX in such a way as to allow states to limit funding to the categories of abortions specified in that amendment.” 596 F. 2d, at 199. It further held, however, that a participating State may not, consistent with Title XIX, withhold funding for those medically necessary abortions for which federal reimbursement is available under the Hyde Amendment. Accordingly, the case was remanded to the District Court with instructions that the permanent injunction be modified so as to require continued state funding only “for those abortions fundable under the Hyde Amendment.” Id., at 202. The Court of Appeals also directed the District Court to proceed expeditiously to resolve the constitutional questions it had not reached. The District Court was specifically directed to consider “whether the Hyde Amendment, by limiting funding for abortions to certain circumstances even if such abortions are medically necessary, violates the Fifth Amendment.” Ibid, (footnote omitted).
On the second remand, the District Court notified the Attorney General of the United States that the constitutionality of an Act of Congress had been drawn into question, and the United States intervened, pursuant to 28 U. S. C. § 2403 (a), to defend the constitutionality of the Hyde Amendment. Zbaraz v Quern, 469 F. Supp. 1212, 1215, n. 3. In view of the fact that the plaintiffs had not challenged the Hyde Amendment, but rather only the Illinois statute, the District Court expressed misgivings about the propriety of passing on the constitutionality of the federal law.. But noting that the same reasoning would apply in determining the constitutional validity of both the Illinois statute and the Hyde Amendment, the District Court observed: “Although we are not persuaded that the federal and state enactments are inseparable and would hesitate to inject into the proceeding the issue of the constitutionality of a law not directly under attack by plaintiffs, we are obviously constrained to obey the Seventh Circuit’s mandate. Therefore, while our discussion of the constitutional questions will address only the Illinois statute, the same analysis applies to the Hyde Amendment and the relief granted will encompass both laws.” Ibid.
The District Court then concluded that both the Illinois-statute and the Hyde Amendment are unconstitutional insofar as they deny funding for “medically necessary abortions prior to the point of fetal viability.” Id., at 1221. If the public funding of abortions were restricted to those covered by the Hyde Amendment, the District Court thought that the effect would “be to increase substantially maternal morbidity and mortality among indigent pregnant women.” Id., at 1220. The District Court held that the state and federal funding restrictions violate the constitutional standard of equal protection because
“a pregnant woman’s interest in her health so outweighs any possible state interest in the life of a non-viable fetus that, for a woman medically in need of an abortion, the state’s interest is not legitimate. At the point of viability, however, 'the relative weights of the respective interests involved’ shift, thereby legitimizing the state’s interests. After that point, therefore,... a state may withhold funding for medically necessary abortions that are not life-preserving, even though it funds all other. medically necessary operations.” Id., at 1221.
Accordingly, the District Court enjoined the Director of the Illinois Department of Public Aid from enforcing the Illinois statute to deny payment under the state medical assistance programs for medically necessary abortions prior to fetal viability. The District Court did not, however, enjoin any action by the United States.
The intervening-defendant physicians, the Director of the Illinois Department of Public Aid, and the United States each appealed directly to this Court, averring jurisdiction under 28 U. S. C. § 1252. This Court consolidated the appeals and postponed further consideration of the question of jurisdiction until the hearing on the merits. 444 U. S. 962.
I
The asserted basis for this Court’s jurisdiction over these appeals is 28 U. S. C. § 1252, which provides in relevant part:
“Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States... holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.”
It is quite obvious that the literal requirements of § 1252 are satisfied in the present cases, for these appeals were taken from the final judgment of a federal court declaring unconstitutional an Act of Congress — the Hyde Amendment — in a civil action to which the United States was a party by reason of its intervention pursuant to 28 U. S. C. § 2403 (a).
It is equally clear, however, that the appellees and the United States are correct in asserting that the District Court in fact lacked jurisdiction to consider the constitutionality of the Hyde Amendment, for the court acted in the absence of a case or controversy sufficient to permit an exercise of judicial power under Art. Ill of the Constitution. None of the parties to these eases ever challenged the validity of the Hyde Amendment, and the appellees could have been awarded all the relief they sought entirely on the basis of the District Court’s ruling with regard to the Illinois statute. The constitutional validity of the Hyde Amendment was interjected as an issue in these cases only by the erroneous mandate of the Court of Appeals. But, even though the District Court was simply following that mandate, the directive of the Court of Appeals could not create a case or controversy where none otherwise existed. It is clear, therefore, that the District Court exceeded its jurisdiction under Art. Ill in declaring the Hyde Amendment unconstitutional.
The question thus arises whether the District Court’s lack of jurisdiction in declaring the Hyde Amendment unconstitutional divests this Court of jurisdiction over these appeals. We think not. As the Court in McLucas v. DeChamplain, 421 U. S. 21, 31-32, observed:
“Our previous cases have recognized that this Court’s jurisdiction under § 1252 in no way depends on whether the district court had jurisdiction. On the contrary, an appeal under § 1252 brings before us, not only the constitutional question, but the whole ease, including threshold issues of subject-matter jurisdiction, and whether a three-judge court was required.” (Citations omitted.)
Thus, in the McLucas case, which involved an appeal under § 1252 from a single-judge District Court, this Court preter-mitted the question whether the single-judge District Court had had jurisdiction to enter the challenged preliminary injunction, and instead resolved the appeal on the merits. It follows from McLucas that, notwithstanding the fact that the District Court was without jurisdiction to declare the Hyde Amendment unconstitutional, this Court has jurisdiction over these appeals and thus may review the “whole case.”
II
Disposition of the merits of these appeals does not require extended discussion. Insofar as we have already concluded that the District Court lacked jurisdiction to declare the Hyde Amendment unconstitutional, that portion of its judgment must be vacated. See, e. g., United States v. Johnson, 319 U. S. 302; Muskrat v. United States, 219 U. S. 346. The remaining questions concern the Illinois statute. The ap-pellees argue that (1) Title XIX requires Illinois to provide coverage in its state Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered, and (2) the funding by Illinois of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment. Both arguments are foreclosed by our decision today in Harris v. McRae, ante, p. 279. As to the appellees’ statutory argument, we have concluded in McRae that a participating State is not obligated under Title XIX to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. As to their constitutional argument, we have concluded in McRae that the Hyde Amendment does not violate the equal protection component of the Fifth Amendment by withholding public funding for certain medically necessary abortions, while providing funding for other medically necessary health services. It follows, for the same reasons, that the comparable funding restrictions in the Illinois statute do not violate the Equal Protection Clause of the Fourteenth Amendment.
Accordingly, the judgment of the District Court is vacated, and the cases are remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
[For dissenting opinion of Mr. Justice Brennan, see ante, p. 329.]
[For dissenting opinion of Mr. Justice Marshall, see ante, p. 337.]
[For dissenting opinion' of Mr. Justice Blackmun, see ante, p. 348.]
[For dissenting opinion of Mr. Justice Stevens, see ante, p. 349.]
The statute is codified as Ill. Rev. Stat., ch. 23 (1979). It provides in relevant part:
Ҥ 5-5. [Medical services.] The Illinois Department, by rule, shall determine the quantity and quality of the medical assistance for which payment will be authorized, and the medical services to be provided, which may include all or part of the following: [listing 16 categories of medical services], but not including abortions, or induced miscarriages or premature births, unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment...
"§ 6-1. Eligibility requirements.... Nothing in this Article shall be construed to permit the granting of financial aid where the purpose of such aid is to obtain an abortion, induced miscarriage or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment....”
Ҥ 7-1. Eligibility requirements. Aid in meeting the costs of necessary medical, dental, hospital, boarding or nursing care, or burial shall be given under this Article [to eligible persons], except where such aid is for the purpose of obtaining an abortion, induced miscarriage nr induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment...
The medical assistance programs at issue here are the Illinois Medicaid plan, which is jointly funded by the Federal Government and the State of Illinois, and two fully state-funded programs, the Illinois General Assistance and Local Aid to Medically Indigent Programs.
All opinions of the District Court other than that now under review are unreported.
Since September 1976, Congress has prohibited — by means of the “Hyde Amendment” to the annual appropriations for the Department of Health, Education, and Welfare (now divided into the Department of Health and Human Services and the Department of Education) — the use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances. The current version of the Hyde Amendment, applicable for fiscal year 1980, provides:
“[N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service.” Pub. L. 96-123, § 109, 93 Stat. 926.
See also Pub. L. 96-86, § 118, 93 Stat. 662. This version of the Hyde Amendment is broader than that applicable for fiscal year 1977, which did not include the “rape or incest” exception, Pub. L. 94-439, § 209, 90 Stat. 1434, but narrower than that applicable for most of fiscal year 1978 and all of fiscal year 1979, which had an additional exception for “instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians,’' Pub. L. 95-205, §101, 91 Stat. 1460; Pub. L. 95-480, § 210, 92 Stat. 1586. In this opinion, the term “Hyde Amendment” is used generically to refer to all three versions, except where indicated otherwise.
Neither the Director of the Illinois Department of Public Aid nor the intervening-physicians sought review of the judgment of the Court of Appeals. The District Court in the proceedings now on appeal proceeded on the premise that Title XIX obligates Illinois to fund all abortions reimbursable under the Hyde Amendment. That issue, therefore, is not before us on these appeals.
Although the medical assistance programs funded exclusively by the State are not governed directly by either Title XIX or the Hyde Amendment, the Court of Appeals concluded that the modified injunction requiring state payments for abortions fundable under the Hyde Amendment should apply to all three Illinois medical assistance programs, see n. 2, supra. 596 F. 2d, at 202-203. Relying on a statement in the State’s brief, the Court of Appeals held that the challenged Illinois statute was intended to represent the State’s understanding of the congressional purpose reflected in the original Hyde Amendment. Id., at 203. The Court of Appeals thus declined to sever the various funding restrictions in the Illinois statute.
Section 2403 (a) provides:
“In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.”
The District Court refused to stay its order, and the Director of the Illinois Department of Public Aid and the intervening-defendant physicians moved in this Court for a stay pending appeal. That motion was denied. 442 L’. S. 1309 (Stevens, J., in chambers). A reapplication by the intervening-defendant physicians also was denied. 442 U. S. 915.
Title XIX does not prohibit “[a] participating State... [from] including] in its Medicaid plan those medically necessary abortions for which federal reimbursement is unavailable [under the Hyde Amendment].” Harris v. McRae, ante, at 311, n. 16.
Although this Court need not pass on the remainder of the judgment in a case in which an appeal under § 1252 is taken from a court that lacked jurisdiction to declare a federal statute unconstitutional, see FHA v. The Darlington, Inc., 352 U. S. 977, we are empowered to do so because “an appeal under § 1252 brings before us, not only the constitutional question, but the whole case.” McLucas v. DeChamplain, 421 U. S., at 31. Here, there is no reason not to resolve the “whole case” on the merits. The remainder of the case that is properly before this Court, and which clearly involves a justiciable controversy, includes both the appellees’ federal statutory and constitutional challenges to the Illinois statute.
This case was decided by the District Court under the version of the Hyde Amendment applicable during fiscal year 1979, and Congress has since narrowed the ambit of the Hyde Amendment for fiscal year 1980, see n. 4, supra. The recent statutory revision does not, however, affect the outcome of either issue now before the Court. The statutory issue is not affected, because we today conclude in Harris v. McRae, ante, at 306-311, that Title XIX does not require a participating State to fund those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment, including the version of the Hyde Amendment applicable for fiscal year 1980. The constitutional issue is not affected, because, regardless of whether the State of Illinois is obligated to fund all abortions for which federal reimbursement is available under the Hyde Amendment, we conclude in Harris v. McRae that even the most restrictive version of the Hyde Amendment — which is similar to the Illinois statute at issue here — does not violate the equal protection standard of the Constitution. Since the outcome of these issues is not affected by the recent changes in the Hyde Amendment, we need
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_typeiss
|
B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Alexander McDONALD, Libelant-Appellant, v. UNITED STATES of America, Respondent-Appellee, and Bethlehem Steel Company, Impleaded Respondent-Appellee.
No. 14086.
United States Court of Appeals Third Circuit.
Argued Feb. 5, 1963.
Decided Aug. 1, 1963.
Seymour Margulies, Jersey City, N. J. (Herbert Winokur, Levy, Lemken & Margulies, Jersey City, N. J., on the brief), for libelant-appellant.
M. E. DeOrehis, New York City (Connell & Corridon, Jersey City, N. J., Haight, Gardner, Poor & Havens, Stephen K. Carr, New York City, on the brief), for respondent-appellee.
John F. Lynch, Jersey City, N. J. (O’Mara, Schumann, Davis & Lynch, James Dorment, Jr., Jersey City, N. J., on the brief), for impleaded respondent-appellee, Bethlehem Steel Co.
Before KALODNER, STALEY and SMITH, Circuit Judges.
WILLIAM F. SMITH, Circuit Judge.
This suit in admiralty for personal injuries was brought against the United States of America under the Public-Vessels Act, 46 U.S.C.A. §§ 781-790, and against the American Export Lines under 28 U.S.C.A. § 1333(1). The alleged grounds of liability were breach of warranty of seaworthiness, and negligence. The suit against Export Lines was dismissed before answer filed, on consent of the libelant. The remaining respondent impleaded the Bethlehem Steel Company, the libelant’s employer. The present appeal is from a final decree dismissing the. libel and the impleading petition.
The libelant, an employee of Bethlehem Steel, was injured on April 1, 1959, while, employed as a painter on the S.S. Exochorda. This vessel was formerly owned by Export Lines and had been out of service for approximately one-year. It was acquired by the United States on March 16, 1959, under a contract, pursuant to the terms of which Export Lines, as General Agent, was required to have the vessel completely overhauled, put in a state of repair, and deactivated, preparatory to its being-placed in the reserve fleet, commonly known as the “moth ball” fleet. This, extensive work was to be done in accordance with NSA Order No. 64 (OPR-4Revised) and specifications prepared by-Export Lines. The contract for the work, was awarded to Bethlehem Steel,
The vessel was towed to the shipyard’ of Bethlehem Steel without steam or-power, and without a crew. It was delivered at the shipyard on March 16, and' on the following day was placed in dry-dock, where it remained until March 20, when it was refloated and moored at. pier side, where it remained until shortly - after noon on April 1, the date of the-accident. The work on the vessel was.. performed during the period from March. 17 until April 1, inclusive, during which time the vessel was in the exclusive;possession and control of Bethlehem Steel.
While the work was in progress there were several crew members, employed by Export Lines, on board from day to day, but their only responsibility was to inspect the work and to see that it was performed in accordance with the specifications; they exercised no control over the work or the manner of its performance. Export Lines also maintained an hourly security watch to protect the gear and equipment of the vessel against pilferage.
The accident occurred approximately four to five hours before the S.S. Exochorda was to be redelivered to Export Lines. The necessary repairs were near completion and the vessel had been completely deactivated. The trial judge found: “ * * * the vessel’s stern tube was disconnected and filled with preservative; her tail shaft was secured to prevent the turning of the propeller; her sea chests and all underwater overboard discharge lines were permanently blocked off; one shot of chain was disconnected from both the port and starboard anchor chains; the shaft alley drain well was cleaned out; the ship’s gangways were stowed in a lower hold; life boats were removed and stowed in a lower hold; the radar scanner was dismantled, and all storage lockers were permanently sealed off.” These findings are amply supported by the evidence.
It was on the basis of the facts herein-above outlined that the trial judge con•cluded that the S.S. Exochorda had been deactivated and withdrawn from navigation and that under the circumstances there was no implied warranty of seaworthiness. It is argued on behalf of the libelant that this conclusion was •erroneous. The argument is without .merit.
Claim Based on Warranty op Seaworthiness
We recognize at the outset, as we must, that under the implied warranty of seaworthiness the shipowner is under a duty to maintain the vessel, its gear and appurtenances, reasonably safe and suitable for the purposes intended. This duty, which is absolute and nondelegable, is owed not only to the members of the crew but also to the shore based employees of an independent contractor engaged aboard ship in work customarily performed by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). However, it has been authoritatively settled, if it was ever in doubt, that the implied warranty may not be invoked as a basis of liability where the vessel has been withdrawn from navigation and is undergoing extensive renovation and repairs. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); Latus v. United States, 277 F.2d 264 (2d Cir., 1960), cert. den. 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960). It has been held that in these circumstances there is no warranty of seaworthiness. Ibid.
It is argued on behalf of the libelant that the cited cases are distinguishable because of their “converse fact situation [s].” The vessels involved in each of the cited cases had been withdrawn from the “moth ball” fleet and, at the time of the accidents in which the workmen were injured, were undergoing extensive repairs preparatory to their reactivation and return to maritime service. We fail to perceive any validity in this attempted distinction. The rule of the WEST case was applied in Noel v. Isbrandtsen Company, 287 F.2d 783 (4th Cir., 1961), cert. den. 366 U.S. 975, 81 S.Ct. 1944, 6 L.Ed.2d 1264 (1961), a case in which a workman sustained injury while the vessel was undergoing repairs and deactivation, as in the present case. The libelant’s argument, and the reasons advanced in support of it, are clearly without merit.
We should emphasize that the decision of the Supreme Court in the WEST case was predicated not only on the fact that the vessel had been withdrawn from maritime service but also on the further fact that it was “undergoing major repairs and complete renovation” at the time the workman sustained injury. Therein the Court stated, 361 U.S. at page 122, 80 S.Ct. at page 192, 4 L.Ed.2d 161: “This undertaking was not ‘ship’s work’ but a complete overhaul of such nature, magnitude, and importance as to require the vessel to be turned over to a ship repair contractor and docked at its pier for the sole purpose of making her seaworthy. It would be an unfair contradiction to say that the owner held the vessel out as seaworthy in such a case.” The rule of the case must be applied where, as here, the vessel has been withdrawn from maritime service and is undergoing extensive overhaul and repair preparatory to its deactivation. Noel v. Isbrandtsen Company, supra.
The shipowner’s liability under the warranty of seaworthiness is dependent upon not only the specific task being performed by the workman at the time of injury but also the nature and scope of the work in which he and other shore based employee’s are engaged. West v. United States, supra; United N. Y. & N. J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952); Berryhill v. Pacific Far East Line, 238 F.2d 385 (9th Cir., 1956), cert. den. 354 U.S. 938, 77 S.Ct. 1400, 1 L.Ed.2d 1537; Raidy v. United States, D.C., 153 F.Supp. 777, affd. 252 F.2d 117 (4th Cir., 1958), cert. den. 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958). See also Latus v. United States, supra. The warranty of seaworthiness does not extend to a shore based employee who, at the time of injury, was engaged with others in the general overhaul and renovation of a vessel temporarily withdrawn from maritime service. Such work is customarily performed in a shipyard equipped for the purpose, and is not work traditionally performed by seamen. Ibid.
Claim Based on Negligence
The libelant charges that the respondent was negligent in that it failed to exercise reasonable care to furnish him with a safe place to work. The trial judge concluded, on findings of fact supported by substantial evidence, that the respondent owed no duty to the libelant. This conclusion is challenged as erroneous.
The accident occurred on the morning of April 1, shortly after 7:30 A.M., while the S.S. Exochorda was still in the possession and control of Bethlehem Steel. The libelant and another workman, accompanied by their foreman, descended from the main deck to the ’tween deck, where they made an inspection of painting work which had been completed in the laundry on the previous day. Then, intending to return to the main deck by way of a ladder located in a cargo hold, they walked along a lighted passageway into the hold, which was in semidarkness, the portable lights having been removed the previous day. As the libelant proceeded across a hatch cover, he fell through an opening which had been created by the removal of two boards. There was some conflict in the testimony as to who had removed the boards. However, the trial judge found that the boards had been removed during the night prior to the accident by employees of Bethlehem Steel on the orders of a job supervisor.
The shipowner in possession and control owes a duty of reasonable care to workmen who come aboard the vessel to make repairs. The duty is to exercise reasonable care to furnish the workmen with a safe place to work. Mesle v. Kea Steamship Corporation, 260 F.2d 747 (3rd Cir., 1958), cert. den. 359 U.S. 966, 79 S.Ct. 875, 3 L.Ed.2d 834 (1959); Brabazon v. Belships Co., 202 F.2d 904 (3rd Cir., 1953). However, the test of the shipowner’s responsibility is possession and control. Where, as here, possession and control of the vessel are relinquished to an independent contractor, the shipowner owes no duty to the contractor’s employees. West v. United States, and Latus v. United States, supra. It was said by the Supreme Court in the WEST case, 361 U.S. at page 123, 80 S.Ct. at page 193, 4 L.Ed.2d 161: “It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe.”
The libelant argues that possession and control of the S.S. Exochorda was retained by the respondent. The trial court found otherwise, and this finding, supported as it was by substantial evidence, cannot be held “clearly erroneous” under the rule of McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954). The libelant’s argument rests on a rather tenuous factual basis which does not warrant discussion.
Exclusion of Deposition
At the conclusion of the respondent’s case the libelant offered in evidence, by way of rebuttal, portions of a deposition. This deposition was that of a mate employed aboard the S.S. Exochorda while the work of renovation and deactivation was in progress. The offer of proof was rejected, and thereupon the libelant withdrew the deposition and did not make it a part of the record. It has been established that under these circumstances we are not required to consider the assignment of error predicated on the exclusion of the deposition. Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 87 L.Ed. 645 (1943). We have nevertheless considered the question raised on the merits.
The mate was in attendance throughout the trial but was not called as a witness by either party. However, the libelant argues that the deposition was that of a “managing agent,” and was therefore admissible under Rule 30A(d) (2) of the Rules of Practice in Admiralty and Maritime Cases, as amended, 28 U.S.C.A. We do not agree. The mate was not per se a “managing agent” within the meaning of the rule. The admission of his deposition would have been error. Naylor v. Isthmian S.S. Co., 187 F.2d 538, 540 (2d Cir., 1951); see also Santiago v. American Export Lines, Inc., 30 F.R.D. 372 (S.D.N.Y.1962). It appears from the undisputed testimony in the record that the position of the mate was that of an inferior officer who had no supervisory authority and acted under the supervision and direction of his superior, a port engineer in the employ of Export Lines. It is clear that under these circumstances it cannot be held that the mate was a “managing agent.” Ibid.
The judgment of the District Court will be affirmed.
. 32(a) C.F.R. 317, et seq. (1958 Revision).
. Ibid.
. Work in the hold had been completed on. March 31, and after its completion the portable lights were removed and the main hatch was covered by the employees of Bethlehem Steel.
. The brief of the appellant incorrectly cites as authority the Federal Rules of Civil Procedure.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_r_fed
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
HOUSEHOLD GOODS FORWARDERS TARIFF BUREAU, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
No. 91-1350.
United States Court of Appeals, District of Columbia Circuit.
Argued April 23, 1992.
Decided June 30, 1992.
Alan F. Wohlstetter, with whom Stanley I. Goldman was on the brief, for petitioner.
Michael L. Martin, Atty., I.C.C., with whom James F. Rill, Asst. Atty. Gen., Robert B. Nicholson, John P. Fonte, and John C. Filippini, Attys., Dept, of Justice, and Robert S. Burk, General Counsel and Craig M. Keats, Associate General Counsel, I.C.C., were on the brief, for respondents. Ellen D. Hanson, Atty., I.C.C., also entered an appearance, for respondents.
Before RUTH BADER GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
The Household Goods Forwarders Tariff Bureau (HGFTB) appeals the decision of the Interstate Commerce Commission (ICC or Commission) to revoke its antitrust immunity. Because the Commission applied the correct standard in evaluating the need for an antitrust exemption and because the Commission adequately articulated its reasons for revoking the immunity, we deny HGFTB’s petition for review.
I.
The Household Goods Forwarders Tariff Bureau (HGFTB) is a rate bureau for household goods freight forwarders. A domestic freight forwarder is a common carrier that assembles and consolidates smaller shipments at origin, sorts them for delivery at destination and arranges for a motor or rail carrier to perform the line-haul transportation between the assembly and distribution points. 49 U.S.C. § 10102(9). The forwarder “assumes responsibility for the transportation from the place of receipt to the place of destination.” Id. This case concerns “household goods” (HHG) freight forwarders. HHG freight forwarders handle used household goods, unaccompanied baggage and used automobiles. Id. § 10102(12).
As common carriers subject to the ICC’s jurisdiction, HHG freight forwarders must file tariffs with the ICC setting forth their rates and charges. During the nineteen year period preceding the Commission action leading to this appeal, i.e. from 1972-1991, the rates for HHG freight forwarders were set collectively by HGFTB. HGFTB was exempted from the antitrust laws for this purpose. See Household Goods Forwarders Tariff Bureau-Agreement, Section 5a Application No. 106 (ICC Apr. 25, 1972) (1972 Decision).
Another transporter is the “household goods motor carrier.” An HHG motor carrier transports HHGs from place to place. HHG motor carriers have their own authorized rate bureau, the Household Goods Carriers’ Bureau (HGCB), which collectively sets rates. HHG freight forwarders, in conducting their business, utilize the services of HHG motor carriers. The cost of motor carrier service is a major component of HHG forwarder rates. See Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 at 6 (ICC June 5, 1991) (1991 Decision).
The controversy in this case involves the legislative and regulatory history of common carrier antitrust exemptions. In the 1940s, Congress passed the Reed-Bulwinkle Act, Pub.L. No. 80-662, 62 Stat. 472 (1948) (current version at 49 U.S.C. § 10706), which gave the ICC the authority to grant antitrust immunity to common carriers’ collective ratemaking to the extent the Commission determined such arrangements to be in the public interest. According to the Act, in order to receive antitrust immunity, a group of carriers must submit its collective ratemaking agreement to the Commission for approval and must demonstrate that the agreement will further the national transportation policy (NTP). 49 U.S.C. § 10706(a)(2)(A).
As part of its deregulation trend, however, Congress has directly limited the ability of many types of carriers to engage in collective conduct. See generally Central & S. Motor Freight Tariff Ass ’n v. United States, 757 F.2d 301, 309-12 (D.C.Cir.), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985). The Motor Carrier Act of 1980, Pub.L. No. 96-296, 94 Stat. 793 (codified in scattered sections of 49 U.S.C.) (MCA 80), limited the degree to which HHG motor carriers could engage in collective ratemaking. Under the MCA 80, HHG motor carriers may no longer engage in most activities involving collective rate-making for single-line transportation. See 49 U.S.C. § 10706(b)(3)(D). Pertinent exceptions to this prohibition allow the HGCB to consider general rate increases and decreases as well as changes in commodity classifications and tariff structures. See id. § 10706(b)(3)(D)(i)-(iv). In addition, the legislation includes a presumption that any motor carrier rate bureau agreement falling within these exceptions will be granted antitrust immunity, unless the Commission finds that the agreement is inconsistent with the NTP. Id. § 10706(b)(2).
At the request of the freight forwarder industry, Congress passed the Surface Freight Forwarder Deregulation Act of 1986 (SFFDA), Pub.L. No. 99-521,100 Stat. 2993 (codified in scattered sections of 49 U.S.C.), which withdrew antitrust immunity for freight forwarders of general commodities. However, Congress acceded to the request of the HHG freight forwarders that their antitrust immunity remain intact. Because the antitrust immunity for HHG freight forwarders was unaltered by the 1986 legislation, they remain subject to the original prerequisite that they demonstrate that their agreements will further the NTP before they can receive antitrust immunity. See 49 U.S.C. § 10706(c).
Meanwhile, in January 1978, the Commission issued a decision reopening all previously approved non-rail collective ratemak-ing agreements to reevaluate whether those agreements continued to merit antitrust exemption. Reopening of Section 5a Application Proceedings to Take Additional Evidence, Ex Parte No. 297 (Sub-No. 4) (ICC Jan. 26, 1978) (Reopening Decision). Twelve years later, after reviewing the application submitted by the HHG freight forwarders in response to the Reopening Decision, the Commission issued a decision calling into question the HHG forwarders’ antitrust immunity. Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 (ICC Nov. 28, 1989) (1989 Decision). In conformance with a three-part test set forth in the Reopening Decision, the 1989 Decision directed HGFTB to establish (1) that its agreements would further the NTP and (2) that either (a) its agreements would not have anticom-petitive effects, or (b) if anti-competitive effects were found, the benefits to the public interest would outweigh those effects. Id. at 2; Reopening Decision at 3. The Commission proposed to apply the test using the standards it applied to HGCB agreements under MCA 80. The Commission explained:
Thus, in addition to the provisions of 49 U.S.C. 10706(b)(3)(D), generally prohibiting the voting on and discussion of single-line rates, we propose to examine the agreement with a view to, for example, protecting the right of independent action and guaranteeing that meetings and procedures be open and fair (see 49 U.S.C. 10706(b)(3)(B)(ii) and 49 U.S.C. 10706(b)(3)(B)(iv)-(vii)).
1989 Decision at 2-3. Although the Commission acknowledged that it was not required by statute to apply the additional standards to HHG forwarders, the Commission expressed the belief that because “freight forwarders exhibit many characteristics of motor carriers, ... the goals of the NTP, particularly those favoring increased competition, support application of comparable conditions and prohibitions.” Id. at 2.
HGFTB, in response, emphasized that it did not seek the blanket antitrust immunity conferred in 1972. Rather, the Bureau simply sought immunity for the same types of collective activity engaged in, with MCA 80 permission, by the HHG motor carriers. 1991 Decision at 3-4. HGFTB claimed that this protection was necessary to enable HHG freight forwarders to compete on a fair basis with HHG motor carriers. Id. HGFTB also claimed that allowing it to retain its antitrust immunity would further the NTP. Id. at 4.
In a 3-2 decision, the ICC concluded that HGFTB failed to meet its burden of establishing that its agreement would further the goals of the NTP. Id. at 6-7. The Commission therefore revoked the Bureau’s antitrust immunity. Id. at 7. The Commission found that HGFTB had not provided concrete evidence as to why its members required collective action to remain competitive, had failed to show that its collective activities would not be anti-competitive and had not demonstrated that the anticompetitive aspects of its collective activities would be outweighed by public benefits. Id. at 6-7. In arriving at its conclusions, the Commission relied on comments submitted by the Department of Defense (DOD) describing DOD’s experience employing HHG freight forwarders unaffiliated with the Tariff Bureau. The Commission reasoned that DOD’s experience showed that HHG freight forwarders can thrive without antitrust immunity. Id. at 6.
II.
HGFTB claims that the Commission’s decision to revoke its antitrust immunity was arbitrary and capricious in several respects. The Bureau first claims that because the Commission had previously granted it immunity and because the law has not changed since that time, there was no basis for the Commission’s reversal. It is undisputed that although the codification of the relevant statutes has changed over time, the substantive law concerning antitrust exemptions for HHG freight forwarders has not changed since HGFTB’s antitrust exemption was granted twenty years ago. The unchanged nature of the law, however, does not prohibit the Commission from reexamining whether an antitrust exemption continues to be justified. An agency may change its position as long as it provides a reasoned basis for its decision. See National Classification Comm. v. United States, 779 F.2d 687, 696 (D.C.Cir.1985). In this case, the Commission’s decision is well supported. The Commission adequately explained why HGFTB’s arguments failed to establish that the HHG freight forwarders’ agreement would further the goals of the NTP and why the agreement’s anticompetitive effects were not outweighed by benefits to the public.
HGFTB next claims that the test applied by the ICC is itself arbitrary and capricious. HGFTB claims that the Commission relied on these factors in revoking the exemption: (1) “no single-line collective activity would be approved for the HGFTB,” 1991 Decision at 2; (2) “household goods forwarder costs, dominated by the cost of underlying motor carrier transportation, is (sic) almost entirely variable in nature,” id. at 6; and (3) rate bureau rates are collectively set and are therefore anticompeti-tive, id. The Bureau claims that this test is arbitrary and capricious because it can never be met by an HHG forwarder. This argument misconstrues the nature of the ICC inquiry. As was noted above, the test applied by the Commission sought to determine whether HGFTB’s collective activities would further the NTP and whether these activities were either competitive or otherwise justifiable. Thus, rather than constituting the test itself, the three factors described earlier in this paragraph represent either non-decisional factors or the Corn-mission’s conclusions as to why HGFTB failed to meet the test’s requirements.
Looking at HGFTB’s objections separately, we note that although the Commission’s 1989 Decision stated that “no single-line collective activity would be approved for the HGFTB,” its 1991 Decision indicates that the Commission seriously considered HGFTB’s assertion that its limited activities should fall within an exception to the prohibition against single-line collective ratemaking. 1991 Decision at 2-3. The fact that HHG forwarders use only single-line rates was therefore not dispositive. The Commission’s decision to rescind HGFTB’s antitrust immunity was based instead on its conclusion that the Bureau’s collective activity did not “enhance the goals of the NTP”. 1991 Decision at 6.
HGFTB also complains that it was arbitrary and capricious for the Commission to deny it antitrust immunity on the ground that HHG forwarder costs are variable. It reasons that because HHG freight forwarder costs are in fact largely variable, the Bureau can never meet this aspect of the test. As was noted above, the Bureau confuses the ICC’s test with its particular application. The test requirement that the collective activity further the NTP can be met. The fact that HHG forwarder costs are largely variable led the Commission to the reasonable conclusion that destructive competition would be unlikely among household goods forwarders in the absence of antitrust immunity, and thus immunity would not further the NTP in that respect. 1991 Decision at 6-7.
In addition, the Commission’s finding that HGFTB’s collective activity is inherently anticompetitive does not automatically foreclose the possibility of an exemption. HGFTB was entitled to demonstrate that the public benefits of its anticompetitive activity justified an exemption. It failed to make this showing.
Finally, HGFTB claims that because the Commission applied the motor carrier standard in determining whether an antitrust exemption was warranted, it should have applied the motor carriers’ statutory presumption as well. This argument is without merit. The statute granting the Commission the authority to decide whether to shelter HHG forwarders’ collective action from the reach of antitrust laws allows the Commission to exercise its discretion in deciding whether an agreement furthers the NTP. See 49 U.S.C. § 10706(c). Thus, the Commission may properly choose to apply to HHG forwarders the same standard that Congress mandated it apply to motor carriers. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This is not true with respect to the burden the statute places on the Bureau. The law grants motor carriers a favorable presumption in that, if their agreement meets certain criteria and is not inconsistent with the NTP, an exemption will be granted. On the other hand, section 10706(c) commands that an exemption be granted to HHG forwarders only upon an affirmative showing that the HHG forwarders’ agreement will further the NTP. We therefore conclude that the Commission correctly refused to apply the motor carriers’ presumption to the proposed HGFTB agreement.
III.
For the foregoing reasons, the petition for review is
Denied.
. The NTP is defined at 49 U.S.C. § 10101(a).
. Single line rates are rates that involve only one carrier. 49 U.S.C. § 10706(a)(1)(B), (b)(1).
. Apparently, the Reopening proceeding was held in abeyance pending the disposition of several relevant legislative proposals.
. Specifically, HGFTB wants to be able to consider general rate increases and decreases, changes in commodity classifications and tariff structures.
In addition to these collective activities, MCA 80 allows the HGCB to publish member rates and perform other support services. HGFTB also wants to perform these support functions. The ICC, however, maintains that these types of support activities may be legally performed by the Bureau without an antitrust exemption. See 1991 Decision at 5.
. Although HHG forwarders utilize the services of motor carriers, because consumers may choose to transport their goods solely by motor carrier or to employ the full services of a forwarder, the two can be in some instances competitors.
. These reasons included the fact that when the Department of Defense refused to accept collectively set rates from freight forwarders, it reported a decrease in rates and an increase in efficiency. This evidence is sufficient to justify the agency's action. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)) (agency’s conclusions will be upheld if supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion").
. HGFTB argues that because Congress specifically allowed the HHG freight forwarders to keep their exemption when it enacted the SFFDA, the Commission must grant them an exemption. This misreads the SFFDA, in which Congress merely agreed to refrain from directly eliminating the exemption by statute.
HGFTB also argues that the Commission violated section 558(c) of the APA, 5 U.S.C. § 558(c), which conditions an agency’s power to revoke a license, by revoking the exemption "on the basis of new criteria under which it is impossible for any forwarder rate bureau to be approved” and failing to "apply the motor carrier standard which it announced would govern the HGFTB agreement.” HGFTB Brief at 43. This argument is without merit because, as we noted above, the Commission did not apply impossible criteria but did permissibly apply the motor carrier standard while refusing to apply the motor carrier presumption.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_dueproc
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of the requirements of due process by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
FERRIS et al. v. WILBUR, Secretary of the Navy, et al.
Circuit Court of Appeals, Fourth Circuit.
June 15, 1928.
No. 2692.
1. Injunction <@=>129(2) — Suit to enjoin storage of explosives held properly dismissed as to contractor employed only to construct depot roads.
Property owners’ suit against Secretary of the Navy and others to enjoin contemplated storage of large quantities of high explosives in the neighborhood of plaintiffs’ property held properly dismissed on the merits as to one employed only to construct roads in the development of the storage depot.
2. Injunction <@=>129(2) — Suit to enjoin storage of explosives held properly dismissed as to Secretary of the Navy, not served, nor resident of district, nor voluntarily appearing.
Property owners’ suit against Secretary of Navy and others to enjoin, contemplated storage of large quantities of high explosives in the neighborhood of plaintiffs’ property held properly dismissed as to Secretary of the Navy, not a resident of the district, nor served,, nor voluntarily appearing.
3. United States <@=>125(2) — Suit to enjoin storage of explosives held properly dismissed as one against United States to enjoin as nuisance exercise of discretion reposed in executive (Const. Amend. 5, and art. I, § 8, els. 12, 13, 17; Act July I, 1918 [40 Stat. 722]; President’s Proclamation Aug. 7, 1948; Act Feb. 28, 1927 [44 Stat. 1253]).
Suit against Secretary of the Navy and others to enjoin maintenance of depot for storing large quantities of high explosives in neighborhood of plaintiffs’ property as a taking of property without due process, in violation of Const. Amend. 5, held properly dismissed as to naval officer in charge, not because the Secretary of the Navy, his superior, was not a party, but because the suit was in effect against the United States and to restrain as a nuisance the exercise of a discretion reposed in the executive by Const, art. 1, § 8, els. 12, 13, 17, Act July 1, 1918 (40 Stat. 722), President’s Proclamation Aug. 7, 1918 (40 Stat. 1827), and Act Feb. 28, 1927 (44 Stat. 1253).
4. United States <@=>135 — United States is necessary party to suit to enjoin maintenance of naval mine depot.
United States is a necessary party to a suit to enjoin the maintenance of a naval mine depot pursuant to act of Congress.
5. Injunction <@=>75 — Injunction will not lie against executive official to restrain use of government property authorized by Congress and within discretion of executive.
Suit for injunction will not lie against an official of the executive department to restrain as a nuisance the use of government property authorized by Congress and within the discretion of the executive.
6. Constitutional law <@=>82 — Congress and executive, in exercise of rights, must have regard for rights of private persons.
Congress, in exercising the powers vested in it by the Constitution, and the executive, in exercising discretion reposed by Congress, must have regard for the rights of private persons protected by the Constitution.
7. Constitutional law <@=>278(1) — Eminent domain <@=>69 — Private property cannot be taken without just compensation or due process of law.
Private property cannot be taken for public use without just compensation, nor can persons be deprived of property without due process of law.
8. Nuisance <@=>6 — Action authorized by valid legislative authority will not be enjoined as nuisance.
Courts will not enjoin as a nuisance an action authorized by valid legislative authority.
Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.
Suit by Howard Ferris, trustee, and others, against Curtis D. Wilbur, Secretary of the Navy, and others. From a decree of dismissal, plaintiffs appeal.
Affirmed.
Allan D. Jones, of Newport News, Va., for appellants.
Luther B. Way, Sp. Asst. U. S. Atty., of Norfolk, Va. (Paul W. Hear, U. S. Atty., of Norfolk, Va., on the brief), for appellees.
Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a decree denying an interlocutory injunction and dismissing the bill of complaint in a suit instituted by persons owning property near the United States naval mine depot in York county, Virginia, to enjoin the Secretary of the Navy and the naval officer in charge of the depot from storing high explosives within the area acquired by the government for that purpose. The bill alleged that large quantities of high explosives were being stored within the area, that it was planned to store there even larger quantities in the future, that the storage of such explosives was and would continue to he a constant source of danger to lives and property for miles around, and that such storage so depreciated the value of the property of complainants as to constitute a taking thereof without due process of law in violation of the Fifth Amendment to the Constitution. One Johnston was joined as a defendant under an allegation that he had been awarded a contract to construct roads in the development of the depot. As to him the bill was dismissed on the merits. As to the Secretary of the Navy it was dismissed because he was not a resident of the district and had not appeared or been served with process. As to defendant Miles, the naval officer in charge of the depot, it was dismissed on the ground that- the Secretary was a necessary party to the suit, as Miles was alleged to be acting under his orders.
In so far as the order dismissed the suit as to the contractor and the Secretary of the Navy, it was so obviously proper as not to merit discussion. We think, also, that it was proper to dismiss the suit as to the defendant Miles, not because the Secretary of the Navy was not made a party, but because it was in effect a suit against the United States and sought to restrain as a nuisance the exercise of a discretion reposed in the executive by a valid act of Congress.
In accordance with the purpose expressed in the Constitution “to provide for the common defense,” Congress is vested with the power to raise and support armies and to provide and maintain a navy and is authorized “to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” Constitution art. 1, § 8, els. 12, 13, and 17. Acting under these constitutional provisions, Congress by the Act of July 1, 1918, appropriated the sum of $3,000,000 for the erection and equipment of a depot for the storage of high explosives and the loading of mines on a site to be acquired by the President. 40 Stat. 722. On August 7, 1918, the President issued a proclamation designating a tract of 11,433 acres near Yorktown, Va., which is the area here involved, as the navy mine depot authorized by the act. 40 Stat. 1827. Title to this tract was acquired by the United States with the consent of the Legislature of Virginia (Acts of the General Assembly of Virginia of 1918, e. 382, p. 568), and the naval mine depot was established and large quantities of high explosives were stored upon it. Later by Act Feb. 28, 1927, Congress appropriated the sum of $580,000 for additional storage and incidental improvements at this naval mine depot. 44 Stat. pt. 2, p. 1253. There can be no doubt, therefore, that the title to the land upon which the naval mine depot is situate is held by the United States, that it was purchased by the consent of the Legislature of Virginia in accordance with the constitutional requirement, that exclusive legislative power over the land acquired is vested in Congress, that Congress has expressly authorized that it be used for the storage of high explosives, and that the discretion to determine what explosives shall be stored there and how they shall be stored has been vested in the executive.
Now defendant Miles, in storing and preparing to store explosives on the Naval Mine Depot, is admittedly acting under the direction of the Secretary of the Navy, who represents the President. In suing to restrain him, therefore, complainants are suing the authorized representative of the government, and are asking that he be restrained from carrying out on government property a policy determined upon by the Executive Department in the exercise of a discretion reposed in it by Congress. It is manifestly, then, not a suit to restrain unauthorized action by a government official, or action based upon an unconstitutional statute, but a suit to restrain action in which the official is exercising valid governmental authority by virtue of his office. There can be no doubt that such a suit is in essence a suit against the United States, and that the United States is a necessary party thereto. And, as it has. not consented to be made a party, the suit must fail. Morrison v. Work, 266 U. S. 481, 488, 45 S. Ct. 149 (69 L. Ed. 394); United States ex rel. Goldberg v. Daniels, 231 U. S. 218, 221 to 222, 34 S. Ct. 84 (58 L. Ed. 191); Naganab v. Hitchcock, 202 U. S. 473, 476, 26 S. Ct. 667 (50 L. Ed. 1113); International Postal Supply Co. v. Bruce, 194 U. S. 601, 606, 24 S. Ct. 820 (48 L. Ed. 1134); Belknap v. Schild, 161 U. S. 10, 16 S. Ct. 443, 40 L. Ed. 599.
Défendant relies particularly upon the cases of U. S. v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171, Philadelphia Co. v. Stimson, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570, and Colorado v. Toll, 268 U. S. 228, 45 S. Ct. 505, 69 L. Ed. 927. The Lee Case decided that the owner of land held and occupied by the United States for public uses, but under a defective title, might maintain ejectment against the officers of the United States in possession. But, as pointed out by Mr. Justice Miller in Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446, 452, 3 S. Ct. 292, 609 (27 L. Ed. 992); and by Mr. Justice Gray in Belknap v. Schild, supra, in such case the officer in possession is sued, not as or because he is the officer of the government, but as an individual. The court is not ousted of jurisdiction merely because he asserts authority as an officer, but the burden rests upon him to show that his authority is sufficient in law to protect him. There is an obvious distinction between such a ease and one where defendant is sued as an officer of the government, and it is sought to restrain him from action taken in the exercise of a discretion reposed by Congress in the Executive Department. Where the act complained of is not authorized by statute, or where the statute authorizing it is void because in conflict with some provision of the Constitution, the person attempting it may be restrained in a proper case, notwithstanding his claim that he is acting in his official capacity. In such ease he is acting, not within the law, but outside it, his act is not the act of the government, and the law affords him no proteetipn for what he is doing or is about to do. This is true, whether he be the head of a department or merely a subordinate acting under orders; and, if a subordinate, there is no necessity of joining as defendant the head of the department because the orders of the head are immaterial if the act sought to be enjoined is not authorized by law. Colorado v. Toll, supra. These doctrines, however, have no application where, as here, the official is acting under the 'authority of a statute which does not offend any constitutional provision. In such case his action is the action of the government; if injunction is awarded against him, it is the action of the government, and not his individual action, which is restrained; and the government is consequently a necessary party to the suit, which must fail unless it has consented to be sued.
Nothing said in Philadelphia Co. v. Stimson, supra, or Colorado v. Toll, supra, conflicts with the rule which we have stated. The language relied upon in the opinion of the former case occurs at pages 619 and 620 of 223 U. S. (32 S. Ct. 344), and supports the rule as we have stated it. At page 620 (32 S. Ct. 344) the court said: “The complainant did not ask the court to interfere with the official discretion of the Secretary of War, bu.'i challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.”
This effectually distinguishes that case from the ease at bar. Here the injunction if granted would interfere with the official discretion of the Secretary of the Navy and accordingly is a suit against the United States. In Colorado v. Toll, supra, the injunction was sought to restrain defendant from enforcing regulations not authorized by act of Congress. Here the storage of explosives has been expressly authorized.
And apart from the fact that the United States is a necessary party to a suit such as this and has not consented to be sued, we think that the bill is lacking in equity in that suit for injunction will not lie against an official of the Executive Department to restrain as a nuisance a use of government property authorized by Congress and within the discretion of the executive. As said by Professor Pomeroy, Equity Jurisprudence (4th Ed.) vol. 4, p. 4062: “An injunction will not issue against an executive officer of the government, nor against one acting under him, to restrain the performance or execution of administrative acts and orders within the scope of his authority. This is based upon the principle which governs also the legal remedy of mandamus. It would be contrary to our theory of government for the judicial department to interfere with the reasonable discretion of the executive.” See, also, 32 C. J. 246; Dakota Co. v. South Dakota, 250 U. S. 163, 184, 39 S. Ct. 507 (63 L. Ed. 910, 4 A. L. R. 1623); Louisiana v. McAdoo, 234 U. S. 627, 633, 34 S. Ct. 938 (58 L. Ed. 1506); Sheriff v. Turner (C. C.) 119 F. 782.
It is true that Congress, in exercising the powers vested in it by the Constitution, and the executive, in exercising the discretion reposed in it by Congress, must have regard for the rights of private persons as guaranteed by the Constitution. Private property cannot be taken for publie use without just compensation, nor can persons be deprived of property without due process of law. But in this ease the land upon which the explosives are to be stored belongs to the government, and the only injury which complainants apprehend is injury arising out of the government’s use of its own property. The question is whether such use authorized by act of Congress can be enjoined by the courts as a nuisance. The question, we think, answers itself. Of course, if what is done by officials under authority of law amounts to a taking of private property for public use, the owner is entitled to recover just compensation in a proper proceeding. Portsmouth Harbor, etc., Co. v. U. S., 260 U. S. 327, 43 S. Ct. 135, 67 L. Ed. 287.
But it is unthinkable that the courts should enjoin as a nuisance the use of government property by a co-ordinate branch of the government, the executive, where such use is authorized by a valid act of'the other coordinate branch, the legislative. It is elementary that courts will not enjoin as a músanse action authorized by valid legislative authority. 20 R. C. L. 500; Northern Transportation Co. v. Chicago, 99 U. S. 635, 640 (25 L. Ed. 336); note 107 Am. St. Rep. 220. Certainly injunction should not be granted where the alleged nuisance arises out of action taken under legislative authority exercised under one of the first mandates of the Constitution, “to provide for the common defense.”
Por the reasons stated, the action of the court below in dismissing the bill is affirmed.
Affirmed.
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
Richard Edward MADISON, Petitioner, v. Ralph H. TAHASH, Warden Minnesota State Prison, Respondent.
No. 18331.
United States Court of Appeals Eighth Circuit.
April 18, 1966.
Richard E. Madison, in pro. per.
Robert W. Mattson, Atty. Gen., St. Paul, Minn., for respondent.
Before MATTHES and MEHAFFY, Circuit Judges.
PER CURIAM.
Petitioner, Richard Edward Madison, an inmate of the Minnesota State Prison at Stillwater, Minnesota, seeks appointment by this court of an attorney to prosecute an appeal in forma pauperis from an order of the United States District Court denying his application for writ of habeas corpus.
At the outset, we note that the District Court refused to issue a certificate of probable cause which is a requisite to an appeal here. Curtis v. Bennett, 351 F.2d 931, 933 (8th Cir. 1965); McGee v. Eyman, 310 F.2d 230, 231 (9th Cir. 1962); Ramsey v. Hand, 309 F.2d 947, 948 (10th Cir. 1962); Johnson v. Mayo, 256 F.2d 761 (5th Cir. 1958); Bell v. Commonwealth of Virginia, 245 F.2d 170 (4th Cir. 1957); Sessions v. Manning, 227 F.2d 324, 325 (4th Cir. 1955), cert. denied, 350 U.S. 1008, 76 S.Ct. 653, 100 L.Ed. 870 (1956); Farmer v. Skeen, 222 F.2d 948, 949 (4th Cir. 1955), cert. denied, 350 U.S. 864, 76 S.Ct. 108, 100 L.Ed. 766 (1955); 28 U.S.C.A. § 2253.
Nonetheless, but strictly on an ad hoc basis, and not to serve as a precedent for future handling of similar cases, we have elected to treat petitioner’s request for appointment of counsel as an application for certificate of probable cause.
Petitioner was convicted by a jury in the state court of the crime of robbery in the first degree and sentenced to imprisonment on January 23, 1956. He was represented at trial by the public defender and did not appeal his conviction to the Minnesota Supreme Court. Thereafter, petitioner brought habeas corpus proceedings in both the District and Supreme Courts of Minnesota. His petition in each court, involving the same questions as are present here, was denied by the District Court and the Supreme Court of Minnesota as being frivolous.
In all of his habeas applications, petitioner has alleged that he did not have the assistance of counsel at his arraignment in the state court on January 5, 1956, and because of this he was denied the right to argue an illegal detention in the city jail ten days prior to arraignment; and denied the right to file a petition at said arraignment submitting his illegal arrest, search and seizure.
The transcript of the proceedings at arraignment is contained in the original files of the federal district court, and reflect that petitioner was not represented by counsel at arraignment. He was asked by the court if he wanted to enter a plea to which query he stated that he pleaded not guilty, whereupon he was arraigned and a discussion was had as to his representation by counsel. The trial court advised petitioner that he had an absolute choice of counsel, or, failing to procure one, the court would appoint the public defender. Petitioner mentioned a private attorney he would like to employ but intimated he might not be able to obtain his services due to his lack of funds. The prosecutor was advised to contact the attorney of petitioner’s choice and see if he would handle the case, and further to provide petitioner with an opportunity to contact any other lawyer he might desire and sufficient time would be allowed for this purpose. As it developed, petitioner did not employ counsel and the public defender was appointed to defend him.
The District Court in a memorandum decision (Madison v. Tahash, 249 F.Supp. 600) exhaustively reviewed the legal aspects of this case and concluded that arraignment is not a critical stage in Minnesota and that petitioner could not have been prejudiced by being arraigned and pleading not guilty at arraignment without counsel for the reason that under the Minnesota procedure a plea entered without benefit of counsel does not operate to irrevocably waive any defenses or objections that petitioner might have had at this stage of the proceedings. The District Court cited State ex rel. Lacklines v. Tahash, 267 Minn. 237, 126 N.W.2d 646 (1964) and State v. Perra, 266 Minn. 545, 125 N.W.2d 44 (1963), cert. denied, 377 U.S. 982, 84 S.Ct. 1889, 12 L.Ed.2d 749 (1964), as supportive of the right of a defendant to raise the desired defenses after arraignment and plea and when represented by appointed counsel. Also, the District Court noted that the Minnesota Supreme Court has concluded that arraignment is not a critical stage of trial in that state. State v. Roy, 266 Minn. 6, 122 N.W.2d 615 (1963), cert. denied, 375 U.S. 956, 84 S.Ct. 445, 11 L.Ed.2d 315 (1963).
The well considered opinion of Judge Earl R. Larson (249 F.Supp. 600) more elaborately recites the facts and profoundly reviews the authorities leading to his conclusion that a writ of habeas corpus should not issue. We agree with Judge Larson’s analysis of the cases cited as well as the result reached.
There is nothing in the record to indicate that petitioner was deprived of any constitutional right by his plea of not guilty at arraignment. We, therefore, deny petitioner’s application for certificate of probable cause.
. The last sentence in 28 U.S.C.A. § 2253 provides:
“An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.”
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_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UTAH POWER & LIGHT COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
No. 76-1873.
United States Court of Appeals, District of Columbia Circuit.
Order Granting Motion Dec. 23, 1976.
Decided Feb. 22, 1977.
Peter R. Taft, Asst. Atty. Gen., and Earl Salo, Atty., Dept, of Justice, Washington, D.C., were on the motion to dismiss filed by respondent.
Gerry Levenberg, Washington, D.C., and Veri R. Topham, Salt Lake City, Utah, were on the response in opposition filed by petitioner.
Before FAHY, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.
Opinion filed by LEVENTHAL, Circuit Judge.
Opinion filed by FAHY, Senior Circuit Judge, joining with LEVENTHAL, Circuit Judge.
LEVENTHAL, Circuit Judge:
Utah Power & Light Company (UP&L) petitioned this Court for direct review of a decision by the Environmental Protection Agency (EPA), subjecting three of UP&L’s steam electric generating plants under construction to new source review under agency regulations regarding “significant deterioration of air quality.” In its petition for review filed September 20, 1976, UP&L predicated this Court’s jurisdiction upon Section 307(b)(1) of the 1970 amendments to the Clean Air Act.
On November 2,1976, EPA filed a motion to dismiss for lack of jurisdiction in this Court. Specifically, EPA contended that UP&L was not challenging “the Administrator’s action in approving or promulgating” a state implementation plan, within the meaning of Section 307(b)(1). On December 23, 1976, after considering the motion and the response thereto, this Court entered an order granting EPA’s motion to dismiss.
I
On December 5, 1974, respondent EPA promulgated regulations designed to prevent “significant deterioration” of air quality. The regulations, effective January 6, 1975, were made applicable to any new stationary source “which has not commenced construction or modification prior to June 1, 1975 . . . .” The regulations were incorporated into all state implementation plans.
In a letter dated September 2, 1975, Region 8 of the EPA requested that UP&L supply certain information on its plans to construct new power plants. UP&L responded by letter dated September 12,1975, noting, inter alia, that it had begun construction on three new plants in Utah, aftér having obtained new source construction permits from the Utah Air Conservation Committee (“Committee”). In accordance with the then existing Utah Air Conservation regulations, these permits were based upon plans that included for each plant a flue gas desulfurization unit (“scrubber”), designed to remove 80 percent of the sulfur dioxide from the flue gases emitted by each plant. Construction on all three plants commenced prior to June 1, 1975, the cutoff date under the EPA significant deterioration regulations.
The Utah Air Conservation regulations were amended on July 9,1975. On September 15, 1975, three days after its letter to EPA, UP&L applied to the Utah Committee for a determination that under the amended state regulations, the scrubbers were no longer required. In early 1976, the Utah Committee approved the elimination of the scrubbers from the plans for UP&L's three Utah plants.
On February 4, 1976, UP&L filed a request for an EPA ruling that the significant deterioration regulations do not apply to the three Utah plants. On March 25, 1976, EPA’s Region 8 notified UP&L that the elimination of the scrubbers constituted a “modification” of the plants, occurring after June 1, 1975, and that such modification would bring the three plants within the ambit of the regulations. Region 8 instructed UP&L to submit an application for permission to modify, pursuant to 40 C.F.R. § 52.21(d) (2)-{3). UP&L requested reconsideration on May 7,1976. In a letter dated August 23, 1976, Region 8 reaffirmed its earlier opinion and notified UP&L that its decision was “a final determination in the case.” Thereupon UP&L filed with this Court a petition for review, which EPA seeks to dismiss on jurisdictional grounds.
II
This Court has previously noted that the jurisdictional provisions of the Clean Air Act “have been sources of periodic confusion” and that therefore “proper disposition of a motion to dismiss, for lack of jurisdiction requires precise characterization of the action sought to be reviewed.” District of Columbia v. Train, supra note 8, 533 F.2d at 1252. Section 307(b)(1) grants exclusive jurisdiction to courts of appeals “to hear challenges to a limited class of actions taken by the Administrator.” In the present case, the Court must decide whether the challenged action — i.e., the EPA’s decision as to the applicability of the significant deterioration regulations — can fairly be characterized as “action in approving or promulgating any [state] implementation plan" under Section 307(b)(1). If so, the court of appeals has exclusive jurisdiction to hear UP&L’s claim. If not, this Court is without jurisdiction and must grant the motion to dismiss.
Characterization of the challenged action depends in turn on the nature of petitioner’s challenge. Specifically, the court must determine whether the petitioner is attacking the validity of an agency regulation or, instead, is attacking a particular interpretation or application of that regulation. Both the language of Section 307(b)(1) and the policy considerations underlying that provision compel the conclusion that challenges to the validity of certain agency regulations are directly reviewable by courts of appeals, whereas challenges to interpretations of those regulations are not. As with most general rules, an exceptional case may defy easy classification. In our opinion, this is not such a case.
UP&L’s challenge cannot fairly be characterized as impugning the validity of 40 C.F.R. sections 52.21(d)(1) and 52.01(d), which, respectively, make the significant deterioration regulations applicable to stationary sources modified (as well as constructed) on or after June 1, 1975, and define “modification” to include “any physical change in or change in the method of operation of” the polluting source. First, UP&L’s petition for review does not, on its face, attack the validity of the significant deterioration regulations. Second, as EPA notes, this Court has already sustained the validity of those regulations. Finally, any further facial challenge would seem to be time-barred under Section 307(b)(1).
Consequently, unless UP&L seeks to chailenge the EPA’s interpretation of the new regulations, the statute provides that petitioner will not be entitled to judicial review in any federal court. And, as previously indicated, that kind of challenge is not cognizable under Section 307(b) (l). Although we need not reach the question in this case, we note that if federal review of the action challenged here is available at all, it should be sought in the district court.
. 40 C.F.R. §§ 52.01(d),(f), 52.21.
. 42 U.S.C. § 1857h-5(b)(l). That section provides, inter alia, that a petition for review of “the Administrator’s action in approving or promulgating” any state implementation plan “may be filed only in the United States Court of Appeals for the appropriate circuit.” See note 10 infra.
. The states are charged with the duty to develop implementation plans designed to achieve the level of air quality prescribed by national “primary” and “secondary” air quality standards promulgated by the Administrator of EPA. Section 107, 42 U.S.C. § 1857C-2. Pursuant to Section 110, 42 U.S.C. § 1857c-5, each state must submit its implementation plan to the Administrator for his approval. A proposed implementation plan must satisfy the requirements set out in Section 110(a)(2), 42 U.S.C. § 1857c-5(a)(2).
. 39 Fed.Reg. 42510 (1974). Minor amendments to the regulations were published on January 16, 1975 (40 Fed.Reg. 2802), June 12, 1975 (40 Fed.Reg. 25004), and September 10, 1975 (40 Fed.Reg. 42011).
. See 40 C.F.R. §§ 52.21(d)(1), 52.01(d), (f). 40 CFR § 52.21(d)(1) provides, in pertinent part:
Review of new sources . . . [T]he requirements of this paragraph [i.e., the significant deterioration regulations] apply to any new or modified stationary source of the type identified below which has not commenced construction or modification prior to June 1, 1975 . . ..
40 C.F.R. § 52.01(d) provides, in pertinent part:
The phrases “modification” or “modified source” mean any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promulgated .
. See, e.g., 40 C.F.R. § 52.2346 (amending Utah’s implementation plan to incorporate by reference the significant deterioration regulations).
. See note 5 supra.
. District of Columbia v. Train, 175 U.S.App.D.C. 115, 533 F.2d 1250, 1252, cert. granted, 426 U.S. 904, 96 S.Ct. 2224, 48 L.Ed.2d 829 (1976). See also National Resources Defense Council, Inc. v. Environmental Protection Agency, 168 U.S.App.D.C. 111, 512 F.2d 1351, 1361 (1975), in which Judge Wright, dissenting in part, stated that “the courts play jurisdictional badminton with these provisions,” “batting” cases back and forth between the district court and the court of appeals.
. District of Columbia v. Train, supra note 8, 533 F.2d at 1254 (emphasis added).
. Section 307(b)(1), 42 U.S.C. § 1857h-5(b)(l), specifies a number of grounds for direct review in the court of appeals:
A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 1857c-7 of this title, any standard of performance under section 1857c-6 of this title, any standard under section 1857Í-1 of this title (other than a standard required to be prescribed under section 1857f — 1(b)(1) of this title), any determination under section 1857f-1(b)(5) of this title, any control or prohibition under section 1857f-6c of this title, or any standard under section 1857Í-9 of this title may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title or section 1857c-6(d) of this title, or his action under section 1857c-10(c)(2)(A), (B), or (C) of this title or under regulations thereunder, may be filed only in the United States Court of Appeals for the appropriate circuit.
None of the other grounds is relevant to this case, and neither party has argued otherwise.
. 42 U.S.C. § 1857h-5(b)(l); see District of Columbia v. Train, supra note 8, 533 F.2d at 1252, 1254.
. See id.
. This distinction is not new to the law. In determining the degree of deference owed an agency determination, courts have distinguished between claims that an agency’s action is ultra vires and claims that an agency’s interpretation of the act it administers is legally unsound. See, e.g., International Brotherhood of Electrical Workers, AFL-CIO v. NLRB, 159 U.S.App.D.C. 272, 487 F.2d 1143, 1170-71 (1973), aff’d sub nom., Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974).
. Only by straining the meaning of the words “approving” and “promulgating” could it be said that challenges to interpretations or applications of EPA regulations constitute attacks on “the Administrator’s action in approving or promulgating” any state implementation plan. Nothing in the legislative history of Section 307(b)(1) supports this strained reading of the statutory language. Indeed, a passage in the Report of the Senate Committee on Public works clearly reveals that applications of agency regulations are not embraced within Section 307(b)(1). In discussing Section 307(b)(2), 42 U.S.C. § 1857h-5(b)(2) [see note 18 infra], which, in enforcement proceedings, precludes review of issues that could have been raised under Section 307(b)(1), the Senate Committee states: “Of course, the person regulated would not be precluded from seeking review at the time of enforcement insofar as the subject matter applies to him alone.” S.Rep.No. 91-1196, 91st Cong., 2d Sess. 41 (1970). If attacks on particular applications of regulations are not precluded by Section 307(b)(2), then presumably they are not reviewable under Section 307(b)(1).
. The petition for review seeks review of the EPA’s determination “that petitioner’s three steam electric generating units, all of which commenced construction prior to June 1, 1975, are nonetheless subject to the regulations promulgated by respondent entitled ‘Prevention of Significant Air Quality Deterioration’, 40 CFR Sections 52.01(d), (f), and 52.21.”
. See Sierra Club v. Environmental Protection Agency, 176 U.S.App.D.C. 335, 540 F.2d 1114 (1976), cert. granted sub. nom. Utah Power & Light Co. v. EPA,-U.S.-, 97 S.Ct. 1597, 51 L.Ed.2d 802. The Court sustained the “commenced” and “modified” provisions against a claim that the regulations should apply to stationary sources commencing construction or modified prior to June 1, 1975. Id. at 1123, 1133.
. Section 307(b)(1) provides that any petition for review filed in a court of appeals pursuant to the jurisdictional grounds enumerated in that section “shall be filed within 30 days from the date of such promulgation, approval, or action, or after such date if such petition is based solely on grounds arising after such 30th day.” The significant deterioration regulations were promulgated on December 5, 1974, and were incorporated into Utah’s implementation plan on June 12, 1975.
There is no contention here that although the regulation as issued apparently was accepted by petitioner as constitutional, the interpretation at hand is a “new” circumstance that, if accepted as a correct interpretation of the regulation, has the effect of rendering the regulation invalid.
. The courts of appeals have exclusive jurisdiction to hear challenges to “the Administrator’s action in approving or promulgating any implementation plan.” 42 U.S.C. § 1857h-5(b)(1); see District of Columbia v. Train, supra note 8, 533 F.2d at 1252, 1254; see also 42 U.S.C. § 1857h-5(b)(2) (“Action of the Administrator with respect to which review could have been obtained under [Section 307(b)(1)] shall not be subject to judicial review in civil or criminal proceedings for enforcement”).
. See note 14 and accompanying text, supra. Recent judicial opinions have tended to construe Section 307(b)(1) narrowly. See District of Columbia v. Train, supra note 8, 175 U.S.App.D.C. 115, 533 F.2d 1250 (challenge to consent agreement between EPA and GSA does not trigger Section 307(b)(1) jurisdiction); West Penn Power Co. v. Train, 522 F.2d 302, 309 (3rd Cir. 1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183 (1976) (action for declaratory judgment that power company was not violating sulfur emission standards was a challenge to methods of compliance, not to plan itself, and thus did not constitute challenge to “Administrator’s action in approving or promulgating any implementation plan”); Utah International, Inc. v. Environmental Protection Agency, 478 F.2d 126 (10th Cir. 1973) (challenge to EPA order disapproving previously approved portions of state plan did not constitute challenge to approval or promulgation of implementation plan).
. Previous decisions of this court have upheld the jurisdiction of the district court under Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. See, e.g., Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107, 1109-10 & nn.4-5 (1974). The Supreme Court has granted certiorari in a case involving the same jurisdictional issue. Mathews v. Sanders, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 829 (1976). Whatever the outcome of that case, it appears that UP&L could bring suit in federal district court under 28 U.S.C. § 1331(a), as amended by Act of October 21, 1976, Pub.L.No. 94-574, § 703, 90 Stat. 2721, which removed the amount in controversy requirement in civil actions against the United States or agencies thereof. Serious questions of due process would arise if neither of these provisions offered UP&L a jurisdictional predicate, in district court.
'Finally, we note that in its papers filed with this Court, UP&L stated that the ambiguities of the Clean Air Act created a dilemma: if petitioner had first filed a complaint with the district court, and if that court had then dismissed for lack of jurisdiction, the 30-day statute of limitation in Section 307(b)(1) would have barred UP&L from seeking review in this Court. Recognizing that the statutory scheme encourages litigants to file petitioners for review in the courts of appeals whenever jurisdiction is in doubt, we urge Congress to adopt the recommendation of the Administrative Conference of the United States and amend Section 307 to provide for transfer between courts of appeals and district courts when a proceeding to review EPA action under the Clean Air Act is filed in the wrong forum. Administrative Conference of the United States, Resolution of December 10, 1976, Judicial Review Under the Clean Air Act and Federal Water Pollution Control Act, reprinted at 41 Fed.Reg, 56767 (Dec. 30, 1976). See Investment Company Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App. D.C. 311 at -, 551 F.2d 1270, at 1272-73 (1977) (Leventhal, J., concurring).
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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sc_caseoriginstate
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13
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
BROWN v. WESTERN RAILWAY OF ALABAMA.
No. 43.
Argued October 19, 1949.
Decided November 21, 1949.
Richard M. Maxwell argued the cause for petitioner. With him on the brief was Thomas J. Lewis.
Herman Heyman argued the cause for respondent. With him on the brief were Arthur Heyman and Hugh Howell, Sr.
Mr. Justice Black
delivered the opinion of the Court.
Petitioner brought this action in a Georgia state court claiming damages from the respondent railroad under the Federal Employers’ Liability Act. 45 U. S. C. § 51 et seq. Respondent filed a general demurrer to the complaint on the ground that it failed to “set forth a cause of action and is otherwise insufficient in law.” The trial court sustained the demurrer and dismissed the cause of action. The Court of Appeals affirmed, 77 Ga. App. 780, 49 S. E. 2d 833, and the Supreme Court of Georgia denied certiorari. It is agreed that under Georgia law the dismissal is a final adjudication barring recovery in any future state proceeding. The petition for certiorari here presented the question of whether the complaint did set forth a cause of action sufficient to survive a general demurrer resulting in final dismissal. Certiorari was granted because the implications of the dismissal were considered important to a correct and uniform application of the federal act in the state and federal courts. See Brady v. Southern R. Co., 320 U. S. 476.
First. The Georgia Court of Appeals held that “Stripped of its details, the petition shows that the plaintiff was injured while in the performance of his duties when he stepped on a large clinker lying alongside the track in the railroad yards. . . . The mere presence of a large clinker in a railroad yard can not be said to constitute an act of negligence. ... In so far as the allegations of the petition show, the sole cause of the accident was the act of the plaintiff in stepping on this large clinker, which he was able to see and could have avoided.” 77 Ga. App. 783, 49 S. E. 2d 835. The court reached the foregoing conclusions by following a Georgia rule of practice to construe pleading allegations “most strongly against the pleader.” Following this local rule of construction the court said that “In the absence of allegations to the contrary, the inference arises that the plaintiff’s vision was unobscured and that he could have seen and avoided the clinker.” 77 Ga. App. 783, 49 S. E. 2d 835. Under the same local rule the court found no precise allegation that the particular clinker on which petitioner stumbled was beside the tracks due to respondent’s negligence.
It is contended that this construction of the complaint is binding on us. The argument is that while state courts are without power to detract from “substantive rights” granted by Congress in FELA cases, they are free to follow their own rules of “practice” and “procedure.” To what extent rules of practice and procedure may themselves dig into “substantive rights” is a troublesome question at best as is shown in the very case on which respondent relies. Central Vermont R. Co. v. White, 238 U. S. 507. Other cases in this Court point up the impossibility of laying down a precise rule to distinguish “substance” from “procedure.” Fortunately, we need not attempt to do so. A long series of cases previously decided, from which we see no reason to depart, makes it our duty to construe the allegations of this complaint ourselves in order to determine whether petitioner has been denied a right of trial granted him by Congress. This federal right cannot be defeated by the forms of local practice. See American Ry. Exp. Co. v. Levee, 263 U. S. 19, 21. And we cannot accept as final a state court’s interpretation of allegations in a complaint asserting it. First National Bank v. Anderson, 269 U. S. 341, 346; Davis v. Wechsler, 263 U. S. 22, 24; Covington Turnpike Co. v. Sandford, 164 U. S. 578, 595-596. This rule applies to FELA cases no less than to other types. Reynolds v. Atlantic C. L. R. Co., 336 U. S. 207; Anderson v. A., T. & S. F. R. Co., 333 U. S. 821; cf. Lillie v. Thompson, 332 U. S. 459.
Second. We hold that the allegations of the complaint do set forth a cause of action which should not have been dismissed. It charged that respondent had allowed “clinkers” and other debris “to collect in said yards along the side of the tracks”; that such debris made the “yards unsafe”; that respondent thus failed to supply him a reasonably safe place to work, but directed him to work in said yards “under the conditions above described”; that it was necessary for petitioner “to cross over all such material and debris”; that in performing his duties he “ran around” an engine and “stepped on a large clinker lying beside the tracks as aforesaid which caused petitioner to fall and be injured”; that petitioner’s injuries were “directly and proximately caused in whole or in part by the negligence of the defendant ... (a) In failing to furnish plaintiff with a reasonably safe place in which to work as herein alleged, (b) In leaving clinkers . . . and other debris along the side of track in its yards as aforesaid, well knowing that said yards in such condition were dangerous for use by brakemen, working therein and that petitioner would have to perform his duties with said yards in such condition.”
Other allegations need not be set out since the foregoing if proven would show an injury of the precise kind for which Congress has provided a recovery. These allegations, fairly construed, are much more than a charge that petitioner “stepped on a large clinker lying alongside the track in the railroad yards.” They also charge that the railroad permitted clinkers and other debris to be left along the tracks, “well knowing” that this was dangerous to workers; that petitioner was compelled to “cross over” the clinkers and debris; that in doing so he fell and was injured; and that all of this was in violation of the railroad’s duty to furnish petitioner a reasonably safe place to work. Certainly these allegations are sufficient to permit introduction of evidence from which a jury might infer that petitioner’s injuries were due to the railroad’s negligence in failing to supply a reasonably safe place to work. Bailey v. Central Vermont R. Co., 319 U. S. 350, 353. And we have already refused to set aside a judgment coming from the Georgia courts where the jury was permitted to infer negligence from the presence of clinkers along the tracks in the railroad yard. Southern R. Co. v. Puckett, 244 U. S. 571, 574, affirming 16 Ga. App. 551, 554, 85 S. E. 809, 811.
Here the Georgia court has decided as a matter of law that no inference of railroad negligence could be drawn from the facts alleged in this case. Rather the court itself has drawn from the pleadings the reverse inference that the sole proximate cause of petitioner’s injury was his own negligence. Throughout its opinion the appellate court clearly reveals a preoccupation with what it deemed* to be petitioner’s failure to take proper precautions. But as that court necessarily admits, contributory negligence does not preclude recovery under the FELA.
Strict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal laws. “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, supra, at 24. Cf. Maty v. Grasselli Chemical Co., 303 U. S. 197. Should this Court fail to protect federally created rights from dismissal because of over-exacting local requirements for meticulous pleadings, desirable uniformity in adjudication of federally created rights could not be achieved. See Brady v. Southern R. Co., 320 U. S. 476, 479.
Upon trial of this case the evidence offered may or may not support inferences of negligence. We simply hold that under the facts alleged it was error to dismiss the complaint and that petitioner should be allowed to try his case. Covington Turnpike Co. v. Sandford, supra, at 596; Anderson v. A., T. & S. F. R. Co., 333 U. S. 821.
The cause is reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Douglas took no part in the consideration or decision of this case.
Angel v. Bullington, 330 U. S. 183; Guaranty Trust Co. v. York, 326 U. S. 99; Garrett v. Moore-McCormack Co., 317 U. S. 239; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 157; and see same case 148 S. W. 1099; Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454, 457-458; and see same case 88 Ohio St. 536, 106 N. E. 1077. Compare Brinkmeier v. Missouri P. R. Co., 224 U. S. 268, with Seaboard Air Line R. Co. v. Renn, 241 U. S. 290.
That court among other things said: “In the absence of allegations to the contrary, the inference arises that the plaintiff’s vision was unobscured and that he could have seen and avoided the clinker. . . . In so far as the allegations of the petition show, the sole cause of the accident was the act of the plaintiff in stepping on this large clinker, which he was able to see and could have avoided. It was he who, without any outside intervention, failed to look, stepped on the clinker, and fell.” 77 Ga. App. 783, 49 S. E. 2d 835.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_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.
ADKINS, ADMINISTRATRIX, v. E. I. DuPONT de NEMOURS & CO., INC. UNITED STATES, Intervenor.
No. 1,
Misc.
Argued October 18, 1948.
Decided November 22, 1948.
John W. Porter, Jr. argued the cause and filed a brief for petitioner.
G. C. Spillers argued the cause for the E. I. DuPont de Nemours.& Co., respondent. With him on the brief was Peter B. Collins.
Solicitor General Perlman, Assistant Attorney General Morison, Robert L. Stern, Paul A. Sweeney, Harry I. Rand and Morton Hollander filed a brief for the United States, intervenor. They expressed the view that this Court should remand the case to the District Court for reconsideration of the entire question of leave to proceed in forma pauperis — in the light of principles to be enunciated by this Court.
Mr. Justice Black
delivered the opinion of the Court.
The questions presented chiefly involve the scope and application of the statute which authorizes a citizen to prosecute or defend actions in federal courts “without being required to prepay fees or costs or for the printing of the record in the appellate court . . . upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action or appeal, or to give security for the same, . . .”
This action was filed in the United States District Court for the Northern District of Oklahoma by P. V. Adkins. Mr. Adkins died while the litigation was pending and his wife having been appointed administratrix of his estate was substituted as plaintiff. The original complaint claimed overtime compensation, damages and attorneys’ fees on behalf of Mr. Adkins and twelve other employees of the respondent “under and pursuant to the Fair Labor Standards Act of 1938 (Title 29, U. S. C. A. Secs: 201-219) and Executive Order #9240 as amended (Title 40 U. S. C. A. following Sec. 326) . ...”
From a dismissal of her complaint in the District Court and the denial by that court of her motion to set the dismissal aside and grant a new trial, petitioner filed in the District Court a motion to appeal to the United States Court of Appeals for the Tenth Circuit. She also filed a motion that the appeal be allowed in forma pauperis. Her affidavit in support of this motion stated that petitioner was a widow 74 years of age; the estimated costs of the appeal record would be approximately $4,000; all she had was a home, inherited from her husband, appraised at $3,450; her only source of income was rent from parts of her home; and without such income she would not be able to purchase the necessities of life. No objection appears to have been filed to her motion to appeal in forma pauperis, but the motion was denied by the court. Apparently denial was for two reasons: (1) She could not proceed in forma pauperis where there were twelve other claimants involved who had filed no affidavits of poverty; (2) the court assumed that petitioner’s lawyers were employed on a contingent fee basis, and was of opinion that she therefore could not appeal in forma pauperis unless the lawyers either prepaid the costs, gave security for costs or filed an affidavit of their poverty along with petitioner and all other claimants.
Petitioner then filed an application for appeal in forma pauperis in the United States Court of Appeals. This application was denied. The denial, so the record indicates, was on the ground that to appeal in forma pauperis, Mrs. Adkins, the twelve employees, and all the members of the law firm representing her would have to make affidavits of poverty.
Petitioner then went back to the District Court. Ten of the twelve employees filed affidavits in each of which this statement appeared: . . because of my poverty I am unable to pay or give security for the costs ($4,000) of such appeal and still be able to provide myself and my dependents with the necessities of life.” An affidavit with identical language was filed by one member of the firm of lawyers representing petitioner. The affidavit also stated that the firm’s interest in all fees from this litigation had been assigned to affiant. No affidavit of poverty was filed by the other members of the firm. An affidavit was filed for the firm, however, stating a belief that the claims were meritorious, that appeal costs had been estimated at about $4,000, and that the total liquid assets of the firm did not exceed $2,000. One of the twelve claimants could not be located and one refused to sign an affidavit of poverty.
The district judge for the second time denied the motion to permit appeal without security for costs. His grounds seem to have been these. Two of the claimants had signed no affidavit of poverty; unless all signed, there could be no in forma pauperis appeal. The affidavits of petitioner, the ten claimants, and the attorneys were held insufficient in that they failed to show the precise financial condition of affiants, “whether they were or were not without property.” The judge was not sure just what affiants would have to show as to property, but felt that each should prove a complete inability to pay at least a portion of the costs. All interested in the recovery, he thought, including the lawyers, “have at least got to chip in to the extent of their ability to pay; and whatever they have, they have got to put in the pot for the purpose of taking the appeal.” The judge was “inclined to believe but not sure” that before Mrs. Adkins could be permitted to appeal in forma pauperis she must mortgage her home and “chip in” what she received on the mortgage loan. He construed all the affidavits as showing no more than that it would constitute a hardship to pay or give security for the payment of $4,000 to make the record. This statement as to “hardship” he thought did not meet the statutory requirement for an affidavit of inability to pay or secure costs due to “poverty.”
Furthermore, the judge thought petitioner had designated more for the record than was needed to decide the dismissal question raised by the appeal. He therefore believed that a $4,000 record was “wholly unnecessary.” Since the judge believed he was without power directly to limit the contents of the appellate record, he felt “persuaded to be more technical and more strict” on the type of in forma pauperis affidavits he required.
The Court of Appeals thereafter denied a second motion of petitioner to accept its appeal in forma pauperis. Petitioner then applied to this Court for certiorari to review the actions of the Court of Appeals and of the District Court in denying petitioner leave to appeal in forma pauperis. Petitioner further asked the court for leave to proceed here without giving security for costs. We set the motion down for argument. The matter has now been submitted on briefs and oral argument. The affidavits of poverty filed to proceed here in forma pauperis are the same as the affidavits filed in the two courts below.
If these affidavits are thought to be insufficient to support her motion, the petitioner urges that we give directions concerning additional requirements. While for our purposes the affidavits would have been more acceptable had they merely followed the language of the statute, our rules have provided no precise requirements. But the only questions presented here relate to the sufficiency of these affidavits in the two courts below. And to reach these questions, which are important, we must either accept the affidavits as sufficient or delay final consideration of the case. We accept the affidavits, grant the petition for certiorari, and the case having been fully argued, we proceed to pass on the questions presented so far as necessary. See Steffler v. United States, 319 U. S. 38.
First. We do not think the court was without power to protect the public from having to pay heavy costs incident to the inclusion of “wholly unnecessary” matters in an in forma pauperis appeal. Sections 1 and 4 of the statute provide that a court may exercise a limited judicial discretion in the grant or denial of the right and this Court has so held. Kinney v. Plymouth Rock Squab Co., 236 U. S. 43, 45, 46. Rule 75 (m) of our present Rules of Civil Procedure reads as follows:
Appeals in Forma Pauperis. Upon leave to proceed in forma pauperis, the district court may by order specify some different and more economical manner by which the record on appeal may be prepared and settled, to the end that the appellant may be enabled to present his case to the appellate court. [329 U. S. 870.]
We know of few more appropriate occasions for use of a court’s discretion than one in which a litigant, asking that the public pay costs of his litigation, either carelessly or wilfully and stubbornly endeavors to saddle the public with wholly uncalled-for expense. So here, the court was not required to grant the petitioner’s motion if she wrongfully persisted in including in the appeal record masses of matter plainly irrelevant to the issues raised on appeal. See Estabrook v. King, 119 F. 2d 607, 610. And, of course, under Rule 75 (m) the court may save the costs of printing by providing for a typewritten record. If exercise of discretion by a district court should result in an unfair and incomplete record to a litigant’s injury, the court’s error could be remedied. Its action would be subject to review by the appellate court. Moreover, if in obedience to court order a party should agree to a record inadequate for appellate court purposes, that court would have power, upon motion or sua sponte, to require addition of material necessary to enable the court fairly to decide the appeal questions presented.
Second. The statute allowing in forma pauperis appeals provides language appropriate for incorporation in an affidavit. One who makes this affidavit exposes himself “to the pains of perjury in a case of bad faith.” Pothier v. Rodman, 261 U. S. 307, 309. This constitutes a sanction important in protection of the public against a false or fraudulent invocation of the statute’s benefits. Furthermore, the statute provides other sanctions to protect against false affidavits. Section 4 authorizes a court to dismiss actions brought on affidavit of poverty “if it be made to appear that the allegation of poverty is untrue.” And § 5 provides another safeguard against loss by the Government due to false affidavits in that a court is permitted, in its discretion, to render judgment for costs “at the conclusion of the suit as in other cases.” Consequently, where the affidavits are written in the language of the statute it would seem that they should ordinarily be accepted, for trial purposes, particularly where unquestioned and where the judge does not perceive a flagrant misrepresentation.
Here, the affidavits were not couched in the language of the statute. They went outside that language. Estimating that the costs would be $4,000, each affidavit stated that the affiant could not pay or secure $4,000. In other words, the affidavits here tied inability to pay to a fixed cost of $4,000. Under these circumstances, we think the court was justified in looking further to see if the cost really should have been $4,000 and if not, the judge was right in requiring affidavits made with an appreciation by affiants of the lesser amount of expense to which they might be subjected by the appeal.
Third. We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty “pay or give security for the costs . . . and still be able to provide” himself and dependents “with the necessities of life.” To say that no persons are entitled to the statute’s benefits until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category of public charges. The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation' is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution. We think a construction of the statute achieving such consequences is an inadmissible one. See cases collected in 6 A. L. R. 1281-1287 for a discussion as to whether a showing of complete destitution should be made under this and similar statutes.
Fourth. We do not think that this petitioner can be denied a right of appeal under the statute merely because other claimants will neither give security for costs nor sign an affidavit of poverty. This case illustrates that such a restrictive interpretation of this statute might wholly deprive one of several litigants of a right of appeal, even though he had a meritorious case and even though his poverty made it impossible for him to pay or give security for costs. Such a deprivation would frustrate the basic purpose of the statute. This does not mean that one' of several claimants financially able but unwilling to pay his proportionate part of the costs could demand the benefits of an appeal perfected by another claimant under the in forma pauperis statute. But it does mean in this case that the petitioner, upon making the required affidavit of poverty, was entitled to appellate review of the issues the district court decided against her, without regard to whether other claimants filed an affidavit of poverty, or paid or secured their fair part of the costs.
Fifth. Petitioner’s appeal under the statute was denied in part because her attorneys, thought by the District Court to have been employed on a contingent fee basis, had not shown to the court’s satisfaction that they were unable on account of poverty to pay or give security for costs. We think the statute imposes no such burden on a lawyer who is to share in the recovery through contract by reason of his legal services. We are aware that some district and circuit courts of appeal have so construed the Act, and that some have even adopted rules which impose this requirement on lawyers. Other district and circuit courts of appeal have declined to interpret the statute as imposing such a burden on lawyers who represent litigants too poor to pay or secure the costs.
Many states, apparently including Oklahoma where this case was tried, make it illegal for lawyers to sign a bond to secure costs for their clients in any civil or criminal action. It would have been an innovation had Congress in this statute expressly permitted lawyers trying cases in federal courts to contract with their clients to pay or secure costs in their clients’ cases. But it would have been a surprising legislative innovation for Congress to command that lawyers pay or secure such costs. That Congress did not do this seems to be strongly indicated by the basic statute itself.
Section 1 of that statute is intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, “in any court of the United States” solely because his poverty makes it impossible for him to pay or secure the costs. Not content with this safeguard for the poor in federal courts, Congress in § 4 of the Act provided that “the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, . . .” Certainly a lawyer appointed under § 4 could not be required to pay the costs of an appeal. Nor could such an appointed lawyer have a burden of this kind cast upon him if Congress had required payment of a fee for appointed counsel in an amount fixed as reasonable by the court, a requirement that some state laws have provided. Yet, such a “reasonable fee” fixed by a court would be a “contingent fee” should we accept respondent's argument in this case. For respondent contends that because the Fair Labor Standards Act authorizes a court to fix a reasonable fee for attorneys prosecuting overtime claims for employees, this petitioner’s lawyers are on a contingent fee basis. They therefore according to respondent have a financial interest in the recovery. Consequently, respondent argues, petitioner must abandon her appeal and her claim unless these lawyers pay costs, secure them, or make affidavits of poverty.
No proof is needed that imposition of such onerous burdens on employees’ lawyers would put serious obstacles in the way of employees obtaining the kind of legal representation Congress intended to provide for them in the Fair Labor Standards Act. And since § 4 of the in forma pauperis statute was plainly intended to assure legal representation to the poor, it is also obvious that the purpose of that Act could be frustrated in part by construing the statute as imposing a guarantee of appeal costs on all lawyers employed to represent the poor on a contingent basis. For if a person is too poor to pay the costs of a suit, sometimes very small in amount, how can it be imagined that he could possibly pay a fair fee except from the recovery he obtains?
The statute here under consideration is not susceptible of a construction that would impose more burdens on lawyers employed by litigants unable to pay fees except on a contingent basis, than the burdens imposed on lawyers for those litigants who are able to employ counsel by the year or by payment of straight noncontingent fees. Section 3 of the statute specifically states that litigants who make affidavits of poverty shall be entitled to the same court processes, have the same right to the attendance of witnesses, and the same remedies as are provided by law in other cases. And as pointed out, § 4 of the statute makes it abundantly clear that poor litigants shall have the same opportunity to be represented by counsel as litigants in more fortunate financial circumstances. The statutory construction urged by respondent here would result in restricting the opportunities of the poor litigant in getting a lawyer who would follow his case through the appellate courts. For as was said by the Court of Appeals in Clark v. United States, 57 F. 2d 214, 216: “. . . The same poverty that compels a litigant to avail himself of this beneficent statute makes it impossible for him to hire counsel. He can procure counsel only by agreeing that out of the proceeds of his case, if there are proceeds, counsel shall be compensated. . . . In practical effect he [a poor litigant] is denied counsel if his counsel must either himself guarantee the costs or file an affidavit that he also is penniless. The statute was intended for the benefit of those too poor to pay or give security for costs, and it was not intended that they should be compelled to employ only paupers to represent them.”
It was error to deny petitioner’s motion for appeal under the statute on the ground that her lawyers had not made satisfactory affidavits of poverty. The statute requires no affidavit at all from them as a condition of appeal.
What we have said makes it unnecessary for us to pass on the contention of respondent that an agreement for a contingent fee payable out of an employee’s recovery to prosecute claims under the Fair Labor Standards Act is invalid.
The orders denying appeal in forma pauperis are vacated and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.
It is so ordered.
27 Stat. 252, as amended, 36 Stat. 866, 42 Stat. 666, 28 U. S. C. § 832. The substance of §§ 1 to 5 of the original statute as amended has now been incorporated in §§ (a) to (e) of 28 U. S. C. § 1915.
Section 16 (b) of the Fair Labor Standards Act, 52 Stat. 1069, 29 U. S. C. §216 (b), authorized employees’ suits by agents. Here the agent was acting “for a consideration contingent upon recovery.” An amendment of this section, the Portal-to-Portal Act, 61 Stat. 84, 29 U. S. C. Supp. I, §§ 251-252, limited the circumstances under which such representative actions could be maintained.
Executive Order No. 9240, 7 Fed. Reg. 7159 (1942), as amended, 7 Fed. Reg. 7419 (1942).
We do not mean to indicate that the issues sought to be raised by this petitioner on her appeal could have been properly presented to the Court of Appeals with nothing other than the very limited record the trial court apparently thought would be adequate. The case was dismissed because the District Court thought it had been deprived of jurisdiction by the Portal-to-Portal Act, supra. This Act purports to deprive federal courts of jurisdiction to enforce payment of overtime wages based on any activity except one com-pensable by either “(1) an express provision of a written or nonwrit-ten contract ... or (2) a custom or practice in effect, at the time of such activity,” at the place of employment, and not inconsistent with a written or nonwritten contract governing such employment. Petitioner had contended that examination by the court of the entire record including evidence already taken by a special master would show that employees’ claims for compensation were supported by express contracts or by custom. He contended that the Portal-to-Portal Act was therefore inapplicable under the facts 'of this case and that consequently the dismissal under that Act was erroneous. Petitioner’s application to amend her complaint to conform to the evidence was denied by the court. Cf. Maty v. Grasselli Chemical Co., 303 U. S. 197, 200-201; Hoiness v. United States, 335 U. S. 297. It would appear that the petitioner was entitled to have a record that was not so limited as to deprive the Court of Appeals of an opportunity to review these issues she raised.
United States ex rel. Randolph v. Ross, 298 F. 64; Bolt v. Reynolds Metal Co., 42 F. Supp. 58; Esquibel v. Atchison, T. & S. F. R. Co., 206 F. 863; Feil v. Wabash R. Co., 119 F. 490; Phillips v. Louisville & N. R. Co., 153 F. 795; The Bella, 91 F. 540, 543; Boyle v. Great Northern R. Co., 63 F. 539; Silvas v. Arizona Copper Co., 213 F. 504, 507-508.
Rule 26 (1), Rules of United States Court of Appeals for the Third Circuit; Rule 18 (2), Rules of United States Court of Appeals for the Sixth Circuit; Chetkovich v. United States, 47 F. 2d 894, but see Deadrich v. United States, 67 F. 2d 318.
Quittner v. Motion Picture Producers and Distributors of America, 70 F. 2d 331; United States ex rel. Payne v. Call, 287 F. 520; Jacobs v. North Louisiana & Gulf R. Co., 69 F. Supp. 5; Clark v. United States, 57 F. 2d 214; Evans v. Stivers Lumber Co., 2 F. R. D. 548.
See Okla. Stat. tit. 5, § 11 (1941). See also Watkins v. Sedberry, 261 U. S. 571, 576; Peck v. Heurich, 167 U. S. 624, 630. But see, Radin, Contingent Fees in California, 28 Calif. L. Rev. 587, 589, 598 (1940).
Clay County v. McGregor, 171 Ind. 634, 87 N. E. 1; County of Dane v. Smith, 13 Wis. 585; Ryce v. Mitchell County, 65 Iowa 447, 21 N. W. 771; State v. Hudson, 55 R. I. 141, 143, 179 A. 130, 131.
See Radin, Contingent Fees in California, supra at p. 589; United States ex rel. Payne v. Call, 287 F. 520, 522; Clark v. United States, 57 F. 2d 214, 216.
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:
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songer_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Kurt J. LINDNER, Edith Lindner; St. Joseph Hospital of Kirkwood; Admiral Insurance Agency; Lindner Fund, Inc.; Petty & Company; Landmark Central Bank & Trust Company, Appellants, v. DURHAM HOSIERY MILLS, INC.; George A. Cralle; H.E. Schoenhut, Jr.; W.K. Bigelow; H.E. Rodenhizer; W.C. Spann and John P. Barnett, individually, Appellees.
No. 84-1593.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1985.
Decided May 6, 1985.
William Woodward Webb, Raleigh, N.C. (Broughton, Wilkins & Webb, P.A., Raleigh, N.C., Kevin P. Roddy, Smith, Tag-gart, Gibson & Albro, Charlottesville, Va., on brief), for appellants.
G. Eugene Boyce, Raleigh, N.C. (Susan K. Burkhart, Boyce, Mitchell, Burns & Smith, P.A., Raleigh, N.C., on brief), and L. Bruce McDaniel, Raleigh, N.C. (DeBank, McDaniel, Heidgard & Holbrook, Raleigh, N.C., on brief), for appellees.
Before RUSSELL and CHAPMAN, Circuit Judges and HAYNSWORTH, Senior Circuit Judge.
CHAPMAN, Circuit Judge:
This appeal arises out of the merger and reorganization of Durham Hosiery Mills, Inc. (Durham Hosiery), a North Carolina corporation, into DHM, Inc., a Virginia corporation, on January 15, 1981. The plaintiffs brought this diversity action alleging that the defendants had deprived them of the fair market value of their stock by virtue of a reverse stock split accomplished as a part of the merger. The plaintiffs appeal from the decision of the district court dismissing their claim for relief under the North Carolina Unfair Trade Practices Act, N.C.Gen.Stat. § 75-1.1 (1981), and denying their motion for a new trial on their claim for breach of fiduciary duty. We affirm.
I
The plaintiffs are former minority shareholders who owned Class B nonvoting stock in Durham Hosiery. All of the plaintiffs are citizens and residents of the State of Missouri. Defendant Durham Hosiery was a hosiery manufacturer incorporated in North Carolina with plants located, at one time, in both North Carolina and Virginia. Defendants Bigelow, Rodenhizer, and Spann were directors of Durham Hosiery.
In August 1980 a New York stockbroker contacted the president of Durham Hosiery, defendant George Cralle, and offered him a large block of stock. The broker was asking $7 a share for the Class B stock and $12 a share for the Class A stock. Cralle contacted John P. Barnett, an acquaintance who had negotiated the sale of the Danville plant to Durham Hosiery, and offered him the opportunity to acquire this block of stock.
After many discussions, Barnett authorized Cralle, who had personally dealt with the New York stockbroker, to negotiate the purchase of the Durham Hosiery stock. On November 7, 1980, Barnett purchased through Cralle 25,705 shares of Class B and 2,483 shares of Class A stock from the New York stockbroker. Because the number of outstanding Durham Hosiery shares was 71,101, this transaction represented a purchase by Barnett of 40 percent of the company’s stock. The majority of the company’s shares was owned by Cralle and Harry S. Schoenhut, the vice president of Durham Hosiery.
Cralle and Schoenhut had been employees of Durham Hosiery for 28 years and 13 years, respectively. Before these transactions occurred, the Board of Directors of Durham Hosiery had discussed and concluded that the company would provide retirement benefits for Cralle and Schoenhut. When Barnett began acquiring stock in Durham Hosiery and reorganization discussions began, Cralle requested that Barnett honor the company’s obligation to fund the retirement plans that he and Schoenhut had anticipated. Barnett agreed that after the merger Schoenhut would receive deferred compensation of $500,000 for consulting services to the corporation. Cralle received similar assurances, and also an option to sell to Barnett his shares of Durham Hosiery. By the time of the merger, Barnett had accumulated a majority of the Durham Hosiery stock.
After Cralle and Barnett discussed their intentions for the reorganization of Durham Hosiery, Barnett arranged a meeting with attorney Frederick R. Russell. Russell advised Barnett and Cralle to reduce substantially the number of Durham Hosiery shareholders to enable the company to raise one million dollars of working capital through personal guarantees. Russell also recommended that Durham Hosiery eliminate nonvoting stock. Finally, they agreed to a plan by which those shareholders interested in remaining in the corporation had to accumulate 4,500 shares in the old corporation to acquire one share in the new corporation. The new corporation would have only 16 shares of stock. Holders of fewer than 4,500 Durham Hosiery shares were either to purchase sufficient shares to bring the total to 4,500, or to sell their shares at a price determined by bids received by the corporation from holders seeking more shares.
Durham Hosiery mailed to its shareholders a Proxy Statement and other documents, prepared by Russell, containing descriptions of the proposed merger and reorganization. According to the Proxy Statement, shareholders objecting to the merger could dissent and seek appraisal of and payment for their shares in the corporation by complying with the “Virginia Stock Corporation Act (or the similar provi sion of North Carolina law).” Cralle read the documents and signed the Proxy Statement.
On December 22, 1980, the Board of Directors of Durham Hosiery voted unanimously in favor of the plan for reorganization and merger. At a special meeting on January 12, 1981, the Durham Hosiery shareholders approved the merger by an affirmative vote of 80 percent or more of each class of outstanding stock. The plaintiffs dissented from the proposed merger and reorganization, executing their proxies on December 27, 1980. The Articles of Merger of Durham Hosiery Mills and DHM, Inc. were filed with the Secretary of State of North Carolina on January 15, 1981, and the merger was effected.
On January 19, 1981, Durham Hosiery sent a letter to the plaintiffs and other Durham Hosiery shareholders explaining that the merger had been overwhelmingly approved and that the merger was effective. The letter, signed by Cralle, also instructed the shareholders to execute an enclosed form for disposing of fractional interests in the stock and requested return of the stock certificates in accordance with the plan for payment. The plaintiffs did not respond to this letter. On February 23, 1981, Durham Hosiery sent another letter to the plaintiffs instructing them to submit their stock certificates in order to receive $7 per share of stock. The plaintiffs again failed to submit their stock certificate for payment.
In April 1981 the plaintiffs filed an action in the Wake County Superior Court of North Carolina seeking a determination of the fair value of Durham Hosiery stock. This state appraisal action was pending on December 23, 1981, when the plaintiffs filed the present action for damages in the district court. That action is still pending in the North Carolina state court.
In this action the plaintiffs alleged causes of action for (1) violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Security Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. 240.10b-5 (1984); (2) constructive fraud; (3) breaches of fiduciary duty; (4) violations of the North Carolina Securities Act, N.C.Gen.Stat. § 78A-56(b) (1981); (5) unfair or deceptive acts or practices in violation of N.C.Gen.Stat. § 75-1.1 (1981); and (6) violations of the North Carolina Dissenters’ Rights Statute, N.C.Gen.Stat. §§ 55-108, 113 (1981). In two separate memoranda opinions the district court dismissed all of the plaintiffs’ claims except their claim for breach of fiduciary duty. On January 12, 1984, the plaintiffs amended their complaint to allege a cause of action under the civil damages provision of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961—68 (1982).
After twelve days of testimony the jury found that the defendants had not committed a breach of fiduciary duty and that they had not violated the provisions of the RICO Act. The district court denied the plaintiffs’ motion for a new trial and entered judgment in accordance with the jury’s verdict. This appeal followed.
II
The first issue presented is whether N.C.Gen.Stat. § 75-1.1 applies to securities transactions. The plaintiffs argue that the defendants’ conduct constituted an unfair or deceptive act or practice in violation of § 75-1.1. The district court dismissed this claim and held that “the instant merger transaction does not fall within the scope of N.C.Gen.Stat. Sec. 75-1.1.” It stated that § 75-1.1 “is directed toward misrepresentation and shady practices sometimes associated with the marketing of goods and services, and that the deterrent of such practices for the protection of the general public is the reason that ... [§] 75-16 entitled the person injured by such acts to treble damages.” The district court reasoned that § 75-1.1 has no application to a securities fraud case involving a corporate merger because such an application is inconsistent with the purpose behind the enactment of § 75-1.1.
Because the North Carolina Unfair Trade Practices Act does not refer to securities transactions and the North Carolina courts have not addressed this issue, we must ascertain what the North Carolina Supreme Court would decide if confronted with this question. Our inquiry is guided by the purpose behind § 75-1.1, the North Carolina cases limiting the scope of § 75-1.1, other state cases construing similar statutes, and the scope of § 5 of the Federal Trade Commission (FTC) Act, 15 U.S.C. § 45(a)(1) (1982).
Section 75-l.l(a) declares that “[ujnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are ... unlawful.” There are only two express exclusions contained in the statute. Subsection (b) excludes professional services rendered by a member of a learned profession. Subsection (c) excludes the advertising media when the owner, agent or employee who published the material did not have knowledge of the false, misleading or deceptive character of the advertisement and did not have a direct financial interest in the sale or distribution of the advertised product or service. This Court previously has observed that the “prohibitory scope of the North Carolina [Unfair Trade Practices Act] ... is potentially quite broad.” ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 n. 10 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (citing Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716-17 (4th Cir.1983)). Nevertheless, the scope of § 75-1.1 is not unlimited.
The apparent purpose behind the enactment of § 75-1.1 was the protection of the consuming public. In Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), the North Carolina Supreme Court stated:
In an area of law such as this, we would be remiss if we failed to consider also the overall purpose for which this statute was enacted. The commentators agree that state statutes such as ours were enacted to supplement federal legislation, so that local business interests could not proceed with impunity, secure in the knowledge that the dimensions of their transgression would not merit federal action.
Id. at 549, 276 S.E.2d at 403. The North Carolina Supreme Court also stated that “[i]n enacting [§ 75-1] and [§ 75-1.1], our Legislature intended to establish an effective private cause of action for aggrieved consumers in this State” because “common law remedies had proved often ineffective.” Id. at 543, 276 S.E. at 400. Moreover, the commentators agree that the North Carolina Unfair Trade Practices Act grew out of antitrust laws in an effort to protect the consuming public from anticompetitive business practices. See Morgan, The Peo-pie’s Advocate in the Marketplace — The Role of the North Carolina Attorney General in the Field of Consumer Protection, 6 Wake Forest L.Rev. 1, 12 (1969). The North Carolina Supreme Court’s discussion of the purpose behind § 75-1.1, although not dispositive of this case, gives some guidance on the potential scope of that section.
Two North Carolina eases have limited the potential scope of § 75-1.1. In Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 248 S.E.2d 567 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979), the North Carolina Court of Appeals held that commodities transactions are not within the ambit of § 75-1.1. The court held that the “pervasive” federal scheme for regulating commodities transactions militated against finding a state cause of action under § 75-1.1. The court also recognized that a finding that one party’s conduct violated § 75-1.1 would expose it to a host of legislatively created sanctions in addition to those sought in the suit. Based on these concerns, the court held that “Congress has clearly expressed its intent to exercise exclusive jurisdiction over the activity of the commodity exchanges and has provided elaborate administrative procedures for the redress of grievances” pursuant to the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (1976). 38 N.C.App. at 418, 248 S.E.2d at 570.
Similarly, in Buie v. Daniel International Corp., 56 N.C.App. 445, 289 S.E.2d 118 (1982), cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982), the North Carolina Court of Appeals held that employer-employee relationships did not fall within the intended scope of § 75-1.1. The court reasoned that “[ejmployment practices fall within the purview of other statutes adopted for that express purpose.” 56 N.C.App. at 448, 289 S.E.2d at 120. Although neither Hunsucker nor Buie are directly dispositive of this case, both cases stand for the proposition that the presence of other federal or state statutory schemes may limit the scope of § 75-1.1.
We find it significant that no state court has held that its Unfair Trade Practices Act applies to securities transactions. In fact, courts in three states, Rhode Island, South Carolina, and Washington, have held that their state Unfair Trade Practices Act has no application to securities transactions. State v. Piedmont Funding Corp., 119 R.I. 695, 382 A.2d 819 (1978); State ex rel. McLeod v. Rhoades, 275 S.C. 104, 267 S.E.2d 539 (1980); Kittilson v. Ford, 23 Wash.App. 402, 595 P.2d 944 (1979), aff'd, 93 Wash. 223, 608 P.2d 264 (1980). In each case the state court held that its Unfair Trade Practices Act did not apply to securities transactions because of a particular statutory provision exempting “actions or transactions permitted under laws administered by any regulatory body” of the state or the United States. Although the presence of that statutory exemption makes Piedmont Funding, Rhodes and Kittilson distinguishable from this case, those cases, together with the absence of any other state court decision holding securities transactions subject to the state’s Unfair Trade Practices Act, provide some indication of the general scope of such acts.
We also find it significant that § 75-1.1 is reproduced verbatim from § 5 of the FTC Act, 15 U.S.C. § 45(a)(1) (1982), and that the courts interpreting and applying § 75-1.1 have deemed it appropriate “to look to the federal decisions interpreting the FTC Act for guidance in construing the meaning of G.S. § 75-1.1.” Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 262, 266 S.E.2d 610, 620 (1980) (citing Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975)). See also ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984). Thus, the fact that no federal court decision has applied § 5(a)(1) of the FTC Act to securities transactions is additional evidence of the scope of § 75-1.-I. Moreover, at least one district court has relied upon the scope of § 5(a)(1) of the FTC Act in holding that securities transactions were not subject to a Massachusetts statute which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conkling v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 575 F.Supp. 760, 761 (D.Mass.1983) (interpreting Mass.Gen.Laws Ann. ch. 93A § 2(a) (1972)). Accord, Sweeney v. Keystone Provident Life Insurance Co., 578 F.Supp. 31, 35 (D.Mass.1983).
The plaintiffs argue that § 75-1.1 applies to securities transactions because North Carolina courts have applied that section in a variety of commercial settings. See, e.g., Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980) (transaction between a mortgage broker and a borrower for the exclusive right to place permanent mortgage financing); Kent v. Humphries, 50 N.C.App. 580, 275 S.E.2d 176 (1981), aff'd and modified, 303 N.C. 675, 281 S.E.2d 43 (1981) (rental of commercial property); Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271 (1980) (unfair methods of competition in the insurance business). See also United Roasters, Inc. v. Colgate-Palmolive Co., 485 F.Supp. 1041 (E.D.N.C. 1979), aff'd on other grounds, 649 F.2d 985 (4th Cir.1981), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981) (bulk sale of business’ assets); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir. 1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (antitrust action brought by tire dealer against tire manufacturer). While it is true that North Carolina and federal courts have applied § 75-1.1 in a variety of commercial settings, that fact does not mean that § 75-1.1 applies to all commercial transactions or to securities transactions. Nor does it mean that the purposes behind the enactment of § 75-1.1 may no longer serve as some indication of its scope. In most of the cases cited above, the defendants anti-competitive conduct necessarily injured the consuming public.
We think that the North Carolina Supreme Court would hold, if presented with this issue, that securities transactions are beyond the scope of § 75-1.1. Our decision is consistent with § 75-1.1’s purpose to protect the consuming public, the North Carolina eases holding that other federal or state statutes may limit the scope of § 75-1.1, the absence of any other state court decision holding that securities transactions are subject to a similar Unfair Trade Practices Act, and the absence of any federal court decision holding that securities transactions are subject to § 5(a)(1) of the FTC Act. We do not believe that the North Carolina legislature would have intended § 75-1.1, with its treble damages provision, to apply to securities transactions which were already subject to pervasive and intricate regulation under the North Carolina Securities Act, N.C.Gen.Stat. § 78A-1 et seq. (1981), as well as the Securities Act of 1933, 15 U.S.C. § 77a et seq. (1982), and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (1982). Furthermore, to hold that § 75-1.1 applies to securities transactions could subject those involved with securities transactions to overlapping supervision and enforcement by both the North Carolina Attorney General, who is charged with enforcing § 75-1.1, and the North Carolina Secretary of State, who is charged with enforcing the North Carolina Securities Act. For all of these reasons, we hold that whatever the scope of § 75-1.1, securities transactions are beyond the reach of the North Carolina Unfair Trade Practices Act.
III
The second issue presented is whether the district court abused its discretion in denying the plaintiffs’ motion for a new trial on their claim for breach of fiduciary duty. It is well settled that “the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal, save in the most exceptional circumstances.” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir.1941); City of Richmond v. Atlantic Co., 273 F.2d 902, 916-17 (4th Cir.1960). In this case the district court instructed the jury that defendants Cralle, Schoenhut, Bigelow, Rodenhizer and Spann owed a fiduciary duty to the plaintiffs as minority shareholders of Durham Hosiery “as a matter of law.” N.C.Gen.Stat. § 55-35 (1982). The district court likewise instructed the jury that if it found that defendant Barnett was a majority shareholder of Durham Hosiery at the time the Proxy Statement was issued, a fiduciary relationship also existed between Barnett and the plaintiffs as a matter of law. The plaintiffs do not challenge the district court’s charge to the jury but argue that the verdict is against the manifest weight of the evidence. Based upon our review of the record, we are unable to conclude that the district court abused its discretion in denying the plaintiffs’ motion for a new trial. Accordingly, the judgment of the district court is
AFFIRMED.
. This action is but one of several in the federal courts arising out of the merger and reorganization of Durham Hosiery Mills, Inc. In White v. Durham Hosiery Mills, Inc., 753 F.2d 1072 (4th Cir.1985), another panel of this Court affirmed a jury verdict awarding a former minority shareholder compensatory damages of $25,900 and punitive damages of $50,000 on his action for misrepresentation under Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983). Two actions brought by five other shareholders are presently pending in the United States District Court for the Middle District of North Carolina. See Umstead v. Durham Hosiery Mills, Inc., 578 F.Supp. 342 (M.D.N.C.1984); Teer v. Durham Hosiery Mills, Inc., 592 F.Supp. 1269 (1984).
. On January 9, 1981, plaintiff Lindner filed a complaint in the district court for the Western District of Virginia for the purpose of obtaining an injunction to postpone the shareholder meeting scheduled for January 12. On the morning of January 12, however, the district court concluded that Lindner had failed to show any irreparable injury from the holding of the meeting and the merger due to the availability of his appraisal remedy under state law.
. But see Hickey v. Howard, 598 F.Supp. 1105 (D.Mass.1984) (holding that Massachusetts statute proscribing unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce, and providing for treble damages, is applicable to securities transactions); Mitchelson v. Aviation Simulation Technology, Inc., 582 F.Supp. 1 (D.Mass. 1983) (same). However, two other judges in the United States District Court for the District of Massachusetts have held that this Massachusetts statute does not apply to securities transactions. See Moseley and Sweeney, infra.
. This fact makes the instant case clearly distinguishable from ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir.1983), and Bostic Oil Corp. v. Michelin Tire Corp., 702 F.2d 1207 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983). In those cases this court held that proof of conduct violative of § 1 of the Sherman Act is proof sufficient to establish a violation of the North Carolina and South Carolina Unfair Trade Practices Acts. But a key to those decisions was this court’s observation that "it is an accepted tenet of basic antitrust law that § 5 of the [FTC] Act sweeps within its prohibitory scope conduct also condemned by § 1 of the Sherman Act." ITCO, 722 F.2d at 48 (citing FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922)).
. See footnote 3, supra.
. See footnote 4, supra.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_respond2_2_2
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
MORRIS COUNTY TRUST FOR HISTORIC PRESERVATION, Morris County Historical Society, and Robert Thompson v. PIERCE, Samuel R., in His Capacity as Secretary of the United States Department of Housing and Urban Development; Town of Dover Redevelopment Agency, a body corporate and politic of the State of New Jersey; and Frank Dill, in His Capacity as Building Inspector of the Town of Dover. Appeal of Samuel R. PIERCE, Secretary of Housing and Urban Development.
No. 82-5656.
United States Court of Appeals, Third Circuit.
Argued on June 7, 1983.
Decided July 29, 1983.
Rehearing and Rehearing En Banc Denied Oct. 3,1983.
Carol E. Dinkins, Asst. Atty. Gen., W. Hugh Dumont, U.S. Atty., Lorraine S. Ger-son, Asst. U.S. Atty., Newark, N.J., Peter R. Steenland, Jr., Martin Green (argued), Attys., Dept, of Justice, Washington, D.C., for appellants.
Mark L. First (argued), Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, N.J., for appellees.
Before SEITZ, Chief Judge, SLOVITER, Circuit Judge and POLLAK, District Judge.
Honorable Louis H. Poliak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SEITZ, Chief Judge.
Samuel R. Pierce, Secretary of the United States Department of Housing and Urban Development (hereinafter referred to as HUD), appeals an order of the district court permanently enjoining demolition of the Old Stone Academy by the Town of Dover Redevelopment Authority (TDRA) until HUD conducts a historical and cultural resource review pursuant to section 106 of the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1976 & Supp.1982), and an environmental clearance pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1976). This court has jurisdiction under 28 U.S.C. § 1291 (1976).
I.
The following facts are undisputed. In 1968, HUD approved an Urban Renewal Plan submitted by the Town of Dover, New Jersey. Among its provisions, the Plan directed that all of the buildings along Dickerson Street would be demolished. Dickerson Street would then be widened, additional parking would be provided, and a new traffic pattern would be established for easy flow and access for the remaining commercial district on Blackwell Street.
One of the buildings slated for demolition according to the plan is the Old Stone Academy. Constructed in 1829, just a few years after Dover’s incorporation and first development, the Old Stone Academy was the Town’s first general public building.
In 1969, HUD and the Town of Dover signed a Loan and Capital Grant Contract pursuant to Title I of the Housing Act of 1949, 42 U.S.C. § 1450 (1976). The Contract provided the funds necessary to undertake the previously approved Urban Renewal Plan, and to carry out the slum clearance and redevelopment of the area. The Loan and Capital Grant Contract was closed out on April 16, 1982, after which time TDRA continued to be funded through a short-term, direct-financing Federal loan.
Defendant TDRA is a body corporate and politic of the State of New Jersey, created by the Town of Dover and charged with implementing the Urban Renewal Plan for the Dickerson Street Urban Renewal Area Project. TDRA acquired ownership of the Stone Academy in December of 1978. On July 7, 1980, TDRA voted to execute the demolition of the building.
Following several skirmishes with TDRA in the courts of the State of New Jersey, appellees Morris County Trust for Historic Preservation, et al. (MCTHP) filed a complaint in the United States District Court for the District of New Jersey. Based on allegations that HUD failed to comply with the environmental and historical review requirements of NEPA and NHPA concerning the proposed demolition of the Stone Academy, MCTHP requested that the demolition of the structure be enjoined until HUD complies with its various statutory and regulatory responsibilities. The parties consented, pursuant to Fed.R.Civ.P. 65(b), to the consolidation of the trial of the action on the merits with the plaintiffs’ application for a preliminary injunction. The district court, agreeing in large part with MCTHP’s contentions, entered an order enjoining the demolition of the Stone Academy until such time as HUD conducts a historical and cultural resource review pursuant to NHPA and an environmental clearance pursuant to NEPA. HUD filed a timely notice of appeal.
II. NEPA
Congress enacted NEPA in 1969 in order “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” 42 U.S.C. § 4321.
NEPA is primarily a procedural statute, Stryckers Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979), designed to ensure that environmental concerns are integrated into the very process of agency decision-making. Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1978); see Baltimore Gas & Electric Co. v. NRDC,-U.S.-,-, 103 S.Ct. 2246, 2251, 76 L.Ed.2d 437 (1983) (NEPA requires federal agencies to take a “hard look” at environmental consequences before taking a major action). An additional goal of NEPA is to inform the public that an agency has considered environmental concerns in its decision-making process. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 142-43, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). To accomplish these ends, NEPA provides, inter alia, that
it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—
******
(4) preserve important historic, cultural, and natural aspects of our national heritage.
42 U.S.C. § 4331(b) (emphasis added).
The heart and soul of NEPA is the requirement that Federal agencies, before taking action that may have a significant effect on the environment, must prepare a detailed environmental impact statement (EIS). In the terms of the statute:
The Congress authorizes and directs that, to the fullest extent possible... (2) all agencies of the Federal Government shall—
******
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
42 U.S.C. § 4332(2)(C) (emphasis added). Once accomplished, an environmental review under NEPA does not necessarily dietate any substantive outcome: the statute is merely intended to make decision makers aware of the potential environmental ramifications of their actions. Township of Lower Alloways Creek v. Public Service Electric, 687 F.2d 732, 739 n. 13 (3d Cir. 1982).
In the present case, it is undisputed that. HUD at no time prepared an environmental impact statement concerning the Dover Urban Renewal Project or considered whether an EIS was necessary. HUD argues that its inaction did not violate NEPA because the effective date of NEPA, January 1, 1970, succeeded the signing of the Loan and Capital Grant Contract by one year, and HUD’s approval of the Urban Renewal Plan by two years.
The district court held, inter alia, that “NEPA [is] applicable to the ongoing Dickerson Street Urban Renewal Project because HUD has remained meaningfully involved in the Project after the date of its approval of the Urban Renewal Plan and the date of execution of the Loan and Capital Grant Contract.” In the district court’s view, HUD’s continuing involvement in the project constituted “major federal action” within the meaning of 42 U.S.C. § 4332(2)(C), thus triggering the environmental review provisions of the Act. Our standard of review of the district court’s holding is plenary.
A. Major Federal Action
HUD’s position is that in cases where the Federal government provides funding for an urban renewal project, major federal action occurs only when the Federal government initially approves the proposed plan or any major amendment to the plan. See 47 Fed.Reg. 56271 (Dec. 15, 1982) (current interim rule); 24 C.F.R. § 50.62 App. A (1982) (prior HUD regulations). HUD relies on several cases which so hold. See e.g., San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024-25 (9th Cir.1973); Sworob v. Harris, 451 F.Supp. 96, 107 (E.D.Pa.), aff’d without opinion, 578 F.2d 1376 (3d Cir.1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979).
By contrast, appellees suggest that the words “major federal action” also require compliance with NEPA at any stage of the implementation of a federally-assisted project where a Federal agency has authority to require alteration of building or design plans to enhance the environment. This construction of NEPA, adopted by the district court, also finds support in several cases. See People Against Nuclear Energy v. United States Nuclear Regulatory Commission, 678 F.2d 222, 231 (D.C.Cir.1982), reversed on other grounds sub nom, Metropolitan Edison Co. v. People Against Nuclear Energy, - U.S. -, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983); WATCH v. Harris, 603 F.2d 310, 318, 326 (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); Hart v. Denver Urban Renewal Authority, 551 F.2d 1178, 1182 (10th Cir.1977); Jones v. Lynn, 477 F.2d 885, 890-91 (1st Cir.1973).
In choosing between these suggested interpretations of “major federal action”, we begin by noting that NEPA neither provides a definition of major federal action, nor addresses the statute’s applicability to ongoing projects approved before the effective date of NEPA. The statute does say, however, that the environmental policies underlying NEPA should be implemented “to the fullest extent possible”, 42 U.S.C. § 4332, and that it is the “continuing responsibility” of the Federal government to preserve important historic, cultural, and natural aspects of our national heritage. 42 U.S.C. § 4331(b)(4). We think these statements, albeit indirectly so, support the district court’s holding that NEPA should be applicable to federally-assisted projects which were initiated prior to 1970 but which remain subject to the authority of a Federal agency to review the implementation of the project on a stage by stage basis. See Concerned Citizens of Bushkill Township v. Costle, 592 F.2d 164, 169, 171 (3d Cir.1976) (because NEPA places “continuing” responsibility on Federal government to consider environmental effects of Federal action, Federal agencies should continue to consider the environmental effects of an ongoing project until there has been an irretrievable commitment of resources); cf. NAACP v. Medical Center, Inc., 584 F.2d 619, 634 (3d Cir.1978) (when Federal agency may act to prevent the environmental consequences of another’s actions, responsibility for those consequences may be fairly considered that of the federal agency for purposes of major “federal” action under NEPA).
Appellees’ interpretation of “major federal action” as including continuing Federal authority also finds support in regulations drafted by the Council on Environmental Quality. 40 C.F.R. § 1500 et seq. (1982). By virtue of Executive Order No. 11991, 3 C.F.R. 124 (1978), these regulations are binding on all federal agencies. People Against Nuclear Energy v. Nuclear Regulatory Commission, 678 F.2d at 231 n. 13 (CEQ guidelines made binding in order to establish uniform procedures for implementing NEPA and to eliminate inconsistent agency interpretations). Consequently, the Supreme Court has held that the CEQ guidelines are entitled to substantial deference in interpreting the meaning of NEPA provisions, even when CEQ regulations are in conflict with an interpretation of NEPA adopted by one of the Federal agencies. Andrus v. Sierra Club, 442 U.S. at 358, 99 S.Ct. at 2341 (CEQ’s interpretation given precedence over contrary interpretation of NEPA adopted by Department of Interior).
Relevant regulations promulgated by CEQ provide that major federal action within the meaning of NEPA includes “new and continuing activities... with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18(a) (1982) (emphasis added). Moreover, the guidelines also provide that “NEPA shall continue to be applicable to actions begun before January 1, 1970, to the fullest extent possible.” 40 C.F.R. § 1506.12 (1982) (emphasis added). In our view, these regulations provide impressive support for the district court’s interpretation of major federal action.
The terms of Executive Order No. 11593, 36 Fed.Reg. 8921 (1971) provide further confirmation of the district court’s interpretation of “major federal action”. This Order states that, “[t]he Federal Government shall provide leadership in preserving, restoring, and maintaining the historic and cultural environment of the nation. Agencies of the executive branch of the government... shall (1) administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations...” The requirement that Federal agencies administer properties under their control in accordance with historic preservation goals is substantially similar to the district court’s holding that an agency must comply with NEPA at any stage of an ongoing project when it may demand an alteration of the project to conform with environmental goals.
Finally, we note that the district court’s interpretation of “major federal action” is consistent with the purpose of NEPA. By requiring Federal agencies to consider the environmental consequences of action for which they are responsible, Congress’ ultimate goal was to prevent environmental damage which is not justified by a countervailing federal interest. Cape May Greene, Inc. v. Warren, 698 F.2d 179, 188 (3d Cir.1983) (NEPA requires balancing between environmental costs and economic and technical benefits). Surely the environmental disturbance caused by a federally-assisted project is' no less significant because of the date of the planning of the project. Jones v. Lynn, 477 F.2d at 888.
HUD does not argue that appellees’ suggested interpretation of NEPA would place undue administrative burdens on the urban renewal process. As HUD acknowledged at oral argument, the district court’s interpretation of NEPA would not necessarily require a Federal agency to prepare an entirely new EIS at each stage of an ongoing project which presents an opportunity for the Federal agency to alter the original plan. For example, an EIS would be unnecessary in cases where a more brief “environmental assessment” would suffice, or when federal action falls within a “categorical exclusion”.
Also, in cases where an EIS or an environmental assessment has already been prepared with regard to a project, a new assessment or EIS would be necessary only when newly acquired information or an environmentally significant change in the project reveals that the prior assessment or EIS is no longer adequate. See 47 Fed.Reg. 56273 (December 15, 1982) (HUD interim rule implementing NEPA) (environmental assessment need be reevaluated and updated only when “the basis for the original environmental finding is affected by a major change requiring HUD approval in the nature, magnitude or extent of a project and the project is not yet complete”); Township of Springfield v. Lewis, 702 F.2d 426, 446 & n. 38 (3d Cir.1983) (courts must allow involved agencies leeway to make a reasoned determination that new studies and information do not require revising and recirculating an EIS). Finally, no environmental assessment or EIS need be prepared for those aspects of a project for which an irretrievable commitment of resources has already produced most of the environmental harm which an EIS would have anticipated. Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir.1977); see Jones v. Lynn, 477 F.2d at 889 (NEPA only requires a meaningful review of Federal action).
Based on our review of the statutory language of NEPA as well as its purpose and implementing regulations, we believe the district court did not err in interpreting the words “major federal action” to require compliance with NEPA at any stage of an ongoing, Federally-assisted project begun prior to 1970 at which a Federal agency has authority to alter the substance of that project. Such an application of NEPA is not retroactive, but prospective, since it seeks “to alter, within proper limits, the aspects of a proposal which have not yet been completed, and not to undo anything which has already proceeded to final [completion]” prior to the effective date of NEPA. Jones v. Lynn, 477 F.2d at 889.
B. Continuing Authority
The district court held that HUD exercised continuing authority over the Dover Urban Renewal Project after January 1, 1970 by virtue of the provisions of the Dover Loan and Capital Grant Contract. Section 108(A) of the Contract requires the local public agency, in this case TDRA, to furnish HUD promptly with documentary data concerning any proposed actions of the local agency pertaining to the project. According to Section 108(B) of the Contract, the purpose of the data submission requirement is to afford HUD the opportunity to “insure that the Local Public Agency shall not take any step which might, in the opinion of the Secretary, violate applicable Federal laws or regulations or provisions of [the] contract....” Section 108(B) authorizes HUD to inform the local agency in writing of its objection to a proposed step, and to refuse a requested payment if the agency proceeds without securing the prior approval of the Secretary of HUD.
Section 108 of the Loan and Capital Grant Contract remained applicable in full until March of 1980, when HUD apprised local agencies, including TDRA, that they were no longer required to comply with the data furnishing provisions of that section. Subsequently, TDRA discontinued submitting data previously required by section 108.
We agree with the district court that, at least until March of 1980, the Loan and Capital Grant Contract provided HUD with sufficient authority over the Dover Urban Renewal Plan to constitute major federal action. Specifically, every instance of data submission by TDRA, as required by section 108(A), provided HUD with an opportunity to alter the plan upon a determination that such action would be necessary for compliance with Federal laws or regulations. Thus, we hold that on at least one of the several occasions between January 1, 1970 and March of 1980 when it accepted data submitted by TDRA concerning the Dover Urban Renewal Project, HUD should have complied with the procedural requirements of NEPA and its implementing regulations.
III. NHPA
Congress enacted NHPA in 1966 in order to “accelerate [the] historic preservation programs and activities [of the Federal Government], to give maximum encouragement to agencies and individuals undertaking preservation by private means, and to assist state and local governments and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities”. 16 U.S.C. § 470(b)(7) (Supp.1982).
NHPA, like NEPA, is primarily a procedural statute, designed to ensure that Federal agencies take into account the effect of Federal or Federally-assisted programs on historic places as part of the planning process for those properties. In this regard, NHPA requires that Federal agencies
shall, prior to the expenditure of any federal funds on [an] undertaking... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation... a reasonable opportunity to comment with regard to such undertaking.”
16 U.S.C. § 470f.
It is undisputed that HUD did not at any time take into account the effect of the Dover Renewal Plan on the Stone Academy, or afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the project. HUD’s position is that the NHPA language “prior to the approval of any federal funds on [an] undertaking” refers only to the original approval of an urban renewal plan and any major amendatory to the plan which requires HUD approval. See Hart v. Denver Urban Renewal Authority, 551 F.2d 1178, 1180 (10th Cir.1977); South Hill Neighborhood Association v. Romney, 421 F.2d 454, 462 (6th Cir.1969); cert. denied, 397 U.S. 1025, 90 S.Ct. 1261, 25 L.Ed.2d 534 (1970), San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025 (9th Cir.1973); Sworob v. Harris, 451 F.Supp. 96, 106 (E.D.Pa.1978). HUD argues that its failure to undertake an historic resource review with regard to the Stone Academy did not violate NHPA because the building was neither listed nor eligible for listing in the National Register for Historic Places until 1982, well after the date of original approval of the Dover Urban Renewal Plan, or of any major amendatory to the Plan.
The district court adopted a somewhat broader interpretation of NHPA, holding that the statute applies at every stage where a federal agency retains authority to approve funding for, and to provide a meaningful review of federally assisted projects which affect historic properties. The court went on to say, inter alia, that “[a]s long as HUD retains the authority to make funding approvals and give continuous permission to acquire properties, demolish buildings, and change the Urban Renewal Plan, primarily under Section 108 of the Loan and Capital Grant Contract, Section 106 of the National Historic Preservation Act applies to require HUD and the Advisory Council on Historic Preservation to give weight to the impact which undertakings have upon historic places.” See WATCH v. Harris, 603 F.2d 310, 326 (2d Cir.1979); Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323, 1339 (S.D.N.Y.1975). Again, our standard of review is plenary.
A. Prior to the Approval of the Expenditure of Any Federal Funds
We begin the task of discerning the proper interpretation of NHPA by noting that the language of NHPA could accommodate either of the different interpretations urged upon us. As the Second Circuit noted in WATCH:
[Some of the language of NHPA suggests] that even a preliminary authorization [of Federal funds] amounts to a cutoff [date for the application of NHPA], Thus, the first sentence of § 106 states that a federal agency having jurisdiction over a “proposed Federal or federally-assisted undertaking” (emphasis added) shall consider its effect on listed properties. And the language “any” in the phrase “prior to the approval of the expenditure of any Federal funds” might refer to the initial funding only. On the other hand, the language also supports the interpretation that the preliminary approval is not a cut-off. The term “proposed” might simply be shorthand for “proposed or continuing”, and “any” might mean any expenditure of federal funds, not the expenditure of initial funds. Moreover, if the statute intended to establish a cutoff once an agency gave preliminary approval to expenditures, one might expect it to read “prior to the approval of the undertaking,” rather than prior to the approval of the expenditure of any Federal funds on the undertaking.”
603 F.2d at 320.
Our review of the legislative history of NHPA also reveals no dispositive answer concerning the proper interpretation of the statute’s applicability to ongoing projects. See WATCH v. Harris, 603 F.2d at 320-323 (summarizing relevant legislative history). The legislative history of NHPA does indicate, however, that Congress designed the statute to draw a meaningful balance between the goals of historic preservation and community development. For example, the House Report accompanying the statute explains that NHPA is an “effort to establish the most effective preservation program possible..: which is consistent with the necessity for progress within our communities.” H.R.Rep. No. 1916, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 3307, 3309. Later in the same Report, the aim of the statute is described as to strike a “meaningful balance... between preservation of... important elements of our national heritage and new construction to meet the needs of our ever growing communities and cities”. Id.
The interpretation of NHPA adopted by the district court, that NHPA is applicable to an ongoing project at any stage where a Federal agency has authority to approve or disapprove Federal funding and to provide meaningful review of both historic preservation and community development goals, closely parallels the purpose of the statute. By contrast, the interpretation of NHPA suggested by HUD would have the applicability of NHPA turn on fortuitous elements unrelated to the policy goals of the statute, elements such as the date of an ongoing project’s initial approval and the possible existence of any major amendatories to the plan.
The district court’s interpretation of NHPA is further corroborated by regulations drafted by the Advisory Council on Historic Preservation. These regulations, adopted by HUD, 47 Fed.Reg. 56269 (Dec. 15,1982), provide that “[a]s early as possible before an agency makes a final decision concerning an undertaking and in any event prior to taking any action that would foreclose alternatives or the Council’s ability to comment, the Agency Official shall take [appropriate] steps to comply with the requirements of Section 106 of the National Historic Preservation Act and Section 2(b) of Executive Order 11593.” Id.
Significantly, Advisory Council regulations define “decision” as “the exercise of or the opportunity to exercise discretionary authority by a federal agency at any stage of an undertaking where alterations might be made in the undertaking to modify its impact upon National Register and eligible properties.” 36 C.F.R. § 800.2(h) (1982). “Undertaking” is defined by the Advisory Council as “any Federal, federally-assisted or federally-licensed action, activity, or program or the approval, sanction, assistance, or support of any non-Federal action, activity, or program. Undertakings include new and continuing projects...” 36 C.F.R. § 800.2(c) (1982).
Read together, these Advisory Council regulations require that NHPA be applied to ongoing Federal actions as long as a Federal agency has opportunity to exercise authority at any stage of an undertaking where alterations might be made to modify its impact on historic preservation goals. This stage by stage approach is almost identical to the interpretation of NHPA subscribed to by the district court, and almost wholly at odds with HUD’s suggested interpretation.
As the Second Circuit noted in WATCH v. Harris, the Advisory Council’s regulations are particularly persuasive concerning the proper interpretation of NHPA, given Congress’ subsequent consideration of those regulations combined with its failure to change any construction provided for therein. 603 F.2d at 324; see Udall v. Tallman, 380 U.S. 1, 17-18, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1964). According to the Second Circuit, the Senate Report’s decision to append two reports of the Advisory Council to a 1976 amendment to NHPA suggests that Congress was aware of the Council’s regulations but chose not to change them. Id. at 325.
At this later date, we have even more reason to believe that Congress has implicitly approved the Advisory Council’s interpretation of NHPA. The House Report accompanying certain 1980 amendments to NHPA demonstrates Congress’ knowledge and approval of certain of the Advisory Council regulations with which we are concerned today.
The Committee also notes that the term “undertaking”, as it is used in other sections of the Act, is meant to be used in the same context as described in Section 106. The Advisory Council on Historic Preservation has adopted an acceptable definition within its regulations, published as 36 C.F.R. 800. The Committee intends that the council take a “reasonable effort” approach in guiding Federal agencies in carrying out their preservation responsibilities. This means that the degree of Federal involvement in an undertaking and the relation of that involvement to the effects on an historic property should both be considered when an agency determines the actions it will take, or which it requires an applicant to take, to comply with the provisions of this Act and its implementing regulations.
H.R.Rep. No. 96-1457, 96th Cong., 2d Sess., reprinted in 1980 U.S.Code Cong. & Ad. News 6408. Although we are aware of the dangers of inferring Congressional intent from inactivity, we believe it is proper to do so where, as here, the interpretation adopted by the regulations in question is consistent with the purpose of the statute and its legislative history. See Merrill, Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381-83, 102 S.Ct. 1825, 1841-42, 72 L.Ed.2d 182 (1982).
HUD’s principal objection to the district court’s interpretation of NHPA is that it would convert “each review and funding action designed to ensure the integrity of the original project into a new opportunity to delay or halt the project; every action taken by HUD under the contract to make sure that the project is on course will present an opportunity to deflect it. Clearly, this is a construction of the statute which places too great an administrative burden on the urban renewal process.” See South Hill Neighborhood Association v. Romney, 421 F.2d 454, 462 (6th Cir.1969) (making similar objection in NEPA case).
The Second Circuit dismissed this objection in WATCH v. Harris by reasoning that “[sjurely the courts would respect reasonable agency procedures for updating past reviews. Similar requirements under NEPA have not proved unworkable.” 603 F.2d at 324 n. 30. Given this Court’s well-established tradition of refusing to place upon Federal agencies meaningless and otherwise unreasonable procedural burdens, see Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir.1977) (NEPA case), we cannot but agree with the Second Circuit’s conclusion.
B. Opportunity to Exercise Authority
The district court held that, by virtue of Sections 108(A) and (B) of the Loan and Capital Grant Contract, HUD maintained continuing supervision over the implementation of the Dover Urban Renewal Project sufficient to trigger the requirements of NHPA. The district court made no attempt, however, to correlate the period during which sections 108(A) and (B) were effective with the status of the Stone Academy vis-a-vis the National Register for Historic Places.
As originally enacted in 1966, NHPA required a historical review only of properties that were listed in the National Register. In 1976, however, Congress amended the statute to require Federal agencies to “take into account the effect of [a Federal or Federally-assisted project] on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f (emphasis added). The Advisory Council’s regulations define “eligible property” as “any district, site, building, structure, or object that meets the National Register criteria.” 36 C.F.R. § 800.2(f) (1982).
Although the Stone Academy was not actually entered in the National Register until May 21, 1982, we believe it met the National Register criteria in 1976, based on the Stone Academy’s 1982 inclusion in the National Register. Therefore, in evaluating the authority vested in HUD by the Loan and Capital Grant Contract, our task is to locate at least one occasion in 1976 or thereafter on which HUD could have demanded an alteration of the Urban Renewal Project.
The record shows that between 1976 and 1980, the Town of Dover at regular intervals submitted data to HUD concerning proposals for implementation of the Dover Urban Renewal Plan. By the terms of sections 108(A) and (B) of the Loan and Capital Grant Contract, each of these occasions provided an opportunity for HUD to demand alterations in the Plan, and to withhold Federal funding if the demand was not met. Therefore, we hold that on at least one of these occasions, HUD should have complied with the procedural requirements of NHPA. Consequently, we believe it was not error for the district court to enjoin the demolition of the Old Stone Academy until HUD conducts a historical resource review pursuant to NHPA.
IV. Conclusion
TDRA has not argued that both NEPA and NHPA either cannot or should not be held applicable to the Old Stone Academy. Cf. WATCH v. Harris, 603 F.2d at 318 (noting argument); id. at 326 (Lumbard, J., concurring) (because NEPA applies to proposed demolition of historic building, no need to consider applicability of NHPA).Current regulations envision that both statutes may be applied simultaneously, and provide procedures by which a single document may often satisfy an agency’s responsibilities under both NEPA and NHPA. See 36 C.F.R. § 800.9 (1982); 40 C.F.R. §§ 1502.25, 1506.4 (1982).
The district court’s order enjoining the demolition of the Old Stone Academy until such time as HUD conducts an historical and cultural resource review of the Academy pursuant to NHPA and an environmental clearance pursuant to NEPA, and presents those studies to the district court for approval upon notice to plaintiff, will be affirmed.
. Previously, CEQ had been authorized by Executive Order No. 11514, § 3(h), only to issue nonbinding “guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment.” 3 C.F.R. § 904 (1966-70 Comp.); Andrus v. Sierra Club, 442 U.S. at 353 n. 10, 99 S.Ct. at 2339 n. 10.
. CEQ guidelines define an environmental assessment as follows:
“Environmental Assessment”:
(a) means a concise public document for which a Federal agency is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.
(2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed actions and alternatives, and a listing of agencies and persons consulted.
40 C.F.R. § 1508.9 (1982).
. CEQ guidelines define a “categorical exclusion” as follows.
“Categorical Exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
|
songer_interven
|
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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
HARTFORD FIRE INS. CO. v. DOLL.
Circuit Court of Appeals, Seventh Circuit.
January 5, 1928.
No. 3892.
1. Insurance <®=539(6) — Failure of insured because of injury to give six-day notice required by fire policy did not bar right to maintain suit.
Failure of insured to give six days’ notice of loss in accordance with requirement of fire policy held not to have barred his right to maintain suit thereon, where failure was due to injury to insured and notice was given by company’s agent, particularly in view of provision of policy in effect contemplating that policy provision for notice would, in practice, be complied with through agent’s report.
2. Insurance <3=668(10) — Evidence as to progress of fire before building fell during tornado he!d for jury.
In suit on fire insurance policy containing a provision to effect that insurance would cease if building should fall, except as result of fire, evidence as to progress of fire before building fell during tornado held sufficient for jury.
3. Insurance <@=>421 — Insurer, under policy excepting liability in case building falls before fire, is liable for entire loss resulting from fire starting before tornado destroyed building.
Where fire policy provided that insurance ■would cease if building fell, except ás result of fire, insurer is liable for entire loss resulting from destruction by fire, which started before building fell during’ tornado.
4. Insurance <@=>499 — Measure of recovery for insured’ property, burning after building fell during tornado, is value at time it burned. '
Measure of recovery under policy providing that insurance should cease if building fell, except as result of fire, is value of property at time it burned, in the condition in whic;h it then was.
In Error to the District Court of the United States for the Evansville Division of the District of Indiana.
Action by George J. Doll against the Hartford Eire Insurance Company. Judgment for plaintiff, and defendant brings error.
Eemanded, with directions.
Burke G. Slaymaker, of Indianapolis, Ind. (Myers & Snerly, of Chicago, Ill., and Slaymaker, Turner, Merrell, Adams & Locke, 'of Indianapolis, Ind., on the brief), for ¡plaintiff in error.
Woodfin D. Eobinson, of Evansville, Ind., for defendant in error.
Before ALSCHULEE, PAGE, and ANDEESON, Circuit Judges.
ALSCHULER, Circuit Judge.
This controversy grows out of two fire insurance policies issued by plaintiff in error company to defendant in error Doll, one for $2,000 on his stock of general merchandise and store fixtures, and one for $6,000, being $5,000 on the merchandise and $1,000 on store fixtures, all contained in a brick store building in Griffin, Ind. Two clauses of the policies are involved, viz.:
“If fire occur the insured shall within six days give notice of any loss thereby in writing to this company.”
“If a building or any part thereof fall, except as the result of fire, all insurance by ■ this policy on such building or its contents shall immediately cease.”
There are involved, also, the questions whether the judgment finds support in the evidence, and of the correctness of the court’s charge respecting the measure of recovery.
Griffin was visited by a tornado, which destroyed all but 4 of its 75 houses, killing 50 of its inhabitants, and injuring others. Doll’s store fell, and he was severely injured, being rendered unconscious for some days, blind for several weeks, and confined during that time, and some weeks more, in a hospital 25 miles away.
There was evidence to the effect that, just before the tornado struck, there was fire in the merchandise, counter, and shelving on the. south side of the store, near a stove in which there was a hot coal fire burning. Following the building’s fall, the inflammable debris, including the fallen merchandise, was burned; all of the stock and fixtures which had been covered by the policies being thus consumed by fire.
Doll could not and did not himself give to the company, within six days, notice of the loss. His father-in-law, Armstrong, who was the company’s agent at Griffin, sent the company, within the six days, the report in writing of the loss, usual under the policies. After leaving the hospital, and within the time fixed by the policies, Doll supplied the company with proofs of loss, setting forth a total loss by fire under the policies; the sound value of the stock and fixtures before any fire or tornado being fixed at over $16,000.
The court charged the jury, in effect, that, if there was fire in the merchandise and fixtures before the tornado caused the building or any substantial part of it to fall, the company would be liable to the same extent as if the insured property had been wholly destroyed by fire, and the tornado had not ■intervened. The verdict was for the full amount of the policies, and judgment was given accordingly.
We consider first the company’s contention that Doll’s failure to give the notice under the six-day clause of the policy barred his right to maintain the suit.. To this we cannot accede. The clause in no way concerns the indemnity itself, but only the procedure after loss under the policies has accrued. Whatever the office of the clause may be under usual conditions, it is hardly possible that its literal application to the extraordinary circumstances here appearing was within the intent of the parties.
The Supreme Court considered a question quite similar in principle in Germania Fire Ins. Co. v. Boykin, 12 Wall. 433, 20 L. Ed. 442. There the policies required that in ease of loss the insured render the insurers a statement of the origin of the fire, particular account of the loss, etc., to be signed and sworn to by the insured. He submitted his affidavit containing statements which, if true, would have invalidated the policies. For the insured it was contended he was insane when he made and submitted the affidavit, and thereupon the companies maintained that, if he was insane, the required proof was not supplied, and the action must fail for want of it. Of this contention the court said: “It is too repugnant to justice and humanity to merit serious consideration. There are two obvious answers to it. * * * Second, if he was so insane as to be incapable of making an intelligent statement, this would of itself excuse that condition of the policy.”
Other eases where eourts have held that impossibility of compliance will excuse performance of conditions appertaining to procedure after loss occurs under insurance contracts, are Woodmen Accident Ass’n v. Pratt, 62 Neb. 673, 87 N. W. 546, 55 L. R. A. 291, 89 Am. St. Eep. 777; Eeed v. Loyal Protective Ass’n, 154 Mich. 161, 117 N. W. 600; Stevens & Co. v. Frankfort Marine, etc., Co. (C. C. A.) 207 F. 757, 47 L. R. A. (N. S.) 1214.
But in our view the record discloses a further reason why the clause does not bar the action. From the testimony of the company’s local agent, Armstrong, it is fairly inferable that in this, as in all eases, it is the company’s local agent who, learning of the loss, undertakes compliance with the requirement of notice, by sending to the company, on blanks provided by the company for that purpose, the first information respecting the occurrence, and the desired details. Armstrong made such report to the company, not only of .this but of other cases where he had placed such policies and the insured property was burned on that occasion. He represented several companies, all of which had supplied him with such loss report blanks. Some of the blanks became lost in the storm, and he used for all the losses such as he had remaining. The conclusion that it was contemplated that the policy provision for this notice would, in practice, be complied with through this report of the agent, is helped by a printed clause on the report blank, which is:
“Instructions to Insured. — It is the duty of the insured to use his best endeavors to protect the property insured against loss or damage both during and after a fire. Follow the directions of the policy in this matter. Agents will so instruct insured, should such instruction be necessary.”
This is, in effect, a direction by the company to its agent to notify the insured to do something which, in the same sentence of the policy as that which prescribes the notice of loss, and in terms no less imperative, requires the insured to do the very things whereof the agent, by this clause, is directed to remind him. The fair inference is that the information of the fire will be communicated through the agent; but as to the care of the property after the fire the agent should remind the insured of his contractual duty, which manifestly the insured, rather than the agent, is ordinarily best able to perform.
It is contended for the company that the evidence wholly fails to show that the burning of the property insured commenced before the fall of the building, or any part of it, and that therefore its motion for a directed verdict should have been granted. Coneededly, if the insured property did not start to bum until after the building fell, the fallen building clause of the policies would bar recovery. It appears that, very shortly before the tornado which destroyed the building, there was a blast of wind which shattered the glass of the store front. The evidence showing fire in the store before this breaking of the glass is, to say the least, meager, and the company claims that such evidence is entirely wanting, and that the breaking of the glass was such a falling of part of the building as voided the policies, and relieved it from liability thereafter for any fire loss.
The glass in such a building is not an integral part of the structure itself, in that it holds or sustains any part of it, but is held by the building structure. It is an exceedingly fragile element, easily shattered by wind pressure or a comparatively slight blow, leaving the structure, as such, wholly intact. The breaking of windows is of such frequent occurrence, resulting from such a variety of causes, as to make it quite absurd to suppose the clause contemplates that every such breaking should be regarded as sueh a partial falling of the building as ipso facto to terminate the insurance. Had the broken glass been the extent of the storm’s toll, and had no fire occurred about that time, it would border on the fantastic to assume that either party would have considered the contract thereby terminated.
The company’s contention that the evidence fails to show fire in the store a,t any time before the building’s fall is not supported by the record. Two witnesses testified without reserve that, very shortly before the building fell, the counters next to the open stove door and the shelving back of the counters and the merchandise there and thereabout were buming.i One of them, Doll himself, said he was at the front when the glass was broken, and, turning around and starting back toward the stove, he saw fire as stated. Another witness says he saw it from the outside, and his evidence may even warrant the conclusion that this was before the glass was broken. There are some witnesses who saw the light, but could not say whether it was light from the open stove door or from fire in the merchandise. A number of witnesses testified to being in the store at the time, and that they saw no fire other than that in the stove, and smelled none. While their testimony coneededly throws much doubt on the correctness of the testimony of those who positively swore they did so see it, the question was for the jury. The court distinctly charged that, if the insured property was not on fire before the building fell, there can be no recovery on the policies. The jury’s finding of liability is a necessary finding that some of the insured property was afire before the building fell, and this we are not at liberty to disturb, even though a perusal of the record might indicate to us tiiat a contrary conclusion would have been easily sustainable.
We cannot say from the evidence that it is impossible or even improbable that the truth on this proposition is on the side of defendant in error. There was a large stove about the center of the store, near its south side, whose large southerly facing door had been opened some minutes before to cheek the strong coal fire in the stove.- The extraordinary atmospheric conditions might suddenly have drawn or blown fire from the stove toward the nearby merchandise and fixtures and very quickly ignited them; and while the burning coal would have been sufficient to have first ignited the fire after the fall of the building, it is not less possible that, if the merchandise were burning when the building fell, it continued to bum, causing the fire which coneededly destroyed the merchandise, which had fallen with the building. All this involved questions for the jury, by whose finding thereon, followed by the judgment of the court, we are bound. We cannot say the court erred in failing to hold, as a matter of law, that the evidence did not warrant the conclusion that fire in the merchandise and fixtures was in progress before the building fell.
It follows that the company is liable on the policies, at least to the extent that the insured merchandise and fixtures were damaged by fire up to the falling of the building, and the verdict further establishes that the fire, after the fall, was a continuation of the fire in progress before the building fell.
This brings us to the question whether, in any event, the company is liable for fire loss occurring after the building fell. The jury was charged that, if the fire which destroyed the insured property started before the building fell, the company was liable for the entire fire loss. The authorities upon the proposition in the main sustain the propriety of this charge. Davis v. Com. Fire Ins. Co., 158 Cal. 766, 112 P. 549, 32 L. R. A. (N. S.) 604; Wiig v. Girard F. & M. Ins. Co., 100 Neb. 271, 159 N. W. 416, L. R. A. 1917F, 1061; Rochester German Ins. Co. v. Peaslee-Gaulbert Co., 120 Ky. 752, 87 S. W. 1115, 27 Ky. Law Rep. 1155, 1 L. R. A. (N. S.) 364, 9 Ann. Cas. 324; s. c., 120 Ky. 752, 89 S. W. 3, 28 Ky. Law Rep. 130, 1 L. R. A. (N. S.) 364, 9 Ann. Cas. 324; Jones v. German Ins. Co., 110 Iowa, 75, 81 N. W. 188, 46 L. R. A. 860; May on Insurance (3d Ed.) § 401; 6 Cooley, Briefs on the Law of Insurance (Suppl.) p. 327, *p. 836; Joyce on Insurance (2d Ed.) § 1446. . -
We are not disposed to depart from the principle declared by these authorities, and under these we hold the liability of the company to extend to the entire loss resulting from the destruction by fire of the property insured.
But there is yet another serious question —one which goes to the extent of the recovery. The court charged the jury, in substance, that, if the fire started before the building fell, the plaintiff was entitled to recover the full amount of the policies, since the evidence shows all the insured property was totally destroyed by fire, and was worth more than the face of the policies. The court declined to instruct, as requested by defendant, that plaintiff could not recover for any loss to the insured property occasioned by the building’s fall.
It is plain from the evidence that, up to the time the building fell, whatever fire there was in the store was confined to merchandise, shelving, and counters on the south side, in the vicinity of the stove. It was in the shoes and overalls, and possibly some other lines, of this stock of general merchandise. It seems that the bulk of the stoek was on the north side of the store and in adjacent rooms, all of which went down with the building. It is manifest that all such as was not, up to that time, destroyed or damaged by fire, was very materially damaged in the fall of the store. It is too plain for argument that whatever fire there was then in the store to no extent contributed to its fall. The damage to the stock and fixtures by the fall of the store was from a cause wholly independent of the fire, and for any damage thus caused this insurer against fire loss only was not responsible.
If, for example, the stoek which went down with this brick building consisted of eroekery, glassware, eggs, and the like, it is highly probable that the value of such merchandise would entirely disappear with the fall; and if thereafter fire attacked what was left of it, no damage to such would be attributable to the fire, since it had then no value. Groceries, clothing, dry goods, tin ware, and most other merchandise, if plunged into the ruins of a two-story briek building containing it, would most likely be materially damaged thereby, and, if thereafter it was destroyed by fire, the recoverable loss under the policy of fire insurance would be the value of the property just before it was so destroyed.
A situation quite similar in principle was dealt with in Liverpool, London & Globe Ins. Co. v. McFadden (2 C. C. A.) 170 F. 179. The fire had burned for several days, and the question was whether the measure of insurance recovery on a large quantity of baled cotton was the market price at the time the fire began, or the somewhat larger price at the time the fire actually reached and destroyed the cotton in question. From the opinion we quote:
“The extent of the company’s liability, as there declared, is not the cash value at the time the property is exposed to the danger of loss by the outbreak of the fire, but the actual cash value at the time the loss occurs, which is necessarily to be referred, if material, to the time when, in point of fact, as nearly as can be ascertained, the fire reaches and consumes or damages it. It may be arrested before it gets there, or be put out with only trifling loss. It is what happens in this respect, and just as it happens, that controls. Possibly it might conduce to certainty to have the loss estimated as of the time when the fire starts. But there is nothing which compels this construction. * *
Applying here the principle of that case, it would follow that the measure of recovery as to the insured property which burned after the building fell, was its value at the time it burned, in the condition in which it then was. That there may be difficulty in fixing the value of the property at the various stages is apparent; but because oO the difficulty alone the insurer should not be penalized. From the condition here appearing it would seem not impossible to fairly approximate the value of the stock that went down into the débris — both the sound value and its value after this damage from the casualty not insured against. What stock there originally was is no doubt definitely known, and the salvage value of such stocks after the fall of the buildings in which they are contained is a matter of very wide experience with those versed in such things. It can only be said that in this case, as well as in others, the best evidence should bo adduced of which the ease is susceptible, and the trier of facts should make the best ‘possible approximation in determining such questions of fact. The recovery should not exceed the loss which was occasioned by fire alone — the only hazard against which the policies were written.
To the extent that the court charged the measure of recovery to be the full face of the policies, the province of the jury was invaded, and error intervened, and, likewise, in refusing to give the above-mentioned requested charge. But we are not disposed to reverse the judgment generally, and to order a retrial upon all the issues. The error extends only to the assessment of the damages, and for the purpose only of correcting this error the cause should be remanded.
The cause is remanded to the District Court, which is hereby directed to submit for retrial the question only of the amount of loss upon the insured property caused by fire alone, eliminating whatever damage was caused to any of such insured property by the fall of the building in which it was contained.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
songer_appel1_1_3
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
ROSCOE MOSS COMPANY, Creditor in the matter of: Fred William Walker, aka Fred W. Walker, F. W. Walker and as Fred Walker, Appellant, v. J. M. DUNCAN, Trustee in the matter of: Fred William Walker, aka Fred W. Walker, F. W. Walker and as Fred Walker, Appellee.
No. 19082.
United States Court of Appeals Ninth Circuit.
Sept. 14, 1964.
Richard W. Horton, Stewart, Horton & MeCune, Reno, Nev., Arguello, Gio-metti, McCarthy, San Francisco, Cal., for appellant.
Raymond Anixter, Shapro, Anixter & Aronson, Burlingame, Cal., for appellee.
Before HAMLEY and BROWNING, Circuit Judges, and TAYLOR, District Judge.
TAYLOR, District Judge.
This is an appeal from an Order of the United States District Court for the Northern District of California affirming the Order of the Referee in Bankruptcy in favor of the Appellee and against Appellant.
This Court has jurisdiction under Section 24 of the Bankruptcy Act (11 U.S.C. § 47).
According to the stipulated facts the Appellant (Mortgagee) filed a proof of secured claim with Appellee (trustee) asserting a claim for $10,994.31 to be secured by a chattel mortgage upon certain well drilling equipment which mortgage was recorded in Monterey County, California ; that the well drilling equipment was removed from Monterey County into Santa Cruz County, California, where it remained more than thirty days prior to the filing of the petition in bankruptcy; that the mortgage was never recorded in Santa Cruz County and there are creditors of the bankrupt who became such while the mortgage was unrecorded in said county; that some but not all of the creditors of the bankrupt had knowledge of the recordation of the mortgage in Monterey County; and that the mortgagor was a resident of the State of California at the time the mortgage was made.
Based on these facts the Referee and the District Court held that appellant’s mortgage was void as against the trustee in bankruptcy and that appellant’s claim against the estate of the bankrupt was unsecured.
Appellant specifies that it was error for the District Court to affirm the Order of the Referee in that: “a. The lien of the trustee in bankruptcy is inferior to the lien of the chattel mortgage of appellant and appellant’s claim in bankruptcy should be allowed as a secured claim.”
The question here is whether under the agreed facts of this case, the chattel mortgage is valid or invalid as against the trustee in bankruptcy.
The resolution of the issue depends primarily on the interpretation of Sections 2957 and 2965 of the California Civil Code. However, in the first instance we must look to the Bankruptcy Act to determine the rights and power of a trustee in regard to the property of a bankrupt.
Section 70, sub. c, of the Bankruptcy Act (11 U.S.C.A. § 110, sub. c) gives-the trustee all of the rights of a lien creditor upon property in which the bankrupt has an interest or as to which the bankrupt has an interest or as to-which the bankrupt may be the ostensible-owner.
Under Section 70, sub. e, of the Act (11 U.S.C.A. § 110, sub. e) a trustee “is empowered to act in a representative capacity in behalf of the actual creditors of the bankrupt. * * * He is given the powers they would have had in the event of non-bankruptcy, and thus has the same right they would have had to attack a lien on the bankrupt’s property. * * * If one creditor could have prevailed against the holder of the security, the trustee in bankruptcy can avoid the security in its entirety. Thus, the rights of a single creditor, however minor his claim, redound to the benefit of all creditors in bankruptcy.” Mal-lagh v. Bank of America, 300 F.2d 679 (9th Cir. 1962).
Section 2957 of the California Code provides:
“A mortgage of personal property * * * is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless
* * * * -x- *
“4. The mortgage, if of personal property other than crops growing or to be grown or animate personal property, is recorded in the office of the recorder of each of the counties where the property mortgaged is located and where the mortgagor resides at the time the mortgage is executed, provided that in case the mortgagor is a nonresident of this .State no recordation where the mortgagor resides is required, and, in case the property mortgaged is thereafter removed to another county of this State, either the mortgage is recorded in that county or there is or has been filed a statement of recordation as prescribed in Section 2965; * * *”
It is provided in Section 2965 that:
“When personal property mortgaged (other than animate personal property mortgaged by a resident of this State, and motor vehicles and other vehicles defined in and the mortgaging of which are regulated by the California Vehicle Act) is removed from the county in which it is situated, constructive notice of the mortgage imparted by recordation shall not be affected thereby for 30 days after such removal; but, after the expiration of such 30 days, said recordation shall not impart constructive notice while said property remains removed from the county:
“1. Until the mortgagee causes the mortgage to be recorded in the county to which the property has been removed; or
“2. Unless the mortgagee causes or has caused a statement of recordation to be filed; or “3. Until the mortgagee takes possession of the property as prescribed in the next section.”
The District Court held that according to the provisions of Sections 2957 and 2965 of the California Civil Code a creditor without notice prevails against a prior chattel mortgagee who has not recorded his mortgage when the property is removed to another county. We agree.
In Mallagh v. Bank of America Nat. Trust and Sav. Assoc., supra, this Court considered a similar situation in regard to rights of a trustee as to mortgaged property when it was removed by a mortgagor to a second county and there was a failure to re-record the mortgage in the new county or to file a statement with the Secretary of State of California as required by Section 2965 of the California Code. Thex-e it was definitely held that “[t]he chattel mortgage of the Bank became invalid 30 days after removal of the mortgaged property to Kern County, and the failure of the Bank to x'e-record its mortgage in Kern County or to file the required statement with the Secretary of the State of California.” Id. at 682.
In the case hex-e the appellant failed to re-record its mortgage in Santa Cruz County or file the required statement with the Secretary of the State of California.
In accord with the holding in the Mallagh case, cited and approved in Republic Supply Company of California v. MacMullen, 328 F.2d 785 (9th Cir., 1964), appellant’s mortgage became invalid 30 days after the removal of the mortgaged property from Monterey County to Santa Cruz Couxxty, Califox-nia,
Appellant bottoms his contention on an interpretation of Section 2957 which to us does not appear to be reasonable or realistic. He argues that in a case of a resident mortgagox-, when the mortgage has been recorded in the county where the property is located and the county where the mortgagor resides, the property can be moved into another county and remain there for any length of time without any re-recording as required by Section 2965. We do not agree.
It seems clear to us that Section 2957 applies to re-recording of a mortgage in the case of a resident as well as a nonresident. In either case the mortgage is invalid against creditors unless there is a compliance with Section 2965.
Since Section 70, sub. e(l) of the Bankruptcy Act gives the trustee the powers which any of the creditors might have had, in the absence of bankruptcy; and Section 70, sub. c, gives the trustee the status of an imaginary ci-editor holding a lien on the bankrupt’s property by legal or equitable proceedings at the time of bankruptcy (Republic Supply Company v. MacMullen, supra) and since appellant’s mortgage was invalid as against creditors, it follows that the mortgage was invalid as to the Trustee in Bankruptcy.
The Order of the District Court affirming the Order of the Referee in Bankruptcy is affirmed.
. Section 70, sub. c, of the Bankruptcy Act (11 U.S.C.A. § 110, sub. c.) provides:
“(c) The trustee may have the benefit of all defenses available to the bankrupt as against third persons, including statutes of limitation, statutes of frauds, usury, and other personal defenses: and a waiver of any such defense by the bankrupt after bankruptcy shall not bind the trustee. The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”
. Section 70, sub. e, of the Bankruptcy Act (11 U.S.C.A. § 110, sub. e) provides:
“(e) (1) A transfer made or suffered or obligation incurred by a debtor adjudged a bankrupt under this title which, under any Federal or State law applicable thereto, is fraudulent as against or voidable for any other reason by any creditor of the debtor, having a claim provable under this title, shall be null and void as against the trustee of such debtor.
“(2) All property of the debtor affected by any such transfer shall be and remain a part of his assets and estate, discharged and released from ■such transfer and shall pass to, and ■every such transfer or obligation shall be avoided by, the trustee for the benefit of the estate: Provided, however, 'That the court may on due notice order such transfer or obligation to be preserved for the benefit of the estate •and in such event the trustee shall ■succeed to and may enforce the rights of sucli transferee or obligee. The trustee shall reclaim and recover such property or collect its value from and avoid such transfer or obligation against whoever may hold or have received it, except a person as to whom the transfer or obligation specified in paragraph (1) of this subdivision is valid under applicable Federal or State laws.
“(3) For the purpose of such recovery or of the avoidance of such transfer or obligation, where plenary proceedings are necesary, any State court which would have had jurisdiction if bankruptcy had not intervened and any court of bankruptcy shall have concurrent jurisdiction.”
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_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Eugene Kevin WELLS, Plaintiff-Appellant, v. Edward MURRAY, Director, Virginia Department of Corrections, Defendant-Appellee.
No. 86-7683.
United States Court of Appeals, Fourth Circuit.
Argued March 2, 1987.
Decided Oct. 13, 1987.
Deborah C. Wyatt (Gordon & Wyatt, Jeffrey M. Gleason, Martin & Martin, Charlottesville, Va., on brief), for plaintiff-appellant.
Frank Snead Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Virginia, Richmond, Va., on brief), for defendant-appellee.
Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.
ERVIN, Circuit Judge.
This is an appeal from the dismissal of Eugene Kevin Wells’s federal habeas corpus petition. Wells shot and killed a teenager who had vandalized his car. At trial in Virginia state court, there was conflicting evidence as to whether this shooting was accidental or not. The jury convicted Wells of first degree murder and use of a firearm in the commission of a felony. After his appeal to the Virginia Supreme Court was dismissed, Wells petitioned for habeas corpus relief in federal district court. His petition was denied.
On appeal, Wells claims several procedural errors of a constitutional magnitude. He attacks the trial court’s refusal to allow defense counsel to ask certain questions during voir dire, the trial court’s exclusion of expert testimony concerning the propensity of his weapon for self-firing, and the propriety of jury instructions on self-defense. In our view, none of these alleged errors warrant reversal. Accordingly, we affirm the denial of Wells’s habeas corpus petition.
I.
At the time of the shooting incident, Wells lived in a remote area of Culpeper County, Virginia. On the weekend of September 3, 1983, a group of teenagers went camping near Wells’s home. Wells discovered some of the teenagers vandalizing his car. One of the youths, eighteen year-old Joe Maybury, had smashed a rear window of the car. When Wells confronted the teenagers, they fled. Wells then returned to his home and considered the situation while drinking several beers.
Later that afternoon, Wells went to a lake where the teenagers were swimming. He took his shotgun with him. As he came upon the youths, Wells fired a warning shot into the air. He recocked his weapon and advanced upon the boys. There was conflicting testimony at trial as to the ensuing events. According to the prosecution’s witnesses, Wells pointed the shotgun at Maybury and prodded him with it; May-bury was shot when he tried to push the shotgun away. Wells testified that May-bury attempted to grab the shotgun, that there was a struggle over possession of the weapon, and that the weapon accidentally discharged during the struggle. Maybury was shot in the abdomen. He subsequently died as a result of his gunshot wounds.
Wells was tried before a jury in the Circuit Court of Culpeper County in December, 1983. He was convicted of first degree murder and use of a firearm in the commission of a felony. Wells was sentenced to life imprisonment for the murder charge and a term of two years for the firearms charge. He unsuccessfully appealed to the Virginia Supreme Court. He then petitioned for habeas corpus relief in federal district court, but his petition was denied. Wells now appeals the denial of his federal habeas corpus petition.
II.
A. Voir Dire
Wells first claims that he was denied a fair trial, in violation of the sixth amendment and the due process clause of the fourteenth amendment of the United States Constitution, because the trial judge failed to inquire adequately into juror prejudice on voir dire. Wells’s claim arises from the publicity surrounding an earlier Culpeper County trial.
Less than a week before Wells’s trial, several of the jurors who were in his jury pool sat on another criminal case involving embezzlement charges, Commonwealth v. Richards, (Criminal Court File No. 2516, Nov. 30, 1983). In Richards, the jury returned a verdict of not guilty. The presiding judge, who was not the judge in Wells’s trial, criticized the jurors upon hearing their verdict. He stated that, by their verdict, the jurors were “telling the ’citizens and people of Culpeper County that it’s all right for an employee to [embezzle].” He called their verdict a “gross miscarriage of justice.” The judge asserted that he would have found the defendant guilty in about two minutes. He then discharged the jurors, admonishing them to return by December 6, 1983, the opening day of Wells’s trial. The judge's criticism attracted the attention of a local newspaper, which printed a front-page story on the incident.
At the start of Wells’s trial, defense counsel proposed several voir dire questions based on the jurors’ prior participation in the Richards case. Counsel wished to inquire whether the jurors were more inclined to convict Wells after being chastised for their leniency by the judge in Richards. The trial judge did not permit those questions to be asked. Instead, the judge asked more general questions, such as whether any of the prospective jurors had a personal interest in the outcome of Wells’s case, and whether any of them had prior knowledge of Wells’s case. When the prospective jurors indicated such prior knowledge, the judge questioned them individually, asking them what they had learned and how their knowledge would affect their views of the case. All of the veniremen questioned stated that their knowledge of the case would not influence their decision.
Wells claims that these questions were insufficient, and that the trial court committed reversible error by failing to inquire into the effect of the public castigation which the Richards jurors experienced. His claim raises the much-litigated issue of pretrial publicity. It is firmly established that a defendant such as Wells is entitled to a fair trial, free from publicity that prejudices jurors against the defendant at its outset. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (“the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors”); see also United States v. Sawyers, 423 F.2d 1335, 1344 (4th Cir.1970). Jurors, however, are presumed to be impartial, absent indications to the contrary. The existence of a juror’s preconceived notion as to the guilt of the accused will not by itself destroy the presumption of impartiality. See Irvin, 366 U.S. at 723, 81 S.Ct. at 1642-43. Only in extreme circumstances may prejudice to a defendant’s right to a fair trial be presumed from the existence of pretrial publicity itself. See United States v. Haldeman, 559 F.2d 31, 60, (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).
In other, less extreme situations, when external events such as pretrial publicity raise a strong possibility of jury bias, the court has a duty to determine whether the accused may have a fair trial. Inquiry into jury bias typically entails an evaluation of “the pre-trial publicity complained of and its impact, if any, on the jury, as developed through adequate voir dire examination of the jurors____” Wansley v. Slayton, 487 F.2d 90, 92-93 (4th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974).
It is the defendant’s responsibility to demonstrate a strong possibility of jury bias. He must show, through adequate voir dire, that he was denied his right to a fair trial before a panel of unbiased jurors. See Haldeman, 559 F.2d at 60. The assertion that voir dire was inadequate, by itself, does not prove that the jury was not impartial. As noted in Wansley, “ ‘it is not sufficient to simply allege adverse publicity without a showing that the jurors were biased thereby.’ ” Id. at 92 n. 8 (quoting Ignacio v. Guam, 413 F.2d 513, 518 (9th Cir.1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970)).
In this case, Wells has not shown that he was, in all likelihood, denied his right to a fair trial. The publicity which Wells complains of — publicity surrounding the verdict in the Richards case — simply does not raise a strong possibility of jury bias. The trial court, then, acted within its discretion in refusing, during voir dire, to inquire into the effects of that publicity on the Richards jurors.
We reach this conclusion after much thought and consideration. A comparison of this case with leading decisions concerning the effects of pretrial publicity on the extent of voir dire is instructive. Wells urges us to analogize his case to the Supreme Court’s decision in Irvin. The analogy is not an appropriate one. In Irvin, the defendant was indicted on murder charges in one Indiana county, where press releases stated that the defendant had confessed to the murder. The defendant was granted a change of venue to a nearby county that had also received the press releases. He was denied a second change of venue to a more remote county, and was subsequently convicted. The Supreme Court held that the defendant was denied his due process rights under the fourteenth amendment because his trial in state court was not impartial.
The situation in Irvin must be distinguished from the instant situation. In Irvin, the unfavorable publicity concerned the defendant himself, and it was disseminated throughout the community in which he was tried. By contrast, in this case, the publicity of which Wells complains did not concern Wells and the shooting incident. Instead, the media reported the castigation of several of Wells’s veniremen by a different judge, in a different ease, involving different issues. Wells asserts that this castigation made the Richards jurors reluctant to acquit a defendant in a later case. His assertion is too weak to warrant a reversal, especially in light of the Irvin Court’s cautionary note:
It is not required ... that the jurors be totally ignorant of the facts and issues involved____ To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
366 U.S. at 722-23, 81 S.Ct. at 1642-43.
Like Irvin, later Supreme Court decisions have stressed that the kind of adverse publicity that warrants reversal of a criminal conviction is publicity that concerns the defendant himself. See, e.g., Sheppard v. Maxwell, 384 U.S. at 363, 86 S.Ct. at 1522 (reversal of murder conviction required when defendant’s alleged crime was subject of heavy media coverage before and during the trial, and trial judge failed to shield defendant from publicity). Additionally, every case we have examined that discusses the trial court’s duty, during voir dire, to inquire into the effects of pretrial publicity, focuses on publicity about the defendant. See, e.g., Jordan v. Lippman, 763 F.2d at 1265-67 (trial court’s failure to conduct voir dire on inflammatory publicity in murder trial of black inmate violated defendant’s constitutional rights); United States v. Davis, 583 F.2d 190, 196 (5th Cir.1978) (inadequate voir dire required reversal of defendant’s conviction where defendant participated in widely-publicized jailbreak).
This distinction between publicity about the defendant and other types of publicity is strengthened by our decision in Wansley v. Slayton. In Wansley, we held that the denial of a defendant’s motion for a change of venue based upon adverse pretrial publicity was not a violation of due process. Significantly, we noted that:
The most strongly pressed complaint of the petitioner on publicity ... deals with comments published from time to time, not about the petitioner, but about one of his counsel---- It is doubtful, however, that any pre-trial reference in the press to an accused’s attorney in the absence of any prejudicial or unfair comment on the accused himself or the merits of his offense, can justify a finding that the accused’s right to a fair trial has been so prejudiced that due process is violated.
Wansley, 487 F.2d at 95 (emphasis in the original).
The distinction we draw between unfavorable pretrial publicity about a defendant, which often warrants a voir dire inquiry, and publicity about other matters, which may not warrant such an inquiry, seems to us a reasonable one. The trial court’s duty to inquire into the effects of any adverse publicity on jurors’ views is not absolute; this duty is prompted only by a “constitutionally significant likelihood that, absent questioning[,] ... jurors would not be indifferent____” Turner, 106 S.Ct. at 1686. As Irvin and its progeny indicate, the likelihood of juror bias is strongest when the adverse publicity concerns the defendant himself and creates a hostile atmosphere in the community that permeates the jury box. The possibility of juror bias is much more remote when the publicity neither affects the defendant, nor gives the jury any concrete reason to doubt the defendant’s innocence. This was the case in Wansley, in which the publicity of which the defendant complained involved defense counsel, rather than the defendant. It is also the case here, because the publicity at issue concerned the jurors’ participation in an earlier trial, rather than the defendant.
Our conclusion is also supported by decisions discussing the effect that a trial judge’s remarks about a jury’s verdict have on the jurors. Generally, reviewing courts have not treated such remarks harshly; a trial judge’s comments do not warrant reversal unless they are so prejudicial as to constitute the denial of a fair trial. See United States v. Preston, 608 F.2d 626, 636 (5th Cir.1979). Courts have applied this principle to a judge’s remarks about a verdict, as well as a judge’s comments during trial. See United States v. Benson, 495 F.2d 475 (5th Cir.), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 310 (1974); United States v. Salazar, 480 F.2d 144 (5th Cir.1973); Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969).
Salazar is especially instructive, since it involves a factual situation similar to our own. In Salazar, the defendant was prosecuted for possession of marijuana with the intent to distribute. His venire included twelve individuals who had sat on a similar criminal case involving a different defendant. In that earlier case, the jury had acquitted the defendant. The trial judge, like the Richards judge, had expressed his disagreement with the jury’s decision. Significantly, the Salazar court found that the judge’s public disapproval of the verdict in the earlier case was not dispositive: “The mere fact that a judge informs a jury, after the verdict, that he probably would have reached a different conclusion does not disqualify that jury for further service.” Salazar, 480 F.2d at 145.
The Benson court relied on this language in finding no prejudice to the defendant, although his venire included several jurors who had been praised by the same judge for returning a guilty verdict in an earlier case. See Benson, 495 F.2d at 482. The government had argued that defense counsel had made several procedural mistakes, such as failing to exercise any peremptory challenges, which should have precluded defendant’s claim of prejudice. The court stressed that, regardless of whether or not these alleged mistakes occurred, the defendant was not denied his right to an impartial jury. The court relied upon Salazar’s ruling that the judge’s comments disapproving the jury’s verdict did not bar jurors from further service; it extended that ruling to the judge’s comments approving the jury’s verdict. Benson suggests that the principle articulated in Salazar may be applied to a number of situations in which the trial court comments upon the jury’s verdict, including the situation presented in Wells’s case.
Chavez-Martinez, which was decided pri- or to Salazar and Benson, also found no prejudice resulting from a judge’s post-verdict comments. In that case, the defendant was convicted of drug smuggling charges. The defendant claimed that the trial judge erred in not asking potential jurors, on voir dire, whether they would be influenced by the judge’s criticism of a jury’s verdict in another case. The court of appeals held that the defendant was not prejudiced by the trial judge’s omission. The court found that the trial judge’s questions to the jury had eliminated any possible prejudice to the defendant.
The few decisions which adopt a more restrictive tone, see, e.g., United States v. Bland, 697 F.2d 262 (8th Cir.1983); Everitt v. United States, 281 F.2d 429 (5th Cir. 1960), and indicate that the trial judge’s post-verdict comments may hamper jurors from serving on further juries, are distinguishable from Wells’s case. In Bland, the defendant was convicted in federal district court for violations of gun control laws. After the jury returned its verdict, the trial judge remarked that criminal cases tried in federal court are generally more thoroughly investigated than those tried in state court. The judge also observed that successful defenses are less frequent in federal court than in state court and that most federal defendants are guilty of the crimes with which they are charged. The court of appeals held that the trial judge’s post-verdict remarks were not prejudicial to the defendant. Yet, the court also observed that the judge’s remarks would be prejudicial to other criminal defendants tried in federal court, because several of the jurors were likely to sit on additional federal criminal cases. See Bland, 697 F.2d at 266.
The general nature of the trial court’s statement in Bland distinguishes that case from the present situation. The observations made by the Bland judge about the differences between federal and state trials, and the culpability of most federal criminal defendants, had broad applicability. These statements could have influenced the jurors’ decisions in future criminal cases they might sit on. It was the broad nature of the trial judge’s statements which the Bland court focused upon in indicating that those statements were prejudicial. By contrast, in the present case, the statements by the Richards judge of which Wells complains were narrowly tailored to fit the case at hand. The trial judge in Richards simply criticized the jurors for acquitting the defendant of embezzlement charges. His remarks, unlike the remarks of the trial judge in Bland, may not have influenced the jurors in future cases. We cannot say that the statements of the judge in Richards prejudiced the jurors, who considered a wholly different set of facts and charges in Wells’s case.
Like Bland, Everitt is distinguishable from Wells’s case. The Everitt court examined the impact on the defendant, Glenn, of an earlier trial involving his codefendant, Everitt. The court held that it was reversible error to allow several jurors to sit on Glenn’s jury after they had returned a guilty verdict in Everitt’s case and had been praised by the trial judge for their speedy decision.
Clearly, the two cases on which the jurors sat were more closely related in Everitt than in the present situation. In Everitt, the two cases involved codefendants; the jurors were likely to have received unfavorable information about Glenn when they sat on Everitt’s jury. The trial judge was the same in the two cases; the jurors might have felt compelled to present the judge with another guilty verdict after he had praised them for their decision in Everitt’s case. Neither of these considerations applies in the present situation. Wells’s case was unconnected to the Richards case, and the trial judge in Wells’s case was not the same judge who presided over the Richards trial.
We conclude that the trial judge did not commit reversible error in failing to question the prospective jurors about the impact which the Richards case had on them. We hasten to add, however, that we do not condone the behavior of the trial judge in Wells’s case. The better practice would have been for the trial judge to prevent the Richards jurors from sitting in Wells’s trial. The judge could have easily discovered which of the veniremen sat on the Richards jury, and removed them from the jury selection process. In this manner, the judge would have forestalled the complaint that Wells now makes. Yet, because Wells’s complaint raises no substantial likelihood of prejudice, the trial judge’s actions do not warrant a reversal.
B. Refusal to Admit Evidence that the Gun Fired Accidentally
Wells’s primary theory of defense at trial was that the gun which killed Maybury discharged accidentally during the struggle between Wells and Maybury. A state expert examined the gun and determined that it could be made to fire without pulling the trigger. Wells sought to introduce evidence to that effect at trial, and the judge held an evidentiary hearing after excusing the jury. In the course of the evidentiary hearing, the expert testified that he had caused the gun to fire by hitting it with a mallet. The expert also testified that the gun could have fired accidentally during a struggle, but only if it was struck against a solid object. The court refused to admit the expert testimony that the gun would discharge if hit with a mallet or struck with a solid object, basing its ruling on the fact that there was no evidence that the gun had received such a blow during the struggle.
Evaluation of the admissibility of evidence is normally the province of the trial judge. See Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706 (1972); Savage v. Nute, 180 Va. 394, 23 S.E.2d 133, 137 (1942). However, exclusion of evidence so significant that the defendant is denied due process constitutes reversible error. See, e.g., United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (prosecution’s failure to disclose exculpatory evidence); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right to confront witnesses). At a minimum, for the exclusion of evidence to constitute a denial of due process, the defendant must show that the excluded evidence would have been material to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).
Wells makes no such showing. He asserted during oral argument that the failure to allow the introduction of the expert testimony adversely affected the jury’s perception of his credibility, since he testified that the gun had discharged accidentally. That argument is not persuasive. Wells would not have appeared any more credible in light of evidence that the gun could, in theory, discharge accidentally. The testimony which he sought to introduce would have shown that the gun could discharge accidentally only in circumstances other than those which he testified existed, i.e., upon a blow from a solid object.
C. Jury Instructions
Wells claims that the trial judge erred in instructing the jury on self-defense. Wells requested a jury instruction on pure self-defense, which the judge declined to give. Instead, the judge gave an instruction pertaining to self-defense after withdrawal from aggression. On appeal, Wells attacks both the trial judge’s failure to give his instruction and the propriety of the instruction that the judge did give.
Wells’ contention that the trial judge should have instructed the jury on pure self-defense can be quickly answered. A defendant is only entitled to a charge for which there is a foundation in the evidence. See United States v. Parker, 742 F.2d 127, 129 (4th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 575, 83 L.Ed.2d 514 (1984); 2 C. Wright, Federal Practice & Procedure § 485, at 710 (1982). It was simply not open to Wells to claim pure self-defense when he had initiated the altercation by approaching the unarmed victim and pointing a loaded shotgun at him.
Wells’s second claim is that the self-defense instruction which was tendered — as to withdrawal after aggression — was misleading and confusing. We reject Wells’s claim that the charge might have led the jury to conclude that self-defense was not a defense available to him. The withdrawal instruction read as follows:
The court further instructs the jury that where the plea of self defense is relied upon in a trial for murder, the law is that a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty. If you believe that the defendant was with some fault in provoking or bringing on the scuffle, and if you further believe that when attacked he retreated as far as he could safely, as he safely could under the circumstances in a good faith attempt to abandon the fight and made known his desire for peace by word or act and that he reasonably feared under the circumstances as they appeared to him that he was in danger of being killed or was, or he was in danger of great bodily harm, then the killing was in self defense and you shall find the defendant not guilty.
In reviewing this jury instruction, we must read the instruction as a whole. See Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Gore v. Leeke, 605 F.2d 741, 742-43 (4th Cir.1979), cert. denied, 444 U.S. 1087, 100 S.Ct. 1048, 62 L.Ed.2d 774 (1980). Surely, the jury would not have thought that the first sentence of the charge (“a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty”) mooted the effect of the following sentences which addressed self-defense after aggression and withdrawal.
Apart from the merits of the claim that the instruction was confusing, the government argues that Wells cannot now raise the issue, because he failed to enter a contemporaneous objection at trial. A federal habeas petitioner who has failed to comply with the contemporaneous objection rule at trial must show cause for the procedural default and some resulting prejudice in order to obtain review of his constitutional claim. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2678, 91 L.Ed.2d 397 (1986) (Brennan, J., dissenting) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Wells can show neither cause nor prejudice. Thus, his claim of prejudice from the misleading jury instruction must fail for the additional reason of procedural default.
In conclusion, we uphold the decision of the district court denying Wells’s habeas corpus petition. We find no merit in Wells’s attacks on the exclusion of expert testimony and the jury instruction on self defense. The voir dire issue is more difficult to. resolve. We are, however, unwilling to upset the trial court’s refusal to question the jurors about the Richards case, when Wells has not shown that the court’s action created a substantial likelihood of prejudice.
The judgment of the district court denying the petition for habeas corpus is
AFFIRMED.
. See Hoffman, "Judge Raps Jury for Setting Richards Free,” Culpeper Star Exponent, Dec. 1, 1983, at 1-2, cols. 1-3.
. Such affirmations are not universal guarantees of prospective jurors’ impartiality. See, e.g. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975): "In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question.” The veniremen’s avowals of impartiality, however, are most suspect where the jury is comprised of individuals from a community deeply hostile to the accused. See id.
The situation described in Murphy is not present in this case. Wells does not claim that such a hostile atmosphere existed in Culpeper County. In Wells’s case, we think that the trial judge’s questions concerning prior knowledge of the shooting incident, and the veniremen’s responses, are factors in determining the adequacy of voir dire. See) e.g., United States v. Gullion, 575 F.2d 26, 30-31 (1st Cir.1978) (when trial judge polled veniremen for bias resulting from pretrial publicity, conduct of voir dire did not give rise to a sixth amendment violation).
. The Haldeman court ruled that the extensive news coverage surrounding the Watergate affair, standing alone, did not raise a presumption of prejudice to the defendants' constitutional rights. The court stressed that cases creating such a presumption were rare; the Supreme Court had found only one instance where this presumption applied. See Rideau v. Louisiana 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Haldeman, 559 F.2d at 60-61.
In Rideau, the defendant’s confession to bank robbery, kidnapping, and murder was filmed and subsequently televised to tens of thousands of people in Calcasieu Parish, which had a total population of only 150,000. The court held that this publicity, which was tantamount to Rideau’s confession to a large segment of the community, prejudiced his right to a fair trial.
Wells's case is clearly distinguishable from the Rideau situation. In contrast to Rideau, Wells strenuously argues his innocence, maintaining that Maybury’s shooting was accidental. Moreover, as developed further in the text of this opinion, Wells does not even complain of publicity which involved him, but only of publicity involving several of the jurors.
. This strong possibility of jury bias has been characterized as a “reasonable likelihood,” Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), a "constitutionally significant likelihood," Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1686, 90 L.Ed.2d 27 (1986), or a "significant possibility," Jordan v. Lippman, 763 F.2d 1265, 1267 (11th Cir.1985).
. In Ignacio, defense counsel failed to question the veniremen about the effect of the alleged pretrial publicity, although the trial judge gave counsel ample opportunity to do so. Despite the trial judge’s less compromising position in the present case, we think the principle articulated in Ignacio is applicable since Wells’s claim of bias is quite attenuated.
. Wells also asks us to draw a parallel between his case and the Supreme Court’s decisions stressing the necessity of an adequate voir dire when racial prejudice is a factor. In his brief, Wells relies upon a number of decisions in which the Court considered a trial court’s refusal to ask prospective jurors about their racial biases upon the request of a black defendant. See Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).
In Ham, the Court held that the inquiry into racial prejudice was of "constitutional stature.” Ham, 409 U.S. at 528, 93 S.Ct. at 851. Yet, subsequent decisions limited the scope of Ham. For instance, in Ristaino, the Court cautioned that “[b]y its terms Ham did not announce a requirement of universal applicability. Rather, it reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be [indifferent]____" Ristaino, 424 U.S. at 596, 96 S.Ct. at 1021.
More importantly, we think that the cases treating racial bias are not applicable to the present situation. Those cases are premised on the notion that racial bias may pose a constitutionally significant threat to the jurors’ impartiality. Such a powerful threat is absent in Wells’s case. Indeed, the Ham decision itself makes a distinction between inquiries into racial prejudice and other forms of prejudice. For example, the Court held that the trial court’s refusal to question prospective jurors about their prejudices against bearded men, when the defendant was bearded, did not amount to a constitutional violation. See Ham, 409 U.S. at 528, 93 S.Ct. at 851.
. Our decisions in a related field also support the distinction between publicity unfavorable to a defendant and other types of publicity. See Donovan v. Davis, 558 F.2d 201 (4th Cir.1977); Wall v. Superintendent, Virginia State Penitentiary, 553 F.2d 359 (4th Cir.1977). In both of these cases, we found that the defendant was denied his right to a fair trial because several of the jurors had previously sat on a jury which had received unfavorable information about the defendant. We stressed that it was the receipt of information about the defendant himself which potentially prejudiced the jurors and denied the defendant the right to a fair trial. See Donovan, 558 F.2d at 204.
. The expert also stated that he had performed a “push-puH" test, reenacting with defense counsel the kind of struggle Wells testified had taken place. The gun did not discharge during the push-pull test. In the course of the hearing the expert unsuccessfully attempted to make the gun fire by hitting it painfully hard with his hand.
. The instruction that Wells requested read:
If you believe that the defendant was without fault in provoking or bringing on the scuffle and if you further believe that the defendant reasonably feared, under the circumstances as they appeared to him, and he was in danger of being killed or that he was in danger of great bodily harm, then the killing was in self-defense and you shall find the defendant not guilty.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_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.
ESTATE OF Nelson A. ROCKEFELLER, Deceased, Laurance S. Rockefeller, J. Richardson Dilworth and Donal S. O’Brien, Jr., Executors and Margaretta F. Rockefeller, Appellants. v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 1041, Docket 84-4182.
United States Court of Appeals, Second Circuit.
Argued April 22, 1985.
Decided May 24, 1985.
William E. Jackson, New York City (Stuart E. Keebler, Joseph M. Persinger, Milbank, Tweed, Hadley & McCloy, New York City), for appellants.
Glenn L. Archer, Jr., Asst. Atty. Gen., Washington, D.C. (Michael L. Paup, Richard Farber, Bruce R. Ellisen, Attys., Tax Div., Dept, of Justice, Washington, D.C.), for appellee.
Before FEINBERG, Chief Judge, and FRIENDLY and NEWMAN, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal by the Estate of Nelson A. Rockefeller and his widow from a decision of the Tax Court, 83 T.C. 368 (1984), Featherston, J., presents a new variation on the old theme of what constitutes “ordinary and necessary expenses paid or incurred ... in carrying on any trade or business,” I.R.C. § 162(a), which are deductible in determining net income. Appellants contended that expenses incurred by Mr. Rockefeller in connection with the confirmation by the Senate and the House of Representatives, pursuant to the Twenty-Fifth Amendment, of his nomination to be Vice President of the United States were such expenses. The Commissioner of Internal Revenue denied this, the Tax Court agreed, and this appeal followed. We affirm.
The case arises as follows: Mr. Rockefeller incurred expenses of $550,159.78 in connection with the confirmation hearings in 1974, primarily for legal and other professional services. The Commissioner does not contend that the expenses were excessive or unreasonable in relation to the services rendered. In their joint income tax return for 1974, which showed a gross income of $4,479,437, Mr. and Mrs. Rockefeller claimed a deduction of $63,275 — an amount of these expenses equal to his salary as Vice President during the year. When the Commissioner of Internal Revenue disallowed this deduction, Mr. Rockefeller’s estate and Mrs. Rockefeller petitioned for review by the Tax Court and asserted that the entire amount of $550,-159.78 was deductible as expenses of the trade or business of “performing the functions of public office.”
The case was submitted on a rather meagre stipulation of facts which cited only Mr. Rockefeller’s tenure as Governor of New York State between January 1959 and December 1973, when he resigned to devote his full time to the Commission on Critical Choices for Americans (1973-74) and the National Commission on Water Quality (1973-74), as showing the trade or business in which Mr. Rockefeller had engaged. However, copies of the hearings before and the reports of the Senate and House Committees on his nomination as Vice President were attached to the stipulation, and the Tax Court’s opinion lists other positions held by Mr. Rockefeller referred to in these hearings, as follows: Coordinator of Inter-American Affairs (1940-44), Assistant Secretary of State for American Republic Affairs (1944-45), Chairman of the Presidential Advisory Board on International Development (1950-51), Undersecretary of Health, Education and Welfare (1953-54), and Special Assistant to the President for International Affairs (1954-55). 83 T.C. at 374-75.
Discussion
Decision turns on the interpretation of the familiar provision of I.R.C. § 162(a), going back to the Revenue Act of 1918, which allows as a deduction
all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.
Also relevant is I.R.C. § 7701(a)(26), adopted as § 48(d) of the Revenue Act of 1934, 48 Stat. 680, 696, ch. 277, which says:
The term ‘trade or business’ includes the performance of the functions of a public office.
Almost all discussions of the problem here at issue begin, and many of them end, with McDonald v. C.I.R., 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed.2d 68 (1944), although in fact it sheds a most uncertain light. McDonald had been appointed to serve an unexpired term as judge on a Pennsylvania court, carrying an annual salary of $12,000, with the understanding that he would be a contestant in the ensuing primary and general elections for a full term of ten years. To obtain the support of his party organization, he was forced to pay an “assessment” of $8,000, which was to be used for the support of the entire ticket; he spent an additional $5,017.27 for expenses of his own campaign. The Commissioner disallowed the deduction of both amounts. The Tax Court affirmed, 1 T.C. 738 (1943), as did a sharply divided Supreme Court. The bases for the decision are not altogether clear. At one point Justice Frankfurter emphasized that McDonald’s “campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years.” 323 U.S. at 60, 65 S.Ct. at 97. Perhaps fearing that this being-becoming distinction would cut too widely, Justice Frankfurter elaborated other factors. One was that allowance of a deduction for the assessments paid by McDonald would lead to deductions by persons who were not candidates but paid “such ‘assessments’ out of party allegiance mixed or unmixed by a lively sense of future favors,” id., a proposition which would not necessarily follow and which in any event would not explain the disallowance of McDonald’s own campaign expenses. This was followed by a sentence, again emphasizing the being-becoming distinction but with a different thought added for good measure, 323 U.S. at 60-61, 65 S.Ct. at 97:
To determine allowable deductions by the different internal party arrangements for bearing the cost of political campaigns in the forty-eight states would disregard the explicit restrictions of § 23 confining deductible expenses solely to outlays in the efforts or services — here the business of judging — from which the income flows. Compare Welch v. Helvering, 290 U.S. 111, 115-116 [54 S.Ct. 8, 9, 78 L.Ed.2d 212 (1933)].
After disposing of arguments based on what are now I.R.C. § 165 and § 212(1), he continued with some observations concerning the increased public hostility to campaign contributions by “prospective officeholders, especially judges,” and then concluded on two notes. One was that, 323 U.S. at 63-64, 65 S.Ct. at 98-99:
To find sanction in existing tax legislation for deduction of petitioner’s campaign expenditures would necessarily require allowance of deduction for campaign expenditures by all candidates, whether incumbents seeking reelection or new contenders. To draw a distinction between outlays for reelection and those for election — to allow the former and disallow the latter — is unsupportable in reason. It is even more unsupportable in public policy to derive from what Congress has thus far enacted a handicap against candidates challenging existing office holders. And so we cannot recognize petitioner’s claim on the score that he was a candidate for reelection,
(footnote omitted). The other was the desirability of according special deference to the Tax Court’s determination on a matter of the sort subjudice, id. at 64-65, 65 S.Ct. at 99. The Supreme Court has not had subsequent occasion to revisit the field plowed in McDonald.
The courts have echoed the various themes sounded in McDonald. Some decisions have stressed the being-becoming distinction; see, e.g., Diggs v. C.I.R., 715 F.2d 245, 250 (6 Cir.1983). Others have emphasized the policy argument against deduction of campaign expenses, namely, that allowing such deductions would involve the whole community in partial subsidization of the electoral expenses of a particular candidate — a subsidy that would pay a larger amount of the campaign expenses of high than of low bracket candidates. See, e.g., James B. Carey, 56 T.C. 477, 479-81 (1971), aff'd per curiam, 460 F.2d 1259 (4 Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 325, 34 L.Ed.2d 257 (1972). The appellants distinguish the latter cases, stressing that the expenses here at issue were not incurred in an election in which Mr. Rockefeller was pitted against another citizen but in a confirmation in which he was the only candidate. However, the policy argument in McDonald is only dubiously applicable to Campbell v. Davenport, 362 F.2d 624, 626 (5 Cir.1966), Nichols v. C.I.R., 511 F.2d 618 (5 Cir.) (en banc), cert. denied, 423 U.S. 912, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975), and Levy v. United States, 535 F.2d 47, 26 Ct.Cl. 97, cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976), disallowing the deduction of small qualification fees payable by any candidate to his party to help to defray the costs of conducting the primary election and of which “[n]o part ... was used to espouse the causes of party candidates in the general election.” Nichols, supra, 511 F.2d at 619. Further support for the Commissioner’s position can be found in Joseph W. Martino, 62 T.C. 840, 844 (1974), disallowing deduction of legal fees incurred by a successful primary candidate in defending his victory against an election contest suit filed by his opponent; Martino, like Mr. Rockefeller, was not seeking the suffrage of the people as against another candidate.
Appellants’ principal argument is that a post-McDonald decision of the Tax Court, in which the Commissioner has acquiesced, David J. Primuth, 54 T.C. 374 (1970), has undermined the being-becoming distinction. Primuth, the secretary-treasurer of a small corporation, Foundry Allied Industries, enlisted the aid of a “head-hunter” organization to find him a better job. This work resulted in his employment as “secretary-controller” of a company with greater geographical scope. The Tax Court held that the fees and expenses paid to the headhunter organization were deductible under I.R.C. § 162.
Judge Sterrett’s opinion for a plurality took off from the proposition that “a taxpayer may be in the trade or business of being an employee, such as a corporate executive or manager,” 54 T.C. at 377, rather than or in addition to the trade or business of holding a particular job, citing numerous cases including our own Hochschild v. C.I.R., 161 F.2d 817 (1947). With that established, Judge Sterrett believed that “the problem presented ... virtually dissolve[d] for it is difficult to think of a purer business expense than one incurred to permit such an individual to continue to carry on that very trade or business — albeit with a different corporate employer.” 54 T.C. at 379. However, he proceeded to emphasize the relatively narrow scope of the decision, id.:
Furthermore, the expense had no personal overtones, led to no position requiring greater or different qualifications than the one given up, and did not result in the acquisition of any asset as that term has been used in our income tax laws. It was expended for the narrowest and most limited purpose. It was an expense which must be deemed ordinary and necessary from every realistic point of view in today’s marketplace where corporate executives change employers with a noticeable degree of frequency. We have said before, and we say again, that the business expenses which an employee can incur in his own business are rare indeed. Virtually all his expenses will be incurred on behalf of, and in furtherance of, his corporate employer’s business. What we have here, however, is an exception to that rule.
(footnote omitted). Judge Tannenwald, joined by three other judges, concurred: they were concerned over the “subtle distinctions” which they saw developing in the deduction of employment agency fees and suggested that “everyday meaning” should be the touchstone in interpreting § 162. 54 T.C. at 382. In a separate concurring opinion, Judge Simpson took issue with language in the plurality opinion which he feared might confine the decision to cases where the taxpayer actually secured a new job. Id. at 383. Judge Featherston’s concurrence placed greater weight on a Revenue Ruling that explicitly “allow[ed] deductions for fees paid to employment agencies for securing employment.” Id. at 384. Six judges dissented. The Department of Justice rejected the Commissioner’s request for an appeal and the Commissioner acquiesced in the result, 1972-2 Cum.Bul. 2 (1972).
In Leonard F. Cremona, 58 T.C. 219 (1972), a majority of the Tax Court rejected an attempt by the Commissioner to contain Primuth to cases where the employee had in fact obtained a new position. Again the Department of Justice declined a request to appeal and the Commissioner acquiesced, 1975-1 Cum.Bul. 1 (1975).
However, the erosion of the being-becoming distinction effected by Primuth and Cremona and the Commissioner’s acquiescence in these decisions was partial only. The Tax Court, with the approval of the courts of appeals, has limited deductibility to cases where the taxpayer was seeking employment in the same trade or business. Moreover, the courts have insisted on a high degree of identity in deciding the issue of sameness. Thus, in William D. Glenn, 62 T.C. 270 (1974), the court found that the broader scope of activities permitted in Tennessee to certified public accountants as compared with public accountants made the former a new trade or business and, in consequence, that the expense of taking a review course designed to assist the taxpayer in qualifying for certification was not deductible. Similarly, being a registered pharmacist constitutes a different trade or business than being an intern pharmacist, so that expenses of attending courses on pharmacology were not deductible, Gary Antzoulatos, T.C.Memo. 1975-327 (1975). In Joel A. Sharon, 66 T.C. 515 (1976), aff'd, 591 F.2d 1273 (9 Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979), the Tax Court disallowed an IRS attorney’s deductions for expenses related to taking the California bar examination. The court found that these expenditures would permit the taxpayer to engage in the new “trade or business” of the general practice of law in the State of California. The Ninth Circuit agreed with the Tax Court’s reasoning that private practice involved “significantly different tasks and activities” from those required of an IRS lawyer, 591 F.2d at 1275. See, to the same effect, Joseph J. Vetrick, T.C. Memo. 1978-83 (1978), aff'd, 628 F.2d 885 (5 Cir.1980). The Tax Court has also disallowed a deduction for helicopter training expenses by an airline pilot. Edward C. Lee, T.C. Memo. 1981-26 (1981), aff'd on other grounds, Lee v. C.I.R., 723 F.2d 1424 (9 Cir.1984). The court found that “a helicopter pilot is in a different trade or business than is an airline pilot” and, since the taxpayer flew only fixed-wing aircraft in his current employment, “the helicopter flight training [led] to Mr. Lee’s qualification in a new trade or business.” Joseph Sorin Schneider, supra, T.C. Memo. 1983-753 (1983), denied a deduction sought by a taxpayer who had resigned from the U.S. Army with a captain’s commission and who later, after graduation, entered the business world as a consultant, for amounts spent in applying to graduate schools, in getting the graduate degrees of M.B.A. and M.P.A. at Harvard, and in seeking a summer job in Europe. The court said that the taxpayer’s business had been that of an Army officer and rejected his claim that he had been in the business of being a “manager” — a claim strongly resembling the one made here that Mr. Rockefeller was in the business of being “a governmental executive.” In Roger Eugene Evans, T.C. Memo. 1981-413 (1981), the court denied'a deduction for job seeking expenses to a taxpayer who had been in the Air Force for 22V2 years and had risen to the rank of Lieutenant Colonel and the post of special assistant to the commander of an Air Force base. The court was convinced that “petitioner’s service as an Air Force officer cannot be compared to any employment he might have obtained outside the Air Force” and that while he “undoubtedly sought employment that would utilize the skills he had acquired during his military career, he [had] failed to show that there would not be substantial differences between the employment he sought to obtain in the private sector and his service as an Air Force officer.” In sum, the Tax Court’s decisions have adopted what Judge Tannenwald, in his concurring opinion in Primuth, characterized as “the simple test of comparing the position which the taxpayer occupied before and after the change,” 54 T.C. at 382, and conform to the statement in Kenneth C. Davis, 65 T.C. 1014, 1019 (1976), that “[i]f substantial differences exist in the tasks and activities of various occupations or employments, then each such occupation or employment constitutes a separate trade or business.”
Appellants’ brief uses a number of different phrases to describe Mr. Rockefeller’s trade or business at the time of his nomination to be Vice President — “an executive in federal and state governments” (p. 8); “an executive in public office” (p. 8); “an executive in public service” (p. 17); and “a governmental executive” (p. 22). In fact, the only public posts Mr. Rockefeller held at the time of his nomination were the chairmanships of two commissions, posts in which he had no executive duties. One of these, the National Commission on Water Quality was created by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, to review water pollution control methods and issue a report to Congress recommending modifications. Although Mr. Rockefeller was elected chairman by the other members when he joined the Commission while still Governor of New York, the record reveals almost nothing about his activities there. The Commission on Critical Choices for Americans was an idea of Mr. Rockefeller’s. It was not a governmental body, although its membership included some members of Congress and of the executive branch. Since federal funding was denied, the Commission was funded from private sources and foundation grants. If only these two activities were to be considered, it would be plain beyond all argument that holding the chairmanship of these Commissions and being Vice President are not the same trade or business but rather separate trades or businesses, if indeed membership on the commissions, particularly the Commission on Critical Choices, was a trade or business at all.
However, a taxpayer who is unemployed when the expenses are incurred is “viewed as still engaged in the business of providing the type of services performed for [his] prior employer, unless ‘there is a substantial lack of continuity between the time of [the employee’s] past employment and the seeking of the new employment.’ ” 1 Bittker, Federal Taxation of Income, Estates and Gifts § 20.4.6, at 20-85 to 20-86 (1981), quoting Rev.Rul. 75-120, 1975-1 Cum.Bul. 55, at 56; see, 4A Mertens, The Law of Federal Income Taxation § 25.08, at 33 (1985) (taxpayer’s “trade or business [does] not cease to exist during a reasonable period of transition”). See also Stephen G. Sherman, supra, T.C. Memo. 1977-301. Appellants urge that this principle allows us to look to Mr. Rockefeller’s fifteen years of service as Governor of New York in considering whether the confirmation expenses on his nomination to be Vice President were in connection with the continuation of the same trade or business. We disagree, for two reasons. In order to take advantage of what is called the “hiatus” principle, a taxpayer must at least show that during the hiatus he intended to resume the same trade or business. See Sherman, supra, T.C. Memo. 1977-301. There is no such showing here. Mr. Rockefeller clearly did not intend to run again for Governor after having resigned that office after holding it for fifteen years. Indeed, the stipulation states that Mr. Rockefeller resigned the governorship “to devote his full time to the Chairs” of the two commissions, and there is nothing to suggest that he was contemplating holding executive public office again. The Vice Presidency became available only due to the resignation of President Nixon in the summer of 1974 — an event that was not foreseeable until shortly before it occurred. We also cannot fault the Tax Court’s holding that being governor of the second most populous state in the union and being Vice President of the United States are not the same trade or business in the narrow sense in which sameness has been consistently characterized. While there are certain areas of overlap, the governorship entails many duties — enforcement of the laws of the state, developing and promoting new laws, supervising a multitude of departments and agencies having thousands of employees and spending billions of dollars, proposing and securing the passage of a budget and the revenues needed to meet it, making appointments, and lobbying for the interests of the state with the Federal Government — which either find no counterparts in the Vice Presidency or find them only to the extent, usually quite limited, which the President has directed. On the other hand, the Vice Presidency involves many duties not found in the governorship of New York — presiding over the Senate, acting on behalf of the President on ceremonial occasions both within and without the United States, and executing special assignments by the President — not to speak of the Vice President’s most important task, readying himself for the possibility of assuming the Presidency on a moment’s notice. Although positions with somewhat different duties and responsibilities may be found to be within the same trade or business, whether in public or private employment, the Tax Court’s finding that the Vice Presidency involved a trade or business for Mr. Rockefeller different from any in which he was engaged at the time of his nomination is not one that we are free to disturb, see I.R.C. § 7482(a).
Appellants ask us to take a still broader view and consider Mr. Rockefeller as having been engaged in the same trade or business since his appointment as Coordinator of Inter-American Affairs in 1940. But the cases do not recognize a definition of “trade or business” wide enough to bring all Mr. Rockefeller’s various posts within it. While there might be sufficient resemblance and continuity between the posts of Coordinator of Inter-American Affairs which Mr. Rockefeller held between 1940 and 1944 and that of Assistant Secretary of State for American Republic Affairs which he held between 1944 and 1945 to have qualified him as being in the business of being a public servant with special interest and expertise in Latin America, we see little resemblance between these positions and his service as Undersecretary of Health, Education and Welfare in 1953 and 1954 or as Governor of New York between 1959 and 1973. Furthermore there are substantial gaps between Mr. Rockefeller’s various posts — five' years between 1945 and 1950, one and one-half years between 1951 and 1953, three years between 1955 and 1958 — far longer than the “hiatus” theory would recognize. See, e.g., Canter v. United States, 354 F.2d 352, 173 Ct.Cl. 723 (1965) (taxpayer who discontinued nursing activities for more than four years held not to retain status of being in the trade or business of nursing); Peter G. Corbett, 55 T.C. 884 (1971). See also Rev.Rul. 68-591, 1968-2 Cum.Bul. 73 (1968) (“Ordinarily, a suspension [of employment] for a period of a year or less, after which the taxpayer resumes the same ... trade or business, will be considered temporary”). Our reading of the record shows Mr. Rockefeller as a distinguished and public-spirited citizen, ready, for a third of a century, to put his great abilities at the disposal of the government in both appointive and elective office. While he was, of course, entitled to deduct unreimbursed expenses incurred in performing the functions of any of the many offices he held, I.R.C. § 7701(a)(26), the Tax Court was warranted in holding that he had not engaged in any trade or business comparable to the Vice Presidency, within the rather narrow sense which the courts have reasonably given to the concept of identity. We therefore have no occasion to decide whether the “policy” reasons underlying the decisions disallowing expenses incurred in elections apply to expenses incurred in seeking confirmation to an appointive office which would seem to be properly regarded as the same trade or business, or whether if they generally do not, there are special considerations for applying them to the unusual bicameral confirmation required by the Twenty-Fifth Amendment which the Commissioner characterizes as the equivalent of an election.
The judgment of the Tax Court is affirmed.
. Mrs. Rockefeller’s involvement arises solely because she and Mr. Rockefeller filed a joint return.
. The Senate and Conference Committee Reports describe this addition as "clerical” and "declaratory of existing law,” S.Rep. No. 558, 73d Cong., 2d Sess. at 29; H.R.Rep. No. 1385, 73d Cong., 2d Sess. at 17 (Conference Report) (1934). A discussion before the Senate Committee on Finance suggests that the primary reason for the provision was to overcome doubts whether Senators were engaged in a "trade or business” so as to permit deduction for extra staff and telephone expenses. 1 Hearings before Committee on Finance on H.R. 7835, 73d Cong., 2d Sess. (March 6, 1934), p. 29-30. The Ninth Circuit has said that § 48(d) was adopted to modify the general rule that “in order for an activity to be considered a trade or business under Section 162 it must be engaged in for profit.” Frank v. United States, 577 F.2d 93, 95 (9 Cir.1978). The court cited Jackling v. C.I.R., 9 B.T.A. 312, 320 (1927), as the "best statement of the [existing] law" with respect to public offir cers, which the amendment was said to have codified. In Jackling, the Board of Tax Appeals allowed business deductions by a war-time government employee whose salary was only one dollar a year and rejected the Commissioner’s argument that the expenses were not deductible because the taxpayer’s employment was not profit motivated. Further support for this reading of § 48(d) can be found in Revenue Ruling 55-109, 1955-1 Cum.Bul. 262 (1955), in which the Commissioner interpreted the section as allowing a public office to be treated as a trade or business “even though the incumbent thereof may serve without compensation, a factor which is ordinarily regarded as a prerequisite to the pursuit of a trade or business."
. Justice Frankfurter delivered a plurality opinion for himself, Chief Justice Stone and Justices Roberts and Jackson. Justice Rutledge concurred in the result. Justice Black dissented for himself and Justices Reed, Douglas and Murphy. It may not be altogether accidental that three of the dissenters had held elective office, an experience not shared by any member of the plurality.
It should be noted that the dissenters did not disagree with the plurality’s conclusion that the amounts were not "ordinary and necessary expenses of a trade or business”; they argued rather that the expenses came within what is now § 212(1), adopted in 1942 to overrule Higgins v. C.I.R., 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783 (1941), which allowed deduction of "the ordinary and necessary expenses [of an individual] paid or incurred ... for the production or collection of income.”
. The force of this distinction between election and confirmation expenses is debatable. Mr. Rockefeller’s expenses included not simply amounts incurred in preparing answers to questions of Senators and Representatives but also amounts incurred, with entire propriety, in convincing Congress that he was a good selection for Vice President. Nomination of Nelson A. Rockefeller to be Vice President of the United States: Hearings before the House Comm, on the Judiciary, 93d Cong., 2d Sess., pp. 1-3 (1974). While Mr. Rockefeller was not in direct contest with anyone, others were waiting in the wings if Congress was not so convinced. For reasons developed below, we are not required to pass on the force of the distinction.
. Most of these cases concerned education expenses, as to which there is a regulation, Treas. Reg. § 1.162-5 (1960). This elaborates on the statute by defining a specific type of deductible expenses, § 1.162-5(a)(2), and by prohibiting the deduction of expenses incurred in order to attain minimum educational requirements for a position, § 1.162-5(b)(2), and expenses for a program of study leading to qualification in a new trade or business, § 1.162-5(b)(3). However, the Tax Court cites education cases in decisions regarding other types of expenses incurred in obtaining a new position, see, e.g., Primuth, supra, 54 T.C. at 378; Joseph Sorin Schneider, T.C. Memo. 1983-753 (1983).
. Although the court quoted Treas.Reg. § 1.162-5, including the minimum educational requirement, § 1.162-5(b)(2), it did not base its decision upon that section.
. The court distinguished Stephen G. Sherman, T.C.Memo. 1977-301 (1977), which had allowed deduction of expenses of attending the Harvard Business School by a taxpayer who had been employed as a civilian by the Army and Air Force Exchange Service as chief of its Plans and Programs office and, after, graduating and applying unsuccessfully for reinstatement to his former job, was hired by private industry as a director of planning and research.
. The members of the Commission on Water Quality who were not officers or employees of the United States were paid by the Government on a per diem basis, 33 U.S.C. § 1325(f); it does not appear whether Mr. Rockefeller accepted such payments, at least for the period when he was Governor of New York. The record is silent with respect to what salary, if any, was paid to Mr. Rockefeller as Chairman of the Commission on Critical Choices for Americans.
. E.g., a judge of a federal district court nominated to a court of appeals, a judge of a state court nominated to a federal court, or a foreign service officer nominated to be an ambassador.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_casetyp1_7-3-5
|
G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
James WILKETT d/b/a Wilkett Trucking Co., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
No. 82-1373.
United States Court of Appeals, District of Columbia Circuit.
April 22, 1988.
John J. McMackin, Jr., and June E. Ed-mondson, Washington, D.C., were on the motion for attorney fees and expenses.
Michael Martin, Atty., Colleen J. Bombardier, Atty., Lawrence H. Richmond, Deputy Associate General Counsel, Henri F. Rush, Associate General Counsel, John Broadley, General Counsel, I.C.C., William F. Baxter, Charles F. Rule, Asst. Attys. Gen., Robert B. Nicholson, and Laura Heiser, Attys., Dept, of Justice, Washington, D.C., were on responses to motion for attorney fees and expenses.
Before EDWARDS and RUTH BADER GINSBURG, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
James Wilkett seeks an award of attorney fees and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (1982 & Supp. Ill 1985), as the prevailing party in a case against the Interstate Commerce Commission (“ICC”). See Wilkett v. ICC, 710 F.2d 861 (D.C.Cir.1983). The disposition of this case has been long delayed because the original request for fees languished unnoticed in the Clerk’s Office for almost four years. We express our regrets for this unfortunate situation, especially since there is no good excuse for the mishandling of Wilkett’s initial application for fees.
Albeit belatedly, we now conclude that a fee award is appropriate, because the position of the United States in agency proceedings and in litigation before this court lacked substantial justification and because no special circumstances render an award unjust. We find, however, that two of the Government’s objections to the amounts claimed by Wilkett are valid. We have therefore modified the requested award accordingly.
I. Background
Wilkett Trucking Company (“Wilkett Trucking”), a family business owned by James Wilkett, began operations in 1975 and received its first ICC license in 1978. In March 1981, it applied to the ICC for expanded authority to transport coal from all points in Oklahoma to any point in Texas. The ICC denied Wilkett Trucking’s license application because James Wilkett had been convicted in 1981 of second-degree murder under Oklahoma law and conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 (1976). In the ICC’s judgment, Wilkett’s evident disregard for the law rendered him unfit to hold a license, and his ownership of Wilkett Trucking in turn rendered the company unfit for the ICC authorization it had requested.
Wilkett appealed the ICC’s decision to this court. The ICC thereupon requested us to remand the case for reconsideration, which we did. Upon reconsideration, the ICC affirmed its earlier denial of Wilkett Trucking’s license application. Wilkett again appealed.
This time we reached the merits and reversed. Finding that the ICC’s decision constituted “an unexplained departure from previously applied standards,” we ruled that the ICC’s denial of Wilkett Trucking’s application was arbitrary and capricious. Wilkett v. ICC, 710 F.2d 861, 865 (D.C.Cir.1983). Accordingly, we remanded the case to the ICC “for the purpose of promptly issuing the authority with such reasonable time limitations as it deems necessary.” Id.
On July 22, 1983, Wilkett filed a timely application for attorney fees and other expenses under the EAJA, including fees and expenses incurred in making the fee application. The Government opposed Wilkett’s application. Wilkett submitted a reply to the Government’s objections (for the preparation of which Wilkett also requested attorney fees and expenses), and the Government responded with a second memorandum. Due to a clerical error in the Court Clerk’s Office, the panel that decided Wilk-ett’s appeal was not notified of his attorney fee application until four years later, when Wilkett inquired into the delay. On October 14, 1987, we directed the parties to submit supplemental memoranda addressing the ramifications for Wilkett’s application of the 1985 amendments to the EAJA and of pertinent judicial decisions issued since the time of Wilkett’s initial application.
II. Analysis
Section 2412(d)(1)(A) (Supp. Ill 1985) provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
The Government does not deny that Wilkett meets the statutory definition of a “party” or that he prevailed in his appeal. Nor is there any longer reason to doubt that Wilkett’s suit constituted a “civil action” not sounding in tort. To be sure, in 1983 the Government contended that judicial review of an agency licensing decision was not a “civil action” for purposes of 28 U.S.C. § 2412 because another provision of the EAJA, codified at 5 U.S.C. § 504(b)(1)(C) (1982), explicitly precluded an award of attorney fees in connection with agency proceedings “for the purpose of granting or renewing a license.” The 1985 amendments to the EAJA, however, added the phrase “including proceedings for judicial review of agency action” to clarify the unexplained existing reference to “any civil action.” Equal Access to Justice Act, Extension and Amendment of 1985, Pub.L. No. 99-80, § 2(a)(2), 99 Stat. 183, 184. The Government apparently concedes that this addition eviscerates its former objection. See Respondents’ Supplemental Memorandum in Opposition to Petitioner’s Application for Fees and Other Expenses at 4 n. 3. In light of the change, Wilkett’s suit plainly falls within the statutory definition of “any civil action.”
Because these prerequisites have been met, our analysis must proceed in three stages. First, we must ascertain whether the Government’s position was “substantially justified.” If it was not, then we must further ask whether “special circumstances” would render an award of attorney fees unjust. If the answer to this question is also negative, we must, finally, consider the Government’s objections to the amount of the fees Wilkett claims.
A. Was the Position of the United States “Substantially Justified”?
In determining whether the Government’s position was substantially justified, we must examine the ICC’s actions and explanations as well as the Government’s arguments before this court. The EAJA, as amended, defines the “position of the United States” to mean, “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D) (Supp. Ill 1985). The EAJA further provides that “[wjhether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.” 28 U.S.C. § 2412(d)(1)(B) (Supp. Ill 1985). The burden of proving that its position was substantially justified both in agency proceedings and in litigation rests with the Government. See Federal Election Comm’n v. Rose, 806 F.2d 1081, 1086-87 & n. 12 (D.C. Cir.1986); Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).
Under the law of this circuit, the Government’s position was “substantially justified” if the Government “acted slightly more than reasonably, even though not in compliance with substantive legal standards applied in the merits phase” of the litigation. Rose, 806 F.2d. at 1087; see also Baker v. Commissioner, 787 F.2d 637, 643 n. 10 (D.C.Cir.1986); Blitz v. Donovan, 740 F.2d 1241, 1244 (D.C.Cir.1984); Spencer, 712 F.2d at 558. A finding that an agency acted arbitrarily and capriciously within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), does not preclude the Government from demonstrating that the agency’s actions and its conduct in litigation were “substantially justified.” Some types of arbitrary and capricious behavior, such as an agency’s failure to provide an adequate explanation for its actions or its failure to consider some relevant factor in reaching its decision, may not warrant a finding that an agency’s action lacked substantial justification under applicable statutes or regulations. See, e.g., Rose, 806 F.2d at 1087-89. However, a finding that an agency acted arbitrarily and capriciously by denying equal treatment to two similarly situated parties, or by failing to enforce a rule in a situation to which it plainly applied, renders it much more likely that the Government’s action was not substantially justified. See Rose, 806 F.2d at 1089.
On the facts of this case, we find that the Government has failed to satisfy its burden of showing that its position was substantially justified. The ICC’s actions and the Government’s arguments before this court clearly fail this circuit’s test of “slightly more stringent than ‘one of reasonableness.’ ” Spencer, 712 F.2d at 558. Indeed, they do not even deserve the appellation “reasonable.”
In denying Wilkett Trucking’s license application, the ICC considered only the owner’s fitness for the expanded authority. Moreover, it based its decision solely on James Wilkett’s criminal convictions, not on his record of compliance with ICC regulations. We described this approach as “misdirected” and “unreasonable” in overturning the ICC’s decision:
Notwithstanding the fact that the grant of authority will be issued to the [Wilkett Trucking] Company, the Commission focused solely upon the fitness of the individual proprietor, James Wilkett. Such an inquiry is misdirected. While the proprietor’s fitness may be relevant, the primary focus should be upon the Company’s record of operations. In this instance, the record reveals and the Commission acknowledges that since commencing operations in 1978, Wilkett Trucking has never been cited for violation of Commission rules or regulations. The Company has demonstrated its commitment to continued lawful service_■
There is no record evidence to suggest that the company would operate unlawfully in the future.... The Commission based its conclusion that the Company was unfit solely upon its view that James Wilkett’s convictions were indicative of a predisposition on the part of the Company to violate trucking statutes and regulations. That conclusion is unreasonable.
Wilkett, 710 F.2d at 863-64.
We further noted that, “[i]n addition to improperly equating James Wilkett’s fitness with that of the Company, the Commission also disregarded its own standards for evaluating fitness.” Id. at 864. The ICC’s decision betrayed a gross failure to use the test it had “consistently” applied “[w]hen judging a carrier’s fitness in light of past violations.” Id. We concluded:
In its Wilkett decisions, the Commission did not apply its aforequoted standards and philosophy in evaluating the fitness issue. Such an unexplained departure from previously applied standards suggests that the Commission’s decision in this case is arbitrary and capricious. The Commission’s decisions in [Allan B. Robbins, d/b/a Robbins Trailer Service, No. MC-160342 (I.C.C. Oct. 13, 1982),] and Wilkett are difficult to reconcile and, at the least, suggest an inconsistency in decision-making.
Id. at 865 (citations omitted).
The Government suggests that the agency’s position was substantially justified, and that our opinion not only recognizes the arguable merit in the agency’s position by describing the ICC’s actions as merely “misdirected,” but faults it primarily for its failure to offer a justification for its actions, not for their being unjustifiable. The Government’s reading of our opinion, however, is untenable. We described the ICC’s exclusive focus on James Wilkett’s criminal offenses not only as “misdirected,” but as positively “unreasonable.” And while our opinion ádmittedly focused on the ICC’s failure to explain its decision, particularly in light of clearly contrary agency precedent, our holding perforce assumed that no adequate explanation was possible. We did not simply remand the case to the ICC for a fuller statement of reasons on behalf of its decision. Rather, we granted Wilkett Trucking’s petition for review and reversed the ICC’s decision “because the Commission failed to apply its usual standards in adjudging fitness.” 710 F.2d at 865. “As the finding of unfitness is clearly in error,” we said, “the Commission is directed to issue the authority requested.” Id. We could not have stated more plainly that the ICC’s actions lacked substantial justification.
A cursory review of the relevant factors listed in Spencer, 712 F.2d at 559-61, buttresses this conclusion. Although those factors were designed to guide a court in determining whether the Government’s stance in litigation, as opposed to the underlying agency action, was substantially justified, they remain relevant to our inquiry, both because the “position of the United States” includes its litigating posture and because two of these factors may be used to assess the justifiability of agency action as well. One of the factors mentioned in Spencer — the clarity of the governing law — certainly militates in favor of awarding attorney fees. In Wilkett, we found that the ICC failed to apply the test of fitness it had “consistently” applied in the past, and that when the test was properly applied, the ICC’s “finding of unfitness [was] clearly in error.” Wilkett, 710 F.2d at 865. A second factor discussed in Spencer — the consistency of the Government’s position — again favors Wilkett’s application. The ICC’s decision in Wilkett cannot easily be reconciled with its ruling in Robbins. We were unable to square the two cases when we reached our decision on the merits, and the Government has never offered a plausible demonstration of their consistency. We must therefore conclude that both the Government’s position in litigation and the ICC’s decision were not “substantially justified.” They did not even pass the test of “reasonableness” the Government has urged us to adopt.
B. Do “Special Circumstances” Make a Fee Award Unjust?
Even if the position of the United States was not substantially justified, a fee award is inappropriate if “special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The legislative history of the provision indicates that this “safety valve” was designed to “insure that the Government is not deterred from advancing in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts” and to permit courts to rely on “equitable considerations” in denying a fee award. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4990. We emphasized in Spencer, however, that fees should ordinarily be awarded if the Government loses a “test case” in which it argued that controlling precedent should be overruled, not merely that precedent should be extended or reinterpreted in a novel way. A possible award of fees should not deter the Government from bringing a “test case” if it deems the matter sufficiently important; more significantly, it would be unjust to compel the private party, chosen arbitrarily by the Government, to incur the full cost of reconsidering an established rule when the benefits of doing so redound to the community as a whole. See Spencer, 712 F.2d at 558-59 & n. 72.
The Government contends that in Wilk-ett the ICC considered an issue of first impression — whether a trucking company might lawfully be denied a license based upon the proprietor’s criminal convictions for nontransportation offenses — and resolved it by extending the criteria it routinely used to assess an applicant’s fitness. We find this characterization dead wrong. As we said when rendering judgment on the merits, the ICC’s decision did not constitute a plausible extension of prevailing standards of fitness. Rather, it marked “an unexplained departure from previously applied standards” that was inconsistent with the ICC’s decision in a similar case. Wilkett, 710 F.2d at 865. We concluded, moreover, that the Government’s position was “misdirected,” indeed flatly “unreasonable.” In the face of these findings, the Government can hardly argue that it advocated not only a novel but also a “credible” extension of existing law, which the legislative history establishes as a precondition to a denial of fees when the Government’s position lacked substantial justification. Wilkett is clearly entitled to an award of attorney fees.
C. Calculation of the Fee Award
Wilkett requests $71,561.41 in fees and expenses, apportioned as follows:
Fees associated with merits litigation $40,125.00
Photocopying 445.01
Fees associated with initial fee application 5,988.00
Fees associated with reply memorandum 14,418.00
Photocopying 192.20
Fees associated with supplemental memorandum ordered by court on 10/14/87 10,125.00
Photocopying 268.20
TOTAL $71,561.41
We consider in turn the Government’s various objections to the amounts requested.
1. The Availability of a Fee Award for the 1987 Memorandum
The Government contends that, even if Wilkett has a right to attorney fees in connection with the merits litigation and his 1983 memoranda in support of his fee application, he may not recover for the 1987 memorandum this court ordered him to submit. The Government notes that Wilkett waited four years from the time he filed his fee application before inquiring into its status. The Government conjectures that the supplemental memorandum we requested would not have been necessary had Wilkett earlier directed the court’s attention to the delayed processing of his application. It therefore claims it ought not have to pay for Wilkett’s indolence. See Respondents’ Supplemental Memorandum in Opposition to Petitioner’s Application for Fees and Other Expenses at 10 n. 12.
This argument is baseless. A court has authority to require supplemental briefing by the parties as it deems helpful. Indeed, we do so frequently, particularly where, as here, the law is and has been in a state of flux. As the Government recognizes, if the EAJA applies to the merits litigation of a case, it applies equally to work done in connection with the prevailing party’s fee application. Any work ordered by this court is similarly compensable.
Furthermore, we are unwilling to hold Wilkett responsible for an error committed in our Clerk’s Office. The blame for the delay in this case lies with the court, not the parties, and we will not penalize Wilk-ett for our error.
Finally, the rapidly developing case law and the statutory changes wrought by the 1985 EAJA amendments would likely have prompted us to request additional assistance from the parties even if Wilkett had inquired about the processing of his fee application after only a couple of years. Hence, we see no reason whatever to deny Wilkett recompense for work done on his 1987 memorandum.
2. Cost-of-Living Adjustments to the Maximum Statutory Fee
Section 2412(d)(2)(A) reads in part:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that... (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
This provision unambiguously licenses cost-of-living adjustments (“COLAs”) to the $75 per hour ceiling established by the EAJA. In computing a COLA, however, we must answer two questions. First, what should serve as the baseline date in measuring the COLA? Second, should an adjustment be made to the year in which legal services were rendered, or to the year in which the fee award is paid?
The first of these questions was answered by our decision in Hirschey v. FERC, 777 F.2d 1, 5 (D.C.Cir.1985). The baseline date for measuring an adjustment to the statutory cap is 1981, the year in which the EAJA became effective. The fact that this provision was not amended in 1985 when the sunset provision of the EAJA (which was initially to remain in force only three years) was repealed, does not entail that the $75 per hour cap should form a new baseline in 1985. There is no indication in the legislative history that Congress intended the 1985 EAJA amendments to have this consequence. In addition, our adoption of a new $75 per hour baseline in 1985 would have the anomalous result of entitling parties to collect larger fee awards for work done in 1984 than in 1986, since the former could obtain a three-year adjustment to the $75 per hour cap, whereas the latter could only receive a one-year adjustment to the same cap. We therefore adhere to our view in Hirschey that a COLA to the $75 per hour ceiling should be measured from 1981.
The second question has also been answered already by this court. In Massachusetts Fair Share v. Law Enforcement Assistance Administration, 776 F.2d 1066 (D.C.Cir.1985), we refused to allow a COLA to the $75 per hour cap for work performed in 1981, even though fees were not awarded until 1985. See id. at 1069. We are constrained to follow that holding in reviewing Wilkett’s fee request.
The adjustment to the $75 per hour maximum statutory fee is relevant to two elements of Wilkett’s request. First, one of Wilkett’s lawyers billed at a rate of $85 per hour for work done in 1982-83. That hourly rate exceeds the cap of $75 per hour even with a COLA. Unless the “special factors” exception applies, that amount is not fully compensable under the EAJA.
Second, Wilkett requests reimbursement for work performed on his 1987 Supplemental Memorandum at hourly rates of $100 and $125. These figures far exceed the $75 per hour cap with a COLA to November 1987, when most of the work on the Supplemental Memorandum was performed. According to the U.S. Department of Labor Consumer Price Index, the cost of living increased in the Washington, D.C.Maryland-Virginia urban area by 27.77% between October 1981 and November 1987. This produces an adjusted cap of $95.83. Unless “special factors” justify increasing this amount, Wilkett’s request for complete reimbursement for these services must be denied. Wilkett’s attorneys billed 47.3 hours at a rate of $125 per hour, and 39.5 hours at a rate of $100 per hour, resulting in a total bill for the two attorneys involved of $9,862.50. If the adjusted cap of $95.83 is applied to these services, the fee award must be reduced to $8,318.04.
3. Unusual Delay as a “Special Factor”
Section 2412(d)(2)(A) limits awards of attorney fees to the $75 per hour cap adjusted for increases in the cost of living “unless the court determines that... a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” In the past, we have increased the adjusted cap to compensate parties for the cost of foregone investment attributable to delayed payment of the award, on the assumption that delay may be counted as a “special factor” justifying a higher award. See Hirschey, Til F.2d at 5 (award calculated on basis of current billing rates rather than rates when services performed because processing of fee award was greatly delayed by clerical error in Clerk’s Office); Action on Smoking & Health v. Civil Aeronautics Bd., 724 F.2d 211, 219 (D.C. Cir.1984) (slight increase in cap allowed because payment of award occurred four years after services were rendered, where delay was partly attributable to agency’s six requests for stays).
We continue to believe that delay may be regarded as a “special factor” under the EAJA. The Supreme Court’s decision in Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), does not alter the law of the circuit on this point. The Court in Shaw held that, in the absence of express congressional consent, a fee award may not be adjusted upward to take account of inflation or the opportunity cost of capital. However, the statutory provision considered by the Court in Shaw was 42 U.S.C. § 2000e-5(k), which only allowed an award of “a reasonable attorney’s fee.” By contrast, the EAJA explicitly permits a court to raise the $75 per hour ceiling if it determines “that an increase in the cost of living or a special factor... justifies a higher fee.” Therefore, we adhere to the holdings enunciated in Hirschey and Action on Smoking, which read section 2412(d)(2)(A) to allow increases in the statutory cap to compensate parties for prolonged delay in payment when a court deems such increases equitable. In reaching this conclusion, we think it significant that the Supreme Court has said, after its decision in Shaw: “We do not suggest... that adjustments for delay are inconsistent with the typical fee-shifting statute.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, — U.S. —, 107 S.Ct. 3078, 3082, 97 L.Ed.2d 585 (1987).
We emphasize, however, that no adjustment of the $75 cap other than that necessary to compensate for an increase in the cost of living is available in routine cases. Some delay in payment is inevitable, given the strain under which almost all courts labor. The normal delay attendant on litigation of a fee request can hardly be called a “special factor.” Nor will we permit an increase in the cap in every instance when there has been a delay in payment that is unusually long. If, for example, a prolonged delay is attributable to the negligence of the party requesting fees, an upward revision of the adjusted cap might not be warranted. Where the delay is exceptional and not attributable to negligence or improper conduct by the prevailing party, however, an increase might be appropriate where the prevailing party is able to justify the increase it seeks.
In the instant case, we find that Wilkett has made the requisite showing with regard to work billed by one of his attorneys at $85 per hour in 1982-83. The small increase in the adjusted cap that Wilkett has requested for this work is amply justified by the exceptional delay, through no fault of his own, in our consideration of his application. We therefore allow recovery at a rate of $85 per hour for the attorney’s services over five years ago.
We refuse, however, to allow Wilkett to obtain attorney fees at hourly rates of $100 and $125 per hour for work performed in late 1987. Wilkett contends that we should permit recovery of fees in excess of the adjusted cap of $95.83 per hour, in order to compensate him to some extent for delayed payment of the fee award for services performed in 1982-83. See Petitioner’s 1987 Supplemental Memorandum at 20-21. However, Wilkett asks us to do what the law plainly forbids. Our award of fees for work performed in 1987 is not tardy. Hence, the statute does not permit us to order reimbursement for this work at a rate above the adjusted cap of $95.83 per hour. Because we lack statutory authorization to grant Wilkett’s illogical request for a roundabout, partial adjustment for the unusual delay in compensating him for his attorneys’ earlier services, we cannot award him compensation for the “special factor” of protracted delay except to the extent that we permit recovery of hourly rates of $85 billed in 1982-83.
4. Allegations of Excessive Fees
The Government contends that several of the amounts claimed by Wilkett are excessive, and thus not permitted under the statutory allowance of “reasonable” attorney fees “based upon prevailing market rates for the kind and quality of the services furnished.” 28 U.S.C. § 2412(d)(2)(A).
(a)The $75 Per Hour Rate for a First-Year Associate in 1983
The Government asserts that an hourly rate of $75 for work performed by a new associate in 1982-83 is unduly high. After reviewing the affidavits submitted by Wilkett’s attorneys and evidence of local billing rates submitted in connection with the fee claim in Laffey v. Northwest Airlines, 572 F.Supp. 354 (D.D.C.1983), which Wilkett has also supplied, we conclude that the $75 per hour rate charged by one of Wilkett’s attorneys in 1982-83 is not unreasonable.
(b) Thirteen Hours Spent Researching Scope of Review
The Government charges that thirteen hours was an excessive amount of time for an experienced attorney to spend researching the scope of review of ICC licensing decisions, and that Wilkett should not be permitted to recover the entire amount his attorneys billed for this service. We reject the Government’s contention. The portion of the fee request to which the Government points covers not only research concerning the scope of review, but also client conferences, the preparation of a timetable, and the drafting and filing of the Petition for Review. Moreover, only one-half hour was billed by a senior attorney. The bulk of the time — 12.6 hours — was billed at a lower rate by a law clerk. We therefore grant Wilkett full recovery of the cost of this work.
(c) Total Hours Billed for Merits Brief
Wilkett requests $16,599 for 146.9 lawyer hours and 143.1 law clerk hours spent preparing the merits brief in this case. The Government argues that this bill is inflated, because the issues in the case were simple, the administrative record short, and the arguments before this court almost identical to those made before the ICC. Wilkett’s attorneys, however, have prepared a detailed itemization of their work on the brief. Because we have no reason to question their probity, and because the number of hours billed does not strike us as unreasonable, we decline the Government’s invitation to allow only partial recovery.
(d)The $1,950 Unopposed Motion to Expedite
The Government notes that Wilk-ett’s attorneys billed $1,950 for 24.8 hours spent in connection with Wilkett’s unopposed motion to expedite his appeal. The Government considers this amount excessive, particularly in view of the fact that the short memorandum in support of the motion cited no cases. Wilkett’s attorneys replied that because Wilkett Trucking’s business was deteriorating, expedited consideration was important. They therefore thought it essential to prepare the motion carefully, even though it was unopposed. The absence of citations, they say, stems from the simple fact that their research failed to uncover authority on point.
In light of Wilkett’s explanation and documentation in support of this work, we have no reason to question the hours submitted. The hours would seem unduly high only if counsel had prepared the motion with no effort at legal research. The fact that their legal research bore no fruit is no reason to deny them fees for the time spent on this work. Furthermore, counsel correctly recognized that there was no guarantee that their motion would be granted merely because it was unopposed. Therefore, it made good sense for them to research the issue.
(e)72.9 Hours Spent Preparing for and Participating in Oral Argument
Wilkett asks for $5,941.50 for 72.9 hours billed by his attorneys for their preparation for oral argument and participation therein. The Government decries this claim as unreasonable. It notes that each side was allotted only fifteen minutes for oral argument, and that the attorney who argued the case billed 51.4 hours, even though he had written the brief the previous year and had spent almost 65 hours drafting the reply brief two months prior to oral argument.
We agree with the Government that this bill is plainly excessive. Although seventy hours' preparation might be justified in a complex case, particularly when the lawyer arguing the case on appeal has not done considerable work on it in its earlier stages, this case did not warrant so great an expenditure of time. The issues it presented were not especially complicated and Wilk-ett’s lead attorney had directed the litigation from start to finish. The normal amount of time for average cases was allotted for oral argument. We therefore grant an award of $2,970.75, which represents half the amount Wilkett requested.
(f)The $14,418 Reply Memorandum Supporting Wilkett’s Fee Application
Wilkett requests $14,418 in fees incurred in preparing the reply memorandum in support of his fee application. When Wilkett made this request initially, the Government suggested that the amount claimed was unduly high, given that the arguments largely tracked those presented in the memorandum accompanying his fee application. The Government acknowledged, however, that its allegation was necessarily speculative, since Wilkett had failed to itemize the work performed by his attorneys in connection with the reply memorandum.
On February 5,1988, we directed Wilkett to provide an itemized bill for this work. Wilkett has done so, and his request seems to us adequately documented and not patently unreasonable. We therefore grant this request in full.
III. Conclusion
For the foregoing reasons, we accede to Wilkett’s fee request with the following modifications. First, the $40,125 requested for work done on the merits phase of the litigation is reduced by $2,970.75, because the amount of time claimed in preparation for oral argument is unreasonably high. Second, the amounts claimed in fees associated with Wilkett’s 1987 Supplemental Memorandum must be lowered, in accordance with the $95.83 per hour cap on attorney fees, from $10,125 to $8,580.54.
Accordingly, we award Wilkett $67,-046.20 in attorney fees and other expenses, calculated as follows:
Wilkett’s Request $71,561.41
MINUS:
Excess Oral Argument 2,970.75
Excess 1987 Memorandum 1,544.46
TOTAL $67,046.20
So Ordered.
. The 1985 amendments unquestionably apply to this case. The Extension and Amendment Act of 1985 provides that "the amendments... shall apply to cases pending on... the date of enactment of this Act.” Pub.L. No. 99-80, § 7(a), 99 Stat. 183, 186. This court has held that a case was pending on the date of enactment — August 5, 1985 — even if only the fee petition, but not the merits of the underlying case, awaited judicial resolution on that date. Center for Science in the Public Interest v. Regan, 802 F.2d 518, 524 & n. 10 (D.C.Cir.1986).
. Thus, even if the Supreme Court should endorse a weaker test
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
songer_appstate
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Wilbur O. MORTON, Appellant, v. UNITED STATES of America, et al., and the State of Kansas et al., Appellees.
No. 8711.
United States Court of Appeals Tenth Circuit.
Aug. 4, 1966.
Alex T. Collins, III, for appellant.
William E. Gandy, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty. for District of Colorado, David I. Shedroff, Asst. U. S. Atty. for District of Colorado, on the brief), for appellees.
Before PHILLIPS, JONES and SETH, United States Circuit Judges.
Of the Fifth Circuit, setting by designation.
PER CURIAM.
The judgment of the district court is correct and is affirmed.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_treat
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Respondent, v. Paul N. HANKISH et al., Petitioner.
Misc. No. 943.
United States Court of Appeals, Fourth Circuit.
July 10, 1972.
Robert G. Perry, Charleston, W. Va., on petition for petitioner.
John A. Field, III, U. S. Dist. Atty., and Robert King, Asst. U. S. Atty., for respondent.
Before BOREMAN and BRYAN, Senior Circuit Judges, and WINTER, Circuit Judge.
PER CURIAM :
Criminal Action No. 71-55 was instituted against Paul N. Hankish and James L. Matthews in the Southern District of West Virginia at Charleston. Robert G. Perry, an attorney of Charleston, West Virginia, appeared on behalf of defendant Hankish. The Government moved the court to disqualify Mr. Perry from representing Hankish and the matters arising on the motion were referred by Judge Sidney L. Christie of the Southern District of West Virginia to Judge Robert E. Maxwell of the Northern District of West Virginia for hearing and determination. The Government alleged that Mr. Perry had represented one Jackie Longfellow who had been convicted of a felony and who was expected to be a material witness for the Government in. the criminal action against Hankish.
After hearings, Judge Maxwell entered an order disqualifying Mr. Perry from serving as counsel for Hankish, primarily on the ground that there was a strong probability of a conflict of interest by reason of Mr. Perry’s earlier representation of Longfellow, and in an opinion and order Judge Maxwell stated:
“So, it will be the judgment of the Court here, that for the protection of all parties, the professional integrity and the integrity of the litigation, the protection of the rights of the accused; that the motion should be granted.
“The motion, however, will be stayed until the evening of January the 31st at 7:30 p. m.”
Thereafter a formal order was entered by Judge Maxwell disqualifying Mr. Perry as attorney for Hankish, the effective date being January 31, 1972. However, the disqualification order entered January 31, 1972, contained the following provisions:
“The Court is further of the opinion and does hereby advise the defendant, Paul N. Hankish, that it would appear that at least three (3) options are open to him in this matter, those being :
(1) He may employ new counsel;
(2) He may attempt an immediate appeal, if appropriate, from this order ; and/or
(3) He may execute a waiver, if such is done knowingly and voluntarily, of any conflict or possible conflict which may occur or exist insofar as Robert G. Perry .is con-cened arising from- the matters of record herein, as set forth in the record of the proceedings herein, which are hereby incorporated by reference herein. It is further
“ORDERED that, there being nothing further to be done in this District that this matter be transferred back to the Southern District of West Virginia, subject to the right of the defendant to reopen these proceedings in the event that he may desire to execute and tender such a knowing and voluntary waiver, if any, to this court.”
On March 31,1972, no further proceedings having been had in these matters, a hearing was held before Judge Christie in the Southern District of West Virginia at-which time Mr. Perry advised that he was in the process of appealing Judge Maxwell’s order and that the appeal would be filed, together with a brief, on the 12th day of April, 1972. On April 24, 1972, no proceedings having been instituted in this court, the United States Attorney directed a letter to Judge Christie and asked that a date be fixed for the arraignment of Hankish in Criminal Action No. 71-55. On the following day Mr. Perry advised the district court by telegram, a copy of which was received by the United States Attorney, that a “petition” would be presented to the Fourth Circuit on Monday, May 1, 1972. On May 1, 1972, the Clerk of this court received a “petition” praying that this court grant petitioner a full and complete hearing upon the matters arising upon the original motion of the Government for disqualification of counsel or, in the alternative, that this court hear and determine the petition upon oral argument and briefs; further that the order of the district court disqualifying counsel be reversed and that the district court be ordered to permit the continued service of Mr. Perry as petitioner’s counsel in the defense of the indictment pending in the district court in Criminal Action No. 71-55. At the same time the Clerk received a “brief” purporting to be in support of said petition.
In the proceedings before Judge Maxwell defendant Hankish, speaking for himself, stated to the court that he would be willing to waive any possible prejudice to him because of representation by Mr. Perry and later, when the case was called up before Judge Christie, Mr. Hankish personally stated to the court that if the Fourth Circuit Court of Appeals afforded no relief he would execute a waiver of possible prejudice which might develop through continued representation by Mr. Perry. It was at that time that defense counsel notified Judge Christie that he was asking this court for review and in response to interrogation by the court counsel answered,
“All that we’re doing, Judge, is by petition and a copious brief, asking the court, the Fourth Circuit to entertain an appeal to an interlocutory order and to overturn the order.
“Now, of course, I have no idea whether or not they will do that, but I would concede on the record it is hard to get them to do it.”
In response to further interrogation by the court Mr. Perry stated that this was not a certification, that it was not an appeal from a final order, and that the defendant did not have an appeal as a matter of right. In his petition and his seven-page brief there is no citation of any statute or case law as a basis for invoking this court’s jurisdiction.
An order such as the one here complained of might be held to fall within that class of orders described in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), as “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole ease is adjudicated,” and thus to be a final order appealable under 28 U.S.C. § 1291. Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 239 F.2d 555 (2 Cir. 1956), cert. denied 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38 (1957). See Fleischer v. Phillips, 264 F.2d 515 (2 Cir. 1959), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959).
If we should follow the decision in Harmar, the order in the instant case would be appealable under the rule in Cohen. However, the petitioner has filed no notice of appeal and is inexcusably out of time in attempting to prosecute an appeal under 28 U.S.C. § 1291.
We have considered the possibility that this vague application for review might be treated as a petition for a writ of mandamus under the All Writs Statute, 28 U.S.C. § 1651, and that the writ might lie thus enabling this court to review the instant order. However, this court, in its discretion, may refuse to issue the writ if a method of review has been provided by statute and the petitioner has failed to utilize it. Bartsch v. Clarke, 293 F.2d 283 (4 Cir. 1961). Assuming that Harmar Drive-In, swpra, was correctly decided and that Judge Maxwell’s order of disqualification was at one time appealable, we conclude that we should not consider the issuance of a writ of mandamus in this case for the following reasons:
1. Hankish and his counsel have been inexcusably dilatory in seeking any relief from the district court’s order and it cannot be said that he has made any effort to perfect an appeal as an appeal from a “final” order.
2. In order to issue a writ of mandamus we would be required to construe, with extreme liberality, Hankish’s request for review as a petition for the writ and we conclude that under the circumstances any such construction would be unjustifiable.
3. It has been held in numberless cases that resort may not be had to mandamus as a substitute for an appeal. For example, see Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). If a writ of mandamus were to be issued here it would clearly be a substitute for an appeal, the right to such appeal having been neither asserted nor pursued.
4. The Second and Ninth Circuits have held that review of an order denying a motion to disqualify could be had by way of an interlocutory appeal under 28 U.S.C. § 1292(b). Marco v. Dulles, 268 F.2d 192 (2 Cir. 1959); Cord v. Smith, 338 F.2d 516 (9 Cir. 1964). In Cord, the Ninth Circuit held that the order refusing disqualification was not appealable under the Cohen rule and was appealable pursuant to § 1292(b). Since there had been no certification under § 1292(b) the court concluded by granting mandamus to review the question. We have found no authority clearly supporting the issuance of a writ of mandamus to review an order granting a motion to disqualify. We do not view the decision in Cord, supra, as such authority. For a discussion of the subject of appealability see 9 Moore’s Federal Practice j[ 110.13 [10],
5. The issuance of a writ of mandamus here would appear to be on less than firm ground when Hankish has been informed by the district court that he ■might be represented by his employed counsel if he would waive objections to any conflict of interest on his counsel’s part and any prejudice to himself that might develop therefrom at trial. Han-kish was personally present during all of the proceedings before Judge Maxwell and Judge Christie. It was vigorously contended that motion for disqualification of counsel was without evidentiary support because there was no showing of possible conflict of interest on the part of counsel and there was no possibility that any prejudice to Hankish could develop because of Mr. Perry’s earlier representation of Longfellow. In light of these contentions that no prejudice could possibly arise it would appear that Hankish has conceded that a waiver of prejudice from continued representation by Mr. Perry would not be harmful.
If we were to adopt the view that Harmar Drive-In was incorrectly decided and that the order here complained of was not appealable under 28 U.S.C. § 1291, we conclude that the issuance of a writ of mandamus would still appear to be inappropriate and unjustified. Mandamus will ordinarily lie only when the district court has clearly abused its discretion or when the petitioner can establish a clear and certain right and that the duties of the court were basically ministerial. Such factors are lacking here. The petitioner can have the benefit of counsel of his own choice by executing a waiver of possible prejudice, which waiver, according to petitioner’s own avowals, would be harmless.
Under the circumstances here, we decline to take jurisdiction of the matters presented in connection with the petition of defendant Hankish. It is so ordered.
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_othjury
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?" 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".
Stephen Luther EVANS, Appellant, v. UNITED STATES of America.
No. 18478.
United States Court of Appeals, Third Circuit.
Submitted on Briefs Oct. 5, 1970.
Decided Dec. 14, 1970.
Stephen L. Evans, pro se.
Louis C. Bechtle, U. S. Atty., Philadelphia, Pa. (Richard R. Galli, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for -appellee.
Before HASTIE, Chief Judge, and STALEY and GIBBONS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
This appeal has been taken from a district court’s dismissal without hearing of a federal prisoner’s motion under 28 U.S. C. § 2255, collaterally attacking his conviction of robbery.
In an attempt to show racial discrimination in jury selection the movant, a Negro, has asserted that only one member of his race was among the 12 petit jurors and 2 alternates who tried him and that there were only 2 Negroes among the group of prospective jurors from which the trial jury was selected. We agree with the district court that the allegations and proffered showing on the issue of racial discrimination in jury selection are inadequate.
The appellant also says that the district court committed reversible error in refusing to treat a letter received from him while this proceeding was pending as an enlarging amendment of his motion. However, that letter merely asked the court to reconsider its denial of an earlier petition. Neither the substance nor the form of the communication was such as to oblige the court to review its earlier decision in this proceeding.
The judgment will be affirmed.
Question: Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
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 defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Appellee, v. Edwin MURRAY, Appellant.
No. 37, Docket 26741.
United States Court of Appeals Second Circuit.
Argued Sept. 27, 1961.
Decided Jan. 10, 1962.
Certiorari Denied March 26, 1962.
See 82 S.Ct. 845.
Louis Bender, New York City, for appellant.
Edward Brodsky, Asst. U. S. Atty., Southern Dist. of New York, New York City (Robert M. Morgenthau, U. S. Atty., and Arthur I. Rosett, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
LUMBARD, Chief Judge.
Edwin Murray appeals from his conviction on two counts of income tax evasion for the years 1952 and 1953 in violation of § 145(b) of the Internal Revenue Code of 1939. He was charged with reporting net income of only $6,-504.45 and $4,038.09 for 1952 and 1953 respectively, whereas his net income for those two years calculated from increases in his net worth was allegedly $24,017.-60 and $19,838.82, respectively. The government claimed that the difference in net income came from gambling activities; the defense was that the apparent increases in net worth came from a loan of $32,000 by one John Lamb. Murray was sentenced to imprisonment for one year and one day on each count, the sentences to run concurrently, and was fined a total of $5,000.
Murray’s appeal alleges that the government’s evidence was insufficient to take the question of his guilt to the jury, that there were errors in the admission and exclusion of evidence, and that the trial judge erred in permitting the government to contradict its bill of particulars in summation. He also claims error in the denial of his pretrial demand for inspection of the transcripts of statements given by him to the Intelligence Division of the Internal Revenue Service. We affirm the conviction.
I. The Sufficiency of the Evidence
Murray attacks Judge Dawson’s denial of his motion for acquittal at the close of all the evidence, claiming that the government did not adduce sufficient proof to permit the jury to find beyond a reasonable doubt that the essential element in the alleged increase in net worth —the purchase and remodeling of a house in New Rochelle, New York, for a total of approximately $32,000 — was not explained by the loan claimed to have been made by John Lamb. Murray does not attack the government’s marshalling of evidence in other respects, and we see no reason to raise any other question as to its sufficiency.
The evidence supports the inference that Murray’s gambling operations in 1952 and 1953 were “capable of producing much more income than was reported and in a quantity sufficient to account for the net worth increases.” Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). And no attack is made upon the proposition that if the $32,000 expenditure was made out of income during the two tax years under consideration the statute was violated. Thus the question before us is whether the government satisfied its burden of producing sufficient evidence for the jury to find beyond a reasonable doubt, as Judge Dawson properly charged, “that the expenditure was not financed by a loan from John Lamb.” We hold that on this question “taking the evidence in the view most favorable to the government, there is substantial evidence to support the verdict.” United States v. Tutino, 269 F.2d 488, 490, (2 Cir. 1959).
The government’s disproof of Murray’s claim that the New Rochelle house was purchased and remodeled with funds lent him by John Lamb consisted largely of testimony tending to show that at the time of Lamb’s death in 1955 and prior thereto he was in such financial straits that it was highly unlikely that during the period in question he had the resources to lend anyone $32,000. Murray, in his last statement to the Internal Revenue Service, had said that he had paid off his debt to Lamb in 1954 or 1955; the government’s evidence as to Lamb’s financial condition also supported an inference that during those years Lamb had not received such repayment.
The government adduced testimony that John Lamb, who was a member of Father Divine’s Mission in Harlem, lived in a Mission residence for a number of months prior to his death. Sunshine Bright, a housekeeper for the Mission, testified that on a number of occasions Lamb’s checks in payment of his rent of four dollars a week were returned because of insufficient funds; she further testified that Lamb had been dispossessed from his real estate office for nonpayment of rent. A friend of Lamb’s, Rev. William Aaron, testified that between 1953 and 1955 he had on several occasions lent Lamb small amounts of money which had never been repaid, and that during the same period, while Lamb was living in Lamb’s office, he had without payment provided Lamb with food and a blanket. In addition, there was evidence that on his entry into Harlem Hospital in 1955 Lamb had said that he had no income and no bank account. The only significant evidence that Lamb had any money was the statement of an Internal Revenue agent that Lamb’s account at the Manufacturers Trust Company contained an average balance of five or six hundred dollars, but this falls far short of any likelihood that Lamb ever had $32,000 to lend to Murray. Cf. United States v. Sclafani, 265 F.2d 408, 411-412 (2 Cir.), cert. denied 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959); United States v. Adonis, 221 F.2d 717, 720 (3 Cir.1955).
Murray did not take the stand at the trial, but the government read into evidence excerpts from several pretrial statements which he made to the Internal Revenue agents who investigated his case. His conflicting versions of the source of the money used to buy and repair the house further strengthen the government’s case. On June 30, 1956 he stated that the transactions had been financed with accumulated savings; on January 3, 1957 he said that his savings had been supplemented with a loan of $12,000 from gambling friends whom he would not identify; on April 23, 1958 he said that $13,000 to $15,000 had come from Lamb; finally on May 28, 1958 he claimed — as did his counsel at trial— that the entire expenditure of $32,000 was financed by a loan of that amount from Lamb. There was no documentary evidence of such a loan.
Murray supported his defense with the testimony of the broker handling the sale of the house that at the closing Lamb had been present and had $20,000 to $22,000 in cash with him which he turned over to the seller; the broker also testified, without objection from the government, that later he had heard that Murray had borrowed the money from Lamb. Seymour Waterman, in whose name title to the house was taken and who was president of the holding company (wholly owned by Murray) to which it was subsequently transferred, also testified, again without objection, that Murray had told him that he was going to borrow money from Lamb to finance the house. This, together with the testimony of Mabel Hope to be considered below, constituted Murray’s defense. We hold that there was ample basis for the jury’s rejection of the defendant’s explanation.
II. Objections to the Admissibility of Evidence
A. Testimony of Mabel Hope — To bolster its contention that the New Rochelle house had been financed by John Lamb, the defense called a Mrs. Mabel Hope, who testified that she had “followed” the Father Divine Mission, knew “Brother” Lamb well, and shortly after 1940 had borrowed $2,000 from him without any documents, to buy a house. She further stated that Lamb had told her “that Murray was a very nice fellow and he felt if [sic] he was his own son, and * * * he would help him in something. He said he would help him to do some kind of business. That is as much as he told me.” This, together with Mrs. Hope’s opinion that Lamb was “a wealthy man,” does not, as we have indicated, detract materially from the substantiality of the evidence supporting the verdict, especially in the light of the fact that Mrs. Hope did not state when it was that Lamb professed his disposition to aid Murray.
More specific attack is made upon the refusal of Judge Dawson to allow Mrs. Hope to answer defense counsel’s question, “Did he indicate that he ever lent Ed Murray money?” We agree with Judge Dawson that any answer to this question would have been inadmissible hearsay. Obviously appellant’s contention that this testimony should have been allowed because certain of the government’s evidence was allegedly hearsay as well is unpersuasive. Nor do we see any force in the argument that Mrs. Hope’s testimony should have been admitted under the hearsay exception relating to statements reflecting the state of mind of the declarant, United States v. Annunziato, 293 F.2d 373, 378 (2 Cir. 1961), cert. den. 82 S.Ct. 240; 6 Wig-more, Evidence §§ 1725-31 (3d Ed. 1959). Clearly a statement by Lamb that he had on prior occasions lent money to the defendant, or even a statement that on this occasion he had lent him the $32,-000 in question (the time reference of the question to Mrs. Hope being unclear) would tend primarily to show not Lamb’s intention or state of mind toward Murray as he spoke but whether or not a loan had actually been made. Thus the out-of-court statement was offered for the forbidden purpose of proving the truth of its contents, and does not come within this or any other exception to the hearsay rule. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); McCormick, Evidence, § 271 (1954).
B. Testimony of Lillian Smith —Lillian Smith, who was called by the government, testified on a variety of matters. She was secretary-treasurer of the holding company which held nominal title in the New Rochelle house, but her testimony about the payment at the closing of the sale (at which she was present) was totally inconclusive. She further testified that, “a few months before” the purchase of the house she had seen Murray with two shopping bags full of money, and that he had gotten the money “from gambling. He hit a number.” On cross-examination, however, she wavered as to the time when she had seen the money, admitting that it might have been as much as four years before the purchase of the house, and further said that she had no knowledge of the source of the money used to pay for the house or whether Murray had engaged in gambling since “years and years ago.” On redirect, Miss Smith testified that she had once done housework for Murray, but denied any other employment connection with him. At that point, over the defense’s objections, the government attorney confronted her with a prior statement signed by her to the effect that at one time she had been a numbers runner for Murray; in the statement dates were not established, but Miss Smith did say that she had not been a runner between 1953 and 1956. The judge permitted the use of the statement on the ground of surprise; Miss Smith denied its accuracy.
The appellant attacks the government’s use of Miss Smith’s prior inconsistent statement to impeach its own witness. We find no error. We agree with the trial judge that it was proper for the government to make use of a prior inconsistent statement of its own witness when she reversed herself on the question whether she had ever worked for Murray as a numbers runner. The implication of the prior statement that she had been a runner, but not in the years 1953 through 1956, might well be that she had been a runner in 1952, the first tax year in question, and thus that at that time Murray had been in the policy business. It was obviously material whether or not Murray was at that time in the policy business, and the government’s case was harmed by Miss Smith’s surprising answer.
The fact that the statement was used to cast doubt upon Miss Smith’s negative testimony, and thus to build the government’s case rather than merely to tear down testimony actually harmful to it does not make it any less admissible. We passed upon a similar situation in Di-Carlo v. United States, 6 F.2d 364 (2 Cir.), cert. denied 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925). In that case, in admitting a prior inconsistent statement when a witness testified that she had been unable to identify her assailants as the defendants, we said:
“The latitude to be allowed in the examination of a witness, who has been called and proves recalcitrant, is wholly within the discretion of the trial judge * * * The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the -stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.” Id., 6 F.2d at 368.
See United States v. Allied Stevedoring Corp., 241 F.2d 925 (2 Cir.), cert. denied 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957).
This is not, like United States v. Block, 88 F.2d 618 (2 Cir.), cert. denied 301 U.S. 690, 57 S.Ct. 793, 81 L.Ed. 1347 (1937), a case of an attempt to introduce an entire series of extrajudicial questions and answers when a witness refuses entirely to testify about matters on which he has previously been voluble. Rather, here the presentation was giving the jury an opportunity to determine the truth of Miss Smith’s negative response to a single question by noting her prior inconsistent answer and observing her attempt to reconcile her previous statement with what she now claimed to be the truth. Thus the jury was to draw its conclusion not from the out-of-court statement, but rather from the witness’ in-eourt conduct when confronted with it. So considered, the statement was not hearsay.
Murray also claims that it was error for the trial judge to permit the government to begin its examination of Miss Smith by asking her about her criminal record. She testified that she had been convicted for policy dealings in 1942, 1943, 1956 and 1959, and that in 1939 she had been convicted of violating the election law. Murray’s counsel objected to the relevancy of the testimony, and on two occasions moved for a mistrial. He claims that it was improper to ask questions pertaining to credibility before Miss Smith had given any other testimony, that the convictions brought out were incompetent to reflect on credibility since they were only for misdemeanors not involving moral turpitude, and that Murray was unduly prejudiced by the possible inference from his close connection with Miss Smith that he also had engaged in policy dealings.
The last claim of prejudice is without merit in view of Judge Dawson’s meticulous corrective instructions. He asked Miss Smith explicitly whether her convictions had been in connection with any work she had done for Murray, and her answer was negative. He then went on to say “The jury will realize the fact that she has been convicted is not any indication that Mr. Murray had anything to do with the policy racket,” and he stated that the testimony as to the conviction was to be considered only with relation to her credibility.
We find it unnecessary to consider whether it was error under the circumstances to permit the government to go into the credibility of its own witness in this way at the very outset of her testimony. As this case evolved there was no possibility of any prejudice to Murray from any attack on Miss Smith’s credibility. She gave no affirmative testimony which was in any way helpful to Murray, and in fact Murray’s counsel felt it desirable to argue in his summation that her testimony should not be believed. Thus Murray was more helped than harmed by any attack on her credibility, whatever the government's original motivation may have been.
C. Admission of Books and Records —At the trial, the government asked Murray’s counsel “to produce the books and records of a corporation known as 561-563 West 144th Street Realty, Inc.” On the previous day, the trial judge (off the record and thus apparently out of the hearing of the jury) had advised counsel that unless the books and records were turned over to the prosecution voluntarily, a subpoena would be issued. In court, defense counsel stated to the trial judge that “I have them here, and if you direct me to turn them over, I will.” When the judge responded “Yes,” the papers were made available to the prosecution without any objection or restriction. When, however, during its examination of a former employee of Murray’s accountant, the prosecution attempted to introduce them into evidence, the defense objected to the admission of some of them on the ground of the privilege against self-incrimination in that the books and records also contained personal records of the defendant.
Murray claims error in the trial judge’s failure to give a requested corrective instruction after the government had asked for the records in the presence of the jury. No such instruction was needed, since there was nothing prejudicial in the wording of the request, as quoted in the preceding paragraph. No privilege attached to the corporate rec-ords requested; this is not, like People v. Minkowitz, 220 N.Y. 399, 115 N.E. 987 (1917), a case where the prosecution attempted to prejudice the defendant by making known to the jury the existence of inadmissible personal records,
Nor was the fact that before trial judge Weinfeld had denied the government’s motion for inspection of these doc-umen^s of any relevance. The grounds for the denial had nothing to do with'the admissibility of the documents at trial; Judge Weinfeld merely held that uhe gov-ernment had shown insufficient need to liave them before trial.
Finally, we hold that defend-ant’s objection to the admission of the books in evidence was both too late and n°t in the proper form. The privilege against self-incrimination does not pro-hibit the introduction of incriminating matter in evidence; it merely forbids if to be obtained from the defendant. See Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913). The time for the defense to ob-ject on the grounds that the records were personally incriminating was before they were turned over to the prosecution, not when the prosecution later attempted to use them in the actual examination of the accountant. Moreover, the defense had a right to withhold only those rec-ords which were personal. The rights of the defendant could have been amply protected if the defense had offered to the government only those parts pertaining to the corporation and had withheld the rest. In any event, the government made no use of the parts of the books pertain-ing to Murray’s personal affairs, and there is no indication that there was in them any matter prejudicial to him.
III. Contradiction of the Government’s Bill of Particulars in Its Summation
Appellant also claims error in the trial court’s permitting the government to argue in its summation that there was no evidence supporting exemptions for three dependents when it had stated in its bill of particulars and in the testimony of the investigating Internal Revenue agent that for purposes of calculating Murray’s taxable income on the net worth theory it had allowed three exemptions. Murray’s counsel argued in his summation that lack of willfulness could be inferred from the fact that in the allegedly fraudulent returns Murray had not attempted to take exemptions for his three children. The government countered with the argument that there was no evidence in the record to show that Murray qualified for the exemptions by actually supporting the children. The trial judge rejected a request that he charge the jury that the government had actually allowed the exemptions, saying “I am not in my charge going to go into minutiae of the case.”
Appellant’s argument rests on the proposition that a bill of particulars binds the government for all purposes in the case in which it is given. The function of a bill of particulars is to enable the accused to prepare for trial and to prevent surprise, and to this end the government is strictly limited to proving what it has set forth in it. See, e. g., United States v. Neff, 212 F.2d 297, 309 (3 Cir.1954). But saying that the government’s case is limited to what it has specified is not the same as saying that for all purposes statements in a bill of particulars are evidence in the case. The bill of particulars merely stated that in arriving at the amount of taxable income alleged in the indictment it had allowed the defendant “four exemptions in each of the years contained in the indictment — one exemption for himself and three for his children.” It was not an admission that such exemptions were actually allowable. See United States v. Nunan, 236 F.2d 576, 588 (2 Cir.1956), cert. denied 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957). It was nothing more than a decision not to contest the propriety of the three exemptions which Murray might claim.
The bill of particulars is not evidence of itself; it is merely a statement of what the government will or will not claim. Thus the record was barren of evidence as to whether Murray supported his three children. Of course the defendant could have sought a concession on this from the government or could have adduced proof of it. As it was, Murray’s counsel chose to make the argument despite the fact that the record contained nothing to support it. Under these circumstances it was entirely proper for the government to argue, in answer to the summation of Murray’s counsel, that there was no proof in the record that he was entitled to the exemptions.
IV. Pretrial Inspection of Murray’s Statements to the Internal Revenue Service
The final point for our consideration is the assignment of error in Judge Edelstein’s denial of the defense’s pretrial motion for inspection of the transcripts of Murray’s several voluntary interviews with agents of the Internal Revenue Service. The motion was based alternatively on Rules 16 and 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and Section 6(b) of the Administrative Procedure Act, 5 U.S.C.A. § 1005(b). Judge Edelstein held that the defense had made insufficient showing of the “materiality” required for discovery under Rule 16, that pretrial inspection pursuant to subpoena was unavailable under Rule 17(c) because it had not been shown that the statements were “evidentiary and relevant,” and that Section 6(b) of the Administrative Procedure Act was inapplicable because the statements had not been “compelled” by the Revenue Service. Because of the division among the district judges of this circuit as to pretrial inspection of a defendant’s own statements, we shall elaborate the reasons for our affirmance of Judge E delstein’s denial of the motion.
A. Rule 16 — We hold that a transcription of a question and answer examination of one who later becomes a defendant in a criminal action is not discoverable by him under Rule 16 as within the category of “books, papers, documents or tangible objects, obtained from or belonging to the defendant.” The language of Rule 16, its evolution in the Advisory Committee, see United States v. Peltz, 18 F.R.D. 394 (S.D.N.Y.1955), and the Committee’s final explanatory Note all indicate that Rule 16 applies only to books, papers, documents or tangible objects in which a defendant has had some prior proprietary or possessory interest. The great weight of authority supports our unwillingness to stretch the word “belonging” to the point of saying that a stenographic transcript of a defendant’s words “belongs” to him. See Shores v. United States, 174 F.2d 838, 11 A.L.R.2d 635 (8 Cir.1949); Schaffer v. United States, 221 F.2d 17 (5 Cir.1955); Kaufman, Criminal Discovery and Inspection of Defendant’s Own Statements in the Federal Courts, 57 Colum.L.Rev. 1113, 1114 (1957); Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 1053 (1961). Although Murray’s Q-and-A statements were not signed, we can see no reason why a signed statement would any more have “belonged” to him within the meaning of the rule.
Although on this analysis, it is unnecessary for us to pass upon the assertion in the district judge’s order that the statements were not “material” to the preparation of Murray’s defense, it would seem to us that the statements were material.
B. Administrative Procedure Act § 6(b) — We agree with Judge Edelstein that Section 6(b) is inapplicable to the statements Murray voluntarily made to the Internal Revenue Service. By its terms Section 6(b) applies only to persons “compelled to submit data or evidence,” and Murray’s appearances were not pursuant to summons issued under •§ 7602 of the Internal Revenue Code of 1954, but rather were made of his own volition. Thus the case before us is distinguishable from Backer v. Commissioner, 275 F.2d 141 (5 Cir.1960) and United States v. Smith, 87 F.Supp. 293 (D.Conn.1949), which held § 6(a) applicable to insure representation by counsel in a hearing held pursuant to a subpoena.
C. Rule 17(c) — Although a Rule 17(c) subpoena might under some ■circumstances be used to compel the gov■ernment to produce the transcript of a defendant’s statement for his use as evidence, Murray gave no reason which •would have justified Judge Edelstein in ■exercising his discretion to require the government to produce his statements for inspection before the trial.
“Rule 17(c) was not intended to provide an additional means of discovery,” Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). Its purpose is rather that of the traditional subpoena duces tecum, to permit a party to obtain “books, papers, documents or other objects” for use by him as evidence. The provision for pretrial inspection is merely a subsidiary one, “to expedite the trial by providing a time .and place before trial for the inspection of the subpoenaed materials.” Id. at 220, 71 S.Ct. at 679; see Kaufman, supra, at 1116; Note, 67 Harv.L.Rev. 492, 496-97 (1954). We cannot agree with the implication in Fryer v. United States, 93 U.S.App.D.C. 34, 207 F.2d 134, cert. denied 346 U.S. 885, 74 S.Ct. 135, 98 L.Ed. 389 (1953), that the mere likelihood that the government will use a defendant’s statement as evidence (as Murray’s statements were in fact used at trial) makes them “evidentiary” within the meaning of Rule 17(c) as interpreted by the Supreme Court in Bowman. If Rule 17(c) is interpreted to allow the defense to inspect any matter in the government’s hands which might be used by it as evidence, we see little meaning left in the court’s clear statement in Bowman that it is not an additional discovery device. Rather, we interpret Bowman as saying that Rule 17(c) is a device solely for the obtaining of evidence for the use of the moving party, permitting him to examine the material obtained before trial only where, in the discretion of the court, it is necessary that he do so in order to make use of the material as evidence.
The only apparent evidentiary use to which a defendant could put his own statement would be to impeach the testimony of a government witness about its contents or, perhaps, to bolster his own testimony by showing its consistency with the prior statement in the event that the government introduced evidence of some other inconsistent statement. To be sure, we see no reason why after the government introduces such testimony at trial a defendant could not use Rule 17 (c) to subpoena his prior statement for his own use. Cf. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Although Jencks eliminated any requirement of a prior foundation of inconsistency (in the case of third-party witnesses), the Supreme Court did not say that it was not necessary for the defendant to show some fairly immediate evidentiary need for the statements he sought, and it reaffirmed that it was not permitting a fishing expedition in the manner of discovery. We cannot say that there may never be a situation where it would be appropriate to allow a defendant to examine his own statement before trial. Here, however, Murray had made no showing of such special need. Murray had counsel with him at each interview and it is hardly to be supposed that he and his counsel were without any notes of what had happened and without any memory of what was said. Under ordinary circumstances, such as these, we see no reason why there should not be sufficient time for defense counsel to make whatever impeaching or bolstering use of a statement he can if he obtains the transcript at trial. Murray has made no showing that he was in any way prejudiced by reason of not having had his statements made available to him before trial.
Affirmed.
. Section 145(b), Internal Revenue Code of 1939.
“Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.”
. In any event, Murray waived any objection to the use of misdemeanor convictions to reflect on credibility by his failure to raise tlie point specifically at trial. He should not be permitted to raise on appeal a new point which he did not give the trial judge an opportunity to pass upon. See, e. g., United States v. Sansone, 231 F.2d 887, 891 (2 Cir.), cert. denied 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). Timely objection was especially necessary here because it is not clear on the record what the nature of the convictions was. If, as is likely, they were in fact only for. misdemeanors (the policy violations prob-ably having been under New York Penal Law, McKinney’s Consol.Laws, c. 40, § 974 and the election violation probably under New York Penal Law, § 757(2)) it would have been error to permit their use for impeachment purposes over prop-er objection. See United States v. Pro-voo, 215 F.2d 531, 536 (2 Cir. 1954).
. Rule 16, Federal Rules of Criminal Procedure.
“Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.”
. Rule 17(c), Federal Rules of Criminal Procedure.
“A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein * * * The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.”
. Section 6(b), Administrative Procedure Act, 5 U.S.C. § 1005(b).
“Issuance of process; investigations; transcript of evidence. * * * Every person compelled to submit data or evidence shall be entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that, in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.”
. Compare, e. g., United States v. Peace, 16 F.R.D. 423 (S.D.N.Y.1954) (allowing inspection under Rule 16) with, e. g., United States v. Peltz, 18 F.R.D. 394 (S.D.N.Y.1955), (denying inspection under both Rule 16 and Rule 17 (c)). For a recent thorough collection of the cases, both within this circuit and elsewhere, see United States v. Fancher, 195 F.Supp. 448 (D.Conn.1961).
. The Note states that the rule is a “restatement” of the procedure whereby the 'courts had “made orders granting to the defendant an opportunity to inspect impounded documents belonging to him. * * * ” It would be strange to speak of “impounding” a transcript, signed or unsigned, which had never been in a defendant’s possession.
. Judge Kaufman’s article suggests the situation where the preparation of a defense of insanity might require inspection of the transcript of a psychiatric examination. Kaufman, supra, at 1120.
Judge Kaufman also discusses tlie possibility, raised in Shores v. United States, 174 F.2d 838, 845, 11 A.L.R.2d 635 (8 Cir. 1949), of an inherent judicial power to allow discovery, in cases of need. where it is not explicitly provided for in the rules. He concludes that “the courts remain free to direct discovery under their inherent authority to administer justice in federal courts.” Kaufman, supra, at 1121. We need not here consider whether such power exists, since the facts of this case fall far short of showing any earlier need for the statements.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
DIXON v. DUFFY, WARDEN.
No. 79.
Argued October 16, 1951.
Continued November 5, 1951.
Franklin C. Stark, acting under appointment by the Court, argued the cause and filed a brief for petitioner.
Clarence A. Linn, Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Attorney General, and Howard S. Goldin, Assistant Attorney General..
Per Curiam.
Petitioner was convicted in the California Superior Court in 1949 of making and possessing counterfeiting dies or plates in violation of Cal. Penal Code, 1949, § 480. He did not appeal, but sought to challenge the validity of his conviction by filing successive petitions for a writ of habeas corpus in the California Superior Court and California District Court of Appeal.
Following denial of these petitions, he instituted this case by filing an original petition' for a writ of habeas corpus in the Supreme Court of California. The Supreme Court of California denied the petition without opinion, two justices thereof voting for issuance of the writ. We granted certiorari, 341 U. S. 938, because of a serious claim that petitioner had been deprived of his rights under the Federal Constitution.
At the bar of this Court, the Attorney General of the State of California argued that habeas corpus was not a proper state remedy for determination of petitioner’s federal claim. It is the position of the Attorney General that petitioner’s failure to appeal in this case barred him from seeking post-conviction relief by way of a collateral habeas corpus proceeding.. He admits that habeas corpus is available in California in cases involving certain exceptional circumstances, but contends that this is not such a case. If the Attorney General is correct, the judgment may rest on a non-federal ground, thus calling for dismissal of our writ of certiorari. In this state of uncertainty, we follow our precedents in Herb v. Pitcairn, 324 U. S. 117 (1945), and Loftus v. Illinois, 334 U. S. 804 (1948).
Accordingly, the cause is ordered continued for such period as will enable counsel for petitioner to secure a determination from the Supreme Court of California as • to whether, the judgment herein was intended to rest on an adequate independent state ground or whether decision of the federal claim was necessary to the judgment rendered.
Cause continued.
Mr. Justice Douglas dissents.
Mr. Justice Minton took no part in the consideration or decision of this case.
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_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
RIDDLE v. SOUTHERN RY. CO. et al.
No. 4566.
Circuit Court of Appeals, Fourth Circuit.
Aug. 30, 1940.
Edwin S. Hartshorn, of Asheville, N. C. (Francis J. Heazel, George. A. Shuford, Heazel, Shuford & Hartshorn, and William A. Sullivan, all of Asheville, N. C., on the brief), for appellant.
G. Lyle Jones, of Asheville, N. C. (W. T. Joyner, of Raleigh, N. C., and George H. Ward, G. L. Jones, Jr., and Jones, Ward & Jones, all of Asheville, N. C., on the brief), for appellees.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
This was a civil action instituted by the plaintiff, as administratrix of her deceased husband, Clyde Riddle (hereinafter called Riddle), against the Southern Railway Company and certain other defendants, to recover damages for the alleged wrongful death of Riddle, the plaintiff's intestate. The action, originally instituted in a state court of North Carolina, was duly removed by the defendants to the United States District Court for the Western District of North Carolina.
During the trial, the form of the issues to be submitted to the jury was agreed upon, ' and was approved by the court. The second • of these issues was: “Did the plaintiff’s intestate, Clyde Riddle, by his own negligence, contribute to his injury and death, as alleged in the answer?” At the close of all the evidence, Judge Webb directed the jury to answer this second question in the affirmative. The jury, in obedience to the peremptory instruction, answered the second issue “Yes”. Judgment was thereupon entered against the plaintiff and in favor of the defendants. Plaintiff-appellant, after due objections and exceptions to the rulings and judgment of the District Court, appealed to this court.
For the purpose of this appeal, plaintiff-appellant raises four separate questions. These four questions, however, are closely interrelated, and we are called on to decide only one question: was Judge Webb correct in deciding that the plaintiff’s intestate was guilty of contributory negligence, as a matter of law? We believe Judge Webb’s ruling was correct.
This statement of the salient facts in the case is taken from- the brief of appellant (pp. 3 and 4):
“Plaintiff’s intestate, Clyde Riddle, 27 years of age, was driving an automobile truck in connection with a highway construction job near Enka, Buncombe County, North Carolina, on December 17, 1936. The highway under construction, (U. S. No. 23), is parallel to and North of the main track of the Murphy Division of the defendant, Southern Railway Company, and both run approximately East and West. Just South of the main track and parallel to it is a side track. The North rail of the side track is 8.3 feet south of the South rail of the main track. A ‘Loading Road’ is about 4 feet South of the South rail of the side track. Another road crosses the side track and main track and extends North to U. S. No. 23.
“Two box cars were parked on the side track just West of this cross-road. These two box cars extended about 85 feet along the side track. The Northern side of the box cars was 5.8 feet South of the Southern rail of the main track. Box cars are from 9-1/4 to 10-1/4 feet wide and 13.6 feet high.
“Riddle had loaded his truck with cement from the Western-most box car, backed to the cross-road and was proceeding North on the cross-road. When the cab of his truck cleared the Northern edge of the box cars, he looked both ways, saw that a passenger train travelling East was about to strike his truck (the front end of which was already on the main track), and threw up his hands, and the train struck his truck, knocking it sonic 40 feet down the track, and fatally injuring Riddle. The rear end of the train was some 300 feet past the crossing when the train stopped. * * * There was considerable noise caused by the trucks in the neighborhood of the crossing.
“The track was straight for perhaps half a mile or more West of the crossing, and is on top of the ground for about 677 to 777 feet to the West of the crossing. West of that it is in a cut for some distance. There are bushes and trees South of the track, about 477 feet West of the crossing.
“The highway construction work, unloading of materials from cars on this siding, and hauling same across the tracks to the highway under construction, with trucks crossing the tracks almost continuously during daytime when work was in progress, had been going on for several weeks before the collision.
“The train was operated by the defendant Southern Railway Company, and the individual defendants were the train crew, (engineer, fireman, conductor). The engineer operates the locomotive seated on the right side thereof.”
For the purposes of this opinion, it may be conceded that there was negligence on the part of the defendant. The facts of the case, however, show very clearly that no recovery in favor of the plaintiff could possibly be predicated hereupon the doctrine of last clear chance.
Plaintiff-appellant relies very heavily upon the opinion of Mr. Justice Cardozo in the well-known case of Pokora v. Wabash Railway Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. We have no quarrel with the opinion in that case, in which it was held that the plaintiff was not guilty of contributory negligence as a matter of law. We think, though, that the facts in the instant case can very clearly be distinguished from those in the Pokora case.
In the Pokora case, Pokora was driving his truck across a railway grade crossing in the populous city of Springfield, Illinois. There were a large number of railroad tracks, also switches, along the street on which the accident happened. Before entering the street intersection, Pokora had stopped his truck and, before proceeding, he looked for trains, but a string of box cars cut off his view. He listened but heard nothing, neither bell nor whistle. Still listening, he drove across the switch, and was struck by a train coming at an unlawful speed.
In the instant case, there was no evidence whatever to show that Riddle gave even one thought to, or took a single precaution for, his own safety. Apparently, he was quite willing to take a terrible chance. Tragically, it broke against him. After his truck (then facing west) was loaded, he backed first east on the loading-road and then south on the cross-road. The evidence seems to indicate that Riddle then stopped his truck on the cross-road about 30 feet south of the track on which the accident happened. It is a fair inference from the evidence, too, that at this spot there was an appreciable space to the West of the box cars (the direction from which the train was approaching) where the view is unobstructed. He did not then look for a possible approaching train and it is important that, in the statement of facts quoted above from the appellant’s own brief, no mention is made of Riddle’s either looking or listening until the front end of his truck w;as already on the main track of the Southern, when, according to this same statement, (appellant’s ' brief, p. 4) he “threw up his hands and the train struck his truck”.
The evidence showed clearly that many other persons in the neighborhood of the accident both saw and heard the approaching train. Some of these made rather frantic efforts by shouting and waving at Riddle to prevent him from driving his truck in front of the train; but, so the evidence shows, Riddle did not either hear the shouting or see the waving, so he drove his truck on the track, right in the path of the oncoming train. It is not without importance that Riddle (a truck driver in the employ of the road contractor, Strider & Company) was thoroughly familiar with the conditions existing around the place of the accident and the evidence goes even further to show that he must have known the schedule of passenger trains on this Murphy division of the Southern Railway.
We agree with the Pokora case that the law does not, under all circumstances, impose the duty upon a truck driver, upon crossing a railway track with his truck, to get down off his truck, go to the front of the truck and look and listen for trains which might possibly be approaching. It should be noted, however, that Pokora did stop his truck once, did look and listen, and that he was still listening while he was driving his truck across the railroad tracks.
The road in which Riddle was driving his truck when the accident happened was not a city street, as in the Pokora case; nor was it even an important road. It was an unimportant country road which came to a dead-end at a very short distance south of the track on which the train in question was running.
In the Pokora case, Justice Cardozo learnedly discussed at some length the varying rules laid down by different courts as to the duty of one crossing a railway track, to stop, look and listen. Then he said (292 U.S. 104, 54 S.Ct. 582, 78 L.Ed. 1149, 91 A.L.R. 1049): “Choice between these diversities of doctrine is unnecessary for the decision of the case at hand.” The quoted sentence, we believe, is peculiarly applicable to the Riddle case. We believe, though, that our decision here is quite consistent with the Pokora case; is in line with the decisions on this subject by the highest court of North Carolina, Harrison v. North Carolina Railroad, 194 N.C. 656, 140 S.E. 598; and also squares with the decisions of our own court on this point, McNabb v. Virginian Ry., 55 F.2d 137, Calloway v. Pennsylvania Ry. Co. 62 F.2d 27.
We are not unmindful of the fact that the plaintiff’s intestate is guilty of contributory negligence as a matter of law, if, and only if, that is the only reasonable and legitimate inference which can be drawn from the evidence, when that evidence is taken in the 'light most favorable to the plaintiff’s intestate. Any fair-minded person, we believe, upon an impartial consideration of the uncontradicted testimony here, must reach but one conclusion. To the question contained in the second issue: “Did plaintiff’s intestate, Clyde Riddle, by his own negligence, contribute to his injury and death, as alleged in the answer?” there can be, in our opinion, but one reasonable answer — in the affirmative.
For the reasons stated above, we affirm the judgment of the District Court
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_casetyp1_7-3-4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities".
B. B. WOODSON, Trustee, Appellant, v. Bernard P. CHAMBERLAIN, Appellee. In the Matter of Sterling R. DECKER.
No. 9028.
United States Court of Appeals Fourth Circuit.
Argued Jan. 23, 1963.
Decided May 20, 1963.
Bernard P. Chamberlain, pro se, in support of motion.
William S. Aaron, Jr., Charlottesville, Va., in opposition to motion.
Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
The appellee has moved to docket and dismiss the appeal upon the grounds of complete compliance by the appellant with the judgment below and of an asserted estoppel in pais. We deny the motion.
The appellee, Bernard P. Chamberlain, had sold to the bankrupt, Dr. Sterling Decker, a tract of land for $30,000. Payment of the purchase price was secured in part by bonds, one of which in the face amount of $5,000 is in issue. On this bond, there is recorded an agreement between Chamberlain and Decker that if certain developmental work contemplated by Decker on the land should cost more than $20,000, one-half of the excess should be a credit on the bond. Since this agreement made the ultimate purchase price uncertain, the ten per cent real estate commission could not be finally computed and $500 was deposited in escrow for the purpose of securing payment to the real estate agent of ten per cent of whatever amount ultimately proved to be payable upon the bond. Since the maximum credit could not exceed $5,000 and the maximum reduction of the real estate commission could not exceed the $500 placed in escrow, the remainder of the real estate commission was paid at the time of closing. Chamberlain had a contingent interest in the escrowed funds to the extent that they proved to be in excess of the ultimate amount determined to be due the real estate agent.
The contemplated development of the tract of land was never performed. Decker became interested in another development and subsequently appears to have abandoned this one altogether. Thereafter, he became insolvent and was declared a bankrupt.
In the bankruptcy proceedings Chamberlain filed as a secured creditor upon the $5,000 bond remaining unpaid and which contained the special agreement for the credit in the event the developmental costs exceeded $20,000. The land was sold free of the bond’s lien and the Trustee had funds with which to pay Chamberlain’s preferred claim. The Trustee resisted the claim, however, for, under the special agreement, he contended he was entitled to a credit of' $5,000, the face amount of the bond. He did this on the basis that the developmental work on the land had never been done, but a current estimate of the cost of such work if then undertaken exceeded $30,000.
The Referee found that the Trustee was entitled to the credit he claimed, but the District Judge disagreed, holding that the credit was allowable only if the developmental work had actually been performed with incidental advantage to other lands owned by Chamberlain, and that the credit could not be claimed on a current estimate of the cost of work which had not been done and which now is clearly not to be done. He ordered the Trustee to pay Chamberlain’s claim.
Shortly thereafter, the Trustee paid Chamberlain’s claim. Chamberlain asserts that the Trustee said, at the time, that he was not going to1 appeal from the order of the District Court, and it does appear that Chamberlain then thought that the controversy was finally settled, for he then released to the real estate agent the $500 held in escrow. The Trustee asserts, however, that he did not make any commitment about an appeal, and on this motion we have no means to resolve the factual conflict between the parties.
Since there was no undisputed agreement not to appeal, we have then only the fact of the Trustee’s payment of the judgment and Chamberlain’s subsequent release of the escrowed funds.
The usual rule in the federal courts is that payment of a judgment does not foreclose an appeal. Unless there is some contemporaneous agreement not to appeal, implicit in a compromise of the claim after judgment, and so long as, upon reversal, restitution can be enforced, payment of the judgment does not make the controversy moot.
Chamberlain contends, however, that his release to the real estate agent of the $500 placed in escrow has created an estoppel in pais which ought to foreclose the Trustee’s right of appeal. As indicated above, however, we have no basis for a finding upon the present record as to whether or not and to what extent the Trustee was responsible for Chamberlain’s assumption or opinion that the controversy was ended by the Trustee’s payment of the judgment. Nor do we think that the release of the escrowed funds was such an additional circumstance as to avoid the general rule that payment of a judgment does not foreclose a subsequent appeal. Doubtless, if the Trustee led Chamberlain reasonably to believe that the controversy was ended and thus unconditionally to release the $500 in escrow, and if it should ultimately eventuate the unconditional release of the escrowed funds resulted in an overpayment of real estate commissions, the loss arising out of the overpayment should fall upon the Trustee and not upon ■Chamberlain, but that is a matter which can be subsequently determined and adjusted. In the meanwhile, Chamberlain’s risk of possible loss, not exceeding $500 by reason of a speculative overpayment of the real estate commission, •ought not to foreclose the Trustee’s right of appeal of his claimed entitlement to a •credit of $5,000, when Chamberlain’s loss, if any eventuates, is subject to ■equitable adjustment if the Trustee is found to be responsible for it.
For the foregoing reasons, Chamberlain’s motion to docket and dismiss is •denied and the Trustee’s appeal will be •docketed in its regular order.
Motion denied.
. Cahill v. New York, New Haven & Hartford Railroad Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075; Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 28 L.Ed. 981; Ferrell v. Trailmobile, Inc., 5 Cir., 223 F.2d 697; 698; Chicago Great Western Ry. Co. v. Beecher, 8 Cir., 150 F.2d 394, 397-398; Cramer v. Phoenix Mutual Life Ins. Co., 8 Cir., 91 F.2d 141; Luedinghaus Lumber Co. v. Luedinghaus, 9 Cir., 299 F. 111; Josevig-Kennecott Copper Co. v. James F. Howarth Co., 9 Cir., 261 F. 567; Hoogendorn v. Daniel, 9 Cir., 202 F. 431; Leader Clothing Co. v. Fidelity & Casualty Co. of New York, 10 Cir., 227 F.2d 574.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
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.
HANBACK v. DUTCH BAKER BOY, Inc.
No. 7205.
United States Court of Appeals for the District of Columbia.
Decided Aug. 7, 1939.
T. Edward O’Connell, of Washington, D. C., for plaintiff in error.
Paul J. Sedgwick, of Washington, D. C., for defendant in error.
. Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.
STEPHENS, Associate Justice.
This case is here upon a writ of error to the Municipal Court of the District of Columbia. The plaintiff in error (hereafter referred to as plaintiff), an infant, brought suit, through her father as next friend, against the defendant in error (hereafter called defendant), a local bakery, for damages for illness caused by food poisoning. The plaintiff alleged that her mother purchased chocolate eclairs from the defendant, which had knowledge through its servants that they were intended for the plaintiff’s consumption, and that she ate one of them, which proved to be unwholesom'e, with resultant injury. The trial court sustained a demurrer to the complaint upon the ground that “lack of privity of contract bars the right of the .infant to recover on implied warranty of wholesomeness and fitness for human consumption.” The plaintiff stood on her declaration and judgment was entered for the defendant. We granted a writ. The case presents but one issue — whether a consumer of food, other than a purchaser, can recover against a seller on an implied warranty that the food is wholesome.
The appellant urges that for the protection of the public liability upon the theory of implied warranty should extend to all consumers and that the limitation to “privity of contract” is unreasonable and harsh in its results. But we considered this question in Connecticut Pie Co. v. Lynch, 1932, 61 App.D.C. 81, 57 F.2d 447, and therein held that there could be no recovery on an implied warranty where the suit was by sub-purchaser against manufacturer, this because of lack of contractual relationship between the parties. Under that holding the plaintiff must fail here. She is but the donee of a puchaser. The remedy in such situations in this jurisdiction is in tort for negligence.
In Cushing v. Rodman, 1936, 65 App.D.C. 258, 82 F.2d 864, 104 A.L.R. 1023, we held that a purchaser of food could recover from a retailer upon an implied warranty of wholesomeness notwithstanding that the retailer could not have discovered the defect without destroying marketability of the article. . The plaintiff insists that language in the opinion, to the effect that the allowance of recovery upon an implied warranty better protects the consuming public than the restriction of liability to tort, indicates an intention to overrule Connecticut Pie Co. v. Lynch. These statements were but a part of the reasons given for choosing, from divergent lines of authority in other jurisdictions, the warranty rule. In Cushing v. Rodman, far from overruling the Pie Company case, in citing it we recognized its limitation of the warranty rule. And since Cushing v. Rodman involved a purchaser, it does not rule the case of a purchaser’s donee.
Since Cushing v. Rodman, the Uniform Sales Act, D.C.Code (Supp.1939) tit. 11, c. 4, 50 Stat. 29(1937), has been passed for the District of Columbia. The sale involved in the instant case is subject to the Act, the sale occurring on September 23, 1937, and the Act taking effect on July 1 of the same year. So far as here pertinent, the Act provides:
“Sec. 15. ... there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, ■ except as follows:
“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.
“Sec. 69. ... (1) Where there is a breach of warranty by the seller, the buyer may, at his election—
* * *
“(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty ....
“Sec. 76. .'. . ‘Buyer’ means a person who buys or agrees to buy goods or any legal successor in interest of such person.”
We think the language of this'Act sufficiently broad to cover sales of food and that it therefore confirms the doctrine of Cushing v. Rodman. But the Act does not aid the plaintiff in the instant case. She is neither a buyer nor, within the normal sense of the term, a successor in interest of the buyer.
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:
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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".
CHICAGO & N. W. RY. CO. v. BEWSHER.
(Circuit Court of Appeals, Eighth Circuit.
July 28, 1925.)
No. 6831.
1. Carriers <§=3160 — Carriers might, prior to amendment of Interstate Commerce Act, limit time within which suits might be brought on contracts of carriage.
Prior to amendment by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), to Interstate Commerce Act, § 20, par. 11, carriers might limit time within which suits might be brought on contracts of carriage, subject only to reasonableness of the limitation.
2. Carriers <§=3160 — Carriers held unauthorized to place any fiat restriction on time within which suit may be brought on contracts of carriage, based on ti-me of delivery of the shipment.
Under Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), carriers held unauthorized to place any flat restriction on time within which suit may be brought on contracts of carriage, based on time of delivery of the shipment, rather than time of giving of the notice prescribed therein.
3. Carriers <§=3160 — Limitation in bill of lading for institution of suits for loss, damage, or delay on contracts of carriage, held void, as contravening amendment of Interstate Commerce Act.
Provision of bill of lading that suits for loss, damage, or delay on contracts of carriage should be instituted only within two years and one day after • delivery of the property, or, in case of failure to make delivery within two years and one day, after a reasonable time for delivery has elapsed, held void, as contravening Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 439-438 (Comp. St. Ann. Supp. 1923, § 8604a).
4. Carriers <§=359 — Holder of order bill of lading not estopped to maintain action for damages for issuance of false bill of lading by redelivery of claim to shipper and shipper’s settlement with carrier.
In action by holder in good faith of order bill of lading, under Bill of Lading Act Aug. 29, 1916, § 22 (Comp. St. § 8604kk), for damages caused by carrier’s nonreceipt of part of carload of wheat described in bill of lading, plaintiff held not estopped to maintain his action by redelivering claim and supporting papers to shipper, and by shipper’s settlement, where claim made and filed was for wheat declared to have been lost in transit.
5. Carriers <§=>52(2) — Carrier may show that goods described in hill of jading were never delivered, and is not estopped by recitals in bill.
Carrier, issuing a bill of lading, may show that the goods described therein were never in fact delivered, and is not estopped by recitals in such bill.
6. Carriers <§=355 — Bill of Lading Act manifests congressional intention to make ordinary bills of lading fully negotiable.
Bill of Lading Act Aug. 29, 1916 (Comp. St. §§ 8604aaa-8604w), manifests a clear intention of Congress to malte ordinary bills of lading fully negotiable and they are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act, or others of like import, or some notice or recitation inconsistent with negotiability.
7. Carriers <§=359— Carrier held liable to holder in good faith of order bill of lading for damages caused by nonreceipt of part of carload of wheat; “weight subject to correction."
Carrier held liable to holder in good faith of order bill of lading covering car of wheat for damages caused by carrier’s nonreceipt of part of the goods, in view of Bill of Lading Act Aug. 29, 1916, §§ 20, 22 (Comp. St. §§ 8604jj, 8604kk), notwithstanding that wheat was loaded by shipper, and that bill of lading recited that weight was “subject to correction”; such words not being of “like purport” to the words “shipper’s weight, load, and count,” or “shipper’s weight,” or that weight of wheat was “said to be” weight recited in bill of lading, within section 21 (Comp. St. § 8604k), prescribing what descriptions in bill of lading shall not render carrier liable.
In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.
Action by Augustus H. Bewsher, doing business as the Bewsher Company, against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Wymer Dressier, Robert D. Neely, and Paul S. Topping, all of Omaha, Neb., for plaintiff in error.
R. B. Schuyler, of Omaha, Neb., for defendant in error.
Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.
SCOTT, District Judge.
This is an action by Augustus H. Bewsher, doing business as the Bewsher Company, a grain dealer at Omaha, Neb., against the Chicago & Northwestern Railway Company, to recover $650.-75 damages alleged to be due on account of tbe issuance of an order bill of- lading to ene Albert Swick at Buffalo Gap, S. D., for 66,000 pounds of bulk wheat. Plaintiff in his petition alleges in substance that on or about the 27th day of December, 1920, Albert Swick loaded at Oral, S. D., defendant’s car No. 118,720 with wheat; that said wheat was consigned to the plaintiff at Omaha, Neb., and the duly authorized agent of defendant at Buffalo Gap, S. D., issued a bill of lading covering said wheat, a copy of which bill of lading is exhibited on plaintiff’s petition; that said bill of lading with draft attached was forwarded from the- Oral State Bank, of Oral, S. D., to the 'Merchants’ National Bank, of Omaha, Neb.; that said draft was drawn on the plaintiff for the amount of $1,900, which draft was honored and paid by the plaintiff on January 3, 1921; that at the time plaintiff honored said draft he was the holder in good faith of said order bill of lading and paid $1,900 to Merchants’ National Bank, agent'of Albert Swick, the shipper, relying upon the description set forth in said bill of lading, and at the time actually believed that there was 66,-000 pounds of wheat shipped in said car; that as a matter of fact said ear never contained 66,000 pounds of wheat, but only contained 45,590 pounds; that defendant company negligently failed to weigh the wheat at the time of shipment, and failed to notify plaintiff of the fact that said wheat was not weighed.
Plaintiff further pleads that on or about the 3d day of February, 1921, having prior thereto taken an assignment of the claim of said Albert Swick, he filed a daim for the account of plaintiff with defendant, together with proof of loss thereon, said claim being covered by defendant’s claim No. 201,977— Desk 1; that said claim was filed with defendant in less than 90 days from the date of delivery of said wheat at destination; that on or about the 14th day of May, 1921, defendant refused to pay said claim, but did offer to compromise the same for the amount of.$54.55. The bill of lading exhibited on plaintiff’s petition recites'the receipt at Buffalo Gap, S. D., from Albert Swick, C & NW ear No. 118,720, and under the description of articles, recites: “Bulk Wheat, 60 M car Ordered 80 M ear furnished Co C &NW Weight (subject to correction) 66,-000 Loaded at Oral SD.”
Defendant, answering, admits that on the date alleged. Albert Swick loaded the car in question with bulk wheat at Oral, S. D., and consigned same to himself at Omaha, Neb., notifying the plaintiff company;'admits that the bill of lading was issued as alleged; and concludes by denying all other allegations of plaintiff’s petition. Defendant, further answering, pleads four separate defensive paragraphs, the order of which we transpose somewhat, to meet what we deem to be the logical order of their consideration. These defenses are:
(1) That section 2 of said bill of lading provides that no suit shall be maintained thereon unless commenced within two years and one day from the delivery of the goods therein, and defendant alleges that this suit was not commenced within said time, and is therefore barred by the terms of said bill of lading.
(2) That plaintiff made claim against defendant on the 4th day of February, 1921, for $577.76 for alleged loss of grain from said ear during transportation, and among the papers presented to the defendant in support of said claim was a copy of an assignment made by Albert Swick to plaintiff; and on March 8, 1921, defendant wrote a letter to plaintiff, declining to recognize said claim, and defendant alleges that this suit was not commenced within two years from March 8, 1921, and is therefore barred by operation of law.
(3) That plaintiff is estopped to maintain this suit for the reason that, after plaintiff had made said claim upon defendant and said claim was declined by defendant, plaintiff delivered to Albert Swick all supporting papers, including the assignment which plaintiff had presented to defendant in support of said claim, and thereafter the said Albert Swiek again presented to the defendant said claim for alleged loss of grain in transit from said shipment, and Albert Swick and defendant entered into a compromise and settlement of said claim for the sum of $54.05, and the defendant on June 2,' 1921, paid to Albert Swick the sum of $54.05 in full settlement of all claims on account of said shipment; that by reason of said conduct plaintiff is now estopped to claim that he had any interest in said shipment or in said claim, other than ás the representative of Albert Swick, and defendant alleges that said claim has been fully compromised and settled.
(4) That the wheat mentioned in plaintiff’s petition was loaded by the shipper, on facilities furnished by the shipper, and was not loaded by the defendant, and same was received under the terms of said bill of lading, which provided that the weight of said shipment was subject to correction.
The ease was tried upon the issues as stated. The facts were largely stipulated, and from such stipulation and the testimony of plaintiff Bewsher, the following facts appear without controversy:
That about the date alleged Albert Swick loaded the car of bulk wheat at Oral, S. D., That as of the same date defendant’s agent at Buffalo Gap issued the bill of lading in question with the recitals as stated in plaintiff’s petition. That the ear was weighed on track scales at Chadron, and the weight of the grain, using the gross weight and then subtracting the stenciled weight on the ear, resulted in a net weight of 48,300 pounds, and that the weight ascertained at Omaha, when the grain was unloaded and weighed by the grain exchange weighmaster, was 45,590 pounds. That there was no actual loss of grain from the car, and the car was in good condition, and the difference between the indicated weight on the bill of lading and the unloading weight was never actually put into the ear. That on February 4, 1921, plaintiff presented a claim to defendant, having first taken an assignment from Albert Swick, for the sum of $577.76 for shortage in the shipment, supporting his claim by a copy of the bill of lading, weights, and the assignment of the claim from Swick. That on March 8, 1921, H. C. Howe, freight claim agent, claim department of defendant, wrote the Bewsher Company the following letter:
“Referring to your claim No. 746, our number as above, for $577.76, alleged loss of wheat shipped from Buffalo Gap, S. D., to Omaha, Neb., amount of wheat claimed to have been lost 20,780 pounds: From the investigation I have made of this matter, I find that this ear was weighed at Chadron, a short distance from Buffalo Gap,with a net weight of 48,300 pounds. Deducting 800 pounds for the grain doors would leave a net weight of 47,500 pounds, and as your weight at Omaha was 45,590, it is quite clear to me that there was no loss beyond the 1,910 pounds, and that an error has been made in weighing at point of shipment. There is no record of the car being in bad order. It arrived under proper seals, and therefore'I cannot see any greater loss than the 1,910 pounds, less 67 pounds for shrinkage, which, together with the freight on the shrinkage and the price, $1.65, would leave $54.05 due you, which I am willing to pay.”
That on April 5,1921, the Bewsher Company wrote defendant the following letter:
“Please refer to yours of March 8th, file Rr-201977-1. The shipper requests us to instruct you to return all papers filed in connection with this claim, so that he can turn them over to> an attorney, with instructions to bring suit. Your offer-of settlement is too ridiculously low to be given consideration, in view of the shipper’s contention that he can well substantiate the weight loaded into this car. Therefore be good enough to return these papers to us at once.”
That after some delay the supporting papers of the claim were returned by the defendant to the plaintiff, who transmitted the same to Albert Swick with the following letter:
“May 16, 1921.
“Mr. Albert Swick, Oral, So. Dak.— Dear Sir: Although we instructed the Northwestern, under date of April 5th, to return all papers we filed with them in your claim for shortage - on car 118720, shipped December 27, 1920, we only to-day received them, and herewith return them to you. The recall of these papers was due to the fact that, while this claim was filed for $577.76, as indicated by copy of invoice which we herewith attach, they made an offer of settlement of only $54.05, which we refused, and suggested to you that you place these papers in the hands of your attorney, and, if you are in a position to substantiate the weights as loaded into the ear beyond any question of a doubt, he can recover for you. We will be very glad to furnish any information your attorney may need from this end of the line, and assist in any way possible to help recover this money for you. We think you will find that your attorney will be willing to handle this on a contingency fee; that is, a percentage of the amount he collects, and, if he collects nothing, he will probably only ask you to pay the costs that he has been put to in the suit. We wish you luck in this collection, and, as before stated, if we can be of additional service in recovering this amount, let us know. We are also returning you the weight tickets you sent us at the time we asked you for a copy of your weights in connection with this claim.
“Yours very truly, Manager.”
That Albert Swick, following receipt of the supporting papers, communicated with the claim department of defendant, and made settlement of the claim for the sum of $54.05, being the amount of shortage ascertained by defendant.
In addition to the foregoing facts, which were stipulated, plaintiff testified in his own behalf to the custom and method of handling such transactions in his office, which was in substance that the clerk or bookkeeper, on presentation of the draft and bill of lading would figure out the value of the contents of the car, based on the existing state of the Omaha market, and if there was an apparent overdraft they would submit it to him, as to whether it should be paid; that if the car was clear, and no apparent overdraft, he would never see the papers; that his usual custom was to allow the shipper to draw from 75 to 85 per cent, of the value of a shipment; that a man whose eredit was without question could probably draw 90 or 95 per cent., and occasionally $100 or $150 overdraft would not be questioned; that Mr. Swiek was a customer that he would not allow to overdraw very much, but would try to hold his business by not telling him he doubted his credit, but at the same time would not like to pay an overdraft for him; that plaintiff procured the assignment of the claim from Albert Swiek and filed the claim with the defendant, calling attention to the assignment and requesting payment direct to him; that he was never advised of the settlement by Swiek until shortly before suit was begun.
The record shows without controversy that plaintiff honored the draft for $1,900 and paid the same, and has not been repaid; and it is stipulated that, if plaintiff is entitled to recover anything, he is entitled to recover $595. At the conclusion of defendant’s testimony both parties rested, and upon motion of the plaintiff the eourt directed a.verdict for the plaintiff for the amount above indicated, to which defendant excepted, and after entry of judgment sued out writ of error, and now assigns the following errors:
“I. The eourt erred in instructing the jury to return a verdict for the plaintiff and in refusing to instruct a verdict for defendant.
“II. The court erred in holding and deciding that the provision in the bill of lading involved m this suit, limiting the right to bring the suit to a period of two years from the time the claim, or any part thereof, was declined, was null and void.
“III. The court erred in holding and deciding that the letter written by H. C. Howe to the Bewsher Company and contained in the bill of exceptions did not constitute a declination of said claim, or any part thereof, within the meaning of the Interstate Commerce Act as amended.
“IY. The court erred in entering judgment in favor of the plaintiff and against the defendant.”
The foregoing assignment of errors was filed with the clerk at the time the writ of error was sued out. Assignment II above is now apparently abandoned, and we think properly so, as it had no foundation in the record. Counsel for plaintiff in error on their brief assign that error in the following language:
“The court erred in its ruling of law upon the proposition that the limitation in the bill of lading restricting the right to commence suit within two years, and not after, from the time of shipment, was null and void under the Interstate Commerce Act.”
Counsel in briefs and arguments have not followed the order of assignment of error, nor confined themselves strictly to the propositions involved therein. We are therefore of opinion that the questions presented for decision can be more logically discussed by following the order of the defenses as they appear in our statement of the issues. These questions are:
(1) Is the provision in section 3 of the bill of lading that “suits for loss, damage or delay, shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make the delivery, then within two years and one day after a reasonable time for delivery has elapsed,” void as contravening the amendment of February 28, 1920, to paragraph 11 of section 20 of the Act to Regulate Commerce?
(2) May and should the eourt read out of the provision quoted the words, “after delivery of the property,” etc., and read into the contract the provision in said amendment that such period for institution of suits be computed from the date when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part thereof specified in the notice?
(3) Is plaintiff estopped to maintain the suit because he redelivered the claim and supporting papers to Albert Swiek with direction to commence suit, and the settlement of the claim by Albert Swiek?
(4) Is plaintiff concluded by the fact that the grain was loaded by the shipper and that the bill of lading recited that the weight was “subject to correction”?
We consider these questions in the order stated. It is well settled that, prior to the amendment approved February 28, 1920, it was entirely competent for carriers to limit the time within which suits might be brought on contracts of carriage, subject only to the reasonableness of the limitation. Indeed, we are not without authority on the subject as applied to the particular statute as it existed prior to the amendment. Leigh Ellis & Co. v. Payne (D. C.) 274 F. 443, affirmed by the Circuit Court of Appeals for the Fifth Circuit in Leigh Ellis & Co. v. Davis, 276 F. 400, and affirmed by the Supreme Court of the United States in Leigh Ellis & Co. v. Davis, 260 U. S. 682, 43 S. Ct. 243, 67 L. Ed. 460.
Under this statute, as it existed before the amendment, and other provisions relative to the filing of claims, hardship often occurred by reason of the delay of the carrier in giving notiee of its disapproval of the claim, often resulting in an unreasonable balance of time within which the shipper might institute his suit. This was at least one of the evils which Congress sought to remedy by the amendment of February 28, 1920. By that amendment the words, “such period for institution of suits to be computed from the day when notiee in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notiee,” were added to the previous paragraph, making the paragraph read as follows:
“Provided further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notiee of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.” Comp. St. Ann. Supp. 1923, § 8604a.
It seems to us clear that, after the amendment quoted, any flat restriction of time within which suit might be brought based upon the time of delivery of the shipment, rather than the time of the giving of the notice prescribed, would be in contravention of the amendment, and “be unlawful” within the purview of the amended paragraph.
But plaintiff in error, probably anticipating the possibility of the conclusion we here reach, contends that, notwithstanding the inconsistency of the language of the provision of the contract with the amended statute, the court should read out of the contract that part of its express language which initiates the time limit at the date of shipment, and read into the contract the provision of the amendment of 1920. In support of this contention counsel cites American Railway Express Co. v. Lindenburg, 260 U. S. 584, 43 S. Ct. 206, 67 L. Ed. 414. We do not think this ease in point on the question under consideration. In that ease the unlawful provision of the receipt could be readily separated from the remaining provisions, and that case merely holds that the presence of the unlawful provision did not render unlawful others which were separable from it. In the instant case, however, we are asked, not only to read out of the contract a particular expressed provision, but to substitute therefor another entirely different provision, and thereby to declare lawful and enforceable a form of contract which Congress deliberately undertook to and did prohibit. We are constrained to the conclusion that this cannot be done.
We come now to the question of estoppel. Is the plaintiff estopped by his conduct in redelivering the claim and supporting papers to Swick, and by Swick’s settlement? Examination of the claim filed with the defendant and its supporting papers makes clear that the claim made and filed was for wheat declared to have been lost in transit. The contention was for a disparity in weight between the time of loading and the time of unloading. There was a difference between the claim of the shipper and the fact' as ascertained by the defendant. That Swick, the shipper, and the plaintiff, proceeded upon the theory that 66,000 pounds of wheat had been loaded, is clearly indicated by plaintiff’s letter to Swick when he returned the claim and supporting papers. He says: “If you are in a position to substantiate the weights as loaded into the car beyond any question of a doubt, he can recover for you.” It is clear from the record that throughout all negotiations prior to the beginning of suit, all parties proceeded upon the theory that the controversy was over grain lost in transit, and that was plaintiff's thought at the time he returned the claim and supporting papers. But the plaintiff at least was mistaken in this assumption.
As to whether Swick was mistaken is a matter upon which the record throws no light. In any event, Swick on return of the papers reopened negotiations with the defendant, and promptly arrived at a settlement on the basis of the amount of grain actually lost in transit, and received in settlement full payment therefor. It is beyond question that the $54.05 received by Swick was all that he could possibly have recovered, had he instituted suit and prosecuted it to judgment. Under no theory suggested or advanced was the defendant liable to Swick for more grain than he actually loaded. And it was a claim for grain loaded that Swick undertook to assign, and that plaintiff undertook a redelivery, and for which settlement was made. We think such a settlement has no concluding effect upon the cause of action for damages for the issuance of a false bill of lading, liability for which is to be established under the provisions of section 22 of the Bill of Lading Act, approved August 29, 1916 (Comp. St. § 8604kk). The cause of action declared in the plaintiff’s petition is entirely different from that declared in the claim originally filed with the defendant. We therefore conclude that the plaintiff is not es-topped by the Swick settlement.
Finally, is plaintiff concluded by the fact that ’the grain was loaded by the shipper, and that the hill of lading recited that the weight was “subject to correction”? Examination of this question leads us to consider the legal character of bills of lading, and some mutations of such character brought about by national legislation. It has been almost universally held that a hill of lading is not only a receipt, but.a contract; and numerous decisions of state courts have clothed such instruments with a character of negotiability more or less complete. For examples of these decisions one may consult 6 Cyc. under head of “Carriers,” subhead “Bills of Lading,” and for a discussion of the principle of estoppel of the issuance of a bill of lading particularly, page 418 et seq. See, also, 1 Hutchinson on Carriers (3d Ed.) § 157 et seq. The Supreme Court of the United States, however, had long prior to the Act of Congress of August 29, 1916, commonly called the Bill of Lading Act, declared its own views with respect to these instruments, in Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998, Mr. Justice Miller, in speaking for that court, said:
“A bill of lading is an instrument well known in commercial transactions, and its character and effect have been defined by judicial decisions. In the hands of the holder it is evidence of ownership, special or general, of the property mentioned in it, and of the right to receive said property at the place of delivery. Notwithstanding it is designed to pass from hand to hand, with or without indorsement, and it is efficacious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those cases, all inquiry into the transaction in which it originated, because it has come into hands of persons who have innocently paid value for it. The doctrine of bona fide purchasers only applies to it in a limited sense.
“It is an instrument of a twofold character. It is at once a receipt and'a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually ■ received, there can be no valid contract to' carry or to deliver.”
It was held in that case that, although innocent, the indorsee and holder of a bill of lading with draft attached could not recover; it being shown that the cotton for which the bill was issued was never delivered to the master of the boat. This decision was followed in Missouri Pacific R. Co. v. McFadden, 154 U. S. 155,14 S. Ct. 990, 38 L. Ed. 944, and in many other eases. So it seems to us to have been firmly established by decisions of the Supreme Court that the carrier issuing a bill of lading may show that the goods described therein were never in fact delivered, and that such carrier is not estopped by the recitals in such hill. It is not so well settled, however, that where a shipment has actually been delivered, but the goods fall short of the quantity declared in the bill of lading, that the carrier may with equal success urge such defense. This question is quite exhaustively discussed by Mr. Freeman in a note to Chandler v. Sprague, 38 Am. Dec. at pages 413 and 414. The conclusion there is apparently arrived at that the bill of lading is not conclusive as to quantity. The author of the note on page 414 criticizes the application of the rule where a portion of the goods have been delivered. It is there said:
“A plain distinction exists, as it seems to us, between the two classes of cases. There is some show of reason for holding that a bill of lading issued by a master or other agent, where no goods have been shipped, is beyond the agent’s authority, and therefore void even in the hands of a stranger who has in good faith advanced money on it. But where there is a shipment of goods, the master or agent has authority to sign a bill of lading, and if he misrepresents the quantity of goods, and an. innocent third person is thereby induced to part with his money ■on the faith of the representation, the principal ought certainly to be bound, because the agent has not acted outside of his authority, but has merely abused it. ”
Whatever may be the merits of the argument here under consideration of the doctrine of estoppel in pais, it has been sufficiently settled in the federal jurisdiction that no estoppel results by reason of the negotiable character of the instrument. This fact no doubt influenced in a measure the action of Congress in the enactment of the Bill of Lading Act. While that act does not in so many words declare bills of lading to be negotiable instruments, we think, from the implications of the various provisions of the act and the repeated declarations that things specified shall not render these instruments nonnegotiable, that it was the clear intention of Congress to so legislate that ordinary bills of lading may be fully negotiable, and are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act or others of like import, or some notice or recitation inconsistent.with negotiability.
Three sections of the act, sections 20, 21, and 22 (Comp. St. Ann. Supp. 1923, §§ 8604jj — 8640kk), should be carefully analyzed in determining the question under consideration. Section 20 deals with goods loaded by the carrier, and prescribes certain duties of the carrier in such cases. In ease of package freight, the carrier must “count the packages,” and, if bulk freight, “ascertain the kind and quantity,” and then follows the provision that in such cases the carrier shall not insert in the bill of lading or in any notice, receipt, contract, rule, regulation, or tariff, the words, “Shipper’s weight, load, and count,” or other words of like purport, indicating that the goods are loaded by the shipper and the description made by him.
Section 21 deals with freight loaded by' the shipper, and prescribes when descriptions in the bill of lading shall not render the carrier liable, as, for instance, when “the goods are described in a bill of lading merely by a statement of marks or labels upon them or upon packages containing them, or by a statement that the goods are said to be goods of a -certain kind or quantity, or in a certain condition, or it is stated in the bill of lading that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents or condition of the contents of packages are unknown, or words of like purport are contained in the bill of lading.” It is further provided that, when these statements are contained in the bill, the description shall not render the carrier liable, “although the goods are not of the kind or quantity or in the condition which the marks or labels upon them indicate, or of the kind or quantity or in the condition they were said to be by the consignor.” This section further provides:
“The carrier may also by inserting in the bill of lading the words 'Shipper’s weight, load, and count,’ or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the nonreceipt or by the misdescription of the goods described in the bill of lading.”
Section 22 is the section by which we think Congress intended to change the existing rule of liability as declared by the federal courts. That section provides:
“That if a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual • or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to' (a) the owner of goods covered by a straight- bill subject to existing right of stoppage in transitu or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, for damages caused by the nonreeeipt by the carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of its issue.”
Now in the case at bar we are dealing with bulk freight loaded by the shipper, but the bill of lading does not contain any of the particular notices or recitals specified in section 21 of the Bill of Lading Act, and unless we are to hold that the mere words “weight subject to correction” are of “like purport” to the words “shipper’s weight, load and count,” or “shipper’s weight,” or are equivalent to a statement that the weight of the wheat is “said to be” 66,000 pounds, then it would seem clear that the defendant would be liable to a holder in good faith of the order bill in question “for damages caused by the nonreceipt by the carrier of all or part of the goods.”
We do not overlook the fact that there are some scattering judicial pronouncements of the fact that the insertion of the words “weight subject to correction” in a bill of lading is sufficient to avoid the effect of the estoppel which might otherwise result. In Brown v. Missouri, K. & T. R. Co., 83 Kan. 574, 112 P. 147, the Supreme Court of Kansas said: “Ordinarily bills of lading are prima facie evidence against the carrier issuing them of the amount of goods received. 4 A. & E. Encycl. of L. 522; 1 Hutchinson on Carriers, § 158. The defendant maintains that here they have not that effect, because of the insertion of the qualifying words, ‘in apparent good order’ and ‘weights subject to correction.’ It is doubtful whether the first phrase can apply to material shipped in bulk (6 Cyc. 418, 419), but in any event it does not change the effect of the instrument as prima facie evidence (4 A. & E. Encycl. of L. 522, 523, note 7; 6 Cyc. 422). The expression, “weights subject to correction,”" has an important function. It avoids the estoppel which would otherwise under some circumstances preclude the carrier from disputing the weight. 6 Cyc. 418. It does not destroy the prima facie effect of the recital as to quantity. It merely leaves the matter open to further inquiry, instead of being absolutely concluded.' Its insertion in a bill of lading has been held, where other rights have intervened, not even to prevent the statement of weight from being conclusive, except as to minor errors. Tibbits v. R. I. & P. Ry. Co., 49 Ill App. 567,
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_respond1_1_4
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
MELLON BANK (EAST) PSFS, N.A., a federally chartered banking association v. DiVERONICA BROS., INC., Appellant.
No. 92-1244.
United States Court of Appeals, Third Circuit.
Argued Nov. 3, 1992.
Decided Jan. 15, 1993.
Frank J. Vavonese (argued), Syracuse, NY, for appellant.
Andrew D. Bershad (argued), Blank, Rome, Comisky & McCauley, Philadelphia, PA, for appellee.
Before: SLOVITER, Chief Judge, STAPLETON and LAY , Circuit Judges.
Honorable Donald P. Lay, Senior Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
OPINION OF THE COURT
SLOVITER, Chief Judge.
Defendant DiVeronica Bros., Inc. appeals from an order of the district court entering judgment for $78,889.13 in favor of plaintiff Mellon Bank (East) PSFS, N.A. on its breach of contract claim. DiVeronica contends that the district court erred in denying its motion to dismiss the complaint for lack of personal jurisdiction; in finding that its obligation was unconditional; and in finding it was not entitled to an offset. Because we find that DiVeronica had insufficient contacts with Pennsylvania to warrant the exercise of personal jurisdiction over it, we do not reach the other issues posed.
I.
Facts and Procedural History
On June 29, 1982, Girard Bank entered into a loan agreement with Hubbell Holding Corp. and its affiliated companies: O.W. Hubbell & Sons, Inc.; Hubbell Highway Signs, Inc.; Hubbell Electric, Inc.; Cable Guide Railing Construction Co., Inc.; Triboro Neon & Service Corp.; and Bundy Concrete Products, Inc. (referred to jointly as the Hubbell Companies unless otherwise noted). As collateral, the Hubbell Companies granted, inter alia, a continuing lien and security interest in their accounts receivable. The loan was cross-collateralized so that collateral from any one of the Hub-bell Companies could be used by Girard Bank to discharge the debt of the others. App. at 531, 539. In the mid-1980s, Girard Bank was acquired by Mellon Bank (East) PSFS, N.A., a federally chartered banking association with its principal place of business in Pennsylvania.
In February 1990, the Hubbell Companies defaulted on their loan obligations. Mellon Bank first demanded payment, and then on March 23, 1990 took peaceful possession of the collateral, including the accounts receivable. When one of the companies, O.W. Hubbell & Sons, was brought into involuntary bankruptcy, later converted into a voluntary chapter 11 proceeding, Mellon Bank obtained permission from the bankruptcy court of the Northern District of New York to lift the automatic stay to continue to collect the accounts receivable.
Because defendant DiVeronica Bros., Inc. had operated as both a subcontractor to and a general contractor of some of the individual Hubbell Companies, resulting in a series of credits and debits between them, in May 1990, the Hubbell Companies and DiVeronica met to settle their accounts. The oral agreement they reached fixing the amounts of their debts was later confirmed in a letter from Mellon Bank to the president of DiVeronica (the Letter Agreement). The Letter Agreement stated that in total, DiVeronica owed the Hubbell Companies $86,877.13; that O.W. Hubbell & Sons (the company in bankruptcy) owed DiVeronica $86,788.71 for work completed; and that DiVeronica had applied for payment of that amount from the Reliance Insurance Company, a New York corporation, which had insured payment and performance by O.W. Hubbell & Sons on the construction project for which DiVeronica as subcontractor was owed the $86,788.71. It further stated that “Hubbell and Divero-nica have agreed that upon receipt of $86,-788.71 from Reliance Insurance Co., Diver-onica will pay [an outstanding lien].... After the lien has been removed, Diveroni-ca will pay Hubbell $86,877.13.” At the meeting leading to this agreement, Robert Obernesser, the manager of the construction division of O.W. Hubbell & Sons, agreed to assist DiVeronica in asserting its claim on the Reliance bond.
Reliance apparently disclaimed on the surety bond, and there remain accounts outstanding to and from DiVeronica and several of the Hubbell Companies. As as-signee of the receivables of the Hubbell Companies, Mellon Bank filed this diversity action in the Eastern District of Pennsylvania to recover the debts DiVeronica owed three of the Hubbell Companies. The district court denied DiVeronica’s motion to dismiss for lack of personal jurisdiction.
At the bench trial that followed, DiVero-nica contended that because O.W. Hubbell & Sons owed it some $8,000 more than DiVeronica owed the Hubbell Companies together, it was entitled to set off the debts and had no duty to pay. It further argued that receipt of the payment on the surety bond was a condition precedent to its obligation to pay the accounts due to the Hub-bell Companies, and that therefore Mellon Bank could not collect as assignee. The district court rejected these contentions and entered judgment in the amount of $78,889.13 in favor of plaintiff Mellon Bank. DiVeronica filed a timely appeal, asserting lack of personal jurisdiction or, in the alternative, entry of judgment in favor of the defendant or a new trial based on errors of law and fact committed in the district court.
II.
Jurisdictional Facts
Because resolution of this appeal turns on the jurisdictional question, we proceed to consider separately those facts relevant to the exercise of personal jurisdiction over DiVeronica which were developed at the evidentiary hearing on this issue.
DiVeronica is a New York corporation with a single office in Canastota, New York. Its business is construction, primarily roads, bridges, and buildings. The highway construction contracts between the Hubbell Companies and DiVeronica were solicited, contracted, and completed within the State of New York, and were governed by the laws of that state.
DiVeronica has never performed a construction project outside the State of New York; it has never solicited any business nor advertised outside the State of New York. It has no office, mailing address, or property in Pennsylvania; it is not authorized or licensed to do business in Pennsylvania; it has no agents in Pennsylvania; it has not paid any taxes in Pennsylvania; it has never shipped merchandise directly into or through Pennsylvania nor has it supplied services or items here. Finally, the work that DiVeronica performed for the Hubbell Companies that is the subject of its claim on the Reliance bond was performed in New York.
On appeal Mellon Bank seeks to sustain the district court’s ruling denying the motion to dismiss by arguing that jurisdiction is appropriate over DiVeronica because it attempted to realize pecuniary benefit in Pennsylvania by depositing checks from O.W. Hubbell & Sons drawn on Hubbell’s Mellon Bank account which is located in Philadelphia, by submitting a claim to Reliance in Pennsylvania in an effort to collect on the surety bond, and by executing a contract with Mellon Bank knowing that it is located in Philadelphia, Pennsylvania. We will consider the relevance of these facts in the context of the applicable law.
III.
Discussion
Whether personal jurisdiction may be exercised over an out-of-state defendant is a question of law, and this court’s review is therefore plenary. Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 (3d Cir.1990).
A federal court may exercise personal jurisdiction over a non-resident defendant to the extent permitted by the law of the state in which it sits. Fed.R.Civ.P. 4(e). The Pennsylvania long-arm statute provides that jurisdiction may be exercised “to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa. Cons.Stat.Ann. § 5322(b) (Purdon 1981).
Where the defendant has raised a jurisdictional defense, the plaintiff bears the burden of establishing either that the cause of action arose from the defendant’s forum-related activities (specific jurisdiction) or that the defendant has “continuous and systematic” contacts with the forum state (general jurisdiction). Bane v. Netlink, Inc., 925 F.2d 637, 639 (3d Cir.1991) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 416, 104 S.Ct. 1868, 1872, 1873, 80 L.Ed.2d 404 (1984)). Inasmuch as DiVeronica has conducted no solicitation, advertisement, construction, or delivery in Pennsylvania, there can be no assertion that DiVeronica had the continuous and substantial affiliation with the forum necessary for general jurisdiction. See Gehling v. St. George’s School of Medicine, Ltd., 773 F.2d 539, 541 (3d Cir.1985). Therefore, we assume that the district court found that there was specific jurisdiction over DiVeronica on the ground that Mellon Bank’s cause of action arose from DiVeronica’s contacts with Pennsylvania.
Specific jurisdiction exists only where the defendant has sufficient minimum contacts with the forum state that it “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The “ ‘constitutional touchstone’ ” is whether the defendant purposefully established those minimum contacts. North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690 (3d Cir.) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)), cert. denied, 498 U.S. 847, 111 S.Ct. 133, 112 L.Ed.2d 101 (1990). A court must find that there was some act by which the defendant “purposefully availed] itself” of the privilege of conducting activities within the forum. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). We consider in turn each of the acts alleged by Mellon Bank to support the assertion of personal jurisdiction over DiVeronica.
A.
The Checks
Mellon Bank claims that DiVeronica purposefully availed itself, of the benefits of doing business in Pennsylvania by depositing checks drawn on O.W. Hubbell & Sons’ Mellon Bank account. However, there is nothing to suggest that DiVeronica had any involvement in the selection by O.W. Hubbell & Sons of a Pennsylvania bank. The checks were cashed in New York and deposited in New York banks.
Under somewhat similar circumstances the Supreme Court rejected the plaintiffs contention that accepting checks drawn on a bank in the forum state was a basis for finding jurisdiction in that state. In Hall, the Court stated:
There is no indication that [defendant] ever requested that the checks be drawn on a Texas bank or that there was any negotiation between [defendant and the payor] with respect to the location or identity of the bank on which checks would be drawn. Common sense and everyday experience suggest that, absent unusual circumstances, the bank on which a check is drawn is generally of little consequence to the payee and is a matter left to the discretion of the drawer.
466 U.S. at 416-17, 104 S.Ct. at 1873 (footnote omitted). A similar analysis is appropriate here, particularly since Mellon Bank’s claim does not arise out of the deposit by DiVeronica of checks drawn on Mellon Bank.
B.
The Bond
Mellon Bank contends that DiVeronica’s submission of a claim to Reliance Insurance Company in Pennsylvania in an effort to collect on the bond insuring payment and performance by O.W. Hubbell & Sons was an attempt to realize pecuniary benefits of Pennsylvania law. There are several reasons why this act does not constitute a sufficient basis on which to predicate specific jurisdiction. In the first place, the selection of Reliance as the bonding company was made by O.W. Hubbell & Sons, not DiVeronica. As the Supreme Court stated in Hall, “unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.” 466 U.S. at 417, 104 S.Ct. at 1873.
Thus, in Hanson, the Court held that Florida could not exercise in personam jurisdiction over a Delaware trust company merely because the settlor of the trust in question, which was originally established in Delaware, had moved to Florida where she exercised her residual power of appointment. The Supreme Court stated:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 159, 90 L.Ed. 95]. The settlor’s execution in Florida of her power of appointment cannot remedy the absence of such an act in this case.
357 U.S. at 253-54, 78 S.Ct. at 1239-40; see also Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.1982). Also, although the power of attorney accompanying the bond that Reliance provided to O.W. Hubbell & Sons was signed both in Albany, New York by counsel for Reliance and in Philadelphia, Pennsylvania by a vice-president of Reliance, DiVeronica was not involved in deciding where the power of attorney accompanying that bond was executed.
In the second place, DiVeronica sent its claim to Reliance’s Pennsylvania office at the suggestion of Obernesser, Hubbell’s employee who was also acting at the behest of Mellon Bank to assist it in marshaling assets and collecting collateral. App. at 601. Although the bond described the issuer as the “Reliance Insurance Company of New York” with its “principal office in the City of Fairport, New York,” Obernes-ser gave DiVeronica the names and telephone numbers of contacts at Reliance in Pennsylvania, App. at 219-20, and told Di-Veronica that the claim under the performance bond with Reliance had to be filed in Pennsylvania. App. at 220-21. Thus, contrary to Mellon Bank’s assertion that Di-Veronica’s act of filing its claim with Reliance in Pennsylvania shows purposeful availment of this state’s protection, it shows only that Obernesser’s offer of assistance and provision of Reliance contacts and phone numbers in Pennsylvania affected DiVeronica’s choice of where to file.
By the same reasoning, DiVeronica’s follow-up telephone calls to officers of and counsel for Reliance in Pennsylvania cannot suffice as a basis for jurisdiction over it. In Reliance Steel Products Co., we held that telephone calls in which a Missouri defendant allegedly gave negligent legal advice to a Pennsylvania client, even combined with defendant’s advertisement in a legal directory distributed in Pennsylvania and his action in billing the Pennsylvania plaintiff, constituted insufficient contacts by defendant with that state. 675 F.2d at 589. DiVeronica’s calls of inquiry to Reliance’s Pennsylvania office do not show the purposeful availment that can provide a basis for personal jurisdiction.
This is not to suggest that it is merely DiVeronica’s physical absence from Pennsylvania which supports the conclusion that it had no contacts here. The Supreme Court has made clear that jurisdiction may constitutionally be asserted over a defendant who has never set foot in the forum state—so long as defendant “purposefully has directed his activities at forum residents.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 2184-85, 85 L.Ed.2d 528 (1985). In this case, DiVer-onica is not only not physically present, but it has also never “purposefully directed” its activities to Pennsylvania.
Finally, we note that our conclusion that the mere presentation of a claim to a bonding company that posted surety for a contractor’s payments does not support personal jurisdiction in the bonding company’s state is in accord with the reasoning of the other appellate court to consider this issue. See Capital Dredge & Dock Corp. v. Midwest Dredging Co., 573 F.2d 377, 380 (6th Cir.1978).
C.
The Letter Agreement
Mellon Bank argues that DiVeroni-ca attempted to realize a benefit in Pennsylvania when it “executed a contract with Mellon Bank, knowing that Mellon Bank is located in Philadelphia.” Appellant’s Br. at 13. Mellon Bank is referring to the Letter Agreement of May 31, 1990 that fixed the debts between the Hubbell Companies and DiVeronica. At the outset, it is important to note that we see no support for Mellon Bank’s denomination of the Letter Agreement as a contract between it and DiVero-nica. The Agreement, written by Mellon Bank on its stationery, states:
The purpose of this letter is to confirm in writing the verbal agreement you have reached with Bob Obenesser [sic] of O.W. Hubbell & Sons, Inc. relating to the outstanding indebtedness between Hub-bell and Diveronica Bros.
App. at 347-48. It concludes:
If the above accurately summarizes your agreement with Hubbell, please sign as indicated and return this letter to me at your earliest convenience.
App. at 347-48 (emphasis added). In the body of the Letter Agreement, DiVeronica merely acknowledged debts to the Hubbell Companies which had been assigned to Mellon Bank.
Even if the Letter Agreement could somehow be characterized as a contract between DiVeronica and Mellon Bank, it is important to review DiVeronica’s role in the genesis of that document. DiVeronica was not a party to the original 1982 loan agreement between the Hubbell Companies and Girard Bank, and, of course, DiVeroni-ca had no control over the Hubbell Companies’ selection of the Pennsylvania based Girard Bank, Mellon Bank’s predecessor, as their lender. Nor did DiVeronica have any involvement in the subsequent assignment of the accounts receivable to Mellon Bank.
Moreover, after the assignment, it was Mellon Bank that initiated the contacts from Pennsylvania to DiVeronica in New York. Mellon Bank sent a general notification letter on March 8, 1990 from its offices in Pennsylvania to DiVeronica in Canasto-ta, New York, informing DiVeronica that the accounts receivable had been assigned. Thereafter, the oral negotiations leading to the execution of the Letter Agreement were initiated by Mellon Bank: in May of 1990, it asked Obernesser to compile a list of the outstanding debts between the Hub-bell Companies and DiVeronica; Obernes-ser sent the document to an officer at Mellon Bank for review; and he then arranged a meeting with DiVeronica in New York.
After the meeting, which took place at DiVeronica’s offices in New York on May 16, 1990, Daniel K. Clancy of Mellon Bank telephoned from Pennsylvania to DiVeroni-ca in New York to work out the wording of the Letter Agreement. Thereafter, on May 31,1990, Clancy sent the Letter Agreement from Mellon Bank’s offices in Pennsylvania to DiVeronica in New York. Finally, counsel for Mellon Bank sent DiVeronica a letter on July 12, 1990 and another on November 12, 1990, requesting payment of the debts acknowledged in the Letter Agreement.
In connection with the Letter Agreement, the only “purposeful” action by Di-Veronica (through its president) was signing and returning the Agreement to Mellon Bank in Pennsylvania, as requested. We do not believe this can be considered an act by DiVeronica directed at Pennsylvania to benefit from its laws. Contracting with a resident of the forum state does not alone justify the exercise of personal jurisdiction over a non-resident defendant, Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992), particularly where, as here, the out-of-state defendant executed the “contract” only at the behest of the resident.
The facts in Farino, where we sustained personal jurisdiction over the non-resident defendants, stand in contraposition to those in the present case. Defendants were limited partners in Virginia partnerships developing real estate in Virginia who applied to Mellon Bank, a Pennsylvania based lender, for loans that they personally guaranteed. After the partnership defaulted, Mellon Bank filed suit on the guarantees.
We examined the defendants’ contacts for purposeful availment in Pennsylvania, concluding that jurisdiction was proper because the defendants had “ ‘reach[ed] out beyond one state and create[d] continuing relationships and obligations with citizens of another state.’ ” Id. at 1223 (quoting Travelers Health Ass’n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)). We found particularly compelling the fact that defendants had “purposely directed” their activities into Pennsylvania: they approached Mellon Bank; they chose to finance with Mellon Bank when they could have financed elsewhere; they provided Mellon Bank in Pennsylvania with sufficient documentation so that they would obtain the loans; they sent updated financial information to Mellon Bank; and they knew that payments were to be mailed to Mellon Bank in Pennsylvania. Id. at 1223. Even in view of all of these factors, we wrote that “this [was] a close case.” Id.
In the case before us, Mellon Bank has shown no comparable deliberateness on the part of DiVeronica. DiVeronica merely confirmed to Mellon Bank, a party whom it did not deliberately seek out, its agreement with the Hubbell Companies. DiVeronica did not choose to deal with Mellon Bank; as noted, it had no involvement in the choice of Girard Bank as lender or in the subsequent assignment of the accounts receivable. In this case, “the only significant contact that exists between Pennsylvania and [the defendant] is the result of this lawsuit, not its cause.” Reliance Steel Products Co., 675 F.2d at 589. Under these circumstances, we find that this is not a “close case.”
None of DiVeronica’s marginal activities in Pennsylvania justifies the exercise of specific jurisdiction over it. We therefore conclude that Mellon Bank has not shown that DiVeronica had even minimum contacts with Pennsylvania. It follows that maintenance of the suit would offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted).
IV.
Conclusion
For the foregoing reasons, we will reverse the order of the district court denying DiVeronica’s motion to dismiss and remand for dismissal of the complaint.
. Although the Letter Agreement listed DiVero-nica's debts to the Hubbell Companies as $86,-877.13, Mellon Bank sought damages at trial in the amount of $78,889.13. This reflected DiVer-onica's payment of approximately $8,000 to the Hubbell Companies after the Letter Agreement but before trial.
. The authority that Mellon Bank relied on in its argument before the district court, Sunn Classic Pictures, Inc. v. Budco, 481 F.Supp. 382 (E.D.Pa.1979), does not support the proposition for which it was presented. In that case the third-party defendant who contested jurisdiction was held to have caused harm within the state by its action elsewhere.
. The district court may, in its discretion, transfer this case pursuant to 28 U.S.C. § 1631 if a motion to do so is seasonably filed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
sc_respondent
|
098
|
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.
ZINERMON et al. v. BURCH
No. 87-1965.
Argued October 11, 1989
Decided February 27, 1990
Blackmun, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined, post, p. 139.
Louis F. Hubener, Assistant Attorney General of Florida, argued the cause for petitioners. With him on the briefs was Robert A. Butterworth, Attorney General.
Richard M. Poivers argued the cause and filed a brief for respondent.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Leon Friedman and Steven R. Shapiro; and for the American Orthopsychiatric Association et al. by John Toimisend Rich, James E. Kaplan, Ruth L. Henning, and Leonard S. Rubenstein.
Justice Blackmun
delivered the opinion of the Court.
I
Respondent Darrell Burch brought this suit under 42 U. S. C. §1983 (1982 ed.) against the 11 petitioners, who are physicians, administrators, and staff members at Florida State Hospital (FSH) in Chattahoochee, and others. Respondent alleges that petitioners deprived him of his liberty, without due process of law, by admitting him to FSH as a “voluntary” mental patient when he was incompetent to give informed consent to his admission. Burch contends that in his case petitioners should have afforded him procedural safeguards required by the Constitution before involuntary commitment of a mentally ill person, and that petitioners’ failure to do so violated his due process rights.
Petitioners argue that Burch’s complaint failed to state a claim under § 1983 because, in their view, it alleged only a random, unauthorized violation of the Florida statutes governing admission of mental patients. Theii? argument rests on Parratt v. Taylor, 451 U. S. 527 (1981) (overruled in part not relevant here, by Daniels v. Williams, 474 U. S. 327, 330-331 (1986)), and Hudson v. Palmer, 468 U. S. 517 (1984), where this Court held that a deprivation of a constitutionally protected property interest caused by a state employee’s random, unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless the State fails to provide an adequate postdeprivation remedy. The Court in those two cases reasoned that in a situation where the State cannot predict and guard in advance against a deprivation, a postdeprivation tort remedy is all the process the State can be expected to provide, and is constitutionally sufficient.
In the District Court, petitioners did not file an answer to Burch’s complaint. They moved, instead, for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court granted that motion, pointing out that Burch did not contend that Florida’s statutory procedure for mental health placement was inadequate to ensure due process, but only that petitioners failed to follow the state procedure. Since the State could not have anticipated or prevented this unauthorized deprivation of Burch’s liberty, the District Court reasoned, there was no feasible predeprivation remedy, and, under Parratt and Hudson, the State’s postdeprivation tort remedies provided Burch with all the process that was due him.
On appeal, an Eleventh Circuit panel affirmed the dismissal; it, too, relied on Parratt and Hudson. Burch v. Apalachee Community Mental Health Services, Inc., 804 F. 2d 1549 (1986). The Court of Appeals, however, upon its own motion, ordered rehearing en banc. 812 F. 2d 1339 (1987). On that rehearing, the Eleventh Circuit reversed the District Court and remanded the case. 840 F. 2d 797 (1988). Since Burch did not challenge the constitutional adequacy of Florida’s statutory procedure, the court assumed that that procedure constituted the process he was due. Id., at 801, n. 8. A plurality concluded that Parratt did not apply because the State could have provided predeprivation remedies. 840 F. 2d, at 801-802. The State had given petitioners the authority to deprive Burch of his liberty, by letting them determine whether he had given informed consent to admission. Petitioners, in the plurality’s view, were acting as the State, and since they were in a position to give Burch a hearing, and failed to do so, the State itself was in a position to provide predeprivation process, and failed to do so. Five judges dissented on the ground that the case was controlled by Parratt and Hudson. 840 F. 2d, at 810-814.
This Court granted certiorari to resolve the conflict — so evident in the divided views of the judges of the Eleventh Circuit — that has arisen in the Courts of Appeals over the proper scope of the Parratt rule. 489 U. S. 1064 (1989).
Because this case concerns the propriety of a Rule 12(b)(6) dismissal, the question before us is a narrow one. We decide only whether the Parratt rule necessarily means that Burch’s complaint fails to allege any deprivation of due process, because he was constitutionally entitled to nothing more than what he received — an opportunity to sue petitioners in tort for his allegedly unlawful confinement. The broader questions of what procedural safeguards the Due Process Clause requires in the context of an admission to a mental hospital, and whether Florida’s statutes meet these constitutional requirements, are not presented in this case. Burch did not frame his action as a challenge to the constitutional adequacy of Florida’s mental health statutes. Both before the Eleventh Circuit and in his brief here, he disavowed any challenge to the statutes themselves and restricted his claim to the contention that petitioners’ failure to provide constitutionally adequate safeguards in his case violated his due process rights.
II
A
For purposes of review of a Rule 12(b)(6) dismissal, the factual allegations of Burch’s complaint are taken as true. Burch’s complaint, and the medical records and forms attached to it as exhibits, provide the following factual background:
On December 7, 1981, Burch was found wandering along a Florida highway, appearing to be hurt and disoriented. He was taken to Apalachee Community Mental Health Services (ACMHS) in Tallahassee. ACMHS is a private mental health care facility designated by the State to receive patients suffering from mental illness. Its staff in their evaluation forms stated that, upon his arrival at ACMHS, Burch was hallucinating, confused, and psychotic and believed he was “in heaven.” Exhibit B-l to Complaint. His face and chest were bruised and bloodied, suggesting that he had fallen or had been attacked. Burch was asked to sign forms giving his consent to admission and treatment. He did so. He remained at ACMHS for three days, during which time the facility’s staff diagnosed his condition as paranoid schizophrenia and gave him psychotropic medication. On December 10, the staff found that Burch was “in need of longer-term stabilization,” Exhibit B-2 to Complaint, and referred him to FSH, a public hospital owned and operated by the State as a mental health treatment facility. Later that day, Burch signed forms requesting admission and authorizing treatment at FSH. Exhibits C-l and C-2 to Complaint. He was then taken to FSH by a county sheriff.
Upon his arrival at FSH, Burch signed other forms for voluntary admission and treatment. One form, entitled “Request for Voluntary Admission,” recited that the patient requests admission for “observation, diagnosis, care and treatment of [my] mental condition,” and that the patient, if admitted, agrees “to accept such treatment as may be prescribed by members of the medical and psychiatric staff in accordance with the provisions of expressed and informed consent.” Exhibit E-l to Complaint. Two of the petitioners, Janet V. Potter and Marjorie R. Parker, signed this form as witnesses. Potter is an accredited records technician; Parker’s job title does not appear on the form.
On December 23, Burch signed a form entitled “Authorization for Treatment.” This form stated that he authorized “the professional staff of [FSH] to administer treatment, except electroconvulsive treatment”; that he had been informed of “the purpose of treatment; common side effects thereof; alternative treatment modalities; approximate length of care”; and of his power to revoke consent to treatment; and that he had read and fully understood the Authorization. Exhibit E-5 to Complaint. Petitioner Zinermon, a staff physician at FSH, signed the form as the witness.
On December 10, Doctor Zinermon wrote a “progress note” indicating that Burch was “refusing to cooperate,” would not answer questions, “appears distressed and confused,” and “related that medication has been helpful.” Exhibit F-8 to Complaint. A nursing assessment form dated December 11 stated that Burch was confused and unable to state the reason for his hospitalization and still believed that “[t]his is heaven.” Exhibits F-3 and F-4 to Complaint. Petitioner Zinermon on December 29 made a further report on Burch’s condition, stating that, on admission, Burch had been “disoriented, semi-mute, confused and bizarre in appearance and thought,” “not cooperative to the initial interview,” and “extremely psychotic, appeared to be paranoid and hallucinating.” The doctor’s report also stated that Burch remained disoriented, delusional, and psychotic. Exhibit F-5 to Complaint.
Burch remained at FSH until May 7, 1982, five months after his initial admission to ACMHS. During that time, no hearing was held regarding his hospitalization and treatment.
After his release, Burch complained that he had been admitted inappropriately to FHS and did not remember signing a voluntary admission form. His complaint reached the Florida Human Rights Advocacy Committee of the State’s Department of Health and Rehabilitation Services (Committee). The Committee investigated and replied to Burch by letter dated April 4, 1984. The letter stated that Burch in fact had signed a voluntary admission form, but that there was “documentation that you were heavily medicated and disoriented on admission and... you were probably not competent to be signing legal documents.” Exhibit G to Complaint. The letter also stated that, at a meeting of the Committee with FSH staff on August 4, 1983, “hospital administration was made aware that they were very likely asking medicated clients to make decisions at a time when they were not mentally competent.” Ibid.
In February 1985, Burch.filed a complaint in the United States District Court for the Northern District of Florida. He alleged, among other things, that ACMHS and the 11 individual petitioners, acting under color of Florida law, and “by and through the authority of their respective positions as employees at FSH... as part of their regular and official employment at FSH, took part in admitting Plaintiff to FSH as a ‘voluntary’ patient.” App. to Pet. for Cert. 200. Specifically, he alleged:
“Defendants, and each of them, knew or should have known that Plaintiff was incapable of voluntary, knowing, understanding and informed consent to admission and treatment at FSH.' See Exhibit G attached hereto and incorporated herein. [] Nonetheless, Defendants, and each of them, seized Plaintiff and against Plaintiff’s will confined and imprisoned him and subjected him to involuntary commitment and treatment for the period from December 10, 1981, to May 7, 1982. For said period of 149 days, Plaintiff was without the benefit of counsel and no hearing of any sort was held at which he could have challenged his involuntary admission and treatment at FSH.
“... Defendants, and each of them, deprived Plaintiff of his liberty without due process of law in contravention of the Fourteenth Amendment to the United States Constitution. Defendants acted with willful, wanton and reckless disregard of and indifference to Plaintiff’s Constitutionally guaranteed right to due process of law.” Id., at 201-202.
B
Burch’s complaint thus alleges that he was admitted to and detained at FSH for five months under Florida’s statutory provisions for “voluntary” admission. These provisions are part of a comprehensive statutory scheme under which a person may be admitted to a mental hospital in several different ways.
First, Florida provides for short-term emergency admission. If there is reason to believe that a person is mentally ill and likely “to injure himself or others” or is in “need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf,” he may immediately be detained for up to 48 hours. Fla. Stat. §394.463(l)(a) (1981). A mental health professional, a law enforcement officer, or a judge may effect an emergency admission. After 48 hours, the patient is to be released unless he “voluntarily gives express and informed consent to evaluation or treatment,” or a proceeding for court-ordered evaluation or involuntary placement is initiated. §394.463(l)(d).
Second, under a court order a person may be detained at a mental health facility for up to five days for evaluation, if he is likely “to injure himself or others” or if he is in “need of care or treatment which, if not provided, may result in neglect or refusal to care for himself and... such neglect or refusal poses a real and present threat of substantial harm to his well-being.” § 394.463(2)(a). Anyone may petition for a court-ordered evaluation of a person alleged to meet these criteria. After five days, the patient is to be released unless he gives “express and informed consent” to admission and treatment, or unless involuntary placement proceedings are initiated. § 394.463(2)(e).
Third, a person may be detained as an involuntary patient, if he meets the same criteria as for evaluation, and if the facility administrator and two mental health professionals recommend involuntary placement. §§ 394.467(1) and (2). Before involuntary placement, the patient has a right to notice, a judicial hearing, appointed counsel, access to medical records and personnel, and an independent expert examination. § 394.467(3). If the court determines that the patient meets the criteria for involuntary placement, it then decides whether the patient is competent to consent to treatment. If not, the court appoints a guardian advocate to make treatment decisions. §394.467(3)(a). After six months, the facility must either release the patient, or seek a court order for continued placement by stating the reasons therefor, summarizing the patient’s treatment to that point, and submitting a plan for future treatment. §§394.467(3) and (4).
Finally, a person may be admitted as a voluntary patient. Mental hospitals may admit for treatment any adult “making application by express and informed consent,” if he is “found to show evidence of mental illness and to be suitable for treatment.” §394.465(l)(a). “Express and informed consent” is defined as “consent voluntarily given in writing after sufficient explanation and disclosure... to enable the person... to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.” §394.455(22). A voluntary patient may request discharge at any time. If he does, the facility administrator must either release him within three days or initiate the involuntary placement process. §394.465(2)(a). At the time of his admission and each six months thereafter, a voluntary patient and his legal guardian or representatives must be notified in writing of the right to apply for a discharge. §394.465(3).
Burch, in apparent compliance with §394.465(1), was admitted by signing forms applying for voluntary admission. He alleges, however, that petitioners violated this statute in admitting him as a voluntary patient, because they knew or should have known that he was incapable of making an informed decision as to his admission. He claims that he was entitled to receive the procedural safeguards provided by Florida’s involuntary placement procedure, and that petitioners violated his due process rights by failing to initiate this procedure. The question presented is whether these allegations suffice to state a claim under § 1983, in light of Parratt and Hudson.
Ill
A
To understand the background against which this question arises, we return to the interpretation of § 1983 articulated in Monroe v. Pape, 365 U. S. 167 (1961) (overruled in part not relevant here, by Monell v. New York City Dept. of Social Services, 436 U. S. 658, 664-689 (1978)). In Monroe, this Court rejected the view that § 1983 applies only to violations of constitutional rights that are authorized by state law, and does not reach abuses of state authority that are forbidden by the State’s statutes or Constitution or are torts under the State’s common law. It explained that § 1983 was intended not only to “override” discriminatory or otherwise unconstitutional state laws, and to provide a remedy for violations of civil rights “where state law was inadequate,” but also to provide a federal remedy “where the state remedy, though adequate in theory, was not available in practice.” 365 U. S., at 173-174. The Court said:
“It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Id., at 183.
Thus, overlapping state remedies are generally irrelevant to the question of the existence of a cause of action under § 1983. A plaintiff, for example, may bring a §1983 action for an unlawful search and seizure despite the fact that the search and seizure violated the State’s Constitution or statutes, and despite the fact that there are common-law remedies for trespass and conversion. As was noted in Monroe, in many cases there is “no quarrel with the state laws on the books,” id., at 176; instead, the problem is the way those laws are or are not implemented by state officials.
This general rule applies in a straightforward way to two of the three kinds of § 1983 claims that may be brought against the State under the Due Process Clause of the Fourteenth Amendment. First, the Clause incorporates many of the specific protections defined in the Bill of Rights. A plaintiff may bring suit under § 1983 for state officials’ violation of his rights to, e. g., freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions “regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U. S., at 331. As to these two types of claims, the constitutional violation actionable under §1983 is complete when the wrongful action is taken. Id., at 338 (Stevens, J., concurring in judgments). A plaintiff, under Monroe v. Pape, may invoke § 1983 regardless of any state-tort remedy that might be available to compensate him for the deprivation of these rights.
The Due Process Clause also encompasses a third type of protection, a guarantee of fair procedure. A § 1983 action may be brought for a violation of procedural due process, but here the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in “life, liberty, or property” is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. Parratt, 451 U. S., at 537; Carey v. Piphus, 435 U. S. 247, 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”). The constitutional violation actionable under §1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.
In this case, Burch does not claim that his confinement at FSH violated any of the specific guarantees of the Bill of Rights. Burch’s complaint could be read to include a substantive due process claim, but that issue was not raised in the petition for certiorari, and we express no view on whether the facts Burch alleges could give rise to such a claim. The claim at issue falls within the third, or procedural, category of § 1983 claims based on the Due Process Clause.
B
Due process, as this Court often has said, is a flexible concept that varies with the particular situation. To determine what procedural protections the Constitution requires in a particular case, we weigh several factors:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U. S. 319, 335 (1976).
Applying this test, the Court usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or property. See, e. g., Cleveland Board of Education v. Loudermill, 470 U. S. 532, 542 (1985) (“i[T]he root requirement’ of the Due Process Clause” is “ That an individual be given an opportunity for a hearing before he is deprived of any significant protected interest’”; hearing required before termination of employment (emphasis in original)); Parham v. J. R., 442 U. S. 584, 606-607 (1979) (determination by neutral physician whether statutory admission standard is met required before confinement of child in mental hospital); Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 18 (1978) (hearing required before cutting off utility service); Goss v. Lopez, 419 U. S. 565, 579 (1975) (at minimum, due process requires “some kind of notice and... some kind of hearing” (emphasis in original); informal hearing required before suspension of students from public school); Wolff v. McDonnell, 418 U. S. 539, 557-558 (1974) (hearing required before forfeiture of prisoner’s good-time credits); Fuentes v. Shevin, 407 U. S. 67, 80-84 (1972) (hearing required before issuance of writ allowing repossession of property); Goldberg v. Kelly, 397 U. S. 254, 264 (1970) (hearing required before termination of welfare benefits).
In some circumstances, however, the Court has held that a statutory provision for a postde
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_appsubst
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants. Virginia CAIN, Plaintiff-Appellee-Cross-Appellant, v. Robert McQUEEN et al., Defendants-Appellants-Cross-Appellees. Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants.
Nos. 76-1222, 76-1387 and 76-1439.
United States Court of Appeals, Ninth Circuit.
Aug. 24, 1978.
Eugene J. Wait, Jr. (argued) of Wait, Shamberger, Georgeson & McQuaid, Reno, Nev., for Robert McQueen et al.
Jerry D. Anker (argued), Washington, D. C., for Virginia Cain.
Before TRASK and ANDERSON, Circuit Judges, and GRANT, District Judge.
Honorable Robert A. Grant, Senior United States District Judge, for the Northern District of Indiana, sitting by designation.
TRASK, Circuit Judge:
This appeal is taken by both plaintiff and defendants from an order of the district court denying defendants’ motion to dismiss and granting limited summary judgment to plaintiff. Plaintiff’s subsequent motion to amend the limited summary judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure was denied.
Jurisdiction in the district court was based upon 42 U.S.C. § 1983, 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3), (4). Appellant in her amended complaint also alleged that the defendant-trustees violated her rights under the First and Fourteenth Amendments to the Constitution of the United States and under Nev.Rev.Stat. § 391.3197 as it existed in March 1973.
The district court certified under Fed.R. Civ.P. Rule 54(b) that there was no just reason for delay for an appeal of the ruling on the motion for summary judgment and expressly directed the entry of the limited summary judgment.
Plaintiff was employed in November 1972 as a substitute teacher for the Washoe County School District in Reno, Nevada. In January 1973, she was given a full-time teaching position which was created by another teacher who had resigned. At that time she was given a standard employment contract, the same as that of any other teacher in the school district, except that it contained the following notation: “Contract starts January 16, 1973 and is for the remainder of the school year only.”
Defendants contend that this notation placed plaintiff in a different status than other teachers, and made her merely a “short-term” employee. The fact is, however, that all teachers’ contracts expire at the end of the school year. All such contracts, including plaintiff’s, are expressly made subject “to the laws of the state of Nevada regarding public schools” whose laws give teachers certain rights to continued employment.
Nevada law (Nev.Rev.Stat. § 391.3197) provides that new teachers are put on probation annually for three years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
The practice of the school district had been generally to provide a teacher with notice and a hearing before the nonrenewal of his or her contract. However, the district had recently adopted the practice of denominating certain teachers’ contracts as “short-term” or “one year only,” and consequently, claimed that Nev.Rev.Stat. § 391.-3197 did not apply to such employees. Defendants maintain that plaintiff was one of these “short-term” teachers and therefore was not entitled to the protection of the statute.
On March 19, 1973, plaintiff was notified by letter signed by the administrative assistant in charge of personnel that her contract would not be renewed. No reasons were given for the nonrenewal. Plaintiff then wrote a letter to the President of the Board of Trustees, defendant Pine, requesting a hearing before the board. Her request was denied.
While the plaintiff’s request was pending before the board, some students and teachers wrote letters to the board requesting that plaintiff be retained. Defendant McQueen, a member of the board, indicated that he considered such action an organized “letter writing campaign rather than an out-pouring of spontaneous support,” and it caused him to become “disenchanted” with plaintiff. He also indicated that he was “turned off” by her own request for a hearing. He expressed these views at a board meeting where plaintiff was discussed and informed the principal of Reno High School, where plaintiff was employed, that he would not be enthused about hiring her on a full-time basis.
In spite of this, the principal recommended plaintiff to fill a position to be left by a retiring teacher. At a board meeting held in August 1973, however, plaintiff’s employment was discussed and the board determined not to employ her. At that time, defendants Pine and McQueen apparently expressed the view that plaintiffs husband made too much money and, since he was the dean of the college of education at the University of Nevada, Reno, it would be wrong to hire his wife while there were so many graduates of that college who would not get jobs. An informal vote was taken, and only two members favored hiring plaintiff.
McQueen telephoned the principal of Reno High School reminding him of his opposition to the hiring of plaintiff. In addition, Superintendent Picollo met with the principal and encouraged him to fill any vacancies with teachers who had “one year only” contracts or who requested transfer from other schools. When vacancies finally did become available, plaintiff was not recommended.
Defendants have never alleged that those selected were more qualified than plaintiff. On the contrary, Superintendent Picollo informed plaintiff that she “had received excellent recommendations” and that her “capability as a teacher had never been questioned.” Both the head of the English department and the principal praised her teaching ability.
Plaintiff brought this action against the trustees in their official capacity and two of the trustees, Pine and McQueen, as individuals, claiming she was deprived of her job in violation of procedural due process and her substantive constitutional rights under the First and Fourteenth Amendments.
Defendants’ motion to dismiss was based on their claim that plaintiff was a substitute teacher and therefore according to the express provisions of Nev.Rev.Stat. § 391.-3115, she was not entitled to the non-employment provisions of Nev.Rev.Stat. § 391.3197. In addition, they claimed the action should have been dismissed because plaintiff’s complaint alleges that no more than two of the seven board members were motivated by constitutionally impermissible reasons.
The district court denied defendants’ motion to dismiss and granted limited summary judgment for the plaintiff. The court held that Nev.Rev.Stat. § 391.3197 applied to plaintiff and that this statute gave her a “property” interest within the meaning of the Fourteenth Amendment and that she was entitled to a hearing as a matter of due process and under Nevada law. A hearing was consequently ordered. Plaintiff thereupon filed a motion to amend the judgment urging that her termination should be considered null and void and that she should be granted reinstatement and back pay. Plaintiff’s motion was denied.
I
For the procedural rights of plaintiff under the due process clause of the Fourteenth Amendment to have been violated, she must have possessed a property interest as contemplated by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A teacher has a property interest in his or her job not only when he or she has formal tenure under an express provision of a statute or contract, but also when applicable rules or practices establish a “clearly implied promise of continued employment.” Board of Regents v. Roth, id. at 576-77, 92 S.Ct. at 2709.
Plaintiff claims that such a property interest was created by Nev.Rev.Stat. § 391.-3197. Under that statute a “probationary” teacher, although lacking formal tenure, is entitled to be reappointed from year to year unless specific “reasons” are found for non-renewal. The court below accordingly held that Nev.Rev.Stat. § 391.3197, as it existed in 1973, “gave to probationary teachers a form of limited tenure and a right to know and reply to the reasons for termination.”
Defendants contend that plaintiff was not a probationary teacher and therefore not entitled to the benefits and protections of Nev.Rev.Stat. § 391.3197. Rather, it is their position that she was a substitute teacher. They base this on the fact that the statute states that teachers are on “probation annually.” (Emphasis added.) From this, they conclude that a teacher becomes a probationary employee when granted an annual contract, rather than one for only a portion of a year as the plaintiff had in this case.
We find no merit in defendants’ contention. It cannot be said that merely because plaintiff was hired after the school year started that she did not have an annual contract.
We agree with the district court which held that defendants’ contention that plaintiff was a substitute teacher is erroneous as a matter of law. The court found:
“The undisputed facts show unequivocally that plaintiff was not a substitute teacher. She was a substitute teacher in the Washoe County School District from November 10,1972, until sometime in December or January, 1972 [sic], hired on a day-to-day basis as needed. On January, 29, 1973, plaintiff entered into a contract with the Washoe County School District to serve as a teacher from January 16, 1973, ‘for the remainder of the 1972 — 1973 school year only.’ The contract is in the standard form then in use for teachers and expressly provides: ‘The initial three years of service for the certificated employee shall constitute a probationary period during which time the employee may be dismissed at the discretion of the Board of Trustees pursuant to NRS 391.-3197.’ Plaintiff thus became a probationary employee of the School District subject to all the rights of every probationary employee. The fact that she was hired to perform the services of another certificated teacher who had resigned does not place her in the category of substitute teacher.” C.T. 268-69.
Irrespective of the procedural safeguards afforded by the Fourteenth Amendment due process, plaintiff was at least entitled to those procedural protections mentioned in Nev.Rev.Stat. § 391.3197. The statute provides for an advance notice of “the reasons for the recommendation to dismiss or not to renew the contract” and an “opportunity to reply.” The district court determined that the phrase “opportunity to reply” must be construed as contemplating a hearing since a “statement of reasons for termination and an opportunity to reply are meaningless unless there is some sort of hearing to resolve any issues which may be presented.”
Nev.Rev.Stat. § 391.3197 was amended on July 1, 1973, to provide that “prior to dismissal or nonrenewal, the teacher may obtain a due process hearing . . . .” With regard to this amendment, which occurred after plaintiff’s contract had not been renewed, the district court stated:
“As we interpret the law, the amendments made by the 1973 legislature with respect to NRS § 391.3197 were clarifying in character and did not materially change the rights of a probationary teacher.” R.T. at 252.
In McGee v. Humbolt County School Dist., 561 P.2d 458 (Nev.1977), the Supreme Court of Nevada determined that a probationary teacher “received all the process due” her when she “received notification of the reasons respondent [school district] was not rehiring her and was given an opportunity to reply at a public hearing." Id. at 459 (Emphasis added).
II
Plaintiff contends that in addition to a hearing, she is entitled to reinstatement and back pay. This contention presents a difficult issue in which “a careful weighing of all facts and circumstances” must take place. Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850, 853 (9th Cir. 1975). There must be a balancing of plaintiff’s interests in her wrongfully terminated teaching position against the possible disruption which her reinstatement may cause the school district. Id. at 852-53.
The Burton case points out that reinstatement and back pay are appropriately granted in situations involving racial discrimination and the legal exercise of free expression in a manner critical of the employer. It is also an appropriate form of relief when used to discourage school systems from taking similar action against other teachers in the future. Burton v. Cascade School Dist. Union High School No. 5, supra at 853-54. In this case, plaintiff claims that her termination was partially the result of her request for a hearing. If so, this situation is strikingly similar to the situation where the employee is terminated because of the legal exercise of free expression in a manner critical of the employer.
Plaintiff argues that a court-ordered hearing held years after her employment was terminated does not “make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). This argument is especially valid in light of Nev. Rev.Stat. § 391.3197 which expressly requires that the notice of reasons and opportunity to reply be provided “prior to formal action by the board.” This court has affirmed an order of a district court mandating officials to reinstate a college English instructor because his termination was in violation of his procedural due process rights under the Fourteenth Amendment. Stewart v. Pearce, 484 F.2d 1031 (9th Cir. 1973).
The Third Circuit has noted that a post-termination hearing is not an adequate substitute for a pre-termination hearing:
“But there is substantial difference in the position of the parties once termination has actually occurred. First, the employee, cut-off from the payroll, is greatly disadvantaged in his ability to pursue the hearing remedy. He may be forced by the necessity for survival to seek other employment which will foreclose the pursuit of reinstatement. Second, the institution will have made substitute teaching arrangements, thus introducing into the hearing consideration of the interests of other faculty members. This inevitability will increase whatever tendency may already exist for the hearing officials to defer to the administration’s decision. We agree with the district court, therefore, that a hearing after the fact is not the due process equivalent of the pre-termination hearing required by Perry v. Sinderman [408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570], supra. See [Skehan v. Board of Trustees of Bloomsburg State College] 3 Cir., 358 F.Supp. [430] at 434-35.” Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 38 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975).
An important consideration is the time lag between the wrongful termination and the hearing. In the Skehan case, supra, the Third Circuit noted that there is probably a greater likelihood that the original termination decision will be upheld if the hearing is held long after the event than if a hearing is held before the termination becomes effective. The Eighth Circuit recently held that a post-termination hearing held two years after the termination did not satisfy the requirements of due process. Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977). In that case, plaintiff, a former high school teacher, was terminated without a hearing when defendants discovered that she, a single woman, had become pregnant. In the court-ordered hearing held more than two years after she was terminated, defendants voted to confirm their earlier action.
Not all cases that have found violations of procedural due process and where hearings have been ordered have granted reinstatement and back pay, however. E. g., Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850 (9th Cir. 1975); Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969). The disadvantage to the school district should be carefully considered.
The district court’s order was as follows:
“1. Defendants’ motion to dismiss is denied.
“2. A summary judgment will be entered in favor of plaintiff and against defendants requiring that defendants shall, within a reasonable time, accord to plaintiff the due process hearing contemplated by the foregoing opinion. The Court reserves jurisdiction to make such further orders in the premises as may be required to accord to plaintiff the full benefit of the rights to which she is entitled and will entertain supplemental pleadings if they should become necessary. It is the view of the Court that plaintiff’s rights and remedies are primarily to be worked out by plaintiff and the Board of Trustees of the Washoe County School District except to the extent that the Court has been required to interject itself into the situation in order to recognize and enforce plaintiff’s rights to due process of law.
“Dated: December 31, 1975.” C.T. at 276.
We affirm that judgment.
As will be noted, the district court has reserved jurisdiction except insofar as the right of the plaintiff to a due process hearing. We note that this, although not mentioned explicitly, necessarily includes reinstatement and back pay. Because these claims have not been ruled upon, we defer our consideration thereof until the district court has ruled and that ruling, whatever it is, is properly before us.
Judgment accordingly.
. The statute at the time the plaintiff received notice of the termination of her probationary contract, Nev.Rev.Stat. § 391.3197 provided:
“1. Teachers employed by a board of trustees shall be on probation annually for 3 years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board of trustees. A teacher employed on a probationary contract for the first three years of his employment shall not be entitled to be under the provisions of NRS 391.311 to 391.3196, inclusive.
“However, prior to formal action by the board, the probationary teacher shall be given the reasons for the recommendation to dismiss or not to renew the contract and be given the opportunity to reply.”
The 1973 Legislature amended section 391.-3197 to provide as follows:
“391.3197 Probationary employees; Length of Probation; dismissal, refusal to reemploy; due process hearing.
“1. Teachers employed by a board of trustees shall be on probation annually for the first 3 consecutive years of employment unless on an approved leave of absence, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
“2. Any certificated employee who has achieved postprobationary status in a Nevada school district and is contracted in a second subsequent school district shall have a probationary period not to exceed 2 consecutive years of employment in that district.
“3. Prior to dismissal or nonrenewal, the teacher may obtain a due process hearing before the board or, at the discretion of the board, a hearing before a hearing officer or hearing commission as set out in NRS 391.-311 to 391.3196, inclusive. The appeal provisions of chapter 233B of NRS do not apply for a probationary teacher.
“The amended section became effective on July 1, 1973.
“Section 391.3197 was expressly made a part of plaintiffs contract with the Washoe County School District.” C.T. at 249
. Plaintiffs employment contract contained a specific reference to this statute.
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
HERZOG v. KRONMAN.
No. 6513.
United States Court of Appeals for the District of Columbia.
Argued Jan. 10, 1936.
Decided Feb. 17, 1936.
Mark P. Friedlander and Robert I. Silverman, both of Washington, D. C., for appellant.
M. D. Rosenberg, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
PER CURIAM.
Appellant, whom we shall call plaintiff, brought an action which he calls an action for “slander of title” against appellee, whom we shall call defendant, for seven hundred odd dollars actual damages and twenty-four thousand odd dollars exemplary damages. The facts alleged in the declaration are that plaintiff inherited a certain parcel of land from his father on which there was a debt of $14,000.00, evidenced by a note secured by mortgage on the land; that after his father’s death he qualified as executor, and, during the period of administration, defendant, the holder of the note, filed claim in the probate court of the .District of Columbia, in which he stated he was the owner of the note, that the same had been protested for nonpayment, and that he held no security for same. Plaintiff copied into his declaration the docket entry in the probate court, and this entry showed the name and residence of the claimant, the amount and nature of the claim; and, under the latter heading, that it was a “real estate note” assumed by plaintiff’s father and bore interest at 6 per cent, from a period a little less than a month prior to the docketing. The allegation is that the statement in the claim that the note had been protested and that there was no security for the same was defamatory because the fact was the note was not then due; and, as a result of the filing of the claim — as due and unsecured — “plaintiff was put to great inconvenience and was vexed, harrassed and put to divers and great expenses,” etc.
The actual expenses alleged are the cost for an additional year of the executor’s bond and attorney fees and court costs, but the total is under the jurisdictional amount entitling plaintiff to sue in the Supreme Court of the District of Columbia; and nothing of fact is specifically alleged to sustain the claim of exemplary damages. The lower court, in dismissing the action, said that nothing was stated in the declaration which directly or by innuendo disparages title to the property in question.
Admitting that the words used in the claim filed in the probate court were malicious — which, however, we think does not in fact appear — there is nothing to show plaintiff sustained special damages as the natural and proximate consequences thereof; and there is certainly nothing in the docket entry made by the clerk, as the result of the filing of the claim, calculated in the ordinary course to cause damage to the title to the land, special or otherwise. There is no charge that the sale of the property was defeated by the alleged libel, or that the property was in any respect injured as the result of filing of the claim. And we know of no rule of law under which plaintiff could recover exemplary damages, in an action of this nature, without charging and proving that the libel prevented the sale or leasing of the land or otherwise damaged the title.
To maintain the action, slander of title, it must be charged and shown that the words are false and were malicious, and that the damage alleged naturally and reasonably resulted; and, if special damage is alleged, it must be claimed and facts must be alleged on which it may be sustained. That an action in case will lie for recovery of actual damages, if willfully and intentionally caused, will not help plaintiff here, for in that case because of lack of jurisdictional amount the action must have been brought in the municipal court.
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_direct2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. 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.
Errol B. RESNICK, Plaintiff-Appellant, v. UNITED STATES PAROLE COMMISSION, et al., Defendants-Appellees.
No. 86-1509.
United States Court of Appeals, Tenth Circuit.
Dec. 21, 1987.
Rehearing Denied Feb. 23,1988.
Cyd Gilman, Asst. Federal Public Defender, D. Kan. (Charles D. Anderson, Federal Public Defender, Wichita, Kan., with her on the brief), for plaintiff-appellant.
Leon J. Patton, Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., Alleen S. Castellani, Asst. U.S. Atty., D. Kan., Topeka, Kan., with him on the brief), for defendants-appellees.
Before MOORE, BALDOCK and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
Errol B. Resnick, an inmate in the United States Penitentiary, Leavenworth, Kansas, filed a petition for habeas corpus in the United States District Court for the District of Kansas against the United States Parole Commission, challenging a decision of the Commission which held that Resnick would continue to stay in prison for the time being and that he would not be afforded another parole hearing until April, 1992. 28 U.S.C. § 2241. The district court issued a show cause order, and the Commission filed an answer and return, to which Resnick filed a traverse. Based on the pleadings, and attachments thereto, the district court denied Resnick’s petition and dismissed the action. Resnick appeals.
Resnick is presently incarcerated in the United States Penitentiary, Leavenworth, Kansas, pursuant to four sentences imposed by federal district courts in the State of Florida. The sentences thus imposed are to be served consecutively, and they total 34.5 years. Resnick has now served approximately 15 years under those consecutive sentences. Specifically, Resnick was sentenced on federal charges as follows:
1. 17 years by the United States District Court for the Southern District of Florida on November 2, 1971, upon a conviction for a narcotics conspiracy;
2. 10 years, to be served consecutively to the 17-year sentence referred to in paragraph 1, by the United States District Court for the Middle District of Florida on December 6, 1972, upon a conviction for unlawful melting of United States coins;
3. 2 years and six months, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on January 24, 1973, upon a conviction for illegal sale of firearms; and
4. 5 years, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on September 12, 1973, upon a conviction for conspiracy to escape and attempted escape.
In addition to the four sentences mentioned above, Resnick is serving two life sentences imposed by state courts in Florida for hiring others to commit two murders. The Florida sentences were to be served concurrently with the federal sentences now being served.
Resnick had his initial hearing before examiners of the United States Parole Commission on August 25, 1981. The examiners assigned an offense severity rating for each offense and aggregated those ratings to result in a greatest II rating, indicating that Resnick’s offenses were very serious. As concerns Resnick’s salient factor rating, the examiners fixed that at 10, indicating that he was a good parole risk. In this regard, the examiners noted that Resnick, while incarcerated, had earned a bachelor’s degree and a master’s degree, and was working toward a doctorate degree. Resnick was also highly recommended for parole by a former assistant educational director at the penitentiary.
The examiners referred Resnick’s case to the National Commissioners on September 8, 1981, for original decision because of the unusual sophistication of the crimes involved and because of the possibility of an ongoing criminal conspiracy. On October 16, 1981, the National Commissioners determined that it needed more information concerning the scope of the offenses. A letter was written at that time by the National Commissioners to the U.S. Probation Office requesting more information. The matter was subsequently referred back to the examiners for further hearing, at which time information obtained from the United States Probation Office, as well as other matters, was to be considered. Resnick was informed on February 23, 1982, which was later corrected on March 2, 1982, that the hearing would be held on April 27, 1982.
At the hearing on April 27, 1982, the examiners again gave Resnick a salient factor score of 10, and an offense severity rating in the greatest II category. The case was again referred to the National Commissioners with a recommendation that release of Resnick at that time would depreciate the seriousness of his several offenses, which recommendation noted Res-nick’s state criminal convictions, as well as the four federal convictions, and recommended that Resnick be kept in custody until April 1, 1992, when a new parole hearing would be held. On June 4, 1982, the National Commissioners adopted the recommendations of the hearing examiners. Resnick’s subsequent appeal to the National Appeals Board was denied, whereupon Resnick instituted the present proceeding.
The present appeal raises two issues: (1) The offenses for which Resnick was convicted and sentenced having occurred in 1971, 1972, and 1973, does the application of statutes and regulations in effect at the time of Resnick’s parole board hearings in 1981 and 1982 violate the ex post facto provision of the United States Constitution, Article 1, Section 9, Clause 3? (2) Were Resnick’s due process rights violated by arbitrary and capricious action on the part of the Commission?
Ex Post Facto
Article I, Section 9, Clause 3, of the Constitution provides that, “No Bill of Attainder or ex post facto law shall be passed.”
18 U.S.C. § 4206(a), in effect at the time of Resnick’s parole hearings, provides as follows:
(a)If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law;
(2) that release would not jeopardize the public welfare;
subject to the provisions of subsections (b)and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released.
# # * # * *
(c)The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.
In denying Resnick present parole and continuing the matter for a 10-year reconsideration to April, 1992, the National Commissioners spoke as follows:
REASONS:
Your offense behavior has been rated as Greatest II severity because you were involved in melting $9,000 in U.S. coins, sold firearms without filing the appropriate ATF forms, smuggled approximately 900 lbs. of marijuana and you had two individuals murdered (as evidenced by your Florida conviction) in conjunction with the marijuana offense. Your salient factor score (SFS-81) is 10 (see attached sheet). You have been in custody a total of 130 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a minimum of 52 months to be served before release for cases with good institutional program performance and adjustment. In addition, you attempted to escape from a secure facility and guidelines established by the Commission for that offense indicate a customary range of 6-12 months to be added to your minimum range of 52 months. Your combined minimum range is 58 months. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon a comparison of the relative severity of your offense behavior with the offense behaviors and time ranges specified in the Greatest I severity category.
In rendering this decision, the Commission also noted that the victims were murdered in an especially brutal fashion; one victim was mutilated by being covered with lye and the other thrown out of a car and left by the roadside.
Also, during the attempted escape, a hostage was taken.
In essence, then, the National Commissioners denied Resnick present parole and postponed reconsideration to April, 1992, because his present release “would depreciate the seriousness of ... [Resnick’s] offense behavior” which formed the basis for his four federal convictions. In making that decision, the Commission also “noted” that in each of the homicides for which Resnick was convicted of murder under Florida law the victims were treated in especially brutal manner, one victim being mutilated when covered with lye and the other thrown out of a car and left by the roadside.
Resnick’s ex post facto argument, as we understand it, is that in denying parole the Commission concluded that to release Resnick now would, in the language of 18 U.S.C. § 4206(a)(1), “depreciate the seriousness of his offense behavior,” and that such language did not appear in 18 U.S.C. § 4203 (enacted in 1948) (the predecessor statute to 18 U.S.C. § 4206(a)(1)), which was in effect at the time of his four federal convictions. In other words, counsel argues that at the time Resnick suffered his four federal convictions, parole could not have been denied on the ground that to grant parole would “depreciate the seriousness of his offense behavior,” and that the statute in effect at the time of his parole hearing which permitted denial of parole on that ground violated the ex post facto provision. We do not agree with Resnick’s premise that in 1971-73 parole could not be denied, notwithstanding any guidelines, on the ground that to grant parole would have depreciated the seriousness of the underlying offenses.
In Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981), a case involving a Florida statute which reduced the “gain time” for good conduct and obedience to prison rule, the Supreme Court held that for a criminal or penal statute to be ex post facto it must be retrospective, i.e., it must apply to events occurring before its enactment and it must “disadvantage” the person affected by it.
The district court in the instant case concluded that although § 4206(a)(1) was applied retroactively, that such application did not “disadvantage” Resnick. We agree. The enormity or magnitude of the offenses which form the basis for a prisoner’s incarceration has always been a basis for denying parole, notwithstanding guidelines. And this is true even though the predecessor statute to § 4206(a)(1) did not contain the “depreciate the seriousness of the offense” language. The predecessor statute did provide that parole could be granted if it appeared that there is a reasonable probability that the prisoner will live and remain at liberty without violating laws, and if the Commission believes that “such release is compatible with the welfare of society.” In Wiley v. United States Board of Parole, 380 F.Supp. 1194 (M.D.Pa.1974), the court held that denying parole on the ground that to grant parole would “depreciate the seriousness of the offense” came within the language of the predecessor statute, commenting that the seriousness of the offense is a factor which is related to and could be “determinative of the question of whether the prisoner’s release is compatible with the welfare of society.” We agree with such reasoning. Indeed the enormity and magnitude of the underlying offenses for which the prisoner is incarcerated has always been a most important factor in determining whether an inmate should be paroled. And we agree that “early parole” in such a case might tend to “depreciate” the seriousness of the inmate’s criminal behavior.
We regard Resnick’s ex post facto argument to be directed mainly to the statute above referred to, § 4206(a)(1). However, counsel does also complain that the guidelines applied in Resnick’s parole hearings in 1981 and 1982 also violated the ex post facto clause. We fail to see just what guidelines were applied which “disadvantaged” Resnick. Indeed, the thrust of Res-nick's entire argument is that the guidelines in effect in 1981-1982 suggested Res-nick’s early parole release and that the Commission erred in going outside the guidelines. In this general connection, however, we note that the decided weight of authority is that guidelines of this sort, being guidelines only, are not subject to the ex post facto prohibition. Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir.1987); Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir.1986).
Due Process
We fail to see that Resnick’s due process rights were violated in either of the two proceedings before the Commission. He was given notice under the then existing statute regulations and his request for documents was belated, untimely, and nonspecific.
Nunez-Guardado v. Hadden, 722 F.2d 618 (10th Cir.1983) has present pertinency. In that case we upheld Commission action which departed from the guidelines and fixed the inmate’s parole date above the guidelines’ recommended date of release, stating that “judicial review” of Parole Commission action is “narrow” and that the test is whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion. We also noted that “prison conduct” is only one of the factors to be considered in parole release decision. We further held that consideration by the Commission of criminal acts other than the one count to which the defendant had pleaded guilty after plea bargaining was proper. And having held that the Commission’s action was not arbitrary or capricious, or any abuse of discretion, but was based on “good cause” and was non-viola-tive of due process, we declined to reach the issue of whether the federal parole statutes create a liberty interest.
In sum, although Resnick had attempted escape in Florida, he apparently had a very favorable record in the penitentiary in Leavenworth, Kansas. However, the Commission concluded that the magnitude of the federal crimes for which Res-nick had been convicted, coupled with the two state convictions for murder, which were apparently related to his federal conviction for drug conspiracy, amounted to a “good cause” for denying present parole, since to grant present parole would “depreciate” the seriousness of his offenses. Such, in our view, constitutes a “rational basis” for the Commission’s action. Nunez-Guardado, 722 F.2d at 623; Solomon, 676 F.2d at 290.
Judgment affirmed.
. In Dunn v. U.S. Parole Commission, 818 F.2d 742, 744 (10th Cir.1987), the court held that a district court had subject matter jurisdiction over a habeas corpus proceeding despite the fact that the Parole Commission rather than the warden of the prison was named in the petition. The court reasoned that: “[ajlthough the Leavenworth warden cannot be said to be indifferent to the resolution of Mr. Dunn’s challenge, only in the most formal sense does he control whether Mr. Dunn is released ... [r]ather, ... the Commission directly control(s) whether Mr. Dunn remains in custody."
. Resnick earned his bachelor’s degree in psychology, his master's degree is in the field of numismatics, and he is working toward a doctorate in finance.
. In Solomon v. Etsea, 676 F.2d 282, 287 (7th Cir.1982), the Seventh Circuit stated that the "magnitude” of a prisoner’s individual crime may be the "good cause” referred to in 18 U.S.C. § 4206(c) for which the Commission may deny parole notwithstanding the guidelines and that "[i]t is the extenuating circumstances of the particular offense, not the nature of the violation categorizing him in the guidelines, which must make up the necessary good cause."
. The predecessor statute, 18 U.S.C. § 4203(a) stated: "If it appears to the Board of Parole from a report by proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.”
. 28 C.F.R. § 2.55(a) provides: "at least 60 days prior to a hearing scheduled pursuant to 28 C.F.R. 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_numappel
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
Vella Dee JOHNSON, Plaintiff-Appellee, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Defendants-Appellants.
No. 74-1377.
United States Court of Appeals, Tenth Circuit.
Argued Jan. 23, 1975.
Decided April 7, 1975.
Maynard I. Ungerman of Ungerman, Grabel & Ungerman, Tulsa, Oklahoma (Alan M. Levy of Goldberg, Previant & Uelmen, Milwaukee, Wis., on the brief), for defendants-appellants.
Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The cause which is here appealed was originally an action seeking to recover a surviving widow’s pension. This was allegedly derived from the employment of her husband who had been a driver for Red Ball, Inc. and a member of Teamsters Local 523. The action was originally filed in state court and removed to federal district court for the Northern District of Oklahoma. Following a trial judgment was entered for plaintiff in the amount of $15,000. The Pension Fund is the appellant.
Under the terms of the collective bargaining agreement which covered him, the company paid $6.00 per week to the Pension' Fund for each employee. At the time of Johnson’s death, the company had made payments for 128 weeks, almost two and one-half years.
A booklet which was furnished to plaintiff’s husband explained the pension plan (pp. 1-28) and also included the text of the plan itself (pp. 29-44). Defendant now contends that under the terms of the Plan, plaintiff’s entitlement was limited to a death benefit of $320. Plaintiff maintains she is entitled to a survivor benefit of $250 per month for 60 months ($15,000). Her contention is founded not on the words of the plan but on several statements in the introductory explanation of the plan which she contends are ambiguous and on a letter dated August 25, 1967 sent to Johnson by the union assistant business manager.
The plan itself is not ambiguous. It allows for monthly survivor benefits only if certain specified payments have been made into the fund for the employee. Otherwise, it limits entitlement to the death benefit. The conditions for qualification for survivor benefits are as follows:
If the employee dies after his Normal Retirement Date . . . and if such employee or pensioner dies after his last employer has made contributions on his behalf under a collective bargaining agreement providing for contributions at the rate of $7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter, a survivor benefit shall be payable to his surviving spouse.
Art. Ill, § 9(B).
If contributions of $7.00 and $8.00 have been made, the survivor is entitled to $250 per month; if contributions of $8.00, $9.00, and $10.00 have been made, the survivor is entitled to $300 per month.
In the explanation portion of the booklet, the survivor benefit is described briefly:
$135 per month payable to spouse or dependent children under 23 years of age for five months upon death of active member. $250 or $300 per month payable to spouse for balance of five years upon death of normal retirement pensioner. (Applicable only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.)
(R. 86, p. 7 of booklet).
Later the explanation recites that if death occurs after the employee becomes eligible for normal retirement, “the amount of the monthly Survivor Pension is the Normal Pension payable for 60 months to your surviving wife (or husband).” (R. 97, p. 18 of booklet). On the same page it states that the surviving wife is eligible for the pension if the last employer contributed “under an agreement providing for payments of $5-$6 — $7—$8 or $8-$9-$10 over a three year period.”
The letter relied on is that of August 1967 to Johnson from Nye, the assistant business manager, which stated that the $6 per week payment would entitle each employee to a pension of $250 per month for five years and $110 per month thereafter. According to the booklet explanation, payments by the employer of $5— $6-$7 — $8 per week over a three year period entitle the employee to the pension Nye said would be available. The Plan provision makes clear that $6 per week is not sufficient for the $250 per month pension. The Nye letter says nothing about survivor benefits.
At the trial Mr. Murtha, the administrator of pension benefits, testified that the Trustees of the Fund have never granted a survivor benefit where the employer only contributed $6 per week. He also testified that any amendments to the plan had to be approved by the Internal Revenue Service.
Plaintiff contends that she is entitled to rely on the general description of the plan contained in the introductory pages of the booklet her husband received at the plan’s inception. She further contends that this description is ambiguous and that the ambiguities ought to be resolved strictly against the scrivener. The trial court accepted these contentions and held that the payment of $6.00 per week by her husband’s employer placed her in the “$5-$6-$7-$8” category which provided for survivor benefits of $250 per month for 60 months.
This holding is clearly erroneous. Unfortunately for plaintiff, neither the plan nor its description is ambiguous. The first mention of survival benefits occurs at the front of the booklet under the heading “your pension in brief.” The description states that the survivor benefit is applicable “only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.” Immediately adjacent to this is a description of the lump sum benefit, which is applicable “to all classes other than $5-$6-$7-$8 and $8-$9-$10.” The descriptive portion of the booklet does not precisely delineate the composition of these two classes, but the plan itself (which follows the description) is explicit in this regard. It declares that survivor benefits are payable only if the employer contributed “$7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter.”
The description in the front of the booklet does not expressly represent that employer contributions give the worker the right to be in one of the two classes of surviving beneficiaries; it could, however, lead the ordinary, unwary reader to this belief. But the plan clarifies this vagueness so that if one had been confused after reading the description (regarding the legal result of the $6 per week contribution), an examination of the plan itself serves to dispel any such belief, for it is clear from a reading of the plan that in order for a survivor to have entitlement there must have been employer payments in increasing amounts over a three year period.
Gould v. Continental Coffee Co., 804 F.Supp. 1 (S.D.N.Y.1960) and Dictaphone Corp. v. Clemons, 488 P.2d 226 (Colo. App.1971) are cited by the plaintiff-ap-pellee for the proposition that where there is a variance between the general description and the plan itself it is to be construed against the draftsman. These cases are, however, different because the plans themselves were not in those instances submitted to the beneficiaries. Only the summaries were given. It is not, therefore, surprising that the courts in those cases held that the employees had a right to rely on the summaries.
A reading of the plan makes clear the belief that a survivor’s pension is paid to anyone whose employer paid $5-$6-$7 and $8 and that a higher pension is paid to those whose employer paid $8-$9 and $10.
The letter from Nye to plaintiff’s husband is somewhat misleading. However, it does not mention survivor pensions. The mistake in that letter was made in saying that plaintiff’s husband would receive upon retirement $250 each month for five years and $110 per month thereafter. This is the amount that is received from someone who is in the higher classification of employer payments. But there could have been no reliance on that letter for the purpose of survivor benefits. Although the memorandum which was sent to the union and which is relied on by appellant did mention survivor benefits, read in its entirety it was incapable of misleading anyone.
Finally, it cannot be said that the plan itself is positively deceptive. True, it is much less than perfect in that it presents a picture of glowing generosity, whereas for the $6 per week the surviving widow receives only a small percentage of the amount paid in. This is indeed a poor plan which ought not to be available to an employer. Moreover, if there is to be a description of a plan of this kind it should describe not only the benefits but should also note the deficiencies.
Plaintiff finally urges that the appellant has violated the Welfare Pension Plan Disclosure Act, 29 U.S.C. § 301 et seq. This requires a complete description of pension plans like the one involved here. Even though the, description together with the plan is unsatisfactory, we cannot say that the appellee has violated this Act.
We are constrained to hold that the judgment of the district court is clearly erroneous from the standpoint of the facts found and must be reversed. The cause is remanded to the district court with directions to vacate the judgment and dismiss the action.
. A check, dated April 5, 1972, in the amount of $320 was tendered to Mrs. Johnson, but she refused it.
. Nye admitted at the trial that he “goofed” in including a description of the pension in his letter. It had always been his understanding that interpretation of the benefits would be left to the Pension Fund.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_appel2_8_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Max FINKEL et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 5863.
United States Court of Appeals First Circuit.
Heard Nov. 6, 1961.
Decided Nov. 21, 1961.
James T. Waldron, Fall River, Mass., with whom John T. Farrell, Jr., and Clarkin & Waldron, Fall River, Mass., were on brief, for petitioners.
Michael K. Cavanaugh, Atty., Dept, of Justice, with whom John B. Jones, Jr., Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Attys., Dept, of Justice, Washington, D. C., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
Taxpayer, who has been in the fish business for many years, was a stockholder in a fish meal corporation, New Bedford Fish Products Corporation, hereinafter Products, and in a fish trucking concern, Meso, Inc. Fish meal processing is a potential nuisance, and Products held the required municipal license. In 1952 its plant was temporarily shut down because business became unprofitable. In 1956 it was sold. Because the license was not transferable, the purchaser could not simply buy the assets, but required the stock. Prior to the sale, taxpayer had loaned $42,874 to Products and $12,-216 to Meso, and other stockholders had made similar loans. Products was substantially indebted to Meso. The purchaser demanded that Products be free from debt after transfer, except to the extent that indebtedness might be represented by notes, in which event the notes were to be transferred to her without recourse. In response, Meso, whose stockholders and creditors were the same as Products’, cancelled its indebtedness. This obligation had been Meso’s sole asset. Products issued notes to its remaining creditors, including taxpayer, which were thereupon endorsed over to the purchaser. In return, the purchaser tendered cash and notes totalling $75,000, of which taxpayer received $21,562.
Taxpayer charged off his Products and Meso stock in his 1956 return as long-term capital losses. No question arises as to this. Next, he sought to deduct the debt owed him by Meso as a business bad debt becoming worthless during the taxable year. The government claims that it was not a business debt. This involves considerations that we need not go into. But the purchaser paid enough for Products so that a partial payment could have been made on its indebtedness to Meso. Accordingly, Meso’s total relinquishment of the indebtedness was a voluntary capital contribution by persons, including taxpayer, who were at once its stockholders, its creditors, and stockholder-creditors of Products. It was, in fact, so entered on Products’ books. In effect taxpayer got more out of Products and less, i. e., nothing, out of Meso, but this was the result of his own action and did not entitle him to claim, vis-a-vis the government, that the debt owed him by Meso was worthless. Raffold Process Corp. v. Commissioner, 1 Cir., 1946, 153 F.2d 168; Liggett’s Estate v. Commissioner, 10 Cir., 1954, 216 F.2d 548; Bratton v. Commissoner, 6 Cir., 1954, 217 F.2d 486. We are not concerned with what might have been the situation had Meso received a pro rata dividend on its indebtedness as an ordinary creditor of Products.
Similarly, taxpayer cannot assert what might have happened had he not sold the notes he received from Products against his indebtedness. Obviously, he cannot— and does not — say that he was paid for the stock and not for the notes. All he can claim is a loss. Levy v. Commissioner, 2 Cir., 1942, 131 F.2d 544, cert. den. Levy v. Helvering, 318 U.S. 780, 63 S.Ct. 858, 87 L.Ed. 1148; Graham Mill & Elevator Co. v. Thomas, 5 Cir., 1945, 152 F.2d 564; Von Hoffman Corp. v. Commissioner, 8 Cir., 1958, 253 F.2d 828; cf. Mitchell v. Commissioner, 2 Cir., 1951, 187 F.2d 706. This he has been allowed.
Judgment will be entered affirming the decision of the Tax Court.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
|
songer_typeiss
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Plaintiff-Appellee, v. David Frank DUNCAN, a/k/a Harold Celline, Defendant-Appellant.
No. 89-1087.
United States Court of Appeals, Seventh Circuit.
Argued June 7, 1989.
Decided Feb. 22, 1990.
Frederick J. Hess, U.S. Atty., Stephen B. Clark, Joel Merkel (argued), Asst. U.S. At-tys., Office of the U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Robert G. Duncan (argued), Kansas City, Mo., for defendant-appellant.
Before COFFEY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
COFFEY, Circuit Judge.
David Frank Duncan, also known as Harold Celline, appeals from a conviction for knowingly receiving visual depictions of minors engaging in sexually explicit conduct, transported and shipped in interstate and foreign commerce, in violation of 18 U.S.C. § 2252(a)(2). We affirm.
I
In 1986 the United States Customs Service established a national undercover operation code named “Operation Borderline” to target people involved in the importation of child pornography into the United States. As part of Operation Borderline, the Customs Service, in cooperation with the Canadian Customs Service, established a false child pornography distribution operation located in Hull, Quebec, Canada. Locating the operation's office in Canada was important to the credibility of the operation because most child pornography distributors are located outside of the United States.
Operation Borderline’s child pornography enterprise, operating under the name Pro-duit Outaouais, designed a non-illustrated brochure offering for sale sets of photographs depicting minors engaged in sexually explicit conduct Customs had seized in prior investigations. The brochure itself was a combination of descriptions of photographs contained in other brochures previously disseminated by actual distributors of child pornography. For example Customs’ brochure, published in both English and French, included several paragraphs taken directly from a former child pornography distributor in Stockholm, Sweden:
“Hello Lolita Collector: You have been recommended from a reliable contact in which you have done business with. Because you are a trusted and proven customer, we offer you these special selections.
As a serious collector, you are aware of the world-wide ban and intense enforcement on this type of material. Accordingly, what was legal and commonplace is now an “underground” and secretive service in order to continue serving collectors.
This environment forces us to take extreme measures to protect us and to ensure your delivery. We have been serving customers the world over for many years and we are continuing to do so. To continue, we offer these selections and delivery on the following basis only.”
The next part of the brochure was taken directly from a former distributor of child pornography in West Germany:
“The following list of materials is not all we have to offer. You will receive additional lists, unless you choose not to, at a later date.
FOTOS: With boys and girls in sex action ... At the moment, the following magazine foto sets are available:
Lolita No. 31, 43, 51, 52, 55
Incest No. 1, 2, 4 and 5
School Girls and Boys
Linda and Patty
Lolita Colours Special No. 13, 18, 19 and 20
Lolitas Who Love Pissing
Nymph Lover No. 4 and 6
Loving Children No. 3
Lesbian Lolita
Liza and Her Dog
Sweet Linda”
An additional section of the brochure offered COQ foto sets. COQ formerly was the largest distributor in the world of male homosexual child pornography. The section read as follows:
“COQ’s favorites: Young Boys in Sex Action Fun:
# jjs ¡js ■}{ * :¡c
Loverboys # 1, 2
Joe & His Uncle
Miniboys # 2, 4, 7
* * it * * *
Joyboy # 4, 5”
The brochure contained an order form which could be torn from the rest of the brochure and mailed to the company to obtain desired photo sets.
Customs agents sent this brochure to around 2,000 people whose names were obtained from Customs’ lists of persons from whom child pornography had been seized and from a list of individuals who stated preferences for particular types of child pornography in a Postal Inspection Service survey, that had been conducted under the false name of “Crusaders for Sexual Freedom.” Because the name “Harold Cel-line” could be found on both of these lists, Celline was sent a copy of the brochure. About 215 replies to the brochure were received, including one from “Harrald Cel-line.” Celline’s reply consisted of the brochure’s order form containing his request for four sets of twelve photographs that were entitled: “Joe and His Uncle,” “School Girls and Boys,” “Chicken No. 11” and “Miniboys No. 7.” The order form requested that the materials be shipped to Harrald B. Celline at 306A South Oakland in Carbondale, Illinois. Enclosed with the order form was a check for $60, payable to Produit Outaouais, drawn on the account of David F. Duncan, Southern Illinois University, Department of Health Education. The memo portion of the check noted “For Harry Celline.”
In accordance with Operation Borderline’s standard procedures, the Canadian Customs Service forwarded Celline’s order to United States Customs in Chicago. Customs personnel in Chicago thereupon prepared Celline’s order from Customs’ stock of previously seized child pornography. Customs agents placed the 48 photographs Celline had ordered in an envelope and hand carried the envelope to Ottawa, Ontario, Canada. From there the envelope was sent from “Revenue Canada Customs/Excise” to a Special Customs Agent in St. Louis, Missouri. St. Louis based Special Customs Agent, Brett Braaten took the material from DHL’s St. Louis office on May 29, 1987. At about the same time, Customs in Chicago caused a form letter to be sent to Celline, purportedly from Pro-duit Outaouais, requesting the best day and time for delivery of Celline’s order. Celline replied that any day would be acceptable, that delivery should take place between 10:00 a.m. and 1:00 p.m., and that he would be out of town until June 18, 1987. On June 18, 1987, prior to delivering the material to Celline, Customs obtained a warrant to search Celline’s home.
On June 23, 1987, Agent Braaten delivered the requested child pornographic materials to Celline’s home address while disguised as a DHL delivery man. The defendant, David F. Duncan, answered the door when Braaten knocked on it, received the package, and signed a delivery receipt for it in the name of D.F. Duncan.
About ten minutes after the photo sets were delivered, Braaten and several other agents executed the search warrant at Duncan’s residence. The government agents seized 47 of the 48 originally delivered photographs, as well as dozens of other magazines and photographs. Among the confiscated child pornographic materials were: 163 pictures of boys under the age of 18 involved in sexually explicit conduct and 20 magazines containing males under 18 years old engaged in sexually explicit conduct. Seven of the magazines had on their covers the inscription “COQ,” and one of these magazines was entitled “Joyboy.” As noted previously, COQ materials were among those Customs offered in the Produit Outaouais brochure, likewise “Joyboy” was also one of the titles listed in this brochure. In addition, the agents seized an illustrated child pornography brochure and an accompanying order blank. The order blank had been signed “Dave Duncan” and reflected an order for five items that corresponded to the following descriptions in the brochure: (1) Twelve Photos — The Best Place for a Boy to Masturbate is Out in the Open; (2) A Group of Six Photos — Oral and Anal Sex Between Two Handsome Suntanned Sexual Maniacs; (3) Ten Photos — Papiet and a Friend — A Country Sex Duet with Stallion Cocks; (4) Papiet — Fifteen Photos — The Laughing Farm Boy Radiating Happiness and Health; (5) Andy — Five Photos — The City Boy Who Turned Punk Possesses Mystic Erotic Aura. The order blank was entitled “COQ International Photo Sets,” and listed a Holbaek, Denmark address.
At the time of the search, Duncan gave a statement to Agent Braaten after Duncan had been read his Miranda rights from a pre-printed form and had an opportunity to read a printed statement of his Miranda rights. Thereafter Duncan signed a written waiver of his Miranda rights. During questioning Duncan stated that the items delivered had been misrepresented, as he had thought the items would be “naturist” pictures rather than child pornography. Duncan also stated that he had previously used the name Harry Celline as a pen name in writing and that he used it in ordering materials because nudism is not acceptable in America. Duncan also admitted that Customs had previously seized items he had ordered. Duncan further admitted that he had received items from a company in Holbaek, Denmark in 1982.
II
Duncan challenges his conviction on the ground that the government’s activities constituted “outrageous governmental conduct” violative of due process. In United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2nd Cir.1980), the United States Court of Appeals for the Second Circuit held that “under Rule 12(b)(2) [of the Federal Rules of Criminal Procedure], this defense should normally be raised prior to trial, so that the trial court can conduct a hearing with respect to any disputed issues of fact.” We agree with the Second Circuit that an outrageous governmental conduct defense must be made the subject of a pre-trial motion under Rule 12(b)(2). Not only did Duncan fail to make the outrageous governmental conduct defense the subject of a pre-trial motion, but in fact he failed to raise it in the trial court. In United States v. Fuesting, 845 F.2d 664, 670 (7th Cir.1988); we noted the limited review that can be accorded an argument in a criminal case that is raised for the first time on appeal:
“[Fuesting’s] argument was raised for the first time on appeal, and while it is within our discretion to resolve such issues, our review is limited to the strict standards of the plain error doctrine of Fed.R.Crim.P. 52(b). Under that doctrine, only an error which would result in an ‘actual miscarriage of justice’ would support reversal of Fuesting’s conviction.”
(Citations omitted). Thus, Duncan’s failure to bring his alleged outrageous governmental conduct defense to the district court’s attention means that we review this question under the narrow strictures of the “plain error” doctrine.
We initially turn to the question of whether the government’s conduct could be considered “outrageous” under the law as currently developed. In United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989), we recently observed that:
“This court previously has noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. Bontkowski, 865 F.2d 129, 131 (7th Cir.1989). This doctrine stems from a statement in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1978), in which the Supreme Court noted that it might ‘some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’ Id. at 431-32, 93 S.Ct. at 1643; see also Bontkowski, 865 F.2d at 131; United States v. Valona, 834 F.2d 1334, 1343 (7th Cir.1987). Like the Supreme Court, this circuit also has left the possibility open, although we have never reversed a conviction on this ground. Valona, 834 F.2d at 1343 (quoting United States v. Swiatek, 819 F.2d 721, 725 (7th Cir.), cert. denied, [484] U.S. [903], 108 S.Ct. 245, 98 L.Ed.2d 203 (1987)).
Whether the Supreme Court itself ultimately will validate the doctrine of outrageous governmental conduct seems doubtful. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), a three justice plurality opined that ‘[t]he remedy of the criminal defendant with respect to the acts of governmental agents, which far from being resisted, are encouraged by him, lies solely in the defense of entrapment.’ Id. at 490, 96 S.Ct. at 1650; see also Bontkowski, 865 F.2d at 132; United States v. Williams, 858 F.2d 1218, 1225 (7th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989).”
Not only have we questioned the validity of the doctrine of outrageous governmental conduct, we have also observed that “due process grants wide leeway to law enforcement agencies in their investigation of the crime. Assuming that no independent constitutional right has been violated, governmental misconduct must be truly outrageous before due process will prevent conviction of the defendant.” United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983). As we also observed in Kaminski:
“ ‘In seeking to detect and punish crime, law enforcement agencies frequently are required to resort to tactics which might be highly offensive in other contexts. Granting that a person is predisposed to commit an offense, we think that it may safely be said that investigative officers and agents may go a long way in concert with the individual in question without being deemed to have acted so outrageously as to violate due process ... ’”
Kaminski, 703 F.2d at 1009 (quoting United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976)).
We have previously validated law enforcement undercover operations like that involved in this case. In United States v. Thoma, 726 F.2d 1191 (7th Cir.1984), we were also confronted with a child pornography sting operation. We noted that:
“Although there is no set formula for determining when Government conduct transgresses the boundaries of permissible investigative techniques, there are some recognized factors. When the Government supplies contraband, or becomes intimately involved in its production, then we will examine its conduct closely.... Similarly, we will closely examine those cases in which the Government misconduct injures third parties in some way.”
(Citations omitted). In our case, as in Tho-ma, there was no injury to innocent third parties as the government merely sent Duncan copies of previously seized child pornography. Although the government did provide contraband to Duncan, this does not in and of itself render the government’s conduct outrageous. In United States v. Valona, 834 F.2d 1334, 1344-45 (7th Cir.1987), we approved governmental action supplying contraband to a defendant during the course of an undercover drug investigation:
“It is clear that the government may supply drugs to a suspect in a drug investigation. Hampton v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (Powell, J., concurring) (defendant supplied with actual contraband convicted of selling). This is especially true where the government supplied only a small amount. United States v. Buishas, 791 F.2d 1310, 1314 (7th Cir.1986) (supplied with sixty-nine gram sample of marijuana, which was not the contraband the defendant was convicted of conspiring to sell).... [I]n such cases we ... consider the practical necessity of this type of police work. Large scale drug stings will likely not succeed without the provision of small samples, a typical preliminary stage in such drug trafficking.”
As in Valona, effective enforcement of laws involving the “consensual” crime of receiving child pornography shipped in foreign or interstate commerce will generally require, as a practical necessity, the controlled delivery of items of contraband to individuals, like Duncan, who are predisposed to commit this crime.
A decision that the Customs Service’s conduct was not “outrageous” is directly supported by the Third Circuit’s decision in United States v. Driscoll, 852 F.2d 84, 85-87 (3rd Cir.1988). In Driscoll, as in this case, government authorities, operating under the guise of a foreign child pornography business, sent the defendant a brochure offering to sell child pornography magazines. The defendant “ordered five magazines so explicitly described in the brochure as to leave no doubt that they contained child pornography.” 852 F.2d at 85. As in our case, government agents made a controlled delivery, executed a warrant and “found materials containing child pornography, including the issue of [the magazine] that had been ordered pursuant to their solicitation.” Id. The Third Circuit concluded that:
“In this case, the Postal Service agents merely offered to sell and then sold Dris-coll a magazine. Their conduct thus approximates the conduct that survived due process challenges in United States v. Jannotti, 673 F.2d 578 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982), and United States v. Thoma, 726 F.2d 1191 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). In Thoma, a case also involving use of the mails to transport pornography, the Postal Service’s undercover operation made numerous attempts to solicit defendant’s participation in its fictitious child pornography organization before the defendant responded to the solicitations. In rejecting defendant’s due process argument, the court held that the undercover organization ‘was nothing more than an undercover operation of an inherently clandestine activity and did not constitute Government misconduct, much less violate defendant’s right to due process.’ Id. at 1199. In Jannotti, a case involving the ABSCAM investigations designed to locate public officials susceptible to bribery, the agents handed over substantial amounts of cash to buy influence; we distinguished [United States v. Twigg, 588 F.2d 373 (3d Cir.1978)] on the ground that in Twigg the government set up, encouraged, and provided technical expertise to defendant whereas in Jan-notti, it ‘merely created the fiction that it sought to buy the commodity — influence — that the defendants proclaimed they already possessed.’ 673 F.2d at 608. In view of the precedent, we conclude that the government’s conduct here simply does not approach the level of outrageousness necessary to raise a valid due process defense.”
Driscoll, 852 F.2d at 86. In light of our own precedent on the question of “outrageous governmental conduct” and the decision of the Third Circuit in Driscoll, we conclude that the district court did not commit “plain error” in refusing to recognize an “outrageous governmental conduct” defense.
Ill
Duncan also challenges his conviction on the ground of insufficiency of the evidence. Duncan does not contest the fact that he received child pornography that had been shipped in interstate commerce. Rather, he asserts that he lacked prior knowledge of the fact that the photographs he had ordered were to depict children engaged in sexually explicit conduct.
“In evaluating [Duncan’s] sufficiency of the evidence challenge, we note that he bears a heavy burden. Initially, we ‘review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.’ ” United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). “The test is whether after viewing the evidence in the light most favorable to the government, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).
“ 'As we emphasized in United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir.1985): ‘[T]his court is not the trier of fact and we are required to uphold the [trier of fact’s] verdict where “any rational trier of fact” could have found the defendant guilty of the crime. ’ ... ‘Only when the record contains no evidence, regardless of how it is weighed, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict. ’ Nesbitt, 852 F.2d at 1509 (quoting United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987), cert. denied, [486 U.S. 1009], 108 S.Ct. 1738 [100 L.Ed.2d 202] (1988) which quoted in turn, United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985)) (emphasis added).”
United States v. Vega, 860 F.2d 779, 793 (7th Cir.1988). A trier of fact may properly consider both direct and circumstantial evidence in reaching its determination. As we observed in United States v. Grier, 866 F.2d 908, 923 (7th Cir.1989):
“ ‘Not only is the use of circumstantial evidence permissible, but “circumstantial evidence ‘may be the sole support for a conviction.’ ” ’ United States v. Nesbitt, 852 F.2d at 1510 (quoting United States v. Williams, 798 F.2d 1024, 1042 (7th Cir.1986) (dissenting opinion) which quoted, in turn, United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985)). ‘ “Circumstantial evidence is not less probative than direct evidence, and, in some cases is even more reliable.” ’ Williams, 798 F.2d at 1039 (dissenting opinion) (quoting United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974)). See also Wisconsin Jury Instructions-Criminal, No. 170 (‘[Circumstantial evidence may be stronger and more convincing that (sic) direct evidence’). ‘[T]he evidence “ ‘need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.’ ” United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986) (quoting United States v. Thornley, 707 F.2d 622 (1st Cir.1983)).’ [United States v.] Koenig, 856 F.2d [843] at 854 [(7th Cir.1988)].”
In weighing both direct and circumstantial evidence
“[Triers of fact] are allowed to draw upon their own experience in life as well as their common sense in reaching their verdict. See [United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986)]. While ‘[c]ommon sense is no substitute for evidence, ... common sense should be used to evaluate what reasonably may be inferred from circumstantial evidence.’ Id.”
Nesbitt, 852 F.2d at 1511.
The record is replete with evidence that provided a basis for a reasonable jury to conclude beyond a reasonable doubt that Duncan knowingly ordered and subsequently received material depicting children engaged in sexually explicit conduct. The brochure the Customs Service sent to Duncan plainly and unambiguously advertised for sale photographs of “boys and girls in sex action” and “[yjoung boys in sex action fun.” In addition, the brochure noted the “worldwide ban and intense enforcement” and the “underground” nature of the dissemination of this material, facts that placed Duncan on notice that the materials ordered were not innocent. Moreover, titles that in the context of the entire brochure scream “child pornography,” such as “School Girls and Boys,” “Lolita,” “Loving Children,” and “Joyboy,” were sufficiently clear and sufficiently explicit to make anyone, let alone Duncan, a collector of this material and a college professor assumed to be above average in intelligence, aware of the fact that child pornography was being offered. Furthermore, Duncan’s own personal order, in the name of Harrald Celline, was for photo sets of “School Girls and Boys,” “Joe and His Uncle,” “Miniboys No. 7” and “Chicken No. 11.” Certainly, at least some of these titles would have placed Duncan on notice that he was ordering child pornography. In addition, to this evidence, the jury was made aware of the fact that Customs’ search of Duncan’s residence resulted in the seizure of many other items depicting children engaged in sexually explicit behavior. These items included materials from COQ, formerly a large scale purveyor of homosexually oriented child pornography. COQ items were some of those offered in the brochure Customs sent to Duncan, and Duncan was found to have possessed a copy of “Joyboy,” one of the magazines Customs had offered in its brochure. In addition, Customs had previously seized an advertisement from COQ that had been sent to Duncan in the name of “Harold Celline.” Furthermore, Customs also seized a brochure and accompanying order blank for COQ child pornography material that was illustrated and described the contents of the material with sexually explicit language. Duncan had already filled out in his own name the order blank requesting five items of the COQ material. Finally, evidence was received that Duncan had completed a “Crusaders for Sexual Freedom” survey in the name of “Harold Celline,” that had been returned to the Postal Inspection Service and that stated that his highest preference was for “preteen sex-homosexual” material.
The jury was confronted with evidence of a brochure that reflected an offer of child pornography and Duncan’s order of photo sets with titles that, in the context of the brochure, clearly denoted child pornography. The jury also received evidence of Duncan’s possession of vast amounts of child pornography in his residence, including an illustrated COQ child pornography brochure that described the involved material in sexually explicit language. The above evidence, together with Duncan’s possession of a completed order blank for the COQ material and Duncan’s statement of preference for pre-teen, homosexual material in the “Crusaders for Sexual Freedom” survey, could very logically lead a reasonable jury to conclude that Duncan knowingly received depictions of minors engaged in sexually explicit conduct that had been transported in interstate and foreign commerce.
We agree that the trial court’s failure to consider an outrageous governmental conduct defense was not plain error and also conclude that there was sufficient evidence to support Duncan’s conviction. Thus, the judgment of conviction is
Affirmed.
. Operation Borderline is the same undercover operation involved in our recent decision in United States v. Kalinowski, 890 F.2d 878 (7th Cir.1989).
. The numbers following the titles refer to a specific issue in a series of child pornography magazines.
. The United States Postal Inspection Service’s "Crusaders for Sexual Freedom” survey involved a questionnaire that was mailed to individuals whose names had appeared on previous Customs Service pornography seizure lists. Harold Celline had received a survey because an advertisement from a Danish child pornography enterprise, COQ, addressed to Celline had been the subject of a Customs seizure. The questionnaire asked respondents to state their preferred sexual materials, and Celline responded that his highest preference was for pre-teen sex-homosexual material. The Postal Inspection Service provided the information concerning Celline’s response to the Customs Service sometime during the early part of 1986.
. After receiving the envelope from DHL, Agent Braaten took the photographs from the envelope, inventoried them and returned them to the envelope.
. The Government presented testimony from Dr. James Anthony Monteleone, M.D., Professor of Pediatrics at St. Louis University Medical School, who is board certified in pediatric endocrinology. Based upon his medical opinion and training, he testified that the pictures the Government had delivered to Duncan depicted children under the age of 18. He also testified that the other items of child pornography that were seized from Duncan and received in evidence at trial depicted children under the age of 18.
. As noted in the previous paragraph, Holbaek, Denmark, according to the order blank Duncan had filled out, was the location where orders for COQ International materials were to be sent.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
U.S. HEALTHCARE, INC., United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc., Appellants in 88-1180, v. BLUE CROSS OF GREATER PHILADELPHIA, Pennsylvania Blue Shield and David Markson. Appeal of BLUE CROSS OF GREATER PHILADELPHIA (“BLUE CROSS”) and Pennsylvania Blue Shield (“Blue Shield”), in No. 88-1205.
Nos. 88-1180, 88-1205.
United States Court of Appeals, Third Circuit.
Argued Oct. 18, 1988.
Decided March 9, 1990.
Rehearing and Rehearing In Banc Denied April 4, 1990.
David F. Simon (argued), David I. Book-span, Gary L. Leshko, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellants-cross-appellees, U.S. Healthcare, Inc., U.S. Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc.
Jay H. Calvert, Jr. (argued), John H. Lewis, Jr., Ronald B. Hauben, Morgan, Lewis & Bockius, Philadelphia, Pa., for ap-pellees-cross-appellants, Blue Cross of Greater Philadelphia and David S. Mark-son.
Henry Kolowrat, Dechert, Price & Rhoads, Philadelphia, Pa., James A. Young (argued), Timothy I. McCann, Sprecher, Felix, Visco, Hutchison & Young, Philadelphia, Pa., for appellee-cross-appellant, Pennsylvania Blue Shield.
Before STAPLETON, SCIRICA and COWEN, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
U.S. Healthcare, Inc. and its subsidiaries, United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc. (collectively, “U.S. Healthcare”), appeal from the district court’s post-trial entry of judgment in favor of Blue Cross of Philadelphia, its president David Markson, and Pennsylvania Blue Shield (collectively, “Blue Cross/Blue Shield”), directed under Fed.R. Civ.P. 50(b) on U.S. Healthcare’s federal and pendent state law claims alleging violations of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982), commercial disparagement, defamation and tortious interference with contractual relations. Blue Cross/Blue Shield, in turn, appeals from the entry of judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims alleging the same causes of action brought by U.S. Healthcare. Additionally, Blue Cross/Blue Shield appeals the pre-trial dismissal of the abuse of process counts in its counterclaims. We will reverse the grant of the Rule 50(b) motions, the judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims and the dismissal of the counts on abuse of process.
I.
FACTS AND PROCEDURAL HISTORY
These cross appeals arise from a comparative advertising war between giants of the health care industry in the Delaware Valley — U.S. Healthcare on the one side and Blue Cross/Blue Shield on the other. The thrust of these claims is that each side asserts the other’s advertising misrepresented both parties’ products.
For over fifty years, Blue Cross/Blue Shield operated as the largest health insurer in Southeastern Pennsylvania by offering “traditional” medical insurance coverage. Traditional insurance protects the subscriber from “major” medical expenses, with the insurer paying a negotiated amount based upon the services rendered, and the subscriber generally paying a deductible or some other amount. The subscriber has freedom in choosing hospitals and health care providers (i.e., doctors).
In the early 1970’s, U.S. Healthcare began providing an alternative to traditional insurance in the form of a health maintenance organization, generically known as an “HMO.” An HMO acts as both an insurer and a provider of specified services that are more comprehensive than those offered by traditional insurance. Generally, HMO subscribers choose a primary health care provider from the HMO network who coordinates their health care services and determines when hospital admission or treatment from a specialist is required. Usually, subscribers are not covered for services obtained without this permission or from providers outside this network. By 1986, U.S. Healthcare was the largest HMO in the area, claiming almost 600,000 members. During the same period, Blue Cross/Blue Shield experienced a loss in enrollment of over 1% per year, with a large number of those subscribers choosing HMO coverage over traditional insurance, and a majority of those defectors choosing a U.S. Healthcare company.
Blue Cross/Blue Shield considered a number of strategies to regain its market position, including the acquisition of its own HMO. In late 1985, in an admitted attempt to compete with HMO, Blue Cross/Blue Shield introduced a new product that it called “Personal Choice,” known generically as a preferred provider organization or “PPO.” PPO insurance provides subscribers with a “network” of health care providers and hospitals, and generally “covers” subscribers only for services obtained from the network providers and administered at the network hospitals. Subscribers must obtain permission to receive treatment from providers outside the network, and in such instances receive at most only partial coverage.
Thereafter, Blue Cross/Blue Shield consulted with two separate advertising agencies before arriving at a marketing strategy for its new product. In July 1986, Blue Cross/Blue Shield launched what it termed a deliberately “aggressive and provocative” comparative advertising campaign calculated “to introduce and increase the attractiveness of its products” — in particular, Personal Choice — at the expense of HMO products. Blue Cross/Blue Shield’s campaign, which included direct mailings, as well as television, radio and print advertisements, ran for about six months at a total cost of approximately $2,175 million. According to a Blue Cross memorandum that purported to reflect the directions of Markson, the campaign was designed specifically to “reduce the attractiveness of [HMO].”
The Blue Cross/Blue Shield advertising campaign consisted of eight different advertisements for the print media, seven different advertisements for television, three different advertisements for radio, and a direct mailing including a folding brochure. The eight print advertisements compare the features of HMO and Personal Choice. Seven of the eight represent that with HMO, the subscriber selects a “primary care physician” who, in turn, must give permission before HMO will provide coverage for examination by a specialist. (The eighth print advertisement simply states that with Personal Choice, the subscriber may be examined by a specialist whenever he chooses, without “permission.”) After describing HMO’s referral procedure, however, three of the eight print advertisements — as well as the brochure — say the following:
You should also know that through a series of financial incentives, HMO encourages this doctor to handle as many patients as possible without referring to a specialist. When an HMO doctor does make a specialist referral, it could take money directly out of his pocket. Make too many referrals, and he could find himself in trouble with HMO.
One of the print advertisements and the brochure also feature a senior citizen under the banner heading “Your money or your life,” juxtaposed with Blue Cross/Blue Shield’s description of “The high cost of HMO Medicare.”
Of the seven television advertisements run by Blue Cross/Blue Shield, four are innocuous, mentioning HMO only in the closing slogan common to all seven of the ads: “Personal Choice. Better than HMO. So good, it’s Blue Cross and Blue Shield.” The fifth features an indignant every man, who simply states “I resent having to ask my HMO doctor for permission to see a specialist,” before a spokesperson extols the benefits of Personal Choice without reference to HMO until, again, the closing slogan. The sixth features a cab driver who says, “I don’t like those HMO health plans. You get one doctor, no choice of hospitals,” before a shopper tells him about the virtues of Personal Choice — again, without reference to HMO until the closing slogan. The seventh television advertisement used by Blue Cross/Blue Shield, while following the same general format, seems to us a dramatic departure from the others in that it appears consciously designed to play upon the fears of the consuming public. The commercial features a grief-stricken woman who says, “The hospital my HMO sent me to just wasn’t enough. It’s my fault.” The implication of the advertisement is that some tragedy has befallen the woman because of her choice of health care.
The three radio advertisements of Blue Cross/Blue Shield compare the features of HMO and Personal Choice. All represent that HMO limits choice of hospitals and physicians and requires plan permission to see a specialist, but that Personal Choice provides unlimited choice of network hospitals and physicians and affords unrestricted access to specialists.
U.S. Healthcare responded immediately to Blue Cross/Blue Shield’s promotional campaign. Within a week, U.S. Healthcare filed suit in Philadelphia County Court of Common Pleas alleging commercial disparagement, defamation and tortious interference with contractual relations. U.S. Healthcare also issued concurrent press releases describing the basis of the litigation. In addition, the company embarked upon its own aggressive, comparative advertising blitz.
The responsive advertising campaign, which began sometime after the Blue Cross/Blue Shield campaign and ran until late February 1987, cost $1,255 million. U.S. Healthcare’s campaign consisted of five different advertisements for the print media, four different television advertisements, and two different radio advertisements. Of these, two advertisements were adapted for all three media as a response to Blue Cross/Blue Shield’s most serious criticisms.
The first of these multi-media advertisements — apparently attempting to counteract the Blue Cross/Blue Shield message that HMO doctors sacrificed quality of care for higher profit — emphasizes the length to which U.S. Healthcare will go to provide its subscribers with the best treatment available. It features an HMO doctor with a little girl who, it quickly becomes apparent, is both very healthy and a former HMO patient. While the exact text varies according to the medium, all versions feature the HMO doctor saying that this girl, who required a unique wrist operation, was sent to Baltimore to be operated on by “the best [surgeon] in the country” rather than one of HMO’s fine surgeons.
The second multi-media advertisement addresses HMO’s practice of allowing examination by specialists only when the subscriber is referred by his primary care physician. The advertisement features just such a physician, explaining that the purpose of a primary care physician is to help the subscriber decide what type of specialist should be consulted, so that the subscriber can be sure of receiving the treatment he needs. Neither multi-media advertisement makes any reference to Blue Cross/Blue Shield.
U.S. Healthcare’s responsive campaign did not just highlight the positive characteristics in its own product, but also featured “anti-Blue Cross” advertisements. Of the three remaining print advertisements, one simply shows a comparative list of the features available under HMO and Personal Choice, with a banner heading that reads “It’s your choice.” The other two explain that under Personal Choice, the number of hospitals available to the subscriber is limited and, moreover, that many Personal Choice doctors do not have admitting privileges at even those few. One of these advertisements ran under a banner heading of “When it Comes to Being Admitted to a Hospital, There’s Something Personal Choice May Not Be Willing to Admit”; the other ran under a banner heading of “If You Really Look Into ‘Personal Choice,’ You Might Have a Better Name For It.”
One of the two remaining television advertisements shows a person flipping through the Hospitals and Physicians Directory of Personal Choice, pointing out the “gray area” of physicians without admitting privileges — essentially making the same point as the two print advertisements. The final television commercial was U.S. Healthcare’s own attempt to play upon the fears of the consuming public. As solemn music plays, the narrator lists the shortcomings of Personal Choice while the camera pans from a Personal Choice brochure resting on the pillow of a hospital bed to distraught family members standing at bedside. The advertisement closes with a pair of hands pulling a sheet over the Personal Choice brochure.
Thereafter, U.S. Healthcare re-filed its state claims in federal court in the Eastern District of Pennsylvania, adding its § 43(a) Lanham Act claim. Federal subject matter jurisdiction was premised on the assertion of a federal question, 28 U.S.C. § 1331 (1982), and on claims of unfair competition, 28 U.S.C. § 1338(a) (1982). Pendant jurisdiction was exercised over the state law claims. Blue Cross/Blue Shield counterclaimed on the same theories of liability, while also alleging abuse of process and malicious use of process. Before trial, the district court dismissed the abuse of process and malicious use of process counts in Blue Cross/Blue Shield’s counterclaims.
After a fourteen-day trial, followed by eight days of deliberations, the jury announced it was deadlocked on all issues of liability and damages. The district court declared a mistrial and then, before excusing the jurors, invited them to share their thoughts on the case for the benefit of the lawyers. It became apparent that, with regard to the counterclaims, the jurors were not far from unanimity. Consequently, the district court sent the jury back to deliberate whether Blue Cross/Blue Shield could recover damages on its counterclaims. Only then did the jury return a verdict against Blue Cross/Blue Shield on its counterclaims. The district court thereafter entered judgment for U.S. Healthcare on the counterclaims and scheduled a new trial on U.S. Healthcare’s own claims.
The case was never retried. Instead, Blue Cross/Blue Shield filed a motion under Fed.R.Civ.P. 50(b) requesting the court to direct entry of judgment in its favor, on the grounds that the advertisements were entitled to heightened constitutional protection under the First Amendment, and that U.S. Healthcare had not met the applicable standard of proof, set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), et seq. The district court granted the motion. U.S. Healthcare, Inc. v. Blue Cross, No. 86-6452, 1988 WL 21830 (E.D.Pa. Mar. 7, 1988). The court held that because the objects of the advertisements are “public figures,” and because the matters in the advertisements are “community health issues of public concern,” heightened constitutional protections attach to this speech. The court reasoned that the First Amendment limited the power of the state and of Congress to award damages resulting from the allegedly false and misleading advertisements. Accordingly, the district court held that in order to prevail on their respective claims of Lanham Act violation, commercial disparagement, defamation and tor-tious interference with contract, both parties were required to prove each claim by clear and convincing evidence: (1) that the other side published the advertisements with knowledge or with reckless disregard of their falsity, and (2) that the advertisements were false. Applying this standard of proof, the court concluded that “[ajlthough the jury could reasonably have concluded that both sides had proven falsity and actual malice by a preponderance of the evidence, neither side has presented clear and convincing evidence [of this].”
This appeal followed.
II.
THE ACTIONABLE CLAIMS AND COUNTERCLAIMS UNDER APPLICABLE SUBSTANTIVE FEDERAL AND STATE LAW
We note initially that federal law governs the substantive issues of the parties’ Lanham Act claims, while Pennsylvania law governs the commercial disparagement, defamation and tortious interference with contract claims. Although the district court granted the Rule 50(b) motions on constitutional grounds, we must first determine whether the statements are actionable under the substantive law governing the case before addressing whether the First Amendment prohibits the imposition of liability, since a determination of the former may obviate the need to examine the latter. See McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir.1985); Avins v. White, 627 F.2d 637, 642 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980). Furthermore, Blue Cross/Blue Shield argues that the “challenged advertisements are not actionable regardless of the standard of proof.” Therefore, we turn to the federal and state substantive law governing the parties’ claims to determine whether there might exist a genuine issue of material fact.
A. Applicable Federal and Pennsylvania Common Law.
As a threshold matter, we note that the burden of proof for the applicable substantive law is a preponderance of the evidence. On appeal, the parties contest the burden of proof on the Lanham Act claim only. Unless New York Times applies, the burden of proof here is a preponderance of the evidence.
1. Section 43(a) of The Lanham Act.
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988), which was recently amended, creates a cause of action for any false description or representation of a product. This proscription extends to misleading descriptions or representations. Id.; see Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 11 (E.D.Pa.1974); see also McNeilab, Inc. v. Bristol-Myers Co., 656 F.Supp. 88, 90 (E.D.Pa.1986). “While it has been stated that a failure to disclose facts is not actionable under § 43(a), it is equally true that a statement is actionable under § 43(a) if it is affirmatively misleading, partially incorrect, or untrue as a result of failure to disclose a material fact.” 2 J. McCarthy, Trademarks and Unfair Competition § 27:7B (2d ed. 1984).
The pre-amendment version, which controlled when the district court considered the matter, applied only to statements made by a defendant about its own products, not to statements about the plaintiffs products. Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 37 (2d Cir.1982); Bernard Food Indus., Inc. v. Dietene Co., 415 F.2d 1279, 1283 (7th Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 911, 25 L.Ed.2d 92 (1970). As amended, however, § 43(a) encompasses statements made by a defendant about “his or her or another person’s” products. 15 U.S.C. 1125(a) (emphasis added).
When analyzing a challenged advertisement, the court first determines what message is conveyed. Plough, Inc. v. Johnson & Johnson Baby Prods. Co., 532 F.Supp. 714, 717 (D.Del.1982); McCarthy § 27:7B. Sometimes this determination may be made from the advertisement on its face. Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1110 (D.N.J.1987); e.g., Ames Publishing, 372 F.Supp. at 12. Nonetheless, “[cjontext can often be important in discerning the message conveyed.” Plough, 532 F.Supp. at 717.
After determining the message conveyed, the court must decide whether it is false or misleading. Stiffel, 658 F.Supp. at 1110; McCarthy § 27:7B; see Plough, 532 F.Supp. at 717. Mere puffing, advertising “ ‘that is not deceptive for no one would rely on its exaggerated claims,’ ” is not actionable under § 43(a). Toro Co. v. Tex-tron, Inc., 499 F.Supp. 241, 253 n. 23 (D.Del.1980) (quoting 1 R. Callmann, Unfair Competition, Trademarks and Monopolies § 19.2(b)(2) (3d ed. 1967 & 1979 Supp.)). If the advertisement is literally true, the plaintiff “must persuade the court that the persons ‘to whom the advertisement is addressed’ would find that the message received left a false impression about the product.” Id. at 251 (citation omitted); see Stiffel, 658 F.Supp. at 1110. Finally, establishing lack of substantiation of defendant’s claim is insufficient without also establishing falsity or deception. Toro, 499 F.Supp. at 253.
The plaintiff must also show that defendant’s misrepresentation is “ ‘material, in that it is likely to influence the purchasing decision.’ ” Id. at 251 (citation omitted); see McCarthy § 27:4D. However, “there is no requirement that the falsification occur wilfully and with intent to deceive.” Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648 (3d Cir.1958).
Next, § 43(a) requires that the defendant use the false or misleading description or representation “in commerce.” 15 U.S.C. § 1125(a); see SK & F, Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055, 1065 (3d Cir.1980). The commerce requirement has been broadly interpreted. McCarthy § 27:6C.
Finally, § 43(a) provides a remedy to one who “is or is likely to be damaged by [the false or misleading description or representation].” 15 U.S.C. § 1125(a). To' recover damages, a plaintiff must show that the “falsification [or misrepresentation] actually deceives a portion of the buying public.” Parkway Baking, 255 F.2d at 648; Walker-Davis Publications, Inc. v. Penton/IPC, Inc., 509 F.Supp. 430, 435 (E.D.Pa.1981) (citing Parkway Baking). “This does not place upon the plaintiff a burden of proving detailed individualization of loss of sales. Such proof goes to quantum of damages and not to the very right to recover.” Parkway Baking, 255 F.2d at 648.
Judge Poliak has summarized well this area of the law in the following test:
1) that the defendant has made false or misleading statements as to his own product [or another’s]; 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence purchasing decisions; 4) that the advertised goods travelled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc.
Max Daetwyler Corp. v. Input Graphics, Inc., 545 F.Supp. 165, 171 (E.D.Pa.1982) (citing American Home Prods. Corp. v. Johnson & Johnson, 577 F.2d 160, 165-66 (2d Cir.1978)).
2. Defamation.
Under Pennsylvania law, a defamatory statement is one that “ ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ” Birl v. Philadelphia Elec. Co., 402 Pa. 297, 303, 167 A.2d 472 (1960) (quoting Restatement of Torts § 559 (1938)); accord Thomas Merton Center v. Rockwell Int’l Corp., 497 Pa. 460, 464, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). It is for the court to determine, in the first instance, whether the statement of which the plaintiff complained is capable of a defamatory meaning; if the court decides that it is capable of a defamatory meaning, then it is for the jury to decide if the statement was so understood by the reader or listener. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899 (1971). To ascertain the meaning of an allegedly defamatory statement, the statement must be examined in context. Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399 (1987).
The test is the effect the [statement] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.
Corabi, 441 Pa. at 447, 273 A.2d 899 (citation omitted). Opinion that fails to imply underlying defamatory facts cannot support the cause of action. Baker, 516 Pa. at 297, 532 A.2d 399.
In an action for defamation, the plaintiff has the burden of proving 1) the defamatory character of the communication; 2) its publication by the defendant; 3) its application to the plaintiff; 4) an understanding by the reader or listener of its defamatory meaning; and 5) an understanding by the reader or listener of an intent by the defendant that the statement refer to the plaintiff. 42 Pa. Cons. Stat. § 8343(a)(l)-(5) (1988). Additionally, in order to recover damages, the plaintiff must demonstrate that the statement results from fault, amounting at least to negligence, on the part of the defendant. Geyer v. Steinbronn, 351 Pa.Super. 536, 554-55, 506 A.2d 901 (1986); Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 186, 484 A.2d 72 (1984); 42 Pa. Cons. Stat. § 8344 (1988). Finally, the plaintiff has the burden of proving any special harm resulting from the statement. 42 Pa. Cons. Stat. § 8343(a)(6) (1988); see Restatement of Torts § 575 comment b (defining special harm).
The defendant, in turn, can defend against a defamation action by proving the truth of the statement, that the subject matter of the statement was of public concern, or that the occasion on which the statement was made or published was of privileged character. Spain v. Vicente, 315 Pa.Super. 135, 140, 461 A.2d 833 (1983); 42 Pa. Cons. Stat. § 8343(b) (1988); cf. Corabi, 441 Pa. at 450 n. 6, 273 A.2d 899. When the last of these defenses is raised, the burden shifts to the plaintiff to show abuse of the conditionally privileged occasion. Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 275, 285 A.2d 166 (1971); Rutt, 335 Pa.Super. at 186-87, 484 A.2d 72; 42 Pa. Cons. Stat. § 8343(a)(7) (1988).
3. Commercial Disparagement.
A commercially disparaging statement — in contrast to a defamatory statement — is one “which is intended by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another’s property in land, chattels or intangible things, or upon their quality,... if the matter is so understood by its recipient.” Menefee v. Columbia Broadcasting Sys., Inc., 458 Pa. 46, 54, 329 A.2d 216 (1974) (quoting Restatement of Torts § 629 (1938)). In order to maintain an action for disparagement, the plaintiff must prove 1) that the disparaging statement of fact is untrue or that the disparaging statement of opinion is incorrect; 2) that no privilege attaches to the statement; and 3) that the plaintiff suffered a direct pecuniary loss as the result of the disparagement. See Menefee, 458 Pa. at 53, 329 A.2d 216 (quoting Restatement of Torts introductory note to Chapter 28).
The distinction between actions for defamation and disparagement turns on the harm towards which each is directed. An action for commercial disparagement is meant to compensate a vendor for pecuniary loss suffered because statements attacking the quality of his goods have reduced their marketability, while defamation is meant protect an entity’s interest in character and reputation. In Menefee, the Pennsylvania Supreme Court made the following observation:
One of the most important purposes for which liability for the publication of matter derogatory to another’s personal reputation is imposed is to enable the person defamed to force his accuser into open court so that the accusation, if untrue, may be branded as false by the verdict of a jury. The action for disparagement has no such purpose and cannot be used merely to vindicate one’s title to or the quality of one’s possessions....
Id. (quoting Restatement of Torts introductory note to Chapter 28).
Given the similar elements of the two torts, deciding which cause of action lies in a given situation can be difficult. The Court of Appeals for the Eighth Circuit gave the following time-honored explanation of when impugnation of the quality of goods crosses the line from disparagement of products to defamation of vendors:
[Wjhere the publication on its face is directed against the goods or product of a corporate vendor or manufacturer, it will not be held libelous per se as to the corporation, unless by fair construction and without the aid of extrinsic evidence it imputes to the corporation fraud, deceit, dishonesty, or reprehensible conduct in its business in relation to said goods or product.
National Ref. Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763, 771 (8th Cir.), cert. denied, 275 U.S. 570, 48 S.Ct. 157, 72 L.Ed. 431 (1927).
An examination of state court decisions indicates that Pennsylvania law tracks the National Refining distinction. See, e.g., Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 319, 182 A.2d 751 (1962) (defamation action lay when competitor’s advertisement accused plaintiff of using unnecessary haste and unskilled workmanship in development of customers’ film, resulting in its ruin, and implied plaintiff was dishonest in its business practice by inflating prices); Will v. Press Publishing Co., 309 Pa. 539, 544, 164 A. 621 (1932) (defamation action lay for accusation that plaintiff did not pay accounts of his business, as words implied dishonesty); Pfeifly v. Henry, 269 Pa. 533, 535, 112 A. 768 (1921) (defamation action lay for statement that plaintiff miller dishonestly weighed flour he sold); see also Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 271 (3d Cir.1980) (news report that plaintiff corporation deceived customers as to both price and quality of its product capable of defamatory meaning under Pennsylvania law).
4. Tortious Interference with Contract
The Restatement of Torts described this tort fifty years ago: “[O]ne who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.” Restatement of Torts § 766 (1939). Pennsylvania has adopted this prescription while recognizing two distinct branches of the tort: one concerning existing contractual rights, and another regarding prospective contractual relations.
Regarding existing contractual rights, the Pennsylvania Supreme Court has adopted the test set forth in the Restatement (Second) of Torts:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person’s failure to perform the contract.
Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 431, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979); accord Daniel Adams Assocs., Inc. v. Rimbach Publishing, Inc., 360 Pa.Super. 72, 78, 519 A.2d 997 appeal denied, 517 Pa. 599, 535 A.2d 1057 (1987). Thus, as a threshold matter, a contract right must be established. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 412 A.2d 466 (1979). In determining the propriety of the actor’s conduct, the court is “guided” by the following factors from the Restatement (Second) of Torts:
(a) The nature of the actor’s conduct,
(b) The actor’s motive,
(c) The interests of the other with which the actor’s conduct interferes,
(d) The interests sought to be advanced by the actor,
(e) The proximity or remoteness of the actor’s conduct to the interference and
(f) The relations between the parties.
Adler, Barish, 482 Pa. at 433, 393 A.2d 1175.
With respect to prospective contractual relations, the following elements must be demonstrated:
(1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant’s conduct.
Thompson Coal Co., 488 Pa. at 208, 412 A.2d 466; accord Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146, 155, 554 A.2d 989 (1989). The Pennsylvania Supreme Court has defined “prospective contractual relation” as “something less than a contractual right, something more than a mere hope.” Thompson Coal Co., 488 Pa. at 209, 412 A.2d 466. In short, it is “a reasonable probability” that contractual relations will be realized. Id. (citing Glenn v. Point Park College, 441 Pa. 474, 480, 272 A.2d 895 (1971)). Such an expectation may arise from an unenforceable express agreement or an offer. Glenn, 441 Pa. at 481 n. 6, 272 A.2d 895. The privilege determination “is not susceptible of precise definition” but is informed by the “ ‘rules of the game’ ” and “ ‘the area of socially acceptable conduct which the law regards as privileged.’ ” Id. at 482, 272 A.2d 895 (citation omitted).
B. The Actionable Construction of the Advertisements
From the record before us, both U.S. Healthcare and Blue Cross/Blue Shield have taken a broad approach to this litigation, each complaining about all of the advertisements in the other’s comparative campaign. Not all of the advertisements are actionable under all of the theories alleged. Therefore, we make the following rulings on which advertisements could be found actionable by a jury under the standards we have outlined.
First, we consider as a group three of Blue Cross/Blue Shield’s television advertisements, which appear to be mere identification pieces containing no substantive information. They feature actors stating either their trust in Blue Cross/Blue Shield, or their preference for Personal Choice over HMO. Additionally, they all feature the slogan “Better than HMO. So good, it’s Blue Cross and Blue Shield.” This strikes us as the most innocuous kind of “puffing,” common to advertising and presenting no danger of misleading the consuming public. Consequently, we find
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_r_stid
|
31
|
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.
Robert A. FELMEISTER, Hanan M. Isaacs and Felmeister & Isaacs, a partnership, Appellants, v. OFFICE OF ATTORNEY ETHICS, A DIVISION OF THE NEW JERSEY ADMINISTRATIVE OFFICE OF THE COURTS; Robert N. Wilentz; Robert L. Clifford; Alan B. Handler; Daniel J. O’Hern; Stewart G. Pollock; Marie A. Garibaldi; Gary S. Stein, in their capacity as Justices of the Supreme Court of New Jersey; David E. Johnson, Jr., in his capacity as Director of the Office of Attorney Ethics; Robert D. Lipscher, in his capacity as Director of the Administrative Office of the Courts.
No. 87-5524.
United States Court of Appeals, Third Circuit.
Argued Jan. 12, 1988.
Decided Aug. 31, 1988.
David B. Rubin (argued), Rubin, Rubin & Malgran, Piscataway, N.J., for appellants.
W. Cary Edwards, Atty. Gen. of N.J., Andrea M. Silkowitz, Asst. Atty. Gen., Susan L. Reisner, Deputy Atty. Gen. (argued), Newark, N.J., for appellees.
Before HIGGINBOTHAM and BECKER, Circuit Judges, and SHAPIRO, District Judge.
Honorable Norma L. Shapiro, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal from the district court’s dismissal on grounds of ripeness and Bur-ford abstention of plaintiffs’ complaint seeking a declaration that the New Jersey Supreme Court’s revised attorney advertising regulations violate the first and fourteenth amendments to the constitution. The challenged disciplinary rule provides, inter alia, that “[a]ll advertisements shall be predominantly informational”; that “[n]o drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised advertising”; and that “[n]o advertisement shall rely in any way on techniques to obtain attention that depend upon absurdity and that demonstrate a clear and intentional lack of relevance to the selection of counsel.” R.P.C. 7.2(a).
Plaintiffs are attorneys Robert A. Fel-meister, Hanan M. Isaacs and their law partnership, Felmeister & Isaacs. They have alleged in their (amended) complaint that the rule: (1) violates the protections afforded commercial speech under the first and fourteenth amendments; (2) imposes an unconstitutionally vague standard to determine whether advertisements are sanctioned under the rule in violation of the Due Process Clause of the fourteenth amendment; and (3) creates an unlawful prior restraint by requiring prepublication review of advertisements by the Supreme Court of New Jersey Committee on Attorney Advertising.
We conclude that the district court abused its discretion in abstaining under Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943). We do not believe that the regulation of attorney advertising concerns an area that is particularly complex and technical, nor do we believe that it implicates peculiarly local concerns. Hence, we cannot agree that the exercise of federal jurisdiction here would constitute inappropriate interference in the shaping of important state policies.
We nevertheless decline to reach the merits because we agree with the'district court’s decision to dismiss the complaint for lack of ripeness. On the basis of the mere allegations in the complaint and accompanying affidavit, it is impossible to determine whether plaintiffs’ proposed advertisements are likely to run afoul of the revised rule or whether publication of the ads is likely to subject plaintiffs to disciplinary action. Moreover, plaintiffs need not risk disciplinary action in order to learn whether their advertisements comply with the rule. New Jersey has provided an expeditious means of testing the reach of the rule through an advisory opinion process. Plaintiffs, however, have not submitted their advertisements to the advisory committee and hence have not availed themselves of a relatively simple way of determining whether their ads run afoul of the rule. Recent Supreme Court jurisprudence suggests that mandatory prescreening of commercial advertisements may be constitutionally sound, see infra page 537; we simply rely on the availability of the advisory process in declining to grant premature judicial review. Without a demonstration that plaintiffs are likely to risk disciplinary action, they have not presented the court with a justiciable case or controversy.
I. PROCEDURAL HISTORY
On January 16, 1984, the Supreme Court of New Jersey promulgated DR2-102(A) (recodified as RPC 7.2(a)), which provided that:
Subject to the requirements of RPC 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communications. All advertisements shall be presented in a dignified manner without the use of drawings, animations, dramatizations, music or lyrics.
In their original complaint filed February 9, 1984, pursuant to 42 U.S.C. § 1983, plaintiffs sought declaratory and injunctive relief against the Office of Attorney Ethics, a division of the New Jersey Administrative Office of the Courts, challenging the “dignified manner” standard and the limitation on the use of drawings, animations, etc., as violative of the first and fourteenth amendments. The defendant responded by moving for dismissal on grounds of abstention and failure to name a proper party defendant.
In a bench opinion delivered February 27, 1984, the district court abstained under Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943), on the ground that attorney advertising was an “emerging, uncertain area” in which “[tjhere [wa]s indeed a substantial state interest in regulation by a state supreme court.” App. at 17a. Additionally, the court noted that Felmeister and Isaacs could raise the constitutional issues presented in their federal suit before the New Jersey Supreme Court by way of a direct petition invoking the Supreme Court’s original jurisdiction to challenge the rule. Relying on American Trial Lawyers v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973), the district court retained jurisdiction pending the state court proceedings.
Plaintiffs thereupon directly petitioned the Supreme Court of New Jersey, which remanded the matter to a state trial court to develop a factual record. The state trial court conducted an adversary proceeding and recommended that the “dignity” standard be retained, but that the prohibition against the use of drawings, animations, dramatizations, music or lyrics be eliminated from the rule.
The parties briefed and argued the merits of the trial court’s recommendations to the New Jersey Supreme Court. For public policy and federal constitutional reasons, the Supreme Court significantly revised the attorney advertising rule. Petition of Felmeister & Isaacs, 104 N.J. 515, 518 A.2d 188, 189 (1986). The new rule, New Jersey Rule of Professional Conduct 7.2, provides in pertinent part:
Subject to the requirements of RPC 7.1. a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communication. All advertisements shall be predominantly informational. No drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised advertising. No advertisement shall rely in any way on techniques to obtain attention that depend upon absurdity and that demonstrate a clear and intentional lack of relevance to the selection of counsel; included in this category are all advertisements that contain any extreme portrayal of counsel exhibiting characteristics clearly unrelated to legal competence.
Id,.
The Supreme Court also created a new administrative agency, the Supreme Court of New Jersey Committee on Attorney Advertising (the “Committee”), to implement the rule. Id. at 205-07. The Committee’s delegated authority included the power, inter alia, (1) to promulgate rules and regulations and monitor compliance therewith; (2) to establish guidelines for application of the new rule’s “predominantly informational” and “extreme portrayal” standards; (3) to render advisory opinions in advance of publication; (4) to review at its discretion, prior to publication, any attorney advertisements prepared with the assistance of advertising professionals; and (5) to report annually (beginning January 1, 1988), after public hearings, “on the desirability of retaining, revising or repealing the new rule, or adopting any other proposed rule.” Id. at 205-07.
On January 5, 1987, following the Supreme Court’s decision, plaintiffs filed an amended complaint in the district court. In this complaint they joined as defendants the individual justices of the Supreme Court and the directors of the Office of Attorney Ethics and the Administrative Office of the Courts. App. at 30a-31a. Plaintiffs challenged the revised rule, claiming that it violated their first amendment rights. App. at 31a. They attacked the new rule’s “predominantly informational” standard as unconstitutionally vague and the Committee’s prepublication review function as an unlawful prior restraint. App. at 31a-32a. The defendants countered with a motion to dismiss on the grounds, inter alia, of abstention and lack of ripeness for adjudication.
In the district court’s view it was unnecessary to reach the merits of plaintiffs’ application for a preliminary injunction because the amended complaint was dismissible on the ground of Burford abstention. Relying on the state Supreme Court’s characterization of its decision as “tentative and subject to change based on future experience,” 518 A.2d at 189, and the Supreme Court’s creation of the Committee to administer the rule, the district court concluded that the exercise of federal jurisdiction would be disruptive of the state’s efforts to establish a coherent policy on matters of public concern. App. at 67a.
As an alternative ground for dismissal, the district court concluded that plaintiffs’ case was not ripe for adjudication. In reaching this conclusion, the district court relied on two factors. First, even assuming that plaintiffs’ complaint presented a live case or controversy, the court held that their “claim [wa]s clearly not ripe for adjudication as long as the Committee ha[d] yet to issue its report.” App. at 71a. Second, the court noted that Felmeister and Isaacs “ha[d] not demonstrated how they [wejre suffering any hardship as a result of the new Rule” since the threatened injury complained of by plaintiffs was speculative and remote. App. at 72a. The district court thus dismissed plaintiffs’ amended complaint and this appeal followed.
On appeal, Felmeister and Isaacs urge us to vacate the district court’s dismissal order and remand the matter to the district court with instructions to enjoin enforcement of the revised rule. Defendants, however, argue for affirmance either on the grounds relied upon by the district court or on alternative grounds advanced by them before the district court but not addressed in that court’s decision, i.e., lack of standing, lack of subject matter jurisdiction, lack of a case or controversy, and res judicata. We find it unnecessary to address these alternative grounds for affirmance because we conclude, for the reasons set forth below, that the matter is not ripe for adjudication. We must first, however, address the primary ground for the district court’s order — Burford abstention.
II. BURFORD ABSTENTION
“Abstention from the exercise of federal jurisdiction is... ‘the exception, not the rule.’ ” United Services Automobile Ass’n v. Muir, 792 F.2d 356, 360 (3d Cir.1986) (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)), cert. denied, 479 U.S. 1031, 107 S.Ct. 875, 93 L.Ed.2d 830 (1987). The genesis of the Burford abstention doctrine lies in the case bearing that name, which involved a specialized aspect of Texas’ complex regulatory system devised to conserve the state’s oil and gas resources through a well-organized local administrative and judicial decision-making hierarchy. Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943). As subsequent Supreme Court precedent illustrates, Burford abstention is appropriate where a case presents a difficult and technical question of state law involving important state policies such that the exercise of federal jurisdiction would be disruptive of a state’s efforts “to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River, 424 U.S. at 814, 96 S.Ct. at 1245; see also County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189-90, 79 S.Ct. 1060, 1063-64, 3 L.Ed.2d 1163 (1959); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Alabama Pub. Serv. Comm’n v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). However, “[no] attempt at defining the class of cases in which this type of abstention is proper is very precise.” C. Wright, Law of Federal Courts § 52, at 308 (4th ed. 1983).
A review of our own recent Burford abstention jurisprudence illustrates the limited scope of the doctrine’s application. For example, in Muir, 792 F.2d at 364, we held that Burford abstention should not have been applied to an insurer’s challenge to the state agency’s revocation of its license even though the McCarran-Ferguson Act, 15 U.S.C. § 1012 (1982), granted the states exclusive control over the regulation of insurance. Abstention was inappropriate because the issue presented — whether a state law prohibiting ownership of banks by insurance companies was preempted by federal law — did not involve interpretation of any other state statutes, the relevant facts were simple and undisputed, no complicated regulatory scheme was involved, no peculiarly local conditions existed, and no special expertise was required to interpret the statute. 792 F.2d at 365.
Again, in Kentucky West Virginia Gas Co. v. Pennsylvania Public Utility Commission, 791 F.2d 1111, 1115-16 (3d Cir.1986), we held that district court abstention under Burford was inappropriate where the plaintiffs sought injunctive and declaratory relief from a state utility commission’s order on the ground that federal law preempted either the state’s law or the commission’s order or both. We explained that, although a decision on the merits might be disruptive of the state’s efforts to regulate utility rates, the abstention doctrine did not require a withdrawal of federal jurisdiction “merely because resolution of a federal question may result in the overturning of state policy.” Id. at 1116 (quoting Zablocki v. Redhail, 434 U.S. 374, 379-80 n. 5, 98 S.Ct. 673, 677-78 n. 5, 54 L.Ed.2d 618 (1978)).
Finally, in Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 747-48 (3d Cir.), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982), we also concluded the application of Burford abstention was inapposite. There, plaintiffs had alleged a civil rights conspiracy among township officials aimed at destroying their rights to engage in a legitimate land development business through defamation, corruption and fraud. We reached this conclusion even though the case implicated local land use policies and issues.
From this survey of our own decisions, we note that even in such specialized and technical areas of particularly local concern as insurance, utility rates and land use, abstention under Burford will not necessarily be appropriate. In the instant case, the regulation by New Jersey of attorney advertising does not share the usual features of regulatory schemes to which Bur-ford abstention traditionally applies.
Although we have serious doubts as to whether Burford abstention ever would be appropriate where substantial first amendment issues are raised, we need not address this question because, in our view, abstention is not implicated by the regulatory scheme at issue in this case. The work of the Committee on Attorney Advertising, with review by the Supreme Court of New Jersey, does not present the sort of complex, technical, regulatory scheme to which the Burford abstention doctrine usually is applied. Concededly, a state obviously has a substantial interest in regulating attorney advertising, just as it has in the general regulation of the conduct of the bar. However, the regulation of attorney advertising, unlike the regulation of oil and gas conservation involved in Burford, does not involve peculiarly local conditions, is not beyond the understanding of a federal court, and does not require special or technical expertise or interpretation of numerous other state regulations. See Muir, 792 F.2d at 364-65. In fact, the Committee is composed of both lay persons and attorneys and there is nothing in the Supreme Court of New Jersey’s decision creating the Committee to indicate that the Committee’s work should be guided by considerations other than those of reasonableness, common sense and sound judgment. See Petition of Felmeister & Isaacs, 104 N.J. 515, 518 A.2d 188, 189, 205-07 (1986).
We conclude that the exercise of federal jurisdiction to review New Jersey’s revised attorney advertising rule would not be disruptive of the state’s effort to establish a coherent policy concerning a complicated local matter, see Muir, 792 F.2d at 364, and hence that the district court abused its discretion in dismissing plaintiffs’ amended complaint on the grounds of Burford abstention.
III. RIPENESS
The ripeness doctrine, like other justicia-bility doctrines, derives ultimately from the requirement in Article III of the United States Constitution that federal courts are only empowered to decide cases and controversies. “Even when the constitutional minimum has been met, however, prudential considerations may still counsel judicial restraint.” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 n. 12 (D.C.Cir.1986). This court has recognized that considerations of ripeness are sufficiently important that we are required to raise the issue sua sponte even though the parties do not. See Suburban Trails, Inc. v. New Jersey Trans. Corp., 800 F.2d 361, 365 (3d Cir.1986).
The ripeness doctrine addresses questions of timing, i.e., “when in time is it appropriate for a court to take up the asserted claim.” Action Alliance, 789 F.2d at 940 (emphasis in original). The doctrine seeks to avoid entangling courts in the hazards of premature adjudication. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). With regard to administrative agency actions, considerations of ripeness reflect the need “to protect th[os]e agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 148-49, 87 S.Ct. at 1515 (emphasis supplied). See also American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985) (case is not ripe if issue is still poorly formed, application of statute uncertain, or statute not yet effective and dispute cannot be resolved without reference to administration of the statute), aff’d mem, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986). As we explained in Suburban Trails, 800 F.2d at 365, judicial review is premature when an agency has yet to complete its work by arriving at a definite decision.
According to the Supreme Court, questions of ripeness implicate two competing concerns: the fitness of issues for judicial review and the hardship to the parties if judicial consideration is withheld. Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. We take these matters up in turn.
A. Fitness
Whether a question is fit for judicial review depends upon factors such as
whether the agency action is final; whether the issue presented for decision is one of law which requires no additional factual development; and whether further administrative action is needed to clarify the agency’s position, for example, when the challenged prescription is discretionary so that it is unclear if, when or how the agency will employ it.
Action Alliance, 789 F.2d at 940. We look first to the finality of the agency action.
Even taking a flexible and pragmatic view of the finality of agency action, see Suburban Trails, 800 F.2d at 366, finality is absent in this case. Plaintiffs have not, as yet, even undertaken to gain approval of the Committee for the five advertisements that they submitted as exhibits to Isaacs’ affidavit. App. at 40a-44a. Moreover, there is nothing in the record to indicate that any of their proposed advertisements would meet with the Committee’s disapproval. Plaintiffs assert that they have withdrawn certain advertisements from publication in response to the new rule. See supra note 3. However, they have not explained precisely how or why these ads would run afoul of the revised rule; more importantly, they have not given the Committee the opportunity to determine whether the ads comply with the rule.
In its present posture, plaintiffs’ constitutional challenge to the revised attorney advertising rule resembles that of the plaintiffs in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In Williamson, the Supreme Court dismissed plaintiffs’ constitutional challenge to the action of local zoning authorities as premature because plaintiffs had never applied for possibly available variances and hence had never obtained a final decision from the local agency. Id. at 200, 105 S.Ct. at 3123. Williamson involved constitutional challenges under the fifth amendment Just Compensation Clause and the fourteenth amendment Due Process Clause, whereas plaintiffs in the instant case mount a first amendment attack on the revised advertising rule. We do not, however, view this difference as dispositive for purposes of analysis of the ripeness question.
Although the first amendment affords protection to commercial speech, commercial speech traditionally is more susceptible to government regulation than other forms of protected speech because it is considered more objectively verifiable, Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 n. 24, 96 S.Ct. 1817, 1830-31 n. 24, 48 L.Ed.2d 346 (1976), because it is more durable than other forms of speech, id., and because it may be of less constitutional moment, Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557, 562-63 & n. 5, 100 S.Ct. 2343, 2349-50 & n. 5, 65 L.Ed.2d 341 (1980). See also Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 2982, 92 L.Ed.2d 266 (1986). In this regard, we note that the Supreme Court has repeatedly suggested that in the area of commercial speech, prescreening or prepu-blication review of advertisements may be constitutionally sound. See, e.g., Shapero v. Kentucky Bar Ass’n, — U.S. —, 108 S.Ct. 1916, 1923, 100 L.Ed.2d 475 (1988) (although total ban on direct mail solicitation is impermissible, state can regulate abuses and minimize mistakes through requirement that attorneys file proposed solicitation letters with state agency for case-by-case review); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 668, 105 S.Ct. 2265, 2290, 85 L.Ed.2d 652 (1985) (Brennan, J., concurring in part and dissenting in part) (a basic justification for allowing punishment for violations of imprecise commercial regulations is that business person can clarify meaning of arguably vague regulations by consulting with governmental administrators); Central Hudson, 447 U.S. at 571 n. 13, 100 S.Ct. at 2354 n. 3 (commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply, and system of previewing advertising campaigns may be acceptable given adequate procedural safeguards). Therefore, the finality requirement of the ripeness analysis applies in force to plaintiffs’ constitutional challenges to the attorney advertising rule.
In sum, until it is shown that plaintiffs wish to engage in an activity that would be prohibited under the revised attorney advertising rule, their challenge lacks the level of factual specificity necessary to make the matter ripe for adjudication. It may be that plaintiffs’ proposed advertisements will meet with the Committee’s approval, and if that were the outcome of the agency action, there would indeed be no case or controversy to adjudicate because the concrete effects of the agency action would be favorable to plaintiffs. See Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515-16.
Turning to the second and third factors in determining whether the case is fit for judicial review, see swpra pages 536-37, we observe that the case presented by plaintiffs not only requires additional factual development, but the Committee has not been given the opportunity to clarify its position in this case. Cf. Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 2980, 92 L.Ed.2d 266 (Puerto Rico’s statute and regulations restricting advertising of casino gambling are not unconstitutionally vague given narrowing construction adopted by local courts). The considerations highlighted in our discussion of the finality factor apply equally to these other factors. Because plaintiffs have failed to present the Committee with an opportunity to review their advertisements, there is a dearth of factual material in the record referable to these particular plaintiffs and their particular ads. Furthermore, without administrative action by the Committee regarding the specific advertisements proposed by plaintiffs, the Committee’s position is not only unclear, it is purely hypothetical. We believe, in the first instance, that the Committee should be given the opportunity to clarify the rule it is charged with administering.
Therefore, analysis of the Abbott Laboratories “fitness” factor militates in favor of non-ripeness.
B. Hardship
Turning to the second prong of the ripeness test enunciated in Abbott Labs, it is settled that in order for the parties’ hardship to be sufficient to overcome prudential interests in deferral, that hardship must be both immediate and significant. Action Alliance, 789 F.2d at 940. However, we find the record devoid of evidence indicating that plaintiffs would suffer immediate and significant hardship should judicial review of their case be deferred.
We note in this regard that in its first annual report to the Supreme Court of New Jersey, filed December 31, 1987, the Committee noted that, with a few exceptions, it was able to respond promptly to inquiries. Under R. l:19A-3(b), the Committee is required to act on an inquiry at its next meeting following receipt of the request. See First Annual Report for Calendar Year 1987-1988 of the Supreme Court of New Jersey Committee on Attorney Advertising at 7 [hereinafter Committee Report ]. In its first year of operation, the Committee held eight meetings at which it considered 27 formal inquiries and disposed of 23, primarily by letter opinions, with three resolved by formal opinion published in the New Jersey Law Journal. Id. at 2-3. Therefore, it appears that an inquiry addressed to the Committee by plaintiffs seeking an advisory opinion as to the acceptability of their proposed advertisements should meet with a prompt response.
Given the safeguards built into the Committee’s system, in this context of commercial speech we do not believe plaintiffs are denied public access to the federal courts by our requirement that they first engage in the administrative decision-making process before seeking judicial review. Even though plaintiffs challenge the “predominantly informational” standard of the revised rule as unconstitutionally vague, Appellants’ Brief at 16-17, a claim on which we intimate no view at this time, under the present regulatory structure plaintiffs are in no danger of being disciplined without having an opportunity to determine in advance whether their proposed advertisements are lawful. See Petition of Felmeister and Isaacs, 104 N.J. 515, 518 A.2d 188, 206 (1986) (Committee has authority to render advisory opinions at request of attorneys in advance of publication).
In sum, we find that the plaintiffs’ hardship is neither immediate nor significant. To the extent that plaintiffs felt compelled to withdraw certain ads because of the revised rule, see supra note 3, we do not believe that such harm to commercial interests is sufficiently strong to outweigh the unfitness for review we have already described, particularly in light of the Committee’s demonstrated ability to provide advisory opinions in an expeditious manner. In other words, applying the Abbott Laboratories fitness/hardship balance, the scales are clearly tipped in support of the non-ripeness determination.
The district court’s order dismissing this case for lack of ripeness will be affirmed.
. The district court envisioned an expeditious Supreme Court resolution of plaintiffs’ petition based upon defense counsel’s assertion that prompt filing would allow the New Jersey Supreme Court to hear the petition by the end of its then current term in May 1984. See App. at 19a. In fact, the Supreme Court did not hear oral argument on the trial court’s recommendations until October 22, 1984, and did not render its decision until December 10, 1986, almost three years after the district court initially abstained. See Petition of Felmeister and Isaacs, 104 N.J. 515, 518 A.2d 188 (1986). The protracted course of the proceedings in this case does not, however, relieve us from the constraints of the ripeness doctrine, which is a species of the jurisprudence of justiciability, the ultimate constraint upon our jurisdiction.
. It is this revised rule that is the subject of the instant appeal.
. In this regard, the district court observed that "the only ‘evidence’ of injury presented by plaintiffs [wejre assertions that various members of the Committee w[ould] not be prone to approve plaintiffs’ advertisements, as they [wejre individuals who plaintiffs ha[d] encountered in a previous challenge to attorney advertising rules.” App. at 72a.
We note, however, that Isaacs, in his affidavit in support of plaintiffs’ amended complaint, stated that he had stopped publication of newspaper advertising "as a direct and proximate result of the [Supreme Court’s] December 10 opinion” because, in his opinion, the type of advertisements permitted under the revised rule were "unlikely... to draw the public’s attention, or to appeal to the public's need for information in a way that [wajs likely to result in a client’s contacting our firm.” See Affidavit of Hanan M. Isaacs, ¶ 6. App. at 37a. Although not stated with the utmost clarity, we nevertheless believe that the only logical inference to be drawn from this statement is that Isaacs withdrew his advertising for fear of violating the revised rule. We suspect that Isaacs’ reluctance to state his belief forthrightly may have stemmed from a desire to preser 'e his position before the New Jersey Supreme Court, should he be called upon to defend his ads.
. Our research has not disclosed any precedent for applying Burford abstention to a claim that arose under the first amendment nor was defendants' counsel able to provide us with case citations when we raised this question at oral argument.
. Our scope of review of a district court’s decision to abstain under Burford is abuse of discretion. See Kentucky W. Va. Gas Co. v. Pennsylvania Pub. Util. Comm’n, 791 F.2d at 1115.
. For example, the two key standards in the revised rule — "predominantly informational” and “extreme portrayal” — do not appear to require technical or special expertise to apply.
. To the extent that there are strong local interests implicated by this case, we note that they would appear to be outweighed by the federal interest in insuring compliance with the Constitution. See Colorado River, 424 U.S. at 814 n. 21, 96 S.Ct. at 1245 n. 21 (“the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention”) (citation omitted); see also Izzo v. Borough of River Edge, 843 F.2d 765, 768-69 (3d Cir.1988).
. We review the district court’s holding that the case is not ripe for review on a plenary basis. Although few courts have wrestled with the appropriate standard of review, we think it apparent from a review of the caselaw that the question of ripeness is generally viewed as a question of law. See, e.g., Wilmac Corp. v. Bowen, 811 F.2d 809, 812-14 (3d Cir.1987); Suburban Trails, 800 F.
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:
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songer_timely
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to 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".
Larry BLASSINGAME, Plaintiff-Appellant, v. SECRETARY OF the NAVY, Naval Discharge Review Board and Board for the Correction of Naval Records, Defendants-Appellees. Vietnam Veterans of America, Amicus Curiae.
No. 369, Docket 86-6037.
United States Court of Appeals, Second Circuit.
Argued Dec. 4, 1986.
Decided Jan. 26, 1987.
Stephen P. Younger, New York City (Patterson, Belknap, Webb & Tyler, Michael B. Mukasey, Harman A. Grossman, of counsel), for plaintiff-appellant.
David M. Nocenti, Brooklyn, N.Y., Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., Commander Richard Philpott, Captain Michael McClosky, Office of the Judge Advocate General, Dept, of the Navy, of Counsel), for defendants-appellees.
Barton P. Stichman, Julia A. Trotter, Washington, D.C., Vietnam Veterans of America Legal Services, for Larry E. Blassingame, as amicus curiae.
Before FEINBERG, Chief Judge, NEWMAN and MINER, Circuit Judges.
FEINBERG, Chief Judge:
This case raises a number of questions growing out of attempts by a former member of the United States Marine Corps, Larry E. Blassingame, to upgrade his discharge status from undesirable to honorable. Plaintiff Blassingame appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, J., which dismissed Blassingame’s complaint and granted summary judgment to defendants, the Secretary of the Navy, the Naval Discharge Review Board and the Board for Correction of Naval Records. Blassingame had petitioned the two Boards to upgrade his discharge and was denied relief. For reasons set forth below, we reverse and remand for further proceedings.
I. Background
A. Roles of the Boards. Because the roles and the interrelationship of the Naval Discharge Review Board (the Review Board) and the Board for Correction of Naval Records (the Correction Board) are not well-known and are significant in this case, we describe briefly their respective functions. As provided by.10 U.S.C. § 1553(a) and accompanying regulations, 32 C.F.R. §§ 724.101-724.903, a veteran can obtain review of his discharge status from the Marines by petitioning the Review Board, which was established by the Secretary of the Navy after consultation with the Administrator of Veterans’ Affairs. A veteran is permitted 15 years from the date of his discharge to file a petition with the Review Board. Within that 15-year period, a veteran is entitled to re-petition the Review Board for further consideration, but not on the basis of the same evidence. 32 C.F.R. § 724.217.
As provided by 10 U.S.C. § 1552(a), (b) and accompanying regulations, 32 C.F.R. §§ 723.1-723.11, a veteran can also obtain review of his discharge status by petitioning the Correction Board, which was established by the Secretary of the Navy with approval of the Secretary of Defense. The Correction Board is authorized to “correct any military record... necessary to correct an error or remove an injustice.” A veteran must submit a request to the Correction Board within three years of discovering the error or injustice, unless the Correction Board waives the three-year limitation in the “interest of justice.” Before petitioning the Correction Board, a veteran must exhaust his administrative remedies. 32 C.F.R. § 723.3(c).
Two implications spring from the combination of the requirement of exhaustion of administrative remedies before Correction Board review and the broad power of the Correction Board to correct any military record so as to remedy an error or injustice. The first is that, in situations where the Review Board can provide the requested relief, such as an upgraded discharge, a veteran first petitions the Review Board before he requests the same relief from the Correction Board. See, e.g., June v. Secretary of the Navy, 557 F.Supp. 144, 146-47 (M.D.Pa.1982). See generally Lunding, Judicial Review of Military Administrative Discharges, 83 Yale L.J. 33, 40-42 (1973). In situations where the Review Board cannot grant the requested relief, a veteran may proceed to the Correction Board without first seeking relief from the Review Board. The Review Board cannot provide certain types of relief, such as revocation of a discharge, see 32 C.F.R. § 724.205, nor can it grant any relief requested after the 15-year period in 10 U.S.C. § 1553(a). The second implication is that, in cases where the Review Board has made a decision and committed an error or injustice, the Correction Board can review the Review Board decision and correct the error or injustice, subject to the three-year period of 10 U.S.C. § 1552(b). See Geyen v. Marsh, 775 F.2d 1303, 1309 (5th Cir.1985), reh’g denied, 782 F.2d 1351 (1986); Van Bourg v. Nitze, 388 F.2d 557, 565 (D.C.Cir.1967).
B. Prior Proceedings. Blassingame enlisted in the United States Marine Corps in July 1969 when he was barely 17 years old. He had only a tenth grade education and his test scores placed him in the lowest mental category the Navy allows to enlist. Blassingame subsequently served in Vietnam. In June 1971, he was given an undesirable discharge due to his frequent confrontations with military authorities. Pursuant to 10 U.S.C. § 1553(a), Blassingame petitioned the Review Board in 1973 and again in 1977 to upgrade his discharge to honorable. His request was denied on both occasions. Pursuant to 10 U.S.C. § 1552(b), Blassingame in 1979 petitioned the Correction Board for an upgrade, which was denied on the merits in April 1981.
In November 1981, Blassingame again petitioned the Review Board. The petition was denied initially in February 1983 and then again in December 1983 after the Review Board reconsidered the matter at Blassingame’s request. In February 1984, Blassingame petitioned the Correction Board, which referred the matter to the Judge Advocate General, who furnished an advisory legal opinion. After receiving Blassingame’s comments on the advisory opinion, the Correction Board denied relief in June 1984.
In October 1984, Blassingame brought this suit in federal district court. His original pro se complaint named only the Secretary of the Navy as defendant and sought monetary damages. Blassingame made a claim of erroneous enlistment, alleging that he was under age when he enlisted, and a claim of wrongful discharge contesting his culpability for confrontations with military authorities and alleging racial discrimination.
After the district court appointed pro bono counsel, Blassingame filed an amended complaint in April 1985 substituting a new claim for his earlier claims. This complaint named the Secretary of the Navy, the Review Board and the Correction Board as defendants. For convenience, we shall refer to them collectively as the government. In the amended complaint, Blassingame relinquished his demand for monetary damages. He sought only judicial review of the decisions of the Review Board in 1983 and the Correction Board in 1984, alleging that “defendants acted arbitrarily and capriciously and made determinations unsupported by the evidence and contrary to law, to precedent and to defendants’ internal procedures” and requesting only the equitable relief of an upgrade of his discharge from undesirable to honorable.
The government moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted; alternatively the government requested a more definite statement of Blassingame’s claims. While the case was under advisement in the district court, Blassingame submitted letters to the district court raising additional claims. He reasserted his claim of erroneous enlistment and emphasized that a claim for judicial review of Board decisions was distinct from a claim for judicial review of the underlying discharge. Judge Platt dismissed Blassingame’s complaint, holding that the court lacked subject matter jurisdiction over his claim of wrongful discharge and that both the applicable statute of limitations and the doctrine of laches barred his claim for review of the Review Board and Correction Board decisions. As an alternative disposition of the latter claim, Judge Platt held that the Board actions were not arbitrary and capricious and granted summary judgment to the government, even though the government had not so requested. Judge Platt also dismissed Blassingame’s claim of erroneous enlistment as lacking in factual and legal merit. See Blassingame v. Secretary of the Navy, 626 F.Supp. 632 (E.D.N.Y.1985). This appeal followed.
In this court, Blassingame is supported by an amicus brief from the Vietnam Veterans of America, a nonprofit national organization whose purpose is to advance the interests and advocate the rights of Vietnam era veterans. On appeal, Blassingame presses only his claim for review of the Review Board and Correction Board decisions, and emphasizes that he seeks only the equitable relief of an upgrade of his discharge and no monetary damages. We find Blassingame’s claim against the Correction Board is not barred by the statute of limitations or laches. We also hold that Blassingame did not receive fair notice that Judge Platt would decide that claim by summary judgment. Thus, we reverse the judgment of the district court.
We concern ourselves primarily with Blassingame’s claim against the Correction Board, but not the Review Board. Blassingame has already petitioned both the Review Board and the Correction Board. As noted above, the latter Board has the authority to review the action of the former. Under the circumstances, we need review directly only the action of the Correction Board.
II. Legal Issues
A. Jurisdiction of this Court. Amicus argues as a threshold matter that this court has jurisdiction of Blassingame’s appeal. Blassingame and the government do not address this issue in their briefs. However, this court must determine that jurisdiction exists even when the issue is not raised by the parties. See Clarkson Co. v. Shaheen, 544 F.2d 624, 627-28 (2d Cir.1976). The Federal Courts Improvement Act of 1982, 28 U.S.C. § 1295(a)(2), provides that the Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of appeals of final decisions of a district court “if the jurisdiction of that court was based, in whole or in part” on the Tucker Act. Under the Tucker Act, 28 U.S.C. § 1346(a)(2), district courts have jurisdiction over certain claims for monetary damages against the United States not exceeding $10,000. Since Blassingame has expressly relinquished any claim for monetary relief, and the district court’s jurisdiction of the remaining claim for judicial review of the Correction Board decision was not based on the Tucker Act, we hold that the Federal Circuit does not have exclusive jurisdiction of this appeal. Therefore, this appeal is properly before this court.
B. Jurisdiction of the District Court. Apparently misunderstanding the district court’s opinion, Blassingame argues that the court incorrectly found that it lacked subject matter jurisdiction to review the Correction Board decision. Although the court did not state explicitly that it had subject matter jurisdiction over this claim, it did in fact review the Correction Board decision. As the government concedes, the availability of judicial review of decisions of the Correction Board is not in doubt. See Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); Harmon v. Brucker, 355 U.S. 579, 581-82, 78 S.Ct. 433, 434-35, 2 L.Ed.2d 503 (1958). The exact source of jurisdiction, though, has not always been made plain. We find that Blassingame presents a federal question under 28 U.S.C. § 1331(a) since his claim arises under 10 U.S.C. § 1552(b), and there is no statute precluding judicial review. See Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-85, 51 L.Ed.2d 192 (1977); B.K. Instrument, Inc. v. United States, 715 F.2d 713, 723 (2d Cir.1983). Therefore, we agree with the district court’s implicit finding that it had subject matter jurisdiction to review the Correction Board decision.
C. Sovereign Immunity. On the issue of sovereign immunity, the district court observed that the Correction Board is an “unincorporated federal agenc[y] which Congress has not authorized to be sued either explicitly by statute, or implicitly as the result of being the offspring of a suable entity.” Blassingame, 626 F.Supp. at 639 n. 9. The rule that a federal agency cannot itself be sued, see Blackmar v. Guerre, 342 U.S. 512, 514-16, 72 S.Ct. 410, 411-12, 96 L.Ed.2d 534 (1952), no longer holds. This court in B.K. Instrument, 715 F.2d at 724-25, held that § 702 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., removes the defense of sovereign immunity in actions brought under the federal question statute. Although B.K. Instrument involved a suit against individual government officials sued :n their official capacities, it is clear that the holding in that case should apply equally to suits against an agency in its own name. Section 703 of the APA, as amended in 1976 by the insertion of the second sentence, states:
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.
The legislative history of the amendment reinforces our reading: “When an instrumentality of the United States is the real defendant, the plaintiff should have the option of naming as defendant the United States, the agency by its official title, appropriate officers, or any combination of them. The outcome of the case should not turn on the plaintiff’s choice.” H.R.Rep. No. 1656, 94th Cong., 2d Sess. 18, reprinted in 1976 U.S.Code Cong. & Ad.News 6121, 6138. That the agencies’ sovereign immunity has been waived is also indirectly supported by the amendment, also in 1976, of 28 U.S.C. 1331(a), to explicitly permit suits against “any agency” of the United States. See B.K Instrument, 715 F.2d at 724-25; see also Church of Scientology v. Linberg, 529 F.Supp. 945, 967-69 (C.D.Cal.1981).
D. Statute of Limitations. Congress has established a six-year statute of limitations on civil suits against the United States, 28 U.S.C. § 2401(a), which provides:
Except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.
Amicus argues that this statute does not apply at all to this action because it governs only actions for damages against the United States under the Tucker Act, and Blassingame is not seeking damages and has not specifically named the United States as a defendant. Amicus apparently made these same arguments without success to the Court of Appeals for the Fifth Circuit in Geyen v. Marsh, 775 F.2d at 1306-07. We agree with and adopt the Fifth Circuit's thoughtful analysis of these arguments. Briefly, the Fifth Circuit noted that several circuits have rejected the claim that section 2401(a) applies only to Tucker Act actions. Further, the court found that the merger of law and equity assured that section 2401(a) covers both legal and equitable actions. As to the claim that the United States must be named as a defendant, the court noted that courts have discarded the fiction that an action alleging unlawful conduct by a federal official, or as in this case by an official and an agency, is not an action against the United States. See id.
The central issue regarding the running of the statute of limitations is when Blassingame’s right of action to contest the Correction Board decision accrued. Blassingame argues that this right accrued when that decision was rendered. If we agree with Blassingame on this point, then this suit, based on the Correction Board decision in 1984, is within the six-year limitation period. The government’s view, which prevailed in the district court, is that the limitation period runs from the time of the underlying discharge in 1971 since, according to the government, Blassingame ultimately is contesting the propriety of that action. The government therefore maintains that this suit filed in 1984 is barred by the statute of limitations.
The question of when the right to obtain judicial review of a Correction Board decision accrues under 28 U.S.C. § 2401(a) is still open in this circuit. Several other circuits have recently faced this same question. The Third, Fifth and Tenth Circuits have adopted the view advanced by Blassingame. See Dougherty v. United States Navy Bd. for Correction of Naval Records, 784 F.2d 499 (3d Cir.1986); Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985), reh’g denied, 782 F.2d 1351 (1986); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986); see also Walters v. Secretary of Defense, 737 F.2d 1038 (D.C.Cir.1984) (denying rehearing in banc) (Wald, Mikva, JJ., concurring). The Federal Circuit favors the view urged by the government. See Hurick v. Lehman, 782 F.2d 984 (Fed.Cir.1986). We agree with the view taken by the Third, Fifth and Tenth Circuits.
The question of when the right to obtain judicial review of a Correction Board decision accrues is a difficult one. The government finds support for its position in the historical development of Review Boards and Correction Boards. Before Congress mandated the creation of Review Boards in 1944 and Correction Boards in 1946, a veteran could upgrade his discharge only through a private bill for relief through Congress. Such bills were not subject to judicial review, except for constitutionality. See Harmon, 355 U.S. at 584-85, 78 S.Ct. at 436-37 (Clark, J., dissenting); Friedman v. United States, 310 F.2d 381, 404, 159 Ct.Cl. 1 (1962), cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963). The government argues that since the relief provided by Correction Boards is a substitute for private bills that were unreviewable except for constitutionality, “it is perfectly consistent” that Correction Board action should also be immune from review when suit is brought more than six years after discharge. Thus, the government contends that the burden should be on Blassingame to demonstrate that Congress intended to permit judicial review beyond the six-year limitation period beginning from the date of discharge.
The history described by the government is not without persuasive effect. However, this historical argument was raised by the dissent in Harmon, 355 U.S. at 584-85, 78 S.Ct. at 436-37 (Clark, J., dissenting) and was implicitly rejected by the majority since the Supreme Court did review a Review Board decision in that case, id. at 581-82, 78 S.Ct. at 434-35. We decline to adopt the position the government urges because the Supreme Court has held that agency action is subject to judicial review unless there is “clear and convincing evidence” that Congress intended to foreclose such review. See Bowen v. Michigan Academy of Family Physicians, — U.S. —, 106 S.Ct. 2133, 2135-36, 90 L.Ed.2d 623 (1986); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857-58, 44 L.Ed.2d 377 (1975); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). Although we acknowledge the vast experience of the Federal Circuit and its predecessor regarding challenges by veterans to their discharges, we note that the leading case relied on by that circuit, Friedman, was decided in 1962, before it became clearer over the intervening years that there is a presumption in favor of judicial review of agency action.
The essential difficulty with the government’s argument is that it completely insulates from judicial review any Board decision rendered more than six years from discharge, even though Congress has authorized both the Review Board and the Correction Board to act thereafter. Congress has granted veterans 15 years from discharge to petition the Review Board, 10 U.S.C. § 1553(a). The government argues that a veteran who petitions the Review Board after year six and before year fifteen, then petitions the Correction Board within three years thereafter, 10 U.S.C. § 1552(b), and subsequently brings suit promptly in federal court, as Blassingame did, is precluded from obtaining judicial review. We find it implausible that Congress intended to deny, in such obscure manner, judicial review of Board decisions where a veteran requested relief from the two Boards within the statutory period. More important, there is no “clear and convincing evidence” of such purpose by Congress. We conclude, therefore, that the right to obtain judicial review of a Correction Board decision accrues at the time of the decision. See Geyen, 775 F.2d at 1309-10; Smith, 787 F.2d at 511-12; and Dougherty, 784 F.2d at 501-02. Consequently, Blassingame’s suit is not barred by the statute of limitations.
We have adopted what we believe is an equitable rule in that it allows all veterans exactly six years to obtain judicial review of an adverse Correction Board decision. The position urged by the government, in contrast, would give some veterans the full six years provided by 28 U.S.C. § 2401(a), others a period of less than six years and still others no review at all, depending on the time that had elapsed between discharge and the Correction Board decision. For example, a veteran who receives an adverse Correction Board decision less than six years after discharge would have the remainder of the six-year limitation period to obtain judicial review, which can be some period of time between one day and six years. And, a veteran who receives an adverse Correction Board decision more than six years after discharge would have no opportunity to obtain judicial review.
In pressing its contention that a veteran’s right of action with respect to a wrongful discharge accrues at the time of discharge, the government argues that a court reviewing a Correction Board decision cannot avoid looking into the circumstances of the discharge itself. The government emphasizes that many years or even decades may pass between discharge and Board decision, particularly in those cases where “in the interest of justice” the Board waives the three-year limitation period of 10 U.S.C. § 1552(b) on obtaining administrative relief. The government alleges that over the course of time, some of the documents and witnesses relied on in the original discharge decision may no longer be available, which would impede the government’s ability to justify the discharge to a reviewing court.
The relevant standard of review set forth in the APA, 5 U.S.C. § 706, however, answers these contentions. Pursuant to that section, a reviewing court shall not set aside an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Supreme Court has explained:
To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (citations omitted). Rarely should the court conduct a de novo inquiry into the matter being reviewed. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Citizens to Preserve Overton Park, 401 U.S. at 414-15, 91 S.Ct. at 822-23. Instead, the court generally should make its decision on the basis of the factual record as it appeared before the agency. See Florida Power & Light Co., 470 U.S. at 744, 105 S.Ct. at 1607.
It is true, as the government argues, that a reviewing court must take note of the facts of the underlying discharge in determining whether the Correction Board decision violates the arbitrary and capricious standard of the APA, and that in cases where documents and witnesses have been lost over time, the Board’s own review of the original discharge decision may be hampered. But the power of the Board to review a petition submitted after the three-year limitation period of 10 U.S.C. § 1552(b) suggests that the interest of justice may outweigh any harm caused by an incomplete record. Moreover, the absence of documents and witnesses reasonably unavailable is not a basis for a court to set aside a Board decision because under the APA, the court should assess the lawfulness of the Board decision in light of the factual record at the time of the decision. See Geyen, 775 F.2d at 1309.
The government argues that Blassingame’s position allows a veteran to circumvent the six-year limitation period of 28 U.S.C. § 2401(a) on a veteran’s right of action with respect to a wrongful discharge simply by petitioning for Correction Board review after the six-year period, obtaining an “interest of justice” waiver for obtaining administrative relief, 10 U.S.C. § 1552(b), and then seeking judicial review of an unfavorable Board decision. However, a court’s direct review of a veteran’s claim of wrongful discharge is distinct from its review of a Correction Board decision refusing an upgrade. Though the factual record in some if not many instances may be similar for both types of claims, the focus of the former is on the action of discharge officials whereas the focus of the latter is on the action of the Board. Discharge officials fulfill a function different from that performed by the Correction Board and the Review Board, and apply policies and procedures in effect at the time of discharge. In contrast, Naval regulations specifically provide that the Review Board take into account subsequent policies and procedures when reviewing the original discharge decision. See 32 C.F.R. § 724.903 (1986). It follows, then, that in reviewing the action of the Review Board, the Correction Board “must determine whether the [Review Board] has properly applied the new standards.” See Geyen, 775 F.2d at 1309. By obtaining judicial review of a Correction Board decision, a veteran therefore does not circumvent the statute of limitations for directly challenging the discharge itself in a judicial proceeding, but instead secures review of a separate claim for review of the agency action. See id. at 1306; Smith, 787 F.2d at 511-12.
Several other points raised by the government require less discussion. Relying on United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979), the government points out that waivers of sovereign immunity must be strictly construed and argues that in construing a statute of limitations, which is a condition of that waiver, a court should not “extend the waiver beyond that which Congress intended.” However, Congress, as we have shown, has expressed its intent to permit judicial review of agency action and the construction of section 2401(a) offered by the government conflicts with that intent.
Regarding the Correction Board’s discretionary review in the interest of justice of petitions submitted after the three-year period of § 1552(b), the government argues that increasing the availability of judicial review may diminish the willingness of the Board to waive the limitation. But the possibility of judicial review should have no bearing on Correction Board decisions to waive that limitation; those decisions must be made, as mandated by Congress, in the interest of justice. We expect that the Correction Board will continue to waive the limitation where justice so requires.
Additionally, the government contends that our construction of section 2401(a) will lead to different results for litigants who bring suit in this circuit seeking only review of agency action as compared to those seeking monetary damages of $10,000 or less in addition to such review. Appeals by the former group lie in this court, where litigants would be permitted to maintain a suit filed within six years of the final agency action. On the other hand, appeals by the latter group lie only in the Federal Circuit, see 28 U.S.C. §§ 1295(a)(2), 1346(a)(2), where litigants would be permitted to maintain only a suit filed within six years of the date of discharge. Though we recognize this potential for different results, we do not believe that it requires us to adopt a reading of section 2401(a) that we conclude is not supported by Congressional intent.
E. Laches. In addition to relying on the statute of limitations, Judge Platt found that laches bars Blassingame’s suit. 626 F.Supp. at 641 n. 12. Judge Platt presumed, based on his erroneous finding that Blassingame’s right of action accrued 14 years earlier upon discharge, that Blassingame had inexcusably delayed his suit beyond the six-year statute of limitations. Judge Platt also found that the government would suffer prejudice because witnesses “would be difficult to locate and even if they were traced memories of events and facts fade after 14 years.” Id. We have found, however, that Blassingame’s right of action accrued at the time of the Correction Board decision. Since Blassingame brought suit within months of that decision, he obviously did not delay unduly. We have also noted that judicial review of a Correction Board decision generally does not involve a de novo inquiry but is based on the record as it appeared before the Correction Board. Therefore, the defense of laches is inapplicable to Blassingame’s claim.
F. Summary Judgment. Judge Platt on his own converted the government’s motion either to dismiss the complaint or to require a more definite statement of Blassingame’s claims into a motion for summary judgment, which the judge then granted to the government. Such a conversion is permitted where the losing party is not taken by surprise by the court’s action. See, e.g., In re G. & A. Books, Inc., 770 F.2d 288, 294-95 (2d Cir. 1985), cert. denied, — U.S. —, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986); Cook v. Hirschberg, 258 F.2d 56, 57-58 (2d Cir. 1958); Villante v. Department of Corrections, 786 F.2d 516, 520-21 (2d Cir.1986). “The essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings. Resolution of this issue will necessarily depend largely on the facts and circumstances of each case.” In re G. & A. Books, 770 F.2d at 295. In this case, the government stated explicitly in its motion papers that it “intend[s] to move for summary judgment in the event this motion to dismiss is denied.” Blassingame understandably was surprised when, under these circumstances, the court acted on its own to grant summary judgment. Since the court thus deprived Blassingame of notice and an opportunity to respond to the motion for summary judgment, we hold that the grant of summary judgment was improper. See Chandler v. Coughlin, 763 F.2d 110, 113 (2d Cir.1985). It may be that Blassingame cannot succeed in his opposition to a government motion for summary judgment, but at least he should have a fair chance to try.
Based on the foregoing, we reverse the dismissal of Blassingame’s claim against the Correction Board and the grant of summary judgment. We remand this case to the district court for further proceedings.
. 10 U.S.C. § 1553(a) provides:
§ 1553. Review of discharge or dismissal
(a) The Secretary concerned shall, after consulting the Administrator of Veterans’ Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative. A motion or request for review must be made within 15 years after the date of the discharge or dismissal.
. 10 U.S.C. § 1552(a), (b) provides:
§ 1552. Correction of military records: claims incident thereto
(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. Under procedures prescribed by him, the Secretary of Transportation may in the same manner correct any military record of the Coast Guard. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.
(b) No correction may be made under subsection (a) unless the claimant or his heir or legal representative files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later. However, a board established under subsection (a) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.
. The district court in this case so held. 626 F.Supp. at 637.
. Jurisdiction of such claims for more than $10,000 lies in the United States Claims Court, pursuant to 28 U.S.C. §
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:
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songer_r_fed
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
Robert L. TYSON, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 710 PENSION FUND, Defendant-Appellee.
No. 86-1859.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 8, 1986.
Decided Feb. 12, 1987.
Stephen B. Horwitz, Burns, Sugarman & Orlove, Chicago, 111., for plaintiff-appellant.
Stephen Feinberg, Asher, Gittler & Greenfield, Ltd., Chicago, 111., for defendant-appellee.
Before CUMMINGS and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
POSNER, Circuit Judge.
This ERISA suit against a union pension fund seeks benefits under a pension plan. See 29 U.S.C. § 1132(a)(1)(B). The plaintiff, Robert Tyson, is a former truck driver for Charles Levy & Co. He claims to be entitled to a disability pension under the pension plan established by the collective bargaining agreement between his union (a teamsters local) and Levy. The district court granted summary judgment for the pension fund on the ground that awarding the pension would violate the Taft-Hartley Act.
On February 6, 1981, Tyson suffered a totally and permanently disabling injury in an auto accident. The pension plan entitles an employee who becomes totally and permanently disabled to a disability pension, beginning immediately, if he has worked either for 15 complete years or for 14 complete years plus a total of 35 weeks in the first and last year that he was employed. Otherwise he must wait till he reaches age 65 to realize any vested pension rights. Tyson had worked 14 complete years plus 18 weeks his first year and he therefore needed 17 weeks in his last year, 1981, to qualify for the pension. Although disabled after working only 6 weeks in 1981, he was credited for that year with an additional 8 weeks of accrued vacation and disability pay (the collective bargaining agreement requires the employer to pay the employee for 4 weeks after a disabling injury), making a total of 32 weeks in his first and last years (18 + 6 + 8) — which was 3 weeks short. In January 1982, almost a year after Tyson had stopped working for Levy, Levy paid him 4 weeks of additional wages in recognition of his long years of service for Levy and the fact that his employment had been cut short by the accident. Tyson wants to add those 4 weeks to his other 1981 credits. If he succeeds, he will be entitled to the disability pension.
The district court thought that the addition of the 4 weeks to Tyson’s 1981 credits was blocked by section 302 of the Taft-Hartley Act, 29 U.S.C. § 186, which makes it unlawful for an employer to pay a union or other representative of its employees — which the pension fund is conceded to be. There is an exception for union pension and welfare funds but it is subject to various limitations, of which the one pertinent here is that “the detailed basis on which such payments are to be made [by the employer to the fund] is specified in a written agreement with the employer.” 29 U.S.C. § 186(c)(5)(B). The district judge thought this proviso not satisfied here. En route to this conclusion he expressed skepticism about most of the fund’s contractual arguments, but the focus of his decision was the fund’s statutory ground, and we regard the contractual issues as still open; Tyson conceded as much at the oral argument of the appeal.
Article 29 of the collective bargaining agreement, captioned “Pension Plan,” requires the employer to contribute to the union’s pension fund a fixed amount per week for each employee covered by the agreement who has been on the employer’s payroll for at least 30 days. It also authorizes the making of “appropriate trust agreements necessary for the administration of such fund.” Levy never made a contribution for the additional 4 weeks that Tyson wants credited to 1981, but the fund admits it would have refused to accept it, on the ground that accepting it would violate the statute; and the parties appear to assume that if the fund would accept the contribution, Levy would make it. The fund’s position (and hence the district court’s decision) is correct if “the detailed basis” for such a contribution is not “specified in a written agreement with the employer.”
It is not specified in the collective bargaining agreement itself. But section 1.25 of the trust agreement that sets forth the details of administration provides:
Each Employee will be credited with an Hour of Work for:
(a) Each hour for which an Employee is paid, or entitled to payment by an Employer for duties performed____
(b) Each hour, up to a maximum of 501 hours, for which an Employee is directly or indirectly paid or entitled to payment by the Employer for reasons (such as vacation, holiday, illness, incapacity, including disability, layoff, jury duty, military duty or leave of absence) other than the performance of duties (irrespective of whether the employment relationship has terminated)____
This section makes clear that an employee such as Tyson is entitled to pension credit for certain hours that he does not actually work, even if, as here, he is paid for those hours after he has ceased to be employed. If the 4 weeks for which he was paid in 1982 are added to the 8 weeks for which he received vacation and disability pay in 1981 and which the fund does not contest, the total (12 weeks = 480 hours) is below the 501-hour ceiling.
The pension fund argues that section 1.25 was not meant to embrace “gifts,” but there are two answers to this. The first is that the provision does not in terms exclude gifts; at least the words do not compel such a reading. The expression “for reasons ... other than the performance of duties” does not appear to require nonaltruistic “reasons”; the reasons listed between the parentheses are illustrative rather than exhaustive. Furthermore, to describe the 1982 payment to Tyson as a “gift” is surely a mistake. The world of employee compensation does not divide neatly into legally required payments on the one hand and gifts on the other. A bonus, for example, is neither; nor is severance pay; nor — what indeed is a form of severance pay — is a payment made in recognition of long years of work abruptly cut off by a tragic accident. Many of the mutual understandings on which the effective functioning of labor markets depends are not reduced to legally enforceable commitments, because the parties don’t want the uncertainty and expense of a lawsuit if they have a disagreement. See Epstein, In Defense of the Contract at Will, 51 U.Chi.L.Rev. 947 (1984). (As a matter of fact, employment at will remains the dominant form of employment relationship in this country.) Nevertheless those nonbinding mutual understandings are commercial rather than altruistic. It is true that when as in this case the employment relationship is defined by a collective bargaining agreement, payments to workers of compensation in excess of what the agreement specifies may, by undermining the union’s status as exclusive bargaining representative of the workers, violate the National Labor Relations Act. See e.g., NLRB v. Everbrite Electric Signs, Inc., 562 F.2d 405 (7th Cir.1977) (per curiam). But there is no suggestion that Levy’s payment of an additional 4 weeks’ wages to Tyson after he had ceased being an employee of Levy’s raises any problems under the agreement and hence under the Act. Indeed, the fact that “gifts” by an employer to his unionized employees could raise problems under the Act is one more piece of evidence that the payment Levy made to Tyson in 1982 is not properly described as a gift.
A better argument for the pension fund is that since Levy had already paid Tyson the 4 weeks disability pay that the collective bargaining agreement required Levy to pay him, the additional payment in 1982 could not have been by reason of disability and therefore cannot be fitted within section 1.25. But the section is not clearly limited to payments made under legal obligation. The words “entitled to payment” might have that force; that is, they could be intended to protect the employee in the event that the employer, though contractually obligated to pay him, fails to do so. But they need not be so read; the disjunctive treatment of “paid” and “entitled to be paid” could signify that the employee was entitled to credit for money actually paid him whether or not legally due him, plus money legally due him whether or not actually paid him. The payment made in 1982 was certainly made by reason of Tyson’s disability, perhaps in conjunction with his long years of service — a factor not excluded by the section, though not specifically listed in it.
The fund’s best argument is that to allow a gratuitous payment to be credited would enable an employer to transfer great wealth, at small cost to itself, from the fund to a former employee. The contribution that Levy would need to make to the pension fund (if the fund would accept it) on the payment in 1982 that put Tyson over the hump is only about $200; if this payment entitled him to a pension it would mean that for a trivial outlay Levy had bought Tyson an annuity of $375 a month for the 12 years until his regular pension vests at age 65. The present value of such an annuity is on the order of $30,000. In effect, at the discretion of the employer, a 14 years and 35 weeks vesting period is lowered to 14 years and 31 weeks. (It can’t be shortened much beyond this, however, because of the 501-hour limitation in section 1.25.)
These arguments are respectable and may, singly or together, in the end demonstrate that as a matter of contract interpretation Tyson is not entitled to the disability pension. (He would not be completely out in the cold; he is receiving a social security disability pension.) But they do not show that there is no “detailed basis” for a contribution by Levy, and hence that the statute bars a pension for Tyson. The detailed basis is section 1.25.
The existence of interpretive uncertainty does not bring section 302 of the Taft-Hartley Act into play. Section 302 was primarily designed to prevent employers from bribing union officers and union officers from extorting money from employers. Arroyo v. United States, 359 U.S. 419, 425-26, 79 S.Ct. 864, 868, 3 L.Ed.2d 915 (1959); United States v. Ryan, 225 F.2d 417, 426 (2d Cir.1955) (L. Hand, J., dissenting), rev’d, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335 (1956); Waggoner v. Dallaire, 649 F.2d 1362, 1366 (9th Cir. 1981). The present case is remote from this policy. In making an additional payment to Tyson a year after the accident forced him to stop working, Levy was not trying to bribe union officers — whether in order to undermine the loyalty of the teamsters union to the teamsters employed by Levy or for any other reason. Nor was Levy being extorted to provide favors for union officers. It was merely trying to get a pension for its former employee — a pension, it is true, that would be paid for very largely by other employers; but whether or not this feature gives them a basis for squawking, or violates the collective bargaining agreement, it does not affront the purposes behind the statute.
Granted, a statute may have a life of its own, and because of its strict and broad wording forbid practices remote from the draftsmen’s contemplation. Legislators often make a statute overinclusive in order to be sure there are no loopholes; we saw an example of this recently in FDIC v. O’Neil, 809 F.2d 350, 352 (7th Cir.1987). But even read literally, section 302 does not carry the day for the pension fund. The specific terms on which hours are to be credited are set out in detail and in writing in section 1.25 of the plan agreement, which can of course be considered along with the collective bargaining agreement in deciding whether the statutory requirement has been satisfied. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1263 (9th Cir.1984). No writing, however detailed, can eliminate all questions of interpretation; the existence of a large body of case law arising from disputes over the meaning of the Internal Revenue Code shows this. The existence of an interpretive question does not preclude the pension fund from accepting employer contributions.
It is true, but not helpful to the fund, that the statutory requirement of a detailed written basis for pension and welfare benefits appears to have been intended not only to back up the statute’s anti-bribery and anti-extortion policies but also to limit the discretion of unions in administering such funds, lest union officers use the discretion to punish their enemies and reward their friends. See 93 Cong.Rec. 4746-47 (1947); Denver Metropolitan Ass’n v. Journeyman Plumbers & Gas Fitters Local No. 3, 586 F.2d 1367, 1372-73 (10th Cir.1978). How detailed is detailed enough is not discussed in the cases; but section 1.25 of the plan agreement in this case is detailed enough to transform a dispute over the exercise of discretion (a dispute the persons vested with the discretion are almost certain to win) into a dispute over the meaning of a document, a dispute susceptible of objective resolution by a court or arbitrator. That, we believe, is sufficient detail to satisfy the statute. And in fact this case involves no exercise of discretion by the fund’s managers or anyone else connected with the union.
If the fund’s statutory argument were accepted, employees would find it hard to qualify for pensions from union funds. For any time the pension plan was not absolutely crystalline in its application to an employee’s situation, the fund would refuse to accept contributions and he would therefore fail to qualify. Such an interpretation of section 302 would throw an unintended monkey wrench into the operation of union pension plans and would endanger the pension rights of many employees covered by such plans.
The collective bargaining agreement provided an adequately detailed written basis for Levy to contribute to the fund for the 4 weeks pay that it gave Tyson in 1982. Whether, with this contribution, he is entitled to the pension is a question of contractual interpretation that the district court did not answer. The court did say that since the fund could not credit the contribution to 1981, it would not be acting irrationally in crediting it to 1982; but with the premise removed, the conclusion falls. Indeed, but for the statute the fund would apparently have no objection to crediting the payment to 1981 — though since the contribution was never made, the fund has never had occasion to decide what year to credit it to.
We hold only that the statute is not a bar to Tyson’s claim. We remand the case for a determination of his contractual entitlement.
Reversed and Remanded, With Directions.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Manuel TALAVERA, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Defendant-Appellee.
No. 76-3595
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 2, 1977.
Rehearing Denied April 6, 1977.
Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., for defendant-appellee.
Before GODBOLD, HILL and FAY, Circuit Judges.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
PER CURIAM:
On April 14, 1976, Manuel Talavera, a Florida state prisoner, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Petitioner was convicted in the Circuit Court of the Seventeenth Judicial Circuit and sentenced to a prison term of 120 years. His convictions were affirmed on direct appeal. Talavera v. State, 314 So.2d 22 (Fla.App.1975). The district court in an exhaustive opinion dismissed the petition. We vacate and remand the case for further proceedings.
Petitioner was convicted in state court of robbery and three (3) counts of false imprisonment. He contends that there was a total lack of competent evidence to sustain his convictions. However, a fingerprint found on the handcuffs used on two of the hostages was identified as that of the petitioner. Several witnesses testified that one of the robbers was wearing a grey suit. A forensic chemist found that the fibers in petitioner’s “cut-off” grey pants matched the fibers in a certain grey suit-jacket which was found in the vicinity where the getaway car was abandoned. Finally, while petitioner presented one Jerry Helms who testified that he and an unnamed accomplice had committed the robbery and not petitioner, Helms spoke with a Southern accent. The hostages testified that neither of the perpetrators had a Southern accent. Moreover, a government rebuttal witness testified that on the day that Helms had initially confessed to the crime, he had seen Helms and petitioner conversing for 30 to 45 minutes.
Matters concerning the sufficiency of the evidence are not cognizable on federal habeas corpus unless the record indicates that a state prisoner was denied due process of law. Colbroth v. Wainwright, 466 F.2d 1193, 1194 (5th Cir. 1972). However, the issue of the sufficiency of the evidence does not present a due process question where there is conflicting testimony supporting a state conviction. Jenkins v. Wainwright, 488 F.2d 136, 137 (5th Cir. 1973), cert. denied, 417 U.S. 917, 94 S.Ct. 2620, 41 L.Ed.2d 222 (1974). Since there is some evidence in this case against petitioner, there is no sufficiency of the evidence problem rising to constitutional proportions for habeas corpus relief. Dreske v. Holt, 536 F.2d 105 (5th Cir. 1976); Jackson v. State of Alabama, 534 F.2d 1136 (5th Cir. 1976).
Petitioner next challenges a search of his rental automobile as violative of his Fourth Amendment rights. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the United States Supreme Court held “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 482, 96 S.Ct. at 3046. This decision of the Supreme Court was rendered subsequent to the time that the district court in the instant case considered the merits of petitioner’s claim. This case presents the question of the proper disposition of Fourth Amendment claims on the appellate level in light of this Supreme Court decision.
This court appears to have embarked upon two courses of conduct. In some cases we have undertaken on appeal to review the record to determine whether the state has provided an opportunity for full and fair litigation of the Fourth Amendment claim. See e. g. Stinson v. State of Alabama, 545 F.2d 485 (5th Cir. 1977); Flood v. State of Louisiana, 545 F.2d 460 (5th Cir. 1977); George v. Blackwell, 537 F.2d 833 (5th Cir. 1976). In other cases we have vacated the decision of the district court and remanded so that the trial court might determine this issue in the first instance. See e. g. White v. State of Alabama, 541 F.2d 1092 (5th Cir. 1976); Caver v. State of Alabama, 537 F.2d 1333 (5th Cir. 1976). The differing courses of action appear to depend upon the circumstances and state of the record in each case.
Thus, in the first line of cases the record appears to have been sufficiently clear so as to make the issue as to whether or not the state court had provided an opportunity for full and fair litigation of Fourth Amendment claims certain beyond peradventure. A remand under these circumstances would be a futile gesture and expensive in terms of judicial economy. In the second line of cases the record appears not to have been so clear. Under these circumstances, the appropriate appellate response is to remand the case to the district court in order to allow the parties “a chance to be heard upon the legal standard announced in Stone v. Powell.” Caver v. State of Alabama, supra at 1336.
In the case sub judice the district court apparently based its conclusions with regard to the petitioner’s Fourth Amendment claim upon a review of the trial transcript. However, there were two preliminary hearings which focused on the Fourth Amendment issue that were not before the district court. In addition, of course, petitioner did not address himself to the sufficiency of the state court proceedings in his habeas' petition. Under these circumstances we conclude that the case should be remanded so that the parties might address the question of opportunity for full and fair litigation of the Fourth Amendment claim before the district court, and that court may be afforded the opportunity of determining that question.
VACATED AND REMANDED.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
CROWN ZELLERBACH CORPORATION, Plaintiff-Appellant Cross-Appellee, v. INGRAM INDUSTRIES, INC., et al., Defendants-Appellees, and London Steam-Ship Owners’ Mutual Insurance Association, Limited, Defendant-Appellee Cross-Appellant.
No. 82-3749.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 1984.
Opinion on Granting Rehearing En Banc Jan. 21, 1985.
Taylor, Porter, Brooks & Phillips, William Luther Wilson, Baton Rouge, La., for plaintiff-appellant cross-appellee.
Monroe & Lemann, Nigel E. Rafferty, Richmond M. Eustis, New Orleans, La., for Ingram Industries.
Terriberry, Carroll, Yancey & Farrell, Benjamin W. Yancey, New Orleans, La., for London S.S. Owners.
Before BROWN, THORNBERRY, and TATE, Circuit Judges.
PER CURIAM;
What took 16 years for our answer in Nebel Towing to the enigmatic 4-1-4 riddle of the Jane Smith, is now back again in part 13 years later. Based presumably on Nebel Towing the District Court granted judgment against the excess P & I Underwriter for nearly $2,000,000 in excess of the owner’s judicially declared limited liability. Faithful as we are and must be to Nebel Towing, the Court, by divided vote holds that the trial court was correct in this judgment and we affirm as to this issue. As to all other issues the Court unanimously affirms the judgment of the District Court.
This appeal grows out of an allision between the tow in tow of the tug F.R. BIGE-LOW and Crown Zellerbach’s (CZ) water intake structure on the Mississippi River above Baton Rouge. Involved also was the tug’s (and owners’) maritime limitation of liability proceeding in which CZ brought a Louisiana direct action against the prime and excess P & I Underwriters of the vessel owner/operator. After trial, the District Court held that Ingram, the tug owner/operator, was liable, but was entitled to limit its liability to the value of the vessel and the pending freight. The excess P & I underwriter was held liable for nearly $2,000,000 of the portion of the CZ’s damages that exceeded the limited liability of the vessel owner. We find no error in the court’s holdings (i) of no “privity or knowledge” by the tug owner, (ii) the valuation of the vessel, (iii) the computation of CZ’s damages, and (iv) the award of pre-judgment interest from a date later than the accident. However, the Court by divided vote determines that the District Court was free of error in holding the tug owner’s underwriter liable beyond the dollar limits fixed, or ascertainable, in the P & I policy. Accordingly, we affirm.
a -i ah u ,7 How it All Happened
On February 3, 1979, the tugboat F.R. BIGELOW owned (or bareboat chartered) by Ingram Industries,' Inc. (Ingram), while pushing 15 loaded barges down the Mississippi River in heavy fog and rain, caused its forward lead barge to come into contact with and damage Crown Zellerbach’s (CZ) water intake structure, on the Mississippi above Baton Rouge. Shortly after this incident, CZ began to repair the structure, but these repairs were interrupted on May 18, 1979, when another tugboat collided with the structure and damaged the remaining portion. The structure was not rebuilt in kind, but was rebuilt in a different form.
Suit was filed by CZ against the tugboat F.R. BIGELOW, and Ingram, her bareboat charterer, in April of 1979. Subsequently, the complaint was amended to include Cherokee Insurance Company, the prime P & I insurer of Ingram, with a policy limit of $1,000,000, and London Steam-Ship Owners’ Mutual Insurance Association, excess P & I insurers of Ingram, with a deductible franchise of $1,000,000.
In its answer to the suit based upon the accident of February 3, 1979, Ingram, the J Dt chartered-owner/operator of the F.R. BIQELOW sought limitation of its liability to the value of the vessel plus freight then pending. 46 U.S.C. § 183. Ingram stipulated liability for striking the structure, and the issues of damages and limitation of liability were tried. Following trial, the District Court entered judgment in favor of CZ in the “total sum” of $3,948,210.31, with pre-judgment interest from December 11, 1980. The District Court granted Ingram’s prayer for limitation of liability, valued the vessel at $2,134,918.88 and limited the owner’s liability to that amount. Cherokee’s prime P & I policy was for $1,000,000. In tabular form, the District Court decreed the total sum of CZ’s judgment as follows:
(a) Total Damages to CZ $3,948,210.31
(b) Payable by Owner and Cherokee
Prime P & I $1,025,000.00
(c) Payable by Owner and London Steam
Excess P & I 1,109,918.88
(d) Owner’s Limited Liability 2,134,918.88
(e) Balance by London. Steam Excess P & I $1,813,291.44
Following the judgment, Ingram and its two P & I underwriters made payments up to the limits of Ingram’s fixed liability ($2,134,918.88).
On appeal, CZ raises several issues as errors in the District Court’s judgment, all of which we affirm. London Steam-Ship Owners’ Mutual Insurance Association challenges that portion of the District Court’s judgment holding that underwriter liable for the amount ($1,813,291.44) of the plaintiff’s claim over and above Ingram’s fixed limited liability ($2,134,918.88). Affirming the District Court by a divided vote on that issue obviously warrants publication of our opinion.
1.
Limitation of Liability
2.
Limitation: Valuation of the Vessel **
3.
Effect of Stipulation of Damages**
4.
Pre-Judgment Interest " *
5.
P & I Underwriter Liable in Excess Limited Liability Amount
For its protection against claims for damage to piers and other fixed (non-vessel) structures, Ingram, as chartered owner of the tug BIGELOW had two P & I covers. The prime cover was with Cherokee, the amount of insurance being specified as $1,000,000. London Steam-Ship Owners’ Mutual Insurance Association, Ltd. (London Steam-Ship), through A. Bilbrough and Company, as managers, dove-tailing Cherokee’s cover with a deductible franchise $1,000,000 supplied an excess P & I cover in accordance with the Rules of the Association.
Without specific articulation of the reasons for its decision, the trial court — obviously feeling bound by Nebel Towing — held the P & I underwriter liable for approximately $2,000,000 more than the owner’s limited liability.
Despite the dissent to the denial of rehearing en banc in Nebel Towing and criticism of that opinion we are bound by that decision and to justify a different result in this case the Court would have to demonstrate that this case and the rationale presented here is different from that in Nebel Towing.
Unable to find any valid distinction, and bound by Nebel Towing, we are both bound and persuaded that the District Court was correct in holding the P & I underwriter liable for this excess amount.
Conclusion
The upshot is that the Court affirms the holding of the District Court.
AFFIRMED.
. Olympic Towing Corp. v. Nebel Towing Co., Inc., 419 F.2d 230, 1969 A.M.C. 1571 (5th Cir. 1969) cert, denied, 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970); see id., 419 F.2d at 238 (Brown, C.J., dissenting from denial of rehearing en banc).
. Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806, 1954 A.M.C. 837 (1954).
Only this issue has precedential value. Local Rule 47.5 provides
The publication of opinions that have no prec-edential value and merely decide particular cases on the bases of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.
Pursuant to that Rule the Court has determined that the non-precedential portions of this opinion should not be published. The places at which the published opinion omits parts of the lengthy unpublished opinion are specifically indicated by an **.
Not to be published. See note * supra.
. See Biezup & Abeel, The Limitation Fund And Its Distribution, 53 Tul.L.Rev. 1185 (1979); Bu-glass, Limitation of Liability From A Marine Insurance Viewpoint, 53 Tul.L.Rev. 1364 (1979); Kierr, The Effect Of Direct Action Statutes On P & I Insurance, On Various Other Insurances Of Maritime Liabilities, And On Limitation On Shipowner’s Liability, 43 Tul.L.Rev. 638 (1969).
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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songer_majvotes
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3
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Edwin S. LELAND, Plaintiff-Appellant, v. FEDERAL INSURANCE ADMINISTRATOR, United Services Automobile Association, Defendants-Appellees.
No. 90-3074.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1991.
Decided May 22, 1991.
Grover Gray Wilson, argued (Urs R. Gsteiger, on brief), Petree, Stockton & Robinson, Winston-Salem, N.C., for plaintiff-appellant.
Ellen Maren Neubauer, Fed. Emergency Management Agency, Washington, D.C., and Francis Boyd Prior, Crossley, McIntosh & Prior, Wilmington, N.C., argued (Sharon J. Stovall, Crossley, McIntosh & Prior, Wilmington, N.C., Margaret Person Currin, U.S. Atty., and Steven A. West, Asst. U.S. Atty., Raleigh, N.C., on brief), for defendants-appellees.
Before SPROUSE and WILKINSON, Circuit Judges, and COPENHAVER, District Judge for the Southern District of West Virginia, sitting by designation.
COPENHAVER, District Judge:
Edwin S. Leland (“Leland”) appeals from the district court’s grant of summary judgment in favor of the Federal Insurance Administrator (“FIA”) and the United States Automobile Association (“USAA”), asserting that he is entitled to summary judgment on his claim for benefits under the 1988 Upton-Jones amendment to the National Flood Insurance Act, 42 U.S.C. § 4013(c) (the “amendment”). The district court denied summary judgment to Leland and granted summary judgment to the defendants, holding that Leland’s losses occurred prior to the effective date of the Upton-Jones amendment and that the amendment did not apply retroactively to cover his losses. We agree and affirm the judgment of the district court.
I.
Appellant Leland is the owner of a beachfront residence at Topsail Beach, North Carolina. In March, 1985, defendant USAA issued to Leland a standard flood insurance policy (“SFIP”) on his Topsail Beach property pursuant to the National Flood Insurance Program (“NFIP”). Defendant Federal Insurance Administrator (“FIÁ”) is the official in the Federal Emergency Management Agency (“FEMA”) who administers the NFIP.
The policy issued to Leland in 1985 was a single peril policy designed to protect homeowners living in coastal areas from certain enumerated losses due to flooding. The policy, as issued, provided coverage only for “direct physical loss by or from a flood.” See 44 C.F.R. Part 61, App. A(l), Art. III. There is no dispute between the parties to this action that the policy as issued in 1985 did not afford coverage, as sought by the plaintiff, for the physical relocation of an insured dwelling which had sustained structural damage due to flooding.
Severe winter storms battered coastal North Carolina, including the Topsail Beach area, in December, 1986, and in January and February, 1987. Leland contends that the high -winds, waves and tides during those storms resulted in conditions of flooding as defined by the flood insurance policy issued to him. He further contends that, as a result of each of the floods in December, 1986, and January and February, 1987, he sustained substantial damage to the heating, electrical and septic systems, and to the foundation, pilings and deck of his residence.
On or about March 17, 1987, Leland was advised in writing by Topsail Beach officials that, because of the damage to his residence from the severe winter storms and the underwashing and erosion of the land underlying the property, the residence was unfit for human habitation and, further, that condemnation proceedings were being initiated. Subsequently, in November, 1987, Leland was warned by city officials that the residence was in danger of imminent collapse.
In light of these warnings and fearful of imminent collapse, Leland relocated his residence to a lot which he owned across the street and which was further removed from the beachfront. The relocation commenced on November 16, 1987. Although physical movement of the dwelling was completed in November, 1987, the residence was not ready for occupancy until the septic tank was installed and approved on February 8, 1988.
After relocation of his residence, Leland submitted a claim for relocation costs of approximately $25,000 to FEMA. The claim was denied on the ground that relocation of the dwelling was not compensable under the standard flood insurance policy held by Leland at the time of loss. Denial of the claim was also predicated upon FEMA’s contention that the February 5, 1988, amendment to the SFIP which provides benefits for structural relocation of flood-damaged structures was not retroactive and would not afford coverage for relocations occurring prior to its enactment.
After denial of his claim for relocation expenses, Leland filed this action against the Federal Insurance Administrator and, subsequently, against USAA.
II.
Inasmuch as the flood insurance policy issued to Leland in 1985 and in effect at the time his residence was relocated in November, 1987, provided coverage only for “direct physical loss by or from a flood,” both the insurance administrator at the claims level, and the district court in the proceedings below, determined that the relocation of Leland’s residence was not a covered loss under the policy provisions in effect at the time of the relocation in November, 1987. Leland does not contest the district court’s ruling in this regard.
Leland asserts, however, that the Upton-Jones amendment to the National Flood Insurance Act, which was enacted and became effective on February 5,1988, affords him coverage under the Act for expenses incident to the relocation of his residence. He contends that the district court erred in its decision that the Upton-Jones amendment is not retroactive in application and in its determination that his loss occurred pri- or to the amendment’s effective date of February 5, 1988.
III.
The Upton-Jones amendment to the National Flood Insurance Act, 42 U.S.C. § 4013(c), was enacted in order to provide coverage under the National Flood Insurance Act for the relocation or demolition of flood-damaged structures determined to be subject to imminent collapse. The amendment states in pertinent part:
(1) If any structure covered by a contract for flood insurance under this sub-chapter and located on land that is along the shore of a lake or other body of water is certified by an appropriate State or local land use authority to be subject to imminent collapse or subsidence as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels, the Director shall (following final determination by the Director that the claim is in compliance with regulations developed pursuant to paragraph 6(A)) pay amounts under such flood insurance contract for proper demolition or relocation.
42 U.S.C. § 4013(c)(1) (1988).
No reported cases specifically address whether enactment of § 4013(c) should be given retroactive effect, nor does the amendment itself expressly provide for retroactive application. It is a fundamental and well established principle of law, however, that statutes are presumed to operate prospectively unless retroactive application appears from the plain language of the legislation. See, e.g., Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988); Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1559, 84 L.Ed.2d 572 (1985); United States v. Magnolia Petroleum, 276 U.S. 160,162-63, 48 S.Ct. 236, 237, 72 L.Ed. 509 (1928).
In light of this well established principle of statutory construction, Leland argues that subparagraph (4)(A) of § 4013(c), which states that “[t]he provisions of this subsection shall apply to contracts for flood insurance under this title that are in effect on, or entered into after, February 5, 1988,” warrants retroactive application of the amendment. The district court correctly noted, however, that subparagraph (4)(A) merely provides for application of the amendment to those standard flood policies which were in effect on the date of the amendment’s enactment on February 5, 1988, and to those issued thereafter, without the necessity of amending such policies to reflect the new statutory coverage. Absent such a provision, it would have been necessary for FEMA to attach riders or endorsements to policies issued prior to incorporation of the new amendment into the standard flood insurance policy in order for policy holders to benefit prospectively from the amendment.
Support for the district court’s interpretation of subsection (4)(A) of § 4013(c) is found within the liberalization clause of the standard flood insurance policy which was issued to Leland and which was in effect at the time of the relocation of his residence. The liberalization clause provides:
While this policy is in force, should we have adopted any forms, endorsements, rules or regulations by which this policy could be broadened or extended for your benefit by endorsement or substitution of policy form, then, such matters shall be considered to be incorporated in this policy without additional premium charge and shall inure to your benefit as though such endorsement or substitution has been made.
44 C.F.R. Part 61, App. (A)(1), Art. IX (1988).
Other courts which have considered the effect of the liberalization clause in standard flood insurance policies have held that, rather than providing for retroactive application of amendments to FEMA, the clause is designed to foster administrative convenience and efficiency. As the Eighth Circuit recently held in Criger v. Becton:
We are convinced the SFIP liberalization clause was intended merely to give the insured the benefit of favorable changes made by FEMA during the policy term. The clause fosters administrative efficiency by allowing FEMA to give an insured the benefit of an amendment without requiring each SFIP to be rewritten or endorsed every time FEMA makes a change. The liberalization provision does not give retroactive effect to new SFIP terms; rather, it serves as a device for automatically reading into existing policies beneficial changes as soon as FEMA makes them and declares them to be in force.
902 F.2d 1348, 1352 (8th Cir.1990).
In Bowen v. Georgetown University Hospital, the Supreme Court recently reaffirmed the longstanding principles relative to the retroactive application of statutory enactments and administrative rule-making and held that, even where some substantial justification for retroactivity is presented, courts should be reluctant to find such authority absent an express statutory grant. 488 U.S. 204, 208-09, 109 S.Ct. 468, 471-72, 102 L.Ed.2d 493 (1988). The Bowen Court held: “[rjetroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. at 208, 109 S.Ct. at 471, citing Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964); Claridge Apartments Co. v. Comm’r, 323 U.S. 141, 164, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944); Miller v. United States, 294 U.S. 435, 439, 55 S.Ct. 440, 441, 79 L.Ed. 977 (1935); United States v. Magnolia Petroleum Co., 276 U.S. 160, 162-63, 48 S.Ct. 236, 237, 72 L.Ed. 509 (1928).
The Bowen decision and the principles articulated there have been cited and relied upon recently by other circuits in cases arising under the National Flood Insurance Act. See Criger v. Becton, 902 F.2d 1348 (8th Cir.1990); Wright v. Director, Federal Emergency Management Agency, 913 F.2d 1566 (11th Cir.1990). These cases have consistently recognized that, in accordance with Supreme Court precedent, statutory enactments or amendments “are not to be given retroactive effect or construed to change the status of claims fixed in accordance with earlier provisions unless the legislative purpose so to do plainly appears.” Criger, 902 F.2d at 1354; Wright, 913 F.2d at 1574, citing United States v. Magnolia Petroleum, 276 U.S. at 162-63, 48 S.Ct. at 237.
As in both the Criger and Wright cases which determined that other recent amendments to the National Flood Insurance Act should not be applied retroactively, the status of Leland’s claim in the present case was “fixed” at the time he chose to relocate his home by policy provisions then in effect. Moreover, like the amendments at issue in Criger and Wright, an intent for retroactive application of the amendment at issue is discernable from neither the language of the amendment itself nor from any other indication of congressional intent.
For these reasons, the district court properly ruled that the Upton-Jones amendment to the National Flood Insurance Act, 42 U.S.C. § 4013(c), did not apply retroactively to cover the costs incurred by Leland in the relocation of his residence.
IV.
Leland also asserts that, even if the amendment does not apply retroactively, the amendment nonetheless affords coverage for his claim for relocation expenses. He contends that his “loss,” assertedly the relocation of his residence, was not complete until February 8, 1988, three days after the effective date of the amendment, when the septic tank at the relocated residence was completed and the dwelling approved for occupancy. Arguing that the amendment does not specify what event triggers coverage and that his “loss” did not occur until after February 5, 1988, Leland asserts that he should be given the benefit of coverage under the amendment by virtue of “general principles of federal law.”
Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program. (NFIP). See, e.g., Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987). In considering coverage questions arising under the NFIP, federal courts have recognized that, because potential exposure to claims and premium rates are estimated by FEMA in accordance with standard insurance practices, “Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks.” Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976); Sodowski, 834 F.2d at 655.
The standard flood insurance policy at issue in this case contains an exclusionary clause commonly referred to in the insurance industry as a “loss-in-progress” provision. That clause expressly states:
We only provide coverage for direct physical loss by or from flood which means we do not cover:
B. Losses of the following nature:
1. A loss which is already in progress as of 12:01 A.M. of the first day of the policy term, or as to any increase in the limits of coverage which is requested by you, a loss which is already in progress when you request the additional coverage.
44 C.F.R., Pt. 61, Art. Ill (1987).
It is thus seen from the provisions of Leland’s own policy that prospective changes in policy coverage are not intended to encompass losses already in progress at the time such changes in coverage are implemented. Such a result is consistent with the decisions of federal courts which have uniformly held that the “loss-in-progress” principle of standard insurance law applies to policies issued pursuant to the Act, and thus have denied coverage for flooding commencing prior to the effective date of a policy but not resulting in loss until after the effective date. See, e.g., Presley v. National Flood Insurers Assoc., 399 F.Supp. 1242, 1245 (E.D.Mo.1975); Mason Drug Co. v. Harris, 597 F.2d 886, 887-88 (5th Cir.1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978); Drewett, 539 F.2d at 498. Even in the absence of a “loss-in-progress” policy exclusion, federal courts have denied coverage for losses due to flooding which occurred prior to the effective date of a policy issued pursuant to the National Flood Insurance Program. See, e.g., Drewett, 539 F.2d 496; Summers, 573 F.2d 869.
In Drewett v. Aetna Cas. & Sur., an insured applied for and was issued a flood policy pursuant to the National Flood Insurance Program to cover his “camp house.” Prior to and on the date the policy was issued, flood waters had risen three to four feet up the stilts which supported the structure. 539 F.2d at 497. Three days after issuance of the policy, a levee which surrounded the property broke, allowing flood waters to enter the living quarters of the structure. Coverage was denied for the flood damage done to the residence on the basis of the “loss-in-progress” principle, with the Fifth Circuit noting:
[Although the [Flood Insurance] Program offers subsidized flood insurance, it is designed to operate much like any private insurance company.... Because the Program’s exposure to claims and its premiums are required to be estimated in accordance with standard insurance practices, and because private insurers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks. Nothing in the statute or regulations promulgated under it requires otherwise....
[T]he district court held that the “loss-in-progress” principle applies to policies issued under the Program, rejecting the same arguments made by Drewett here. This plainly is the correct conclusion. We affirm.
539 F.2d at 497-98 (citations omitted). See generally, Annotation, National Flood Insurance Risks and Coverage, 81 A.L.R. Fed. 416, 421, 434-35 (1987).
Although the “loss-in-progress” principle has been applied in cases such as Drewett, Presley, Summers and Mason to flood insurance coverage disputes which arose after the issuance of new policies of flood insurance rather than after the expansion of benefits pursuant to a statutory amendment, the rationale underlying the rule, namely, prevention of unfair allocation of loss to the insurer whether through fraud or innocent mistake, logically applies in the statutory amendment context as well. To hold otherwise, and to adopt Leland’s position that coverage exists merely because incidental repairs were made after the amendment’s effective date, would allow an insured to defer making such repairs to a flood-damaged structure in a purposeful effort to delay his “loss” until after enactment of future beneficial amendatory changes.
Application of the loss-in-progress principle to the facts of this case renders it apparent that there can be no coverage for Leland’s claim on the theory that his loss did not occur until February 8, 1988, when the septic system at the relocated residence was installed and approved. Indeed, there is no dispute that the storms which damaged the Leland residence and which necessitated relocation of the structure and the consequent replacement of the septic system, occurred in December, 1986, and in January and February, 1987. By November, 1987, nearly three months prior to the amendment’s effective date, a new site had been prepared and physical relocation of the structure to its new location had been completed.
Although installation and approval of the septic system was surely a necessary incident to the physical relocation and reinhabi-tation of Leland’s residence, it cannot be viewed in isolation from the other chain of events, particularly the flooding allegedly producing the damage in question, which occurred well prior to the amendment’s effective date of February 5, 1988. To the extent that installation of the septic system is a compensable loss under the amendment at issue, which we need not decide here, such loss was already in progress on the amendment’s effective date and does not furnish a basis for coverage of Leland’s claim.
V.
Accordingly, we agree with the decision of the district court granting summary judgment to the defendants and its judgment is hereby affirmed.
AFFIRMED.
. "Direct physical loss by or from a flood” is defined in the standard flood insurance policy as "any loss in the nature of actual loss of or physical damage evidenced by physical changes to the insured property (building or contents ...) which is directly and proximately caused by a 'flood'_” 24 C.F.R. Part 61, App. A(l), Art. II.
. "Flood” is defined in the standard flood policy as follows:
Wherever in this policy the term "flood” occurs, it shall be held to mean
A. A general and temporary condition of partial or complete inundation of normally dry land areas from:
1. The overflow of inland or tidal water.
2. The unusual and rapid accumulation or runoff of surface waters from any source.
3. Mudslides (i.e. mudflows) which are proximately caused by flooding as defined in paragraph A-2 of this article and are akin to a river of liquid and flowing mud on-the surfaces of normally dry land areas, including your premises, as when earth is carried by a current of water and deposited along the path of the current.
B. The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding the cyclical levels which result in flooding as defined in A-l above.
44 C.F.R. Part 61, App. A(l), Art. II (1987).
. The Administrator also determined that, even if the amendment were retroactive in operation, there would be no coverage for Leland’s loss inasmuch as the property had not been condemned by the local land use authority. The administrator also noted that the residence had been voluntarily moved despite no state or local condemnation action having taken place. In view of the disposition of other issues on this appeal, it becomes unnecessary to address either of these contentions.
. Whether coverage under the standard flood insurance policy for the structural damage done to Leland's residence would have existed but for the relocation is not before the court and we do not undertake to pass upon that issue here.
. The amendment at issue derived from the Housing and Community Development Act of 1987, Pub.L. No. 100-242, § 544(b), 101 Stat. 1972 (Feb. 5, 1988). Section 544(b) provides that "[T]he amendment made by this section shall become effective on the date of enactment of this Act.” Id.
. The amendment further provides:
(2) If any structure subject to a final determination under paragraph (1) collapses or subsides before the owner demolishes or relocates the structure and the Director determines that the owner has failed to take reasonable and prudent action to demolish or relocate the structure, the Director shall not pay more than the amount provided [by the mathematical formula set forth] in subpara-graph (A)(i) with respect to the structure.
(4)(A) The provisions of this subsection shall apply to contracts for flood insurance under this title that are in effect on, or entered into after, February 5, 1988.
(B) The provisions of this subsection shall not apply to any structure not subject to a contract for flood insurance under this title on the date of a certification under paragraph (1).
(C) The provisions of this subsection shall not apply to any structure unless the structure is covered by a contract for flood insurance under this subchapter—
(i) on or before June 1, 1988;
(ii) for a period of two years prior to certification under paragraph (1); or
(iii) for the term of ownership if less than two years.
(6)(A) The Director shall promulgate regulations and guidelines to implement the provisions of this subsection.
(B) Prior to the issuance of regulations regarding the State and local certifications pursuant to paragraph (1), all provisions of this subsection shall apply to any structure which is determined by the Director—
(i) to otherwise meet the requirements of this subsection; and
(ii) to have been condemned by a State or local authority and to be subject to imminent collapse or subsidence as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels.
42 U.S.C. § 4013(c) (1988).
. Although Leland has not so argued, some litigants seeking retroactive application of other amendments to FEMA have asserted, unsuccessfully, that retroactivity is warranted under the principles set forth in the earlier Supreme Court decision of Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). See, e.g., Wright v. Director, Federal Emergency Management Agency, 913 F.2d 1566, 1572-74.
In Bradley, the Court held that a statutory provision for attorneys' fees should be retroactively applied to a fee request pending when the statute was enacted. Bradley premised its holding upon the principle that a court must apply the law in effect at the time it renders its decision, absent manifest injustice, statutory direction or legislative history to the contrary. 416 U.S. at 715, 94 S.Ct. at 2018.
Even under the Bradley approach, however, retroactivity is not warranted in the present case inasmuch as application of the amendment would result in manifest injustice by distorting the rights of the respective parties already fixed by the policy provisions in effect prior to February 5, 1988.
. In Wright, the Eleventh Circuit noted:
Wright entered into a contractual relationship with FEMA when he signed consecutive insurance policies under the Program. The policies were for fixed terms, and Wright was obligated to pay a yearly premium. Each party was bound to comply with the explicit terms of the policies. Based on the terms of the policy, the federal government established premium rates, estimated the cost of the program, and determined its contours of liability. It acted, like a private insurance company, according to the terms of the contracts entered into in 1985 and 1986.... [S]uch a relationship created unconditional and matured rights upon which the parties relied. Retroactive application of the October Amendment would deny both the federal agency and Program participants "fixed, predictable standards for determining if expenditures are proper.” Further ... there are comparable "practical considerations related to the administration of’ an insurance program ... which necessitate obligations being generally determined by the policy terms in effect at the time Wright was actively insured under a SFIP.
913 F.2d at 1574 (emphasis in original) (citations and footnotes omitted).
. Consistent with general principles of insurance law, federal courts have recognized that, if the language of an insurance policy is reasonably open to alternative constructions, the one more favorable to the insured should be adopted. See, e.g., Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 84-85, 54 S.Ct. 590, 592-593, 78 L.Ed. 1137 (1934).
. In Presley, the court noted that the "loss-in-progress” principle has developed as a matter of public policy and has, as a fundamental purpose, prevention of the perpetration of fraud in the acquisition of insurance contracts. 399 F.Supp. at 1244-45.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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songer_origin
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D
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
In re POWER ENGINEERING CO. CHATHAM BANK OF CHICAGO v. CHATZ.
No. 9784.
United States Court of Appeals Seventh Circuit.
Oct. 13, 1949.
Arthur Abraham, Louis B. Getz, Chicago, Ill., for appellant.
William S. Collen, Joseph L. ICadison, Chicago, Ill., Lawrence E. Lewy, Chicago, Ill., of counsel, Attorney for John H. Chatz, Receiver-Trustee for Power Engineering Co., Bankrupt, Appellee.
Lee Walker, Stephen R. Chummers, Chicago, Ill., Attorneys for Reconstruction Finance Corporation as Amicus Curiae.
•Before MAJOR, Chief Judge, FINNEGAN, Circuit Judge and LINDLEY, District Judge.
MAJOR, Chief Judge.
This cause arises from the filing of a Reclamation Petition by the-Chatham Bank of Chicago in the bankruptcy proceedings of Power Engineering Company, praying for an order directing John H. Chatz, the Receiver, to surrender and turn over to the bank certain described machinery and equipment of which the bank claimed to be the owner by virtue of a Bill of Sale and a Conditional Sales Contract. Answers to the bank’s petition were filed by the Receiver and also by the bankrupt, alleging that the Bill of Sale and the Conditional Sales Agreement upon which the bank relied were void for failure to comply with the Illinois Bulk Sales Law, Ill.Rev.Stat.1947, c. 1211/2, § 78 et seq., and were fraudulent as to the Receiver and the creditors of the bankrupt. After hearing, the Referee entered an order sustaining the petition and directing that the chattels involved be turned over to the bank. Upon the Receiver’s petition for review of the Referee’s order, the District Court sustained the petition, entered an 'order vacating the order of the Referee and denying the petition of the bank. It is from this order that the appeal comes to this court.
On October 9, 1946, the bank loaned the Power Engineering Cqmpany the sum of $25,000, and three instruments were simultaneously executed between the parties : (1) a Bill of Sale by Power Engineering Company to the bank, purporting to convey certain machinery and other equipment therein described; (2) .a Conditional Sales Contract, whereby the bank purported to sell to Power Engineering Company the same machinery and equipment for the sum of $25,000 and interest, and (3) a loan agreement, under the terms of which it was provided : (a) Power Engineering Company was to deposit with the bank all its outstanding stock; (b) Power Engineering Company agreed “to constitute one J. W. Hutcherson, Comptroller and Office Manager of said corporation empowering him as such Comptroller to countersign any and all documents, contracts, agreements, checks or other writings” and “to amend its ByLaws providing for such authority”; (c) Power Engineering Company further agreed “to obtain a Fidelity Bond for said Comptroller payable to the Bank. The premium for said bond and the salary of said Comptroller shall be borne by the corporation”; (d) Power Engineering Company further agreed that “it will permit Henry J. Rossbach, a certified Public Accountant, to supervise, audit and examine any and all records of said corporation and to report his findings to the Bank. That said Henry J. Rossbach shall have the right to do any and all the acts above provided weekly, or oftener, if, in the opinion of the Bank, said action is necessary. The cost for the services of said Henry J. Rossbach shall be borne by the Corporation” (Rossbach was a director of the bank) ; and (e) it was also agreed that the corporation was to turn over to the bank all monies and invoices of sales made by it and that such monies and invoices received by the bank were to be disbursed as follows: 50% to be applied by the bank toward the retirement of the loan made by the bank to the corporation, 35% to be deposited to the credit of the Power Engineering Company, against which it was authorized to draw in order to carry on its business, meet its payroll and other operating expenses, and the remaining 15% to be held by the bank as additional security for the $25,000 loan.
None of the instruments referred to were filed for record under the Illinois Chattel Mortgage Act, Ill.Rev.Stats.1947, Chap. 95, Secs. 1 and 4, or otherwise, except the Conditional Sales Contract, which was filed for record March 25, 1947. It is not claimed that this recordation is of any benefit to the bank in the present litigation.
In spite of the numerous conflicting claims advanced here, two salient propositions emerge, both of which are conceded, or at any rate are not in dispute: (1) that the instruments executed between the parties had the effect of a chattel mortgage, and (2) such instruments were not filed for recording within the terms of Sec. 4 of the Chattel Mortgage Act. The bank, somewhat at variance with the issues created by the pleadings and advanced in the court below, contends that it is entitled to prevail under Sec. 1 of said Act because at the time of the execution of the instruments possession of the chattels was delivered to and remained with it. It appears, therefore, that unless the bank maintains the affirmative on this issue it cannot prevail on this appeal. And a decision adverse to the bank on this issue will obviate any occasion to discuss or consider other issues raised here or considered in the court below.
The Referee made findings of fact upon which its order favorable to the bank was predicated, and included therein was a finding that the bank did on October 9, 1946 take possession of the chattels described in the Bill of Sale and Conditional Sales Contract. There may be some doubt as to the weight which we should attach to this finding, inasmuch as the order of the Referee was set aside by the District Court; but it is fair to state that the court in its memorandum opinion did not specifically affirm or disaffirm the finding. For the purpose of this decision, however, we assume that this finding as to possession of the chattels should not be set aside unless clearly erroneous, as required by Rule 52(a) of the Rules of Civil Procedure, 28 US.C.A.
As bearing upon this issue, the only evidence other than the documents is that of Mr. Pernet, president of Power Engineering Company, and Mr. Riley, president of the bank. The loan was negotiated by these two persons. Pernet’s testimony is that Riley proposed to him that a chattel mortgage be executed to secure the loan, but that he, Pernet, objected because of the publicity and consequent injury to their credit. Per-net further testified that he informed Riley that they could have obtained all the money they wanted if they had been willing to make a chattel mortgage. In response, Riley stated “that he was going to see if they can fix it up some other way * * * if they can make it some other way which is just as secure without putting it in the papers.” Thus, it appears that the parties had an understanding that the recording provision of the Chattel Mortgage Act was to be avoided so that knowledge of the transaction would not be acquired by third persons.
The documentary evidence, in our judgment, is equally impotent as the basis for a finding that the bank acquired possession. As already noted, the Bill of Sale, Conditional Sales Contract and loan agreement were executed simultaneously. They were prepared by the bank. True, the Bill of Sale recites that the chattels were sold and delivered to the bank, but by the terms of the Conditional Sales Agreement the same chattels were immediately sold on condition and “delivered” by the bank to the Power Engineering Company. This contract expressly provided that “delivery and acceptance” of the chattels thereafter described “is hereby acknowledged by the Power Engineering Company.” The contract also contained a provision that in the "event of default in the terms thereof, the bank would have the right “to take immediate possession of said property,” and “for this purpose” to “enter upon the premises where said property may be and remove the same.” How the bank can logically contend that it acquired and retained possession of the chattels in view of these express provisions of the contract is not apparent to us. More than that, counsel for the bank at the hearing before the Referee attempted to prove that “in the latter part of May 1947” the bank threatened “to take possession of the chattels.” If the bank acquired possession on October 9, 1946, as it now asserts, it is difficult to discern the reason for its threat to take possession in May, 1947.
Much is said, however, concerning the provisions of the loan agreement. It is significant to note that this instrument prepared by the bank made no express provision for possession of the chattels by the bank. We have heretofore set forth the main provisions of this agreement and need not repeat. Just how or in what manner the provisions for delivery of the debtor’s corporate stock to the bank, or the resignation of the debtor’s officers and directors (no evidence that such were acted upon or accepted), or the provision by which the bank was given certain designated control over the debtor’s income and expenditures, are any evidence of the bank’s possession of the chattels is not discernible. Especially is this so in view of the express provision of the Conditional Sales Contract which lodged possession with the debtor. Another point inimical to the bank’s contention is, as already noted, the secret nature of the transaction between the parties.
There is no evidence that the bank placed any of its representatives in the position of officers of the debtor company. The proof does show that the same management was in authority and control after the loan as prior thereto.. Pernet testified that he ran the business before the loan and after the loan. This point is emphasized in the bank’s brief, which states, “If Pernet, the President and guiding spirit of Power Engineering Co., had been an honest man and had kept his agreement, no loss would have been suffered by any creditor.” Neither is there any substance to the bank’s claim to possession based upon its designation of Rossbach, auditor of Power Engineering Company, and Hutcherson, its bookkeeper, as the bank’s “representatives”. Both of these men performed their duties at the office of the debtor located at 361 East Ohio Street, while the location of the chattels of which the bank claims possession was at 2112 Southport Avenue, many miles from the office of the debtor. One of these men never visited the plant where the chattels were located and the other was there on two occasions to deliver payrolls. They were at all times paid by the debtor and worked under the supervision and direction of Per-net, the debtor’s president.
Many Illinois cases are cited as to what constitutes possession by a mortgagee so as to obviate compliance with the recording provision of the Chattel Mortgage Act. No good purpose could be served and it would unduly prolong this opinion to cite, much less discuss, such cases. It is evident from a reading of these cases that each is dependent upon its own particular facts. There is no case called to our attention which sustains the bank’s contention in the instant matter. The case in which the bank professes to find its strongest support is Martin v. Sexton, 112 Ill.App. 199. There, the lender specifically designated an agent to take physical possession and control and to operate the business and the premises on which it was conducted. The agent thereupon assumed actual control of the business, reorganized the restaurant part in which the mortgaged chattels were located, and was instructed by the lender to report to him, take charge of the cash, pay the bills and deposit the proceeds in the bank to the lender’s credit. These orders of the lender were complied with, with the consent and approval of the debtor. More than that, the lender visited the store every day, consulted with his agent on the premises where the business was located, looked over the accounts and gave directions concerning the business. In addition, the third party who was contesting the lien asserted by the lender had actual knowledge of the facts as above stated. Under these circumstances, the court held that the lender had possession of the chattels and therefore a prior lien, particularly as to the third party who had actual notice.
The facts in the case just noted are a far cry from those of the instant case where creditors of the debtor and third parties had no notice, either actual or constructive, that possession of the debtor’s chattels was in the bank. In our view, the bank’s present contention in this respect was an afterthought born to meet the exigencies of the situation with which it was confronted when the debtor became a bankrupt. We conclude that the finding of the Referee that the bank on October 9, 1946 took possession of the chattels in controversy was clearly erroneous.
It follows from what we have said that the bank’s petition for reclamation of such chattels was properly denied by the court below. The order appealed from is, therefore,
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
ATASCADERO STATE HOSPITAL et al. v. SCANLON
No. 84-351.
Argued March 25, 1985
Decided June 28, 1985
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, Blackmun, and Stevens, JJ., joined, post, p. 247. Blackmun, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 302. Stevens, J., filed a dissenting opinion, post, p. 304.
James E. Ryan, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were John K. Van de Kamp, Attorney General, Thomas E. Warriner, Assistant Attorney General, Anne S. Pressman, Supervising Deputy Attorney General, and G. R. Overton, Deputy Attorney General.
Marilyn Hollé argued the cause for respondent. With her on the brief were Joseph Lawrence, J. LeVonne Chambers, Eric Schnapper, and Stanley Fleishman.
Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Assistant Attorney General Cooper, Charles Fried, Christopher J. Wright, and Walter W. Barnett filed a brief for the United States as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation et al. by David L. Shapiro, Burt Neu-bome, Charles S. Sims, Paul L. Hoffman, and Mark D. Rosenbaum; for Senator Cranston et al. by Bonnie Milstein; and for the Disability and Employment Advocacy Project of the Employment Law Center by Joan M. Graff and Robert Barnes.
Justice Powell
delivered the opinion of the Court.
This case presents the question whether States and state agencies are subject to suit in federal court by litigants seeking retroactive monetary relief under § 504 of the Rehabilitation Act of 1973, 29 U. S. C. § 794, or whether such suits are proscribed by the Eleventh Amendment.
I — I
Respondent, Douglas James Scanlon, suffers from diabetes mellitus and has no sight in one eye. In November 1979, he filed this action against petitioners, Atascadero State Hospital and the California Department of Mental Health, in the United States District Court for the Central District of California, alleging that in 1978 the hospital denied him employment as a graduate student assistant recreational therapist solely because of his physical handicaps. Respondent charged that the hospital’s discriminatory refusal to hire him violated § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. § 794, and certain state fair employment laws. Respondent sought compensatory, injunc-tive, and declaratory relief.
Petitioners moved for dismissal of the complaint on the ground that the Eleventh Amendment barred the federal court from entertaining respondent’s claims. Alternatively, petitioners argued that in a suit for employment discrimination under §504 of the Rehabilitation Act, a plaintiff must allege that the primary objective of the federal assistance received by the defendants is to provide employment, and that respondent’s case should be dismissed because he did not so allege. In January 1980, the District Court granted petitioners’ motion to dismiss the complaint on the ground that respondent’s claims were barred by the Eleventh Amendment. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. Scanlon v. Atascadero State Hospital, 677 F. 2d 1271 (1982). It did not reach the question whether the Eleventh Amendment proscribed respondent’s suit. Rather it affirmed the District Court on the ground that respondent failed to allege an essential element of a claim under §504, namely, that a primary objective of the federal funds received by the defendants was to provide employment. Id., at 1272.
Respondent then sought review by this Court. We granted certiorari, 465 U. S. 1095 (1984), vacated the judgment of the Court of Appeals, and remanded the case for further consideration in light of Consolidated Rail Corporation v. Darrone, 465 U. S. 624 (1984), in which we held that §504’s bar on employment discrimination is not limited to programs that receive federal aid for the primary purpose of providing employment. Id., at 632-633. On remand, the Court of Appeals reversed the judgment of the District Court. It held that “the Eleventh Amendment does not bar [respondent’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.” 735 F. 2d 359, 362 (1984). Although noting that the Rehabilitation Act did not expressly abrogate the States’ Eleventh Amendment immunity, the court reasoned that a State’s consent to suit in federal court could be inferred from its participation in programs funded by the Act. The court based its view on the fact that the Act provided remedies, procedures, and rights against “any recipient of Federal assistance” while implementing regulations expressly defined the class of recipients to include the States. Quoting our decision in Edelman v. Jordan, 415 U. S. 651, 672 (1974), the court determined that the “‘threshold fact of congressional authorization to sue a class of defendants which literally includes [the] States’ ” was present in this case. 735 F. 2d, at 361.
The court’s decision in this case is in conflict with those of the Courts of Appeals for the First and Eighth Circuits. See Ciampa v. Massachusetts Rehabilitation Comm’n, 718 F. 2d 1 (CA1 1983); Miener v. Missouri, 673 F. 2d 969 (CA8), cert. denied, 459 U. S. 909 (1982). We granted certiorari to resolve this conflict, 469 U. S. 1032 (1984), and we now reverse.
II
The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” As we have recognized, the significance of this Amendment “lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. Ill” of the Constitution. Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98 (1984) (Pennhurst II). Thus, in Hans v. Louisiana, 134 U. S. 1 (1890), the Court held that the Amendment barred a citizen from bringing a suit against his own State in federal court, even though the express terms of the Amendment do not so provide.
There are, however, certain well-established exceptions to the reach of the Eleventh Amendment. For example, if a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action. See, e. g., Clark v. Barnard, 108 U. S. 436, 447 (1883). Moreover, the Eleventh Amendment is “necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment,” that is, by Congress’ power “to enforce, by appropriate legislation, the substantive provisions of the Fourteenth Amendment.” Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). As a result, when acting pursuant to § 5 of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the States’ consent. Ibid.
But because the Eleventh Amendment implicates the fundamental constitutional balance between the Federal Government and the States, this Court consistently has held that these exceptions apply only when certain specific conditions are met. Thus, we have held that a State will be deemed to have waived its immunity “only where stated ‘by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.’” Edelman v. Jordan, 415 U. S., at 673, quoting Murray v. Wilson Distilling Co., 213 U. S. 151, 171 (1909). Likewise, in determining whether Congress in exercising its Fourteenth Amendment powers has abrogated the States’ Eleventh Amendment immunity, we have required “an unequivocal expression of congressional intent to ‘overturn the constitutionally guaranteed immunity of the several States.’” Pennhurst II, 465 U. S., at 99, quoting Quern v. Jordan, 440 U. S. 332, 342 (1979). Accord, Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279 (1973).
In this case, we are asked to decide whether the State of California is subject to suit in federal court for alleged violations of § 504 of the Rehabilitation Act. Respondent makes three arguments in support of his view that the Eleventh Amendment does not bar such a suit: first, that the State has waived its immunity by virtue of Art. Ill, § 5, of the California Constitution; second, that in enacting the Rehabilitation Act, Congress has abrogated the constitutional immunity of the States; third, that by accepting federal funds under the Rehabilitation Act, the State has consented to suit in federal court. Under the prior decisions of this Court, none of these claims has merit.
HH HH J — i
Respondent argues that the State of California has waived its immunity to suit in federal court, and thus the Eleventh Amendment does not bar this suit. See Clark v. Barnard, 108 U. S. 486 (1883). Respondent relies on Art. Ill, § 5, of the California Constitution, which provides: “Suits may be brought against the State in such manner and in such courts as shall be directed by law.” In respondent’s view, unless the California Legislature affirmatively imposes sovereign immunity, the State is potentially subject to suit in any court, federal as well as state.
The test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one. Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147, 150 (1981) (per curiam). As we explained just last Term, “a State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.” Pennhurst II, supra, at 99. Thus, in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court. See Smith v. Reeves, 178 U. S. 436, 441 (1900); Great Northern Life Insurance Co. v. Read, 322 U. S. 47, 54 (1944). In view of these principles, we do not believe that Art. Ill, § 5, of the California Constitution constitutes a waiver of the State’s constitutional immunity. This provision does not specifically indicate the State’s willingness to be sued in federal court. Indeed, the provision appears simply to authorize the legislature to waive the State’s sovereign immunity. In the absence of an unequivocal waiver specifically applicable to federal-court jurisdiction, we decline to find that California has waived its constitutional immunity.
IV
Respondent also contends that in enacting the Rehabilitation Act, Congress abrogated the States’ constitutional immunity. In making this argument, respondent relies on the pre- and post-enactment legislative history of the Act and inferences from general statutory language. To reach respondent’s conclusion, we would have to temper the requirement, well established in our cases, that Congress unequivocally express its intention to abrogate the Eleventh Amendment bar to suits against the States in federal court. Pennhwrst II, supra, at 99; Quern v. Jordan, supra, at 342-345. We decline to do so, and affirm that Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. The fundamental nature of the interests implicated by the Eleventh Amendment dictates this conclusion.
Only recently the Court reiterated that “the States occupy a special and specific position in our constitutional system . . . .” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 547 (1985). The “constitutionally mandated balance of power” between the States and the Federal Government was adopted by the Framers to ensure the protection of “our fundamental liberties.” Id., at 572 (Powell, J., dissenting). By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance. “Our reluctance to infer that a State’s immunity from suit .in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system.” Pennhurst II, supra, at 99.
Congress’ power to abrogate a State’s immunity means that in certain circumstances the usual constitutional balance between the States and the Federal Government does not obtain. “Congress may, in determining what is ‘appropriate legislation’ for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.” Fitzpatrick, 427 U. S., at 456. In view of this fact, it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the guarantees of the Eleventh Amendment. The requirement that Congress unequivocally express this intention in the statutory language ensures such certainty.
It is also significant that in determining whether Congress has abrogated the States’ Eleventh Amendment immunity, the courts themselves must decide whether their own jurisdiction has been expanded. Although it is of course the duty of this Court “to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), it is appropriate that we rely only on the clearest indications in holding that Congress has enhanced our power. See American Fire & Cas. Co. v. Finn, 341 U. S. 6, 17 (1951) (“The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation . . .”).
For these reasons, we hold — consistent with Quern, Edel-man, and Pennhurst II — that Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.
In light of this principle, we must determine whether Congress, in adopting the Rehabilitation Act, has chosen to override the Eleventh Amendment. Section 504 of the Rehabilitation Act provides in pertinent part:
“No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 87 Stat. 394, as amended and as set forth in 29 U. S. C. § 794.
Section 505, which was added to the Act in 1978, as set forth in 29 U. S. C. § 794a, describes the available remedies under the Act, including the provisions pertinent to this case:
“(a)(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U. S. C. §2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.
“(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
The statute thus provides remedies for violations of § 504 by “any recipient of Federal assistance.” There is no claim here that the State of California is not a recipient of federal aid under the statute. But given their constitutional role, the States are not like any other class of recipients of federal aid. A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically. Pennhurst II, 465 U. S., at 99, citing Quern v. Jordan, 440 U. S. 332 (1979). Accordingly, we hold that the Rehabilitation Act does not abrogate the Eleventh Amendment bar to suits against the States.
V
Finally, we consider the position adopted by the Court of Appeals that the State consented to suit in federal court by accepting funds under the Rehabilitation Act. 735 F. 2d, at 361-362. In reaching this conclusion, the Court of Appeals relied on “the extensive provisions [of the Act] under which the states are the express intended recipients of federal assistance.” Id., at 360. It reasoned that “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 instru-mentalities,’ and ‘the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity,”’ id., at 361, citing Edelman v. Jordan, 415 U. S., at 672. The Court of Appeals thus concluded that if the State “has participated in and received funds from programs under the Rehabilitation Act, [it] has implicitly consented to be sued as a recipient under 29 U. S. C. §794.” 735 F. 2d, at 362.
The court properly recognized that the mere receipt of federal funds cannot establish that a State has consented to suit in federal court. Ibid., citing Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S., at 150; Edelman v. Jordan, supra, at 673. The court erred, however, in concluding that because various provisions of the Rehabilitation Act are addressed to the States, a State necessarily consents to suit in federal court by participating in programs funded under the statute. We have decided today that the Rehabilitation Act does not evince an unmistakable congressional purpose, pursuant to § 5 of the Fourteenth Amendment, to subject unconsenting States to the jurisdiction of the federal courts. The Act likewise falls far short of manifesting a clear intent to condition participation in the programs funded under the Act on a State’s consent to waive its constitutional immunity. Thus, were we to view this statute as an enactment pursuant to the Spending Clause, Art. I, § 8, see n. 4, supra, we would hold that there was no indication that the State of California consented to federal jurisdiction.
<1 I — I
The provisions of the Rehabilitation Act fall far short of expressing an unequivocal congressional intent to abrogate the States’ Eleventh Amendment immunity. Nor has the State of California specifically waived its immunity to suit in federal court. In view of these determinations, the judgment of the Court of Appeals must be reversed.
It is so ordered.
A State may effectuate a waiver of its constitutional immunity by a state statute or constitutional provision, or by otherwise waiving its immunity to suit in the context of a particular federal program. In each of these situations, we require an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment. As we said in Edelman v. Jordan, 415 U. S. 651, 673 (1974), “[clonstructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here.”
Justice Brennan’s dissent repeatedly asserts that established Eleventh Amendment doctrine is not “grounded on principles essential to the structure of our federal system or necessary to protect the cherished constitutional liberties of our people . . . Post, at 247-248; see also post, at 258, 302. We believe, however, that our Eleventh Amendment doctrine is necessary to support the view of the federal system held by the Framers of the Constitution. See n. 3, infra. The Framers believed that the States played a vital role in our system and that strong state governments were essential to serve as a “counterpoise” to the power of the Federal Government. See, e. g., The Federalist No. 17, p. 107 (J. Cooke ed. 1961); The Federalist No. 46, p. 316 (J. Cooke ed. 1961). The “new evidence,” discovered by the dissent in The Federalist and in the records of the state ratifying conventions, has been available to historians and Justices of this Court for almost two centuries. Viewed in isolation, some of it is subject to varying interpretations. But none of the Framers questioned that the Constitution created a federal system with some authority expressly granted the Federal Government and the remainder retained by the several States. See, e. g., The Federalist Nos. 39, 45. The Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself.
The principle that the jurisdiction of the federal courts is limited by the sovereign immunity of the States “is, without question, a reflection of concern for the sovereignty of the States . . . .” Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279, 293 (1973) (Marshall, J., concurring in result). As the Court explained almost 65 years ago:
“That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against the State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification.” Ex parte New York, 256 U. S. 490, 497 (1921) (citations omitted).
See also cases cited in n. 3, infra.
Justice Brennan’s dissent also argues that in the absence of jurisdiction in the federal courts, the States are “exemp[t] . . . from compliance with laws that bind every other legal actor in our Nation.” Post, at 248. This claim wholly misconceives our federal system. As Justice Marshall has noted, “the issue is not the general immunity of the States from private suit. . . but merely the susceptibility of the States to suit before federal tribunals.” Employees v. Missouri Dept. of Public Health and Welfare, supra, at 293-294 (concurring in result) (emphasis added). It denigrates the judges who serve on the state courts to suggest that they will not enforce the supreme law of the land. See Martin v. Hunter’s Lessee, 1 Wheat. 304, 341-344 (1816). See also Stone v. Powell, 428 U. S. 465, 493, n. 35 (1976), and post, at 256, n. 8.
In a remarkable view of stare decisis, Justice Brennan’s dissent states that our decision today evinces a “lack of respect for precedent.” Post, at 258. Not a single authority is cited for this claim. In fact, adoption of the dissent’s position would require us to overrule numerous decisions of this Court. However one may view the merits of the dissent’s historical argument, the principle of Hans v. Louisiana, 134 U. S. 1 (1890), that “the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. Ill,” Pennhurst II, 465 U. S., at 98, has been affirmed time and time again, up to the present day. E. g., North Carolina v. Temple, 134 U. S. 22, 30 (1890); Fitts v. McGhee, 172 U. S. 516, 524 (1899); Bell v. Mississippi, 177 U. S. 693 (1900); Smith v. Reeves, 178 U. S. 436, 446 (1900); Palmer v. Ohio, 248 U. S. 32, 34 (1918); Duhne v. New Jersey, 251 U. S. 311, 313 (1920); Ex parte New York, 256 U. S., at 497; Missouri v. Fiske, 290 U. S. 18, 26 (1933); Great Northern Life Insurance Co. v. Read, 322 U. S. 47, 51 (1944); Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459, 464 (1945); Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 304, n. 13 (1952); Farden v. Terminal Railway of Ala. Docks Dept., 377 U. S. 184, 186 (1964); United States v. Mississippi, 380 U. S. 128, 140 (1965); Employees v. Missouri Public Health and Welfare Dept., 411 U. S., at 280; Edelman v. Jordan, 415 U. S., at 662-663; Pennhurst II, supra. Justice Brennan long has maintained that the settled view of Hans v. Louisiana, as established in the holdings and reasoning of the above cited cases, is wrong. See, e. g., County of Oneida v. Oneida Indian Nation, 470 U. S. 226, 254 (1985) (Brennan, J., dissenting in part); Pennhurst II, supra, at 125 (Brennan, J., dissenting); Employees v. Missouri Dept. of Public Health and Welfare, supra, at 298 (Brennan, J., dissenting); Edelman v. Jordan, 415 U. S., at 687 (Brennan, J., dissenting). It is a view, of course, that he is entitled to hold. But the Court has never accepted it, and we see no reason to make a further response to the scholarly, 55-page elaboration of it today.
In a dissent expressing his willingness to overrule Edelman v. Jordan, supra, as well as at least 16 other Supreme Court decisions that have followed Hans v. Louisiana, see supra, Justice Stevens would “further unrave[l] the doctrine of stare decisis,” Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147, 155 (1981), because he views the Court’s decision in Pennhurst II as “repudiat[ing] at least 28 cases. ” Post, at 304, citing Pennhurst II, supra, at 165-166, n. 50 (Stevens, J., dissenting). We previously have addressed at length his allegation that the decision in Pennhurst II overruled precedents of this Court, and decline to do so again here. See Pennhurst II, supra, at 109-111, nn. 19, 20, and 21. Justice Stevens would ignore stare decisis in this case because in the view of a minority of the Court two prior decisions of the Court ignored it. This reasoning would indeed “unravel” a doctrine upon which the rule of law depends.
Petitioners assert that the Rehabilitation Act of 1973 does not represent an exercise of Congress’ Fourteenth Amendment authority, but was enacted pursuant to the Spending Clause, Art. I, § 8, cl. 1. Petitioners conceded below, however, that the Rehabilitation Act was passed pursuant to § 5 of the Fourteenth Amendment. Thus, we first analyze § 504 in light of Congress’ power under the Fourteenth Amendment to subject uncon-senting States to federal court jurisdiction. See Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). In Part V, infra, at 246, we address the reasoning of the Court of Appeals and conclude that by accepting funds under the Act, the State did not “implicitly consen[t] to be sued . . . .” 735 F. 2d 359, 362 (1984).
Although the Court of Appeals seemed to state that the Rehabilitation Act was adopted pursuant to § 5 of the Fourteenth Amendment, by focusing on whether the State consented to federal jurisdiction it engaged in analysis relevant to Spending Clause enactments.
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_trialpro
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on 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".
Cathleen GEEHAN, Plaintiff-Appellee, v. Richard S. MONAHAN, Defendant-Appellant.
No. 15950.
United States Court of Appeals Seventh Circuit.
July 6, 1967.
Suel O. Arnold, Milwaukee, Wis., Arnold, Murray & O’Neill, Milwaukee, Wis., of counsel, for appellant.
Charles M. Hanratty, Irving D. Gaines, Milwaukee, Wis., David A. Saichek, Milwaukee, Wis., of counsel, for appellee.
Before SCHNACKENBERG, CASTLE and FAIRCHILD, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Richard S. Monahan, defendant, has appealed from a judgment of the United States District Court for the Eastern District of Wisconsin entered April 21, 1966, against him and in favor of Cathleen Geehan, plaintiff, for $46,237.66 and costs, based on a jury verdict.
Plaintiff originally filed her complaint in the District Court of the United States for the Eastern District of Virginia, but, when defendant’s answer denied an allegation of the complaint that she was a resident and citizen of Virginia and stated that she was a resident and citizen of Wisconsin, the Virginia federal court entered an order on September 10, 1963, which read:
Upon consideration of the pleadings in the above-styled matter, and after hearing counsel, it appearing to the Court that the plaintiff did not establish such residence under Title 28, United States Code, § 1391(a), as to permit her to bring suit in this District; and
It further appearing to the Court that counsel, in view of the foregoing, have agreed that the action he transferred to the United States District Court for the Eastern District of Wisconsin, Milwaukee Division; it is [italics supplied]
ORDERED that Civil Action No. 2933 be, and it hereby is, transferred to the United States District Court for the Eastern District of Wisconsin, Milwaukee Division, for such further proceedings as that court deems proper. Title 28, United States Code, § 1404(a).
The Clerk is directed to mail certified copies hereof to the plaintiff and the defendant, and shall forthwith mail all of the files in Civil Action No. 2933 to the Clerk of the United States District Court for the Eastern District of Wisconsin, Milwaukee Division.
September 10,1963
/s/ Oren R. Lewis
United States District Judge
A copy of the foregoing order was filed in the Wisconsin court on September 12, 1963, and is a part of the record on appeal herein.
1. In this appeal defendant contends that the trial court in Wisconsin did not have jurisdiction over the subject matter of the action. He cites the facts that plaintiff originally alleged in her complaint, which she filed in the federal court in Virginia, that she was a citizen of that state and that defendant was a citizen of the District of Columbia, and that defendant denied plaintiff’s allegation as to his citizenship but alleged that he was a citizen of the state of New York, living in a student’s dormitory in the District of Columbia.
While defendant moved in the district court in Wisconsin to retransfer the case to the Virginia federal court, which motion was denied, that action was consistent with the view which we take of the validity of the order of the Virginia federal court above-quoted. While the order refers to 28 U.S.C. § 1404(a), which reads,
(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought,
it is sustainable only under § 1406(a), which provides:
(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have have been brought.
The mere fact that the court cited an irrelevant section of an act rather than a relevant one is no basis for invalidating its action.
Neither party to an action can be heard to impugn an order to which that party agreed at the time of its entry. Such was the order of September 10, 1963, which expressly recites that “counsel * * * have agreed that the action be transferred,” to the federal court in Wisconsin. We hold that it is a general rule that an agreed order is impregnable to attack by either side. No reason has been presented to exempt this order from the general rule.
By her second amended complaint dated June 14, 1965, plaintiff clearly asserted citizenship in Wisconsin and that of defendant in New York.
2. At the beginning of the trial on April 18, 1966, in the federal court in Milwaukee, Wisconsin, the court ruled that “Wisconsin substantive law will apply.” However defendant urges that the law of Virginia in that respect applied, citing, inter alia, Van Dusen v. Barrack, 376 U.S. 612, 642, 84 S.Ct. 805, 822, 11 L.Ed.2d 945 (1964):
“Since in this case the transferee district court must under § 1404(a) apply the laws of the State of the transferor district court, it follows in our view that Rule 17(b) must be interpreted similarly so that the capacity to sue will also be governed by the laws of the transferor State. * * *”
and, at 643, 84 S.Ct. at 823, the Supreme Court said:
“The holding that a § 1404(a) transfer would not alter the state law to be applied does not dispose of the question of whether the proposed transfer can be justified when measured against the relevant criteria of convenience and fairness. * * * ”
Having in mind our comment that, in making the transfer, the Virginia federal district court improperly cited § 1404(a), when § 1406(a) was applicable, we consider as inapplicable to the case at bar the statements in Van Dusen, quoted above, and also at 639, 84 S.Ct. at 821, which reads:
“ * * * change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms.”
and, at 646, 84 S.Ct. at 824, the following:
“ * * * We have concluded, however, that the District Court ignored certain considerations which might well have been more clearly appraised and might have been considered controlling had not that court assumed that even after transfer to Massachusetts the transferee District Court would be free to decide that the law of its State might apply. * * * ”
In other words, Van Dusen recognized that, under a § 1404(a) transfer, the law of the transferring jurisdiction follows the case.
3. Under the Erie Railroad v. Tompkins doctrine, the district court herein, having accepted the law of Wisconsin as applicable to this case, was guided as to Wisconsin policy in a conflict of laws situation (Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)), by the case of Wilcox v. Wilcox, 26 Wis.2d 617, 634, 133 N.W.2d 408, 416 (1965). In Wilcox, plaintiffs, husband and wife, Wisconsin residents, were involved in an automobile accident in Nebraska, while the husband was driving. The wife, who sued her husband, was a passenger. The suit was brought in Wisconsin and the husband’s liability insurer was named as a co-defendant. Because the complaint alleged only ordinary negligence, the trial court, following the law of Nebraska, sustained a demurrer to the complaint. The guest statute of Nebraska allows recovery from a host by a guest only if gross negligence or intoxication of the host is pleaded and proved. But the complaint alleged that both plaintiff and defendant were domiciled in Wisconsin and that their insurance carrier was organized, licensed and domiciled in that state and that the policy on the car was issued and delivered in Wisconsin to afford coverage on Wilcox’s automobile, which was usually kept in Wisconsin. The accident occurred when the Wilcoxes were returning to Wisconsin from a vacation.
The trial judge sustained the demurrer under the existing rule that the place of the tort is the law of the case irrespective of the forum, residence of the parties, or other factors.
However, on appeal, the Supreme Court of Wisconsin adopted a “grouping of contacts” rule for the choice of applicable law, and decided that Wisconsin host-guest law, under which a guest can recover for the host’s negligence, should be applied in an action for damages arising from an accident which occurred in Nebraska.
It is true that, in the Wilcox case, the parties had a greater number of significant contacts with Wisconsin than do the parties in the present case. The Wisconsin court did, however, state a general rule on page 634, on page 416 of 133 N.W.2d, as follows:
“ * * * We start with the premise that if the forum state is concerned it will not favor the application of a rule of law repugnant to its own policies, and that the law of the forum should presumptively apply unless it becomes clear that nonforum contacts are of the greater significance. * * * ”
In the case now before us Wisconsin is the forum state. It is concerned because the plaintiff is domiciled there. It is not clear that nonforum contacts, i. e. in New York or Virginia, are of greater significance with respect to the host-guest relationship. We, therefore, interpret Wilcox as requiring that Wisconsin host-guest law be applied in this case.
4. During the voir dire examination of veniremen, plaintiff’s attorney asked prospective jurors the following question:
“Now, members of the jury, if you are satisfied from the evidence, including the medical evidence, that will be introduced in this trial, that the plaintiff has sustained serious and permanent personal injuries, would you have any hesitancy of returning a verdict commensurate with the injuries you find she has, even though it might run many thousands of dollars ?”
Defense counsel objected upon the ground that the question improperly asked for a “pledge” from the jury, but was overruled by the court.
Such a question is generally permitted in the discretion of the court. We see no basis for the objection. See Murphy v. Lindahl, 24 Ill.App.2d 461, 165 N.E.2d 340, 82 A.L.R.2d 1410 (1960).
Moreover, defendant has not attempted to show any prejudice resulting from the asking of the foregoing question. Defendant makes no contention that the damages allowed by the jury are excessive.
5. When called adversely by the plaintiff as a witness, defendant testified he did not remember the actual collision as he was knocked unconscious as a result thereof. Defendant requested that the court instruct the jury that
“ * * * where a motorist receives injuries in an accident which result in amnesia as to the events leading up to the accident, the motorist is entitled to the benefit of the presumption that he exercised due care for his own safety until there is competent evidence to overcome that presumption.”
However, the court, over the objection of defendant, gave the jury a res ipsa loquitur instruction, which was repeated at the request of the jury. Under that instruction the jury was told:
“ * * * If you find that the defendant, Richard S. Monahan, had exclusive control of the Volkswagen automobile involved in the accident, and if you also find that his automobile invaded the opposite lane of traffic and that this invasion is the type or kind of invasion that ordinarily would not have occurred had defendant, Richard S. Monahan, exercised ordinary care, then you may infer from the occurrence itself and the surrounding circumstances that there was negligence on the part of the defendant unless the defendant has offered to you an explanation of the occurrence which is satisfactory to you.”
We hold that the district court properly refused the proffered instruction on retrograde amnesia and did not err in instructing the jury on res ipsa loquitur. In Brunette v. Dade, 25 Wis.2d 617, 131 N.W.2d 340 (1964), where plaintiff, driving a motorcycle, collided with defendant’s automobile, and the jury found plaintiff 60% negligent, the court, at 622, at 342 of 131 N.W.2d, citing an earlier case, said:
“ ‘This court is committed to the doctrine that where in a negligence case evidence is introduced which would support a jury finding contrary to the presumption that a deceased person or one who has suffered amnesia exercised due care for his own safety the presumption is eliminated and drops out of the case entirely and no instruction upon that subject should be given to the jury.’ ”
In Voigt v. Voigt, 22 Wis.2d 573, 126 N.W.2d 543 (1964), the court at 583, at 548 of 126 N.W.2d stated:
“Once testimony was received that Beaton’s car invaded the wrong lane of travel, there arose an inference of negligence which eliminated the presumption of due care.”
6. We find no error, as charged by defendant, in the trial court’s action in permitting plaintiff’s counsel to ask defense witness Larsen whether he had been reimbursed for his injuries.
For all of these reasons, the judgment from which this appeal was taken is affirmed.
Judgment affirmed.
. Title 28, U.S.C., Federal Rules of Civil Proo.edure, Rule 17 (b): (b) * * * The capacity of an individual, * * * to sue or be sued shall be determined by the law of his domicile.
. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938).
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_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
DU BOIS v. ZIMMERMAN et al.
Circuit Court of Appeals, Third Circuit.
September 20, 1928.
No. 3802.
James B. Avis, of Woodbury, N. J., for appellant.
Frank E. Paige, of Philadelphia, Pa., for appellees.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
Josiah E. Du Bois engaged by written contract to sell and convey unto Alice G. Zimmerman and Ida Gleim a certain property situate in the city of Woodbury and state of New Jersey at an agreed valuation in consideration of one dollar and more particularly in consideration of the sale and conveyance by them unto him of certain properties in Florida at an agreed valuation, the women purchasers of the Woodbury property to give Du Bois a mortgage for a named sum secured thereby and free the Florida properties of existing liens and create against certain of them a new mortgage for a stated sum, failure on their part to create such mortgage or to perform any other term of the agreement worked its termination “at the option” of Du Bois. Disagreements followed, Du Bois rescinded the contract and Zimmerman and Gleim filed against Du Bois a bill for specific performance on which, after hearing, the District Court entered a decree that Du Bois specifically perform his part of the contract by conveying the Woodbury property unto the ven-dees. Du Bois appealed and has raised three questions:
The first, whether he was induced to execute the written agreement by fraudulent representations as to the value of the Florida properties, we resolve against him without reciting the supporting testimony; the second and third, whether the written contract can be modified or changed by antecedent, concurrent or subsequent oral agreements between the parties and proved by parol evidence and whether Du Bois had a right to rescind the contract by reason of Zimmerman’s and Glenn’s failure to create the new mortgage against the Florida properties and do other things required by its terms.
On the questions as framed the parties argued familiar law that all agreements reached in negotiations are presumed to be embodied in the writing into which they have subsequently entered and that understandings not embodied in the writing cannot be added to the agreement by parol evidence although admittedly the parties may, by mutual action and for sufficient consideration, modify its terms as often as they desire. Producers Coke Co. v. Hoover, 268 Pa. 104, 110 A. 733. But after a critical study of this record we are satisfied there are no such questions of law in the ease because the matters claimed as breaches of the contract or as improperly proved by parol had nothing to do with the main terms of the agreement affecting the trade. It had to do with preparing papers and creating the mortgage. These under the agreement were undertakings by Zimmerman and Gleim, but evidently they convinced the trial court and certainly they have convinced this court that Du Bois, who was a real estate broker, had, whether or not he was aware of the legal effeet, persuaded them to let him draw the papers and otherwise perform certain of their parts of the written contract, for which he charged them a fee of $270. Therefore we decide this appeal against Du Bois, not on the existence and admission in evidence of contemporaneous oral agreements, but on the ground that subsequently to the written agreement he persuaded the two women not to perform certain of their undertakings by promising that he would attend to them — for a consideration. In this way, unconsciously perhaps, he induced them to breach their contract. Clearly he cannot now take advantage of his own technical wrongdoing. In other words, he cannot take advantage of breaches by other parties which he himself brought about.
The deeree for specific performance is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp1_1-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America v. Charmaine Y. ZEIGLER, Appellant.
No. 91-3301.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 25, 1993.
Decided June 4, 1993.
Jonathan S. Zucker, Washington, DC (appointed by this court) argued the cause and filed the brief, for appellant.
Barbara K. Bracher, Asst. U.S. Atty., Washington, DC, argued the cause, for appel-lee. With her on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher and Thomas C. Black, Asst. U.S. Attys., Washington, DC.
Before: EDWARDS, D.H. GINSBURG, and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
This appeal from a criminal conviction raises an old problem. The government’s evidence falls short of proving guilt beyond a reasonable doubt. Nevertheless, the trial court denies the defendant’s motion for judgment of acquittal. The defense puts on its case and the defendant takes the stand. The jury then returns a verdict of guilty. Perhaps the defendant’s demeanor, itself evidence, caused the jury to infer that the truth was the opposite of what the defendant said. However, as Judge Learned Hand wrote in Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.1952), the demeanor evidence has “disappeared.” Should an appellate court nevertheless affirm on the supposition that the defendant’s demeanor filled the gap in the government’s proof; or should the court reverse because the record does not reveal sufficient evidence to support the conviction? We mentioned the issue in United States v. Jenkins, 928 F.2d 1175, 1178-79 (D.C.Cir.1991), but did not decide it.
I
Charmaine Y. Zeigler was tried before a jury for possessing with intent to distribute crack cocaine, 21 U.S.C. § 841(a) & (b)(l)(B)(iii); and for using and carrying firearms during and in relation to that offense, 18 U.S.C. § 924(c)(1). Her co-defendant, Devon A. Waite, faced these charges and the additional charge of knowingly receiving, possessing, and transporting firearms in interstate commerce after having been previously convicted of a felony. 18 U.S.C. § 922(g)(1).
The government’s evidence showed that police officers executing a search warrant forcibly entered an apartment at 11 Galveston Place, Southwest. The apartment, formerly two units side by side, occupied the top floor of a small two story building. Facing the front of the building, Waite’s bedroom had been the living room of apartment # 3, on the building’s left side. A rear door in this room led to a hallway. Directly across the hallway was a kitchen, in the far left rear of the apartment. Down the hallway and adjacent to the kitchen was a bedroom. Apartment #4, on the right side, had the same configuration, with a living room in the front; a laundry room (apparently a former kitchen) across the hallway in the right rear of the apartment; and an adjacent bedroom. The two apartments had been converted to one. The hallway in each, which separated the front rooms and the kitchen (or laundry room) and each apartment’s bedroom in the rear, now ran the entire width of the apartment.
After the officers entered, they found three people inside, each of whom they placed in custody. The officers spotted Waite crossing the hallway between his bedroom and the kitchen, on the left side of the apartment. They found Zeigler in Waite’s bedroom. A third individual, Angela Hicks, was in the bedroom of former apartment # 4, on the right side.
The search of Waite’s bedroom turned up a small bag of marijuana on the headboard of the bed; a Ruger .22 caliber semiautomatic pistol on the floor behind a chair; $254 in cash and a money order on the dresser; also on the dresser, an ammunition pouch containing two speed loaders each with six rounds of .38 caliber ammunition. In the trash can in the kitchen across from Waite’s bedroom was a loaded Sports Arms .38 caliber revolver.
Down the hallway, in the living room, the officers found $533 in cash under a seat cushion, a bag of marijuana, and 7 rounds of 9 millimeter ammunition in a teapot.
■ The door to the laundry room, in the right rear corner of the apartment opposite the living room, was locked with a hasp and a padlock. The officers ripped the lock from the door and entered. Inside was a washing machine and a maroon briefcase, locked with combination locks. The briefcase contained 5.5 grams of crack cocaine, a razor blade, a Walther PPK .38 caliber semiautomatic handgun, $740 in U.S. currency, and two money orders.
Apart from the clothes she was wearing and the bag of marijuana, the officers found no personal effects of Zeigler’s in the apartment — no documents, personal papers, bills, extra clothing, or the like.
While the search was underway, the officers moved Zeigler, Waite, and Hicks to a couch in the living room, and asked each of them their name and where they lived. Zeigler identified herself and said she lived at “11 Galveston Place, Southwest.”
After presenting this evidence, the government called Barbara Anderson, the owner of the apartment building. She testified that she rented the top floor of the building to Waite and collected the rent from him, either in cash or money orders. Anderson thought Zeigler “lived” there with Waite. She based this conclusion on her seven or eight visits to the building between the summer of 1990 and October 2, 1990, when the search took place. During these visits she saw Zeigler, although not each time. She also called Waite; Zeig-ler answered the telephone. On one occasion, Zeigler — in response to Anderson’s question about a crib standing just outside Waite’s bedroom — said she was pregnant. (The police did not find a crib in the apartment.) Anderson also believed that Waite had rented part of his apartment to another woman and that a George Pope also lived there for a time.
At the close of the government’s case, Zeigler (and Waite) moved, pursuant to Rule 29, Fed.R.Crim.P., for a judgment of acquittal. The district court summarily denied the motions.
Waite then put on his defense. He produced three witnesses to support his theory that the top floor apartment consisted of two distinct apartments, and that while the cocaine had been found in the right portion of the apartment, Waite exclusively occupied the left. Waite did not testify.
Zeigler took the stand in her defense. She admitted that the marijuana in Waite’s bedroom was hers. She said that Waite was her boyfriend; that she had “been staying [at his apartment] off and on for two or three months”; that she stayed only in the portion formerly used as apartment # 3 and never ventured to the other side; and that Angela Hicks occupied the other side. According to Zeigler, she did her laundry at a laundromat with her mother, did not know there was a washing machine in the apartment, had never seen the door to the laundry room, and did not know who had the combination to the padlock on the laundry room door. She denied seeing any cocaine or guns in the apartment. When asked about the maroon briefcase, Zeigler said that she had never seen Waite with it but “Angie had a briefcase like it.” She disclaimed any knowledge of the combinations to the locks on the briefcase.
Zeigler’s parents also testified. According to her mother, Zeigler stayed at Waite’s apartment only a few nights a week. On her three visits to Waite’s apartment, her daughter and Waite were occupying only the left side of the apartment. Zeigler’s father testified that his daughter lived with him during August and September of 1990, although she did not spend every night at home.
The jury acquitted Zeigler (and Waite) of possession with intent to distribute and of possession of a firearm in relation to that offense. The jury convicted Zeigler (and Waite) of the lesser included offense of possession of a controlled substance. 21 U.S.C. § 844(a). Waite was also convicted of one count of unlawful possession of a firearm.
At the close of evidence, Zeigler had renewed her motion for a judgment of acquittal, as had Waite. After the verdict the district court denied the motions in a memorandum opinion. As to Zeigler, the court stressed her relationship with Waite and her frequent presence in the apartment. The court also found “as the jury obviously did, that much of Zeigler’s testimony was not credible insofar as it was intended to protect Waite.” She testified “that she never saw guns ... in the apartment, although there was other testimony that weapons [and] weapons accessories ... were in plain view in the bedroom in which Zeigler was present at the time of her arrest.”
II
A
The general issue is whether sufficient evidence supports Zeigler’s conviction for possession of the cocaine. Viewing the government’s evidence in the light most favorable to it, we do not detect enough proof to connect Zeigler to the cocaine found in the laundry room. Nothing indicated that she actually possessed the cocaine. Her guilt depended on the government’s proving beyond a reasonable doubt that she constructively possessed it, that she “knew of, and was in position to exercise dominion and control over” the cocaine. United States v. Byfield, 928 F.2d 1163, 1166 (D.C.Cir.1991); United States v. Johnson, 952 F.2d 1407, 1411 (D.C.Cir.1992). Zeigler’s frequent presence in the apartment, the scene in the bedroom when the police arrived, and the landlady’s testimony established her close ties with Waite and with the premises. Even so, where in the government’s case is there proof that Zeigler knew of the cocaine? Her knowledge might have been inferred if Waite were selling drugs from the apartment. But the government presented no such evidence; and, in any event, the jury acquitted both defendants of the distribution charge.
Even if there were evidence of Zeigler’s knowledge of the cocaine, the government’s case would still fall short. Zeigler was near the cocaine, down the hallway from it when the police arrived. But “ ‘mere proximity or accessibility to contraband will not support a conclusion that an individual had knowing dominion and control over it.’ ” United States v. Williams, 952 F.2d 418, 420 (D.C.Cir.1991) (quoting United States v. Foster, 783 F.2d 1087, 1089 (D.C.Cir.1986)), cert. denied, — U.S. -, 113 S.Ct. 148, 121 L.Ed.2d 99 (1992). Those who spend considerable time in another’s apartment, even those who “live” there, do not for that reason possess everything on the premises. No one would say, for instance, that Zeigler “possessed” Waite’s spare clothing simply by knowing the contents of his dresser. The cocaine was locked in a briefcase in a locked room in someone else’s apartment. The jury might have concluded that the occupants treated this as one apartment and that Zeig-ler crossed the invisible barrier in the hallway, freely moving from one side of the apartment to the other. Yet the government presented no evidence, circumstantial or direct, that Zeigler ever entered the laundry room or had the combination to the locks on its door or on the briefcase. When we look at the government’s evidence and ask if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Derr, 990 F.2d 1330, 1337 (D.C.Cir.1993), the answer is no. Our cases go rather far in sustaining possession convictions of persons living on premises where drugs are found, see United States v. Jenkins, 928 F.2d at 1179; United States v. Morris, 977 F.2d 617, 620 (D.C.Cir.1992), but not so far as the government wants to take us in this case.
B
The trial court therefore erred in denying Zeigler’s motion for a judgment of acquittal made at the close of the government’s case-in-chief. But this error does not in itself warrant reversing her conviction. Our en banc decision in United States v. Foster, 783 F.2d 1082, 1083 (D.C.Cir.1986), discarded the rule “that objection to denial of a motion for judgment of acquittal made at the close of the government’s case-in-chief is not waived by the defendant’s proceeding with the presentation of his evidence, so that the validity of an ensuing conviction must be judged on the basis of the government’s initial evidence alone.”
Zeigler’s sufficiency claim therefore must be evaluated in light of all the evidence introduced at trial, including evidence the defense presented. See also Byfield, 928 F.2d at 1165-66. As to Zeigler’s testimony, none of her answers, on direct or on cross-examination, assisted the prosecution’s case. The government proposes that we look beyond her words, thereby raising the question discussed in Judge L. Hand’s famous Dyer v. MacDougall opinion (201 F.2d 265 (2nd Cir.1952)). See Jenkins, 928 F.2d at 1178-79.
Dyer v. MacDougall began as an action for libel and slander. The plaintiffs only witnesses would have been the two defendants. His plan was to call them to the stand, have them deny uttering the slanders, and hope the jury, in light of their demeanor, would believe the opposite of what they testified. Because in such event there could be no effective appellate review of a verdict in the plaintiffs favor, Judge Hand ruled for the court that the defendants were entitled to summary judgment. To be sure, a witness’s demeanor “is a part of the evidence.” 201 F.2d at 269. The jury “may, and indeed they should,” take it into consideration. Id. Demeanor evidence “may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.” Id.; cf. NLRB v. Walton Mfg. Co., 369 U.S. 404, 406-08, 82 S.Ct. 853, 854-55, 7 L.Ed.2d 829 (1962). “He, who has seen and heard the ‘demeanor’ evidence, may have been right or wrong in thinking that it gave rational support to a verdict; yet, since that evidence has disappeared, it will be impossible for an appellate court to say which he was.” Id. Thus, while it was “true that in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him.” Id.
Juries in criminal cases, like juries in civil actions, may and should take a witness’s demeanor into account. Perhaps the jury here treated Zeigler’s testimony, in light of her demeanor, in the manner described by Judge Hand. If it made “negative” inferences, these would have supplied enough evidence to convince any rational juror of her guilt beyond a reasonable doubt. Inferring the opposite of what she testified — as the government supposes the jury did — would mean that for months Zeigler had been living full-time with Waite in the apartment; that she ventured throughout the apartment; that she saw cocaine and guns in the apartment; that she knew of the laundry room, knew it was locked and knew who had the combination to the lock; and — most important — that she had the combinations to the locks on the briefcase containing the cocaine.
This raises an obvious problem. It is not only impossible to determine whether the jury made all or any of these negative inferences, but also impossible to judge whether it would have been justified in doing so. Jury deliberations are secret. Demeanor evidence is not captured by the transcript; when the witness steps down, it is gone forever. An appellate court cannot evaluate it, and therefore cannot determine how a rational juror might have treated it. The situation would be different if the defendant’s testimony, on its face, were utterly inconsistent, incoherent, contradictory or implausible. Then an appellate court would have some assurance that when the defendant said “black” the jury reasonably could have concluded that the truth was “white.” This may have been the situation as the plurality saw it in Wright v. West, but it is not the situation here. Zeig-ler’s testimony relating to the cocaine in the briefcase was hardly implausible.
Because we cannot evaluate demeanor, a decision along the lines the government proposes would mean that in cases in which defendants testify, the evidence invariably would be sufficient to sustain the conviction. We would in each such case assume the jury correctly evaluated the evidence. In explaining how this could be so in light of the defects in the government’s proof, we would reason backwards to the only explanation available — the defendant’s demeanor. This sort of approach, beginning with the hypothesis that the jury must have gotten things right, contradicts the reason why appellate courts review convictions for sufficiency of evidence — that juries sometimes get things wrong. Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788.
We have considered the possibility of a middle ground, of a rule such as this: when the government has presented at least some evidence of guilt, an appellate court may add negative inferences from the defendant’s testimony to sustain the conviction. The Second Circuit has rejected the idea: “Although [demeanor] is a legitimate factor for the jury to consider, this could not remedy a deficiency in the Government’s proof if one existed.” United States v. Sliker, 751 F.2d 477, 495 n. 11 (2d Cir.1984). The Supreme Court rejected it in a denationalization case tried to a court. Nishikawa v. Dulles, 356 U.S. 129, 137, 78 S.Ct. 612, 617, 2 L.Ed.2d 659 (1958). There is no principled way of deciding when the government’s proof, less than enough to sustain the conviction, is nevertheless enough to allow adding negative inferences from the defendant’s testimony to fill the gaps. We cannot subscribe to the Seventh Circuit’s analysis in United States v. Zafiro, 945 F.2d 881, 888 (1991), aff'd on other grounds, — U.S. -, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), which the plurality cited in West, U.S. at -, 112 S.Ct. at 2492. Zafiro reasons that defendants will not take the stand if the government has offered no evidence of guilt: if the government has presented no evidence, the district court will quickly end the case by entering'a judgment of acquittal. 945 F.2d at 888. Therefore, appeals presenting the Dyer v. MacDougall problem “are unlikely to occur” and the prospect of undermining appellate review should be of little concern. Id. This of course assumes that district courts will not err. Also, Zafiro does not answer the question before us — what does an appellate court do when the government has presented some evidence, but that evidence is itself insufficient to sustain the conviction, and the district court does not end the case? Such appeals, rare as the Zafiro court thought they may be, do occur. This is one of them. And it is one in which the defendant did decide to testify.
Only speculation supports Zeigler’s conviction. We cannot determine whether Zeigler, by her demeanor on the stand, supplied the evidence needed to support her conviction. It is true that the traditional method of reviewing the sufficiency of evidence in criminal cases itself involves some speculation. We take the evidence in the light most favorable to the government, yet we cannot be sure the jury took it that way. But at least we draw inferences from the record. We do not begin and end on nothing more than a guess about what the jury might have observed at trial. Appellate review of the sufficiency of evidence protects against wrongful convictions. We refuse to destroy the protection in cases in which defendants testify.
Reversed.
. The government also presented several expert witnesses who testified about the guns, the chemical analysis of the cocaine, and the modus oper-andi of drug dealers.
. Zeigler also moved for a new trial on the basis of newly discovered evidence contained in an affidavit of Angela Hicks. Defense counsel stated that he had been unable to locate Hicks prior to trial. In her affidavit executed after trial, Hicks swore that she had been living on the right side of the apartment for about a month before the search; that she had been taken there by "Tony Ford”; that Ford was the only person she had ever seen go into the laundry room (where the cocaine was discovered); that she — Hicks— owned a "brown burgundy briefcase" while she was living in the apartment but that she did "not know what happened to it.” The court denied the motion.
. - U.S. -, -, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992). After quoting extensively from the cross-examination of the defendant, id., - U.S. at -, 112 S.Ct. at 2484-85 n. 1, the plurality opinion concluded that the jury could have considered defendant’s testimony "perjured” and, if so, as affirmative evidence of guilt. Id., - U.S. at -, 112 S.Ct. at 2492. Of this there is- no doubt. The issue we face is different: it concerns not the jury's prerogative, but the function of an appellate court reviewing the sufficiency of evidence to support a conviction.
.We were too hasty in Jenkins, 928 F.2d at 1179, when we said that the Second. Circuit takes demeanor evidence into account in determining whether there is sufficient evidence to support a conviction. The quotation in the text from Sliker is plainly to the contrary.
In an earlier opinion, after saying that “a jury is free, on the basis of a witness' demeanor, to 'assume the truth of what he denies’ although a court cannot allow a civil action, much less a criminal prosecution, to go to the jury on the basis of this alone,” Judge Friendly, writing for the Second Circuit in United States v. Marchand, 564 F.2d 983, 986 (1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978), reviewed the evidence and found it sufficient without relying on demeanor evidence. 564 F.2d at 999-1001. Judge Friendly followed the same approach in United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir.1969): the government "having submitted substantial proof of Geaney's guilt, the judge could take into account the likelihood that in Judge L. Hand's well-known phrase [in Dyer v. MacDougall], the jury would find ‘not only that the witness’ testimony is not true, but that the truth is the opposite of his story * * *.' ” See also United States v. Eisen, 974 F.2d 246, 259 (2d Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1619, 123 L.Ed.2d 178 and - U.S. -, 113 S.Ct. 1840, 123 L.Ed.2d 467 (1993).
. Or to the Ninth Circuit's in United States v. Kenny, 645 F.2d 1323, 1346 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981).
. Zafiro did not mention the Seventh Circuit's earlier. decision, in a labor board case, holding that the findings of an administrative law judge could not be sustained on the basis that the ALJ must have believed "that the opposite of that to which [the witnesses] testified was true.” Roper Corp. v. NLRB, 712 F.2d 306, 310 (7th Cir.1983). "[I]f such 'proof' were acceptable as sufficient evidence, effective review of fact-finding would involve analysis of a chimera.” Id.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
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sc_petitioner
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027
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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. LANE et al.
No. 84-744.
Argued October 9, 1985
Decided January 27, 1986
Burger, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined, and in Part III of which Brennan, Marshall, Blackmun, and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Blackmun, J., joined, post, p. 453. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 465.
Bruce N. Kuhlik argued the cause for the United States. With him on the briefs were former Solicitor General Lee, Acting Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz.
Clifford W. Brown argued the cause for respondents in No. 84-744 and petitioners in No. 84-968. With him on the brief was Robert Michael Brown.
Together with No. 84-963, Lane et al. v. United States, also on certio-rari to the same court.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to resolve a conflict among the Circuits as to whether a misjoinder under Rule 8 of the Federal Rules of Criminal Procedure is subject to the harmless-error rule, and to determine whether there is sufficient evidence in this case to support convictions for mail fraud under 18 U. S. C. § 1341.
I
A
James Lane and three partners opened the El Toro Restaurant in Amarillo, Texas, in the summer of 1978. The business never operated at a profit, however, and sales began to decline that fall. In November, Lane purchased fire insurance covering the building’s contents and improvements and any related business losses. Simultaneously, he hired Sidney Heard, a professional arsonist, to burn the building in order to escape the lease and partnership. On February 27, 1979, Heard set a fire that caused smoke damage to the building’s contents. Lane first settled with the insurer on the contents and improvements. He then submitted an income statement that falsely indicated the restaurant had operated at a profit. After the insurance adjuster mailed the statement to the insurer’s headquarters, Lane settled his business interruption claim.
In early 1980, Lane again hired Heard to set fire to a duplex that Lane was moving to a vacant lot in Amarillo. Lane obtained a fire insurance policy on the building, listing the owner as L & L Properties, a partnership between his son Dennis Lane and Andrew Lawson. An accomplice of Heard’s burned the duplex on May 1, 1980.
Thereafter, on three occasions Dennis Lane signed proof-of-loss claims for repairs and submitted them to an insurance adjuster, who issued drafts in return totaling $12,000. Each time, the adjuster later mailed the proof-of-loss to the insurer’s headquarters. The adjuster issued a final settlement draft for $12,250 on September 16, 1980. Two days later, he mailed a memorandum to headquarters explaining why repairs had exceeded previous estimates by some $10,000. He enclosed invoices supplied by Dennis Lane listing various materials and furniture purportedly purchased to repair and refurbish the duplex. In fact, these invoices had been fabricated by James Lane, Heard, and Heard’s secretary.
The Lanes and Lawson met with Heard several weeks after the duplex fire to discuss a proposal to establish and burn a flower shop in Lubbock, Texas. Heard and Dennis Lane picked out a suitable building in July 1980, and an accomplice of Heard’s, William Lankford, prepared ficticious invoices for merchandise and delivered some artificial flowers to the building later in August. In November, James Lane insured the contents for $50,000. Heard, however, was later arrested for an unrelated crime, and the planned arson never took place.
In March 1981, an Amarillo newspaper article connected Dennis Lane with a scheme to burn the flower shop with Heard; that same day, James Lane canceled the insurance policy. On May 12, 1981, Dennis Lane appeared before a federal grand jury investigating Heard. He testified that Heard had nothing to do with the flower shop or with his own dealings with Lankford.
B
James Lane and Dennis Lane were indicted in multiple counts for mail fraud in violation of 18 U. S. C. § 1341, conspiracy in violation of 18 U. S. C. § 371, and perjury in violation of 18 U. S. C. § 1623. Count 1 charged James Lane with mail fraud with regard to the El Toro Restaurant fire. Counts 2 through 4 charged both Lanes with mail fraud related to the duplex fire, and Count 5 charged them with conspiracy to commit mail fraud in connection with the flower shop arson plan. In Count 6, Dennis Lane was charged with perjury before the grand jury.
Prior to trial in the District Court for the Northern District of Texas, the Lanes filed motions for severance contending that the charged offenses were misjoined in violation of Federal Rule of Criminal Procedure 8(b), but the motions were denied and the trial proceeded jointly before a jury. When evidence relating to the El Toro Restaurant fire was admitted, the trial court instructed the jury not to consider that evidence against Dennis Lane. App. 21. The trial judge repeated this instruction in the final charge, together with an instruction regarding the separate consideration to be given each defendant and each count. Ibid. The Lanes renewed their severance motions at the end of the Government’s evidence and at the close of all evidence, but the motions were again denied. The jury returned convictions on all counts.
On appeal, the Lanes argued that misjoinder under Rule 8(b) had occurred. The Court of Appeals for the Fifth Circuit concluded that Counts 2 through 6 were properly joined, but agreed “that Count 1 should not have been joined with the others because it was not part of the same series of acts or transactions as Counts 2 through 6.” 735 F. 2d 799, 803-804 (1984). The court refused to consider the Government’s argument that the error, if any, was harmless, stating only that “Rule 8(b) misjoinder is prejudicial per se in this circuit.” Id., at 806 (citing United States v. Levine, 546 F. 2d 658 (CA5 1977)). The court reversed the Lanes’ convictions and remanded for new trials.
At the same time, the Court of Appeals rejected the Lanes’ contention that there was insufficient evidence to support convictions for mail fraud under Counts 2 through 4 because each charged mailing occurred after each related payment had been received, and thus after each scheme had reached fruition. The Court of Appeals distinguished our holding in United States v. Maze, 414 U. S. 395 (1974), and instead relied on United States v. Sampson, 371 U. S. 75 (1962), to hold that mailings occurring after receipt of an insurance payment may nevertheless be “in execution of fraud” as required by 18 U. S. C. § 1341 where they are “designed to lull the victims into a false sense of security and postpone investigation.” 735 F. 2d, at 807-808.
The court found sufficient evidence for the properly instructed jury to “infer that the mailings were intended to and did have a lulling effect” because they helped persuade the insurer that “the claims were legitimate.” Id., at 808. It emphasized that had the proof-of-loss forms not been mailed shortly after issuance of the insurance drafts, the insurer might have been alerted to the possibility of a fraud. Ibid. Similarly, the false invoices submitted by Dennis Lane “gave the impression of a perfectly innocent claim.” Ibid.
The Government’s petition for rehearing was denied. 741 F. 2d 1381 (1984). We granted certiorari, 469 U. S. 1206 (1985). We reverse in part and affirm in part.
I — I HH
The Court of Appeals held that misjoinder is inherently prejudicial.” 735 F. 2d, at 804. The Circuits are divided on the question whether misjoinder requires automatic reversal, or whether the harmless-error rule governs. Most Circuits that have adopted the per se approach have relied on McElroy v. United States, 164 U. S. 76 (1896), where this Court applied the joinder statute then in force and reversed convictions of jointly tried defendants after rejecting the Government’s argument that there was no showing of prejudice. Id., at 81.
McElroy, however, was decided long before the adoption of Federal Rules of Criminal Procedure 8 and 52, and prior to the enactment of the harmless-error statute, 28 U. S. C. §2111, which provides that on appeal we are to ignore “errors or defects which do not affect the substantial rights of the parties.” Under Rule 52(a), we are similarly instructed that any error “which does not affect substantial rights shall be disregarded.”
The Court’s holding in Chapman v. California, 386 U. S. 18 (1967), made a significant change in the law of harmless error. There, Justice Black, speaking for the Court, emphasized that even “some constitutional errors [may] be deemed harmless, not requiring the automatic reversal of the conviction.” Id., at 22. In rejecting the automatic reversal rule, the Court stated:
“We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful.... We decline to adopt any such rule.” Id., at 21-22 (emphasis added).
Justice Black went on to note that all 50 States follow the harmless-error approach, and
“the United States long ago through its Congress established... the rule that judgments shall not be reversed for ‘errors or defects which do not affect the substantial rights of the parties.’ 28 U. S. C. §2111. None of these rules on its face distinguishes between federal constitutional errors and errors of state law or federal statutes and rules.” Id., at 22 (footnote omitted).
Since Chapman, we have “consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U. S. 499, 509 (1983). In Hasting, we again emphasized that
“given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and... the Constitution does not guarantee such a trial.” Id., at 508-509.
In this case, the argument for applying harmless-error analysis is even stronger because the specific joinder standards of Rule 8 are not themselves of constitutional magnitude. Clearly, Chapman and Hasting dictate that the harmless-error rule governs here.
The applicability of harmless error to misjoinder also follows from Kotteakos v. United States, 328 U. S. 750 (1946), a case similar to the one at hand. There, some 32 defendants were charged with one conspiracy, when in fact there had been at least eight separate conspiracies. Nineteen defendants were jointly tried, and seven were convicted. The Court applied the harmless-error statute to an error resulting from a variance from the indictment, and held the error was not harmless in that case. Emphasizing the numerous conspiracies involving unrelated defendants, as well as seriously flawed jury instructions, the Kotteakos Court reversed the convictions in light of each of the 32 defendants’ “right not to be tried en masse for the conglomeration of distinct and separate offenses” involved. Id., at 775.
Although the Court’s review in that case was from the perspective of a variance from the indictment, rather than mis-joinder, the Court recognized that misjoinder was implicated, and suggested that the harmless-error rule could similarly apply in that context. Id., at 774-775.
A holding directly involving misjoinder again indicated the harmless-error rule should apply. In Schaffer v. United States, 362 U. S. 511 (1960), three different groups of defendants were charged with participating in separate criminal acts with one other group of three defendants. The indictment also charged all the defendants with one overall count of conspiracy, making joinder under Rule 8 proper. At the close of the Government’s case, however, the District Court concluded there was insufficient evidence of conspiracy and dismissed that count. The court then denied a motion for severance after concluding that defendants failed to show prejudice from the joint trial; the Court of Appeals affirmed. This Court recognized that “the charge which originally justified joinder turn[ed] out to lack the support of sufficient evidence.” Id., at 516. Essentially, at that point in the trial, there was a clear error of misjoinder under Rule 8 standards. Nevertheless, the Schaffer Court held that once the Rule 8 requirements were met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14, which requires a showing of prejudice. Id., at 515-516. The Court then affirmed the finding of no prejudice. Although the Court did not reach the harmless-error rule because Rule 8(b) had initially been satisfied, the Court’s language surely assumed the rule was applicable.
A plain reading of these cases shows they dictate our holding. Applying the 1919 statute treated in Kotteakos, which governed only “technical errors,” 28 U. S. C. §391 (1946 ed.), the Court emphasized the clear intent of Congress “was simple: To substitute judgment for automatic application of rules.” 328 U. S., at 759-760. “In the final analysis judgment in each case must be influenced by conviction resulting from examination of the proceedings in their entirety, tempered but not governed in any rigid sense of stare decisis by what has been done in similar situations.” Id., at 762. The Court flatly rejected per se rules regarding particular errors because “any attempt to create a generalized presumption to apply in all cases would be contrary not only to the spirit of [the statute] but also to the expressed intent of its legislative sponsors.” Id., at 765.
Schaffer discussed the current harmless-error statute, which was enacted in 1949 after Kotteakos and deleted the qualifying word “technical” regarding errors governed by the rule. See 28 U. S. C. §2111. The Court again rejected any per se rule for joinder errors requiring reversal, refusing to “fashion a hard-and-fast formula that... [the] joinder [wa]s error as a matter of law.” 362 U. S., at 516. Citing Kotteakos, the Court pointed out that there “[t]he dissent agreed that the test of injury resulting from joinder ‘depends on the special circumstances of each case.’” 362 U. S., at 517 (quoting 328 U. S., at 777 (Douglas, J., dissenting)).
In common with other courts, the Court has long recognized that joint trials “conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.” Bruton v. United States, 891 U. S. 123, 134 (1968). Rule 8 accommodates these interests while protecting against prejudicial joinder. But we do not read Rule 8 to mean that prejudice results whenever its requirements have not been satisfied.
Under Rule 52(a), the harmless-error rule focuses on whether the error “affect[ed] substantial rights.” In Kotteakos the Court construed a harmless-error statute with similar language, and observed:
“The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” 328 U. S., at 765.
Invoking the Kotteakos test, we hold that an error involving misjoinder “affects substantial rights” and requires reversal only if the misjoinder results in actual prejudice because it “had substantial and injurious effect or influence in determining the jury’s verdict.” Id., at 776. Only by so holding can we bring Rules 8 and 52(a) “into substantial harmony, not into square conflict.” Id., at 775.
Of course, “we are not required to review records to evaluate a harmless-error claim, and do so sparingly, [but] we plainly have the authority to do so.” United States v. Hasting, 461 U. S., at 510 (footnote omitted).
In the face of overwhelming evidence of guilt shown here, we are satisfied that the claimed error was harmless. When evidence oh misjoined Count 1 was introduced, the District Court provided a proper limiting instruction, and in the final charge repeated that instruction and admonished the jury to consider each count and defendant separately. Moreover, the same evidence on Count 1 would likely have been admissible on joint retrial of Counts 2 through 6 to show James Lane’s intent under Federal Rule of Evidence 404(b). Any error therefore failed to have any “substantial influence” on the verdict. Kotteakos, supra, at 765.
I — I I — I I — I
Respondents challenge the sufficiency of the evidence to sustain their convictions. To find a violation of the mail fraud statute, 18 U. S. C. § 1341, the charged “mailings” must be “for the purpose of executing the scheme.” Kann v. United States, 323 U. S. 88, 94 (1944). Mailings occurring after receipt of the goods obtained by fraud are within the statute if they “were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place.” United States v. Maze, 414 U. S., at 403. See United States v. Sampson, 371 U. S. 75 (1962).
Only Counts 2 through 4, involving the duplex fire, are at issue. The Lanes argue that each mailing occurred after irrevocable receipt of the related payment, and thus after each scheme to defraud came to fruition. This argument misconstrues the nature of the indictment, which charged an overall scheme to defraud based on the events surrounding the duplex fire. Counts 2 through 4 merely relate to separate mailings concerning partial payments that were a part of the whole scheme. The jury could properly find the scheme, at the earliest, was not completed until receipt of the last payment on September 16, 1980, which finally settled their claim. Hence, the mailings charged in Counts 2 and 3 clearly took place while the scheme was still continuing.
Moreover, the jury could reasonably have found that the scheme was not completed until the final mailing on September 18, 1980, charged in Count 4, because that mailing was intended (as were the two earlier ones) to “lull” the insurer into a false sense of security. The jury was properly instructed that each charged mailing must have been made both “for the purpose of executing the scheme to defraud,” App. 22, and prior to the scheme’s completion, id., at 23, and further that mailings “which facilitate concealment of the scheme” are covered by the statute. Id., at 24.
The judgment of the Court of Appeals, ordering a new trial based on misjoinder of Count 1 with Counts 2 through 6, is reversed in part and affirmed in part, and the action is remanded for further proceedings consistent with this opinion.
It is so ordered.
Six Circuits have adopted a per se approach holding that misjoinder is always reversible error. See United States v. Turkette, 632 F. 2d 896, 906, and n. 35 (CA1 1980), rev’d on other grounds, 452 U. S. 576 (1981); United States v. Graci, 504 F. 2d 411, 414 (CA3 1974); United States v. Bova, 493 F. 2d 33 (CA5 1974); United States v. Bledsoe, 674 F. 2d 647, 654, 657-658 (CA8), cert. denied sub nom. Phillips v. United States, 459 U. S. 1040 (1982); United States v. Eagleston, 417 F. 2d 11, 14 (CA10 1969); United States v. Ellis, 709 F. 2d 688, 690 (CA11 1983).
Six have subjected misjoinder claims to harmless-error analysis. See United States v. Ajlouny, 629 F. 2d 830, 843 (CA2 1980), cert. denied, 449 U. S. 1111 (1981); United States v. Seidel, 620 F. 2d 1006 (CA4 1980); United States v. Hatcher, 680 F. 2d 438, 442 (CA6 1982); United States v. Varelli, 407 F. 2d 735, 747-748 (CA7 1969); United States v. Martin, 567 F. 2d 849, 854 (CA9 1977); Baker v. United States, 131 U. S. App. D. C. 7, 21-23, 401 F. 2d 958, 972-974 (1968). Most of these courts had previously taken the view that misjoinder is prejudicial per se.
Each proof-of-loss form stated that the “loss did not originate by any act, design or procurement on the part of your insured or this affiant” and that “no attempt to deceive [the] company as to the extent of the loss has been made.”
Rule 8(b) provides:
“(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
The Court of Appeals also rejected James Lane’s challenge to the sufficiency of the evidence with regard to Count 1. That holding was not challenged in the Lanes’ cross-petition.
Although the Government continues to believe that Count 1 was properly joined with Counts 2 through 6, it does not challenge that holding here.
See n. 1, swpra.
Justice Stevens’ partial dissent argues that McElroy conclusively determined misjoinder is prejudicial per se, and that Rule 8 was intended to represent a rest
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_appnatpr
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Joseph P. CANDELLA et al., Defendants-Appellants.
No. 195, Docket 73-1894.
United States Court of Appeals, Second Circuit.
Argued Oct. 11, 1973.
Decided Nov. 26, 1973.
Certiorari Denied March 18, 1974.
See 94 S.Ct. 1563.
Howard Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.
Harvey Tropp, New York City (Gordon & Tropp, Joel R. Schweidel, New York City, of counsel), for defendants-appellants.
Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
MULLIGAN, Circuit Judge:
Joseph P. Candella and John Kevin Gilgan were the principal officers and the sole owners of Beacon Moving and Storage, Inc., a Brooklyn-based moving company. In 1971, Beacon undertook to move the property of four commercial tenants, Lapchinsky Iron Works, Chelsea Desk Co., Precision Container Co. and G.A.L. Manufacturing Co., each of which had been forced to move from Manhattan and Brooklyn sites because of federally funded urban renewal projects. Their property had been condemned by the City of New York and each was entitled to reimbursement from the City for its moving expenses.
The tenants, who had the initial obligation of paying the mover for his services, assigned their claims for reimbursement from the City to the mover, as permitted by the United States Department of Housing and Urban Development (HUD) regulation (24 C.F.R. § 41.12). The City then had the responsibility to process and pay the claims made by the movers. The City, in turn, was entitled to reimbursement by HUD. The City agency in charge,, the Department of Relocation, based its payments on bills submitted by the moving company which were accompanied by so-called “bills of lading,” which detailed the number of man-hours worked on each day by the employees of the mover, plus an affidavit by the mover which attested to the accuracy of the bills of lading. The affidavits relating to the moves involved herein were executed on forms prepared by the City and not by HUD. The convictions appealed from were based on indictments charging that the bills of lading and affidavits submitted by the defendants for the four moves in question were false, in violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2 (aiding and abetting).
Counts 1, 2, 3 and 5 related to false affidavits, and counts 6, 7, 8 and 10 charged that the bills of lading submitted exaggerated the amount of work performed. (Counts 4 and 9, which related to a fifth moving operation, were dismissed for jurisdictional reasons before trial with Government consent.) The jury trial was conducted before Hon. Dudley B. Bonsai, United States District Judge, Southern District of New York. The three defendants were found guilty on all eight counts on February 16, 1973, and judgments were entered on April 3, 1973. Judge Bonsai sentenced Candeda and Gilgan to concurrent prison terms of 60 days on each of the eight counts and fines of $1000 on each count. The corporate defendant Beacon was fined $2000 on each of the eight counts. This appeal followed.
I. JURISDICTION
Appellants first claim that counts 1, 2, 3 and 5 of the indictment, which charged that the “Affidavits by Moving Company for Moving Expenses” with respect to the four moves in question were false, should have been dismissed on defendants’ pre-trial motion for lack of jurisdiction of the subject matter. Appellants’ argument is based on the contention that the affidavits in question were not within the jurisdiction of HUD because they were not forms required by HUD, and were not only gratuitous but improper. Since the statute involved in this case prohibits the making of any false statements in any matter within the jurisdiction of a federal agency, the counts based upon the affidavits must fall if the affidavits were not in a matter within the jurisdiction of HUD.
The applicable HUD regulation is as follows:
(a) Form of claim. To obtain a relocation payment, site occupants shall file written claims with the agency on the appropriate HUD forms.
(b) Documentation in support of a claim. A claim shall be supported by the following:
(1) If for moving expenses; except in the case of a fixed payment, a receipted bill or other evidence of such expenses. By prearrangement between the agency, the site occupant, and the mover, evidenced in writing, the claimant or the mover may present an unpaid moving bill to the agency, and the agency may pay the mover directly.
(2) If for actual direct loss of property, written evidence thereof, which may include appraisals, certified prices, copies of bills of sale, receipts, canceled cheeks, copies of advertisements, offers to sell, auction records, and such other records as may be appropriate to support the claim.
(3) In any other case, such documentation as may be required by the agency, which may include income tax returns; withholding or information statements, and proof of age.
24 C.F.R. § 41.12.
This regulation is interpreted by appellants to preclude the use of the affidavit required by the City. They read § 41.-12(b)(3) to mean that the City may require other documentation in its discretion only in cases not covered by subdivisions (1) and (2). While § 41.-12(b)(1) requires that a claim for moving expenses be supported by a receipted bill (here the “bill of lading”), we cannot construe the regulation to hamstring the City so as to make the bill the sole and exclusive documentation to be submitted. The section in fact permits “other evidence of such expenses.” While HUD may not have provided its own forms for reimbursement in cases not involving moving expenses or direct property losses, there is no language at all in the regulation which precludes the City from employing supplemental documentation in a moving expense situation. We read the regulation as only requiring the minimum; if further documentation was meant to be excluded the regulation could have easily so provided.
The jurisdiction of HUD here is clear. The City entered contracts with the United States on specific urban renewal projects including those which prompted the moving here. The United States became ultimately responsible for paying 100% of the moving expenses incurred by the four concerns involved. The interest of HUD in this matter was made abundantly clear to the appellants. They agreed to be paid by the City instead of the tenants. The affidavits they executed to obtain reimbursement from the City fully explained their purpose and HUD’s involvement, reciting in part:
[T]his affidavit is sent to the City of New York, knowing that the said City of New York, will "rely thereon in making proper payment of Relocation payment for the moving of said Tenant by virtue of Section 114 of the Housing Act of 1949 as amended, and will make this affidavit available to the Department of Housing and Urban Development of the United States of America for the purpose of secur- . ing approval for full or partial reimbursement, and that any false statement will be a violation of the provisions of the United States Code subjecting the maker hereof to the penalties contained in the pertinent sections thereof.
It is thus clear beyond any doubt that the mover not only knew that the City would make the affidavits available to HUD for reimbursement purposes, but that any false statements contained therein would constitute violations of the United States Code subjecting him to criminal sanctions.
In arguing that the affidavits were not made in matters within the jurisdiction of any agency of the United States, appellants rely upon Lowe v. United States, 141 F.2d 1005 (5th Cir. 1944). in that case, an employee of a private shipbuilder made a false statement to his foreman as- to the number of hours he had worked on a particular day. The company had an agreement with the United States Maritime Commission under which it was reimbursed for its payroll costs. The court held that the payroll department of the shipyard company was not an agency of the United States, nor was it controlled or supervised by the federal agency. Hence, there was no offense against the United States. The fact pattern here was, of course, markedly different. Urban renewal is a joint enterprise of the City and the Federal Government. Each government cooperates in the funding of federally assisted projects. The City is responsible for administering federally funded projects, as well as those in which it provides the funding alone. The City’s procedures for direct payment to movers are subject to explicit regulation, supervision and audit by HUD.
In distinguishing Lowe, the Eighth Circuit in Ebeling v. United States, 248 F.2d 429, 435, cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957) stated:
We read the opinion as implying that there was in that case no charge, or anything to show, that the employee knew that the work which he was doing, and the wages which he claimed, had been made the subject of an express contract provision between his employer and the government, constituting them a matter of direct charge and reimbursing obligation on the part of the United States; that the working time which he turned in thus necessarily would be a matter which was to be used against the government and as to which it accordingly had a right of audit and adjustment; and that in making the false statement with which he was charged, he had turned it in on this basis and with the intent that it was to be accepted and used in that relationship.
The case here is even stronger since the appellants were not only made aware of the nature and purpose of the affidavit, but were further advised that false statements would be violative of the United States Code.
Appellants also argue that counts 1 and 6 of the indictment involving the affidavit and bill of lading submitted by the appellants for the moving of the Lapchinsky Iron Works should have been dismissed since they involved a payment of only $3300. HUD regulations require that all claims for moving expenses in excess of $10,000 be approved by HUD. In the case of claims under $10,000, the City is authorized to make payment without securing express approval from HUD, although the complete file on such claims must be kept available by the City for audit and inspection by HUD. The affidavits and bills presented in connection with the Lapchinsky move thus were not turned over to HUD. Because of this, appellants argue that counts 1 and 6 cannot be said to concern “matters within the jurisdiction” of HUD. Case law makes it clear, however, that a violation of § 1001 does not require that the false statement must actually have been submitted to a department or agency of the United States, but rather that it was contemplated that the statement was to be utilized in a matter which was within the jurisdiction of such department or agency. See United States v. Kraude, 467 F.2d 37, 38 (9th Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972); United States v. Greenberg, 268 F.2d 120, 122 (2d Cir. 1959); United States v. Ebeling, supra, 248 F.2d at 434; United States v. Myers, 131 F.Supp. 525, 529-530 (N.D.Cal.1955).
II. VENUE
The appellants argue that venue was improperly laid in the Southern District of New York with respect to counts 1, 3, 6 and 8, which involved the affidavits and bills of lading of Lapchin-sky and Precision, both Brooklyn-based companies which were being moved from Brooklyn locations. The argument is that since the allegedly false statements were prepared, executed and handed to New York City officials in Brooklyn, the crime was committed there, and the venue is therefore proper only in the Eastern District of New York, which embraces Brooklyn. While the question of whether the trial is conducted almost literally at one end of the Brooklyn Bridge or the other might seem to be a quibble, questions of venue in criminal cases are of constitutional concern. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 90 L.Ed. 562 (1944). Venue must be laid where the crime was committed, and that place is to be “determined from the nature of the crime alleged and the location of the act or acts constituting it.” United States v. Anderson, 328 U. S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). The Government argues that venue properly lies in the Southern District because the affidavits and bills of lading in question were simply accepted at the City’s branch offices in Brooklyn for the convenience of parties seeking to file papers with the Department of Relocation and were then conveyed to the central office in Manhattan for examination and payment. The Lap-chinsky documents remained in the City’s Manhattan office for subsequent audit by HUD in New York. The Precision documents, involving expenses in excess of $10,000, were sent to the HUD office in Manhattan, where the City’s initial decision to make payment was approved. The appellants cite no authority for their position but seem to rely on the theory that since enough had been done to constitute a crime in the Eastern District, the crime therefore terminated.
However, under 18 U.S.C. § 3237(a), an offense begun in one district and completed in another, or committed in more than one district, may be prosecuted in any district in which such offense was “begun, continued, or completed.” Although enough was done in the Eastern District to constitute a crime there, as appellants admit (cf. United States v. Ruehrup, 333 F.2d 641 (7th Cir.), cert. denied, 379 U.S. 903, 85 S.Ct. 194, 13 L.Ed.2d 177 (1964)), it does not follow that the crime then terminated, and that what transpired in Manhattan was irrelevant for venue purposes. See United States v. Miller, 246 F.2d 486 (2d Cir.), cert. denied, 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261 (1957); De Rosier v. United States, 218 F.2d 420 (5th Cir.), cert. denied, 349 U.S. 921, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Appellants seek to distinguish Miller and De Rosier because the City and not the defendants (as in those cases) forwarded the offending documents to Manhattan. The City’s accepting the papers in Brooklyn, however, no more confined the offense to Brooklyn than the Post Office Department’s acceptance of the documents in Miller and De Rosier confined the offense in those cases to the district in which the mailbox was located.
We think that venue is properly laid in “the whole area through which force propelled by an offender operates.” United States v. Johnson, supra, 323 U.S. at 275, 65 S.Ct. at 250. The force propelled here by the defendants immediately contemplated Manhattan. 18 U. S.C. § 1001 defines the offense as the making of a false or fraudulent statement or representation in a matter within the jurisdiction of a federal agency. The false statements here were intended to produce funds. The statements continued to be false and continued to be within the jurisdiction of the United States not only when initially presented but also upon arrival in Manhattan, where the decision was reached to make the funds available. See United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836 (1917). Venue for all counts thus was properly laid in the Southern District of New York.
III. EVIDENCE
The appellants urge that the court below erred in not directing a verdict of acquittal on the ground that the Government had not established that the bills of lading were false. The Government sought to establish falsity by comparing the man-hours for each moving job claimed on the bills of lading with the corporation’s own payroll books. The appellants argue that their payroll books were grossly inaccurate or that even if they were accurate, the Government arbitrarily deleted men and hours found in the payroll book from its computations. We are of course bound to view the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959). There is ample evidence from which the jury could infer that the bills of lading were knowingly false and fraudulent. The claims of appellants were fully presented to the jury below, and we cannot substitute our view for that of the jurors who heard the evidence and observed the witnesses.
IV. CHARGE TO THE JURY
The trial court erroneously charged the jury with respect to the defendants’ position as to the bills of lading. While Judge Bonsai did say that the defendants denied their falsity, he further added: “As- I understand it, they contend here really that they were doing the best they could and that they thought that they should come out with something that was approximating at least the estimate, the City’s estimate of the cost of the job.” However, after objection to this characterization of the position of the defense was made, the trial judge corrected his statement and said: “Then, from the defense side, the defendants are contending here that the hours they did expend on these jobs did total the hours that were in the bills of lading, and I will tell you that that is what the defendants are so contending.” Appellants argue that the judgment below should be reversed because the erroneous charge was never expressly retracted by the trial judge but was merely supplemented.
We cannot agree that reversal is required on these facts. In addition to the corrective charge, the original erroneous charge was not one of law but of fact, and it had been preceded by the statement:
It may help you in your own recollection if I review what I understand to be the contentions here. But this again is a matter for your recollection. I am doing it only perhaps to help you with your recollection.
In light of the prior admonition and the subsequent correction, we cannot find the error so prejudicial as to require a new trial. As the appellants admit, the testimony of defendant Candella that the bills of lading were in fact accurate made the position of the appellants abundantly clear. It is equally clear that the jury did not accept it.
Affirmed.
. 18 U.S.C. § 1001 provides :
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
. Under HUD regulations, the City shares a responsibility to pay a portion of the moving expenses of the tenant. Present regulations continue to provide for City involvement. 24 C.F.R. § 41.13. Due to procedural problems detailed in the affidavit of a HUD official appearing in the record before us, the Comptroller General ruled that HUD would pay for all of the moving expenses involved in the projects here in issue. Thus, the City is not a gratuitious intruder in the auditing process but has a definite stake in assuring that the bills submitted accurately re-fleet the cost of moving. With the widespread publicity attendant upon raids of the City treasury, the affidavit requirement here cannot be at all characterized as improper but is in fact commendable.
. Cases involving erroneous charges of applicable principles of law are not apposite, since the jury is bound by the law enunciated by the judge. Where, as here, the misstatement is one of facts, the jurors’ own recollections of the facts as testified to are controlling and, as we have indicated, they were so advised by the court.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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.
Robert T. GULLETT, Appellant, v. BEST SHELL HOMES, INC. OF TENNESSEE, Appellee.
No. 19871.
United States Court of Appeals Fifth Circuit.
Jan. 17, 1963.
Charles M. Murphy, Jr., Memphis, Tenn., for appellant.
L. A. Smith, Jr., Smith & Hurdle, Holly Springs, Miss., for defendant-appellee, Best Shell Homes, Inc. of Tenn.
Before RIVES, CAMERON and BELL, Circuit Judges.
CAMERON, Circuit Judge.
Appellant Gullett brought an action against appellee Best Shell Homes, Inc., alleging that Best was vicariously liable for his injury, negligently caused by one Burlison. Appellee Best denied that the alleged tort feasor Burlison was its servant, but took the position that he was an independent contractor for whose actions Best was not responsible. The action was tried before the District Judge, sitting by agreement as trier of both the law and the facts, and judgment against the plaintiff dismissing the complaint was rendered after the conclusion of appellant-plaintiff’s evidence, rule 41(b) F.R.Civ.P., on the court’s finding that the alleged tort feasor was an independent contractor.
Appellant argues that Burlison, a licensed electrician, was Best’s servant at the time of the accident. Three general contentions are made: (1) that the general relationship between Best and Burlison was that of master-servant; (2) that the specific relationship at the time of the accident was that of master-servant; and (3) that Best is “estopped” to deny that Burlison was an “employee” at the time of the accident because Best’s workmen’s compensation insurer paid Burlison compensation benefits for injuries sustained in the accident giving rise to this action.
Appellee contends that the findings of fact of the court below are not clearly erroneous and that estoppel has no place in this ease, inasmuch as, inter alia, the injured party did not, to his detriment, rely upon the position taken by Best or its compensation insurer. Appellee relies on the finding by the court below, moreover, that the compensation benefits to Burlison were paid as the result of a mistake of fact.
A brief recital of the facts of this case is sufficient. Best was a general contractor, engaged in entering into agreements with lot owners for the construction of “shell” homes according to standardized plans and specifications. It customarily let out various phases of the work by subcontracts. Burlison did the electrical work on most of the houses built, the terms of the written contracts computing the contract price on the basis of $2.50 per electrical outlet.
Burlison was a licensed electrician, maintaining his own place of business in Memphis, Tennessee under the name Safety Electric Company. He had his own office, telephone, (listed as Safety Electric Co.), tools, automobile and other equipment, and hired his own helpers and employees. He did a general electrical contracting business, holding himself out to the public as an electrician, but most of his time during the period preceding the accident had been spent performing Best’s contracts.
Best did not supervise or control Bur-lison’s work. All it required was that the electrical work meet the specifications called for in the construction contract, and pass local building codes. Any complaints or defects were to be handled on Burlison’s “own time” — i. e., at no extra remuneration.
Best told Burlison that there was a defect in a house at Maben, Mississippi in which Burlison had installed the wiring. Burlison investigated the defect and found that it had been caused by a carpenter driving a nail through a wire— after Burlison completed the wiring— and he telephoned Best and advised that the repair of the defect was not his responsibility. He was asked to make the repair and told that he would be paid extra for the work.
On his way back home after the curative work had been completed, Burlison was involved in the accident in which both he and appellant Gullett were injured. Burlison was paid Workmen’s compensation benefits, but was later notified that the payments were made through error and that he would have to repay the compensation carrier.
One additional factor is stressed by appellant. Although no deductions for withholding tax or social security were made from Best’s payments to Burlison, the regular deduction was made of four percent of the contract price from each contract settlement. The deduction was made to defray the cost of workmen’s compensation insurance coverage. This same deduction was made from the amount due all subcontractors, and referred to in the contracts as a “holdback for workmen’s compensation insurance.”
In determining the general relationship between Best and Burlison, it is not necessary to go into an elaborate discussion of the Mississippi law of agency. The legal standards applied by the court below, sitting also as the finder of facts, were those generally applied in Mississippi — being substantially an examination of those matters of fact set out in § 220, p. 483, Restatement of the Law of Agency. Mississippi Employment Security Commission v. Plumbing Wholesale Co., 1954, 219 Miss. 724, 69 So.2d 814; Texas Co. v. Mills, 1934, 171 Miss. 231, 156 So. 866.
During oral argument counsel for appellant made much of the fact that, at times, Best paid Burlison “mileage” to and from the construction sites. It is common knowledge that many contractors charge a mileage fee for small jobs done outside of a given area. The payment of such “mileage” does not, in and of itself, make one a servant rather than an independent contractor, although it is relevant proof in the consideration of the relationship. In this instance, we do not believe that the sporadic payment of “mileage” was indicative of a master-servant relationship; rather, under the circumstances of this case, it is more indicative of an independent contractor status.
Appellant argues that even if the general relationship between Best and Burli-son were not that of master and servant, such a relationship was established when Burlison did the extra work not required of him by the contract. But there is no evidence that Best exercised or possessed any more control or right of control over Burlison while doing the extra work than while performing the work regularly done under written contracts. Best was interested in the results attained, not how the work was done. The only factor which was changed was the method of payment. Ostensibly the agreement was to pay whatever the extra work was worth.
We hold that the findings of fact specially made by the court below are not clearly erroneous and that the law of Mississippi on the controlling issues was properly applied to these facts.
Appellant’s contention that Best is now “estopped” to deny that Burlison was a servant on the basis of the payment of compensation benefits to Burlison for injuries received in this accident, was properly rejected by the court below. In addition to that court’s conclusion that the elements of estoppel were not present, it is apparent that, at most, all that was involved in this evidence was a possible admission on Best’s part. The report to the Workmen’s Compensation Commission by Best’s office employee that Burlison was an “employee” would seem to be a conclusion of law on that employee’s part, which was admissible evidence for consideration by the court in its determination as to how the parties construed the relationship.
In dealing with this situation, the court below recognized that one may be a “statutory employee” for workmen’s compensation purposes and not be a common-law servant for other purposes. A subcontractor would be neither.
We conclude that the trial court was justified in finding and holding that Burlison was not an agent or employee of Best for whose tortious acts Best was liable, and its action in dismissing appellant’s claim was correct and the judgment is Affirmed.
. “ * * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried l>y the court lüithout a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Buie 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this suhdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.” [Emphasis added.]
. “The essential elements of estoppel are conduct and acts, language or silence, amounting to a representation or concealment of material facts, with knowledge or imputed knowledge of such facts, with the intent that representation or silence, or concealment be relied upon, with the other pai-ty’s ignorance of the true facts, and reliance to his damage upon the representation or silence.” Crowe v. Fotiades, 1955, 224 Miss. 422, 80 So.2d 478, 486; Harris v. American Motorist Insurance Co., 1961, 240 Miss. 262, 126 So.2d 870, 875. It is evident that even if it be assumed that there were some false representations of fact or facts on the part of Best, the appellant did not rely on such actions and could not have been prejudiced thereby. The appellant in this action was not in any manner affected by the relations between Burlison, Best and the compensation insurer.
. Under Mississippi Code Ann. § 6998-04, prime contractors are obligated to provide workmen’s compensation benefits1 to employees of subcontractors if the subcontractor does not provide such benefits. Best would be obligated to provide compensation benefits to any of Burlison’» employees, therefore, under the Mississippi law, even though such employees of a subcontractor were not Best’s servants, if Burlison did not provide such coverage.
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_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.
MONROE v. PROPHET et al.
No. 5944.
Circuit Court of Appeals, Fifth Circuit.
May 28, 1931.
Geo. E. Holland, of Beaumont, Tex. (Geo. E. Holland, of Beaumont, Tex., Samuel Fine, of New York City, and Holland & Cousins, of Beaumont, Tex., on the brief), for appellant.
J. Llewellyn, of Liberty, Tex. (J. Llewellyn and E. B. Pickett, Jr., both of Liberty, Tex., on the brief), for appellees.
Before BRYAN, FOSTER, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
In 1889 Wesley Monroe acquired an undivided interest in a tract of land in Liberty county, Tex., in the partition of whieh in 1902 a described 213-acre tract was set aside to Wesley Monroe, who died in 1908. Thereafter it was discovered that that land contained oil. By his bill in equity in this case the appellant claimed that he was part owner of the last-mentioned tract and of the oil therein and which had been extracted therefrom, whieh claim was sought to be supported on the grounds that Wesley Monroe was appellant’s father, that at the time an undivided interest in the first-mentioned tract was acquired by Wesley Monroe the relation of husband and wife existed between him and appellant’s mother, whose maiden name was Georgiana Johnson, with a result that the interest acquired by Wesley Monroe was community property to one-half of whieh appellant’s mother became entitled, and that appellant, the only child of his mother, who died in 1898, was entitled by inheritance to her one-half interest in the last-mentioned tract, and to a share of the one-half interest therein of Wesley Monroe, who left surviving him other children by another marriage. The answer to appellant’s bill put in issue its allegations to the effect that Wesley Monroe was appellant’s father, and the claims asserted by the bill were resisted on the grounds that appellant’s mother was never the wife of Wesley Monroe either by the rule of the common law or under statutes of Texas, and that, if appellant in fact is a son of Wesley Monroe* he is an illegitimate child, and did not inherit any interest in said property from WesT ley Monroe. Upon the conclusion of the evidence, much of whieh was testimony of witnesses given in the presence of the presiding judge, he announced the conclusions that the evidence showed to his satisfaction that appellant is the natural son of Wesley Monroe, but that the evidence failed to show a marriáge relation between Wesley Monroe and appellant’s mother; and a decree rejecting the above-mentioned claims of the appellant was rendered.
Wesley Monroe and appellant’s mother were negroes. Prior to, and at the time of, appellant’s birth, Wesley Monroe, Georgiana Johnson, and her parents, Ben Johnson and his wife, lived on the same farm, Ben Johnson, his wife and children occupying one house on that place, and Wesley Monroe (who was also called Monroe Wes) occupying a smaller house located a few feet from the other one. No evidence indicated that there was any semblance of the existence of the marital relation between Wesley Monroe and Georgiana Johnson prior to the discovery by the latter’s parents before appellant’s birth that she was pregnant. As to whether after that discovery Wesley Monroe and appellant’s mother did or did not cohabit as husband and wife, did or did not hold themselves out as man and wife, did or did not treat each other as such, and were or were not generally reputed to be married, the evidence was greatly conflicting. It is not open to question that there was evidence, including testimony given orally in open court, some of it by witnesses examined in behalf of the appellant, which tended to prove the following: After Georgiana’s parents discovered that she was pregnant, they spoke to Wesley Monroe on the subject, and he acknowledged that he was responsible for her condition, and said he would take care of her and the child. * Thereafter he did contribute to the support of appellant’s mother and appellant, but Wesley Monroe and appellant’s mother were never married, never claimed to be man and wife, and were not reputed to be husband and wife by their relatives and acquaintances who were aware of their conduct towards each other. Georgiana did not adopt Wesley Monroe’s name, but continued to be known only by the name Georgiana Johnson until she married another man. The appellant was called Ilder Johnson. When he was married in 1914, he obtained a license for the marriage of Ilder Johnson and Hattie Sexton. When he was married a second time in 1920, the license obtained was for a marriage between Ilder Johnson and Beulah Woodrow. He did not call himself, and was not known as, Hder Johnson Monroe until after the discovery of oil in the land in question. While both Wesley Monroe and appellant’s mother were living, each of them, without any divorce, married another person, and they held themselves out, and were reputed to be, the marital spouses of the persons with whom they contracted marriages.
The relation between Wesley Monroe and appellant’s mother confessedly having been illicit in its inception, and there being no evidence that they were formally or ceremonially married, the conclusion that they became husband and wife by a common-law marriage could not properly be reached, unless it is supported either by direct evidence that they mutually agreed to be husband and wife during the remainder of their lives, and thereafter lived together as husband and wife, and so held themselves out to the public, or by evidence that they lived together as man and wife, recognizing and treating each other as such, and were generally reputed to be husband and wife in the society or neighborhood of which they were members. Clayton v. Haywood, 63 Tex. Civ. App. 571, 133 S. W. 1082; Schwingle v. Keifer (Tex. Civ. App.) 135 S. W. 194; Whitaker v. Shenault (Tex. Civ. App.) 172 S. W. 202; Edelstein v. Brown, 35 Tex. Civ. App. 625, 80 S. W. 1027; Maryland v. Baldwin, 112 H. S. 490, 5 S. Ct. 278, 28 L. Ed. 822; Travers v. Reinhardt, 205 U. S. 423, 27 S. Ct. 563, 51 L. Ed. 865; 38 C. J. 1316, 1318, 1341. A phase of the evidence, including testimony of witnesses examined in the presence of the presiding judge, distinctly negatived the conclusion that the relation of husband and wife existed at any time between Wesley Monroe and appellant’s mother. This being so, though there was other evidence tending to prove the existence of the marital relation between Wesley Monroe and appellant’s mother, the conclusion of the court below that the evidence failed to show the existence of that relation between them is not subject to be set aside, the record by no means indicating that the preponderance of the evidence was against that conclusion. Erom that conclusion it followed that the claims asserted by appellant’s bill were not sustained.
The decree is affirmed.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_stateclaim
|
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 dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" 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".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
Edward Lee VANDEHOEF, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, et al., Respondents.
No. 86-2092.
United States Court of Appeals, Tenth Circuit.
June 27, 1988.
J. Scott Hamilton, Broomfield, Colo., for petitioner.
Joseph A. Conte (Peter J. Lynch, Manager, Enforcement Proceedings, and Raymond R. Baca, Atty., with him on the brief), F.A.A., Washington, D.C., for respondents.
Before HOLLOWAY, Chief Judge, and TACHA and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
Edward Lee VandeHoef is a professional balloon pilot who flies a hot air balloon for the Chevron Oil Company in its advertising and promotional programs. VandeHoef has Commercial Pilot Certificate No. 508748665, with a Lighter than Air Free Balloon rating.
On August 23,1984, the Federal Aviation Administration (FAA) issued an order suspending VandeHoef’s certificate for 90 days for violations of the Federal Aviation regulations relating to minimum safe altitudes for flight and careless or reckless operation of his balloon arising out of a balloon flight by VandeHoef over Seattle, Washington.
VandeHoef appealed that administrative order to the National Transportation Safety Board (NTSB) under the administrative review provisions of the Federal Aviation Act of 1958, as amended. 49 U.S.C.App. § 1429(a). The appeal was heard by an Administrative Law Judge (AU), who, after two hearings, held that VandeHoef had violated § 91.79(b) and § 91.9 of the Federal Aviation Regulations. However, the AU reduced the suspension period to 30 days.
Both VandeHoef and the FAA appealed the decision of the AU to the NTSB. The NTSB upheld the AU’s finding that Van-deHoef had violated both regulations, but reinstated the 90-day suspension period originally set by the FAA. A request by VandeHoef that the NTSB reconsider and modify its decision was denied, and Vande-Hoef now seeks our review of the NTSB’s action. We affirm.
As indicated, the AU found that Vande-Hoef violated Sections 91.79(b) and 91.9 in his balloon flight over Seattle, Washington. On appeal, VandeHoef, in his reply brief, concedes that the findings of the AU, which were adopted by NTSB, are supported by substantial evidence. Further, VandeHoef does not complain about the fact that the NTSB reinstated the 90-day suspension period originally set by the FAA. Rather, on appeal, VandeHoef urges two grounds for relief: (1) Section 91.79(b) is unconstitutionally vague; and (2) the AU in his “Oral Initial Decision and Order” failed to comply with the provisions of 49 C.F.R. § 821.42. We do not agree with either contention.
I. Vagueness
Section 91.79 provides that aircraft (which includes balloons) shall not be operated over a congested area below an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft “[ejxcept when necessary for takeoff or landing.” VandeHoef s “vagueness” argument is based solely on the quoted language “[ejxcept when necessary for takeoff or landing.” We fail to see the vagueness perceived by Vande-Hoef. The quoted language is to us understandable English and means what it says.
In Brennan v. Occupational Safety & Health Review Commission, 505 F.2d 869 (10th Cir.1974), we held that the term “near proximity” in an administrative regulation was not “impermissibly vague.” In so holding we agreed that an administrative regulation which is so vague that persons of common intelligence must necessarily “guess at its meaning” violates due process. The “test,” we said in Brennan, was whether the regulation “delineated its reach in words of common understanding.” Brennan at 872 quoting Cameron v. John son, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968). In that same case we recognized that a regulation promulgated pursuant to remedial civil legislation should be considered in the light of the conduct to which it is applied and also observed that cases concerned with a definition of a crime or an inhibition on free speech are not controlling in determining whether an administrative regulation of the type there under consideration is void for vagueness. See also Jensen Construction Company of Oklahoma v. Occupational Safety & Health Review Commission, 597 F.2d 246 (10th Cir.1979).
We summarily reject the suggestion by VandeHoef that his is a “free speech” case. This, in our view, is a regulation promulgated pursuant to remedial civil legislation designed to promote public safety.
II. Failure of the AU to Comply with 49 C.F.R. § 821.42
49 C.F.R. § 821.42 reads as follows:
Initial decision by law judge
(b) Contents. The initial decision shall include a statement of findings and conclusion, and the grounds therefor, upon all material issues of fact, credibility of witnesses, law, or discretion presented on the record, the appropriate order and the reasons therefor (emphasis ours).
VandeHoef argues that the AU did not set forth in his “Oral Initial Decision and Order” an adequate assessment of his “credibility of witnesses,” particularly the expert witness called by both himself and the FAA who testified regarding takeoffs and landings and whether VandeHoef operated his balloon in a generally careful and prudent manner. VandeHoef would have us remand the matter to the AU and direct him at this time to make specific findings concerning the credibility of the competing experts. We decline the suggestion.
The AU’s “Oral Initial Decision and Order” consisted of some 25 pages of the transcript in which he summarized the testimony of all witnesses and found that it was really not in dispute that VandeHoef operated his balloon below the prescribed minimum altitude and that, based on all the evidence, such was not “necessary” for launching or landing. We believe that the AU substantially complied with § 821.42. Under that regulation it is not necessary that the AU assess the credibility of a witness on a “one to ten” basis.
Order affirmed.
. 14 C.F.R. § 91.79. Minimum safe altitudes; general.
Except when necessary for take-off or landing, no person may operate an aircraft below the following altitudes:
(b) Over ... congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
. 14 C.F.R. § 91.9. Careless or reckless operation.
No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_counsel2
|
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.
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
Joyce Lisa CUMMINGS, Petitioner-Appellant, v. Richard L. DUGGER and Robert A. Butterworth, Respondents-Appellees.
No. 87-3787.
United States Court of Appeals, Eleventh Circuit.
Jan. 12, 1989.
Jake Arbes, Atlanta, Ga., for petitioner-appellant.
Robert Butterworth, Atty. Gen., Sean Daly, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.
Before JOHNSON and CLARK, Circuit Judges, and ZLOCH , District Judge.
Honorable William J. Zloch, U.S. District Judge for the Southern District of Florida, sitting by designation.
JOHNSON, Circuit Judge:
Joyce Lisa Cummings seeks federal ha-beas corpus relief pursuant to 28 U.S.C.A. § 2254. We affirm the district court’s denial of relief.
I.
Cummings was employed by John Bradford at an optical laboratory that he owned. While working at the lab, she became friendly with his wife, Priscilla Bradford, and Janice Gould. Cummings and Gould became aware that Priscilla was being physically abused by her husband John and agreed to help Priscilla plan his murder. Although a number of plans were considered, the women ultimately decided to help Priscilla attack John when he returned home for dinner one night. They then agreed to help Priscilla inflict bruises on herself so that she could claim she acted in self-defense.
On the evening of March 28, 1980, Cummings, Gould, Priscilla and Eden Bradford (Priscilla’s 14 year old daughter by a previous marriage) met at the Bradford’s house to execute the plan. The four women waited for John to arrive, attacked him with various kitchen implements, and beat him to death. Priscilla then called the police as planned, claiming she had acted in self-defense. All four women were eventually arrested and charged with the murder of John Bradford. Because there was little evidence that Cummings had actually beaten John, the state relied on the theory of vicarious liability to hold Cummings responsible with the others for the killing.
From the time of the murder through Cummings’ trial, the case, which was dubbed the “Skillet Slaying” and the “Frying Pan Murder” by the news media, generated extensive pretrial publicity. The newspaper and television coverage included details of the murder, alleged statements made to cellmates by the four women, an alleged plot to kill a state witness, and confessions made by the other defendants.
In light of this publicity, Cummings moved for a change of venue from Titus-ville in Brevard County, Florida, the place of the murder. The motion was granted and the trial was moved to Sanford in Seminole County, Florida, approximately forty miles inland from Titusville.
When the pretrial publicity continued in Sanford, Cummings moved for a second change of venue. The state trial judge reserved ruling on this motion pending initial voir dire of prospective jurors. The trial judge then questioned forty-one potential jurors individually, and dismissed three. Of the remaining thirty-eight jurors, thirty were familiar with the case. The judge then denied the motion for change of venue and allowed the attorneys to proceed with collective voir dire. Of the twelve jurors who were finally chosen, eleven had been exposed to varying degrees of pretrial publicity.
The jury found Cummings guilty of first degree murder and conspiracy to commit first degree murder. She was sentenced to life imprisonment with a minimum mandatory sentence of twenty five years and to a consecutive fifteen year sentence for conspiracy. On direct appeal, she challenged the denial of her motion for change of venue. The state appellate court affirmed her conviction. Subsequently, the state appellate court denied her state habeas petition, which was based on an ineffective assistance of counsel claim.
She then filed a federal habeas petition, challenging the denial of her second motion for change of venue in federal district court. The district court denied her petition. On appeal, she makes two claims, both based on the effect of pretrial publicity on the jury venire. She claims that her Sixth Amendment right to an impartial jury and her Fourteenth Amendment right to due process were violated in two ways: by the way the trial judge conducted voir dire and by the denial of her second change of venue motion. We will address these claims in turn.
II.
Cummings’ first claim is that the judge conducted constitutionally inadequate voir dire with the result that he was unable to detect the potential prejudice of the individual jurors arising from the pretrial publicity. Jordan v. Lippman, 763 F.2d 1265, 1275 (11th Cir.1985) (“[Rjelief is required where there is a significant possibility of prejudice plus inadequate voir dire to unearth such potential prejudice in the jury pool.”). As a threshold matter, the state challenges this claim as procedurally barred because it alleges Cummings did not specifically raise this claim in any previous state court proceedings. We find no procedural default as to this claim.
The procedural default doctrine ensures that “state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding.” Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). To avoid procedural default, the defendant must have presented in his state appeal more than just the facts necessary to support his federal constitutional claim: “The substance of a federal habeas corpus claim must first be presented to the state courts.” Id. at 278, 92 S.Ct. at 513-14 (emphasis added); see Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (quoting Picard). However, the Supreme Court has also indicated that courts should exercise flexibility in determining whether defendants have met this requirement. Picard, 404 U.S. at 278, 92 S.Ct. at 513-14; see Mattox v. Dugger, 839 F.2d 1523, 1524 (11th Cir.), cert. denied, — U.S. -, 109 S.Ct. 92, 102 L.Ed.2d 68 (1988) (defendant need not “[label] his original claims as ‘federal’ constitutional ones”); Osborne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (specific words not necessary so long as state court has “adequate opportunity to consider a party’s objection”).
In this case, Cummings argued on direct appeal in state court that the trial court abused its discretion in denying her motion for change of venue. In her state appellate brief, Cummings specifically objected to the trial court’s denial of her motion for individual voir dire in light of the prejudicial nature of the pretrial publicity and the effect it might have had on the venire. Although Cummings did not specifically state her federal constitutional claims, she repeatedly cited Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In Murphy, the Supreme Court discussed a defendant’s claim that he had been denied due process because he was tried by an allegedly partial jury. Although Murphy focused on what the jurors said during voir dire rather than how it was conducted, the Supreme Court was concerned with the effect of pretrial publicity on the ability of the jury to remain impartial during the trial and with the potential violation of the defendant’s constitutional rights in the choice of jurors. Having presented her claim in this way, she has provided the state courts with an opportunity to review the manner in which the voir dire was conducted as well as the substantive responses given by individual venire persons. Cf. Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984) (issue “obliquely stated” on direct appeal not defaulted if state court was alerted to constitutional issue).
Having ascertained that the claim is not procedurally barred, we turn to the merits. The conduct of voir dire is a matter entrusted to the broad discretion of the trial judge. United States v. Tegzes, 715 F.2d 505, 507 (11th Cir.1983); United States v. Holman, 680 F.2d 1340, 1344 (11th Cir.1982); see also United States v. Gerald, 624 F.2d 1291, 1296 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981) (noting that Fed.R.Crim.P. 24(a) has been interpreted to give trial court broad discretion in deciding method of jury voir dire). “The standard for evaluating the district court’s exercise of its discretion is whether the procedure used for testing juror impartiality created ‘a reasonable assurance that prejudice of the jurors would be discovered if present.’ ” Tegzes, 715 F.2d at 507 (citing Holman, 680 F.2d at 1344); Gerald, 624 F.2d at 1296.
However, the discretion afforded the trial judge to conduct voir dire as he sees fit must be bounded by protection of the defendant’s constitutional rights, especially in a situation of extensive pretrial publicity. United States v. Gerald, 624 F.2d at 1295. For example, in United States v. Davis, 583 F.2d 190 (5th Cir.1978), the former Fifth Circuit reversed the conviction of a defendant who had been the subject of extensive pretrial publicity. The Court held that, in a case where all the jurors had been exposed to some pretrial publicity, simply asking members of the jury venire to indicate by a show of hands whether the publicity would impair their ability to render an impartial decision did not adequately protect the defendant’s constitutional rights. Id. at 196.
The preferred approach in such cases, as discussed in Davis, is to conduct individual examination of the jurors. Id. at 196-98 (citing ABA Standards Relating to Fair Trial and Free Press, which recommends individual voir dire in these cases); Coleman v. Kemp, 778 F.2d at 1542 (citing ABA Standards with approval); Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976) (juror statements as to impartiality made more credible by conduct of individual voir dire). Individual voir dire allows the trial court to probe the effect of any adverse publicity on the juror and insulates the jurors from one another’s prejudicial comments. However, the Davis court did not go so far as to require individual voir dire in cases of pretrial publicity: “Though separate examination of jurors is sometimes preferable, it is not necessarily required. We recognize the district court’s need for flexibility in interrogating jurors as to possible prejudice.” Davis, 583 F.2d at 197 (footnotes omitted).
Recently, this Court cited Davis with approval in addressing the issue of allegedly inadequate voir dire. In Jordan, extensive publicity surrounded a civil rights march on the weekend prior to the start of the trial in which a black inmate was charged in connection with a prison riot. After finding that there was a significant possibility of racial prejudice arising from the coverage of the protest march, this Court concluded the trial judge had abused his discretion by refusing to inquire as to whether each juror had been exposed to the publicity prior to the start of the trial. The Court noted that, in situations of potential prejudice, the jurors must be questioned individually about whether they have been exposed to pretrial publicity and to what degree it has affected their decisionmaking ability. Jordan, 768 F.2d at 1281; accord United States v. Herring, 568 F.2d 1099, 1106 (5th Cir.1978).
In the case at bar, the trial judge refused to grant Cummings’ motion for individual voir dire, but he did agree to screen the jurors individually before the collective questioning of the venire was conducted. Each of the forty-one prospective jurors was brought into the courtroom and asked two questions, First, after briefly describing the case, the judge asked whether the juror had “heard anything about this particular case or read about it in the newspaper.” He then asked whether the juror could “base any verdict you render solely on [the testimony presented in court] without any outside influence from anything you might have read in the newspaper or seen on TV.” When he received tentative answers, he continued asking questions about the juror’s ability to remain impartial. The judge excused three of the forty-one jurors for cause. Of the remaining group, thirty had some exposure to pretrial publicity, although in most eases the exposure was quite minor.
Given these results from his initial screening, the judge denied Cummings’ second motion for change of venue. He then allowed both the prosecutor and defense counsel to question a panel of twelve jurors collectively and to exercise peremptory challenges. Cummings alleges that, during this phase of the voir dire, potential jurors who had been influenced by the pretrial publicity were able to “infect” the rest of the venire by exposing them to prejudicial information gleaned from the media. However, as Cummings conceded at oral argument, the only information revealed by the jurors who had been exposed to the publicity was that one of the other women charged had pled guilty and that Cummings had been present at the scene of the crime. The members of the venire who were subject to questioning were asked twice, once by the prosecutor and once by defense counsel, whether they could reach a verdict based solely on what was presented in court. The jurors thus were reminded of the importance of impartiality and were given an opportunity to discuss any doubts they had about their ability to remain impartial. In light of these facts, we cannot conclude that the trial judge so abused his discretion in limiting the individual voir dire as to render the process of jury selection constitutionally deficient.
III.
Cummings next claims that the trial court erred in denying her second change of venue motion. The standards governing change of venue “derive from the Fourteenth Amendment’s due process clause, which safeguards a defendant’s Sixth Amendment right to be tried by ‘a panel of impartial, indifferent jurors.’ ” Coleman v. Kemp, 778 F.2d at 1489 (citing Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961)); Coleman v. Zant, 708 F.2d 541, 544 (11th Cir.1983). If pretrial publicity is so prejudicial and inflammatory as to preclude the selection of an impartial jury, due process requires a change of venue or a continuance. Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963); Coleman v. Zant, 708 F.2d at 544. Cummings is essentially making a due process claim that pretrial publicity caused her trial to be fundamentally unfair. Murphy, 421 U.S. at 799, 95 S.Ct. at 2035-36.
This Court has articulated two standards for evaluating change of venue requests based on allegations of pretrial publicity—actual prejudice and presumed prejudice. In Coleman v. Zant, the Court described the standards in this way:
To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. at 727, 81 S.Ct. at 1645. Second, these jurors, it must be determined, could not have laid aside these preformed opinions and “render[ed] a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643,
Prejudice is presumed from pretrial publicity when (1) pretrial publicity is sufficiently prejudicial and inflammatory, and (2) the prejudicial pretrial publicity saturated the community where the trials were held. Rideau v. Louisiana, 373 U.S. at 726-27, 83 S.Ct. at 1419-20; Murphy v. Florida, 421 U.S. at 798-99, 95 S.Ct. at 2035-36.
708 F.2d at 544-45. The defendant bears the burden of demonstrating either type of prejudice. Murphy, 421 U.S. at 803, 95 S.Ct. at 2039; Coleman v. Zant, 708 F.2d at 545. When an appellant claims actual prejudice, the trial court’s finding of impartiality should be overturned only if the reviewing court finds “manifest error.” Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888-89, 81 L.Ed.2d 847 (1984). Although the Supreme Court has not directly addressed the standard of review for a claim of presumed prejudice, this Circuit has treated the standard as a mixed question of fact and law. Coleman v. Kemp, 778 F.2d at 1537 & n. 17.
A. Actual Prejudice
The standard established bv the Supreme Court is not that a juror be “totally ignorant of the facts and issues involved,” but that he be able to “lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 U.S. at 722-23, 81 S.Ct. at 1642-43. An individual juror’s statement that he or she can remain impartial and put aside any prior opinions must be examined in light of the entire process of voir dire. Patton v. Yount, 467 U.S. at 1031, 104 S.Ct. at 2888-89; compare Irvin, 366 U.S. at 727-28, 81 S.Ct. at 1645-46 (in situation where negative publicity permeated community, eight of twelve jurors expressed opinion that defendant was guilty, and some admitted it would take evidence to overcome that opinion, then statements that jurors would be fair and impartial to defendant were not determinative) with Murphy, 421 U.S. at 802-03, 95 S.Ct. at 2038-39 (“indicia of impartiality might be disregarded in a case where the general atmosphere in the community or courtroom is sufficiently inflammatory,” but not when pretrial publicity is limited and largely factual in nature and fewer than half prospective jurors had opinion as to defendant’s guilt). However, deference must be paid to the trial judge’s decision regarding the partiality of an individual juror because of the credibility determination involved. See Patton, 467 U.S. at 1031 n. 7, 104 S.Ct. at 2888-89 n. 7 (presumption of correctness in federal ha-beas proceedings for state court factual findings underlies reviewing court’s “manifest error” standard of review).
Of the twelve jurors who r.endered the verdict in this case, eleven had been exposed to pretrial publicity to some degree. Cummings focuses on jurors Cooper and Sapp, and cites their voir dire testimony as evidence of their alleged impartiality. Under Irvin, this evidence must demonstraté that the jurors in question entertained an opinion before the trial that Cummings was guilty and that these jurors could not have laid these opinions aside to render a verdict based solely on the evidence presented.
Juror Cooper, while admitting that she was not sure she could completely clear her mind of the media coverage she had been exposed to, stated that she had formed no opinion as to Cummings’ guilt and that she was ready to assume Cummings was innocent until proven guilty. Juror Sapp, after initially stating that he could render a verdict without being influenced by the pri- or publicity he had seen, later admitted that he had formed an opinion that Cummings was guilty. However, he also stated that he could put this opinion out of his mind and decide Cummings’ guilt or innocence based on the evidence presented. Given our review of the record, we cannot conclude that the trial court committed manifest error.
B. Presumed Prejudice
The presumed prejudice standard involves two prongs — the pretrial publicity must be sufficiently prejudicial and inflammatory and the publicity must have saturated the community where the trial was held. Coleman v. Zant, 708 F.2d at 544. Relief is granted under this standard only in extreme situations. Coleman v. Kemp, 778 F.2d at 1537.
After reviewing the news articles, affidavits and video cassettes filed in this case, and after conducting an evidentiary hearing on the issue, the district court found that Cummings had failed to introduce enough evidence for the court to presume prejudice from the pretrial publicity. The court found that the reports contained primarily factual accounts of the circumstances surrounding Bradford’s death and that none of the publicity was calculated to provoke hostility. See Murphy, 421 U.S. at 802, 95 S.Ct. at 2038-39 (news articles did not create inflamed community atmosphere when largely factual in nature). The evidence presented to the district court included eleven articles from the Sentinel Star, the local Sanford County paper. These articles had been published over a three month period and only some of them specifically refer to Cummings by name. Compare Rideau v. Louisiana, 373 U.S. at 726, 83 S.Ct. at 1419-20 (defendant’s televised confession seen by large part of community raises presumption of prejudice) and Coleman v. Kemp, 778 F.2d at 1538 (repetitious news coverage containing hostile bias against defendant created “overwhelming showing in the press of [defendant’s] guilt before his trial ever began”). We agree with the trial court that Cummings has failed to meet the extensive evidentiary showing required to warrant relief under the presumed prejudice standard.
IV.
We conclude that, although her challenge to the manner in which voir dire was conducted is not procedurally barred, Cummings has not shown that the trial judge conducted voir dire in such a manner that potential prejudice in the juror’s beliefs went undetected. Further, Cummings has not demonstrated actual or presumed prejudice that rendered the denial of her second change of venue motion a violation of her Sixth and Fourteenth Amendment rights to an impartial jury. We therefore AFFIRM the district court.
.Cummings was intimately involved with Gould and Priscilla in the planning and execution of earlier murder attempts against John. At one point, Priscilla loaned Cummings a rifle which Cummings planned to use on John. Later, Cummings plotted with Gould and Priscilla to place an overdose of drugs in John’s orange juice. Cummings purchased the drugs and helped prepare the orange juice that Priscilla then offered to John.
. Priscilla pled guilty to her husband’s murder. Eden was granted immunity in exchange for her testimony at Cummings’ trial.
. Eden heard Cummings encouraging the others but did not actually see Cummings inflict any blows.
. Cummings also filed motions for additional peremptory challenges, individual voir dire of prospective jurors, and sequestration of the jury. These motions were denied.
. Cummings also raised an ineffective assistance of counsel claim which she does not raise here.
. We note that the district court did address this claim, but it did so when addressing the change of venue motion and Cummings’ allegation of “presumed prejudice.” This Court has assumed, in a recent opinion, that voir dire, conducted in an effective manner, may be sufficient to rebut the presumption of prejudice arising from a community saturated with negative pretrial publicity. Coleman v. Kemp, 778 F.2d 1487, 1541 & n. 25 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). However, the district court did not find the community in which the trial was held saturated with negative publicity. Further, the court found the voir dire was sufficient to root out any partial members of the venire.
. Put another way, the state court was made aware that Cummings was challenging not only the impartiality of individual jurors as revealed in voir dire but also the effect the statements of individual jurors may have had on other potential jurors when the statements were made in a collective setting.
. It appears from the record that these questions were among those requested by defense counsel. Voir Dire Transcript at 17.
. Both parties agree that this claim was presented on direct appeal in state court and that it is not procedurally barred.
. The text of Cooper's voir dire testimony is as follows:
THE COURT: Have you read anything in the newspaper or saw [sic] anything on TV concerning this particular case?
MS. COOPER: Yes, sir.
THE COURT: All right. Can you disregard what you have seen on TV and read in the newspapers and base any verdict that you might render solely on the testimony as it is given to you in this case and that alone, or would you be influenced by anything you might have read outside the Courtroom?
MS. COOPER: I really don’t know if I could rule out all of it or not. It's possible, but I can’t give you a definite yes or no.
THE COURT: You understand that the Defendant, every criminal case is presumed innocent until their guilt is established by the evidence to the exclusion and beyond every reasonable doubt?
MS. COOPER: Right.
THE COURT: You think you have been so influenced by the newspaper or TV that you could not give the Defendant that presumption of innocence at this time?
MS. COOPER: I don't know. I have never been a juror before.
THE COURT: Well, I know most people ... you would be surprised, very few people have been jurors in the past. But you recognize what I am saying that the Defendant is presumed to be innocent, every person accused of a crime is presumed to be innocent?
MS. COOPER: Right.
THE COURT: And, you know, not to be tried in the newspaper. Newspapers report as they see them [sic] and things that they have heard and information they receive.
MS. COOPER: You can’t believe everything that you read.
THE COURT: Right. But do you think that you are, your reading the newspapers or watching TV has tainted that presumption of innocence at all?
MS. COOPER: Well, I really think they are innocent until proven guilty.
THE COURT: Well, that is the main thing.
MS. COOPER: I read in the newspaper, I cannot say they’re guilty from the paper.
THE COURT: Because that is the main thing we are looking for is people who will come up here, disregarding everything that has been in the newspaper and TV and rely solely on the evidence as it is presented to you in the case, because it’s the State’s duty to prove the Defendant guilty beyond a reasonable doubt according to the law the Court will instruct you at the close of the trial.
MS. COOPER: I will try to do that.
THE COURT: All right. Thank you.
Voir Dire Transcript at 37-39. Later, she was questioned by defense counsel:
MS. BICKERSTAFF: Ms. Cooper, there was a little pause when Mr. Robinson asked you about whether you felt you could put out of your mind everything you may have heard about this case before. Are you at all unsure on [sic] that?
MS. COOPER: I am not sure I can put it completely out of my mind, no.
MS. BICKERSTAFF: As a result of what you may have heard, have you formed any opinion with regard to the guilt or innocence of Joyce Cummings?
MS. COOPER: No.
MS. BICKERSTAFF: All right. Do you feel that you can follow the Judge’s instructions with regard to the applicable law in this case and that you can be fair to both sides in the case?
MS. COOPER: Yes.
MS. BICKERSTAFF: You feel you can do that despite what you may have learned or come across before you came today?
MS. COOPER: Yes.
Voir Dire Transcript at 219-20.
. Sapp answered the trial judge’s initial inquiries about his ability to be impartial in the affirmative. Voir Dire Transcript at 66-67.
. Sapp’s testimony when questioned by the defense counsel was as follows:
MS. BICKERSTAFF: If I recall, you don’t know very much about this case anyway.
MR. SAPP: Just what I heard and read in the paper and on TV.
MS. BICKERSTAFF: As a result of what you heard or read, did you form any type of opinion with regard to the guilt or innocence?
MR. SAPP: I just formed the opinion on what I heard and I heard, you know, what happened about the people and that was it.
MS. BICKERSTAFF: Could you tell me?
MR. SAPP: I assume they were guilty ... just about the wife hitting her husband with a frying pan and the other people helping her.
MS. BICKERSTAFF: When you say you assume they were guilty ...
MR. SAPP: Right, but the media by saying
MS. BICKERSTAFF: Do you, have you carried that assumption with you into the Courtroom today?
MR. SAPP: To a certain extent I have, yes. I have to say I have.
MS. BICKERSTAFF: Do you feel that Joyce Cummings might have some burden to overcome with regard to you and your feelings at this time?
MR. SAPP: No. I think I have an open mind. I could listen to the facts.
MS. BICKERSTAFF: Do you think you can completely put out of your mind anything you may have seen or read or heard prior to coming here today?
MR. SAPP: Yes.
MS. BICKERSTAFF: That you can deliberate on the guilt or innocence of Joyce Cummings based on what you hear here in the Courtroom and the law as Judge Woodson instructs you?
MR. SAPP: Yes.
MS. BICKERSTAFF: Do you have any reasons, sir, why it would be a hardship for you to sit in this jury?
MR. SAPP: No.
MS. BICKERSTAFF: All right. Thank you. Voir Dire Transcript at 258-59.
. The state argues that the district court improperly allowed Cummings to supplement the evidence actually presented to the trial court in support of the second motion for change of venue. The issue does not have to be addressed by this Court in light of the fact that, even with this supplemental evidence, Cummings is not able to meet the “presumed prejudice" burden.
. The court suggested that it was aware of other media coverage of the case not included in the submitted materials, but how extensive this coverage was is unclear. The court limited its consideration to the documents and tapes before it.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
SKEE-TRAINER, INC., and Stewart J. Leonard, Appellants, v. GARELICK MFG. CO., Appellee.
No. 18067.
United States Court of Appeals Eighth Circuit.
June 8, 1966.
Marcus B. Finnegan, of Finnegan & Henderson, Washington, D. C., Warren A. Sturm, of Carlsen, Carlsen & Sturm, Minneapolis, Minn., on the brief, for appellant.
Mark W. Gehan, C. H. Lauder, St. Paul, Minn., on the brief, for apellee.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge.
VAN PELT, District Judge.
This is an action against Garelick Manufacturing Company (Garelick) for infringement of Patent No. 3,125,060 issued to plaintiff Stewart J. Leonard on March 17, 1964 and later assigned to plaintiff Skee-Trainer, Inc. Plaintiffs requested a permanent injunction enjoining defendant from infringing the patent in issue and treble damages for deliberate and willful infringement. The device in issue is an aid to people who are learning to water ski and is marketed under the name of “Skee-Trainer.” The trial court, finding the patent invalid for want of invention, entered judgment for the defendant. From that judgment, plaintiffs have appealed. Jurisdiction is established by virtue of 35 U.S.C.A. § 281 and 28 U.S.C.A. § 1338.
The issue before the court concerns the validity of the trial court’s interpretation of the words “prior art” found in 35 U.S.C.A. § 103 which provides:
“A patent may not be obtained * * * if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made-to a person having ordinary skill in the art to which said subject matter pertains.”
After rejecting two possible interpretations, the trial court adopted the following:
“3. Prior art, with respect to any simple mechanical device utilizing universally known principles, may be thought to refer to the field of mechanics itself. Regardless of the field in which he works, every prospective inventor is charged with knowledge of basic mechanical principles. If, by whatever criteria of invention may be invoked, courts decide that his innovation is too ‘obvious’, then it will not be patentable even though nothing really like it has existed before. More specifically, although the simplicity of a mechanical innovation will not automatically render it unpatentable, simplicity is itself strong evidence that ‘invention’ is lacking.”
Relying on Caldwell v. Kirk Mfg. Co., 269 F.2d 506 (8th Cir. 1959), cert. denied, 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959), the court held the patent to be invalid for want of invention.
The task for this court is to ascertain whether the trial court applied the proper interpretation of the words “prior art” in determining the validity of the patent and, if the interpretation is valid, to decide whether the patent satisfies the requirements for patentability. There is no issue as to whether the patent satisfies the elements of “novelty” and “utility” enumerated in 35 U.S.C.A. §§ 101, 102. If the trial court applied the improper standard, the judgment must be reversed. Caldwell v. Kirk Mfg. Co., supra at 508-509.
Prior to the argument in this case the United States Supreme Court accepted for argument a group of patent cases, including three from this circuit. These have since been argued and decided. In Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), an Eighth Circuit case, the court construed section 103, supra, and explained its effect upon patentability of an invention.
Arguments were also had in two other cases from this Circuit, the Cook Chemical cases [Calmar, Inc. v. Cook Chemical Co.], reported at D.C., 220 F.Supp. 414 and 336 F.2d 110. They were decided at the same time as Graham, (See 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545). The Cook Chemical cases were reversed. Graham was affirmed. It was argued in these cases “that the first sentence of § 103 was intended to sweep away judicial precedehts and to lower the level of patentability” (p. 16, 86 S.Ct. p. 693).
The Court concluded that Congress by the revision did not intend “to change the general level of patentable invention.” (p. 17, 86 S.Ct. p. 693) and that
“[T]he 1952 Act was intended to codify judicial precedents embracing the principle long ago announced by [13 L.Ed. 683] this Court in Hotchkiss v. Greenwood, 11 How. 248 (1850), and that, while the clear language of § 103 places emphasis on an inquiry into obviousness, the general level of innovation necessary to sustain patentability remains the same.” (3-4, 86 S.Ct. 686)
The Court went on to say:
“Approached in this light, the § 103 additional condition, when followed realistically, will permit a more practical test of patentability. The emphasis on non-obviousness is one of inquiry, not quality, and, as such, comports with the constitutional strictures.” (17, 86 S.Ct. 693)
It is thus clear that Hotchkiss still controls. The net result of the decision is that the standard of invention, as enunciated over 100 years ago, remains the same and has not been altered either by intervening judicial interpretations or the congressional enactment of Section 103. The rule in Hotchkiss, in essence, is that a patentable invention must evidence more ingenuity and skill than that possessed by an ordinary mechanic acquainted with the business.
One striking aspect of the decision is the Court’s total rejection of the suggestion that the Court, prior to Graham, had been imposing supposedly stricter standards of patentability.
“We have been urged to find in § 103 a relaxed standard, supposedly a congressional reaction to the ‘increased standard’ applied by this Court in its decisions over the last 20 or 30 years. The standard has remained invariable in this Court.” (19, 86 S.Ct. 694) (Emphasis added.)
The Court in a note explained the “flash of genius” phrase used in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58, saying it “was but a rhetorical embellishment of language going back to 1833.”
“Rather than a more exacting standard, Cuno merely rhetorically restated the requirement that the subject matter sought to be patented must be beyond the skill of the calling. It was the device, not the invention, that had to reveal the ‘flash of creative genius.’ ” (383 U.S. 15, 16, 86 S.Ct. 693)
Although the Court was unequivocal in stating that the standard as to patentability “has remained invariable in this Court” it used this language following the quoted words:
“Technology, however, has advanced— and with remarkable rapidity in the last 50 years. Moreover, the ambit of applicable art in given fields of science has widened by disciplines unheard of a half-century ago. It is but an evenhanded application to require those persons granted the benefit of a patent monopoly be charged with an awareness of these changed conditions. The same is true of the less technical, but still useful arts. He who seeks to build a better mousetrap today has a long path to tread before reaching the Patent Office.” (19, 86 S.Ct. 695)
The effect of Graham has recently been considered by this court in American Infra-Red Radiant Co., Inc. v. Lambert Industries, Inc., Cases, 8 Cir., 360 F.2d 977, decided May 20, 1966, and Kell-Dot Industries, Inc. v. Graves, 8 Cir., 361 F.2d 25, decided May 18, 1966. In Lambert it was stated:
“The Court made it clear that the statute merely codified the decisional law and the necessary level of innovation previously demanded by the courts had not been changed by the statute.” 360 of 984 F.2d.
We now conclude that Graham does not invalidate the meaning the trial court gave to the words “prior art”. In fact the trial court’s statement “If, by whatever criteria of invention may be invoked, courts decide that his innovation is too ‘obvious,’ then it will not be patentable even though nothing really like it has existed before,” is now supported by the teachings of Graham. We conclude, as did the trial court, that “prior art” may include not only earlier devices and publications but also similar devices whether or not in related areas to the patented device and with respect to a simple mechanical device utilizing universally known principles permits referring to the field of mechanics itself.
Graham teaches:
“Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy.” (17-18, 86 S.Ct. 694)
We must next determine whether by the standards of Graham the trial court reached a proper conclusion.
BACKGROUND OF THE SKEETRAINER:
As previously stated, the device relates to a method of aiding beginning water skiers to learn to water ski quickly and efficiently. Allegedly, it overcomes the problem of teaching beginners to maintain a proper skiing position. Many methods have previously been employed to achieve this objective; such as attachments- to the skis, special launching platforms, poles suspended from the side of the tow boat, and special water skiing schools.
Plaintiff Leonard, a champion skier, embarked on a project to build a simple, cheap, and safe device. His efforts culminated in the construction of the “SkeeTrainer” which achieved commercial success.
To describe the structure and the use of the device, the court adopts the language utilized by the trial court.
“The Skee-Trainer itself is very simple. It consists of two wooden bars placed across the open end of a U-shaped piece of aluminum tubing. One of the bars is at the very tip of the forward end of the Trainer, the other is a few inches back and parallel to the first. The rear bar has a loop of metal fixed in the center to which a tow rope may be attached. The trainer is twenty-two inches long and its width is about twenty-one inches in the front, tapering to about eighteen inches at the rear.
“In order to use the Trainer, a skier affixes a tow rope to the metal loop, puts on his water skis and then places the front tip of his skis between the wooden bars. By pressing downward, on the closed end of the U-shaped piece of tubing, he can clamp his skis firmly between the two wooden bars. The dimensions of the Trainer are such that, when the skis are clamped, they will automatically be spaced and directed properly for water skiing. The skier will also be held in the crouched position needed for starting.
“As the skier begins to be pulled through the water, he gradually releases the, downward pressure on the handle of the Trainer. This reduces the clamping pressure of the wooden bar and the Trainer slips smoothly off the skis and merely functions as a handle on the tow rope.
“In mechanical terms, the SkeeTrainer is a lever arm which transmits force to two parallel bars used as a friction clamp.”
PRIOR ART:
Without discussing the prior art in the use of the principles of friction and leverage, it is necessary to examine devices similar to the Trainer in use or structure. At trial, two water ski aids previously patented were introduced into evidence: No. 2,938,220 for a “Water Ski Attachment” issued to R. G. Puckett, and No. 2,946,305 for a “Water Ski Towing Device” issued to T. G. Hill. Neither device, however, resembles the Skee-Trainer as each require a permanent or semi-permanent attachment to the skis.
Other devices similar to the Trainer were introduced into evidence. None of them, as found by the trial court, resemble “the Skee-Trainer or anticipate any of its basic features.”
Despite the above conclusions, this court believes, and so holds, that the “Trainer” could have been developed and constructed by an individual with knowledge and skill in the field of mechanics.
INVALIDITY OF THE PATENT:
Although the Trainer- is simple in structure, the court is required not to equate simplicity with obviousness. However, an invention, although new in the sense that nothing like it has previously existed, may still not be patentable if the difference between the new thing and what was known before is not sufficiently great to warrant a patent.
Examination of the entire record convinces this court that the construction of the “Skee-Trainer” involved only the application of mechanical ability. While the device may perform a functional use by aiding beginning skiers and although nothing comparable to it has previously been constructed, the court concludes that the device is obvious to a person having ordinary skill in the art. Congress did not authorize or tend to authorize the issuance of patents as a reward for mechanical skill.
Thus, the trial court’s judgment is affirmed in all respects.
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_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
MONMOUTH MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Hospital Professional and Allied Employees of New Jersey, Intervenor.
No. 78-1832.
United States Court of Appeals, Third Circuit.
Argued March 22, 1979.
Decided Aug. 20, 1979.
Francis X. Dee (argued), Edward F. Ryan, Laurence Reich, Carpenter, Bennett & Morrissey, Newark, N. J., for petitioner.
Vivian A. Miller (argued), Kenneth B. Hipp, John S. Irving, John E. Higgins, Jr., Robert E. Allen, Elliott Moore, Washington, D. C., for respondent.
Alfred G. Osterweil (argued), Osterweil, Wind & Loccke, Edgewater, N. J., for inter-venor.
Before GIBBONS and HUNTER, Circuit Judges, and MEANOR, District Judge.
Honorable H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
I.
This case is before the Court on a petition by Monmouth Medical Center (the Hospital) to review, and a cross-application of the National Labor Relations Board (the Board) to enforce, an order issued by the Board against the Hospital. The order directs the Hospital to bargain collectively with the Hospital Professionals and Allied Employees of New Jersey (the Union). It is predicated on the Board’s decision that the Hospital’s refusal to bargain with the Union constituted an unfair labor practice in violation of section 8(a)(1) and (5) of the National Labor Relations Act.
Whether the Hospital’s refusal to bargain was an unfair labor practice depends on whether the Union was properly certified by the Board as the collective bargaining representative of the Hospital’s employees. The Hospital alleged that the representation election which the Union won was flawed by improper pre-election conduct and that certification of the Union following such an election was therefore invalid. The Board rejected the Hospital’s objection at the initial representation proceeding and declined to reconsider it at the unfair labor practice hearing. We conclude that the Board’s certification decision was inconsistent with case law and with previous decisions of the Board itself and amounted to an abuse of discretion. Since the Union was not properly certified as the bargaining representative, the Hospital committed no unfair practice when it refused to bargain. The Hospital’s petition will be granted, the order will be denied enforcement, and the disputed election will be set aside.
II.
On June 16, 1977, the Board conducted a secret ballot election in a unit consisting of the Hospital’s full-time and regular part-time registered nurses and graduate nurses. Of approximately 320 eligible voters, 284 cast valid ballots. The Union won the election by a vote of 148 for the Union to 136 against the Union — an effective difference of six votes. The Hospital filed objections to the election, alleging inter alia, that the election should be set aside because the Union “misused and abused the National Labor Relations Board’s processes to secure a partisan advantage in that it represented to unit employees, directly and indirectly, that the... Board endorsed [the Union] in the election”. To support this objection, the Hospital submitted six pieces of literature which had been distributed by the Union during the pre-election campaign.
The first piece of literature, “Exhibit A”, is an official Board-published election pamphlet, entitled “Your Government Conducts an Election”, to which the message “Vote Yes June 16 MMC Auditorium” has been added by hand. At least ten of these altered documents were distributed to voters in May, 1977, by the co-chairperson of the Union’s local steering committee.
The second piece of literature, “Exhibit B”, was mailed to unit employees on or about June 9, 1977. It states, in part:
. On June 13th, there will be a hearing at the National Labor Relations Board regarding the Unfair Labor Practices charged against the Hospital by members of your Steering Committee. The NLRB conducts such hearings only after investigation and rendering merit to such charges. [Emphasis added.] The [Union] has not nor could we be, charged with violating any standard of conduct or representation set to preserve the rights of employees. This hearing proves the Hospital cannot make such a claim. If Mr. Pilla attempted to file such a charge he would realize that he does not stand a chance in a formal hearing as the daily mutilation of the facts would not stand' up as credible evidence at the Labor Board.
Prior to the distribution of Exhibit B, on March 22, 1977, the Union had mailed a letter, “Exhibit C”, which reads in pertinent part:
. If any misguided friend of the administration, probably unaware that they are putting themselves in criminal jeopardy, threaten to take any negative action against you whatsoever for joining or showing interest in a union, that person has violated a federal law. (Emphasis added)
******
WHAT CAN HAPPEN TO THOSE WHO COMMIT AN UNFAIR LABOR PRACTICE?
The law provides that those who commit such violations of the Labor Act can be fined up to $5,000.00 and possibly imprisoned up to one year, or both.
At about the same time that Exhibit B was mailed, the Union mailed another leaflet, “Exhibit D”, which states in part:
Something to think about: The attorneys and agent of the National Labor Relations Board, to whom the hospital and the employees are subject to regarding collective bargaining, ARE UNIONIZED themselves. These people, who are privy to more information than anyone else regarding unions have chosen to unionize years ago. (emphasis in original).
When the experts have chosen this particular method, can it really be the wrong one?
Vote “Yes”
June 16th.
In early and mid-May, the Union mailed two additional leaflets. The first leaflet, “Exhibit E” states in pertinent part:
It is easier for the administrations anti-union campaign, financed with tax deductible hospital funds, to start rumors and spread half-truths than it is for us to send out letters correcting the intentional misinformation many people are being given. WE have nothing to gain by lying to you. When something you hear from the anti-union people contradicts what union organizers have told you, there is any easy way to find out who is telling the truth. Just call the Officer of the Day at the National Labor Relations Board at 645 — 2100. WE have nothing to hide.
The second leaflet, “Exhibit F”, which was mailed within the same time period and context as Exhibit E, but to employees voting in an election unit not at issue here, states in pertinent part:
If you doubt in any way information given you by the administration or by a representative of the union, we urge you to call the National Labor Relations Board at 645-2100 to verify what you’ve been told.
The Regional Director of the NLRB conducted an administrative investigation into the Hospital’s objections. In his Report on Objections, he concluded that Exhibits A and B were not objectionable, but that Exhibits C, D, E, and F were. Accordingly, he recommended that the election be set aside and that a new election be directed. Both the Hospital and the Union filed exceptions to the Regional Director’s report. The Board delegated its authority to hear the exceptions to a three member panel. The panel, in a 2 — 1 decision, overruled the Hospital’s objections, effectively reversing the Regional Director, and certified the Union as the exclusive bargaining representative of the Hospital’s registered and graduate nurses.
The Hospital refused to bargain with the Union, and an unfair labor practice hearing was commenced. The proceeding was conducted by the same panel which had overruled the Hospital’s objections to certification. At the hearing the Hospital defended its refusal to bargain by arguing that the Board had improperly overruled the Hospital’s objections to the election and that, therefore, the Board’s certification of the Union was invalid and could not provide the basis for finding an unlawful refusal to bargain. The panel rejected this argument, again by a 2-1 vote, and granted summary judgment in favor of the NLRB.
Since the Board’s Decision and Order is premised upon its certification of the June 16,1977 election, we must consider the validity of the Board’s certification of the representation election. We are mindful that the Board has “wide discretion” in establishing the procedure and safeguards for conducting representation elections, NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). Nevertheless, the Board’s decision must be reasonably consistent with its previous decisions. In Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976) we observed:
In articulating the “basis for its order”, the Board is free to refer “to other decisions or its general policies laid down in its rules and its annual reports.” [NLRv. Metropolitan Life Ins. Co., 380 U.S. 438, 443 n.6, [85 S.Ct. 1061, 13 L.Ed.2d 951] (1965)]. However, where the Board has reached different conclusions in prior cases, it is essential that the “reasons for the decisions in and distinctions among these cases” be set forth to dispel any appearance of arbitrariness. [Id. at 442, [95 S.Ct. 1061].
Id. at 357. Accord, NLRB v. Saint Francis College, 562 F.2d 246, 252 (3d Cir. 1977); St. Vincent’s Hospital v. NLRB, 567 F.2d 588, 590 (3d Cir. 1977); NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir. 1979) (“In exercising the discretion entrusted it in representation matters, the Board must faithfully adhere to the policies and procedures previously announced in its rules and decisions”). In reviewing a Board decision, we may not “abdicate” our responsibility to assure “that the Board keeps within reasonable grounds”. Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).
III.
The gravamen of the Hospital’s complaint is that the literature mailed, distributed, and posted by the Union misrepresented the role of the Board in conducting representation elections and created the impression that the Board favored the Union in the June 16 election. The Hospital’s position is that in thus misleading unit employees the Union compromised the statutory neutrality of the Board.
The Board assumes a supervisory role in representation elections. “It is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible to determine the uninhibited desires of the employees.” General Shoe Corp., 77 NLRB 124, 127 (1948). An important aspect of conducting a “fair and free election” has been to prevent the misrepresentation of material facts. In Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 (1962), the Board announced its general policy against misrepresentations which might reasonably be expected to have an impact on the election. Numerous types of misrepresentations can have the impact, under Hollywood Ceramics, to warrant the setting aside of an election. But an area of particular sensitivity, which has given rise to a body of specialized and rigorous rules, is misrepresentation which creates the impression that the Board favors unions and unionization. Misrepresentation of this sort strikes at the heart of the election process, for the Board’s perceived neutrality is essential to the guarantee of a “fair and free” choice by employees.
The Board actively guards its neutral status and will intervene to prevent the improper involvement of the Board and its processes in representation elections. The Board “will not countenance the use of its name in a manner which gives the impression that the Agency has granted a party to an election its imprimatur or support.” GAF Corp., 234 NLRB No. 182, slip op. at 4 (1978). “Especially does [the Board] believe that no participant in a Board election should be permitted to suggest either directly or indirectly to the voters that [the Board] endorses a particular choice.” Allied Electric Products, Inc., 109 NLRB 1270, 1272 (1954). If the successful party to an election has misused Board processes to its partisan advantage, the election will be set aside. Id.
The full Board’s most recent decision in the area of Board neutrality is GAF Corp., 234 NLRB No. 182 (1978), which was decided after the representation decision in this case but before the unfair labor practice hearing. In GAF the Board held that the union had interfered with the election when it mailed a leaflet which contained language similar to that on the Board’s election notice, even though the leaflet was entirely different from that used by the Board. “National Labor Relations Board an agency of the United States Government” appeared on the top right-hand corner of the leaflet. The top left-hand corner contained a rendering of the United Statés Capitol over which the words, “It’s the law” had been superimposed. The union had clearly identified itself as the author of the leaflet by placing its name, address and logogram on the bottom. The context of the leaflet revealed that it was election campaign propaganda. Yet, a majority of the Board held that the election should be set aside:
As composed, the leaflet at the very least creates an ambiguity in the mind of its reader as to the document’s originator. We have repeatedly held that the Board will not countenance the use of its name in a manner which gives the impression that the Agency has granted a party to an election its imprimatur or support. E. g., J. Ray McDermott & Co.,...; Rebmar, Inc....; Allied Electrical Products, Inc.... As we stated in Rebmar, our concern is not with the substance of the material added to a portion of a Board document, but with the possible impact such propaganda may have on the freedom of choice of the voter. The Board cannot lend its name and prestige to a use which has the tendency to mislead. (emphasis added)
Id., slip op. at 3 — 4.
GAF and the cases cited therein thus establish the test which is to be applied by the Board when deciding whether the Board’s neutrality has been compromised. We turn to a discussion of whether the Board abused its discretion in applying these principles to the facts of the instant case.
IV.
Exhibit A is a sample of an official Board document which has been altered by the addition of a hand-printed partisan message. The Board concluded that the partisan message was readily identifiable as emanating from the Union, and that, in any event, a subsequent mailing of identical unmarked documents cured whatever damage the altered document might have caused. This conclusion does not appear to be consistent with previous decisions of the Board. In United States Gypsum Company, 124 NLRB 1026 (1959) the Board set aside an election in which the sole objection was that the union had affixed a union button in the “yes” box of a reproduction of an official ballot. The ballots, which were mailed to employees, were clearly stamped “sample”, and were not in any other manner altered. In Silco, Inc., Atlas Division, 231 NLRB 110 (1977) the Board set aside an election where the employer distributed a hand-printed sample ballot with an arrow pointing to the “no” box. That the partisan message and the ballot itself were hand-printed did not “neutralize” or “justify” the document.
In Allied Electric Products, 109 NLRB 1270 (1954), the union distributed what purported to be a sample of the Board’s official ballot, but which had a partisan message appended. The Board concluded that:
The reproduction of a document that purports to be a copy of the Board’s official secret ballot, but which in fact is altered for campaign purposes, necessarily, at the very least, must tend to suggest that the material appearing thereon bears [the Board’s] approval. As there are many legitimate methods available to parties for disseminating campaign propaganda which clearly do not entail an apparent involvement of the Board or its processes, we believe it is unnecessary to permit unlimited freedom to partisans in election cases to reproduce official Board documents for campaign propaganda purposes. (emphasis added).
Id. at 1272. In Rebmar, Inc., 173 NLRB 1434 (1968), the Board applied the Allied Products rule to a Board document which was not a sample ballot. The union had distributed a handbill which in part consisted of a portion of the Board’s election notice, but with a campaign message superimposed thereon. The Board set aside the election, stating:
Our concern is not with the substance of the material added to the Board’s official notice of election, but with the possible impact such a partisan message added to an official Board document, or copy thereof, might have on the freedom of choice of the voter.
* * * * * *
To duplicate a part of the Board’s official notice and then to add to it a personal partisan message that may be interpreted by the employee as an endorsement by the Board of one of the parties to the election, and thus have an impact on the employees’ freedom of choice, is, we think, an undesirable use of Board documents designed for another purpose. That the Union’s message in this case may be arguably innocuous and that there may have been at most a narrow or technical violation of the Allied Electric Products rule, is clearly irrelevant. Whether deliberate or unintentional, such action has a tendency to mislead, and we are of the opinion that the Board should guard against having its prestige put to such possible abuse. 173 NLRB at 1434. (emphasis added; citation omitted).
In GAF, which did not involve a sample ballot, the Board found that mere ambiguity was enough to make a document objectionable, even though the document was clearly identified as emanating from the union, and contained only some language similar to that used by the Board in its election notices.
Exhibit A is an actual Board document and the union source of the appended partisan message is nowhere admitted. It would seem that, as in Rebmar and GAF, application of the Allied Electric rule is warranted.
The Board, in its brief, attempts to distinguish Silco and Ünited States Gypsum as “merely” being cases in which alteration was found objectionable. In reliance on A. Brandt & Co., Inc., 199 NLRB 459 (1972), the Board concludes that, in Exhibit A, the “comments could not reasonably be construed by the employees as part of the [Board’s publication] but were readily identifiable by them as partisan comments emanating from the [Union] in relation to the election campaign”. We are not necessarily persuaded that this conclusion is consistent with the cases discussed above or represents a reasonable application of the principles those cases represent. Silco itself said that alterations have been found permissible only in “a few cases”. 231 NLRB at 110. The Board’s conclusion is especially questionable in light of the fact that the election was close, and considering the emphasis in GAF on mere “ambiguity” and “tendency to mislead”. However, speaking now only to Exhibit A, we need not decide if the Board abused its discretion in approving this particular campaign material, as the remaining exhibits by themselves are sufficient to make out reversible error.
Exhibit B contains a Union reference to an unfair labor practice hearing and the Union’s declaration that the Board had “render[ed] merit” to the charges. We read it in light of Exhibit C, which was sent out prior to the mailing of B and which incorrectly states that criminal penalties attach to those who have been found guilty of unfair practices. The Board excused Exhibit B as being only “inartfully drafted” and not a “substantial” or “patent” mis-characterization of a Board proceeding. Further, to the extent that there was a misleading inference that the Board had already found merit in the unfair practice charges the Board concluded that the harm was mitigated by the references in the letter to “hearings” and “charges”. The Board found Exhibit C permissible because it did not implicate the Board’s documents or proceedings and could not “reasonably have had an impact on the election.”
The exhibits do implicate a Board proceeding — the unfair labor practice hearing. Exhibit B refers directly to such proceedings and Exhibit C misrepresents the penalties which attach to being found guilty in such proceedings. Misrepresentation of the import of being charged in an unfair labor practice hearing was condemned in Formco, Inc., 233 NLRB No. 5 (1977). There the Board held that the Union interfered with an election when it distributed a letter stating that the employer was guilty of unfair labor practices. The Board reasoned that since only the Board could find an employer “guilty” the Union’s statement drew the Board into the election. In ONA Corp., 235 NLRB No. 85 (1978), the Union distributed excerpted copies of a complaint and notice, and added the disclaimer that a hearing had been set and the employer had denied all of the allegations. The Board ruled that the disclaimer did not cure the violation of Board neutrality, since the excerpted document still “gave the appearance” that the Board had already concluded that the employer was guilty. Citing Mallory Capacitor Co., 161 NLRB (1510 (1966), the Board held that the practice constituted “a misuse of [the Board’s] processes in that such reproduction was reasonably calculated to mislead employees into believing that the Board had judged the Employer to have violated Federal law, whereas such was not the case.” ONA Corp., 235 NLRB No. 85, slip op. at 3 (1978).
The Board’s second justification, that the exhibits could not reasonably have had an impact on the outcome of the election, is based in part on an inappropriate test. It is the “tendency” to mislead and the creation of “ambiguity” which GAF and Allied Products identify as the critical issues to be weighed. Doubts on the question of whether the misconduct actually had an impact should have been resolved against certification. As the court observed in NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 461 (1st Cir. 1962), |t is enough for the election to be set aside because of misrepresentation if the employer shows that “it is sufficiently likely that it cannot be told whether [the employees] were or were not [misled].” To the extent that the Board was concluding that no reasonable person could find the references misleading, the Boárd was directly contradicting its Regional Director without either an apparent or explained reason. The Director had concluded that, “The investigation revealed that [the Union] made numerous references to the National Labor Relations Board and/or the Act not only in Exhibit C but also throughout many of its campaign leaflets including Exhibits B, D and E.. The unavoidable impact of such repeated references to the Board and the Act had to be the creation of the impression in the minds of the voters that [the Union] had a certain expertise regarding Board processes and the Act and knew what it was saying. Therefore, by misstating the law as discussed above, [the Union], whether unintentional or deliberate, misled the voters to believe that their Employer was possibly guilty of criminal conduct.” (Emphasis added)
The Board’s reliance on the reference to “hearings” are “charges” as mitigating the tendency to mislead is misplaced. In ONA, 235 NLRB No. 85 (1979), reference in the document to a “hearing” and to the employer’s denial of the allegations was insufficient to cure the misleading statements. It is not at all clear that mere reference to “hearings” and “charges” in the text of Exhibit B is sufficient to serve as an effective disclaimer, even were disclaimers to be allowed.
Exhibit D appears to strike at the heart of the Board’s neutrality by suggesting that the attorneys and agents of the Board favor unions. It goes so far as to say that the Board favors the “particular method” of unionization upon which the employees were voting. The Board held, however, that an organization could not be presumed to favor unions simply because its employees were represented by a union and that therefore, there could have been no effect on the Board’s neutrality. This completely misses the point. The question is not whether the unionization of its employees proves that the Board actually favors unions. Rather, the question is whether reference by the campaigning Union to unionization of the Board’s employees would create the impression in the minds of the voters that the Board favors unionization.
The Board also concluded that if anything, this exhibit was “campaign propaganda” that employees would recognize and evaluate. We see no reason, and the Board advances none, to conclude that the employees would recognize this particular literature as propaganda, or would look behind it and recognize that it misrepresented the Board’s role in conducting elections. This is especially so since the Board’s finding ignores the conclusion of the Regional Director that “[the Union] cloaked itself throughout the election campaign with the appearance of certain expertise as to the purposes and procedures of the National Labor Relations Act and the Board.” We do not see how the Board could hurdle from this finding, and the Director’s finding quoted at paragraph 21 supra, to the conclusion that the misrepresentations were readily identifiable as propaganda.
Exhibits E and F are letters which referred voters to the Board should they have any questions about the Union. The Regional Director found that these items a lone warranted the setting aside of the election. He concluded that the Union had impermis-sibly injected the Board into the campaign, and had suggested that the Board would respond to the employees’ questions in a manner favorable to the Union.
The conclusion that these letters constituted impermissible interference in the election appears to be compelled by GAF and by Formco, Inc. in which the Board held: “Our concern is with the protection of- our own processes, lest any voter be left with the impression that [the] Board is in favor of any party in an election. We are unwilling to condone any campaign statement which even implies such bias.” 233 NLRB No. 5, slip op. at 5-6 (emphasis added). In this case, the Board held that no document or proceeding was involved, and noted that referring employees’ questions to the Board was allowed. The Board went on to say that anyone calling the Officer of the Day would have been told that he doesn’t answer specific questions. Whether this is in fact the case is sheer speculation. In any event, the dissenting opinion from the Board’s decision in this case effectively questioned the reasonableness of the Board’s conclusion, observing that it was unlikely that employees would actually call the Board, so that the impermissible impression which had been created would remain. Moreover, the dissent noted that even if employees were to call and discover the Union’s misstatement, this would not “render innocuous or justify” the Union’s action. We agree. As the court noted in NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 460 (1962), “We do not think the Union made a half-page statement that it expected would affect no one.”
Y.
For the foregoing reasons the Hospital’s petition for review will be granted and the Board’s cross-application for enforcement will be denied.^ The case will be remanded to the Board so that the disputed election may be set aside.
. The Board Decision and Order (Case No. 22-CA — 8222, reported at 236 NLRB No. 104), was issued pursuant to Section 10(c) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(c) (1976). Because the Board Decision and Order is based in part on findings made in a representation proceeding (Case No. 22-RC-7125, found at 234 NLRB No. 50), the record of that proceeding is also properly before us pursuant to § 9(d) of the Act, 29 U.S.C. § 159(d) (1976).
This Court has jurisdiction of the petitions for enforcement and review under Sections 10(e) and (f) of the Act, Id. §§ 160(e)-(f) (1976).
. Section 8(a)(1) and (5) of the Act provides that: “(a) It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.” 29 U.S.C. § 158(a)(1) & (5) (1976).
. A certification decision is not a final order within the meaning of Sections 10(e) and (f) of the Act, and hence is not reviewable by this Court. AFL v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). Accordingly, the Hospital must “follow [the] circuitous route” of refusing to bargain with the Union in order to precipitate an unfair labor practice proceeding. Aircraft Radio Corporation v. NLRB, 519 F.2d 590, 591 n.2 (3d Cir. 1975). The unfair labor practice decision is final, so the petition for review is properly before us.
. A factor here is the closeness of the election. In such cases, closer scrutiny of objections may be required of the Board. We bear in mind the admonition, nowhere adverted to in the Board’s Decision, that where “an election is extremely close, even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election.” Henderson Trumbull Supply Corp. v. NLRB, 501 F.2d 1224, 1230 (2d Cir. 1974). NLRB v. Skelly Oil Co., 473 F.2d 1079, 1085 (8th Cir. 1973); NLRB v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 1972). See Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 594 (3d Cir. 1975). Cf. NLRB v. Savair Manufacturing Company, 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973).
. We note further that in Metropolitan Life Insurance Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) the Supreme Court held that the substitution of appellate counsel’s “rationale or discretion” for that of the administrative agency would be “incompatible with the orderly function of the process of judicial review.'’ Id. at 444, 85 S.Ct. at 1064. Accordingly, “courts may not accept appellate counsel’s post hoc rationalizations for agency action.” Id. Some of the Board’s argument on appeal has been arguably impermissible under this standard. We have felt no need, however, to draw distinctions as the argument has been in any event unpersuasive. *
. See Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 593 (3rd Cir. 1975) (“... [I]t is clear that the Board is committed to an active supervisory role over the pre-election conduct of the contestants.”) In NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), the Supreme Court recognized the Board’s responsibility for insuring “fair and free choice of bargaining representatives by employees”. It emphasized that:
The Board in its supervision of union elections may not sanction procedures that cast their weight for the choice of a union and against a nonunion shop or for a nonunion shop and against a union.
Id. at 280, 94 S.Ct. at 500, quoting NLRB v. Tower Company, 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946).
. The Board departed from Hollywood Ceramics in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977) when it announced that it would no longer set aside elections on the basis of misleading campaign statements. Id. at 1313. However, the Board has since returned to the stricter Hollywood Ceramics rule, in General Knit of California, Inc., 239 NLRB No. 101 (1978).
. Even under Shopping Kart, which reflects the Board’s most relaxed attitude toward misrepresentation generally, the Board promised that:
. Board intervention will continue to occur in instances where a party has engaged in such deceptive campaign practices as improperly involving the Board and its processes, or the use of forged document's which render the voters unable to recognize the propaganda for what it is. 228 NLRB at 1313 (emphasis added).
The Board’s concern with protecting its neutrality was emphasized in Formco, Inc., 233 NLRB No. 5 (1977). There, the Board held, “Shopping Kart did not change Board law with regard to improper use of the Board and its processes for election campaign purposes.” Id., slip op. at 3.
. GAF was decided by a 3-2 vote of the entire Board. The two dissenters in GAF constituted the majority in our case, it having been decided by a three-member panel. The opinion in the instant case relies on the same cases and the same analysis as did the dissent in GAF. In reference to that dissent, the GAF majority observed that the dissenters were “defin[ing] the words ‘Board document’ too narrowly and construpng] the principles of the cited cases too strictly.” GAF, slip op. at 4. Thus, it appears that the Board has already rejected the analysis upon which the case we are reviewing is based.
. The message was described by the Board as follows:
One side of the handbill was a reproduction of that portion of the election notice entitled, “Rights of Employees” complete with the Board’s seal and name. The only addition to this side of the handbill was a statement superimposed at the top to the effect that “The government protects your right to organize yourself in a union.” The reverse side of the handbill contains an explanation, couched in broad generalized language, of what a union is, how a union functions, and what a collective-bargaining contract contains. Nowhere does the handbill refer to or mention the [Union] by name. (173 NLRB at 1434).
. Even where the altered documents have not been official Board publications, the Board has relied on Rebmar to invalidate elections if the campaign literature appeared to compromise Board neutrality. In J. Ray McDermott & Co., Inc., 215 NLRB 570 (1974) (where the statement “A great day for the I.A.P.D. Keep the faith and vote ‘yes’ when you receive your ballot!!!” had been added at the bottom of. a Regional Director’s telegram) the Board concluded that “the employees could reasonably have believed that some or all of the partisan statements in the insert constituted an endorsement of the [Union] by the Regional Director.” (Id.)
. The facts of Allied Products are similar to ours. There, the union distributed a document which purported to be a sample copy of the Board’s official ballot, which had been altered to include a printed “X” in the yes box. At the bottom was printed, “Do not mark it any other way — mark ‘Yes’ box only.” 199 NLRB at 1271. The Board announced that it would “not permit the reproduction of any document purporting to be a copy of the Board’s official ballot, other than one completely unaltered in form and content,... and upon objection..., will set aside the results of any election in which the successful party has violated the rule.” Id. at 1272 (emphasis added).
. The Regional Director, although finding that Exhibits C, D, E and F were objectionable, excused Exhibits A and B. He too relied on Brandt. However, Brandt was explicitly distinguished from Rebmar when it was decided. We think that especially after GAF, which was decided after the Regional Director made his findings, and which rejected a dissent grounded partly on Brandt, Rebmar is the more appropriate rule. Further, we recall that in a close election, “even minor misconduct cannot be summarily excused.” See note 4 supra.
. In Guitón Industries — Femco Division, 240 NLRB No. 73 (1979), the union had distributed preelection leaflets which mischaracterized a settlement agreement and led to the implication that the employer had been found guilty of unfair labor practices. The Board applied the rule in Formco, Inc. and set aside the election. It made no difference that the leaflets did not expressly state that “the Board” had found a violation, for the leaflets were reasonably calculated to create that impression. The application of Formco, Inc. in Guitón cannot be squared with our case, unless the Board’s decision in our case represents an inconsistent application of the law, which applies to the misrepresentation of the import of unfair practice hearings.
. Of course, we do not conclude that the Regional Director’s
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_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
COMMISSIONER OF INTERNAL REVENUE v. GROMAN.
No. 5779.
Circuit Court of Appeals, Seventh Circuit.
Nov. 30, 1936.
Rehearing Denied Jan. 7, 1937.
Robert H. Jackson, Asst. Atty. Gen., and Sewall Key and Joseph M. Jones, Sp. Assts. to the Atty. Gen., for petitioner.
Egbert Robertson and James C. Spence, both of Chicago, Ill. (Robertson, Crowe & Spence, of Chicago, Ill., of counsel), for respondent.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
EVANS, Circuit Judge.
The Commissioner appeals from a ruling of the Board which held that the stock under consideration, received by respondent, was not taxable to him as gain because received in the course of a reorganization.
The Facts. Respondent was a stockholder in the Metals Refining Company, an Indiana corporation. The Glidden Company is an Ohio corporation. On January 29, 1929, the Glidden Company and all the stockholders of Metals Company entered into an agreement whereby all the stock of the Metals Company was to be transferred to a third company (Metals Refining Co. of Ohio), an Ohio corporation, to be formed by the Glidden Company. The consideration to the stockholders of Metals Company for the trarisfer was '$153,036.66 cash; 5276 shares of 7% prior preferred stock of the Glidden Company at $105 per share; and 5000 shares of 6% cumulative preferred stock of the new company.
Each shareholder of the Indiana corporation, of which respondent was one, received the percentage of this total consideration that his stock holdings bore to the total outstanding stock of said Indiana company. Glidden Company paid cash for the common stock of the new Ohio company. It did not receive any of the preferred stock of this company. The Indiana company was dissolved. Its assets were valued at $1,207,046.66. It is admitted that the cash received by stockholders was taxable and also that respondent’s proportion of the 5000 shares of the preferred stock of the new Ohio Company by him received was not taxable. The issue is limited to respondent’s proportion of 5276 shares of preferred stock of Glidden Company.
Did the Board of Tax Appeals correctly hold that the Glidden Company was a party to a reorganization within the meaning of section 112 (i) (2) of the Revenue Act of 1928?
The pertinent reorganization sections are:
Ҥ 112. (a) General rule. Upon the sale or exchange of property the entire, amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section. * * *
“(b) * * * (3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
“(4) Same — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. * * *
“(5) (c) Gain from exchanges not solely in kind. — (1) If an exchange would be within the provisions of subsection (b) (1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.
“(2) If a distribution made in pursuance of a plan of reorganization is within the provisions of paragraph (1) of this subsection but has the effect of the distribution of a taxable dividend, then there shall be taxed as a dividend to each distributee such an amount of the gain recognized under paragraph (1) as is not in excess of his ratable share of the undistributed earnings and profits of the corporation accumulated after February 28, 1913. The remainder, if any, of the gain recognized under paragraph (1) shall be taxed as-a gain from the exchange of property. * * *
“(i) Definition of Reorganization. As used in this section and sections 113 and 115—
“(1) The term ‘reorganization’ means (A) a merger or consolidation (including the .acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected.
“(2) The term ‘a party to a reorganization5 includes a corporation resulting from a reorganization and includes both corporations in the case of an acquisition by one corporation of at least a majority of the. voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation.
“(j) Definition of control. As used in this section the term ‘control’ means the ownership of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.” (26 U.S.C.A. § 112(a), (b) (3), (4) (c) (1,2) and note (g) (1,2) note, (h) and note.)
The recent decisions of the courts which have passed upon similar questions reject the respondent’s contention that he was within the exemption of the reorganization section. In other words, thq [following cases, while not exactly in point, are persuasive. Bus & Transport Securities Co. v. Helvering, 296 U.S. 391, 56 S.Ct. 277, 80 L.Ed. 292; G. & K. Manufacturing v. Helvering, 296 U.S. 389, 56 S.Ct. 276, 80 L.Ed. 291; Ballwood Co. v. Commissioner (C.C.A.) 84 F.(2d) 733.
Determinative of the question before us is the answer to the question, Was Glidden a party to1 reorganization whereby the Indiana Company transferred its stock to the Ohio Company and the latter paid the stockholders of Indiana Company in cash, preferred stock of Ohio Company, and preferred stock of Glidden Company?
We see no reason for extending the meaning of the term “party” as it appears in section 112 (i) (2) (26 U.S.C.A. § 112 (g) (2) note). To hold otherwise would be to usurp legislative functions. Congress has defined a party to a reorganization so as to permit a taxpayer to avoid what would otherwise be taxable income. It could have refused to allow such deductions altogether. Having exempted “gains” through reorganization, it could and did define reorganizations. In so doing it used the term “a party” referring to those who were in the reorganization. We must hold respondent to the definition which Congress specifically gave to the word “party.” It would, we think, be a forced construction to assume that under such circumstances there were parties other than those defined by the statute. Respondent relies upon the exemption of the statute, but declines to abide by the Congressional definition of essential terms.
The conclusion here reached is confirmed if we view the transaction from another approach. Let us assume that we have a taxpayer who owns stock in a corporation which he sells to another corporation. He is paid partly in cash, chiefly in preferred stock of a third corporation, and the balance in preferred stock of a corporation which buys his stock. The price received is in excess of the cost of the stock to him. Is his gain taxable?
There can be no question about the correctness of an affirmative answer save for an alleged exception or exemption from the tax law due to the reorganization provision of the act. The cash received, of course, is not exempt. The taxpayer does not question the tax upon the cash by him received. The Government concedes the soundness of the taxpayer’s claim of exemption so far as the stock of the acquiring corporation is concerned. In the face of this concession this item like the cash item is out of the picture. As to the stock of a third company, even though it be a parent company, there seems no reason for exempting it any more than could be advanced for exempting the cash. Instead of preferred stock of the third company, it might have been bonds of the third or a fourth company, or real estate or physical personal property. The reason for exempting the stock of the purchasing company does not apply.
Our conclusion, however, is based not upon the reasons for Congressional action, but upon the fact that Congress, in exempting gains derived through the transfer of stock which transfers are but a part of reorganizations, saw fit to define with particularity the terms “reorganization” and “parties to reorganization.” As we apply these definitions to the facts before' us, we are impelled to the conclusion that the Glidden preferred stock was not exempted.
The order is reversed, with directions to proceed in accordance with the views herein expressed.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
ANTHONY et al. v. SHERMAN.
No. 5550.
Circuit Court of Appeals, Fourth Circuit.
Feb. 17, 1947.
J. Hanson Boyden, of Washington, D. C. (Stone, Boyden & Mack, of Washington, D. C., Fred W. Bynum, of Rockingham, N. C., and Martha B. Conway, of Richmond, Va., on the brief), for appellants.
L. R. Varser, of Lumberton, N. C., (Var-ser, McIntyre & Henry, of Lumberton, N. C., on the brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a judgment for plaintiff in a patent case finding infringement and awarding damages and an injunction. Plaintiff is the owner of patent No. 2,369,415, covering a method of repairing cracked cylinder heads and blocks, applied for October 5, 1943 and granted February 13, 1945. The defendant Anthony is the operator of a repair shop and the defendant Goodwin is one of his employees, who was employed by plaintiff in the year 1938. Defendants have been engaged in repairing cracked cylinder heads and blocks by a method which plaintiff contends is an infringement of his patent. They contend that the method which they are now using is identical with the method used by them in 1938 and say that, if it is covered by plaintiff’s patent, the patent is necessarily invalid because used publicly both by them and the plaintiff for several years prior to the date of application. The patent contains only one claim, which is as follows : “The method of repairing cracked cylinder heads and blocks, consisting in subjecting the cylinder head to heat, of substantially 500 degrees F., spreading the walls of the crack to substantially V-shape while the cylinder head is in a heated condition, forcing portions of the walls of the V-shaped crack into the bottom of the crack providing right angled surfaces at the bottom of the crack, placing a filler bar having a curved surface and a straight surface, within the bottom of the crack subjecting the filler bar to pressure to form the filler bar into the shape of the bottom of the crack, pressing portions of the cylinder head into engagement with the filler bar, tying the filler bar within the crack, and finally directing pressure to the cylinder block adjacent to the edges of the crack, forcing the walls of the crack together, completely covering the filler bar.”
The patent in suit is in no sense a pioneer patent, and the file wrapper shows that all of the claims at first proposed were rejected on prior patents. THe file wrapper says in this connection: “Claims 1-3 are rejected as unpatentable over Brewer in view of Harman or Haas, all above cited. Brewer discloses the method of repairing cracked machine parts by the method steps of treating the crack, inserting a metal filler into said crack, forcing portions of the metal of the machine part into engagement with the filler material and covering ,the metal filler as shown by Fig. 4 and its description in Brewer. Harman or Haas discloses the method of pressing metal as required to close an opening or crack to form surface of a desired shape and smoothness, which may be substituted for the method of pressing shown by Brewer. In so far as such a substitution is concerned, it is not believed that it required a ‘creative flash of genius’, beyond the skill of the art.” A.reconsideration of the claims was asked and they were again rejected on the citation of three additional patents, but it was intimated that one claim would be allowed if amended to set forth the degree of temperature employed in the method. The claim was so amended setting forth the temperature of substantially 500 degrees F.; and, as so amended, it was allowed.. It is worthy of note that no evidence was adduced showing that the temperature thus made critical was employed by the defendants in their process; but in the view that we take of the case this is relatively unimportant.
In the light of the file wrapper, as well as of plaintiff’s testimony, it is clear that the heart of the invention is the so-called tie-in step described in the claim as “pressing portions of the cylinder head into engagement with the filler bar,' tying the filler bar within the crack”. Plaintiff testified that this' step in his method was not discovered or developed by him until December 1942, and that it was this that made the method a success. There could not, of course, be infringement of the patent unless this as well as the other steps in the method of the patent was used; but there is absolutely no evidence that it was used. Plaintiff attempts to prove infringement by showing that Goodwin and Hyatt, another of his ex-employees whom Anthony had employed, were using for Anthony the method that they had learned from him; but it was several years prior to plaintiff’s development of the tie-in step that these employees worked for him, and there is no showing whatever that they or Anthony used the tie-in step. What evidence there is on the subject, is to the contrary. Thus plaintiff, when asked whether defendant Anthony used the same method or whether there was a variance, answered, “Yes, there is a slight variation. That is, of the tie-in which made the method secure. He used everything else but the tie-in.” With respect to Vance Goodwin he testified: “Vance Goodwin came to my shop one night and he said, ‘let me repair this head for you, I will show you I am doing it just like you are doing it.’ I laughed at him and said, ‘sure, go ahead.’ He picked up my tools and he repaired the head and he repaired right straight through until it came to the tie-in, and then when he came to the tie-in, he jumped it, because he didn’t know it, because that had been concealed by me at Darlington, South Carolina, where it was perfected in 1942, and it was finished on December 2nd, of 1942.”
Plaintiff further testified that his notice of infringement was based on what was learned by a night watchman, Jim Floyd, whom he sent to Anthony’s shop in 1945 to observe the method there used by defendants. As to this he said:
"Q. At the time of Floyd’s visit he found the defendant was not using the tie-in method? A. Yes, he found he was not using the tie-in, that was before they had had time to get this patent, to get the copy of the patent.”
Plaintiff was asked specifically if he had knowledge of any fact showing that the tie-in step was used by defendant and admitted that he had not. The testimony with respect to this is as follows:
“Q. If you have knowledge of any fact that shows he is using the tie-in method, tell us what it is, that is if he has been using it since you got your patent? A. I have not checked one of the heads, 1 mean, since the patent, but it was checked before.
“Q. Was the tie-in then used? A. No sir, everything but that was used.
“Q. He had used everything except the tie-in when you checked it? A. Yes, sir.”
The only thing tending to show the use of the process of the patent that we have been able to find is an affidavit of Goodwin, which he says was obtained from him when he was drinking, but which, in the light of the testimony above quoted, has no probative value in any event; for while Goodwin says in the affidavit that Anthony is repairing cracked cylinder heads’ in the manner covered by the patent, he also says that he has been repairing them in the same manner since 1938. Of course, if this is true, the patent is void for prior use; but it is clear from the evidence that no one was using the tie-in step prior to 1942 and the affidavit evidently does not refer to this but is using general terms to describe the process of the patent, without reference to the tie-in step, under the misapprehension that the use of any part of the patented process is an infringement.
There is thus no evidence to justify a finding that the tie-in step of the patented process was ever used by either of the defendants; and, this being true, a finding of infringement is not justified. There is no evidence of the substitution of an equivalent; and the law is well settled that the claim of a process patent is not infringed where any one of the steps, or series of acts, set forth in the claim as constituting the process, is omitted, unless some equivalent step or act is substituted for it. Royer v. Coupe, 146 U.S. 524, 13 S.Ct. 166, 36 L.Ed. 1073; Id., C.C.Mass., 38 F. 113; Vulcanite Co. v. Davis, 102 U.S. 222, 26 L.Ed. 149; Mowry v. Whiting, 14 Wall. 620, 20 L.Ed. 860; Universal Oil Products Co. v. Globe Oil & Refining Co., 322 U.S. 471, 485, 64 S.Ct. 1110, 88 L.Ed. 1399, 40 Am.Jur. 646; Walker on Patents 6 ed., vol. 1, p. 487, par. 399.
We are impressed, as was the just and learned judge below, by the evidence showing that the defendant Anthony hired employees of plaintiff for the evident purpose of using in his own business the methods of repair that they had learned from plaintiff; but the trouble with plaintiff’s case is that these employees worked for plaintiff before the tie-in step of the patented process was evolved and the evidence does not justify a finding that it was ever used by them. Since -infringement of the patent is not shown, it is not necessary for us to inquire into its validity. The judgment appealed from will be reversed.
Reversed.
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:
|
sc_issuearea
|
G
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NATIONAL LABOR RELATIONS BOARD v. ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, ICE MACHINE & GENERAL PIPEFITTERS OF NEW YORK AND VICINITY, LOCAL UNION NO. 638
No. 75-777.
Argued October 6, 1976
Decided February 22, 1977
Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Bork, John S. Irving, and Jay E. Shanklin.
Laurence Gold argued the cause for respondent. With him on the brief were Patrick C. O’Donoghue, Donald J. Capuano, and George Kaufmann.
Briefs of amici curiae urging reversal were filed by Kenneth C. McGuiness, Robert E. Williams, and Douglas S. McDowell for the Air-Conditioning and Refrigeration Institute et al.; by Richard C. Hotvedt for the Associated General Contractors of America, Inc., et al.; and by Vincent J. Apruzzese and Francis A. Mastro for the Public Service Electric & Gas Co. et al.
Gerard C. Smetana, William H. DuRoss III, and Lawrence B. Kraus filed a brief for the Chamber of Commerce of the United States as amicus curiae.
Mr. Justice White delivered
the opinion of the Court.
Under § 8 (b) (4) (B) of the National Labor Relations Act, 29 U. S. C. 1158(b)(4)(B), a union commits an unfair labor practice when it induces employees to refuse to handle particular goods or products or coerces any person engaged in commerce, where “an object” of the inducement or coercion is to require any person to cease doing business with any other person. A proviso, added to § 8 (b) (4) (B) in 1959, declares that the section “shall [not] be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” Although without the proviso the section on its face would seem to cover any coercion aimed at forcing a cessation of business, the National Labor Relations Board (Board) and the judiciary have construed the statute more narrowly, both before and after the proviso was added, to prohibit only secondary, rather than primary, strikes and picketing.
Among other things, it is not necessarily a violation of §8 (b)(4)(B) for a union to picket an employer for the purpose of preserving work traditionally performed by union members even though in order to comply with the union’s demand the employer would have to cease doing business with another employer. National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612 (1967) (National Woodwork). The question now before us is whether a union seeking the kind of work traditionally performed by its members at a construction site violates §8 (b)(4)(B) when it induces its members to engage in a work stoppage against an employer who does not have control over the assignment of the work ■sought by the union. More specifically, the issue is whether a union-instigated refusal of a subcontractor’s employees to handle or install factory-piped climate-control units, which were included in the general contractor’s job specifications and delivered to the construction site, was primary activity beyond the reach of § 8 (b) (4) (B) or whether it was secondary activity prohibited by the statute. As we shall see, this issue turns on whether the boycott was “addressed to the labor relations of the contracting employer vis-a-vis his own employees,” National Woodwork, supra, at 645, and is therefore primary conduct, or whether the boycott was “tactically calculated to satisfy union objectives elsewhere,” 386 U. S., at 644, in which event the boycott would be prohibited secondary activity.
I
Austin Co., Inc. (Austin), was the general contractor and engineer on a construction project known as the Norwegian Home for the Aged. As the result of competitive bidding, Austin awarded a subcontract to Hudik-Ross Co., Inc. (Hudik), to perform the heating, ventilation, and air-conditioning work for the Norwegian Home construction. Hudik employs a regular complement of about 10 to 20 steamfitters. For many years, these employees have been represented by respondent Enterprise Association (Enterprise), a plumbing and pipefitting union. Over the years Hudik and Enterprise have entered into successive collective-bargaining agreements, and such an agreement was in force at the time that the dispute involved in the present litigation arose. Austin had no agreement with Enterprise regarding the work to be done on the Norwegian Home project.
The subcontract between Austin and Hudik incorporated Austin’s job specifications. These specifications provided that Austin would purchase certain climate-control units manufactured by Slant/Fin Corp. (Slant/Fin) to be installed in the Norwegian Home. The specifications further provided that the internal piping in the climate-control units was to be cut, threaded, and installed at the Slant/Fin factory. At the time that Hudik entered into the subcontract with Austin, Hudik was aware that its employees would be called upon to install the Slant/Fin units but not to do the internal piping work for the units on the jobsite.
Traditionally, members of respondent union have performed the internal piping on heating and air-conditioning units on the jobsite. Also, Rule IX of the then-current collective-bargaining contract between Hudik and Enterprise provided that pipe threading and cutting were to be performed on the jobsite in accordance with Rule V, which in turn specified that the work would be performed by units of two employees. There had been similar or identical provisions in previous collective-bargaining contracts. There is no dispute that the work designated by Austin’s specifications to be performed at the Slant/Fin factory was the kind of cutting and threading work referred to in Rule IX.
When the Slant/Fin units arrived on the job, the union steamfitters refused to install them. The business agent of the union told Austin’s superintendent that the steamfitters “would not install the Slant/Fin units because the piping inside the units was steamfitters’ work.” Enterprise Assn. of Steam Pipefitters, 204 N. L. R. B. 760, 762 (1973). Hudik was informed that the factory-installed internal piping in the units was in violation of Rule IX of the union contract and “that such piping was Local 638’s work.” Ibid. When the union persisted in its refusal to install the units, thereby interfering with the completion of the Norwegian Home job, Austin filed a complaint with the Board, alleging that Enterprise had committed an unfair labor practice under § 8 (b) (4) (B) of the National Labor Relations Act by engaging in a strike and encouraging Hudik employees to refuse to install the Slant/Fin units in furtherance of an impermissible object. Specifically, Austin charged that the union’s action was taken to force Hudik to cease doing business with Austin and to force Hudik and Austin to cease dealing with the products of Slant/Fin. The union’s position before the Administrative Law Judge was that it was merely seeking to enforce its contract with Hudik and to preserve the jobsite cutting and threading work covered by Rule IX.
The Administrative Law Judge found that because Austin had specified factory-piped units, there was no internal threading and cutting work to be done on the jobsite of the kind covered by Rule IX and that no such work at the Norwegian Home project could be obtained through pressure on Hudik alone, even if Hudik was forced to abandon its contract, unless and until Austin changed its job specifications so as to provide the piping the union members had traditionally performed for Hudik as a subcontractor. The Administrative Law Judge thus concluded that the union had violated § 8 (b) (4) (B) because in seeking to enforce its contract and to obtain the work at the Norwegian Home jobsite, the union’s object was in reality to influence Austin by exerting pressure on Hudik, an employer who had no power to award the work to the union.
The Board agreed. Enterprise Assn., supra. It noted first that the steamfitters’ refusal to install the Slant/Fin units “was based on a valid work preservation clause in the agreement with Hudik, the subcontractor, and was for the purpose of preserving work they had traditionally performed.” 204 N. L. R. B. 760. This did not settle the legality of the work stoppage under §8 (b)(4)(B), however; for “Hudik was incapable of assigning its employees this work; such work was never Hudik’s to assign in the first place.... Respondent was exerting prohibited pressure on Hudik with an object of either forcing a change in Austin’s manner of doing business or forcing Hudik to terminate its subcontract with Austin. Since the pressure exerted by the Respondent on Hudik was undertaken for its effect on other employers, this pressure was secondary and prohibited by Section 8 (b) (4) (B).” Ibid, (as amended by order of Aug. 30, 1973).
A divided Court of Appeals for the District of Columbia Circuit, sitting en banc, set aside the Board’s order. 172 U. S. App. D. C.. 225, 521 F. 2d 885 (1975). We granted certiorari because of an apparent conflict between the Circuits. 424 U. S. 908 (1976).
II
In setting aside the Board’s order, the Court of Appeals disagreed with the Board on both legal and factual grounds. We deal first with the Court of Appeals’ proposition that “an employer who is struck by his own employees for the purpose of requiring him to do what he has lawfully contracted to do to benefit those employees can [njever be considered a neutral bystander in a dispute not his own.” 172 U. S. App. D. C., at 243, 521 F. 2d, at 903 (footnote omitted). Under this view, a strike or refusal to handle undertaken to enforce such a contract would not itself warrant an inference that the union sought to satisfy secondary, rather than primary, objectives, whatever the impact on the immediate employer or on other employers might be. Thus, where a union seeks to enforce a work-preservation agreement by a strike or work stoppage, the existence of the agreement would always provide an adequate defense to a § 8 (b) (4) unfair labor practice charge. This approach is untenable under the Act and our cases construing it.
Carpenters v. NLRB, 357 U. S. 93 (1958) (Sand Door), involved a collective-bargaining contract containing a provision, then quite legal, that “ 'workmen shall not be required to handle non-union material.’ ” Id., at 95. The case arose when certain nonunion doors arrived at a construction site and the union notified the contractor that the doors would not be hung. The Board found that the union had committed an unfair labor practice by encouraging employees to strike or refuse to handle the disputed doors in order to force the contractor to cease doing business with the door manufacturer. The union stood squarely on the contract; and as the case arrived here the sole question was whether the collective-bargaining provision was a “defénse to a charge of an unfair labor practice under § 8 (b) (4) (A) when, in the absence of such a provision, the union conduct would unquestionably be a violation.” Id., at 101.
The union argued that if the statute was aimed at protecting neutral employers from becoming involuntarily involved in the labor disputes of others, ''protection should not extend to an employer who has agreed to a hot cargo provision, for such an employer is not in fact involuntarily involved in the dispute,” especially “when the employer takes no steps at the time of the boycott to repudiate the contract and to order his employees to handle the goods.” In such circumstances, “[t]he union does no more than inform the employees of their contractual rights and urge them to take the only action effective to enforce them.” Id., at 105. These arguments were squarely rejected:
“Nevertheless, it seems most probable that the freedom of choice for the employer contemplated by § 8 (b) (4) (A) is a freedom of choice at the time the question whether to boycott or not arises in a concrete situation calling for the exercise of judgment on a particular matter of labor and business policy. Such a choice, free from the prohibited pressures — whether to refuse to deal with another or to maintain normal business relations on the ground that the labor dispute is no concern of his— must as a matter of federal policy be available to the secondary employer notwithstanding any private agreement entered into between the parties. See National Licorice Co. v. Labor Board, 309 U. S. 350, 364, This is so because by the employer’s intelligent exercise of such a choice under the impact of a concrete situation when judgment is most responsible, and not merely at the time a collective bargaining agreement is drawn up covering a multitude of subjects, often in a general and abstract manner, Congress may rightly be assumed to have hoped that the scope of industrial conflict and the economic effects of tire primary dispute might be effectively limited.” Id., at 105-106.
The Court went on to hold that inducements of employees that are prohibited by § 8 (b) (4) in the absence of a contractual provision countenancing them “are likewise prohibited when there is such a provision,” 357 U. S., at 106. This was true even though the making and voluntary observance of such contracts were not contrary to law at the time that Sand Door was decided; however lawful, these contracts could not be enforced “by the means specifically prohibited” by the section. Id., at 108. The Court held that the legality of the union’s conduct is to be viewed at the time of the boycott.
Sand Door’s holding that employer promises in a collective-bargaining contract provide no defense to a § 8 (b) (4) charge against a union has not been disturbed. In contemplating the 1959 amendments to the Landrum-Griffin Act, Congress viewed that part of Sand Door in which the Court suggested that contractual provisions having secondary objectives were not forbidden by law as creating a loophole in the Act. Section 8 (e) was enacted to close that loophole. See National Woodwork, 386 U. S., at 634. Section 8 (e), 29 U. S. C. § 158 (e) (1970 ed., Supp. Y), makes it an unfair labor practice, with provisos, for unions and employers to enter into collective-bargaining contracts whereby the employer ceases or agrees to cease doing business with any other person. Although on its face not limited to agreements having secondary objectives, the section was construed by the Board and this Court as only closing the loophole left by Sand Door and as having no broader reach than § 8 (b) (4) itself. Section 8 (e) does not prohibit agreements made for “primary” purposes, including the purpose of preserving for the contracting employees themselves work traditionally done by them. 386 U. S.; at 635.
By no stretch of the imagination, however, can it be thought, that in enacting § 8 (e) Congress intended to disagree with or ease Sand Door’s construction of § 8 (b)(4), under which a perfectly legal collective-bargaining contract may not be enforced by a strike or refusal to handle which in the absence of such a provision would be a violation of the statute. The intention of Congress as to this aspect of Sand Dpor could not be clearer, A proviso to § 8 (e) exempted from that section certain agreements in the construction industry that the section would otherwise have prohibited, but the Committee Report explained that the “proviso applies only to section 8 (e) and therefore leaves unaffected the law developed under section 8 (b)(4),” noting particularly that picketing to enforce agreements saved by the proviso “would be illegal under the Sand Door case.” H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39 (1959), 1 NLRB Legislative History of the Labor-Management and Disclosure Act of 1959, p. 943 (1959) (hereafter 1 Leg. Hist.). Undoubtedly, Congress embraced the rule then followed by the Board and approved by this Court in Sand Door that a contract permitting or justifying the challenged union conduct is no defense to a § 8 (b) (4) charge. To hold, as the Court of Appeals did, that a work stoppage is necessarily primary and not an unfair labor practice when it aims at enforcing a legal promise in a collective-bargaining contract is inconsistent with the statute as construed in Sand Door, a construction that was accepted and that has never been abandoned by Congress.
Nor did we modify Sand Door in National Woodwork. The union in National Woodwork induced the employees of four contractors not to handle precut and prefitted doors that had arrived at the respective construction sites. In three instances, the precut doors had been specified by the architect or the owner; in the fourth, the decision to use precut doors was that of the immediate contractor-employer, Frouge Corp. In each case, there was a provision in the collective-bargaining contract that carpenters would not be required to handle precut or prefitted doors. The General Counsel of the Board filed charges in all four cases, asserting that the agreements were forbidden by § 8 (e) and that the refusal to handle in each case violated §8 (b)(4)(B). The trial examiner, whose findings were adopted by the Board, concluded that none of the agreements was invalid on its face but that in seeking to enforce the contract by refusing to handle in the three situations where the doors had been specified by the architect or owner, the union had violated §8 (b)(4)(B). In these situations, the legality of the contract no more immunized the work stoppage from the § 8 (b) (4) charge than would “the then-lawful ‘hot-cargo’ clause in the Sand Door case.” Metropolitan Dist. Council of Phila., 149 N. L. R. B. 646, 658 (1964). On the other hand, in the Frouge situation, where the choice lay with the contractor who “therefore was in a position to... settle the dispute with the District Council by granting its request to assign that work to the carpenters on the jobsite,” id., at 659 n. 21, the union was seeking only to regulate the relations between the general contractor and his own employees and to protect a legitimate economic interest of the employees by preserving their unit work. Neither the execution nor the enforcement of the Frouge agreement violated the Act. Only the Frouge decision was appealed. The Court of Appeals for the Seventh Circuit reversed in part, concluding that the Frouge agreement was prohibited by § 8 (e).
In reversing the Court of Appeals’ § 8 (e) holding and agreeing that § 8 (b) (4) (B) had not been violated, we held that neither the Frouge contract nor its maintenance was illegal. Our rationale was not that the work-preservation provision was valid under § 8 (e) and that therefore it could be enforced by striking or picketing without violating § 8 (b) (4) (B). Expressly recognizing the continuing validity of the Sand Door decision that a valid contract does not immunize conduct otherwise violative of § 8 (b)(4), 386 U. S., at 634, we held that neither § 8 (b) (4) (B) nor § 8 (e) forbade primary activity by employees designed to preserve for themselves work traditionally done by them and that on this basis the union’s conduct violated neither section. To determine whether the Frouge employees’ refusal to handle was permissible primary activity or was forbidden secondary coercion, we inquired:
“[Whether] under all the surrounding circumstances, the Union’s objective was preservation of work for Frouge’s employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, Frouge, the boycotting employer, would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer thus making the agreement or boycott secondary in its aim. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-á-vis his own employees.” 386 U. S., at 644-645 (footnotes omitted).
We went on to rule that there was substantial evidence to sustain the finding of the Board that both the agreement and the union activity at the Frouge jobsite related solely to the preservation of the traditional tasks of the jobsite carpenters. In consequence, we agreed that there was neither a § 8 (b) (4) (B) nor a § 8 (e) unfair labor practice.
There is thus no doubt that the collective-bargaining provision that pipes be cut by hand on the job and that the work be conducted by units of two is not itself a sufficient answer to a § 8 (b) (4) (B) charge. The substantial question before us is whether, with or without the collective-bargaining contract, the union’s conduct at the time it occurred was proscribed secondary activity within the meaning of the section. If it was, the collective-bargaining provision does not save it. If it was not, the reason is that § 8 (b) (4) (B) did not reach it, not that it was immunized by the contract. Thus, regardless of whether an agreement is valid under § 8 (e), it may not be enforced by means that would violate §8 (b)(4).
Ill
The Court of Appeals was also of the view that the Board’s “control" test, under which the union commits an unfair labor practice under § 8 (b) (4) (B) when it coerces an employer in order to obtain work that the employer has no power to assign, is invalid as a matter of law because it fails to comply with the National Woodwork standard that the union’s conduct be judged in light of all the relevant circumstances. Again, we think the Court of Appeals was in error.
As we have seen, in National Woodwork the Board found unfair labor practices in three instances by inferring an improper secondary objective from the fact that the work sought by the union was not under the control of the immediate employer, but it found no unfair practice in the Frouge situation because Frouge did have the power to settle the dispute with the union. In sustaining the Board with respect to Frouge and in posing the issue whether under all the circumstances the boycott was tactically calculated to satisfy union objectives elsewhere, we did not purport to announce a new legal standard and then ourselves to assess the facts in light of the modified construction of the statute. Such an assessment would 'have been a more proper task for the Board in the first instance; yet there was no remand for further proceedings in the light of a newly fashioned standard. The Board had sustained the trial examiner, who had examined the facts to determine whether the agreement and boycott had secondary objectives and concluded that they did not. This Court simply sustained the Board’s findings as supported by substantial evidence, without questioning either the legal standard employed by the Board or the Board’s resolution of the facts under that standard. Furthermore, the Court expressly recognized that as the case came to it, no question was raised about the results with respect to the three contractors other than Frouge. 386 U. S., at 616-617, n. 3.
Here, the Administrative Law Judge, cognizant of National Woodwork and the Board’s own precedents, examined the history both of the relevant jobsite work traditionally done by the steamfitters and of the contractual provision calling for jobsite cutting and threading of pipe, assessed the agreement and refusal to handle in light of the actual conditions in the New York market, and concluded that “ ‘under all the surrounding circumstances/ ” Hudik was “only a means or instrumentality for exerting pressure against Slant/Fin and Austin with whom the Union has its primary dispute.” It thus does not appear to us that either the Administrative Law Judge or the Board, in agreeing with him, articulated a different standard from that which this Court recognized as the proper test in National Woodwork.
Nor is it the case that the Board, in applying its control standard, failed to consider all of the relevant circumstances. Surely the fact that the Board distinguishes between two otherwise identical cases because in the one the employer has control of the work and in the other he has no power over it does not indicate that the Board has ignored any material circumstance. The contrary might more rationally be inferred. Of course, the Board may assign to the presence or absence of control much more weight than would the Court of Appeals, but this far from demonstrates a departure from the totality-of-the-circumstances test recognized in National Woodwork.
There is little or no basis in the statute, its legislative history, or our cases for the Court of Appeals’ conclusion that the distinction the Board has drawn between those cases where the struck employer is in position to deliver the work to the union and those where the work is controlled by others is erroneous as a matter of law. The Board has taken this approach in applying § 8 (b) (4) at least since 1958, when it decided Clifton Deangulo, 121 N. L. R. B. 676. In that case, the facts of which were similar to this one, Limbach, a plumbing and heating contractor, was engaged to install certain comfort induction units. The union claimed that certain provisions in its collective-bargaining agreement with Limbach reserved to its members much of the work that had been performed at the factory on these units. Therefore, at the union’s behest, the employees refused to handle the units. Relying on its decision in the Sand Door case, Local 1976, United Brotherhood of Carpenters & Joiners, 113 N. L. R. B. 1210 (1955), and ruling against the union, the Board rejected the union’s “main contentions... that the dispute was with Limbach, who was the primary employer; that the Union was seeking merely to exercise a valid contractual right to which Limbach had voluntarily agreed in advance, and that it was therefore engaged in privileged primary activity, not in proscribed secondary activity.” 121 N. L. R. B., at 684. The Board also observed that Limbach “had given to union members all work within the Union’s jurisdiction which it had been awarded on the project. It was powerless, of course, to give them additional work which it had not obtained and which, in fact, had been reserved by the very contractor through whom it had derived its own standing as an employer on the job.” Id., at 685-686.
Since that time, as its decision in National Woodwork exemplifies, the Board has continued to interpret and apply § 8 (b) (4) (B) to find an unfair labor practice, at least where the union employs a product boycott to claim work that the immediate employer is not in a position to award, and it has declined to find a violation where the employer has such power, even if awarding the work might cause him to terminate contractual relations with another employer. In the latter circumstances, the cease-doing-business consequences are merely incidental to primary activity, but not in the former where the union, if it is to obtain work, must intend to exert pressure on one or more other employers.
No legislative disagreement with the Board’s interpretation of § 8 (b) (4) was expressed in 1959 when Congress amended the section. On the contrary, in adding the primary-secondary proviso to the section, as the relevant reports clearly show, Congress intended merely to reflect the existing law. “This provision does not eliminate, restrict, or modify the limitations on picketing at the site of a primary labor dispute that are in existing law.” H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 38 (1959), 1 Leg. Hist. 942.
Furthermore, the Courts of Appeals regularly sustained the relevant Board interpretations of § 8 (b)(4), and we did not question the Board’s approach in National Woodwork, let alone overrule it sub dlentio. It is true that since our decision in that case some Courts of Appeals, like the Court of Appeals for the District of Columbia Circuit, have concluded that the Board’s interpretation of the statute is in error. The Board’s reading and application of the statute involved in this case, however, are long established, have remained undisturbed by Congress, and fall well within that category of situations in which the courts should defer to the agency’s understanding of the statute which it administers. See Bayside Enterprises v. NLRB, 429 U. S. 298, 303-304 (1977); NLRB v. Boeing Co., 412 U. S. 67, 76 (1973); NLRB v. United Insurance Co. of America, 390 U. S. 254, 260 (1968) ; Udall v. Tallman, 380 U. S. 1, 16 (1965); Sand Door, 357 U. S., at 107.
IY
Wholly apart from its determination that the union’s conduct was justified as a measure to enforce its collective-bargaining contract and that the Board applied an incorrect standard for determining liability, the Court of Appeals held that since there was “no substantial evidence... in this record that the union’s purpose was also ‘to satisfy union objectives elsewhere,’ the Board’s decision holding the union guilty of a Section 8 (b) (4) (B) violation may not stand.” 172 U. S. App. D. C., at 244, 521 F. 2d, at 904. We disagree.
That there existed inducement and coercion within the meaning of § 8 (b) (4) is not disputed. The issue is whether “an object” of the inducement and the coercion was to cause the cease-doing-business consequences prohibited by § 8 (b) (4), the resolution of which in turn depends on whether the product boycott was “addressed to the labor relations of [Hudik]... vis-a-vis his own employees,” National Woodwork, 386 U. S., at 645, or whether the union’s conduct was “tactically calculated to satisfy [its] objectives elsewhere,” id., at 644.
There is ample support in the record for the Board’s resolution of this question. The union sought to enforce its contract with Hudik by a jobsite product boycott by which the steamfitters asserted their rights to the cutting and threading work on the Norwegian Home project. It is uncontrovertible that the work at this site could not be secured by pressure on Hudik alone and that the union’s work objectives could not be obtained without exerting pressure on Austin as well. That the union may also have been seeking to enforce its contract and to convince Hudik that it should bid on no more jobs where prepiped units were specified does not alter the fact that the union refused to install the Slant/Fin units and asserted that the piping work on the Norwegian Home job belonged to its members. It was not error for the Board to conclude that the union’s objectives were not confined to the employment relationship with Hudik but included the object of influencing Austin in a manner prohibited by § 8 (b) (4) (B).
The Court of Appeals was of the view that other inferences from the facts were possible. The court, for example, could “clearly see that it was possible for Hudik-Ross to settle the labor dispute which it had created. The record is void of any suggestion that Hudik-Ross attempted to negotiate a compromise with the union under which the union would have agreed to install the climate control units in exchange for extra pay or other special benefits.” 172 U. S. App. D. C., at 239, 521 F. 2d, at 899. How this observation impugns the Board’s finding with respect to the union’s object is not clear. The union simply refused to handle the Slant/ Fin units and asserted that under the contract the cutting and threading work belonged to them. The commonsense inference from these facts is that the product boycott was in part aimed at securing the cutting and threading work at the Norwegian Home job, which could only be obtained by exerting pressure on Austin.
The statutory standard under which the Court of Appeals was obliged to review this case was not whether the Court of Appeals would have arrived at the same result as the Board did, but whether the Board’s findings were “supported by substantial evidence on the record considered as a whole.” 29 U. S. C. § 160 (e). See NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112 (1956); Packard Motor Car Co. v. NLRB, 330 U. S. 485, 491 (1947); Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938). It appears to us that in reweighing the facts and setting aside the Board’s order, the Court of Appeals improperly substituted its own views of the facts for those of the Board.
The judgment of the Court of Appeals is
Reversed.
Section 8 (b) of the National Labor Relations Act, as set forth in 29 U. S. C. § 158 (b), provides in relevant part:
“It shall be an unfair labor practice for a labor organization or its agents—
“(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either ease an object thereof is—
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.”
The pre- and post-1959 developments are fully canvassed in National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612 (1967).
The facts here stated are taken from the findings made by the Administrative Law Judge and adopted by the Board. Enterprise Assn. of Steam Pipefitters, 204 N. L. R. B. 760 (1973).
Rule IX provided in relevant part:
“Radiator branches, convector branches and coil connections shall be cut and threaded by hand on the job in accordance with Rule V." App. 89.
Rule V provided:
“MEN TO WORK IN UN
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_stpolicy
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Abraham MANDEL, Executor of the Will of Max Mandel, Deceased, Plaintiff-Appellant, v. Walter R. STURR, Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Pauline HOFFMAN, Lillian Starr, Joseph J. Mandel and Abraham Mandel, Plaintiffs-Appellants, v. David COPANS, Executor of Harry M. Hickey, deceased, former Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees.
Nos. 59 & 60, Dockets 24993, 24994.
United States Court of Appeals Second Circuit.
Argued Jan. 7, 1959.
Decided April 29, 1959.
James R. Rowen, New York City (Abraham Mandel, New York City, on the brief), for plaintiffs-appellants.
Arthur V. Savage, Asst. U. S. Atty., Southern District of New York, New York City (Arthur H. Christy, U. S. Atty., Southern District of New York, New York City, on the brief), for defendants-appellees.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge.
GIBSON, District Judge.
Abraham Mandel, executor under the will of Max Mandel, and the beneficiaries, Pauline Hoffman, Lillian Starr, Joseph J. Mandel, Abraham Mandel, hereinafter referred to as the beneficiaries, brought their actions to recover amounts paid by them under protest as a result of additionally assessed estate and income taxes. The executor and the beneficiaries, respectively appeal from the determinations of the Trial Court sustaining in part the deficiency assessed by the Commissioner of Internal Revenue in the estate tax reported by the executor and the income taxes of the recipient-beneficiaries. The appeals in the two cases have been consolidated.
The essential facts of this case are fairly clear. At the date of Max Mandel’s death on June 9, 1945, he and David Wolf son were sole partners in a military uniform business. It is apparent from the facts that the partnership owned and required substantial capital to function. Under the terms of an agreement entered into between the surviving partner and the executor, on December 31, 1945, the book value of Max Mandel’s share in the tangible assets of the partnership was fixed at $153,162.56. There is no reason to doubt that this was a fair valuation. In fact, that figure is not questioned either in the court below or before this court. That amount was included in the decedent’s gross estate and the estate tax properly paid. The sole issues here are (1) whether the gross estate of the decedent includes an amount ($12,595.57) received pursuant to a partnership agreement representing interest on the capital account (valued at $153,162.56), and (2) whether it includes an amount ($10,-000) received by the estate in settlement of a claim to participate in the profits of the business as carried on by the surviving partner (Wolfson) subsequent to the death of Max Mandel. Are these amounts “income in respect of a decedent” to the beneficiaries within the meaning of Section 126, Internal Revenue Code of 1939, 26 U.S.C.A. § 126?
The partnership agreement in effect at Max Mandel’s death provided in part as follows:
“13. That at the expiration of this partnership by the expiration of its term or by reason of any other cause, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained; the debts of the partnership shall be discharged; and all monies and other assets of the partnership then remaining shall be divided in specie between the parties share and share alike, provided, however, that the capital accounts are equal, and if not equal, in that event in such proportion as the capital accounts bear to each other.”
“18. That in the event of the death of either party hereto, this partnership shall terminate and the surviving partner shall become trustee of all of the assets and business of the partnership for the purpose of liquidating the same, discharging its debts and paying to the representatives of the deceased party the respective share as hereinabove provided of said deceased party. The said surviving party shall pay to the representatives of the deceased party the sum of $5,-000. in cash immediately upon receipt from the insurance company of the proceeds of the policy referred to hereinabove in Paragraph 16 and the balance of the deceased party’s share in the partnership in 40 equal monthly installments with interest at the rate of 6% per annum to be computed from the date of demise * * *”
There are other provisions in the agreement whereby a retiring partner could similarly receive installment payments of his partnership share upon retirement. There is little or no doubt that the value of an estate’s right to receive income earned by a partnership subsequent to the death of a deceased partner is includible in the gross estate. As this court stated in Riegelman’s Estate v. Commissioner, 2 Cir., 1958, 253 F.2d 315, 316, an extended discussion is not required as to that particular point, it having been adequately reviewed and analyzed elsewhere. However, this case is distinguishable from Riegelman on the facts.
The amount of $22,595.57, the subject of this appeal, derives from two sources. Firstly, under the quoted portions of the partnership agreement, the deceased partner’s share in the partnership assets was payable to the estate in 40 equal monthly payments with interest at 6% per annum. There was, however, a lapse of some six months from the date of Max Mandel’s death without any such payments being made. It is apparent that after negotiation between the executor and the surviving partner, David Wolfson, a Memorandum Agreement was entered into which provided that the deceased partner’s share of the partnership assets, valued at $153,162.56, would be paid to the estate in full. Wolfson then paid that amount as agreed. They further agreed that the amount of $12,-595.57 was to be paid to the estate in full settlement of all interest due or to become due on the capital account under the Mandel-Wolfson partnership agreement and that an additional $10,000 would be paid by Wolfson in settlement of any claim the estate and beneficiaries might have to post-mortem profits in the partnership. There is no evidence that these were other than arm’s-length negotiations, or that the interest provisions of the partnership agreement were calculated as a method of substituting interest payments for capital to escape possible estate taxation.
The sum of $22,595.57, representing the total of $12,595.57 in interest and $10,000 in settlement of the claim to future profits was paid by Wolf son and distributed to the beneficiaries. The executor and recipient-beneficiaries brought their actions to recover taxes paid on these amounts under protest.
Although Section 126 of the Internal Revenue Code of 1939 is high on the list of vaguely drafted legislation in a field notoriously complex, we see no reason to extend its broad language so far as the Government urges in this case. The $12,595.57 was paid by Wolf-son in settlement of. interest due on an asset of the estate. It was a fair amount to pay for the full usage had by Wolf-son of the capital of the estate invested in his business over the period of time until the full share of the decedent’s interest in the partnership assets was paid in full to the estate. As such, the $12,-595.57 is in the nature of a legal rate of interest or return on a capital investment significantly represented by the principal amount of $153,162.57, already included in the gross estate and the estate tax once paid. To perpetually tax the right to interest or earning capacity of the capital already included in the gross estate, as the appellee suggests, extends the meaning of the Code beyond reason. The Government places much reliance on the Riegelman case, supra, wherein this court reviewed much of the legislative and case history of Section 126, Internal Revenue Code of 1939. That case has, however, no factual similarity to the ease before us. In the case before us, capital is a substantial income producing factor, whereas in Riegelman, it is not. The interest payment can hardly be said to be “the fruits of the (deceased’s) professional activity during his lifetime.” The $12,595.57 has once been accounted for, in effect, by the inclusion of the $153,162.56 in the decedent’s gross estate and is an inherent part of that amount. Such a conclusion is in accord with the court’s reasoning in McClennen v. Commissioner of Internal Revenue, 1 Cir., 131 F.2d 165, 169, 144 A.L.R. 1127. There Judge Magruder aptly analogizes to the case of one who dies possessed of a $1,000 bond payable in ten years bearing interest at 6%. Judge Magruder points out that the bond in its entirety, valued at par at the date of death, will be included in the gross estate, and upon the decedent’s death the right to future income payments have been in effect included in that amount in his gross estate. In short, the interest payment in the case before us is not separately attributable “to the activities of the decedent during his lifetime,” but is attributable to the earning capacity of the capital of the estate allowed to remain in Wolfson’s business. It has been in effect accounted for by the inclusion of $153,162.56, the deceased’s share in the partnership, in the gross estate. In the absence of any evidence of subterfuge on the part of the partners, Mandel and Wolf son, whereby the value of their respective partnership share was understated and subsequently paid out to the estate in the guise of interest payments, we hold that the interest payment of $12,595.57 is not a proper item for inclusion in the decedent’s gross estate, nor is it to the recipient-beneficiaries “income in respect of a decedent.” It is, however, as the appellants admit, ordinary income accruing to the estate and beneficiaries.
The $10,000 item which the Government contends is squarely within the rationale of the Riegelman and McClennen cases poses another question. If this payment represents a settlement of the estate’s established right to postmortem partnership earnings, and such right was created prior to the decedent’s death as a substitute for the estate’s common law liquidation share, then it is a sum includible in the gross estate. However, to characterize the $10,000 payment as a settlement of an existing right of the estate at the date of the decedent’s death is inaccurate. The situation as to the $10,000 Wolfson paid the executor and beneficiaries to settle their claim for post-mortem profits is quite different. Had Wolfson promptly carried out the terms of the partnership agreement, the executor and beneficiaries would have had no right to claim any share in post-mortem profits. Neither the decedent nor his executor or beneficiaries could anticipate that Wolfson would not promptly proceed to carry out the applicable provisions of the partnership agreement.
When the executor concluded that Wolfson had unduly delayed carrying out the terms of the partnership agreement he entered a claim for post-mortem profits accruing during this claimed undue delay.
In McClennen and in Riegelman the courts had before them partnership agreements obviously providing for a right of the estate to share in postmortem profits in lieu of common law liquidation rights to which the estate would have succeeded in the absence of those agreements. There is no such provision in the Wolfson-Mandel partnership agreement. As stated in Riegelman [253 F.2d 319]: “the payments were not gifts, nor were they attributable to anything done by Riegelman’s estate.” On the other hand, in the case before us, the $10,000 was a purchase of peace by Wolfson, in effect attributable to the activity of the executor and beneficiaries.
When Max Mandel died on June 9, 1945, the estate was properly entitled to a settlement of its share in the Mandel-Wolfson partnership interest pursuant to the partnership agreement. While the decedent’s estate was entitled to monthly payments with interest in the manner provided in sections 13 and 18 of that agreement, there is no provision for post-mortem partnership profit payments such as we find in Riegelman. It was only after a lapse of six months or so, during which time no monthly payments were forthcoming that the executor felt entitled to a certain percentage of partnership profits to compensate them for Wolfson’s undue delay in paying over its share in the partnership assets. The estate’s share in the partnership’s tangible assets was a benefit to Wolfson’s business so long as it was retained by him after the death of the decedent, Max Mandel. From these facts the estate’s claim to partnership profits arises. In settlement of this claim, the executor, Wolfson, and the beneficiaries entered into a Memorandum Agreement whereby it was agreed that Wolfson would pay $10,000 in full settlement of any claim the executor and the beneficiaries might have to post-mortem profits; in Wolfson’s business. This payment is referred to in the Memorandum Agreement as being “in full settlement of the claim of (the executor and the beneficiaries) to participate in the profits of (the business) * * * ”, This Memorandum Agreement established a new right that did not exist at the time of the decedent’s death — a sum paid in satisfaction of the contentions of all parties thereto. $10,000 paid under these circumstances does not conclusively establish an existent right of the estate to participate in post-mortem profits when we come to the issue of estate and income taxes. There may well have been no validity to the estate’s contentions as to profits prior to the Memorandum Agreement. However, an agreement to pay and accept $10,000 in settlement of the dispute is entirely reasonable and beneficial to Wolfson’s business and to the estate, both desiring to clear up the affairs expeditiously with a minimum of litigation and expense. On the facts of this case, the payment by way of settlement (attributable to the activity of the estate) is not includible in the estate of the decedent under Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, nor is it “income in respect of a decedent” under Section 126 any more than it would be if it were a gift from Wolfson to the estate and beneficiaries. See Bausch’s Estate v. Commissioner, 2 Cir., 186 F.2d 313. The $10,000 is ordinary-income accruing to the estate and beneficiaries.
Lastly, the question of attorney’s fees is raised by appellants. The Trial Court found the sum of $2,500 to be a reasonable amount for prosecuting the refund claim, and disallowed the $5,000 figure claimed. In computing the estate tax, the estate was allowed a $2,500 deduction. We are unwilling to reverse without concluding that the Trial Court’s findings were clearly erroneous. International Bureau v. Bethlehem Steel Company, 2 Cir., 192 F.2d 304. There is no basis for the appellant’s contention that the Trial Court abused its discretion.
It is apparent, however, that the $2,500 allowed did not include this appeal. The Trial Court is in a far better position than is this court to determine whatever should be allowed for these services.
Accordingly, we remand to the Trial Court, as we have done in the past, for a determination of the amount that should be allowed for this appeal. Bassett’s Estate v. Commissioner of Internal Revenue, 2 Cir., 170 F.2d 916.
Reversed in part; remanded for further proceedings consistent with the views expressed herein.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_opinstat
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America, Plaintiff-Appellee, v. Ray PALMER, Defendant-Appellant. UNITED STATES of America. Plaintiff-Appellee, v. Ray PALMER and Maurice Robert Hettich, Defendants-Appellants.
Nos. 71-1596, 71-1597.
United States Court of Appeals, Sixth Circuit.
March 31, 1972.
Certiorari Denied Oct. 10,1972.
See 93 S.Ct. 119.
George J. Long, Louisville, Ky., for appellee.
Frank E. Haddad, Jr., Louisville, Ky., for appellants.
Before TOM C. CLARK, Associate Justice, and PECK and KENT, Circuit Judges.
Associate Justice of the Supreme Court of the United States, Retired, sitting by designation.
PER CURIAM.
The Defendants Appellants, Palmer and Hettich, and others not involved here, were charged with violations of 18 U.S.C. § 1955, which prohibits the operation of an illegal gambling business. To constitute an offense under this Section, the gambling business must violate a relevant state or local law, have five or more persons involved in its conduct and be in substantial, continuous operation for more than thirty days or have a gross revenue of $2,000 or more in one single day. Section 1955(c) further provides that for the purpose of securing warrants “probable cause that the business receives gross revenue in excess of $2,000 in any single day shall be deemed to have been established” if five or more persons conduct such business and it operates for two or more successive days. Appellants conducted their business at two separate locations in Louisville, Kentucky, and search warrants were issued covering both addresses. The affidavit supporting the search of the location on Fifteenth Street recited that five or more persons were involved in its conduct and that it had been in substantial, continuous operation exceeding thirty days. However, the affidavit supporting the Nineteenth Street search recited that five or more persons were engaged in its conduct but only on two successive days. The affidavit relied on the presumption of § 1955(c) aforesaid. Appellants’ primary position is that § 1955(c) is unconstitutional as violative of both the Fourth and Fifth Amendments and that the affidavit in question is not factually sufficient. Other contentions are that the five persons alleged in the affidavits as conducting the gambling business include employees; that § 1955 is hinged on state law, is an unlawful delegation of congressional power and denies equal protection of the law and that the admixture of § 1955 and the Kentucky gambling laws renders the latter unconstitutional in that the Kentucky Constitution provides that no law “shall be enacted to take effect upon the approval of any other authority than the General Assembly.” We find no substance in any of these contentions.
Appellants recognize that Congress has the power to provide in a criminal statute that proof of one fact shall constitute presumptive or prima facie evidence of another. The requirement of a rational connection between the fact proved and the fact presumed was the crucial due process test established in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). Also see Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). The extensive hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary 91 Congress, 1st Session, on S. 30 and other bills which culminated in the Organized Crime Control Act of 1970 clearly reveal that “in most or all” of the cases involving raids of gambling establishments, the records seized reflected revenues of these establishments to be “better than $2,000 a day.” Report of the Senate Committee on the Judiciary S. R. 91-617, page 400. From these and other available statistics indicating revenues received by such gambling businesses, the Congress could reasonably conclude that a gambling operation with five or more participants doing business for two consecutive days would reap at least $2,000 in revenues in a single day. See 116 Cong.Rec. 603-604. We conclude that this is a permissible inference.
Appellants also contend that § 1955(c) creates an irrebuttable presumption that if five or more persons are conducting the business condemned and such business operates for two or more successive days, probable cause is established. The Government answers that there is no irrebuttable presumption in the act and we find none. The Appellants were at liberty to rebut the presumption but elected not to do so. The claim therefore has no merit. Appellants’ other contentions are equally without merit. They urge that the five persons engaged in their business were employees and could not be included among those who “conduct, finance, manage, supervise, direct or own all or part of such business ...” However the Senate Committee Report on the Act specifically states that the term “conduct” refers to both “high level bosses and street level employees.” Nor will the contention that the Federal crime hinges on state law and is therefore an unconstitutional delegation of congressional authority stand scrutiny. It was directly rejected in United States v. Compton, 365 F.2d 1 (6 Cir. 1966), involving the phrase “unlawful activity” in 18 U.S.C. § 1952, which employs the same technique as used in § 1955. Also see United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) which implicitly approved this procedure. Finally, we conclude that Appellants’ contention that § 1955 requires that Federal gambling laws enacted by the Kentucky Legislature take effect only upon the approval of the Congress is entirely frivolous. The relevant Kentucky laws were enacted long prior to § 1955 and insofar as Kentucky law is concerned, the latter has no effect whatever upon their enforcement in Kentucky courts.
Affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_two_issues
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
CITY OF EVANSVILLE, IND., et al. v. GASETERIA, Inc.
No. 4437.
Circuit Court of Appeals, Seventh Circuit.
June 29, 1931.
Frank C. Dailey, Percy E. O’Neal, George S. Dailey, and Robert A. Efroymson, all of Indianapolis, Ind., for appellants.
Myron H. Gray, of Muncie, Ind., and William H. Thompson, Albert L. Rabb, and Thomas D: Stevenson, all of Indianapolis, Ind., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
Appellee brought its equity action to enjoin appellant city and its officers from interfering with appellee’s installation in the city of a gasoline filling station having bulk and service tanks of a total of some 51,000 gallons capacity. Upon final hearing, the court granted the relief prayed,.and the appeal is from the decree.
Federal jurisdiction is invoked upon the allegation that through the acts complained of appellee was and would be deprived of its property without just compensation, in violation of the Fifth Amendment, and be denied the equal protection of the laws, contrary to the Fourteenth Amendment of the Federal Constitution.
In November, 1929, appellee, desirous of installing such a station in Evansville, applied to the Indiana state fire marshal for requisite permit therefor. The marshal granted the permit, which recites tnat the filling and service station is to be located at the corner of John and Heidelbaeh streets and on the Illinois Central railroad land, and to consist of three tanks aggregating 47,000 gallons capacity and two tanks each of 2,000 gallons capacity, and attached a blue print of the plans.
This blue print and the marshal’s permit, together with application for permit from the city to erect the necessary buildings, were presented by appellee to one Voss, then Evansville’s building commissioner. Voss at first refused to grant the permit unless, as he said, appellee would agree in writing not to cut the price of gasoline in the city. With this proposition appellee refused to comply, and Voss indorsed on the application the following :
“The undersigned in the past has denied the Hoosier Petroleum Co. and others a building permit for the reason that they were retailing gasoline in other cities at a cut price and the undersigned does not want to be instrumental in starting in substance a gasoline war in Evansville and denies this permit for the same reason.
“Signed by
“John Voss
“Building Comm., City of Evansville.
“P. S. I acknowledge that the permit fee of $4.00 has been offered and tendered but was refused by me.
“[Signed] John Voss.”
It appears that Voss had -written the fire marshal under date of November 1, 1929, urging him to assist him in keeping out such price cutters.
There was evidently a renewal of the application for the permit, and it was granted on November 21, 1929, with the following in-dorsement thereon:
“Permit considered, approved and ordered by City Attorney, Henry Hardin, and also approved by Mr. Blanchard of City Plan Commission from the standpoint of Zoning and quantity of gasoline storage.
“[Signed] John Voss”
Thereupon appellee completed or let contracts for buying land and equipment; buildings upon the site were tom down, pipes were laid, tanks and other equipment were brought to the property,' and the work was in progress and some equipment installed when, on February 12, 1930, appellee was notified to discontinue excavation in an adjacent alley, and, on disobedience of the notice, appellee’s president, Williams, and agents were arrested, and the work was stopped.
It appears that appellee was not then excavating in the alley, hut had laid pipe across it, and excavation for the building and underground tanks was in progress within six inches of the alley. The board then based its complaint oh the assertion that appellee had no right to cross the alley with, pipe which was designed to carry gasoline from the storage tanks being located on the railroad property to the filling station proper on the opposite side of the alley.
On December 17, 1929, after the procurement of the site and letting of contracts by appellee, the city council passed an ordinance called “gasoline amendment,” amending the Building Code and declaring it unlawful, within the city limits, to install, above or below ground, storage tanks of combined ca-paeity exceeding 3,000 gallons at one location. The City Code had previously provided that such installations should be in accordance with the rules and regulations of the state fire marshal. These regulations provided that no filling station should be installed at any place within a city’s fire limits or fire zone, which had tanks of maximum capacity of over 6,600 gallons, and that bulk storage should not exceed 8,800 gallons. The rules also provided for making exceptions thereto on written request whenever the fire marshal deems that life and property will not thereby be endangered.
Section 2 of the new ordinance provided that it was to be in force fifteen days after its publication. The .publication claimed was by posting on the Federal building in Evansville December 24, 1929. Appellee contends that it never heard of the ordinance until February 5, 1930.
Under date of February 13, 1930, there was sent from the fire- marshal’s office to the Board of Works a letter which stated that if appellee’s bulk storage and filling station was within the fire limits of the city of Evansville it had no approval from his department, as the approval was procured by Mr. Williams, with definite understanding that his bulk storage station of over 8,800 gallons capacity was located outside of the fire limits of Evansville.
Under date of February 18, the fire marshal again addressed a letter to the board of works and to Williams wherein, after purporting to recite the facts, the fire marshal concluded that there was nothing hazardous to life and property in the erection, operation, and conduct of the station, and that he approved its erection upon the terms of the original permit, and for purpose of clarifying the particular ease modified the rule.
Under date of February 20, the state fire marshal, in a more formal instrument, addressed to the mayor, the board of works, the zoning board, the building commissioner, the city council of the city, and to appellee, purported to recite the facts of the ease, and made the order ratifying the original permit of November 18, 1929, and waiving the rules and regulations to the extent that the original permit may have been in conflict therewith.
Respecting the representation to the marshal that the station was not in the fire limits, Williams testified that the location was far from the business part of the city, and so remote from buildings that he honestly assumed it was not within the fire limits.
It appears that on January 8,1930, there was a change of administration in the city; a new mayor and others, including a successor to Voss as building commissioner. However, resistance to this installation appeared to have continued, and there are some faets tending to indicate tbat it was inspired or supported by one or more persons interested in' .other filling stations.
But under date of February 25, the then building commissioner revoked appellee’s permit of .November 21,1929, in so far as it'permits installation of tanks for storage of petroleum products, except as to two 4,000-gal-lon tanks for storage of motor oil and two 2,000-gallon tanks for gasoline and one 500-gallon tank for kerosene, and one 500-gallon tank for alcohol, such revocation purporting on its face to be predicated solely upon subsection 38 of section 6 of an ordinance of the city adopted August 17, 1925, known as the “zone ordinance,” which provides that in the district there defined buildings and premises may be used for any purpose except the following: “38. Petroleum Products, Refining or Wholesale Storage of Petroleum.”
The notice of revocation specified “wholesale storage of petroleum” as the particular part of the ordinance which appellee’s permit transgressed.
It thus appears that the prior pretexts upon which the carrying on of this work was resisted and stopped, after the permit had been granted, viz., misrepresentation to the fire marshal as to location outside of the fire limits, the contention of excavation of alley, which culminated in stopping the work and the arrest of Williams and others of ap-pellee’s employees and the claim that appel-lee had unlawfully crossed the alley with pipes, were all abandoned by the city, and the revocation was predicated wholly upon ap-pellee’s alleged transgression of the above-indicated provision of the zone ordinance.
Appellee properly maintains that appellants are precluded from now asserting grounds for revocation of the permit, other than those asserted in the revocation itself. Ohio & M. Railway Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693; McCreary v. Strongman et al., 6 F.(2d) 441 (C. C. A. 3); Second Nat. Bank of Allegheny v. Lash Corporation, 299 F. 371 (C. C. A. 3).
The situation then was this: The city authorities, with definite knowledge of the location and of the plans for this work, granted the permit for it with the recited concurrence of a representative of the zone board. On the faith of the permit appellee exercised options for the purchase of land, and leased other land and rights to lay pipes, and entered into contracts for constructing the buildings and installing and equipping the plant. Building was then under construction, the tanks had been purchased and were partly installed, some of them were on railroad cars awaiting unloading at the site, and the work was progressing, and about $20,000 had been expended when the work was interrupted by the city.
There is much discussion in the briefs respecting the power of the state fire marshal to make exceptions to his rules. We do not deem it necessary to give much consideration to this proposition beyond referring to Gorieb v. Fox, 274 U. S. 603, at page 607, 47 S. Ct. 675, 676, 71 L. Ed. 1228, 53 A. L. R. 1210, where it is said, concerning a regulation by a city council: “In laying down a general rule, such as the one with which we are here concerned, the practical impossibility of anticipating in advance and providing in specific terms 'for every exceptional case which may arise, is apparent. And yet the inclusion of such cases may well result in great and needless hardship, entirely disproportionate to the good which will result from a literal enforcement of the general rule. Hence the wisdom and necessity here of reserving the authority to determine whether, in specific cases of need, exceptions may be made without subverting the general purposes of the ordinance.”
The statute of Indiana (Acts 1913, p. 556, e. 192; sections 11761-11780, Burns’ 1926; sections 11762-11778, Burns’ Supplement 1929), creating the office of fire marshal, conferred upon the marshal broad functions and authority, which upon their face are sufficiently inclusive to authorize him, in his good judgment, to adopt rules, and in particular cases to make reasonable exceptions thereto.
It would seem that the city, when granting the permit, recognized this as having been a proper ease for exceptional treatment, both as to fire limits and zone; for while the fire marshal may not have known just where Evansville’s fire limits were, it would be drawing quite too heavily upon the imagination to assume that the building commissioner who granted the permit, and the zone officer who concurred in it, not to mention the city attorney, did not have definite knowledge of these lines. Such knowledge was manifestly a fundamentally requisite qualification for proper exercise of their official duties. We are therefore justified in saying that their approval of the permit was, so far as they were concerned, a recognition of its propriety, the fire limits and zone ordinance to the contrary notwithstanding; and when, shortly thereafter, the fire marshal found this to he a proper case for a waiver of his rules respecting the granting of permits within the fire limits, or respecting the zone ordinance, the city officials, whether of the old or new administration, were in no position to maintain that the fire marshal had no right to make the waiver; in fact the city attorney, upon receipt of a copy of the letter from the fire marshal, wherein he waived his rules, advised the building commissioner that that action by the fire marshal permitted of no prohibition against the proposed construction.
It .is not seriously contended that there is anything unreasonable or improper or unjust in the fire marshal’s waiver, so far as concerns the facts upon which he assumed to make it. This installation was not within prohibited proximity to any buildings or institutions as specified in any ordinance. It was on the edge of the fire limits, with no substantial buildings within a hundred feet of it. It was alongside the Illinois Central Railroad, so located that the oil could be passed from the tank ears into the buried storage tanks adjacent to the tracks, and from these tanks by pipes into the buried service tanks of the station, avoiding any further transportation. The tanks were all to be under ground, thereby eliminating considerable of the danger which would otherwise be involved, and the storage tanks were not to be employed for the filling of tank wagons and the general sale of gasoline.
It is quite evident that this location of the station in proximity to the railroad afforded advantages which might enable the station either to make a larger profit or to make reduction in selling price, and it was just this situation which Voss openly proclaimed he was resisting by refusing to grapt permits for stations located in such relation to railroads. However honest his views may have been, he of course had no lawful right to make such discrimination. But it may be fairly gathered from the circumstances here appearing that it was this spirit and purpose which actuated the opposition to this installation.
To obviate such conclusions, it is pointed out that the revocation did not undertake to revoke the permit to the extent of the two 2,000-gallon tanks for the gasoline. But the special advantage of the location, as pointed out, would be minimized, if not wholly neutralized, if in connection with the service tanks there were not bulk tanks into which the contents of cars might be run; for if adequate storage capacity were not immediately available, further handling of the oil was quite inevitable.
It occurs to us further that the words “wholesale storage of petroleum” as used in the zone ordinance may not apply to an installation such as this.
If it be assumed that gasoline would be included in the classification of “petroleum,” nevertheless the word “wholesale” seems to us to be employed in its ordinary significance, indicating sale in quantities, as opposed to sales at “retail.” A “wholesale” storage, where the product is disposed of in bulk quantities, such as to tank wagons, which thus obtain their supplies for retail distribution, is quite unlike one where the storage tanks are designed only to supply by gravity through pipes the nearby smaller tanks out of which the gasoline is pumped for the consumer. There is no procession of vehicles, each taking its load of gasoline; none of the special hazards manifestly incident to such a traffic. In this view, the installation would not in any event fall within the terms of even the zone ordinance.
Expenditure by appellee of this large amount on installation and equipment of this plant, under the facts and circumstances here appearing, in our judgment presents a case where the revocation of the permit, and stoppage of the work, would deprive appellee of its property without due process of law. Dobbins v. Los Angeles, 195 U. S. 223, 25 S. Ct. 18, 49 L. Ed. 169.
There is yet another feature upon which so far we have not dwelt. It is the contention by appellee that the conduct of the city officials has been such as to deny appellee the equal protection of the laws. This was sought to be shown by the fact that, under substantially like circumstances as here appear, various others have been permitted to make and maintain large installations, far in excess of alleged ordinance limits, both before and after these occurrences, and they have been in no manner disturbed by the city or its officials. Examination of the transcript satisfies us that there is good reason to conclude that this is so.
We think it may be fairly said that the openly manifested purpose of preventing price cutting of gasoline within the city, and to that end resisting the location in the city of bulk or storage tanks tillable from ears on adjacent tracks, in connection with a filling station, has so far dominated these transactions on behalf of appellants as to indicate a definite purpose and plan of discriminating unlawfully against this installation. We think it may be fairly gathered from the evidence that appellants have purposely and unlawfully denied to .appellee that protection which they have nevertheless extended to practically all others. This, in our judgment, is violative of the Fourteenth Amendment to the Federal Constitution. Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Dobbins v. Los Angeles, supra; D. J. Dunigan v. District of Columbia, 59 App. D. C. 384, 44 F.(2d) 892 (C. C. A.); City of Vincennes, Ind., v. Marland Refining Co., 33 F.(2d) 427 (C. C. A. 7).
We are satisfied that the relief awarded was equitable and justifiable, and the decree is affirmed.
“Department of-Buildings
“John Voss, Building Commissioner
“Evansville, Indiana, November 1, 1929.
“State Fire Marshal, Indianapolis, Ind.
“Dear Sir: Several times in the past different parties have attempted to locate a retail gas filling station near a Railroad Switch for the purpose of retailing gasoline at cut prices and so far this office has been able to keep them out and we would like to continue to do so, because if one cut price concern gets started all the others will have to follow and the result is a complete demoralization of the business, as well as throwing a lot of men out of work and I would like before you ok any proposition of this kind to let me know, before giving your final decision and I will be obliged if you will help me out in this matter.
“Yours truly,
“[Signed] John Voss
“Commissioner of Buildings.”
To Gaseteria, Inc., Indianapolis, Ind.
The Mayor, Board of Works, Zoning Board, City Building Commissioner, and City . Council of Evansville, Ind.
In re: Installation and operation of combination bulk and public filling station at the corner of John and Heidelback Streets on the Illinois Central Railroad in the City of Evansville, Indiana.
A permit having been issued by the State Fire Marshal Department on the 18th day of November, 1929, and by the Building Commissioner of the City of Evansville, Indiana, on the 21st day of November, 1929, to Gaseteria, Inc., of Indianapolis, Indiana, for the installation, erection and operation of a combined bulk and public filling station at the corner of John and Heidelback streets on the Illinois Central Railroad in the said City of Evansville, Indiana;
The said Gaseteria, Inc., having proceeded to expend money for work, real estate, supplies and equipment in the installation and erection of said station, all in good faith and to the amount of approximately twenty two thousand dollars ($22,009.-00); and
A controversy having arisen as to the legality of the said permit granted by the State Fire Marshal Department; and
„ The State Fire Marshal having made investigation of all the facts in the matter does now and hereby render his decision as follows:
1. That there is nothing dangerous or hazardous to life or property in the installation and operation of this station at said location, at least no more dangerous or hazardous than is any other bulk or filling station at any other place in the state.
2. That all measurements are to be taken from pumps and center of tanks and not the buildings connected with such station.
3. That for the purpose of clarifying this particular case and rendering justice therein, so far as this said station is concerned the rules of the State Fire Marshal Department prohibiting the erection and operation of bulk storage stations within the fire zone of any city in the state are hereby waived; but this waiver is for only this particular case and not general in its application.
4. That the store building on the corner and about 310 feet from said station is not an apartment house.
• 5. That the unused alley across which the pipes of the Gaseteria, Inc., go is not a public passage way so far as this Department is concerned and the burial of said pipes across this alley to the depth of twenty-four inches is satisfactory to this Department and has the approval of this Department.
6. That the permit granted to the Gaseteria, Inc., by the State Fire Marshal Department on the 18th of November, 1929, was legal, and is so now; that said Gaseteria, Inc., should be permitted to proceed with its work on this station, complete it and operate it.
7. That in order to get this matter straightened out and render substantial justice, the State Fire Marshal does for this case only now and hereby waive all the rules and regulations of the Department that could or might in any way be construed as prohibiting the completion of this station and its operation according to the blue print filed; but such waiver is not general in application to other cases which might arise.
Witness my hand and official seal this 20th day of February, 1930.
[Signed] Alfred Hogston,
[Seal.] State Fire Marshal
State Fire Marshal Indiana,
Question: Are there two issues in the case?
A. no
B. yes
Answer:
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songer_usc1sect
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1
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
CITY OF FORT LAUDERDALE, Appellant, v. EAST COAST ASPHALT CORPORATION et al., Appellees.
No. 19549.
United States Court of Appeals Fifth Circuit.
March 26, 1964.
Rehearing Denied June 10, 1964.
C. Shelby Dale, Fort Lauderdale, Fla., for appellant.
Richard M. White, Miami, Harrison D. Griffin, Fort Lauderdale, Thomas H. Anderson, Earl D. Waldin, Jr., Miami, Fla., for appellees.
Before TUTTLE, Chief Judge, and WISDOM and GEWIN, Circuit Judges.
GEWIN, Circuit Judge.
This case is related to the case of Hardrives Co., Inc., et al. v. East Coast Asphalt Corp., et al. No. 19864, 5 Cir., 329 F.2d 868, and the case of United States v. South Florida Asphalt Co., et al. No. 19635, 5 Cir., 329 F.2d 860, both decided this same date. The conduct about which complaint is made is the violation of the Sherman and Clayton Acts. This appeal is from an order dismissing the complaint of the City wherein an injunction and treble damages were sought.
The record is not clear, but apparently the trial judge dismissed the complaint because he considered that the goods and materials alleged to be involved came to rest in the state of ultimate consumption prior to the sale of the same to the parties who finally utilized them; and that such fact eliminated the “in commerce” character of the goods.
The allegations of the complaint in this case are substantially the same as in the Hardrives case. This Court has repeatedly held that complaints in civil cases should not be dismissed unless it clearly appears that under no theory can the plaintiff be entitled to relief. Des-Isles v. Evans, 5 Cir., 200 F.2d 614; City of Daytona Beach v. Gannett, 5 Cir., 253 F.2d 771; Mannings v. Board of Public Instruction, etc., 5 Cir., 277 F.2d 370.
We think that this complaint alleges facts on which relief could be granted on two grounds, first this Court has held that contractors engaged in the construction of interstate highways and other facilities of interstate commerce are engaged “in commerce.” Archer v. Brown & Root, Inc., 5 Cir., 241 F.2d 663, 667, cert. denied 355 U.S. 825, 78 S.Ct. 33, 2 L.Ed.2d 39; Mitchell v. Hooper Equipment Co., 5 Cir., 279 F.2d 893. The Supreme Court has, of course, held likewise. Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196. It is no argument to say that wage and hour cases are no authority for Sherman Act cases. Of course they are not necessarily authority to the extent> that they deny coverage. On the other hand, if they grant coverage on the basis of the employees actually being engaged in commerce then they are authority for what constitutes interstate commerce. Thus, we conclude that the allegation that the local conspiracy has artificially set prices for materials which its members sell or install for the construction of arteries of interstate commerce, is an adequate allegation of a conspiracy in interstate commerce.
Moreover, for the second point, we think the allegations of the manner in which the conspiracy, even though it be “local” in nature, affects commerce are sufficient to withstand a motion to dismiss. In United States v. Employing Plasterers Assoc. of Chicago, 347 U.S. 186, 74 S.Ct. 452, 456, 98 L.Ed. 618, the Supreme Court said, in a criminal case:
“The complaint plainly charged several times that the effect of all these local restraints was to restrain interstate commerce. Whether these charges be called ‘allegations of facts’ or ‘mere conclusions of the pleader,’ we hold that they must be taken into account in deciding whether the Government is entitled to have its case tried.
“We are not impressed by the argument that the Sherman Act could not possibly apply here because the interstate buying, selling and movement of the plastering materials had ended before the local restraints became effective. Where interstate commerce ends and local commerce begins is not always easy to decide and is not decisive in Sherman Act cases. See Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 232 [68 S.Ct. 996, 1004, 92 L.Ed. 1328].”
We think that the conspiracy alleged in this case dealing with the type of business in which the appellees are engaged falls well within the reasoning vf this case.
See also United States v. Women’s Sportswear, 336 U.S. 460, 69 S.Ct. 714, 93 L.Ed. 805.
The judgment of dismissal was in error.
The judgment is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number.
Answer:
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sc_casesource
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003
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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.
BULOVA WATCH CO., INC., v. UNITED STATES.
No. 241.
Argued March 27, 1961.
Decided April 17, 1961.
Bernard Weiss argued the cause and filed a brief for petitioner.
Oscar H. Davis argued the cause for the United States. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Rice, Assistant Attorney General Oberdorfer, Acting Assistant Attorney General Heffron, Meyer Rothwacks and A. F. Prescott.
Mr. Justice Whittaker
delivered the opinion of the Court.
Petitioner recovered a judgment in the Court of Claims against the United States for an overpayment of its excess profits taxes for the fiscal year ended March 31, 1942, in the amount of $211,899.28, plus interest thereon “as provided by law.” 143 Ct. Cl. 342, 163 F. Supp. 633. Of the principal sum of the judgment, $150,016.21 was attributable to an unused excess profits credit carry-back from the succeeding year ended March 31, 1943.
Acting in accordance with the provisions of § 3771 (e) of the Internal Revenue Code of 1939, the Commissioner computed and allowed statutory interest on the latter sum from June 14, 1945, the date on which petitioner filed its claim for refund, to April 25, 1959 — 30 days prior to issuance of the refund check — in the amount of $124,784.72. Thereafter, petitioner moved the Court of Claims for relief from the Commissioner’s interpretation of the judgment, contending that interest should be computed, under the provisions of 28 U. S. C. § 2411 (a), from the earliest date the overpayment could have been determined (the end of the fiscal year subsequent to the year involved, i. e., March 31, 1943), rather than from the date it filed its claim for refund (June 14, 1945) as provided in § 3771 (e), and that it was thus entitled to the further sum of $51,252.69. The motion was denied, without opinion.
Because of the importance of the question involved to the proper administration of the internal revenue laws, and to settle a conflict between the lower federal courts upon the question, we granted certiorari. 364 U. S. 861.
The question thus presented is whether the date from which interest accrues on an overpayment of taxes attributable to an unused excess profits credit carry-back is governed by § 3771 (e) of the Internal Revenue Code of 1939, or by 28 U. S. C. § 2411 (a).
Petitioner contends that, because refund of the tax was not awarded administratively but by the “judgment of [a] court,” the date Jrom which interest runs is governed by the provisions of § 2411 (a), and that it is thus entitled to interest from “the date of the payment” on the “overpayment” which, it argues, became ascertainable, and hence should be regarded as made, on March 31, 1943. The Government, on the other hand, contends that § 3771 (e) is a special statute relating exclusively to tax refunds attributable to the carry-back provisions of the internal revenue laws, and hence prevails, as respects the special subject of carry-backs, over the general provisions of § 2411 (a). After a careful review of these and other statutes and their legislative history, we have concluded that the Government is right.
Section 3771 (e) of the 1939 Code deals specifically with the subject of interest on tax refunds attributable to the carry-back of a net operating loss or an unused excess profits tax credit, and is “an integral part of the carry-back provision [s]” of the internal revenue laws. Manning v. Seeley Tube & Box Co., 338 U. S. 561, 568. It specifically says that “[i]f the Commissioner determines that any part of an overpayment is attributable to . . . [an] unused excess profits credit for a succeeding taxable year, no interest shall be allowed or paid with respect to such part of the overpayment for any period before the filing of a claim for credit or refund of such part of the overpayment or the filing of a petition with the Tax Court, whichever is earlier.” The refund awarded here was solely “attributable to [an] unused excess profits credit for [the] succeeding taxable year.” How, their, can petitioner be entitled to interest “for any period before the filing of a claim for credit or refund”?
Petitioner agrees that if its award had been made administratively by the Commissioner or the Tax Court, rather than by the “judgment” of the Court of Claims, interest would not be allowable on the refund for any period prior to the filing of its claim. But it argues that the language of § 2411 (a) — “In any judgment of any court rendered ... for any overpayment in respect of any internal-revenue tax, interest shall be allowed . . . upon the amount of the overpayment, from the date of the payment or collection thereof” — requires the allowance of interest “from the date of the payment or collection” of the tax when recovery is awarded by a District Court or, as here, by the Court of Claims. The effect of petitioner’s contention thus is that Congress has made the starting date of interest in such cases dependent upon the forum selected by the taxpayer. Its argument would mean — in fact, it frankly proceeds on the theory — that a taxpayer, holding a refund claim attributable to an unused excess profits credit, could, by proceeding in a District Court or the Court of Claims, recover interest from the date when a claim for refund could have been filed, yet if he proceeded through the Tax Court he could not recover interest for any period prior to the actual filing of his claim, even though the Tax Court’s final judgments (or orders) are subject to review by the United States Courts of Appeals and ultimately by this Court. In the light of the provisions of § 3771 (e) and its legislative history, it is almost certain that Congress did not intend such an anomalous, nonuniform and discriminatory result.
Petitioner further contends that § 2411 (a) is a later enactment than § 3771 (e) and, for that reason, should take precedence over it. We do not believe that § 2411 (a) can fairly be regarded as a later enactment than § 3771 (e), for at the time § 3771 (e) was enacted, in 1942, a predecessor provision of § 2411 (a) had long been on the books. Save for the word “hereby” — of no possible significance — that predecessor provision (§ 177 (b) of the Judicial Code, 28 U. S. C. (1940 ed.) § 284 (b)) was identical with the present §2411 (a). But even if petitioner were correct in concluding that § 2411 (a) is to be regarded as the later enactment, it would not necessarily take precedence over § 3711 (e), for it is familiar law that a specific statute controls over a general one “without regard to priority of enactment.” Townsend v. Little, 109 U. S. 504, 512. See, e. g., Ginsberg & Sons v. Popkin, 285 U. S. 204, 208; MacEvoy Co. v. United States, 322 U. S. 102, 107; Fourco Glass Co. v. Transmirra Corp., 353 U. S. 222, 228-229.
Section 3771 (e) specifically fixes the date from which interest shall run on carry-back refunds. It came into the law with the Revenue Act of 1942, which authorized carry-backs. A carry-back is an exceptional relief measure in that it permits a departure from the basic annual accounting rule. The carry-back provisions “were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year.” Libson Shops, Inc., v. Koehler, 353 U. S. 382, 386.
The significant feature of a carry-back is that it permits an adjustment of an earlier liability upon the basis of subsequent events. It contemplates that the initial tax obligation was not incorrectly or mistakenly imposed but was actually due, but that an adjustment may be made upon the basis of the taxpayer’s gain or loss in the succeeding year or years, and it is evident from the very terms of § 3771 (e) that Congress thought it would be unfair to the Government to require it to pay interest on a claim brought about by such a retroactive adjustment prior to the time when the taxpayer took affirmative steps to bring home to the Commissioner that he is now in position to claim, and claims, a readjustment of his past admittedly correct tax liability. Section 3771 (e) does not, of course, deny interest on carry-back refunds. It only prohibits the accrual of interest prior to the time the taxpayer’s claim therefor is filed with, and thus made known to, the Commissioner.
The report of the Senate Finance Committee on the bill that became § 3771 (e) clearly discloses that these were Congress’ purposes in adopting the section. It said:
“A taxpayer entitled to a carry-back of a net operating loss or an unused excess profits credit (see sec. 204 of the bill) will not be able to determine the deduction on account of such carry-back until the close of the future taxable year in which he sustains the net operating loss or has the unused excess profits credit. He must therefore file his return and pay his tax without regard to such deduction, and must file a claim for refund at the close of the succeeding taxable year when he is able to determine the amount of such carry-back. Inasmuch as any overpayment resulting from the deduction of such carry-back does not occur, as a practical matter, until the net operating loss or the unused excess profits credit for the future taxable year is determined, and inasmuch as it is desirable to insure promptness in the filing of claims to inform the Commissioner that such deductions have been determined, this section provides that no interest will he allowed with respect to any such overpayment for any period before the claim therefor is filed, or a petition asserting such overpayment is filed with the Board of Tax Appeals, whichever is earlier.” (Emphasis added.)
This surely shows Congress’ purpose to deny interest on carry-back refunds for any period prior to the time they could be determined, and also to prevent, through delay in the presentation of claims, the accumulation of interest after that date and prior to the filing of the claim.
In providing, in § 6611 (f) of the 1954 Internal Revenue Code, that overpayments resulting from the carry-back of net operating losses “shall be deemed not to have been made prior to the close of the taxable year in which such net operating loss arises,” Congress recognized that it was making a change from existing law. The relevant Committee Report makes this clear. It said, in pertinent part, that:
“Existing law denies interest on an overpayment caused by a carry-back for any period prior to the filing of a claim for credit or refund of such amount (or filing a petition with the Tax Court with respect to such amount). Under this [proposed] section, interest is denied only for the period prior to the close of the taxable year in which the net operating loss arises. This is consistent with the rule for interest on underpayments (see the discussion of sec. 6601).”
In the light of the provisions of § 3771 (e) and its clear legislative history, we think it is a special statute relating solely to, and exclusively governing, tax refunds attributable to the carry-back provisions of the internal revenue laws, and hence prevails, as respects the special subject of carry-backs, over the general provisions of § 2411 (a). The judgment of the Court of Claims was therefore correct and must be
Affirmed.
In Carter v. Liquid Carbonic Pacific Corp., 97 F. 2d 1, the Court of Appeals for the Ninth Circuit reached a result contrary to that reached by the Court of Claims in this case.
Internal Revenue Code of 1939:
Ҥ3771. Interest on Overpayments.
“(a) Rate. — Interest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at the rate of 6 per centum per annum.
“(b) Period. — Such interest shall be allowed and paid as follows:
“(1) Credits. — In the case of a credit ....
“(2) Refunds. — In' the case of a refund, from the date of the overpayment to a date preceding the date of the refund check by not more than thirty days ....
“(e) [as added by §153 (d), Revenue Act of 1942, c. 619, 56 Stat. 798, 847] Claims Based on Carry-Back of Loss or Credit. — If the Commissioner determines that any part of an overpayment is attributable to the inclusion in computing the net operating loss deduction for the taxable year of any part of the net operating loss for a succeeding taxable year or to the inclusion in computing the unused excess profits credit adjustment for the taxable year of any part of the unused excess profits credit for a succeeding taxable year, no interest shall be allowed or paid with respect to such part of the overpayment for any period before the filing of a claim for credit or refund of such part of the overpayment or the filing of a petition with the Tax Court, whichever is earlier.”
28 U. S. C.:
“§ 2411 [as amended by § 120, Act of May 24, 1949, c. 139, 63 Stat. 89, 106], Interest.
“(a) In any judgment of any court rendered (whether against the United States, a collector or deputy collector of internal revenue, a former collector or deputy collector, or the personal representative in case of death) for any overpayment in respect of any internal-revenue tax, interest shall be allowed at the rate of 6 per centum per annum upon the amount of the overpayment, from the date of the payment or collection thereof to a date preceding the date of the refund cheek by not more than thirty days, such date to be determined by the Commissioner of Internal Revenue. The Commissioner is authorized to tender by check payment of any such judgment, with interest as herein provided, at any time after such judgment becomes final, whether or not a claim for such payment has been duly filed, and such tender shall stop the running of interest, whether or not such refund check is accepted by the judgment creditor.”
It will be noted that petitioner stops short of claiming that it is entitled to interest from the date it paid its 1942 excess profits tax. It claims, rather, that interest runs from the end of the succeeding .tax year that gave rise to the carry-back (i. e., March 31, 1943). The Government’s position, on the other hand, is that the interest runs from June 14, 1945, the date on which the refund claim was first presented.
Petitioner points to the fact that in Lasky v. Commissioner, 352 U. S. 1027, the Tax Court was held to be an administrative agency.
Petitioner does not in fact claim interest from the date it actually paid its excess profits taxes for the year 1942 but, rather, from the end of the succeeding tax year that gave rise to the carry-back, i. e., March 31, 1943. See n. 4.
The history of 28 U. S. C. § 2411 (a) and its predecessor provisions goes back to 1911. See § 177 (b) of the Judicial Code, enacted in 1911 (c. 231, 36 Stat. 1141), as amended by the Revenue Act of 1921 (c. 136, 42 Stat. 227, § 1324 (b)), as further amended by the Revenue Act of 1926 (c. 27, 44 Stat. 9, § 1117). Further amendments occurred in 1928 (45 Stat. 791, § 615) and in 1936 (49 Stat. 1648, § 808). The 1948 codification omitted from the Judicial Code all reference to interest on tax overpayments, but, by a correction Act in 1949 (c. 139, 63 Stat. 89, § 120), Congress restored the section to the Judicial Code as §2411 (a). The only difference between § 177 (b) as it stood in 1942, and § 2411 (a) as it stands today, is that the word “hereby” no longer appears. Thus, § 3771 (e) is not only the specific enactment designed to control the subject of interest in carry-back cases, but it is also a later enactment than §2411 (a).
S. Rep. No. 1631, 77th Cong., 2d Sess., pp. 123-124.
That Congress did not propose to allow interest for any period prior to presentment of the claim is further confirmed by the provisions of § 6 of the Tax Adjustment Act of 1945, c. 340, 59 Stat. 517, amending § 3771 (e). Section 4 of that Act added a new section to the Internal Revenue Code, § 3780, providing for tentative carry-back adjustments. The concurrent amendment of § 3771 (e) specifies that interest shall not start to run prior to the date application is made for the tentative carry-back adjustments.
H. R. Rep. No. 1337, 83d Cong., 2d Sess., p. A418.
Section 6601 (e) provides that if the amount of tax is reduced by a carry-back loss, the reduction shall not affect the interest payable thereon by the taxpayer for the period ending with the close of the year in which the loss arises. Section 292 (c) of the 1939 Code (added by § 6 of the Tax Adjustment Act of 1945, c. 340, 59 Stat. 517) provided: “If any part of a deficiency is determined by the Commissioner to be attributable ... to a carry-back to which an overpayment described in section 3771 (e) . . . in any other tax is attributable ... no interest shall be assessed or paid under subsection (a) [providing that interest is payable on a deficiency from the date prescribed for the payment of the tax] with respect to such part of the deficiency for any period during which interest was not allowed with respect to such overpayment . . .
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
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Answer:
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sc_casesource
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031
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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.
FEDERAL POWER COMMISSION v. CONWAY CORP. et al.
No. 75-342.
Argued April 21, 1976
Decided June 7, 1976
White, J., delivered the opinion for a unanimous Court.
Allan Abbot Tuttle argued the cause for petitioner. With him on the briefs were Drexel D. Journey and Robert■ W. Perdue.
Robert C. McDiarmid argued the cause for respondents Conway Corp. et al. With him on the brief was Sandra J. Strebel. Harry A. Roth, Jr., and Robert T. Hall III filed briefs for Arkansas Power & Light Co. as respondent under this Court’s Rule 21 (4).
Briefs of amici curiae urging affirmance were filed by Northcutt Ely and Frederick H. Ritts for the American Public Power Assn.; and by Charles F. Wheatley, Jr., and Grace Powers Monaco for the City of Batavia, Ill., et al.
Mr. Justice White
delivered the opinion of the Court.
The question in this case is this: When a power company that sells electricity at both wholesale and retail seeks to raise its wholesale rates, does the Federal Power Commission (Commission) have jurisdiction to consider the allegations of the company’s wholesale customers that the proposed wholesale rates, which are within the Commission's jurisdiction, are discriminatory and noncompetitive when considered in relation to the company’s retail rates, which are not within the jurisdiction of the Commission? We hold that it does.
I
Arkansas Power & Light Co. (Company) is a public utility engaged .in the sale of electric energy at wholesale in interstate commerce under the meaning of § 201 of the Federal Power Act (Act), as added, 49 Stat. 847, 16 U. S. C. § 824. Its wholesale rates are thus within reach of the Commission’s powers under § 206 (a) of the Act to establish rates which are just, reasonable, and nondiscriminatory. 16 U. S. C. § 824e (a). The Company also sells at retail and seeks industrial sales in competition with some of its wholesale customers. These wholesale customers include the seven municipally owned electric systems and the two electric power cooperatives which are respondents here. Each of these respondents (Customers) operates in the State of Arkansas and each borders on or is surrounded by the territory served by the Company.
In June 1973, the Company filed with the Commission a wholesale rate increase pursuant to §205 (d). The Customers sought to intervene before the Commission, urging that the rate increase be rejected. Among other grounds, it was asserted that the Customers and the Company were in competition for industrial retail accounts and that the rate increase was “an attempt to squeeze [the Customers] or some of them out of competition and to make them more susceptible to the persistent attempts of the company to take over the public [ly] owned systems in the State.” App. 6. It was alleged that the proposed wholesale rates would make it “impossible for the [Customers] to sell power to an industrial load of any size at a competitive price with [the Company], since, in many cases, the revenues therefrom would not even cover the incremental power costs to [the Customers].” Id., at 7. It was also asserted that the rate filing was “plainly discriminatory against the single class of customer which [the Company] has historically attempted to drive out of business, without justification on any ordinary cost of service basis . . . Id., at 19.
The Company opposed the petition. The Commission permitted the Customers to intervene but ruled that it would “limit Customers' participation in this proceeding to matters other than the alleged anti-competitive activities” because the Customers had failed to demonstrate that the relief sought was “within this Commission’s authority to direct.” Id., at 35. The Commission also denied the Customers’ amended petition to intervene, again refusing to consider the tendered anticompetitive and discrimination issues. Inasmuch as the Commission’s authority is limited to wholesale rates and does not reach sales at retail, the Commission’s opinion was that “the relief sought by [the Customers] is beyond the authority granted to us under the Federal Power Act.” Id., at 53. In later denying the Customers’ petition for rehearing, the Commission stated that in considering the Company’s cost base for its proposed wholesale rates, it would of course put aside those costs properly allocable to the Company’s retail business; but it again ruled that the anticompetitive issue presented by the Customers was “beyond the scope of this Commission’s jurisdiction, contrary to the purposes of the Federal Power Act and inappropriate in this proceeding, the purpose of which is to review the justness and reasonableness of the [Company’s] proposed wholesale rates.” Id., at 55.
The Customers sought review of the Commission’s action in the Court of Appeals for the District of Columbia Circuit. The Court of Appeals, disagreeing with the Commission’s view as to the reach of its powers, held that the Commission’s jurisdiction over wholesale rates for electricity sold in interstate commerce furnished the necessary authority to consider the alleged discriminatory and anticompetitive effects of the requested increase. The Company’s retail rates, the court held, “in a market in which it is competing with its own customers are part of the factual context in which the proposed wholesale rate will function . . and should be considered in determining whether or not the rate increase was just and reasonable. 167 U. S. App. D. C. 43, 52, 510 F. 2d 1264, 1273 (1975). The case was therefore remanded to the Commission for further proceedings.
We granted the Commission’s petition for certiorari to consider the question whether the Court of Appeals had correctly construed the statutes controlling the Commission’s jurisdiction. 423 U. S. 945 (1975). We now affirm the judgment of the Court of Appeals.
II
Section 201 (b) of the Act, 16 U. S. C. § 824 (b), confers jurisdiction on the Commission with respect to the sale of electric energy at wholesale in interstate commerce. The prohibition against discriminatory or preferential rates or services imposed by § 205 (b) and the Commission’s power to set just and reasonable rates under § 206 (a) are accordingly limited to sales “subject to. the jurisdiction of the Commission,” that is, to sales of electric energy at wholesale. The Commission has no power to prescribe the rates for retail sales of power companies. Nor, accordingly, would it have power to remedy an alleged discriminatory or anticompetitive relationship between wholesale and retail rates by ordering the company to increase its retail rates.
As the Commission is at great pains to establish, this is the proper construction of the Act, the legislative history of § 205 indicating that the section was expressly limited to jurisdictional sales to foreclose the possibility that the Commission would seek to correct an alleged discriminatory relationship between wholesale and retail rates by raising or otherwise regulating the nonjurisdic-tional, retail price. Insofar as we are advised, no party to this case contends otherwise.
Building on this history, the Commission makes a skillful argument that it may neither consider nor remedy any alleged discrimination resting on a difference between jurisdictional and nonjurisdictional rates. But the argument, in the end, is untenable. Section 205 (b) forbids the maintenance of any “unreasonable difference in rates” or service “with respect to any . . . sale subject to the jurisdiction of the Commission.” A jurisdictional sale is necessarily implicated in any charge that the difference between wholesale and retail rates is unreasonable or anticompetitive. If the undue preference or discrimination is in any way traceable to the level of the jurisdictional rate, it is plain enough that the section would to that extent apply; and to that extent the Commission would have power to effect a remedy under § 206 by an appropriate order directed to the jurisdictional rate. This was the view of the Court of Appeals, and we agree with it.
The Commission appears to insist that a just and reasonable wholesale rate can never be a contributing factor to an undue discrimination: Once the jurisdictional rate is determined to be just and reasonable, inquiry into discrimination is irrelevant for § 206 (a) purposes, for if the discrimination continues to exist, it is traceable wholly to the non jurisdictional, retail rate. This argument assumes, however, that ratemaking is an exact science and that there is only one level at which a wholesale rate can be said to be just and reasonable and that any attempt to remedy a discrimination by lowering the jurisdictional rate would always result in an unjustly low rate that would fail to recover fully allocated wholesale costs. As the Court of Appeals pointed out and as this Court has held, however, there is no single cost-recovering rate, but a zone of reasonableness: “Statutory reasonableness is an abstract quality represented by an area rather than a pinpoint. It allows a substantial spread between what is unreasonable because too low and what is unreasonable because too high.” Montana-Dakota Util. Co. v. Northwestern Pub. Serv. Co., 341 U. S. 246, 251 (1951). The Commission itself explained the matter in In re Otter Tail Power Co., 2 F. P. C. 134, 149 (1940):
“It occurs to us that one rate in its relation to another rate may be discriminatory, although each rate per se, if considered independently, might fall within the zone of reasonableness. There is considerable latitude within the zone of reasonableness insofar as the level of a particular rate is concerned. The relationship of rates within such a zone, however, may result in an undue advantage in favor of one rate and be discriminatory insofar as another rate is concerned. When such a situation exists, the discrimination found to exist must be removed.”
The Commission thus cannot so easily satisfy its obligation to eliminate unreasonable discriminations or put aside its duty to consider whether a proposed rate will have anticompetitive effects. The exercise by the Commission of powers otherwise within its jurisdiction “clearly carries with it the responsibility to consider, in appropriate circumstances, the anticompetitive effects of regulated aspects of interstate utility operations pursuant to . .. directives contained in §§ 205, 206 ....” Gulf States Util. Co. v. FPC, 411 U. S. 747, 758-759 (1973). The Commission must arrive at a rate level deemed by it to be just and reasonable, but in doing so it must consider the tendered allegations that the proposed rates are discriminatory and anticompetitive in effect.
We think the Court of Appeals was quite correct in concluding:
“When costs are fully allocated, both the retail rate and the proposed wholesale rate may fall within a zone of reasonableness, yet create a price squeeze between themselves. There would, at the very least, be latitude in the FPC to put wholesale rates in the lower range of the zone of reasonableness, without concern that overall results would be impaired, in view of the utility’s own decision to depress certain retail revenues in order to curb the retail competition of its wholesale customers.” 167 U. S. App. D. C., at 53, 510 F. 2d, at 1274. (Footnote omitted.)
Because the Commission had raised a jurisdictional barrier and refused to consider or hear evidence concerning the Customers’ allegations, the Court of Appeals could not determine whether a wholesale rate, if set low enough partially or wholly to abolish any discriminatory effects found to exist, would fail to recover wholesale costs. The case was therefore remanded to the Commission for further proceedings.
We agree with this disposition. It does not invade a non jurisdictional area. The remedy, if any, would operate only against the rate for jurisdictional sales. Whether that rate would be affected at all would involve, as the Court of Appeals indicated, an examination of the entire “factual context in which the proposed wholesale rate will function.” Id., at 52, 510 F. 2d, at 1273. These facts will naturally include those related to non jurisdictional transactions, but consideration of such facts would appear to be an everyday affair. As the Commission concedes, in determining whether the proposed wholesale rates are just and reasonable, it would in any event be necessary to determine which of the Company’s costs are allocable to its non jurisdictional, retail sales and which to its jurisdictional, wholesale sales — this in order to insure that the wholesale rate is paying its way, but no more. In this sense, consideration of the relationship between jurisdictional and non jurisdictional rate structures is commonplace, and is nothing more than is required by Colorado Interstate Co. v. FPC, 324 U. S. 581 (1945), and by Panhandle Co. v. FPC, 324 U. S. 635 (1945).
Furthermore, § 206 (a) provides that whenever the Commission finds that
“any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.” (Emphasis added.)
The rules, practices, or contracts “affecting” the jurisdictional rate are not themselves limited to the jurisdictional context. In the Panhandle case, supra, decided under the almost identical provision of the Natural Gas Act, 15 U. S. C. § 717d (a), the Court emphasized the same aspect of the section, and went on to hold that because it was “clear” that a gas company’s “contracts covering direct industrial sales” are contracts “affecting” jurisdictional rates,
“[t]he Commission, while it lacks authority to fix rates for direct industrial sales, may take those rates into consideration when it fixes the rates for interstate wholesale sales which are subject to its jurisdiction.” 324 U. S., at 646.
The Court of Appeals’ construction of the Act is sound and its judgment is affirmed.
So ordered.
Section 206 (a) provides:
“Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.” 49 Stat. 852,16 U. S. C. § 824e (a).
Section 205 (b) forbids rates that are preferential or discriminatory:
“No public utility shall, with respect to any transmission or sale subject to the jurisdiction of the Commission, (1) make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable difference in rates, charges, service, facilities, or in any other respect, either as between localities or as between classes of service.” 49 Stat. 851, 16 U. S. C. § 824d (b).
The respondent customers are Conway Corp. (Conway, Ark.); Benton Municipal Light & Water Works; Hope Water & Light Commission; city of North Little Rock; city of Osceola; city of Prescott; city of West Memphis; Farmers Electric Cooperative Corp.; and Mississippi County Electric Cooperative, Inc.
Section 205 (d) provides:
“Unless the Commission otherwise orders, no change shall be made by any public utility in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.” 49 Stat. 851, 16 U. S. C. § 824d (d).
Section 201 (b) provides in relevant part:
“The provisions of this Part shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce, but shall not apply to any other sale of electric energy or deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line.”
Under the Act to Regulate Commerce of 1887, it was held that the Interstate Commerce Commission was empowered to order that a nonjurisdictional, intrastate freight rate be raised to eliminate a discrimination. Houston & Texas R. Co. v. United States, 234 U. S. 342, 356-359 (1914).
“The function which an allocation of costs (including return) is designed to perform in a rate case of this character is clear. The amount of gross revenue from each class of business is known. Some of those revenues are derived from sales at rates which the Commission has no power to fix. The other part of the gross revenues comes from the interstate wholesale rates which are under the Commission’s jurisdiction. The problem is to allocate to each class of the business its fair share of the costs. It is of course immaterial that the revenues from the intrastate sales or the direct industrial sales may exceed their costs, since the authority to regulate those phases of the business is lacking. To the extent, however, that the revenues from the interstate wholesale business exceed the costs allocable to that phase of the business, the interstate wholesale rates are excessive.” 324 U. S., at 588.
“We agree that the Commission must make a separation of the regulated and unregulated business when it fixes the interstate wholesale rates of a company whose activities embrace both. Otherwise the profits or losses, as the case may be, of the unregulated business would be assigned to the regulated business and the Commission would transgress the jurisdictional lines which Congress wrote into the Act. The Commission recognizes this necessity. As it stated in Re Cities Service Gas Co., 50 P. U. R. (N. S.) 65, 89: ‘The company’s facilities and operations are devoted in part to natural gas service which is not subject to our jurisdiction. This service consists principally of gas sales made directly to large industrial consumers. The necessity arises, therefore, for making an allocation of costs as between the jurisdictional and non-jurisdictional sales.’ The question is whether a formal allocation was necessary under the exceptional circumstances of this case.” 324 U. S., at 641-642. (Footnote omitted.)
Eor the proposition that there is no room within the Act to consider any discriminatory or anticompetitive relationship between a jurisdictional and a nonjurisdictional rate, the Commission relies upon the statement in the concurring opinion of Mr. Justice Jackson in Colorado Interstate Co. v. FPC, 324 U. S., at 615: “It is true that the Natural Gas Act forbids discrimination only as between regulated rates and does not forbid discriminations between the regulated and unregulated ones.” But the Justice went on to make clear that a nonjurisdictional price could be used in determining what is the “just and reasonable” jurisdictional rate. “By use of the unregulated price as a basis for comparison I think a reduction in the wholesale rates for resale to the public is in order. If this makes low price industrial business less desirable, it will be in the long-range public interest for reasons more fully stated by me m [FPC v. Hope Gas Co., 320 U. S. 591 (1944)].” Ibid.
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Answer:
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sc_adminaction
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057
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the 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.
UNITED STATES v. MORTON SALT CO.
NO. 273.
Argued December 14, 1949.
Decided February 6, 1950.
Philip Elman argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bergson, Curtis C. Shears, J. Roger Wollenberg, W. T. Kelley and Joseph S. Wright.
L. M. McBride argued the cause and filed a brief for respondent in No. 273.
Frederic R. Sanborn argued the cause and filed a brief for respondent in No. 274.
Mr. Justice Jackson
delivered the opinion of the Court.
This is a controversy as to the power of the Federal Trade Commission to require corporations to file reports showing how they have complied with a decree of the Court of Appeals enforcing the Commission’s cease and desist order, in addition to those reports required by the decree itself.
Proceedings under § 5 of the Federal Trade Commission Act culminated in a Commission order requiring respondents Morton Salt Company and International Salt Company, together with eighteen other salt producers and a trade association, to cease and desist from stated practices in connection with the pricing, producing and marketing of salt. The Court of Appeals for the Seventh Circuit affirmed the order with modifications and commanded compliance. 134 F. 2d 354. The decree directed that reports of the manner of compliance be filed with the Commission within ninety days, but it reserved jurisdiction “to enter such further orders herein from time to time as may become necessary effectively to enforce compliance in every respect with this decree and to prevent evasion thereof.” The decree expressly was “without prejudice to the right of the United States, as provided in Section 5 (1) of the Federal Trade Commission Act, to prosecute suits to recover civil penalties for violations of the said modified order to cease and desist hereby affirmed, and without prejudice to the right of the Federal Trade Commission to initiate contempt proceedings for violations of this decree.” The reports of compliance were subsequently filed and accepted, and there the matter appears to have rested for a little upwards of four years.
On September 2, 1947, the Commission ordered additional and highly particularized reports to show continuing compliance with the decree. This was done without application to the court, was not authorized by any provision of its decree, and is not provided for in § 5 of the statute under which the Commission’s original cease and desist order had issued. The new order recited that it was issued on the Commission’s own motion pursuant to its published Rule of Practice No. XXVI and the authority granted by subsections (a) and (b) of § 6 of the Trade Commission Act. It ordered these and other parties restrained by the earlier decree to file within thirty days “additional reports showing in detail the manner and form in which they have been, and are now, complying with said modified order to cease and desist and said decree.” It demanded of each producer a “complete statement” of the “prices, terms, and conditions of sale of salt, together with books or compilations of freight rates used in calculating delivered prices, price lists and price announcements distributed, published or employed in marketing salt from and after January 1, 1944.” From the Salt Producers Association it required information as to its activities and services. The Association and some of the producers reported satisfactorily. These two respondents did not. Instead, each informed the Commission in general terms that it had complied with the decree in the manner previously reported, but that it doubted the Commission’s jurisdiction to require further reports and declined to supply the particulars demanded. Neither asked any hearing or made objection to the scope of the order.
The Commission next gave respondents notices asserting their default and calling attention to penalties provided in § 10 of the Act. Neither respondent asked any hearing on the notice of default. These suits were then commenced in the name of the United States in District Court under §§ 9 and 10 of the Trade Commission Act, asking mandatory injunctions commanding respondents to report as directed, together with judgment against each for $100 per day while default continued. Respondents answered. Both sides moved for summary judgments. The court found no dispute as to material facts and dismissed the complaints for want of jurisdiction. 80 F. Supp. 419. The Court of Appeals, by divided vote, affirmed. 174 F. 2d 703. We granted certiorari, 338 U. S. 857, because the case involved issues of some importance to enforcement of the Act and of court decrees under it and under other Acts which provide similar methods to enforce orders of administrative bodies.
The Government’s suits and the Commission’s order are challenged upon a variety of grounds, not all of which were considered by the Court of Appeals. They include contentions that (1) the order constitutes an interference with the decree and an invasion of the powers of the Court of Appeals; (2) the Commission’s Rule XXVI is ultra vires and violates the Federal Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. §§ 1001 et seq.; (3) the procedure is unauthorized by those sections of the Act on which it is based; (4) it is novel and arbitrary and violates the Fourth and Fifth Amendments to the Constitution. For reasons given, we reject each of these contentions.
I. Invasion of Court of Appeals Jurisdiction.
The respondents’ case and the decision below are rested heavily on this argument that the Commission is invading the province of the judiciary. The Court of Appeals held that the Commission’s order of September 2, 1947, represented an unauthorized attempt to enforce that court’s decree. It pointed out that the statute had made the court’s own jurisdiction of the proceeding “exclusive” and its own decree final. It considered that “every vestige of jurisdiction” over that subject was “firmly and exclusively lodged in [the] Court of Appeals.” It noted that it had required filing of only the original compliance reports, and that it had protected its jurisdiction by reserving power to enter further orders necessary to enforce compliance and prevent evasion. It thought that the effect of the Commission’s proceedings was to assert “such jurisdiction to reside elsewhere.”
It seems conceded, however, that some power or duty, independently of the decree, must still have resided in the Commission. Certainly entry of the court decree did not wholly relieve the Commission of responsibility for its enforcement. The decree recognized that. It left to the Commission the right and hence the responsibility “to initiate contempt proceedings for the violation of this decree.” This must have contemplated that the Commission could obtain accurate information from time to time on which to base a responsible conclusion that there was or was not cause for such a proceeding. The decree also required the original report showing the manner and form of each respondent’s compliance to be filed, not with the court but with the Commission. Presumably the Commission was expected to scrutinize it and, if insufficient on its face, to reject it and move the court to take notice of the default. And the duty likewise was left upon the Commission to move the court if any respondent made a false report. The duty would appear to be the same if a temporary compliance were truly reported but conduct resumed which would violate the decree. In addition, the Trade Commission has a continuing duty to prevent unfair methods of competition and unfair or deceptive acts or practices in commerce. That responsibility as to all within the coverage of the Act is not suspended or exhausted as to any violator whose guilt is once established.
If the Commission had petitioned the court itself to order additional reports of compliance, it could properly have been required to present some evidence of probable violation to overcome the “presumption of legality,” of innocence, and of obedience to the law which respondents here urge. Courts hesitate to alter or supplement their decrees except the need be proved as well as asserted. Evidence the Commission did not have; it had at most a suspicion, or let us say a curiosity as to whether respondents’ reported reformation in business methods was an abiding one.
Must the decree, after a single report of compliance, rest upon respondents’ honor unless evidence of a violation fortuitously comes to the Commission? May not the Commission, in view of its residual duty of enforcement, affirmatively satisfy itself that the decree is being observed? Whether this usurps the courts’ own function is, we think, answered by consideration of the fundamental relationship between the courts and administrative bodies.
The Trade Commission Act is one of several in which Congress, to make its policy effective, has relied upon the initiative of administrative officials and the flexibility of the administrative process. Its agencies are provided with staffs to institute proceedings and to follow up decrees and police their obedience. While that process at times is adversary, it also at times is inquisitorial. These agencies are expected to ascertain when and against whom proceedings should be set in motion and to take the lead in following through to effective results. It is expected that this combination of duty and power always will result in earnest and eager action but it is feared that it may sometimes result in harsh and overzealous action.
To protect against mistaken or arbitrary orders, judicial review is provided. Its function is dispassionate and disinterested adjudication, unmixed with any concern as to the success of either prosecution or defense. Courts are not expected to start wheels moving or to follow up judgments. Courts neither have, nor need, sleuths to dig up evidence, staffs to analyze reports, or personnel to prepare prosecutions for contempts. Indeed, while some situations force the judge to pass on contempt issues which he himself raises, it is to be regretted whenever a court in any sense must become prosecutor. Those occasions should not be needlessly multiplied by denying investigative and prosecutive powers to other lawful agencies.
The court in this case advisedly left it to the Commission to receive the report of compliance and to institute any contempt proceedings. This was in harmony with our system. When the process of adjudication is complete, all judgments are handed over to the litigant or executive officers, such as the sheriff or marshal, to execute. Steps which the litigant or executive department lawfully takes for their enforcement are a vindication rather than a usurpation of the court’s power. In the case before us, it is true that the Commission’s cease and desist order was merged in the court’s decree; but the court neither assumed to itself nor denied to the Commission that agency’s duty to inform itself and protect commerce against continued or renewed unlawful practice.
This case illustrates the difference between the judicial function and the function the Commission is attempting to perform. The respondents argue that since the Commission made no charge of violation either of the decree or the statute, it is engaged in a mere “fishing expedition” to see if it can turn up evidence of guilt. We will assume for the argument that this is so. Courts have often disapproved the employment of the judicial process in such an enterprise. Federal judicial power itself extends only to adjudication of cases and controversies and it is natural that its investigative powers should be jealously confined to these ends. The judicial subpoena power not only is subject to specific constitutional limitations, which also apply to administrative orders, such as those against self-incrimination, unreasonable search and seizure, and due process of law, but also is subject to those limitations inherent in the body that issues them because of the provisions of the Judiciary Article of the Constitution.
We must not disguise the fact that sometimes, especially early in the history of the federal administrative tribunal, the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing, and so it followed neither could anyone else. Administrative investigations fell before the colorful and nostalgic slogan “no fishing expeditions.” It must not be forgotten that the administrative process and its agencies are relative newcomers in the field of law and that it has taken and will continue to take experience and trial and error to fit this process into our system of judicature. More recent views have been more tolerant of it than those which underlay many older decisions. Compare Jones v. Securities & Exchange Comm’n, 298 U. S. 1, with United States v. Morgan, 307 U. S. 183, 191.
The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.
Of course, the Commission cannot intrude upon or usurp the court’s function of adjudication. The decree is always what the court makes it; the court’s jurisdiction to review is and remains exclusive, its judgment final. What the Commission has done, however, is not to modify but to follow up this decree. It has not asked this report in the name of the court, or in reliance upon judicial powers, but in reliance upon its own law-enforcing powers.
That Congress did not regard it as a judicial function to investigate compliance with court decrees, at least initially, is shown by its action as to other antitrust decrees. Section 6 (c) of the Act under consideration specifically authorizes the Commission, on its own initiative and without leave of court, to investigate compliance with final decrees in cases prosecuted by the Attorney General and not involving the Commission as a party. Congress obviously deemed it a function of the Commission, rather than of the courts, to probe compliance with such decrees, even when it had no part in obtaining them. It surely was not because of fear it would involve collision with the judicial function that Congress omitted express authorization for the Commission to follow up decrees in its own cases. Express grant of power would only seem necessary as to decrees in which the Commission had no other interest.
Whether the Commission has invaded any private right of respondents, we consider under later rubrics. Our only concern under the present heading is whether the Commission’s order infringes prerogatives of the court. We hold it does not.
II. Violation op the Administrative Procedure Act.
The Administrative Procedure Act was framed against a background of rapid expansion of the administrative process as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices. It created safeguards even narrower than the constitutional ones, against arbitrary official encroachment on private rights.
Thus § 3 (a) of the Act requires every agency to which it applies, which includes the Federal Trade Commission, to publish in the Federal Register certain statements of its rules, organization and procedure, “including the nature and requirements of all formal or informal procedures available,” and adds that, “No person shall in any manner be required to resort to organization or procedure not so published.” In addition § 6 (b) proscribes any requirement of a report or other investigative demand “in any manner or for any purpose except as authorized by law.”
Principally on the basis of these two sections respondents contend that the current order cannot be enforced except in violation of the Administrative Procedure Act. Have the respondents been ordered to comply with procedure of which they were not put on notice by publication in the Federal Register? And to the extent that the procedure had been defined and published, was it authorized by law?
The pertinent provisions of the Administrative Procedure Act became effective September 11, 1946. On December 11, 1946, the Federal Trade Commission published in the Federal Register its Rules of Practice, 11 Fed. Reg. 14233-14239. The Commission’s Rule XXVI, id., 14237, republished without change in 12 Fed. Reg. 5444, 5448, sets the time limit for filing initial reports of compliance with Commission orders and asserts the Commission’s right to require, within its sound discretion, the filing of further compliance reports thereafter. In § 7.12 of its Statement of Organization, Procedures, and Functions, 12 Fed. Reg. 5450, 5452, the Commission restated its right to require by order “such supplemental reports of compliance as it considers warranted,” and defined the contents of such a report.
We conclude that the Commission’s published Rule XXVI announced the right it claims in this case to demand of a party against whom an enforcement decree has been entered that it “file with the Commission, from time to time thereafter, further reports in writing, setting forth in detail the manner and form in which they are complying with said order....” Taken together with the Commission’s Statement of Organization, Procedures, and Functions, supra, if indeed not by itself, Rule XXVI amply met the requirements of § 3 (a) of the Administrative Procedure Act.
Respondents hardly challenge this conclusion. Theirs is the more subtle argument that requirement of supplemental reports following court enforcement of a Commission order is unauthorized by statute and ultra vires, so that no valid notice of Rule XXVI had been or could be given, as required by § 3 (a) of the Administrative Procedure Act. Also, it is said to be in direct violation of § 6 (b) of that Act. This leads to the question of statutory authority for the order to report, a question we must determine even apart from consideration of the Administrative Procedure Act. Accordingly we turn to the Federal Trade Commission Act itself to see whether it contains statutory authority for the Commission’s Rule XXVI, as well as for its order here sought to be enforced, issued, as it was, pursuant to the procedures proclaimed in that Rule. If we find such statutory authority, we must conclude that the objections under the Administrative Procedure Act are taken in vain.
III. Statutory Authority to Require Reports.
The Court of Appeals found the Commission to be without statutory authority to require additional reports as to compliance. Section 6 of the Federal Trade Commission Act, it thought, could not be invoked in connection with a decree sought and entered pursuant to § 5, which sections the court regarded as insulated from each other and directed to wholly different situations. Section 6, so it was held, authorized requirement only of “special reports” supplemental to “annual reports” and could not be authority for requiring special reports supplemental to a report of compliance required by court decree in a § 5 case.
At the root of this position lies the elaborate and plausible argument of respondents that §§ 5 and 6 of the Act set up self-sufficient, independent and exclusive procedures for dealing with different matters and that therefore neither section can be supported or aided by the other. Respondents also say that the present use of the asserted power is novel and unprecedented in Commission practice and introduces a new method of investigating compliance. Respondents are not without statements by the Commission or its officials, dicta from judicial opinions, views of text writers and facts of legislative history which give some support to this theory. But this Court never before has been called upon to deal consciously and squarely with the subject.
The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise. We know that unquestioned powers are sometimes unexercised from lack of funds, motives of expediency, or the competition of more immediately important concerns. We find no basis for holding that any power ever granted to the Trade Commission has been forfeited by nonuser.
The Commission’s organic Act, § 5, comprehensively provides substantive and procedural rules for checking unfair methods of competition. The procedure is complete from complaint and service of process through final order, court review, and enforcement proceedings to recover penalties which are not those here sued for. This entire subject of unfair competition, it is true, came into the bill late in its legislative history and dealt with a commercial evil quite different from the target of prior antitrust laws. It is to be noted, however, that although complete otherwise, this section confers no power to investigate this or any other matter. That power, without which all others would be vain, must be found in other sections of the Act. The Commission, for power to investigate compliance with a § 5 order, has turned to § 6, which authorizes it to require certain reports but is not expressly applicable to a § 5 case. Respondents say it might better have turned to § 9, which authorizes it to send investigators to examine their books, copy documents and issue subpoenas, and which is expressly applicable to § 5 proceedings.
Section 6, on which the Commission relies, adds, among other things and with exceptions not material, the power “to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce,... and its relation to other corporations and to individuals, associations, and partnerships.” It also authorizes the Commission “to require, by general or special orders, corporations engaged in commerce... to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective corporations filing such reports or answers in writing.”
To one informed of no fact apart from this text, it would appear to grant ample power to order the reports here in question. Respondents are in the class subject to inquiry, the call is for what appears to be a special report and the matter to be reported would seem to be as to business conduct and practices about which the Commission is authorized to inquire. But respondents advance several arguments to persuade us that this seemingly comprehensive power is subject to limitations not evident in the text.
Respondents derive from legislative history their contention that Congress divided the duties and powers of the Commission into two separate categories, one in § 6 merely re-enacting the old powers of investigation and publicity in antitrust matters — “essentially a mere continuance of the former powers of the old Bureau of Corporations.” The other was a new unfair-competition power, self-contained and sealed off in § 5. It is argued that the reports set forth in § 6 can be required only “in support of general economic surveys and not in aid of enforcement proceedings under... section 5.”
While we find a good deal which would warrant our concluding that § 6 was framed with the pre-existing antitrust laws in mind, and in the expectation that the information procured would be chiefly useful in reports to the President, the Congress, or the Attorney General, we find nothing that would deny its use for any purpose within the duties of the Commission, including a § 5 proceeding. A construction of such an Act that would allow information to be obtained for only a part of a Commission’s functions and would require the Commission to pursue the rest of its duties as if the information did not exist would be unusual, to say the least. The information was such as the Commission was authorized to obtain and we think it could be required for use in determining whether there had been proper compliance with the court’s decree in a § 5 case.
It is argued, however, and the court below has agreed, that the “special report” authorized by statute does not embrace the one here asked as to the method of compliance with the decree. We find nothing in the legislative history that would justify so limiting the meaning of special reports, or holding that the report here asked is not such a one. The very House Committee Report (H. R. Rep. No. 533, 63d Cong., 2d Sess.) which the court below thought sustained respondents’ contention, we read in its context to support the Commission. kSpeaking of what became this section, the Report said, “The commission, under this section, may also require such special reports as it may deem advisable. By this means, if the ordinary data furnished by a corporation in its annual reports does not adequately disclose its organization, financial condition, business practices, or relation to other corporations, there can be obtained by a special report such additional information as the commission may deem necessary.” Id., at p. 4. An annual report of a corporation is a recurrent and relatively standardized affair. The special report was used to enable the Commission to elicit any information beyond the ordinary data of a routine annual report. If the report asked here is not a special report, we would be hard put to define one.
Nor does the fact that § 5 applies to individuals, partnerships, and corporations, while §§ 6 (b) and 10 apply only to corporations, lead us to conclude that the Act must not be read as an integrated whole. The argument that, because the reporting and penalty provisions of the latter extend only to corporations they must not be invoked to implement, as against corporations, a § 5 proceeding which contemplates action against persons and partnerships as well, would have force were there not sound reason for more drastic powers to compel disclosure from corporations than from natural persons. What the former may be compelled to disclose without objection the latter may withhold, or reveal only after exacting the price of immunity from prosecution. Corporations not only have no constitutional immunity from self-incrimination, but the disparity between artificial and natural persons is so significant that differing treatment can rarely be urged as an objection to a particular construction of a statute. Moreover, Congress may have considered that the volume or proportion of unincorporated business or the relatively small size of individually owned enterprises, or even a lesser capacity and disposition to resist made it possible to omit persons from duties and penalties imposed on artificial combinations of capital.
We conclude that the authority of the Commission under § 6 to require special reports of corporations includes special reports of the manner in which they are complying with decrees enforcing § 5 cease and desist orders.
IV. Rights Under Fourth and Fifth Amendments.
The Commission’s order is criticized upon grounds that the order transgresses the Fourth Amendment’s proscription of unreasonable searches and seizures and the Fifth Amendment’s due process of law clause.
It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186. Although the “right to be let alone—the most comprehensive of rights and the right most valued by civilized men,” Brandeis, J., dissenting in Olmstead v. United States, 277 U. S. 438, 471, at 478, is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, Boyd v. United States, 116 U. S. 616, Hale v. Henkel, 201 U. S. 43, 70, neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. Hale v. Henkel, supra; United States v. White, 322 U. S. 694.
While they may and should have protection from unlawful demands made in the name of public investigation, cf. Federal Trade Comm’n v. American Tobacco Co., 264 U. S. 298, corporations can claim no equality with individuals in the enjoyment of a right to privacy. Cf. United States v. White, supra. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. Cf. Graham v. Brotherhood of Locomotive Firemen, 338 U. S. 232; Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210; Wickard v. Filburn, 317 U. S. 111, at 129. Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.
Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. Federal Trade Comm’n v. American Tobacco Co., supra. But it is sufficient if the inquiry is within the authority of the agency, the demand is not tqo indefinite and the information sought is reasonably relevant. “The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 208. Nothing on the face of the Commission’s order transgressed these bounds.
Nor do we consider whether, for reasons peculiar to these cases not apparent on the face of the orders, these limits are transgressed. Such questions are not presented by the procedure followed by respondents. Before the courts will hold an order seeking information reports to be arbitrarily excessive, they may expect the supplicant to have made reasonable efforts before the Commission itself to obtain reasonable conditions. Neither respondent raised objection to the order’s sweep, nor asked any modification, clarification or interpretation of it. Both challenged, instead, power to issue it. Their position was that the Commission had no more authority to issue a reasonable order than an unreasonable one. That, too, was the defense to this action in the court below.
Of course, there are limits to what, in the name of reports, the Commission may demand. Just what these limits are we do not attempt to define in the abstract. But it is safe to say that they would stop the Commission considerably short of the extravagant example used by one of the respondents of what it fears if we sustain this order — that the Commission may require reports from automobile companies which include filing automobiles. In this case we doubt that we should read the order as respondents ask to require shipment of extensive files or gifts of expensive books. This is not a necessary reading certainly, and other parties to the decree seem to have been able to satisfy its requirements.
If respondents had objected to the terms of the order, they would have presented or at least offered to present evidence concerning any records required and the cost of their books, matters which now rest on mere assertions in their briefs. The Commission would have had opportunity to disclaim any inadvertent excesses or to justify their demands in the record. We think these respondents could have obtained any reasonable modifications necessary, but, if not, at least could have made a record that would convince us of the measure of their grievance rather than ask us to assume it.
It is argued that if we sustain this use of § 6, the power will be unconfined and its arbitrary exercise subject to no judicial review or control, unless and until the Government brings suit, as here, for penalties. The Government, it is said, may delay such action while ruinous penalties accumulate and defendant runs the risk that his defenses will not be sustained. However, we are not prepared to say that courts would be powerless if after an effort to clarify or modify such an order it still is considered to be so arbitrary as to be unlawful and the Government pursues a policy of accumulating penalties while avoiding a judicial test by refusing to bring action to recover them. Since we do not think this record presents the question, we do not undertake to determine whether the Declaratory Judgment Act, the Administrative Procedure Act, or general equitable powers of the courts would afford a remedy if there were shown to be a wrong, or what the consequences would be if no chance is given for a test of reasonable objections to such an order. Cf. Oklahoma Operating Co. v. Love, 252 U. S. 331. It is enough to say that, in upholding this order upon this record, we are not to be understood as holding such orders exempt from judicial examination or as extending a license to exact as reports what would not reasonably be comprehended within that term as used by Congress in the context of this Act.
The judgment accordingly is
Reversed.
Mr.
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_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Bryon E. CURTNER, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.
No. 78-1408.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 19, 1978.
Decided Oct. 25, 1978.
Phillip J. Barkett, Jr. of Dempster, Fuchs & Barkett, Sikeston, Mo., filed brief for appellant.
Robert D. Kingsland, U. S. Atty. and Bruce D. White, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
PER CURIAM.
Byron E. Curtner was denied social security disability benefits by the Secretary of Health, Education and Welfare. He asked the United States District Court for the Eastern District of Missouri to review the determination. On review the District Court affirmed the determination of the Secretary. Curtner appeals the decision of the District Court. We affirm.
Curtner raises two issues on this appeal. The first is whether the underlined portions of the following statement by an examining physician in a letter-report to the Secretary constitutes substantial evidence under Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).
NEUROLOGIC EXAMINATION: The patient was a ruddy faced, neatly groomed, graying haired WM who in my consultation room was observed to walk slowly, hesitantly and with slow measured painful steps. As the patient was observed leaving the office and walking: down the walk I noted him to have a normal stride with a brisk gait, no hesitancy of movement and normal arm movement while walking. The patient was acyanotic and nonicteric. The carotid pulses were present bilaterally without bruit and no bruit could be heard over the subclavians. Blood pressure, RA sitting, was 140/90. The pedal pulses were present. The patient was right handed. Gait during the examination was characterized by a limping and listing from side to side. He walked slowly hesitantly and painfully. He could do tandem walking adequately and Romberg’s sign was absent. His gait outside mv office, however. was as noted above and was characterized by a normal brisk stride with no hesitation. Cranial nerves 2 through 12 were intact. There was no nystagmus. Muscle tone was good and there was no evidence of weakness, atrophy, spasticity, flaccidity, or fasciculations. There were no tremors. There were no pathologic reflexes. Proprioception, vibration, pain, touch and stereognosis were all intact. Finger to finger, finger to nose and heel to shin were done rapidly and well. There was good flexion of the hips on the heel to shin maneuver bilaterally. There was no drift. The deep tendon reflexes were slightly hypoactive (1 + ) but symmetrical. The plantars were flexor. (Emphasis added.)
In Richardson the Supreme Court held that:
[A] written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.
Richardson v. Perales, supra, at 402, 91 S.Ct. at 1428.
Curtner recognizes that we are bound by Richardson, but contends that that part of the physician’s report which involves the doctor’s observation that Curtner walked with a “normal stride with a brisk gait, no hesitancy of movement and normal arm movement” does not constitute substantial evidence under Richardson because it was not part of the examination in the doctor’s office. While we would be reluctant to extend Richardson beyond the perimeters set by the Supreme Court, we do not find such an extension here. The doctor’s comments were closely and intimately related to the examination in the office and were based on observations made by the doctor with respect to Curtner’s movements in the office and as he left the office. We would also emphasize, as did the Supreme Court, that the claimant had an opportunity under 20 C.F.R. § 404.926 to request sub-poenaes for the examining physician and to cross-examine the physician when he was subpoenaed.
The second issue raised by Curtner is that the vocational expert’s testimony with respect to job opportunities for persons of Mr. Curtner’s age, experience, education, training and general physical condition was based exclusively on double hearsay in that it was based upon publications of the State Employment Office, the United States Government and various business publications. The record belies this contention. The vocational expert specifically testified that he also relied on personal visits to job sites and on conversations with people doing various types of work at the job sites in reaching his conclusion. Under these circumstances, we need not decide the question posed by Curtner.
We affirm the judgment of the District Court.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_jurisdiction
|
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 determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Plaintiff-Appellee, v. Isadore VERLINSKY, a/k/a Isadore Verlin, and Murray Verlinsky, a/k/a Murray Verlin, Defendants-Appellants.
No. 71-2802
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 8, 1972.
Rehearing Denied May 31, 1972.
George W. Ericksen, Maefarlane, Ferguson, Allison & Kelly, Tampa, Fla., for defendants-appellants.
John L. Briggs, U. S. Atty., Bernard H. Dempsey, Jr., Tampa, Fla., Francis Dicello, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., Scott P. Crampton, Gilbert E, Andrews, Asst. At-tys. Gen., Fred B. Ugast, Acting Asst. Atty. Gen., Crombie J. D. Garrett, Gordon S. Gilman, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit, Judges.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).
CLARK, Circuit Judge:
The alloyed tax-bankruptcy issue in this appeal requires that we construe a very narrow, highly technical, seldom invoked, slightly ambiguous — but here hotly contested — section of the Internal Revenue Code. Our interpretation constricts the reach of the aphorism of olde that “[t]he King’s debtor dying, the King shall first be paid,” by holding that before the sovereign claimed its privilege the statute of limitations had run. Indeed, the parties before us are agreed that but for the possible application of the tolling provisions of the Code section at issue in this case, the sovereign has no right at all to receive payment from these debtor-taxpayers of an amount admittedly owed.
The facts are not in dispute. We treat with them only briefly for most are of no aid to our disposition of the case. The United States brought an action in the court below to reduce to judgment four separate tax assessments previously made against the taxpayers (Isadore Verlinsky a/k/a Isadore Verlin, and Murray Verlinsky a/k/a Murray Verlin). The taxpayers admitted that the assessments had been made and were true and correct with respect to dates and amounts assessed; that the alleged unpaid balance, plus interest, was due and owing; but contended that it was all barred by the six-year statute of limitations. 26 U.S.C.A. §§ 6501, 6502. The government replied that the addition of four extensions agreed to by the taxpayers, 26 U.S.C.A. § 6502(a) (2), along with a period during which the taxpayers’ assets had been under the control of a bankruptcy court, 26 U.S.C. A. § 6503(b), together served to prolong the otherwise expired statute and brought the filing of the collection suit within the six-year limit. On rebuttal, the taxpayers further sharpened the controversy between the parties by conceding the four extensions, and thereby circumscribed the single issue now before this court to this: within the meaning of § 6503(b), for what portion of the period during which a bankruptcy proceeding continues can it be said that assets of a taxpayer, who is eventually discharged as a bankrupt, are under the control or custody of the bankruptcy court.
From the filing of the petition in bankruptcy, to the discharging of the trustee and closing of the estate, approximately two and one-half years elapsed. Due solely to the fortuitous timing of those proceedings, as they related to the running of the statute, the parties are in complete agreement that: if § 6503(b) should operate to toll the statute only until the discharge of the bankrupt, then it had run on the date suit was filed; if, however, the statute should remain tolled by § 6503(b) as late as the final closing of the estate, then none of the assessments were barred and the entire 23,125.85 dollars sought was payable. The district judge concluded that the latter interpretation was correct, and awarded summary judgment for the United States. We reverse.
Other than the Malkin decision, supra n. 2, which dealt with precisely the same question and facts that are now before us, there have been few cases dealing with this section of the Code, and though both parties attempt to rely on them, we find none to be helpful. Doubtless though, Chief Judge Carter foresaw our question when in his Mc-Cann decision he observed that “[t]he section leaves much to be desired in definiteness and clarity, and various situations may be spelled out in which real problems would arise.” This is what we have here.
Approaching, then, what is a novel question for this circuit, we are convinced that we should be first guided by the purpose Congress intended for § 6503(b), as that purpose is expressed in the legislative history. “The statute generally is suspended where assets are in the control or custody of a court because during this time they are not subject to administration collection procedures.” Quite obviously, the reason for the rule is that it would be unfair to allow the statute to run against the government’s right to enforce a tax lien at a time when, even if the government did bring suit, it couldn’t collect because it couldn’t “get at” the taxpayer’s assets. Other suspensions provided for in § 6503 are similarly designed. For example, the statute is tolled during any period the Secretary is prohibited from collecting by levy or proceeding in court, § 6503(a) (1), and likewise during any period that the taxpayer leaves the country for more than six months. § 6503(c).
Directly put, we must decide at what point during the bankruptcy proceedings did assets which once belonged to the taxpayer cease to be his assets; for at that moment, all assets then belonging to the taxpayer would be subject to collection by the government, and the government would again be charged with the responsibility of pursuing that collection. We hold that that moment occurred when the taxpayer was discharged as a bankrupt. For upon discharge, the taxpayer gave up all interest in his erstwhile assets (title to which had actually passed to the trustee the day the petition was filed, 11 U.S.C.A. § 110(a)), and did so in exchange for release from all save non-dischargeable debts. 11 U.S.C.A. § 1(15). That day, the taxpayer became a new economic person, entitled to retain any non-bankruptcy assets he then held and such other assets as he thereafter could accumulate, without interference from the bankruptcy court. As importantly, no later than that day, the taxpayers here were subject to assessment, suit, levy and execution for any debts not discharged, which included the tax assessments sought to be enforced by this action. Insofar as § 6503(b) relates to a bankruptcy proceeding, we refuse to interpret it in a fashion that would delay the hour when a man could finally divorce himself from his former holdings and debts. To do so would undermine the very purpose and policies of the Bankruptcy Act itself and jeopardize this circuit’s commitment to letting the bankrupt “start afresh.” Menier v. United States, 5th Cir., 405 F.2d 245, 249 (1968). We conclude that if the King wished to be paid, first or otherwise, then beginning on the day of discharge he had the obligation to bestir himself; for that is the day, economically speaking, the King’s debtor died.
Though this settles the issue, we feel compelled to make specific wherein we disagree with the Malkin decision, a carefully considered opinion which the court below endorsed. The Malkin court interpreted § 6503(b) in light of another section of the code, 26 U.S.C.A. § 6873(a).
The Judge reasoned that:
Inasmuch as the government is authorized to present its claim for adjudication to the Bankruptcy Court under 1954 IRC § 6871 and is authorized under 1954 IRC § 6873 to collect the portion of the taxes allowed in such proceeding ‘after the termination of such proceeding,’ it would appear a reasonable construction to hold that the entire term of the bankruptcy proceeding is excluded from the limiting period for suit. In a statutory sense the assets of the taxpayer are ‘in the control or custody of the court’ from the date the petition is filed to the date the referee signs the order closing the estate. United States v. Malkin, supra 317 F.Supp. at 616, n. 9.
We cannot accept that construction of § 6503(b) for two reasons. First, the government in this case has not contended, and we can find no evidence in the record to show, that it had presented a claim for these taxes to the bankruptcy court. Failing in its burden of proving that it was thus prevented from pursuing payment from the taxpayer until “after the termination of such proceeding,” it cannot now claim the protection of any relief § 6873 might otherwise afford. Second, even if the government had presented these claims to the bankruptcy court and was thereby precluded from demanding payment of unpaid claims until the proceedings had finally terminated, that would not persuade us to find that the taxpayer’s assets were under the control of that court until that time. Though in that instance § 6503(b) would not suspend the running of the statute any longer than it did in the actual case, § 6503(a) (1), previously mentioned, would so do. For that section specifically provides that there will be a suspension of the running of the statute for any period “during which the Secretary or his delegate is prohibited from making the assessment or from collecting by levy or a proceeding in court . . . and for 60 days thereafter.” However, finding that §§ 6873 and 6503(a) (1) are completely inapplicable to the case at bar, we decide that”] the statute began to run again from the I date the taxpayers were discharged in bankruptcy. The parties are agreed that this determination bars the suit; therefore the judgment below must be
Reversed.
. Magna Carta, 1225, 9 Hen. 3, c. 18, cited in Plumb, Federal Tax Liens and Priorities in Bankruptcy — Recent Developments, 43 Ref.J. 37 (1969).
. For a fully developed presentation of the facts, see United States v. Malkin, 317 F.Supp. 612 (E.D.N.Y.1970), a case dealing with precisely the same events and issues as the present case.
. The complete text of § 6503(b) reads:
(b) Assets of taxpayers in control or custody of court. — -The period of limitations on collection after assessment pre-cribed in section 6502 shall be suspended for the period the assets of the taxpayer are in the control or custody of the court in any proceeding before any court of the United States or of any State or of the District of Columbia, and for 6 months thereafter.
. See United States v. McCann, 259 F. Supp. 632 (S.D.Cal.1966); United States v. Cranor, 253 F.Supp. 600 (S.D.Ind. 1966).
. S.Rep.No. 1708, 89th Cong., 2nd Sess. 24-25 (1966).
. It is true that upon the completion of administration and distribution of the bankrupt’s estate, should there be any residue remaining it would be restored to the bankrupt for him to deal with as he pleases. 4A Collier on Bankruptcy, ¶ 70.07, at 94 (14th ed. 1971). However, such a remote possibility, which did not come to fruition in the case at bar, is not sufficient to upset our judgment that any such hypothetical residue ceased to , be “the taxpayer’s assets” on the day of discharge. From the day of discharge forward, all assets before the bankruptcy court were held in trust for the creditors of the taxpayer, and for the satisfaction of administrative costs. None of them belonged any longer to the taxpayer; they were all required of him as the price of his new economic freedom. In the unlikely event that he might later regain any portion of them, that portion would represent but an unexpected dividend of his bargain, and a newly-acquired asset.
. That section provides :
Any portion of a claim for taxes allowed in a receivership proceeding under the Bankruptcy Act which is unpaid shall be paid by the taxpayer upon notice and demand from the Secretary or his delegate after the termination of such proceeding.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Elsie W. RUDISILL and Coal, Feed and Lumber Company, Inc., Appellants, v. SOUTHERN RAILWAY COMPANY, Appellee.
No. 76-1552.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 9, 1976.
Decided Jan. 17, 1977.
James P. Erwin, Jr., Asheville, N. C. (McGuire, Wood, Erwin & Crow, Asheville, N. C., on brief), for appellants.
Robert F. Orr, Asheville, N. C. (Harold K. Bennett, Asheville, N. C., on brief), for appellee.
Before CLARK, Associate Justice, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.
Tom C. Clark, Associate Justice, United States Supreme Court, Ret., sitting by designation.
PER CURIAM:
The only issue on this appeal is whether Southern Railway Company (Southern) is a citizen of North Carolina for the purposes of diversity jurisdiction under 28 U.S.C. § 1332(c).
The action was originally instituted in the Superior Court of Madison County, North Carolina, to recover damages for injury to the plaintiffs’ property allegedly resulting from the derailment of a Southern freight train. Southern removed the case to the United States District Court for the Western District of North Carolina pursuant to 28 U.S.C. § 1441, and thereafter the plaintiffs moved to remand upon the ground that Southern is a North Carolina corporation and therefore does not meet the diversity requirements.
Southern was originally incorporated in 1894 in the State of Virginia and has its principal place of business in that state. Shortly after its incorporation Southern purchased under a foreclosure sale all of the property and franchises of the Western North Carolina Railroad Company (Western), a North Carolina corporation. Sections 697 and 698 of Chapter 16 of the North Carolina Code of 1883, which were in effect at the time of the purchase, provided that the old corporation (Western) should ipso facto be dissolved, and that the purchaser should forthwith be a new corporation succeeding to all of the rights, privileges and duties of the former corporation. Southern took no affirmative steps to seek or file articles of incorporation in North Carolina until 1899. In that year the North Carolina General Assembly enacted Chapter 62, Public Acts of 1899, which required that any corporation desiring to own property or carry on business within the state “become a domestic corporation of the State of North Carolina” by filing a copy of its charter and by-laws with the secretary of state and taking certain other steps delineated in the statute. Southern filed the necessary documents with the secretary of state and otherwise complied with the statutory requirements.
In urging their motion to remand, the plaintiffs contended that Southern became a domestic corporation in North Carolina in 1899. Alternatively, they argued that since the derailment occurred on that portion of the line once owned and operated by Western, for the purposes of this particular action Southern is a domestic corporation of North Carolina by virtue of the statutory provisions of the Code of 1883. The district judge carefully reviewed the cases construing these venerable statutes and, relying primarily upon Julian v. Central Trust Company, 193 U.S. 93, 24 S.Ct. 399, 48 L.Ed. 629 (1904), and Southern Railway Company v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078 (1903), concluded that neither the compulsory incorporation in 1899, nor the operation of the 1883 statutes defeated Southern’s diversity status. Accordingly, he denied the motion to remand. We agree with the conclusions of the district judge and affirm upon his opinion. Rudisill et al. v. Southern Railway Company, 424 F.Supp. 1102 (W.D.N.C., 1976).
AFFIRMED.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appnatpr
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Liberi P. BERARDI et al., Plaintiffs-Appellants, v. The PURE OIL CORPORATION et al., Defendants-Appellees.
No. 71-1611.
United States Court of Appeals, Sixth Circuit.
March 14, 1972.
Jack Schulman, Cleveland, Ohio, for plaintiff s-appellants; C. D. Lambros, Cleveland, Ohio, on brief.
Dennis D. Grant, Columbus, Ohio, for defendants-appellees; Bricker, Evatt, Barton & Eckler, Columbus, Ohio, John H. Gherlein and Daniel W. Hammer, Cleveland, Ohio, on brief.
Before CLARK, Associate Justice, and McCREE and MILLER, Circuit Judges.
Tlie Honorable Tom O. Clark, Associate Justice of the United States Supreme Court, Retired, sitting by designation.
PER CURIAM.
Appellants filed a complaint in the District Court that purported to assert three “causes of action.” The court dismissed the complaint for failure to state a claim upon which relief could be granted but allowed appellants leave to amend to cure defects that the court specifically noted. Appellants then filed an amended complaint, which the court again dismissed for the reason that appellants had not complied sufficiently with the court’s orders and thus had not stated claims upon which relief could be granted. Pursuant to the court’s directions, appellants filed a second amended complaint. This time the court found that appellants’ first “cause of action” did not state a claim upon which relief could be granted and that appellants’ second “cause of action” was defective in the manner twice previously specified. Accordingly, the court dismissed the complaint with prejudice for failure to state claims upon which relief could be granted and for failure to comply with the court’s prior orders. This appeal followed.
Appellants’ counsel has conceded in argument upon this appeal that the first “cause of action” did not state a claim upon which relief could be granted, and we therefore affirm the judgment of the District Court with respect to this part of the complaint. With respect to the remainder of the complaint, we are hard-pressed to find an abuse of discretion in the court’s dismissal, and do so only because we believe that the interests of justice require that appellants be afforded one more opportunity to conform their pleadings to the court’s orders. Therefore, with respect to the first “cause of action” stated in the complaint, the judgment of the District Court is affirmed, and with respect to the remainder of the complaint, the judgment of the District Court is reversed and the case is remanded with directions to allow appellants leave to amend their complaint to conform specifically to the previous orders of the District Court and to such further requirements as the court in its discretion may direct.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
WAUGH et al. v. SUBURBAN CLUB GINGER ALE CO. et al.
No. 9575.
United States Court of Appeals District of Columbia.
Argued Jan. 21, 1948.
Decided April 26, 1948.
Mr. Leonard S. Melrod, of Washington, D. C., for appellants.
Mr. Wilbert Mclnerney, of Washington, D. C., for appellees.
Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate Justices.
EDGERTON, Associate Justice.
The plaintiff appeals from a judgment on a directed verdict for the defendant in an action for personal injuries. Appellant, a boy of 13 or 14, was riding a bicycle that collided with appellee’s truck. Tbe truck had been standing at a street intersection, only about five feet from the right-hand curb, waiting for a green light. Appellant had ridden up from behind, entered the-space between the standing truck and the curb, and stopped to wait beside the truck’s right rear wheel. He was riding “next to the curb” but the space was so narrow that he was also close to the truck; in fact he put his left hand on it. When the light changed the truck started. Appellant then put his hand back on the handlebar and started his bicycle. The collision occurred, in the street intersection, because (1) the truck made a right turn from its position near the right curb and (2) appellant, from' his position even nearer the right curb, did not make a right turn but went straight ahead into the intersection. When he saw the truck turning he attempted to turn, but too late.
Appellant’s theory is that “the driver of the truck was negligent in making a sharp, sudden turn, in failing to keep a proper lookout, and failing to give a warning or signal of his intention to make a right turn.”'
Ordinarily a vehicle about to make a right turn is not and need not be less-than five feet from the curb. As the truck driver expressed it, “the reason he wasn’t exactly up against the curb was that if he was, he would not have been able to proceed for the right hand turn — he would have run over the curb.” No doubt there was, as appellant said, “space enough to the right of the truck that he could drive his-bicycle in without any trouble.” But getting out of such a space without trouble is-another matter. For a bicyclist to put himself in a position so near a curb on the right, a truck on the left, and an intersection, ahead, and then ride straight forward without waiting to see whether the truck, which, may properly turn right, will do so, is plainly dangerous. Such a course is not so common that reasonable drivers anticipate it, and devise and take special precautions-against it, before making a “sharp, sudden”' turn to the right. In other words appellee’s. driver was not negligent m making the turn without special precautions.
If the driver failed to keep a proper lookout and to give a proper signal, he negligently endangered anyone in a position to benefit by those ordinary precautions. But appellant was not in a position to benefit by them. There is no evidence that a reasonable and proper lookout would have disclosed to the driver of the truck the fact that a boy had ridden a bicycle into the narrow space between the right rear wheel of the truck and the curb. There is no evidence that a reasonable and proper signal, by hand or light or both, of the driver’s intention to turn, could have been seen by a person in appellant’s position. Therefore the precautions the driver is said to have omitted would not have enabled either him or the appellant to avoid the accident. It follows that appellee is not responsible for the accident. The reason may be expressed in terms either of negligence or of causation. The driver’s alleged omissions (a) added nothing to appellant’s danger and therefore were not negligent toward appellant, and (b) did not cause his injuries.
In these circumstances the driver’s possible incompetence to drive is immaterial, and it is therefore immaterial that he had no District of Columbia license. Moreover, he had a North Carolina license. Appellant rightly makes no point of the fact that some trucks have signaling devices visible from the relative position in which appellant was. For there is no evidence that appellee’s truck had such a device or that operating it without one was negligent.
The court’s action in directing a verdict for appellee was therefore correct. We need not consider whether a boy of appellant’s age and capacity was, as an adult would have been, plainly negligent in staking his safety on the chance that a truck standing near a right-hand curb would not make a right turn at an intersection.
Affirmed.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
FRUEHAUF TRAILER CO. v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD v. FRUEHAUF TRAILER CO.
Nos. 7291, 7297.
Circuit Court of Appeals, Sixth Circuit.
June 30, 1936.
Victor W. Klein, of Detroit, Mich. (Thomas G. Long, Rockwell T. Gust, and John C. Bills, all of Detroit, Mich., on the brief), for Fruehauf Trailer.
Stanley Reed and Charles Fahy, both of Washington, D. C. (Thomas I. Emerson, Warner W. Gardner, Charles A. Horsky, Philip Levy, and Garnet L. Patterson, all of Washington, D. C., on the brief), for National Labor Relations Board.
Before MOORMAN, HICKS, and SIMONS, Circuit Judges.
Writ of certiorari granted 57 S. Ct. 119, 81 L. Ed. —.
PER CURIAM.
The National Labor Relations Board has filed a petition in this court to enforce an order issued by it in proceedings which it instituted against the Fruehauf Trailer Company. The order directs the trailer company to cease and desist from discharging or threatening to discharge any of its employees because of their activities in connection with the United Automobile Workers Federal Labor Union No. 19,375, to cease discouraging its employees from becoming members of that union, to offer to certain of its former employees immediate and full reinstatement in their former positions without prejudice to their seniority rights, to make such employees whole for.any losses of pay that they have suffered by reason of their discharge by paying them what they would have earned as wages from the dates of their discharges, and to post notices throughout its Detroit plant, in conspicuous places, stating that it has ceased, and desisted from discharging or threatening to discharge its employees for joining the United Automobile Workers Federal Labor Union No. 19,375. The Fruehauf Trailer Company has filed its petition seeking a review of the order and praying that the court set it aside. The record of the proceeding be-, fore the Labor Board has been filed and the two petitions have been heard together in this court.
The Fruehauf Trailer Company is a corporation organized and existing under the laws of the state of Michigan and is engaged in the manufacture, assembly, and sale of automobile trailers at its plant in Detroit, Mich. The material and parts used in the manufacture and production of the trailers are shipped to the plant. After the trailers are manufactured, many of them are shipped to 'other states for sale and use. The order in question undertakes to regulate and control the trailer company’s relations and dealings with its employees engaged in the production and manufacture of trailers at the company’s plant in Detroit and does not directly affect any of the activities of the trailer company in the purchasing and transporting to its plant of materials and parts for the manufacture and production of trailers or in the shipping or selling of such trailers after they are manufactured. It was issued under the authority of the Act of Congress of July 5, 1935, known as the National Labor Relations Act (29 U.S.C.A. § 151 et seq.). The authority for the act is claimed under the commerce clause of the Constitution. ' Since the order is directed to the control and regulation of the relations between the trailer company and its employees in respect to their activities in the manufacture and production of trailers and does not directly affect any phase of any interstate commerce in which the trailer company may be engaged, and since, under the ruling of Carter v. Carter Coal Company, 56 S.Ct. 855, 80 L.Ed. 1160 (decided May 18, 1936), the Congress has no authority or power to regulate or control such relations between
the trailer company and its employees, the National Labor Relations Board was without authority to issue the order. See National Labor Relations Board v. Jones & Laughlin Steel Corporation (C.C.A.5) 83 F.(2d) 998, decided June 15, 1936.
The petition of the Board is accordingly dismissed and the order is set aside.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_circuit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Flozell JONES, Administrator of the Estate of Dennis Jones, Appellant, v. Keith MARSHALL, Appellee.
No. 55, Docket 74-2545.
United States Court of Appeals, Second Circuit.
Argued Sept. 3, 1975.
Decided Nov. 24, 1975.
Louis I. Parley, West Hartford, Conn. (Bruce C. Mayor, Hartford, Conn., on the brief), for appellant.
Robert Y. Pelgrift, Hartford, Conn., for appellee.
Before SMITH, MANSFIELD and OAKES, Circuit Judges.
OAKES, Circuit Judge:
This appeal presents the question whether a civil rights action lies, under 42 U.S.C. § 1983, against a police officer who, in the course of his duty, shoots and kills a person who has committed a felony and is trying to escape arrest. The crime involved here — auto theft— did not involve conduct threatening use of deadly force; nor was there, at the time of the shooting, substantial risk that the person fleeing arrest would cause death or serious bodily harm to anyone if his apprehension were delayed. The United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, granted the defendant police officer’s motion for summary judgment, holding that the Connecticut common law rule as stated in Martyn v. Donlin, 151 Conn. 402, 198 A.2d 700 (1964), affords a privilege, in the circumstances of this case, to an officer using deadly force who reasonably believes such force is necessary to effect an arrest for a felony. Judge Blumenfeld ruled that since the Connecticut privilege is not unconstitutional, it affords a defense to the § 1983 action for deprivation of the fleeing persons’s life without due process of law. 383 F.Supp. 358 (D.Conn.1974). We affirm.
The parties have stipulated the following facts. On August 29, 1969, Officer Marshall of the West Hartford Police Department was cruising in his patrol car in the ordinary course of his duties. While on patrol he observed a Cadillac automobile occupied by three Negro males, including the appellant’s decedent, Dennis Jones, traveling in the vicinity of the Hartford Golf Club. Through radio contact with headquarters, Marshall received the information that the Cadillac had been reported as stolen, so he began to follow it as it drove through the Golf Club and adjacent streets. Both cars proceeded for several blocks, neither exceeding 35 to 40 miles per hour nor violating any traffic regulations. While following the car Officer Marshall did not activate his siren or warning light or make any attempt to cause the car to come to a stop. He was then informed over his radio that assistance from the Hartford Police Department was on the way.
Evidently the individuals in the Cadillac became aware that they were being followed because after circling back onto Mark Twain Drive from Dillon Road, they accelerated to about 80 miles per hour and drove north on Mark Twain Drive. After traveling several blocks at that speed the car reached the end of the Mark Twain Extension and skidded to a halt. Officer Marshall, who had followed, also came to a sliding stop, and the braking of both cars created a large cloud of dust. The officer alit from his cruiser with his weapon drawn. Since the occupants of the car were not immediately visible he climbed to the top of a nearby embankment. At that point he observed two men running across an open field and called to them to halt. They momentarily turned to face him, but then turned and began to run away toward a nearby wooded area. Without firing a warning shot or attempting any further means of apprehension, Officer Marshall fired his gun at Dennis Jones, who was then about 125 feet away across rough terrain which contained a gully and was covered with bushes and underbrush. The shot was aimed at the decedent’s leg, but struck him in the left buttock, causing internal injuries which resulted in his death. It is stipulated that neither Dennis Jones nor the other two occupants of the car, all of whom were minors approximately 16 years old, were armed or had specifically threatened physical injury in any manner to Officer Marshall or anyone else. It is also stipulated that the automobile pursuit did not endanger any other individual than the occupants, although had the chase continued obviously it might have.
It was agreed by the parties that the law in Connecticut at the time of the shooting in this case was that theft of a motor vehicle was a felony offense, Conn.Gen.Stat. § 53a — 119, but that joyriding was only a misdemeanor, Conn. Gen.Stat. § 14 — 229 (use without owner’s permission). The common law rule in Connecticut is that an arresting officer may use such force as he reasonably believes to be necessary under all of the circumstances to effect a legal arrest and to prevent an escape. The use of force likely to cause death, however, is privileged only if the officer reasonably believes that a felony has been committed by the individual sought to be apprehended and the force used was actually and reasonably believed by him in good faith to be necessary to effect the arrest. See Martyn v. Donlin, supra, 151 Conn. at 411-12, 198 A.2d at 705-06. During a codification and revision of Connecticut’s criminal laws occurring after the facts in this case, the Martyn rule was retained and codified as a part of the Connecticut criminal law.
The appellant’s argument involves two simple steps. First, that in actions brought under the federal civil rights statutes the law to be applied is federal law — while reference may be made to state or other law consistent with the United States Constitution, it is not mandatory, as a matter of choice of law, that state law be applied. Second, federal decisions and modern policy indicate that the federal rule to be applied in actions under the federal civil rights statutes, e. g., 42 U.S.C. §§ 1983, 1985(3), is that use of deadly force is not permissible in the case of any escape where a felony has been committed except in a few limited situations essentially embodied in ALI Model Penal Code § 3.07 (Proposed Official Draft 1962). Appellant argues that the use of force is justifiable “only where the arresting officer believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force, or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” Id.
Appellant further argues that the common law rule in Connecticut lacks logical support, is based upon historically outmoded concepts of outlawry and trial by ordeal and has been uniformly disapproved by scholars. In contrast, appellant argues, the Model Penal Code rule, which has been adopted in form or substance in a number of states by statute, is consistent with the laws and Constitution of the United States and the needs of law enforcement personnel. He therefore concludes that the rule of the Model Penal Code should be adopted in this case under 42 U.S.C. § 1983.
The appellee’s position is less complex. He assumes that since the challenged law of Connecticut, as expressed in Martyn v. Donlin, supra, and in the new Connecticut Penal Code, is constitutional, in that it does not “shock the conscience,” Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); United States v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974), or otherwise offend any constitutional principle, it is therefore the applicable rule in the case. This was the position taken by Judge Blumenfeld in his decision below. 383 F.Supp. at 362.
With this view, however, we cannot agree. It has long been understood that in interpreting the scope of § 1983 we are not bound by the state law of torts or the defenses of privilege that law provides. In an unbroken line of Supreme Court cases which includes Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 109-11, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the conduct of police officers and other state officials has, both civilly (Monroe, Pier-son, Scheuer) and criminally (Classic, Screws, Williams), been held subject to standards demanded by the Constitution of the United States, regardless of approbation by state law. This is necessarily so because one of the principal purposes underlying the Civil Rights Acts of 1871 and 1875 was to protect individuals against “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law....” United States v. Classic, supra, 313 U.S. at 326, 61 S.Ct. at 1043. See 1 B. Schwartz, Statutory History of the United States: Civil Rights 591-653 (1970 ed.). See generally Monroe v. Pape, supra, 365 U.S. at 173, 81 S.Ct. 473. The phrase in Section 1 of the Act of April 20, 1871, 17 Stat. 13 (known as Civil Rights Act of 1871 and also as “the Ku Klux Act”), as amended, 42 U.S.C. § 1983, which provides for liability, “any... law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding,” makes this patently clear. A state rule of immunity or privilege which allows a state officer to escape liability for a deprivation of “rights, privileges, or immunities secured by the Constitution of the United States” is simply not controlling under 42 U.S.C. § 1983.
At the same time not every tort committed against a private person by an official acting under state law rises to the deprivation of a constitutional right; that is to say, there is no “general federal tort law....” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (interpreting § 1985(3), derived from § 2 of the Act of April 20, 1871, 17 Stat. 13). For exam-pie, state legislators’ immunity, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and judges’ immunity, Pierson v. Ray, supra, 386 U.S. at 553-55, 87 S.Ct. 1213, each established at common law, have survived the enactment of § 1983, The latter, in fact, has been adopted as federal common law. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872). But Pierson v. Ray, supra, 386 U.S. at 555, 87 S.Ct. 1213, points out that police officers never had an absolute and unqualified immunity at common law. In that case the Supreme Court did recognize a limited privilege under § 1983 in a false arrest situation where the arrest was made in good faith under a statute later held unconstitutional. The Court expressly upheld “the defense of good faith and probable cause... available to the officers in the common-law action for false arrest and imprisonment....” 386 U.S. at 557, 87 S.Ct. at 1219. In so doing, the Court looked to “the prevailing view in this country,” citing general sources, such as the Restatement (Second) of Torts § 121 (1965), and 1 Harper & James, The Law of Torts § 3.18 (1956). 386 U.S. at 555, 87 S.Ct. at 1218. It is true that the court in Pierson referred to the expansive language of Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. 473, which states that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Pierson v. Ray, supra, 386 U.S. at 556, 87 S.Ct. at 1219. The opinion modified that phrase, however, to recognize some affirmative defenses under § 1983, saying “Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.” 386 U.S. at 556-57, 87 S.Ct. at 1219.
So, too, in discussing the qualified immunity of the executive branch of a state government, the Supreme Court has referred to a variety of general sources — English common law and statutes, federal and state cases — to support an immunity which varies with “the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.” Scheuer v. Rhodes, supra, 416 U.S. at 247, 94 S.Ct. at 1692; see also id. at 239 n. 4, 240-49.
While we are, then, not bound by whatever privilege state law may afford to the officer we still are by no means free to elevate whatever view of the privilege we think to be preferable to the constitutional level envisaged by § 1983. Rather, with only the example of Pierson and Scheuer before us we must make a studied attempt to weigh the competing interests in the light of historical and current cases and commentary to arrive at a scope of the privilege to use deadly force in particular instances.
Initially we should point out that we agree with appellant that the problem of determining the appropriate rule of privilege for the use of force by arresting officers is complicated by the fact that the common law rule evolved when only a few crimes were felonies, and all of them involved force or violence (arson, burglary, robbery, rape, murder, manslaughter) and were punishable by death and forfeiture of lands and goods. See ALI, Model Penal Code § 3.07, Comment 3 at 56 (Tent. Draft No. 8, 1958). (“Such rational justification for the common law rule as can be adduced rests largely on the fact that virtually all felonies in the common law period were punishable by death.”) But see Note, Justification for the Use of Force in the Criminal Law, 13 Stan.L.Rev. 566, 572-82 (1961). Many American jurisdictions, Connecticut included, have of course expanded the number of felonies to include numerous crimes not involving force or violence, crimes which relate to property and to compliance with complex governmental regulations (e. g., income tax fraud). As the scope of “felony” crimes has expanded wholly away from the concept of violence which underlay its common law origin, the use of the felony label to justify especially severe police behavior has become increasingly strained. As stated by Judge McCree in his concurring opinion in Beech v. Melancon, 465 F.2d 425, 426-27 (6th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973):
I would find it difficult to uphold as constitutional a statute that allowed police officers to shoot, after an unheeded warning to halt, a fleeing income tax evader, antitrust law violator, selective service delinquent, or other person whose arrest might be sought for the commission of any one of a variety of other felonies of a type not normally involving danger of death or serious bodily harm.
The elementary requirements of a use of force rule under § 1983 must be that it neither permits “brutal police conduct,” Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973), nor allows such “application of undue force” that the police conduct “shocks the conscience.” Johnson v. Glick, 481 F.2d 1028, 1032, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973) (holding that a § 1983 action lies by a prison inmate for an unprovoked attack by a guard). As Judge Friendly pointed out in Johnson, while the oft-quoted language from Rochin gains added content from other language in the opinion, it is not exactly precise. We must analyze such factors as “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort or maliciously or sadistically..” Johnson v. Glick, supra, 481 F.2d at 1033. Judge Friendly’s comments were, to be sure, made in the. course of determining whether a claim was stated rather than whether a privilege existed. However, a privilege, simply stated, is a rule of law exempting one from liability for conduct which would otherwise subject him to it. Restatement (Second) of Torts § 10 (1965). This is no different from saying that privileged conduct is not tortious. See id. Comment a. Thus, whether we approach the case from the standpoint of Judge Friendly in Johnson, where the issue was whether the conduct was tortious, or from the standpoint of privilege, where the issue is whether the conduct is not tortious, the analytical factors must be the same.
We find in this case that a number of legislatures, but few if any courts on their own initiative, have analyzed the factors just discussed and have moderated the harshness of the old common law view. There is, in short, a discernible trend in this century away from allowing the use of deadly force by a police officer in effecting a felon’s arrest. But this trend is not so momentous or compelling as to require us to recognize a § 1983 action to lie in the situation of this case. This is to say that we do not believe that our responsibility to give effect to the important civil rights protected by § 1983 provides us with a sufficient mandate to provide a remedy in this case by rejecting the rule of privilege developed by the state to further its own important objective of enforcing its penal law. The preferable rule would limit the privilege to the situation where the crime involved causes or threatens death or serious bodily harm, or where there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed. But we are not satisfied, given the history and current status of the law of privilege, the ready availability of handguns to the populace at large (including nonviolent felons), and the needs of law enforcement in a society where violence is widespread, that we can or should impose that view through § 1983 as a federal standard to which all states would be subject. We are aware, moreover, that to do so in this case, where the Connecticut Supreme Court has fairly recently (1964) taken the contrary view, a view which has even more recently (1971) expressly been preserved in a legislative recodification of the state criminal law, would be to deny the officer the defense of good faith reliance upon the law of his state.
The question of use of deadly force in preventing escape arises here in the narrow context where there is no belief in its necessity for the protection of the officer or of any innocent third persons. In this context, we find the history of the treatment afforded the officer’s privilege by the American Law Institute to be enlightening. The first Restatement of Torts § 131 (1934) extended that privilege only to arrests for treason or a felony which normally causes or threatens death or serious bodily harm, or which involves the breaking and entry of a dwelling place. Official Comment h to § 131 of the Restatement stated that deadly force was not privileged for every common law felony, that crimes are indiscriminately labeled as felonies or misdemeanors, and that it would “be monstrous to make the privilege depend upon the word used by the legislature in describing the offense or upon the penalty attached to its commission.” This conclusion was felt to be particularly forceful in light of the fact that the force used imperils the suspect as well as the guilty. Id. at 305. This rule of the first Restatement of Torts, which approximates the one advocated by appellant, was, however, overturned by the ALI in 1948. Restatement of the Law, 1948 Supplement, Torts § 131, at 628 et seq. (1949). The revised rule would permit the privilege where the arrest is for treason or any felony which has been committed, if the actor reasonably believes the offense was committed by the other and that the arrest cannot otherwise be effected. The notes of the reporter for the 1948 revision, Professor Eldredge, criticize the reliance by the earlier reporter, Professor Bohlen, on one of three dicta from early American case law. Professor Eldredge flatly states that Comment h of § 131 of the first Restatement (and its accompanying illustrations) has “no authority” to support it. He cites five cases decided since 1926 contrary to § 131, and concludes that “[n]o case has been found which has cited § 131 or which is in accord with it.” Restatement of the Law, 1948 Supplement, supra, at 633. While the reporter to the 1948 revision allows that § 131 of the first Restatement is a “desirable rule of law,” Restatement of the Law, 1948 Supplement, supra, at 634, the revision is necessary in a “Restatement of existing authorities” since “[ejvery case which... decides the question agrees that the original English common law is still the law.” Id., but see note 21 supra. It is in this context that the Model Penal Code was adopted by the American Law Institute in 1962. In this Code there are comments which refer to the common law distinction between felony and misdemeanor crimes for the purpose of determining the scope of the privilege to use deadly force as “manifestly inadequate for modern law.” ALI, Model Penal Code § 3.07, at 56 (Tent. Draft No. 8, 1958). The authors of the Model Penal Code point out the anomaly resulting from juxtaposition of the general rule that deadly force can be used to prevent the commission of a felony only if the felony involves substantial risk to life and limb, e. g., Commonwealth v. Beverly, 237 Ky. 35, 39, 34 S.W.2d 941, 943 (1931), with the rule that such force can be used to obtain an arrest for any felony. In contrast, the Restatement (Second) of Torts § 131 (1965) has simply carried forward the 1948 revision of the original Restatement of the Law of Torts and quotes the comment in the 1948 Supplement without reference to the Model Penal Code.
The American Law Institute’s almost 50 years of consideration of the problem demonstrates that the area in which we are treading is one still characterized by shifting sands and obscured pathways. The leading text, 1 Harper & James, supra § 3.18 (1956), cannot suffice on its own to lead us out of the wilderness. The authors seem to equate the rule for effectuating an arrest with that of retaining custody once properly acquired, id. at 284; see also Restatement (Second) of Torts § 134 (1965), and state that
[i]n the absence of a specific statute the more desirable rule is that only such felonies as threaten death or serious bodily harm will justify the use of deadly force to effect an arrest therefor, and such force may be used only when it reasonably appears that the arrest can be made in no other way.
1 Harper & James, supra, at 284.
While we need not, either to extend or to limit liability, “tie section 1983 to the technicalities of state law,” Street v. Surdyka, 492 F.2d 368, 370 (4th Cir. 1974) (extending privilege of officer), we recognize that actions under § 1983 are to some extent “analogous to tort actions,” Dowsey v. Wilkins, 467 F.2d 1022, 1025 (5th Cir. 1972). Here we are dealing with competing interests of society of the very highest rank — interests in protecting human life against unwarranted invasion, and in promoting peaceable surrender to the exertion of law enforcement authority. The balance that has been struck to date is very likely not the best one that can be. In an area where any balance is imperfect, however, there must be some room under § 1983 for different views to prevail. The Connecticut rule carries with it the defects explicated above; it makes no distinction between felonies and therefore could be argued to involve an element of irrationality. It also creates an anomalous asymmetry to the privilege relating to the use of force for preventing the commission of felonies. Furthermore, it is contrary to the recommendations of the new proposed federal criminal code, see U. S. National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code § 607(2)(d) (1970), and the statute law of one of the other two states in this circuit, New York, N.Y. Penal Law § 35.30(l)(a) (McKinney 1975), although apparently not of the other, 13 Yt.Stat. Ann. § 2305 (1974). This would seem peculiarly to be one of those areas where some room must be left to the individual states to place a higher value on the interest in this case of peace, order, and vigorous law enforcement, than on the rights of individuals reasonably suspected to have engaged in the commission of a serious crime. We do not believe that this approach to interpreting § 1983 hearkens back to the early Supreme Court interpretation of the due process clause which condoned all state procedural rules which were in conformity with “settled usage,” e. g., Twining v. New Jersey, 211 U.S. 78, 101, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Hurtado v. California, 110 U.S. 516, 528, 4 S.Ct. 111, 28 L.Ed. 232 (1884). This approach has been overruled in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and we by no means would employ it here. While the Fourteenth Amendment may require us to make an independent assessment of the fairness of the state rule, however, we are today interpreting § 1983, and within that statute the states must be given some leeway in the administration of their systems of justice, at least insofar as determining the scope of such an unsettled rule as an arresting officer’s privilege for the use of deadly force. Further, in the light of the shifting history of the privilege, we cannot conclude that the Connecticut rule is fundamentally unfair.
All of which would not say that, under the original stipulation of facts, the complaint should have been dismissed, as it was on cross motions for summary judgment. As the facts were originally stipulated there were still four questions of fact to be determined under the Connecticut’s common law rule: (1) whether Marshall actually believed and (2) whether Marshall reasonably believed that Jones was a felony suspect; and, even more importantly, (3) whether Marshall actually believed and (4) also reasonably believed that it was necessary under the circumstances to use deadly force to make the arrest. The absence of any one of these four elements would have rendered the Connecticut privilege unavailable, Martyn v. Donlin, supra. Without our having finally to determine the issue here, any such absence might also have given rise to an action for damages under § 1983. But the original stipulation was amended not once but twice to take these issues out of the case. Thus no factual issues remain. We accordingly affirm the judgment below. So holding we do not need to pass on the troublesome question whether felonious theft of an automobile resulting in a high-speed chase in a rural area creates or under a given set of circumstances could create a “substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” See ALI, Model Penal Code § 3.07(2)(iv)(2) (proposed official draft 1962). Even were we to hold that § 1983 incorporated the Model Penal Code rule it is far from certain whether the appellant would prevail at a trial on the merits.
Judgment affirmed.
. The action originally named the Town of West Hartford and its police chief and town manager, but the action was dismissed as to them. Cf. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).
. It may be noted that both of the young men in the car with Dennis Jones were arrested by the Hartford police on the day following the auto theft and shooting. Neither was charged with a felony; the charge against one was ultimately dropped and the other pleaded guilty to a misdemeanor charge and received a suspended sentence.
. It does not appear from the stipulation whether Jones was the driver or a passenger of the Cadillac. Nor does it appear what his age was, although appellants brief states that he was 16 years old. It also does not appear what caliber revolver Officer Marshall was using or the extent of his training in marksmanship.
. Larceny of any automobile is now a “Class D” felony. Conn.Gen.Stat. § 53a-123. Under a complicated formula set forth in Conn.Gen. Stat. § 53a-35(b)(4), Class D felonies carry a maximum sentence of five years. While the parties stipulated that the offense was a felony at the time of the shooting, the stipulation erroneously refers to Conn.Gen.Stat. § 53a-47, a provision dealing with acquittal on grounds of mental disease or defect. The crime was, however, a felony under Conn.Gen.Stat. § 53a-57. See State v. Keeby, 159 Conn. 201, 268 A.2d 652 (1970), cert. denied, 400 U.S. 1010, 91 S.Ct. 569, 27 L.Ed.2d 623 (1971). The automobile theft provision in the Connecticut code now appears as Conn.Gen.Stat. § 53a-119.
. Conn.Gen.Stat. § 53a-25(a) defines a felony as an offense “for which a person may be sentenced to a term of imprisonment in excess of one year....” The statute also provides that any offense defined in any other section of the Connecticut General Statutes which'“by virtue of any expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony.” Id. § 53a-25(c). Since “joyriding” is punishable by a prison sentence of up to one year for a first offense, up to 10 years for a second offense and up to 15 years for a third offense, id. § 14-229, it is somewhat of a hybrid for the purpose of making this classification. However, as to first offenses, unauthorized use of a motor vehicle would appear to constitute only a misdemeanor. See id. § 53a-26(c).
. At least as of 1974, the Connecticut State Police Rules §§ 20-29 limit the use of deadly force to two situations: (1) where the felony is one involving risk of serious bodily harm and (2) where there is a risk that the felon’s efforts to escape will cause harm to the officer or others. Apparently the West Hartford Police Department had issued a Training Bulletin (Oct. 27, 1967), directing officers not to shoot at a motor vehicle (or presumably its occupants) except in those limited circumstances. It does not appear from the stipulation of facts, however, whether Officer Marshall was aware of this Bulletin or of the extent of its effect.
. Conn.Gen.Stat. § 53a-22 provides in part:
(a) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of physical force to make an arrest or to prevent an escape from custody. A peace officer or an authorized official of the department of correction who is effecting an arrest pursuant to a warrant or preventing an escape from custody is justified in using the physical force prescribed in subsections (b) and (c) unless such warrant is invalid and is known by such officer to be invalid.
(b) Except as provided in subsection (a), a peace officer or authorized official of the department of correction is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes it necessary to:
(1) Effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or custody is unauthorized; or
(2) defend himself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.
(c) A peace officer or authorized official of the department of correction is justified in using deadly physical force upon another person for the purposes specified in subsection (b) only when he reasonably believes that such is necessary to:
(1) Defend himself or a third person from the use or imminent use of deadly physical force; or
(2) effect an arrest or to prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony.
. The ALI Model Penal Code § 3.07 (Proposed Official Draft 1962) makes the following proposal for the use of force in law enforcement:
(1) Use of force justifiable to effect an arrest. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
(2) Limitations on use of force.
(a) The use of force is not justifiable under this Section unless:
(i) the actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and
(ii) when the arrest is made under a warrant, the warrant is valid, or believed by the actor to be valid.
(b) The use of deadly force is not justifiable under this Section unless:
(i) the arrest is for a felony; and
(ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a police officer; and
(iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and
(iv) the officer believes that:
(1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or
(2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.
. The claim is also made that the Connecticut rule violates the due process clause of the Fourteenth Amendment becáuse, procedurally speaking, it permits the arbitrary imposition of death by the officer, violates the presumption of innocence, and denies the suspect a right to trial by jury. Of course each of the due process arguments would apply equally where deadly force is allowed to effect an arrest for a crime which does involve “conduct including the use or threatened use of deadly force” or where “there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” ALI, note 8 supra, § 3.07(b)(iv). The killing by the police officer in such a case would, as much as the killing here, deprive
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_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".
Frederick A. CARTER, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, Appellee.
No. 86-1063.
United States Court of Appeals, Third Circuit.
Submitted Pursuant To Third Circuit Rule 12(6) Aug. 28, 1986.
Decided Nov. 6, 1986.
Frederick A. Carter, pro se.
Howard R. Flaxman, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellee.
Before GIBBONS, WEIS, and MARIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
The plaintiff’s complaint alleges racial discrimination in his employment termination by defendant. The suit was dismissed by the district court because plaintiff’s lawyer failed to comply with a discovery order. We agree with the district judge that counsel has “exhibited, on the record, blatant disregard for explicit orders.” We conclude, nevertheless, that sanctions should have been imposed on the attorney personally rather than denying plaintiff the opportunity to present his case on the merits.
On May 31,1985, the district court directed that plaintiff submit within twenty days his then overdue answers to the defendant’s interrogatories. The plaintiff’s lawyer did not file the answers within that time, and on June 24, 1985, defendant asked that the case be dismissed pursuant to Fed.R.Giv.P. 37. The plaintiff’s counsel did not respond to this motion; on July 18, 1985, the district judge dismissed the action.
In the interim, the plaintiff’s lawyer had failed to appear at a pretrial conference scheduled for June 13, 1985. She gave as an excuse her error in calendaring the conference for 9:30 a.m., (which was when she arrived) rather than 9:00 a.m., the time set by the court. The district court assessed counsel a sanction of $150 for her dereliction. Four days later she sent a letter to the district judge apologizing for her error and asking that the sanction be remitted.
On December 13, 1985, the plaintiff’s lawyer filed a motion under Fed.R.Civ.P. 60(b) to reinstate the complaint. Attached to the motion were answers to the interrogatories which apparently had been served on defendant. Also attached was a copy of a money order, dated November 1, 1985, in the amount of $150 made payable to the defendant’s attorney.
The district judge denied the motion on December 30, 1985, noting the five-month delay which plaintiff had explained by “vague and unsubstantiated claim that he personally had not learned of the dismissal until September, 1985.” More important, however, the court found counsel's explanation for her failure to file the discovery answers “incredible.” The judge also characterized the lawyer’s disregard of the May 31, 1985 order as “inexcusable.”
On January 9, 1986, plaintiff acting pro se filed a motion for reconsideration and for dismissal of his attorney. He alleged that in June 1985 his lawyer had misled him into believing that she had complied with the discovery request, and that he had not learned of the suit’s dismissal until September 26, 1985, when he checked the docket in the clerk’s office. He charged his counsel with being derelict in not promptly requesting reconsideration of the July 18, 1985 dismissal order. He had insisted that his counsel take steps to remedy the situation, but when she prepared a petition, it proved to be inadequate under Rule 60(b). Plaintiff described his counsel’s conduct as “abandonment,” and noted that he had paid $400 as a fee. Because of his financial straits, plaintiff said he had not been able to retain other counsel.
The district court denied the pro se motion, remarking that even after becoming aware of his lawyer’s misdeeds, plaintiff nevertheless entrusted her with filing the Rule 60(b) motion, rather than acting on his own at that time.
We understand and appreciate the district judge’s feelings when his efforts to move his docket expeditiously were frustrated by the inexcusable conduct of the lawyer. She consistently failed to meet her obligations in timely fashion with but one exception. When she was ordered to pay $150 of her own funds, she promptly wrote to the district judge asking for reconsideration. Even in that instance, she utilized a letter rather than a motion, the appropriate district court procedure.
We review the district court’s order under an abuse of discretion standard, recognizing the superior opportunity for the trial judge to assess the challenged conduct. See Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77 (3d Cir.1982).
Nevertheless, we have vacated a dismissal when a client was victimized by his attorney’s extreme negligence. In Boughner v. Secretary of Health, Education & Welfare, 572 F.2d 976 (3d Cir.1978), we directed relief under Rule 60(b) where plaintiff had suffered a default judgment because his attorney had displayed “neglect so gross that it is inexcusable.” Id. at 978. We observed that Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), upheld the dismissal of an action because of counsel’s delinquency on the reasoning that the client was liable for the acts of the lawyer whom he had retained.
In Link, the Supreme Court concluded that because the plaintiff had voluntarily chosen the attorney to represent him in the action, he could not later avoid the consequences of the acts or omissions of this “freely selected agent.” 370 U.S. at 633-34, 82 S.Ct. at 1390. Although the Court declared a party to be bound by his counsel’s acts, it noted that the aggrieved party never availed himself of a corrective remedy such as the “escape hatch provided by Rule 60(b).” Id. at 632, 82 S.Ct. at 1390. Link did not decide whether it would have been an abuse of discretion to deny a Rule 60(b) motion, since none had been filed. Id. at 635-36, 82 S.Ct. at 1391-92. Compare Link with Boughner, 572 F.2d at 978, which held that under its particular facts, appellants were not bound by their attorney’s actions for the purposes of Rule 60(b).
Although the Link principle remains valid, see National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), we have increasingly emphasized visiting sanctions directly on the delinquent lawyer, rather than on a client who is not actually at fault. See Matter ofMacMeekin, 722 F.2d 32, 35 (3d Cir.1983).
As we said in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 869 (3d Cir.1984), “[dismissal must be a sanction of last, not first, resort.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339 (3d Cir.1982) followed the same theme. There we emphasized the failure of the district court to consider the imposition of some lesser sanction than dismissal with prejudice.
In Scarborough v. Eubanks, 747 F.2d 871 (3d Cir.1984), we discussed some of the factors a district court should weigh in considering whether to dismiss a complaint as a sanction. Although not exhaustive, the court should review (1) the extent of the party’s personal responsibility; (2) a history of dilatoriness; (3) whether the attorney’s conduct was willful and in bad faith; and (4) the meritoriousness of the claim. Id. at 875.
The record before us provides no basis for assessing the merits of the plaintiff’s claim, but the absence of his personal responsibility for his attorney’s behavior seems clear. The attorney’s conduct, although perhaps not in bad faith, was flagrant and deserving of sanctions.
The Court of Appeals for the Fourth Circuit acknowledged the serious dilemma posed by the allocation of responsibility between an attorney and her client for dilatory or contumacious conduct in Universal Film Exchanges, Inc. v. Lust, 479 F.2d 573 (4th Cir.1973): “The more Boeotian and flagrant we deem counsel's conduct in the case, the greater is his professional negligence; correspondingly, the behavior becomes less ‘excusable’ under Rule 60(b)(1). On the other hand, the more indefensible the attorney’s behavior, the greater is one’s natural sympathy for the ultimate victim— the client.” Id. at 574.
Although an action for malpractice is a possibility when a lawyer’s negligence results in dismissal, that remedy does not always prove satisfactory. It may be difficult for the client to obtain and collect a judgment for damages. Perhaps more importantly, public confidence in the administration of justice is weakened when a party is prevented from presenting his case because of the gross negligence of his lawyer who is, after all, an officer of the court. As we pointed out in Poulis, this remedy “would only multiply, rather than dispose of litigation.” 747 F.2d at 867.
We think it critical that the importance of an attorney’s professional responsibility for his client’s interest be brought home to the erring lawyer quickly and unmistakably. Allowing derelictions to await possible punishment through lengthy malpractice litigation or disciplinary board proceedings is not likely to be effective in deterring future misconduct. Consequently, we do not favor dismissal of a case when the attorney’s delinquencies — not the client’s— necessitate sanctions.
On the record before us, plaintiff acted reasonably in pressuring his lawyer to file his 60(b) motion before taking action himself. When the petition proved to be unsuccessful, he acted promptly in proceeding pro se. Not only the court, but the client, was treated unfairly by the lawyer; plaintiff should not shoulder the burden of this incompetence alone.
We conclude that the complaint in this case should be reinstated and plaintiff given a reasonable time to secure new counsel or proceed pro se.
Defendant also has suffered some financial detriment in the expenditure of fees because of the negligence of plaintiff’s counsel. That loss may be reimbursed in whole or in part by the imposition of sanctions on the plaintiff’s lawyer personally. The district court should assess these sanctions in an amount deemed to be reasonable under all the circumstances.
The order of the district court will be vacated and the case remanded with directions to reinstate the complaint and impose appropriate sanctions on the plaintiff’s counsel. Each party will bear its own costs, subject however to reallocation at the discretion of the district court in imposing sanctions on the plaintiff’s attorney.
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_respond1_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Appellant, v. John P. ROONEY, Jr., Defendant-Appellee.
No. 240, Docket 92-1229.
United States Court of Appeals, Second Circuit.
Argued Oct. 9, 1992.
Decided Feb. 18, 1993.
Paul D. Silver, Asst. U.S. Atty. (Gary L. Sharpe, U.S. Atty., of counsel, for the N.D. of N.Y., Albany, NY), for appellant.
Edward M. Shaw, New York City (Still-man, Friedman & Shaw, P.C.) for defendant-appellee.
Before: VAN GRAAFEILAND, PRATT, WALKER, Circuit Judges.
WALKER, Circuit Judge:
In a three-count indictment filed May 8, 1991, John P. Rooney, Jr. was charged in Counts I and II with violations of 18 U.S.C. § 1001 (false statements to the government) and in Count III with violating 18 U.S.C. § 666 (solicitation of a bribe). In an order dated March 20, 1992, the United States District Court for the Northern District of New York (Cholakis, J.) dismissed Count III on the ground that the jurisdictional element of 18 U.S.C. § 666, which requires an organization to receive $10,000 in Federal “benefits” within a twelvemonth period had not been satisfied. Count III alleged as a jurisdictional predicate the receipt from the federal government of loans in excess of $10,000. But, the district court held that “benefits” within the meaning of § 666 do not include government loans. Since we hold that government loans may constitute “benefits” under § 666, we reverse the order of the district court and reinstate Count III of the indictment.
BACKGROUND
There is no dispute as to these basic facts. Rooney is the general partner of Dawnwood Properties (“Dawnwood”). In 1978, Dawnwood applied to the Farmers Home Administration (“FmHA”) for a loan to construct a rural senior citizens’ housing project. In 1985, the FmHA advanced loan proceeds to Dawnwood which began construction on the project. As of 1990, Dawnwood had not yet finished the project and it owed the general contractor, Debrino Associates, a substantial sum of money for work already completed. Rooney agreed to apply to the FmHA for an additional $300,000 loan beyond the $1.5 million borrowed to that date, but only if Debrino Associates promised to build a pond on the property adjacent to the project land without extra cost. Rooney’s proposal to Debrino Associates is the subject of Count III which charged that the proposal was a bribe solicitation in violation of 18 U.S.C. § 666.
Before the trial, Rooney moved pursuant to Fed.R.Crim.P. 7 and 12 to dismiss Count III on jurisdictional grounds. Count III alleged as its jurisdictional predicate that Dawnwood was “an organization that received Federal assistance in the form of loans in excess of $10,000 during the one year period commencing on February 6, 1989 and ending on February 5, 1990.” However, Rooney argued, inter alia, that government loans could not be “benefits” within the meaning of 18 U.S.C. § 666 and therefore the jurisdictional requirement of § 666 was not met.
On March 20, 1992, the district court agreed with Rooney and dismissed Count III. The court held that Dawnwood, the recipient of Federal loans totalling $1.5 million, had not received a “benefit” as required by § 666.
DISCUSSION
Title 18, U.S.C. § 666 provides in pertinent part:
(a) Whoever, if the circumstances described in subsection (b) of this section exists—
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—
(A) ...
(B) corruptly solicits or demands for the benefit of any person ... anything of value from the person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization ... involving anything of value of $5,000 or more ...
******
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
18 U.S.C. § 666.
The sole question presented by this appeal is whether a loan can be a “benefit” within the meaning of § 666(b) so as to bring this case within the Federal court’s jurisdiction. If so, Dawnwood received such benefits and the jurisdictional requirement of § 666(b) is satisfied. The district court, in answering this question in the negative, relied on United States v. Stewart, 727 F.Supp. 1068, 1070 (N.D.Tex.1989) and United States v. Webb, 691 F.Supp. 1164, 1169 (N.D.Ill.1988), which concluded that § 666(b) does not apply when the government receives something in return for its money—a situation of quid pro quo. The district court accepted Rooney’s contention that the loan repayment plus interest constitutes such a quid pro quo, and therefore, a loan may not be considered a benefit for purposes of § 666(b). We disagree.
In evaluating the scope of a Federal criminal statute, we must look closely at its language, legislative history, and purpose. Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985); United States v. Hong-Liang Lin, 962 F.2d 251, 253 (2d Cir.1992). The Supreme Court directs, us to use restraint in interpreting Federal criminal statutes based “ ‘on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.’ ” Dowling, 473 U.S. at 214, 105 S.Ct. at 3131 (quoting United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820)).
1. Statutory Language
The statutory language does not support Rooney’s interpretation. To fall within § 666(b), an organization must “reeeive[], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” 18 U.S.C. § 666(b). The district court stated that the statute does not expressly equate a “benefit” with a loan, and “merely provides that the Federal program from which the ‘benefit’ is received may involve a loan.” (emphasis in the original).
Common sense suggests that the “benefit” from a program which involves a loan would be the loan itself. Webster defines the word “benefit,” inter alia, as “advantage.” Webster’s Ninth New Collegiate Dictionary, 144 (1990). Rooney’s receipt of the loan afforded him an “advantage” since it allowed him to build a senior citizens’ housing project and hopefully make a profit.
The statute expressly equates “benefits” with “Federal assistance.” Federal statutes commonly include loans within the rubric of “Federal assistance.” For example, the Civil Rights Act, which prohibits discrimination under any Federally assisted programs, 42 U.S.C. § 2000d, specifically includes loans within its definition of financial assistance. See 42 U.S.C. § 2000d-l. In the statute we are examining, Federal programs “involving a grant, contract, subsidy, loan, guarantee, insurance” are a subset of “form[s] of Federal assistance,” which therefore demonstrates that Congress considered a loan a benefit, even if Rooney does not.
Rooney contends that loan proceeds are not “benefits,” since the borrower must agree to repay them, and argues that a loan can be a “benefit” only if it affords the recipient a direct economic advantage such as a reduced interest rate. This interpretation of the statute would create an anomaly: Federal jurisdiction would depend on the daily interest rate. A loan granted at a lower interest rate than the market commanded would be a benefit. But the loan would cease to be a benefit if the market rate dropped below the interest rate of the loan. The jurisdictional reach of § 666 would thus hinge upon national economic conditions and would be turned on and off by interest rate fluctuations.
2. Legislative History
Apart from its lack of support in the language of § 666, Rooney’s interpretation is inconsistent with the provision’s legislative history. Congress enacted § 666 as part of the Comprehensive Crime Bill of 1984, and stated that the provision was “designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or State and local governments pursuant to a Federal program.” S.Rep. No. 225, 98th Cong., 2d Sess. 369 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510 (hereinafter S.Rep.). The principal policy objective behind § 666 is to “protect the integrity of the vast sums of money distributed through Federal programs.” Id. at 3511. To this end, the Senate Judiciary Committee Report accompanying the statute states that the “[cjommittee intends that the term ‘Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance, or another form of Federal assistance’ be construed broadly.” Id.
The Senate Report states, however, that “not every Federal contract or disbursement of funds would be covered”, and exempts from § 666 instances in which, for example, “a government agency lawfully purchases more than $10,000 in equipment from a supplier.” Id. The district courts in United States v. Stewart, supra, and United States v. Webb, supra, seized upon this language in the Senate Committee Report to preclude § 666 from applying to all situations in which the government receives a tangible material return from its funds. Stewart, 727 F.Supp. at 1070; Webb, 691 F.Supp. at 1169. However, in light of the statute’s purpose, we think that Congress only intended to exclude money spent by the government as a commercial entity, such as payments for supplies or equipment. Stewart is consistent with this reading since that case involved a defense contractor that supplied custom-made goods to the government, which in essence is a purchase of equipment from a supplier. 727 F.Supp. at 1070.
The Webb court held that funds paid by the Department of Housing and Urban Development (“HUD”) to a private accounting firm to manage and administer a Federal program were not § 666(b) benefits. Rather, the Webb court held, the funds were “monies paid in consideration for its services.” 691 F.Supp. at 1169. While we express no opinion as to what the result in Webb should have been, we believe that the Webb court’s construction of the limitation on “benefit” was broader than the facts of that case required, broader than Congress intended, and contrary to the stated purpose of § 666. As we have noted, § 666 was designed to protect the integrity of funds distributed through Federal programs. S.Rep. at 3510. The Senate Report targeted the application of the statute to monies distributed through “Federal programs” for which there is “a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives.” Id. at 3511. The Report enumerated three cases to illustrate situations § 666 is intended to include: United States v. Hinton, 683 F.2d 195 (7th Cir.1982), aff’d sub nom. Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984) (involving bribery by an employee of non-profit corporation with contract to administer HUD funds); United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) (involving bribery by a State administrator of funds from CETA program); and United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (involving bribery of city employees administering funds from HUD program). S.Rep. at 3511. In each of these cases, the organization or city agency provided the Federal government with a service by administering a government program. Thus, the holding in Webb is in conflict with the legislative history.
We find that the district court’s focus on whether the Federal government receives something of value for its funds is misplaced. The inquiry is not whether there is a quid pro quo, but, rather, whether the funds disbursed can be considered Federal assistance within a specific statutory scheme intended to promote public policy objectives and not payments by the government as a commercial entity.
As discussed above, loans are a common vehicle for distributing Federal assistance. Rooney received the loans from the FmHA pursuant to Section 515 of the Housing Act of 1949, codified at 42 U.S.C. § 1485. Section 1485(a) authorizes loans to provide housing for “elderly or handicapped persons or families of low or moderate income or other persons and families of low income in rural areas____” The FmHA granted Dawnwood the loan to construct rural low-income housing. Therefore, the funds Rooney received from the Federal government were authorized according to a statutory scheme in order to promote Congress’s public policy objective of providing low-cost rural housing, and are exactly the type of monies Congress intended to protect when it enacted § 666. We hold that Dawnwood received a benefit from the FmHA loans under § 666(b). Accordingly, the statute’s jurisdictional requirement is satisfied as to Rooney.
CONCLUSION
We reverse the order of the district court and reinstate Count III of the indictment.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
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songer_r_bus
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
UNITED STATES of America, Appellee, v. Larry Lee WHITE, a/k/a Felix Idleburg, Appellant. UNITED STATES of America, Appellee, v. Doris WADE a/k/a Janice Handson, Appellant.
Nos. 88-2457, 88-2458.
United States Court of Appeals, Eighth Circuit.
Submitted June 12, 1989.
Decided Nov. 28, 1989.
Rehearing and Rehearing En Banc Denied in No. 88-2457 Feb. 22, 1990.
Charles E. Polk, Jr., St. Louis, for White.
James Delworth, St. Louis, for Wade.
James K. Steitz, Asst. U.S. Atty., St. Louis, for appellee.
Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSON, Senior District Judge.
The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation.
HANSON, Senior District Judge.
Appellees White and Wade appeal their conviction by jury of drug related crimes. The two were tried together in a conspiracy case before the Honorable George F. Gunn. White presents four causes for reversal. He argues that: (1) the trial court improperly allowed the use of “drug courier profiles” as substantive evidence of guilt; (2) the trial court erred in denying his motion for severance of trials; (3) the government improperly commented on his failure to testify; (4) the sentencing guidelines were unconstitutional in their application to this case. Wade joins in the challenges of the use of the “drug courier profiles” and the constitutionality of the sentencing guidelines. She also challenges the admissibility of evidence used at trial as the fruit of an illegal search. The court, for the reasons discussed below, finds all of the challenges without merit and affirms the convictions. We first address the common challenges.
Constitutionality of Sentencing Guidelines
Appellants challenge the constitutionality of the sentencing guidelines as: a violation of the separation of powers doctrine; a violation of their due process rights; and a violation of the presentment clause. Appellants’ separation of power challenges were rejected by the Supreme Court in Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Appellants’ due process challenges were rejected by this court in United States v. Barnerd, 887 F.2d 841, 842 (8th Cir.1989), United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989) and United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989). The presentment clause challenge was also rejected in Barnerd. At 842. Accordingly, we reject the challenges of appellants on this issue.
Drug Courier Profiles
Appellants’ allegations that “drug courier profiles” were used during the trial as substantive evidence of guilt raises a troublesome issue for the court because such profiles “are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.” United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983). As noted by the Hernandez court:
Generally, the admission of this evidence is nothing more than the introduction of the investigative techniques of law enforcement officers. Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officers in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation. Although this information is valuable in helping drug agents to identify potential drug couriers, we denounce the use of this type of evidence as substantive evidence of a defendant’s innocence or guilt.
Id. at 555. Additionally, the profile has a “chameleon-like way of adapting to any particular set of observations.” United States v. Sokolow, — U.S. -, 109 S.Ct. 1581, 1588, 104 L.Ed.2d 1 (1989) (Marshall, J., dissenting).
However, it is also well established that it is within a federal court’s discretion to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers and other criminals in areas concerning activities which are “not something with which most jurors are familiar.” United States v. Daniels, 723 F.2d 31, 33 (8th Cir.1983) (trial court’s allowance of testimony by expert that drug dealers often register their cars and apartments in names of others not an abuse of discretion); United States v. Scavo, 593 F.2d 837, 844 (8th Cir.1979) (trial court’s allowance of testimony concerning nature of gambling operations, gambling terminology and opinion as to defendant’s role in operation not an abuse of discretion). The trial court’s discretion to allow such testimony arises from Fed.R.Evid. 702 which “allows a qualified witness to testify in the form of an opinion if the witness’s specialized knowledge will help the factfinder to understand the evidence or determine a fact in issue.” Daniels, 723 F.2d at 33. Such testimony, however, is “subject to exclusion under Rule 403 if its probative value is substantially outweighed by the risks of unfair prejudice.” Id. In making the Rule 403 determination we give “great deference to the district judge, who saw and heard the evidence.” Id.
We find that the challenged testimony, prejudicial by its nature, was probative in explaining the modus operandi of the crimes defendants were charged with. It was not simply an introduction of a drug courier profile as substantive evidence of guilt. “Thus, the question becomes one of balance” and one in which we must give the trial court “great deference”. Id. In making this balance we find it relevant that defendants’ guilt was clearly and overwhelmingly established by the remaining evidence in the record, making the modus operandi evidence of little significance. Accordingly, we are unwilling to find that the district court so abused its discretion as to warrant a reversal of the conviction. This finding does not indicate any belief that the district court followed the best course in admitting all of the evidence that was admitted, or that we favor admission of such evidence in general. Instead we merely find that in this case there was no clear abuse of discretion and that appellants’ challenges on this ground must fail.
The Bathroom Search
We turn next to appellant Wade’s assertion that she was subjected to illegal searches while occupying restrooms at the airport. The first of these searches occurred shortly after Wade had deplaned from her flight to Los Angeles when a female officer followed her into an airport restroom. Once in the restroom Wade entered one of the stalls and the officer observed what she could of Wade’s actions through a gap between the bathroom stall door and the bathroom stall wall. The officer made her observations from the common area of the restroom by looking through the gap from a distance, and by looking through the gap via the reflections of the bathroom mirror. She did not position herself in any way that would be unexpected by someone using the restroom. Specifically, she did not peer in “knothole fashion” through the gap. Nor did she look under or over the bathroom stall door.
The court finds that the observations made by the officer were not an illegal search in this case because they were not a violation of any reasonable expectations of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A bathroom stall, such as at issue here,
does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded, i.e., to the extent that defendant’s activities were performed beneath a partition and could be viewed by one using the common area of the restroom, the defendant had no subjective expectation of privacy, and, even if he did, it would not be an expectation which society would recognize as reasonable.
People v. Kalchik, 160 Mich.App. 40, 407 N.W.2d 627, 631 (1987). Thus, although Wade could reasonably expect a significant amount of privacy in the bathroom stall, this expectation was not violated in this case because the design of the stall allowed the officer to make her observations without placing herself in any position that would be unexpected by an occupant of the stall.
The second search occurred when Wade entered a second bathroom after conversing with co-defendant White. In this instance an officer knocked the bathroom door open after Wade failed to respond to a demand to open the door. This demand was made based on the officer’s conclusion that Wade was in the process of destroying evidence.
The court finds that there was probable cause for the officer’s action in the second bathroom and that the seizure of the cocaine in the bathroom was valid as incident to Wade’s arrest. The evidence at trial and at a hearing on a motion to suppress establish that it was reasonable to assume that Wade was involved in illegal activity and was in the process of trying to destroy evidence in the bathroom. The court incorporates by reference the analysis of Magistrate Carol Jackson’s June 20, 1989 report and recommendation on this point. Accordingly, this challenge is also denied.
The Government’s Comment on White’s Silence
White's allegation that the trial court should have declared a mistrial because of the government's comment on his failure to testify is also without merit. The challenged comment consisted of the government's statement during closing argument that "{y]ou didn't hear why Larry White used the word-the name Idleburg." White's counsel immediately objected to this statement as an inappropriate comment on White's failure to testify. The trial court sustained the objection and instructed the jury to disregard the comment. This is not sufficiently prejudicial to warrant a mistrial. It had little cumulative effect when viewed in context of the entire trial, the trial court took curative actions, and there was an abundance of properly admitted evidence establishing defendant's guilt. See United States v. Dougherty, 810 F.2d 763, 767-68 (8th Cir.1987).
The Denial of Severance
White’s assertion that the trial court committed reversible error by not severing his and Wade’s trials is similarly unconvincing. Rule 8(b) of the Federal Rules of Criminal Procedure permits join-der of defendants when the defendants are alleged to have participated in the same act or transaction or the same series of acts or transactions constituting an offense or offenses. Further, it is a general rule that persons charged with conspiracy should be tried together, particularly in cases such as this “where proof of the charges against the defendants is based upon the same evidence and acts.” United States v. Lee, 743 F.2d 1240, 1248 (8th Cir.1984). White has presented no convincing reason why this general rule is inapplicable to this case. Thus, severance was not necessary.
Conclusion
We affirm the convictions.
. Justice Marshall documented this chameleon-like nature with the following listing of some of the "drug courier” characteristics relied upon in various cases:
Compare e.g., United States v. Moore (suspect was first to deplane), with United States v. Mendenhall (last to deplane), with United States v. Buenaventure-Ariza (deplaned from middle); United States v. Sullivan (one-way tickets), with United States v. Craemer (roundtrip tickets), with United States v. McCaleb (non-stop flight), with United States v. Sokolow (changed planes); Craemer, supra (no luggage), with United States v. Sanford (gym bag), with Sullivan, supra (new suitcases); United States v. Smith (traveling alone), with United States v. Fry (traveling with companion); United States v. Andrews (acted nervously), with United States v. Himmelwright (acted too calmly).
Sokolow, 109 S.Ct. at 1588-89 (citations omitted) (Marshall, J., dissenting).
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_treat
|
F
|
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.
COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellant, v. Charles W. BARTLETT, Trustee et al., Defendants, Appellees.
No. 6940.
United States Court of Appeals First Circuit.
Nov. 8, 1967.
Richard L. Seegel, Assistant Atty. Gen., with whom Elliot L. Richardson, Atty. Gen., was on brief, for appellant.
Sumner H. Babcock, Boston, Mass., with whom Bingham, Dana & Gould, Boston, Mass., was on brief, for Charles W. Bartlett, Trustee of the Boston and Providence Railroad Corporation, appellee.
Robert G. Bleakney, Jr., Boston, Mass., with whom James Wm. Moore, New Haven, Conn., Robert W. Blanchette, New Haven, Conn., and Sullivan & Worcester, Boston, Mass., were on brief, for Richard Joyce Smith and William J. Kirk, Trustees of the Property of the New York, New Haven and Hartford Railroad Company, appellees.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
This appeal is from a declaratory judgment of the district court holding that appellant, the Commonwealth of Massachusetts, could not take by eminent domain certain railroad property in the “exclusive jurisdiction” of the district court by virtue of section 77 reorganization proceedings, 11 U.S.C. § 205, without first obtaining the consent of the Interstate Commerce Commission and the district court, neither of which had been sought. At the opening of the oral argument appellant waived its objections to the first of these rulings and expressly conceded the necessity of receiving the consent of the Commission. We consider, accordingly, only the other issue, except that we will observe that we believe appellant’s concession to have been well-advised. 49 U.S.C. § 1(18). Cf. Thompson v. Texas Mexican Ry., 1946, 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132; New Orleans Terminal Co. v. Spencer, 5 Cir., 1966, 366 F.2d 160, cert. denied, 386 U.S. 942, 87 S.Ct. 974, 17 L.Ed.2d 873. With respect to the public interest in interstate transportation, the federal government stands supreme.
The property involved is owned in fee by the Boston & Providence Railroad, which has been in reorganization in the district court for the District of Massachusetts since 1938. At the present time a plan of reorganization has been approved by the court, In re Boston & P.R.R., D.Mass., 1966, 260 F.Supp. 415, appeal dismissed for want of prosecution, March 29, 1967, and is being submitted to creditors and stockholders for confirmation. The property appellant seeks to condemn is part of a right of way which, under the plan, is to be transferred to the New York, New Haven & Hartford Railroad, a substantial creditor. All of this right of way is presently used for railroad purposes by the New Haven in accordance with section 77(c) (6) of the Bankruptcy Act. The portion the Commonwealth wishes to take runs south from Boston about seven miles and has two shorter lines of the New Haven and various sidings running off it. The proposed taking would preclude a railroad operation. Appellee Bartlett is the trustee in reorganization of the Boston & Providence.
The district court asserted the need for its consent simply and succinctly,
“Section 77(e) [st'e] of the Bankruptcy Act provides that during the pendency of the reorganization proceedings and for the purposes thereof, this court shall have exclusive jurisdiction of the debtor and its property wherever located. Under this section this court has the power to protect the property within its jurisdiction from interference by suits in other courts and the consent of this court is a jurisdictional prerequisite to the maintenance of any such action.” 266 F. Supp. at 392.
“ * * * Bankruptcy administration, including reorganization, is a paramount national function which takes precedence over conflicting provisions of the constitution or laws of any state.” 266 F.Supp. at 393.
It is true that section 77(a) provides that the court shall have “exclusive-jurisdiction of the debtor and its property wherever located, * * * ” but the court failed, at least overtly, to consider the qualifying phrase, “during the pend-ency of the proceedings under this section and for the purposes thereof,” (emphasis ours). In view of this limitation its reference to bankruptcy as a “paramount national function” seems too easy an answer. Indeed, we have already held that where there is no sufficient purpose the bankruptcy court’s jurisdiction is not exclusive. United States v. New York, N.H. & H.R.R., 1 Cir., 1965, 348 F.2d 151. The court’s distinguishing of this case on the ground that the eminent domain taking was there made by the federal government, so that the supremacy clause was not involved, did not go to the heart of the matter; our decision necessarily recognized that the jurisdiction of the bankruptcy court depended upon the need.
In the New Haven case the property taken was a small piece of land not used for railroad purposes. No contention was made that the taking interfered with the reorganization, or should not be effected. The question was whether the “exclusive possession” of the reorganization court meant that there was no independent jurisdiction in the district court of the district where the land was located. The trustees conceded in their brief that in the reorganization court they “would not oppose the granting of permission” to have the actual trial in the local district. We held they had no such concern; that the bankruptcy exclusivity was granted only for substantive and substantial purposes, and that none there existed. Correspondingly, the question in the case at bar is not resolved by pointing to the phrase “exclusive jurisdiction,” but requires the much more difficult determination of whether it is within the purposes of section 77 that the state’s power of eminent domain be suspended, or at least made subject to the control of the court, during the pendency of the reorganization proceedings.
The Commonwealth’s concession, that it cannot proceed without ICC consent focuses scrutiny upon the separate function of the bankruptcy court. The interest of the court in any reorganization is. greater than appellant concedes, the prevention of diminution of assets and the achievement of an equitable adjustment among claimants. It has the further object of preserving the corporation as a going concern. “[T]o prevent the attainment of that object is to defeat the very end the accomplishment of which was the sole aim of the section, and thereby to render its provisions futile.” Continental Illinois Nat. Bank & Trust Co. of Chicago v. Chicago, Rock Island Ry., 1935, 294 U.S. 648, 676, 55 S.Ct. 595, 606, 79 L.Ed. 1110. However, to the extent that appellees suggest that, because this is a section 77 proceeding, “brigaded with the administrative process of the Commission,” in which “the authority of the Court is intertwined with that of the Commission,” Palmer v. Commonwealth of Massachusetts, 1939, 308 U.S. 79, 87, 60 S.Ct. 34, 38, 84 L.Ed. 93, the powers of the court are greater than in the usual reorganization proceeding, we must disagree. Insofar as this business is a railroad, affected by a. special public interest, this special interest is the concern of the ICC, and not of the court. Ecker v. Western Pacific R.R., 1943, 318 U.S. 448, 473, 63 S.Ct. 692, 87 L.Ed. 892; R.F.C. v. Denver & R.G.W.R.R., 1946, 328 U.S. 495, 508-509, 66 S.Ct. 1282, 1384, 90 L.Ed. 1400. In fact, “[w]hen examined to learn the purpose of its enactment, section 77 manifests the intention of Congress to place reorganization under the leadership of the Commission, subject to a degree of participation by the court.” Ecker v. Western Pacific R.R., supra, 318 U.S. at 468, 63 S.Ct. at 705 (emphasis ours). If the court has any function in this particular, see In re Florida East Coast Ry., S.D.Fla., 1949, 81 F.Supp. 926, it is merely one of review to ascertain that constitutional and statutory mandates have been followed and that there is “material evidence” to support the Commission’s conclusions. R.F.C. v. Denver & R.G.W.R.R., supra, 328 U.S. at 509, 66 S.Ct. at 1290. Even in the case of the abandonment of a part of the railroad operation at the behest of the trustee under section 77(o), the court’s only concern is with the economic effect upon the reorganization, and is not with the consequence to public transportation. In re Fonda, J. & G.R.R., 2 Cir., 1938, 95 F.2d 397. Indeed, where there is overlapping of functions, it is the ICC that passes upon the financial aspects of the reorganization, rather than the bankruptcy court that passes upon the public interest aspects. Ecker v. Western Pacific R.R., supra; R.F.C. v. Denver & R.G.W.R.R., supra; Thompson v. Texas Mexican Ry., supra.
Accordingly, the question comes whether the bankruptcy court’s general interest in successful reorganizations was intended by Congress to be paramount to a. state exercise of the right of eminent domain, for if not, there can be nó independent power in the court to refuse to consent. On this question appellant is able to offer no assistance, except to point out that its right to take property for public use is one of great importance, and not readily subordinated. City of Cincinnati v. Louisville & N.R.R., 1912, 223 U.S. 390, 400, 32 S.Ct. 267, 56 L.Ed. 481; State of Georgia v. City of Chattanooga, 1924, 264 U.S. 472, 480, 44 S.Ct. 369, 68 L.Ed. 796. . Appellees do furnish one judicial decision, Chicago, R. I. & P. Ry. v. City of Otawanna, 8 Cir., 1941, 120 F.2d 226, where the court held that the city seeking to condemn property in accordance with a grant of authority in its charter, could not take property which had passed into the hands of trustees under section 77 without the consent of the bankruptcy court. The opinion offers little assistance, however, as it does no more than assert the conclusion of exclusivity of bankruptcy jurisdiction.
Nor have we been able to find any legislative history casting light upon the question. We must, accordingly, approach the problem as essentially one of first impression. In so doing we are led to the conclusion that it is the state’s interest, and not that of a successful reorganization that must prevail if they are in conflict.
It is obvious, at the outset, that the state is not here in the position of a creditor. It is not seeking to enforce an existing mortgage, tax lien, Gardner v. State of New Jersey, 1947, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, or other such interest which would qualify as a “claim” against the debtor’s property under section 77(b), and therefore be subject to alteration or modification in the course of approving a plan under that section. Rather, it possesses a special inchoate interest or right, which is paramount to any interest of the debtor in the property. This is nothing the debtor ever had, or that it, or the court, could convey, qualify, or subordinate to any other claim or interest. There is, as we held in the New Haven case, not even a bankruptcy function to determine fair compensation. In sum, with respect to the state’s prescriptive rights the court could effect none of the alterations or take any of the actions ordinarily contemplated in a reorganization proceeding. At the most, it could order the state not to proceed. Moreover, the prohibition would be no more than a postponement. The moment the court relinquishes jurisdiction its power is terminated; there can be no prospective prevention. Accordingly, if the state must apply to the court, and the court were to conclude that the proposed exercise of eminent domain would cripple the reorganization, the lethal blow may be diverted from the egg, but it will fall upon the day-old chick at the state’s pleasure.
Under such circumstances it is difficult to imagine how giving the bankruptcy court a temporary veto would serve the “purposes” (§ 77(a)) of the reorganization. But even if, in some fashion we do not perceive, this could be thought to benefit the debtor, we must hold that it is not the bankruptcy purpose that is paramount. Even to the extent that there is a public interest in the preservation of the going business, this economic interest is inferior to the public interest which is the basis of the state’s prescriptive rights. The present reorganization has been, as we have noted, in progress for 29 years. The possibility that a bankruptcy court could be permitted to postpone public rights for such a period is not appealing. Rather, we believe that to accept appellees’ position, apart from the protection preserved to the ICC, would not viably improve the prospects of the estate and would be broadly improvident.
The judgment of the District Court is amended by striking out the last four words thereof, “and of this Court,” and is otherwise affirmed. No costs.
. A companion appeal, No. 6946, by the Massachusetts Bay Transportation Authority, a state agency, raises no separate question.
. Two attempts to review this action are now pending before the Supreme Court.
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_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellee, v. Frank FRISONE, Defendant-Appellant.
No. 1169, Docket 86-1085.
United States Court of Appeals, Second Circuit.
Argued March 18, 1986.
Decided June 4, 1986 .
Michael A. Guadagno, Asst. U.S. Attorney-in-Charge, Organized Crime Strike Force, Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Donald S. Sullivan, Sp. Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Michael H. Sporn, New York City, for defendant-appellant.
Before PIERCE, MINER and ALTI-MARI, Circuit Judges.
This appeal was originally heard on March 18, 1986, and decided by order dated June 4, 1986. As a summary disposition it would have no precedential value under our Local Rule § 0.23. We have decided sua sponte to publish the substance of the June 4, 1986 order in this opinion.
PER CURIAM:
Appellant was arraigned on a multi-count indictment in May of 1985 in the United States District Court for the Eastern District of New York. On May 16, 1985, a detention hearing was held before Magistrate Chrein at which time detention was ordered. On January 21, 1986, Judge Henry Bramwell, after independent review of the transcript of the magistrate’s hearing and consideration of arguments presented by counsel for the appellant on a motion for release, concluded that there was probable cause to believe that appellant had been involved in at least three crimes of violence, that appellant had not rebutted the presumption drawn from the conclusion that no condition or combination of conditions would reasonably assure the safety of the community, and that, even if appellant had rebutted such a presumption, there was clear and convincing evidence that no condition or combination of conditions would reasonably assure the safety of the community.
On March 18, 1986, appellant challenged the district court’s ruling before this court on the grounds that there was insufficient evidence to support detention, and that his continued detention pursuant to the Bail Reform Act, 18 U.S.C. §§ 3141 et seq. (the “Bail Act”) violated the Constitution. After argument, the application was denied from the bench on all grounds asserted except the constitutional grounds, as to which decision was reserved pending decision of another case which involved this very issue and which was sub judice at the time of argument. That case has recently been decided, see United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986). Hence, we address the remaining issue herein.
In Melendez-Carrion, the appellants challenged, inter alia, the constitutionality of continued pretrial detention under the Bail Act, where such detention was based upon grounds of dangerousness to the community. Judge Newman found the statute facially unconstitutional in authorizing, even for a brief time, such pretrial incarceration of a competent adult criminal defendant. Chief Judge Feinberg, concurring in the result of Judge Newman’s opinion, found continued confinement for a period over eight months, solely on the ground of dangerousness, a violation of due process since it inflicted punishment without an adjudication of guilt. Judge Timbers vigorously dissented from each of these views. The effect of Judge Feinberg’s and Judge Newman’s decisions render unconstitutional the continued pretrial detention of the appellant herein on the basis of the dangerousness prong of the Bail Act.
Frisone has been denied bail and detained for nearly twelve months on federal charges solely on the ground of dangerousness under the Bail Act. We are constrained to find that the continued confinement of appellant is affected by the majority position as to result in Melendez-Carrion. Consequently, we vacate the order of the district court and remand for the district court to determine whether there are conditions of release which will reasonably assure appellant’s appearance as required, and, if so, to establish appropriate conditions of release. We withhold issuance of the mandate herein pending issuance of the mandate in Melendez-Carrion.
Vacated and remanded with instructions.
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_numresp
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
EDWARD B. MARKS MUSIC CORPORATION, Plaintiff-Appellant, v. COLORADO MAGNETICS, INC., d/b/a Sound Values, Inc., et al., Defendants-Appellees.
No. 73-1395.
United States Court of Appeals, Tenth Circuit.
Submitted Nov. 13, 1973.
Decided Feb. 28, 1974.
As Modified on Rehearing May 28, 1974.
Simon H. Rifkind, New York City (James D. Fellers, Frank A. Gregory, Fellers, Snider, Baggett, Blankenship & Bailey, Oklahoma City, Okl., and of counsel, John C. Taylor, III, Stuart Robinowitz, Sidney S. Rosdeitcher, Steven B. Rosenfeld, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Robert C. Osterberg, John S. Clark, Abeles, Clark & Osterberg, Charles B. Lutz, Jr., Speck, Philben & Fleig, Oklahoma City, Okl., on the brief), for plaintiff-appellant.
Jerry J. Dunlap, Oklahoma City* Okl. (Charles A. Codding, Dunlap, Laney, Hessin & Dougherty, Oklahoma City, Okl., on the brief), for defendants-appellees.
Before LEWIS, Chief Judge, and MURRAH and- McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
This is a so-called tape piracy ease. Edward B. Marks Music Corporation, hereinafter referred to as Marks, is an independent music publisher and, as such, is the owner of copyrights in numerous musical compositions. Marks, through its licensing agent, the Harry L. Fox Agency, Inc., has authorized various record companies to make recordings of compositions in which it, Marks, owns the copyright. The recording companies thus licensed by Marks to reproduce or record its copyrighted musical compositions have hired artists who have made recordings of the musical compositions here involved. Such recordings are then offered for sale to the general public.
Colorado Magnetics, Inc., hereinafter referred to as Magnetics, with no authorization from Marks, has also made recordings of musical compositions in which Marks owns the copyrights and has offered its recordings for sale to the general public at a price well below the retail price of the recordings produced by those recording companies licensed by Marks to record its copyrighted compositions. Magnetics’ modus operandi is to first purchase on the open market individual “hit” records thus made by those recording companies licensed by Marks to use its copyrighted compositions. Magnetics then duplicates or copies the recording with its own sound equipment on magnetic tape and offers for sale to the general public its duplicated or copied cassette tape recordings. Magnetics, of course, is able to undersell because, by simply copying the records made by others, it avoids the considerable expense incurred by the licensed recording companies in the hiring of arrangers, an orchestra, and the featured recording artists incident to their recordings.
It was in this general setting that Marks brought a copyright infringement action against Magnetics, seeking damages and injunctive relief. The gist of Marks’ complaint is that Magnetics is making an unauthorized and unlawful use of musical compositions in which it, Marks, owns the copyrights. Magnetics, by answer, denied copyright infringement, and alleged that its use of Marks’ copyrighted compositions is authorized by the so-called “compulsory license” provisions of the Copyright Law, namely, 17 U.S.C. §§ 1(e) and 101(e). Additionally, and alternatively, Magnetics alleged that Marks was guilty of certain antitrust violations which preclude it from enforcing its copyrights.
The case was initially set down for hearing on Marks’ request for a preliminary injunction. However, before such hearing was held, the parties agreed that a hearing on the merits would be combined with the hearing on the preliminary injunction. Upon trial, the only witness called was the president of Marks. Additionally, four depositions were offered, and received into evidence, the two principal owners of Magnetics having been among those thus deposed. Also, considerable documentary material was offered, and received, without objection. And this was the extent of the evidentiary matter before the trial court.
At the conclusion of the trial, the trial court asked the respective parties to submit proposed findings and conclusions. Thus the parties did and the trial court elected to adopt, virtually without change, the findings and conclusions submitted by Magnetics, all of which, needless to say, resulted in a smashing victory on all fronts for Magnetics. In this regard, we note that the Supreme Court in United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), observed that findings and conclusions prepared by counsel and adopted, more or less verbatim, by a trial court are less helpful on review than findings and conclusions drawn with the “insight of a disinterested mind.” We agree.
In any event, the trial court specifically found that Magnetics in its use of Marks’ copyrighted musical compositions did not infringe on Marks’ copyrights and that Magnetics’ duplication of records playing Marks’ copyrighted compositions was authorized by the compulsory license provisions of 17 U.S.C. §§ 1(e) and 101(e). Alternatively, and additionally, the trial court went on to find that Marks was guilty of certain antitrust violations which precluded recovery; that because of its “misuse” of the copyrights in question Marks was es-topped; and that Marks’ “unclean hands” also barred recovery. In line with such findings and conclusions, the trial court dismissed the proceedings and awarded Magnetics its costs and attorneys’ fees. The complete findings and conclusions of the trial court are reported in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 357 F.Supp. 280 (W.D.Okl.1973). In this regard, we note that though the trial court made written findings and conclusions, it did not render, as such, an opinion. From such judgment Marks now appeals. We reverse.
COMPULSORY LICENSE
In our view, the central issue in this case relates to the compulsory license provisions of 17 U.S.C. §§ 1(e) and 101(e). If Magnetics’ use of Marks’ copyrighted compositions falls within the ambit of that particular statutory provision, then Marks’ present action must fail. However, if Magnetics’ activities are outside the bounds of that statute, then Marks, as the copyright owner, is entitled to relief.
Although prior to 1909 a composer could obtain a copyright on his musical composition, Congress in 1909 considerably extended the copyright interest of the composer to the end that thereafter the copyright owner of a musical composition could himself control the mechanical reproduction of his composition. At the same time, fearful that by permitting a musical composition to be thus copyrighted it was permitting an absolute monopoly, Congress tacked on a proviso or exception to the statute authorizing the copyrighting of musical compositions. It is this proviso, which is a part of 17 U.S.C. § 1(e), with which we are here concerned. Such proviso reads as follows:
Provided, . . . as .a condition of extending the copyright control to such mechanical reproductions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof; .
As indicated, Magnetics claims that its use of Marks’ copyrighted composition in its duplication of records made by others is authorized by the foregoing statutory provision, which provides for a so-called compulsory license, in lieu of an express license from the copyright owner. In this general regard, it should be noted that Magnetics did file a notice of intent as required by 17 U.S.C. § 101(e) and did make a tender, of sorts, of the 2 cent royalty called for in 17 U.S.C. § 1(e). Marks refused the tender, and then instituted the present proceeding. We need not here concern ourselves with whether the tender complied with the statute, as, in our view, Magnetics’ use of Marks’ copyrighted compositions necessarily involved in its duplication or copying of the records of others, who are themselves licensed by Marks to record, finds no sanction in 17 U.S.C. § 1(e).
At the outset, we note that we are here concerned with a proviso or exception to the statute vesting a copyright interest in the composer of a musical composition and granting him the exclusive right to determine the use to be made of his copyrighted composition. In this regard, it is the general rule that a proviso should be strictly construed to the end that an exception does not devour the general policy which a law may embody. Shilkret v. Musicraft Records, Inc., 131 F.2d 929 (2d Cir. 1942), cert. denied, 319 U.S. 742, 63 S.Ct. 1030, 87 L.Ed. 1699 (1943).
As we read the statutory provisions here under consideration, one who owns the copyright in a musical composition has, in the first instance at least, absolute control over who records his composition. He may elect not to allow anyone to record his composition. However, when the composer elects to license another to “use . . . the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work,” then the compulsory license provisions of the statute may be invoked. Specifically, the statute provides that once the composer has licensed another to reproduce by recording the composer’s composition, then, upon payment of the statutory royalty, “ . . . any other person may make similar use of the copyrighted work . ” This means, to us, that one who complies with royalty payment called for by the statute, though not having any authorization from the copyright owner, may nonetheless then “use,” not a third party’s record, but the copyrighted composition, which has been characterized as the “raw material,” in a manner “similar” to that employed by the recording company which did have authorization from the copyright owner. There is, of course, nothing in the statute which affirmatively authorizes Magnetics to duplicate and copy the recording of one licensed by the copyright owner to reproduce his composition. However, under the statute Magnetics may “use” the copyrighted composition in a manner “similar” to that made by the licensed recording company. All of which means, to us, that Magnetics may make its own arrangements, hire its own musicians and artists, and then record. It does not mean that Magnetics may use the composer’s copyrighted work by duplicating and copying the record of a licensed recording company. Such, in our view, is not a similar use.
In thus construing the statute, we believe that the legislative history of these particular statutory provisions, from 1909 down to the amendments enacted in 1971, is conflicting and indecisive. More will be said later about the 1971 amendment. We further are aware that the decisions of the several federal district courts which have been faced with this particular question are in conflict. See, for example, Fame Publishing Co., Inc. v. S & S Distributors, Inc., 363 F. Supp. 984 (N.D.Ala.1973), where that court held that a compulsory licensee under 17 U.S.C. § 1(e) acquired no right to duplicate or copy the recordings of another and that one who seeks to rely on the compulsory license provisions of 17 U.S.C. § 1(e) “must hire some musicians, take them into a studio and make his own recording.” For a contrary view, see Jondora Music Publishing Co. v. Melody Recordings, Inc., 351 F.Supp. 572 (D.N.J.1972), where that court held that the Copyright Act of 1909 did not grant to the musical composition copyright holder the power to prevent third persons from copying a particular performance of his composition where (a) with the copyright holder’s permission a performance has already been fixed on a physical object capable of reproducing it, and (b) the third person has complied with the compulsory license provisions of the Act by filing and serving notices of intention and paying statutory royalties to the copyright owner.
The only Circuit Court faced with this precise problem is the Ninth. Duchess Music Corporation v. Stern, 458 F.2d 1305 (9th Cir. 1972), pet. for rehearing and rehearing en banc denied, April 26, 1972, cert. denied, 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972), about which more will be said later. And of course the Supreme Court has not yet passed on this particular issue. In our view, the recent case of Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), is not decisive of the present appeal. In Goldstein, the Court was concerned with the relationship between federal copyright law prior to the 1971 amendments and a California statute prohibiting the “piracy” of sound recordings by copying without permission of the recording company. The nature and extent of the interest of one having a copyright in a musical composition was not there considered.
As indicated, the Ninth Circuit has considered the meaning of 17 U.S.C. § 1(e). Duchess Music Corporation v. Stern, supra,. There was a strong dissent in Duchess. So, the majority opinion and the dissent in Duchess represent quite well the competing points of view on the meaning of 17 U.S.C. § 1(e). In Duchess, the majority held that the phrase “similar use” within the meaning of the Act of 1909 does not include the “right to copy” the recordings of others. We agree and are generally persuaded that the majority opinion in Duchess sets forth the proper interpretation of the statute.
As above indicated, in 1971 Congress amended the Copyright Law by making it possible for the first time to copyright the sound recording of a copyrighted composition, the effective date of this amendment being February 15, 1972. It is suggested that such amendment irrefutably indicates that Congress in 1971, at least, was of the view that the duplication or copying of sound recordings made prior to February 15, 1972, was lawful and in nowise inhibited by the Act of 1909. We do not think that such necessarily follows.
In the first place, we are of course not bound by Congress’ interpretation of a prior existing law. Golsen v. C. I. R., 445 F.2d 985 (10th Cir. 1971), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971). Indeed, whatever merit there may be in the practice of relying on the opinion of a later Congress as to the intent of an earlier one wanes with the length of time which separates the two sessions, which in the instant case was sixty-three years. United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). For an indication of the interpretation given the Act of 1909 by the judiciary shortly after its enactment, see Aeolian Co. v. Royal Music Roll Co., 196 F. 926 (W.D.N.Y.1912). In that case, it was held that § 1(e) of the Act providing that “any other person may make similar use of the copyrighted work” did not thereby secure the right to a subsequent user to “copy” the perforated piano rolls or records of another. The court then went on to declare that the would-be subsequent user could not avail himself of the skill and labor of the original manufacturer of the perforated roll or record by copying or duplicating the same, but had to resort to the copyrighted composition, and could not “pirate the work of a competitor who has made an original perforated roll.”
Secondly, the 1971 amendment created a copyrightable interest in the recording itself, the amendment to be effective February 15, 1972. We are here concerned with the nature and extent of the copyright interest of the composer, not the recording company. Such distinction we believe to be fundamental. Accordingly, we are not here concerned, as such, with the record, and its copying, but with the original composition and the copyright interest therein. This distinction we believe was indicated by us in Tape Head Company v. R. C. A. Corporation, 452 F.2d 816 (10th Cir. 1971). There, it was suggested by counsel that the 1971 amendment manifested an intention to grant persons situated as is Magnetics in the instant case a “carte blanche” to copy records made prior to February 15, 1972, free from any restriction, which in that case referred to state restrictions. In this general connection, however, we went on to say in Tape Head that “it is highly questionable from the authorities presented that the plaintiffs have, as a result of the Act of Congress, acquired a right to convert and use these recordings with impunity prior to February 15, 1972.” It is on this basis, then, that we are of the view that the 1971 amendment does not control the instant controversy.
ANTITRUST
As indicated, the trial court found, alternatively, that even if Marks had the right to maintain an infringement action, it was barred from obtaining any relief because of its own misconduct, particularly as concerns alleged antitrust violations. Assuming arguendo that an antitrust violation is a defense in a copyright infringement action, the record made in the trial court simply does not support its findings and conclusions. The evidentiary matter on this phase of the controversy is just too sketchy to support the trial court’s drastic and far-reaching findings of antitrust violations. Only certain aspects of this particular phase of the case need comment.
One finding of the trial court was that Marks was precluded from any recovery because it, along with the Harry L. Fox Agency, Inc., and others, had conspired to bring the present proceeding in an effort to stifle competition. This particular finding is pretty well undermined by the interpretation we have above given 17 U.S.C. § 1(e). In any event, in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), it was held that groups with common interests may, without violating the antitrust laws, use federal agencies and the courts to advocate their causes respecting resolution of their business and economic interests as opposed to their competitors. We recognize that in Trucking Unlimited the case was remanded to the trial court for, among other purposes, a factual determination as to whether the resort to the California regulatory agency was but a “mere sham” within the meaning of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). In the instant case, however, any suggestion of sham or bad faith on the part of Marks disappears in view of our determination that Marks in fact and in law has an enforceable copyright interest in its compositions. So, as we said in Semke v. Enid Automobile Dealers Ass’n., 456 F.2d 1361 (10th Cir. 1972), the utilization of the courts in a manner which is in accordance with the spirit of the law continues to be exempt from the antitrust laws. See also Alberto-Culver Company v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir. 1972), where it was held that a good faith effort to enforce one’s copyright is not the type of exclusionary conduct condemned by § 2 of the Sherman Act.
The trial court also found that Marks was estopped from obtaining relief because of its misuse of its copyrights as concerns its pricing policies and the like. In this regard, it is argued that Ampex, for example, is a compulsory licensee and is duplicating and copying records in a manner similar to Magnetics. We do not agree that Magnetics is in a similar position to that of Ampex. Ampex has been duplicating and copying, not the recordings of the licensed recording companies, but the master tapes of the recording companies, all with the latter’s permission and for a fee and with the consent of Marks, the copyright owner. See in this latter regard Colorado Pump & Supply Co. v. Febco, Inc., 472 F.2d 637 (10th Cir. 1973), where we recognized the right of a manufacturer to select the customers to whom he will sell so long as his conduct has no monopolistic or market control purposes.
Permeating the entire “antitrust” argument of Magnetics is the belief that Marks comes into court with unclean hands to the end that it is precluded from obtaining equitable relief. The record in our view does not support this position. In this regard, the following language from Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951), is deemed appropriate:
. We have here a conflict of policies: (a) that of preventing piracy of copyrighted matter and (b) that of enforcing the antitrust laws. We must balance the two, taking into account the comparative innocence or guilt of the parties, the moral character of their respective acts, the extent of the harm to the public interest, the penalty inflicted on the plaintiff if we deny it relief. As the defendants’ piracy is unmistakably clear, while the plaintiffs’ infraction of the antitrust laws is doubtful and at most marginal, we think the enforcement of the first policy should outweigh enforcement of the second.
In this same general connection, see also Hoehn v. Crews, 144 F.2d 665 (10th Cir. 1944), aff’d sub nom, Garber v. Crews, 324 U.S. 200, 65 S.Ct. 600, 89 L.Ed. 870 (1945), where it was noted that it is not required that one who would seek equity must himself possess “spotless hands” and that it is not “every stain” that will bar one from equitable relief.
Applying the rationale of such eases as Alfred Bell & Co. and Hoehn, we conclude that Marks is not precluded from relief because of any possible misconduct on its part. The long and short of this entire matter is that Marks owns a copyright to certain musical compositions and Magnetics seeks to use Marks’ property right without Marks’ consent and, in our view, in a manner not authorized by the compulsory license provisions of 17 U.S.C. § 1(e).
As is reflected in the trial court’s decision in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., supra, the “issue of liability” was separated for trial purposes. On the record before it, the trial court erred in entering judgment for Magnetics. Under the circumstances, it should have entered judgment for Marks. Accordingly, the judgment of the trial court is hereby reversed and the cause remanded with directions that it enter judgment for Marks on the “issue of liability.” Subsequent proceedings to determine the relief to which Marks is entitled should be consonant with the views herein expressed.
. Act of March 4, 1909, Pub.L.No.349, Chap. 320, 35 Stat. 1075; codified at 17 U.S.C. § 1(e). Congress felt this extension to have been necessary because the Supreme Court had held that perforated piano rolls and records were not “copies” of the composition which they reproduced. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908). See 43 Cong.Rec. 3765-3767 (Mar. 3, 1909).
. See H.R.Rep.No.2222, 60th Cong., 2d Sess. 7-8 (1909) ; Shapiro, Bernstein & Co., Inc. v. Remington Records, Inc., 265 F.2d 263 (2d Cir. 1959). However, it has been suggested that the breadth of the contemporary record industry belies any concern over monopolistic power. Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess. (H.R.Comm. Print 1961).
. Nor will we at the same time permit such a general policy to be obscured by “drastic technological changes” that have arisen since the enactment of the statute. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. David Lee TOWNSEND, Defendant-Appellant.
No. 71-1211.
United States Court of Appeals, Tenth Circuit.
Jan. 14, 1972.
Jack Speight, Asst. U. S. Atty. (Richard V. Thomas, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
Richard S. Hays, of Hemminger, McKendree, Vamos & Elliott, Denver, Colo., for defendant-appellant.
Before BREITENSTEIN, HILL and McWILLIAMS, Circuit Judges.
PER CURIAM.
David Lee Townsend, age 19, pleaded guilty to a Dyer Act violation (18 U.S.C. § 2312) and was sentenced to a maximum period of imprisonment of three years pursuant to the provisions of 18 U.S.C. § 4208(a) (2). On appeal the issue is whether in accepting the tendered plea of guilty the trial court complied with the mandatory requirements of Fed.R.Crim.P. 11. We find there was no such compliance.
On arraignment the trial court did make some inquiry of Townsend concerning whether there was a factual basis for Townsend’s tendered plea of guilty. However, our perusal of the record discloses that Townsend was in nowise informed as to the various consequences of his tendered plea, which would certainly include explanation as to the nature and extent of the punishment which could lawfully be imposed.
In McCarthy v. United States, 394 U. S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), it was held that Rule 11 requires a trial judge before accepting a plea of guilty to make inquiry as to the defendant’s understanding of the nature of the charge and the consequences of the plea, as well as inquiry designed to ascertain whether there is a factual basis for the proffered plea. McCarthy also holds that a defendant is entitled to plead anew if the trial court accepts a guilty plea without “fully adhering” to the procedure provided by Rule 11.
The rule of McCarthy has been applied by us in such cases as United States v. Birmingham, 454 F.2d 706 (10th Cir. 1971), and United States v. Sanders, 435 F.2d 1282 (10th Cir. 1970).
The judgment is reversed and the case remanded with direction that the trial court permit Townsend to withdraw his plea of guilty and plead anew.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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.
McCARTY v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, HARRISON DIVISION.
Circuit Court of Appeals, Eighth Circuit.
May 10, 1927.
No. 317.
1. Mandamus <@=>12 — Object of mandamus is to enforce performance of peremptory and plainly defined duty.
Object of writ of mandamus is to enforce performance of existing duty, Which must be both peremptory and plainly defined.
2. Mandamus <@=>14(1) — Mandamus will not lie to compel trial of prosecution against petitioner without previous request for trial.
Mandamus will not lie to compel trial of case against petitioner, who is accused of offense, unless judge is first requested to take steps toward procuring trial of such case.
3. Convicts <@=>5 — Prisoner, serving sentence for violating federal law, cannot be denied right to trial for other* offenses against United States.
Prisoner, serving sentence for violating law of United States, is not, during such imprisonment, immune from, nor can he be denied right to, trial for other offenses against United States.
4. Criminal law <§=>243 — Person serving sentence in federal penitentiary, demanding trial under pending indictment, may be brought to ' place of trial under statutory procedure (Rev. St. §§ 753, 1014 [Comp. St. §§ 1281, 1674]).
Where person is serving sentence in federal penitentiary in same judicial district where an indictment is pending against him under which he demands trial, writ of habeas corpus ad prosequendum, under Rev. St. § 753 (Oomp. St. § 1281), will bring accused to place of trial, and where removal is necessary from one district to another section 1014 (Comp. St. § 1674) may be invoked.
5. Habeas corpus <§=>45(I) — Federal courts may issue every species of writ of habeas corpus (Rev. St. § 751 [Comp. St. § 1279]).
Power conferred by Congress on courts of United States to issue writs of habeas corpus, under Rev. St. § 751 (Comp. St. § 1279), includes every species of such writ.
On Petition for Writ of Mandamus.
Petition for a writ of mandamus by James J. McCarty against tbe United States District Court for tbe Western District of Arkansas, Harrison Division.
Petition denied.
Before WALTER H. SANBORN, STONE, LEWIS, KENYON, VAN VALKENBURGH, and BOOTH, Circuit Judges.
PER CURIAM.
Tbe object of tbe writ of mandamus is to enforce tbe performance of an existing duty, not to create a new one. Tbe obligation must be both peremptory and plainly defined. Tbe law must not only authorize tbe act, but it must require it to be done. Frankel v. Woodrough, 7 F. (2d) 796 (C. C. A. 8).
In reference to tbe issuance of a writ of mandamus by an appellate court, it was said in tbe Erankel Case:
“Where a trial court refuses without proper cause to try an action pending therein; appellate jurisdiction is affected and prevented) because such jurisdiction cannot become operative and effective until a final order, judgment, or deeree is entered. Therefore, in such instances, tbe jurisdiction to issue original writs in aid of tbe appellate jurisdiction exists.”
There is nothing in tbe record here presented, however, to show that tbe judge of tbe United States District Court for the Western District of Arkansas has ever been requested to take any steps looking toward the trial of tbe case against petitioner, or that be knows of tbe whereabouts of petitioner. Nor does the record show that said judge has had anything to do with preventing petitioner from having a speedy trial, or that said judge has bad anything to do with petitioner being deprived of any rights to apply for parole from imprisonment. Eor these reasons tbe present petition for a writ of mandamus has been denied. Frankel v. Woodrough, supra; Bayard v. White, 127 U. S. 246, 8 S. Ct. 1223, 32 L. Ed. 116.
In the latter case the court said:
“The writ of mandamus is a remedy to compel the performance of a duty required by law, where the party seeking relief has no other legal remedy and the duty sought to be enforced is clear and indisputable. Knox County v. Aspinwall, 24 How. 377, 383 [16 L. Ed. 735]. Both requisites must concur in every case.”
However, it does appear from the petition that the petitioner is a citizen of the United States, and is now confined in the penitentiary at Leavenworth, Kan., undergoing sentence for an offense committed against the United States; that an indictment is pending in the Western district of Arkansas against petitioner for another offense against the United States alleged to have been committed by him; and by inference, that petitioner wishes to be speedily tried on this pending indictment. Such being the situation, it may not be amiss to point out that this court has held in Frankel v. Woodrough, supra, that “a prisoner serving sentence for violating a law of the United States is not, during such imprisonment, immune from nor can he be denied the right to trial for other offenses against the United States.” The Supreme Court of the United States in the case of Ponzi v. Fessenden et al., 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879, has approved the practice of allowing a person who is serving a sentence of imprisonment imposed by a federal court to be brought from his place of confinement and to be tried for another offense for which he has been indicted. The procedure in bringing the accused from his place of confinement to the place of trial will doubtless vary according to circumstances; but the trial court, by virtue of its inherent power over its own criminal calendar, is in a position to handle and control the situation.
Where a person is serving a sentence in a federal penitentiary in the same judicial district where an indictment is pending against him under which he demands trial, it would seem that a writ of habeas corpus ad prosequendum under section 753, Revised Statutes (Comp. St. § 1281), would answer; where the removal is necessary from one district to another, section 1014, Revised Statutes (Comp. St. § 1674), might be invoked. See Ponzi v. Fessenden, supra, page 261 (42 S. Ct. 309).
It may be added that the power conferred by Congress upon the courts of the United States to issue writs of habeas corpus (section 751, -Revised Statutes [Comp. St. § 1279]), includes every species of that writ. Ex parte Bollman, 4 Cranch, 75, 2 L. Ed. 554; State v. Sullivan (C. C.) 50 F. 593, 598.
We are assuming that a cordial co-operation with the trial court will exist on the part of the Attorney General and the district attorney, either upon simple request or upon formal order to show cause after application has been made by the party seeking a speedy trial.
The foregoing remarks are not to be taken as directions, but merely as suggestions which possibly may aid the trial court in disposing of the present and similar matters.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_respondent
|
064
|
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.
TOIBB v. RADLOFF
No. 90-368.
Argued April 22, 1991
Decided June 13, 1991
Peter M. Lieb argued the cause for petitioner. With him on the briefs were Timothy B. Dyk and Jonathan W. Belsky.
Stephen J. Marzen argued the cause for the United States, as respondent under this Court’s Rule 12.4, in support of petitioner. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, William Ranter, Bruce G. Forrest, and Martha Davis.
James Hamilton, by invitation of the Court, 498 U. S. 1065, argued the cause and filed a brief as amicus curiae in support of the judgment below.
Justice Blackmun
delivered the opinion of the Court.
In this case we must decide whether an individual debtor not engaged in business is eligible to reorganize under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq.
I
From March 1983 until April 1985, petitioner Sheldon Baruch Toibb, a former staff attorney with the Federal Energy Regulatory Commission, was employed as a consultant by Independence Electric Corporation (IEC), a company he and two others organized to produce and market electric power. Petitioner owns 24 percent of the company’s shares. After IEC terminated his employment, petitioner was unable to find work as a consultant in the energy field; he has been largely supported by his family and friends since that time.
On November 18, 1986, petitioner filed in the United States Bankruptcy Court for the Eastern District of Missouri a voluntary petition for relief under Chapter 7 of the Code, 11 U. S. C. § 701 et seq. The Schedule of Assets and Liabilities accompanying petitioner’s filing disclosed no secured debts, a disputed federal tax priority claim of $11,000, and unsecured debts of $170,605. Petitioner listed as nonexempt assets his IEC shares and a possible claim against his former business associates. He stated that the market value of each of these assets was unknown.
On August 6, 1987, the Chapter 7 trustee appointed to administer petitioner’s estate notified the creditors that the Board of Directors of IEC had offered to purchase petitioner’s IEC shares for $25,000. When petitioner became aware that this stock had such value, he decided to avoid its liquidation by moving to convert his Chapter 7 case to one under the reorganization provisions of Chapter 11.
The Bankruptcy Court granted petitioner’s conversion motion, App. 21, and on February 1, 1988, petitioner filed a plan of reorganization. Id., at 70. Under the plan, petitioner proposed to pay his unsecured creditors $25,000 less administrative expenses and priority tax claims, a proposal that would result in a payment of approximately 11 cents on the dollar. He further proposed to pay the unsecured creditors, for a period of six years, 50 percent of any dividends from IEC or of any proceeds from the sale of the IEC stock, up to full payment of the debts.
On March 8, 1988, the Bankruptcy Court on its own motion ordered petitioner to show cause why his petition should not be dismissed because petitioner was not engaged in business and, therefore, did not qualify as a Chapter 11 debtor. Id., at 121. At the ensuing hearing, petitioner unsuccessfully attempted to demonstrate that he had a business to reorganize. Petitioner also argued that Chapter 11 should be available to an individual debtor not engaged in an ongoing business. On August 1, the Bankruptcy Court ruled that, under the authority of Wamsganz v. Boatmen’s Bank of De Soto, 804 F. 2d 503 (CA8 1986), petitioner failed to qualify for relief under Chapter 11. App. to Pet. for Cert. A-17 and A-19.
The United States District Court for the Eastern District of Missouri, also relying on Wamsganz, upheld the Bankruptcy Court’s dismissal of petitioner’s Chapter 11 case. App. to Pet. for Cert. A-8 and A-9. The United States Court of Appeals for the Eighth Circuit affirmed, holding that the Bankruptcy Court had the authority to dismiss the proceeding sua sponte, and that the Circuit’s earlier Wams-ganz decision was controlling. In re Toibb, 902 F. 2d 14 (1990). Because the Court of Appeals’ ruling that an individual nonbusiness debtor may not reorganize under Chapter 11 clearly conflicted with the holding of the Court of Appeals for the Eleventh Circuit in In re Moog, 774 F. 2d 1073 (1985), we granted certiorari to resolve the conflict. 498 U. S. 1060 (1991).
II
A
In our view, the plain language of the Bankruptcy Code disposes of the question before us. Section 109, 11 U. S. C. § 109, defines who may be a debtor under the various chapters of the Code. Section 109(d) provides: “Only a person that may be a debtor under chapter 7 of this title, except a stockbroker or a commodity broker, and a railroad may be a debtor under chapter 11 of this title.” Section 109(b) states: “A person may be a debtor under chapter 7 of this title only if such person is not — (1) a railroad; (2) a domestic insurance company, bank, . . . ; or (3) a foreign insurance company, bank, . . . engaged in such business in the United States.” The Code defines “person” as used in Title 11 to “includ[e] [an] individual.” § 101(35). Under the express terms of the Code, therefore, petitioner is “a person who may be a debtor under chapter 7” and satisfies the statutory requirements for a Chapter 11 debtor.
The Code contains no ongoing business requirement for reorganization under Chapter 11, and we are loath to infer the exclusion of certain classes of debtors from the protections of Chapter 11, because Congress took care in § 109 to specify who qualifies — and who does not qualify — as a debtor under the various chapters of the Code. Section 109(b) expressly excludes from the coverage of Chapter 7 railroads and various financial and insurance institutions. Only municipalities are eligible for the protection of Chapter 9. § 109(c). Most significantly, § 109(d) makes stockbrokers and commodities brokers ineligible for Chapter 11 relief, but otherwise leaves that Chapter available to any other entity eligible for the protection of Chapter 7. Congress knew how to restrict recourse to the avenues of bankruptcy relief; it did not place Chapter 11 reorganization beyond the reach of a nonbusiness individual debtor.
B
The amicus curiae in support of the Court of Appeals’ judgment acknowledges that Chapter 11 does not expressly exclude an individual nonbusiness debtor from its reach. He echoes the reasoning of those courts that have engrafted an ongoing-business requirement onto the plain language of § 109(d) and argues that the statute’s legislative history and structure make clear that Chapter 11 was intended for business debtors alone. See, e. g., Wamsganz v. Boatmen’s Bank of De Soto, 804 F. 2d, at 505 (“The legislative history of the Bankruptcy Code, taken as a whole, shows that Congress meant for chapter 11 to be available to businesses and persons engaged in business, and not to consumer debtors”). We find these arguments unpersuasive for several reasons.
First, this Court has repeated with some frequency: “Where, as here-, the resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.” Blum v. Stenson, 465 U. S. 886, 896 (1984). The language of § 109 is not unclear. Thus, although a court appropriately may refer to a statute’s legislative history to resolve statutory ambiguity, there is no need to do so here.
Second, even were we to comments urged in support of a congressional intent to exclude a nonbusiness debtor from Chapter 11, the scant history on this precise issue does not suggest a “clearly expressed legislative intenft] . . . contrary ...” to the plain language of § 109(d). See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The ami-cus does point to the following statement in a House Report:
“Some consumer debtors are unable to avail themselves of the relief provided under chapter 13. For these debtors, straight bankruptcy is the only remedy that will enable them to get out from under the debilitating effects of too much debt.” H. R. Rep. No. 95-595, p. 125 (1977).
Petitioner responds with the following excerpt from a later Senate Report:
“Chapter 11, Reorganization, is primarily designed businesses, although individuals are eligible for relief under the chapter. The procedures of chapter 11, however, are sufficiently complex that they will be used only in a business case and not in the consumer context.” S. Rep. No. 95-989, p. 3 (1978).
These apparently conflicting views tend to negate the suggestion that the Congress enacting the current Code operated with a clear intent to deny Chapter 11 relief to an individual nonbusiness debtor.
Finally, we are not persuaded by the contention that Chapter 11 is unavailable to a debtor without an ongoing business because many of the Chapter’s provisions do not apply to a nonbusiness debtor. There is no doubt that Congress intended that a business debtor be among those who might use Chapter 11. Code provisions like the ones authorizing the appointment of an equity security holders’ committee, § 1102, and the appointment of a trustee “for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management ...,”§ 1104(a)(1), certainly are designed to aid in the rehabilitation of a business. It does not follow, however, that a debtor whose affairs do not warrant recourse to these provisions is ineligible for Chapter 11 relief. Instead, these provisions — like the references to debtor businesses in the Chapter’s legislative history — reflect an understandable expectation that Chapter 11 would be used primarily by debtors with ongoing businesses; they do not constitute an additional prerequisite for Chapter 11 eligibility beyond those established in § 109(d).
HH 1 — 1
Although the foregoing analysis is dispositive of the question presented, we deal briefly with amicus’ contention that policy considerations underlying the Code support inferring a congressional intent to preclude a nonbusiness debtor from reorganizing under Chapter 11. First, it is said that bringing a consumer debtor within the scope of Chapter 11 does not serve Congress’ purpose of permitting business debtors to reorganize and restructure their debts in order to revive the debtors’ businesses and thereby preserve jobs and protect investors. This argument assumes that Congress had a single purpose in enacting Chapter 11. Petitioner suggests, however, and we agree, that Chapter 11 also embodies the general Code policy of maximizing the value of the bankruptcy estate. See Commodity Futures Trading Comm’n v. Weintraub, 471 U. S. 343, 351-354 (1985). Under certain circumstances a consumer debtor’s estate will be worth more if reorganized under Chapter 11 than if liquidated under Chapter 7. Allowing such a debtor to proceed under Chapter 11 serves the congressional purpose of deriving as much value as possible from the debtor’s estate.
Second, amicus notes that a consumer proceed under Chapter 11 would permit the debtor to shield both disposable income and nonexempt personal property. He argues that the legislative history of Chapter 11 does not reflect an intent to offer a consumer debtor more expansive protection than he would find under Chapter 13, which does not protect disposable income, or Chapter 7, which does not protect nonexempt personal assets. As an initial matter, it makes no difference whether the legislative history affirmatively reflects such an intent, because the plain language of the statute allows a consumer debtor to proceed under Chapter 11. Moreover, differences in the requirements and protections of each chapter reflect Congress’ appreciation that various approaches are necessary to address effectively the disparate situations of debtors seeking protection under the Code.
Amicus does not contend that allowing a consumer debtor to reorganize under Chapter 11 will leave the debtor’s creditors in a worse position than if the debtor were required to liquidate. See Tr. of Oral Arg. 29-31. Nor could he. Section 1129(a)(7) provides that a reorganization plan may not be confirmed unless all the debtor’s creditors accept the plan or will receive not less than they would receive under a Chapter 7 liquidation. Because creditors cannot be expected to approve a plan in which they would receive less than they would from an immediate liquidation of the debtor’s assets, it follows that a Chapter 11 reorganization plan usually will be confirmed only when creditors will receive at least as much as if the debtor were to file under Chapter 7. Absent some showing of harm to the creditors of a nonbusiness debtor allowed to reorganize under Chapter 11, we see nothing in the allocation of “burdens” and “benefits” of Chapter 11 that warrants an inference that Congress intended to exclude a consumer debtor from its coverage. See Herbert, Consumer Chapter 11 Proceedings: Abuse or Alternative?, 91 Com. L. J. 234, 245-248 (1986).
Amicus also warns that allowing consumer debtors to proceed under Chapter 11 will flood the bankruptcy courts with plans of reorganization that ultimately will prove unworkable. We think this fear is unfounded for two reasons. First, the greater expense and complexity of filing under Chapter 11 likely will dissuade most consumer debtors from seeking relief under this Chapter. See S. Rep. No. 95-989, at 3; see also Herbert, supra, at 242-243. Second, the Code gives bankruptcy courts substantial discretion to dismiss a Chapter 11 case in which the debtor files an untenable plan of reorganization. See §§ 1112(b) and 1129(a).
Finally, amicus asserts that extending Chapter 11 to consumer debtors creates the risk that these debtors will be forced into Chapter 11 by their creditors under § 303(a), a result contrary to the intent reflected in Congress’ decision to prevent involuntary bankruptcy proceedings under Chapter 13.' In particular, he suggests that it would be unwise to force a debtor into a Chapter 11 reorganization, because an involuntary debtor would be unlikely to cooperate in the plan of reorganization — a point that Congress noted in refusing to allow involuntary Chapter 13 proceedings. See H. R. Rep. No. 95-595, at 120.
We find these concerns overstated in light of the Code’s provisions for dealing with recalcitrant Chapter 11 debtors. If an involuntary Chapter 11 debtor fails to cooperate, this likely will provide the requisite “cause” for the bankruptcy court to convert the Chapter 11 case to one under Chapter 7. See § 1112(b). In any event, the argument overlooks Congress’ primary concern about a debtor’s being forced into bankruptcy under Chapter 13: that such a debtor, whose future wages are not exempt from the bankruptcy estate, § 1322(a)(1), would be compelled to toil for the benefit of creditors in violation of the Thirteenth Amendment’s involuntary servitude prohibition. See H. R. Rep. No. 95-595, at 120. Because there is no comparable provision in Chapter 11 requiring a debtor to pay future wages to a creditor, Congress’ concern about imposing involuntary servitude on a Chapter 13 debtor is not relevant to a Chapter 11 reorganization.
IV
The plain language of the Bankruptcy vidual debtors not engaged in business to file for relief under Chapter 11. Although the structure and legislative history of Chapter 11 indicate that this Chapter was intended primarily for the use of business debtors, the Code contains no “ongoing business” requirement for Chapter 11 reorganization, and we find no basis for imposing one. Accordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
Because petitioner’s unsecured debts exceeded $100,000 and he had no regular income, he was ineligible to proceed under Chapter 13 of the Code, 11 U. S. C. § 1301 et seq. See § 109(e).
Petitioner does not seek further review of the question whether he is engaged in an ongoing business.
The Eighth Circuit also agreed with what it regarded as the supporting precedent of In re Little Creek Development Co., 779 F. 2d 1068 (CA5 1986), and In re Winshall Settlor’s Trust, 758 F. 2d 1136 (CA6 1985).
The named respondent, Stuart J. Radloff, was dismissed as Chapter 7 trustee when the Bankruptcy Court converted petitioner’s case to one under Chapter 11. Mr. Radloff did not participate in the proceedings before the Court of Appeals and refrained from responding to Mr, Toibb’s petition for certiorari filed with this Court. We therefore specifically requested the United States Trustee, see 28 U. S. C. §581(a)(13), to respond. In doing so, the United States Trustee indicated his agreement with petitioner’s position and suggested that, if this Court decided to review the case, it might wish to appoint counsel to defend the Eighth Circuit’s judgment. We then invited James Hamilton, Esq., of Washington, D. C., a member of the Bar of this Court, to serve as amicus curiae in support of the judgment of the Court of Appeals. 498 U. S. 1065 (1991). Mr. Hamilton accepted this appointment and has well fulfilled this assigned responsibility.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_method
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
Anna May WOOD v. Rocky Alan DAY and Giant Food, Inc., Appellants.
No. 87-7231.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1988.
Decided Oct. 28, 1988.
Jayson L. Spiegel, with whom Dwight D. Murray and David P. Durbin, Washington, D.C., were on the brief, for appellants. Mary Ann Snow, Washington, D.C., also entered an appearance for appellants.
H. Vincent McKnight, Jr., Washington, D.C., with whom James M. Hanny, Land-over, Md., was on the brief, for appellee.
Before WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
This appeal is from a judgment entered on a jury’s verdict in a case of negligence arising from a rear-end collision. Because liability was admitted by defendants, Rocky Alan Day and Giant Food, Inc. (collectively “appellants”), the sole issue at trial was damages. The jury awarded plaintiff Anna May Wood (“Wood” or “ap-pellee”) damages of $100,000 via a general verdict. Appellants argue that the verdict was based on erroneous instructions allowing recovery for elements of damages not supported by the evidence. We agree, vacate the award, and remand for further proceedings.
Factual Background
The facts, considered in the light most favorable to the appellee, are as follows:
Appellee, a woman of approximately fifty-two years of age, had been living asymp-tomatically with a degenerative spinal condition known as spondylolisthesis, the breaking down or slipping of the vertebral column. On November 17, 1983, a taxi cab occupied by Ms. Wood was struck from behind by a tractor-trailer driven by appellant Day, an employee of the trailer’s owner, appellant Giant Food, Inc. Ms. Wood was taken from the scene to Prince George’s General Hospital, where she was examined, x-rayed, and released shortly thereafter.
Beginning on November 28, 1983, and over the next three years, Ms. Wood made 22 visits to an orthopedist, Dr. Rida Azer. Dr. Azer initially recommended physical therapy and prescribed medication, opining that further testing would be required if her condition did not improve. For approximately three years, Ms. Wood underwent numerous tests and treatments, including regular participation in physical therapy. Over the years, the frequency of her consultations and treatment tapered off, so that by May 1987, Ms. Wood had seen Dr. Azer only twice in the preceding eleven months, and had been advised by him to cease therapy.
At trial Ms. Wood testified that prior to the accident she had been a cashier at a department store for more than twenty years, and that, though limited to “light duties” after the accident, she remained employed by the company in an associated store. Ms. Wood testified that she was in constant pain and that her range of activities was considerably diminished. Although appellee introduced no evidence as to her pre-accident earnings, she testified that her new position paid $6.80 per hour.
The evidence at trial established that Ms. Wood had sustained permanent injury to the lumbosacral spine and a narrowing of the intervertebral disc space as a result of the accident, causing further spinal degeneration. Though Dr. Azer testified that Ms. Wood’s condition worsened from a grade one to a grade two spondylolisthesis within two weeks of the accident, appellants’ expert witness, Dr. Edward Anthony Rankin, testified that Ms. Wood’s preexisting vertebral condition eventually would have become symptomatic had the accident not occurred.
Dr. Azer testified that in his opinion Ms. Wood’s injury was permanent, would result in continued spinal deterioration, and would permanently restrict her ability to engage in a range of endeavors, including strenuous activity and prolonged sitting or standing, limitations “that she will have to abide by for the rest of her life.” Dr. Azer also testified that while surgery would normally be the optimal course of action, he did not believe it was appropriate for Ms. Wood because of her significant heart and weight problems. For these reasons, Dr. Azer was “very reluctant” to recommend surgery, as Ms. Wood could “end up by having a blood clot or a heart attack, or something.” In his opinion, surgery should be “avoid[ed] as long as possible, until it becomes almost an emergency.” Though Dr. Azer stated that Ms. Wood would need further medical attention, upon appellants’ objection the District Court ruled that Dr. Azer was not able to render an opinion as to the likelihood of surgery with the requisite degree of certainty. Though the Court indicated its willingness to permit the introduction of evidence pertaining to prospective non-surgical medical attention, none was offered.
In its original charge, the Court instructed the jury over appellants’ objection that “you should award such a sum as will reasonably and adequately compensate the plaintiff for any loss of earnings which you find that the plaintiff will probably suffer in the future.” Appellants took exception to the instruction, arguing that the only evidence tending to show a loss of future earnings — that relating to a convalescence period following surgery — had been stricken. The Court disagreed, stating that “I heard something about having to go to the doctor.”
During its deliberations, the jury inquired of the Court as follows: “Can we consider probable future medical costs related to Miss Wood’s condition if we determine defendant is at fault?” Despite a previous statement by appellee’s counsel that such expenses were no longer sought, and over appellants’ objection, the District Court instructed the jury that “you may consider probable future medical expenses, if any, except that you may not consider the cost of surgery.” The Court did so because, in its opinion, the jury (1) could “extrapolate” the number of visits Ms. Wood would make for treatment based on the frequency of her visits in the past; and (2) it could “infer” from the evidence regarding Ms. Wood’s pain that a doctor “will be giving her aspirin or valium, or whatever.”
Before trial, appellants stipulated that as of September 1986, Ms. Wood had accumulated $1,459.90 in lost wages, and medical bills totalling $6,199.13 as a result of the accident. By way of a general verdict, the jury awarded appellee $100,000. After appellants’ motions for a new trial and for remittitur were denied, this appeal followed.
Analysis
The primary purpose of compensatory damages in personal injury cases “is to make the plaintiff whole.” Kassman v. American University, 546 F.2d 1029, 1033 (D.C.Cir.1976). Accordingly, if properly proved at trial, both future medical expenses and loss of future earnings are recoverable. Cf. District of Columbia v. Barriteau, 399 A.2d 563, 567 (D.C.1979).
It is well established that notwithstanding the jury’s broad discretion in awarding damages, its award must be supported by substantial evidence. Doe v. Binker, 492 A.2d 857, 860 (D.C.1985). Damages may not be based on mere speculation or guesswork. Eureka Invest. Corp., N.V. v. Chicago Title Ins. Co., 743 F.2d 932, 939 (D.C.Cir.1984); Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C.1982); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250-51, 75 L.Ed. 544 (1931). Thus, “[w]hile damages are not required to be proven with mathematical certainty, there must be some reasonable basis on which to estimate damages.” Romer, 449 A.2d at 1100 (citing Designers of Georgetown, Inc. v. E.C. Keys & Sons, 436 A.2d 1280, 1281 (D.C.1981); District Concrete Co. v. Bernstein Concrete Corp., 418 A.2d 1030, 1038 (D.C.1980)).
And despite the jury’s discretion, “[i]t is elementary that an instruction should not be given if there is no evidence to support it.” Ceco Corp. v. Coleman, 441 A.2d 940, 949 (D.C.1982); Kasmer v. Sternal, 165 F.2d 624, 626 (D.C.Cir.1948). The evidence presented must be more than a “scintilla,” Doe, 492 A.2d at 860, and, indeed, when recovery is sought for future consequences of a tort, damages are “available only if such consequences are reasonably certain. Unless there is nonspeculative evidence demonstrating that future suffering, additional medical expense, and loss of income will occur, the question should not be submitted to the jury.” Curry v. Giant Food Co., 522 A.2d 1283, 1291 (D.C.1987) (citing American Marietta Co. v. Griffin, 203 A.2d 710, 712 (D.C.1964); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir.1982)). This Circuit has previously stated that damages for future consequences are recoverable only if plaintiff establishes that it is “more likely than not (a greater than 50% chance) that the projected consequence will occur.” Wilson, 684 F.2d at 119. See also Griffin, 203 A.2d at 712.
While errors limited to individual components of an instruction must be viewed in context, and not in isolation, Ceco Corp. v. Coleman, 441 A.2d at 950, and may be ignored if they are “immaterial” in light of the jury’s verdict, 11 C. Wright & A. Miller, Federal Practice & Procedure § 2886, 290-91 (1973) (“Wright & Miller”), a reviewing court should not turn its back on significant errors that may have substantially prejudiced a party’s rights. Cf. Ceco, 441 A.2d at 950; Wright & Miller, supra, at 291-92.
Appellee’s pretrial and trial documents undeniably demonstrate an intention to recover for future medical expenses and loss of future earnings. The sole theory upon which such recoveries were predicated was the possibility of future surgery, and a concomitant convalescence period. When asked by the Court whether he intended to introduce evidence of loss of future earnings, appellee’s counsel responded that “the doctor will testify that if the surgery is performed, [Ms. Wood] will be out of work for a six-month period of time. So there will be evidence of that.” Likewise, the only evidence offered regarding future medical expenses was Dr. Azer’s estimation of expenses associated with orthopedic surgery. However, the Court ultimately disallowed the introduction of Dr. Azer’s testimony as to the likelihood of surgery, ruling that Dr. Azer lacked the requisite degree of certainty to give an expert opinion. That decision is not challenged herein.
A careful search of the record reveals no word of testimony from any witness that would otherwise support an award of future medical expenses or loss of future earnings. Indeed, after his attempts to introduce evidence as to future surgery were rebuffed, appellee’s counsel abandoned his quest for future medical expenses, indicating to the Court that “we are not going to be arguing ... future medical expenses,” and thus requested that the Court omit a portion of the previously agreed-to jury instructions that would have allowed appellants to comment on Ms. Wood’s failure to call the physician who would perform the contemplated surgery. The Court consented. As noted above, it was only after the jury later inquired that the Court gave its instruction that permitted the jury to consider future medical expenses.
While it is true that evidence was introduced regarding past expenses and lost wages, this was not sufficient to support the Court’s instruction on the future elements. Appellee’s reliance on American Marietta Co. v. Griffin, 203 A.2d 710 (D.C.1964), is misplaced. In Griffin, the Court rejected an appellant’s argument that because there was no medical testimony indicating that plaintiff’s injury was permanent, the jury should not have been allowed to award permanent residual damages. The Court concluded that “when the bad effects of an injury have continued for years, laymen may reasonably infer permanence, even though there is no expert prediction that these injury residuals will continue,” and that “[ejvidence of pain and suffering in existence at the time of trial has been held sufficient to take the question of permanence to the jury.” Id. at 712 (citations omitted). Griffin has been interpreted as standing for the proposition that “absent medical testimony that injuries are temporary, a plaintiff's testimony concerning continuing pain and suffering will be sufficient to send the issue of permanency to the jury.” Davis v. Abbuhl, 461 A.2d 473, 476 n. 5 (D.C.1983) (latter emphasis added). Griffin did not discuss — and we do not interpret it to imply — what quantum of evidence is sufficient to send the issues of future lost wages and medical expenses to the jury. More germane to the present case is Curry v. Giant Food Co., 522 A.2d at 1291, where the Court affirmed the trial judge’s refusal to submit the issue of future loss of income to the jury. After noting that only “reasonably certain” future damages are recoverable, the Court stated that “[ujnless there is nonspecula-tive evidence demonstrating that future suffering, additional medical expenses, and loss of income will occur, the question should not be submitted to the jury.” Id. See also Snead v. United States, 595 F.Supp. 658, 667 (D.D.C.1984) (allowing a claim for future damages on the basis of “the reasoned and persuasive testimony ... as to [plaintiff’s] life expectancy and anticipated medical needs, including the likelihood of future radiation, therapy, chemotherapy and surgery”).
Even if the trial judge were correct that he “heard something about having to go to the doctor,” this was not sufficient to submit appellee’s claim of loss of future earnings to the jury. Similarly, even if it was reasonable to surmise that Ms. Wood would require “aspirin or valium, or whatever,” this would not be sufficient to submit her claim for future medical expenses to the jury. Neither amounts to the “reasonable certainty” required under District of Columbia law to take these elements out of the realm of speculation. In short, there was no substantial evidence upon which the jury could “extrapolate” Ms. Wood’s future medical expenses.
Conclusion
As we have shown, once the testimony as to the possibility of surgery was excluded, there was no evidence in 'the record to support instructions as to loss of future earnings or future medical expenses. In such a case a jury may not be allowed to speculate, and this, under the instructions it was given, is what this jury was allowed to do.
Vacated and remanded for a new trial, limited to the issue of damages.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Kevin WHITE, Defendant-Appellant.
No. 941, Docket 91-1376.
United States Court of Appeals, Second Circuit.
Argued Feb. 20, 1992.
Decided Nov. 19, 1992.
Richard A. Reeve, Asst. Federal Public Defender, New Haven, Conn., for defendant-appellant.
Anthony E. Kaplan, Asst. U.S. Atty., D.Conn., New Haven, Conn. (Albert S. Da-browski, U.S. Atty., D.Conn., of counsel), for appellee.
Before: VAN GRAAFEILAND, KEARSE, and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
Defendant-appellant Kevin White appeals from a sentence imposed pursuant to a judgment of conviction entered in the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, on May 31, 1991 after a jury trial. White was sentenced to a statutory minimum of twenty years imprisonment based upon a prior conviction for a felony drug offense, in accordance with 21 U.S.C. § 841(b)(1)(A) (1988 & Supp. II 1990). United States v. White, 764 F.Supp. 254 (D.Conn.1991).
White asserts that this sentencing enhancement was improper because the government failed to file the information required by 21 U.S.C. § 851(a)(1) (1988) to trigger such enhancement “before trial,” as mandated by that statute. After an initial filing with the office of the clerk of the district court in Bridgeport, Connecticut that was rejected by that office, the government filed the information a second time before the jury had been sworn or evidence taken, but after jury selection had occurred. The government contends, and the district court ruled, that the second filing occurred “before trial” within the meaning of § 851(a)(1). The government also argues that in any event, there was substantial compliance with the statute.
We conclude that the initial filing was erroneously rejected by the clerk's office, and remand for a determination whether that filing occurred “before trial.”
Background
On July 5, 1990, White was indicted on two counts by a federal grand jury sitting in the District of Connecticut. Count one of the indictment charged White with conspiring to possess with intent to distribute fifty grams or more of “crack” cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1988). Count two charged White with employing a minor to distribute fifty grams or more of “crack” cocaine in violation of 21 U.S.C. § 845b (1988) and 18 U.S.C. § 2 (1988). White’s arrest and indictment resulted from a transaction on January 10, 1990 in which White directed the delivery of crack cocaine by a minor to an undercover police officer.
White was arraigned on July 19, 1990. At the arraignment, White was represented by counsel and entered a plea of not guilty. Prior- to the entry of White’s plea, the district court instructed the government’s attorney to recite the penalties corresponding to the charges in the indictment. The attorney explained that count one of the indictment generally carried a penalty of ten years to life for the conspiracy charged, but that in this case the mandatory minimum penalty was twenty years imprisonment because White had a previous conviction for drug trafficking. The government’s attorney further stated that the penalty for count two of the indictment was also twenty years to life. Upon inquiry by the court, White responded that he understood the penalties that he faced if convicted of the charges contained in the indictment.
On September 5, 1990, the grand jury returned a three-count superseding indictment. In addition to recharging the counts stated in the initial indictment, the superseding indictment charged White with possessing with intent to distribute fifty grams or more of “crack” cocaine within 1000 feet of an elementary school in violation of 21 U.S.C. §§ 841(a)(1) and 845a(a) (1988) and 18 U.S.C. § 2 (1988). On September 20, 1990, White was arraigned on the superseding indictment. As during the initial arraignment, White was represented by counsel, pled not guilty, and was explicitly advised that he confronted penalties of twenty years to life on each of the counts charged in the superseding indictment. Once again, White stated that he understood the charges and their corresponding penalties.
During the pendency of the prosecution, but well before trial, the government informed defense counsel of its intention to file a § 851 information. In the course of plea negotiations, however, government counsel indicated that if White agreed to plead guilty to count one of the superseding indictment, the government would forgo its right to file the § 851 information and seek enhanced punishment under § 841(b)(1)(A). Ultimately, the negotiations proved unavailing, and the government undertook to file the information.
On November 29, 1990, the government mailed the information for filing to the office of the clerk of the district court in Bridgeport, Connecticut. A copy of the information was also mailed that same day to White’s trial counsel at the address stated in the docket sheet and the notice of appearance filed by that attorney.
On December 3, 1990, a jury was selected for trial, but was not sworn. The next day, the government received in the mail from the clerk’s office the original unfiled § 851 information, with a notice that the information had not been accepted for filing because no address for the attorney of record appeared on the signature page of the information.
The government’s brief on appeal asserts that failure to include the attorney’s address was apparently deemed by the clerk to contravene D.Conn.Crim.R. I, which incorporates by reference twenty-one provisions of the District of Connecticut Rules of Civil Procedure, including D.Conn.Civ.R. 6. The latter rule states in pertinent part that: “All pleadings must be prepared in conformity with the Federal Rules of Civil Procedure_ Pleadings that do not conform to [this requirement] will not be accepted by the Clerk.” Fed.R.Civ.P. 11 requires that: “Every pleading, motion, and other paper of a party represented by an attorney shall be signed by [the] attorney of record..., whose address shall be stated (emphasis added).” Thus, the omission of the attorney’s address was apparently considered a violation of Fed.R.Civ.P. 11, incorporated via D.Conn.Civ.R. 6 in D.Conn.Crim.R. 1. There is nothing in the record that directly expresses the clerk’s rationale for rejecting the initial filing; only the fact of rejection is clear.
Upon receipt of the rejected information, the government supplied the requisite address on the signature page and mailed the amended information that same day to the clerk’s office. The information was received and filed by the clerk’s office on the next day, December 5, 1990. White’s counsel did not receive a copy of the information until December 11, 1990, evidently because counsel changed his address during the pendency of the case without notice to the court or opposing counsel.
On December 13, 1990, the jury was sworn and the presentation of evidence commenced. At the trial’s conclusion, White was convicted on all three counts charged in the superseding indictment. Prior to sentencing, White filed a motion to dismiss the § 851 information, contending that it was not filed “before trial” as required by the statute.
The district court denied White’s motion. White, 764 F.Supp. at 255. The court noted that although § 851(a)(1) clearly requires that the information be filed before trial, the statute does not specify what event determines the commencement of trial. Id. Applying principles developed in the area of double jeopardy, the court concluded that a trial commences for § 851 purposes when the jury is sworn and jeopardy attaches, not when the jury is selected. Id. Because the § 851 information was filed and served before the jury was sworn, the court concluded that the government had complied with the statute, and denied White’s motion. Id.
White was accordingly sentenced to the mandatory minimum sentence of twenty years pursuant to the § 841(b)(1)(A) enhancement. The court noted that had it not been bound by the mandatory minimum, it would have set sentence at fourteen years, "the minimum of the applicable Guidelines range of 168 to 210 months. This appeal followed.
Discussion
White contends on appeal that the district court erred in its interpretation of § 851(a)(1) to permit filing of a § 851 information after jury selection. The government defends the district court’s statutory construction, and additionally contends that in any event, there was substantial compliance with the statutory filing requirement.
We initially address the issue of statutory construction. We next consider, sua sponte, the question whether the clerk properly rejected the initial § 851 filing. Responding in the negative, we do not reach the government’s argument as to substantial compliance, and remand for a determination whether the initial filing occurred "before trial” within the meaning of § 851(a).
A. The Meaning of “Before Trial" in Section 851(a)(1).
Our interpretation of § 851(a)(1) must begin, of course, with the statute’s language. Mallard v. United States Dist. Court, 490 U.S. 296, 300, 109 S.Ct. 1814, 1817, 104 L.Ed.2d 318 (1989). Section 851 provides that the required information must be filed “before trial,” but does not specify the event which signifies the beginning of trial. The statute is accordingly ambiguous with respect to the issue presented for decision in this case. The parties agree, moreover, and the court concurs, that there is no relevant legislative history to assist our inquiry. Nor does the precise meaning of “before trial” become clear upon examination of the statutory context in which this phrase appears. Cf. McCarthy v. Bronson, — U.S. -, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991) ("statutory language must always be read in its proper context”).
We accordingly turn for assistance to some familiar canons of statutory construction. One requires that we read this language as taking its “ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) (citing Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 1184-85, 43 L.Ed.2d 469 (1975)). A second instructs us that “[u]se of the same language in various enactments dealing with the same general subject matter... is a strong indication that the statutes should be interpreted to mean the same thing.” Hargrave v. Oki Nursery, Inc., 646 F.2d 716, 720 (2d Cir.1980). These maxims counsel us to seek guidance in analogous enactments and judicial decisions.
In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme Court addressed the question whether supervision of jury selection was a delegable duty under the Federal Magistrates Act, 28 U.S.C. § 636(b)(3) (1988). In the course of ruling that it was not, the Court made the following pertinent observations:
Even though it is true that a criminal trial does not commence for purposes of the Double Jeopardy Clause until the jury is empaneled and sworn, Serfass v. United States, 420 U.S. 377, 388 [95 S.Ct. 1055, 1062, 43 L.Ed.2d 265] (1975), other constitutional rights attach before that point, see, e.g., Brewer v. Williams, 430 U.S. 387, 398 [97 S.Ct. 1232, 1239, 51 L.Ed.2d 424] (1977) (assistance of counsel). Thus in affirming voir dire as a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present, the Court wrote: “ ‘[W]here the indictment is for a felony, the trial commences at least from the time when the work of empanelling the jury begins.’ ” Lewis v. United States, 146 U.S. 370, 374 [13 S.Ct. 136, 137, 36 L.Ed. 1011] (1892) (quoting Hopt v. Utah, 110 U.S. 574, 578 [4 S.Ct. 202, 204, 28 L.Ed. 262] (1884)). See Swain v. Alabama, 380 U.S. 202, 219 [85 S.Ct. 824, 835, 13 L.Ed.2d 759] (1965) (voir dire “a necessary part of trial by jury”); see also Ricketts v. Adamson, 483 U.S. 1, 3 [107 S.Ct. 2680, 2682, 97 L.Ed.2d 1] (1987); United States v. Powell, 469 U.S. 57, 66 [105 S.Ct. 471, 477, 83 L.Ed.2d 461] (1984). Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice, Rosales-Lopez v. United States, 451 U.S. 182, 188 [101 S.Ct. 1629, 1634, 68 L.Ed.2d 22] (1981), Ham v. South Carolina, 409 U.S. 524 [93 S.Ct. 848, 35 L.Ed.2d 46] (1973), Dennis v. United States, 339 U.S. 162 [70 S.Ct. 519, 94 L.Ed. 734] (1950), or predisposition about the defendant’s culpability, Irvin v. Dowd, 366 U.S. 717 [81 S.Ct. 1639, 6 L.Ed.2d 751] (1961). Indications that Congress likewise considers jury selection part of a felony trial may be gleaned, inter alia, from its passage in 1975 of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1982 ed. and Supp. V), and its placement of rules pertaining to criminal petit juries in a chapter entitled “Trial.” See Fed.Rules Crim.Proc. 23, 24; cf. id., Rule 43(a) (requiring defendant’s presence “at every stage of the trial including the impaneling of the jury”).
Id. 490 U.S. at 872-73, 109 S.Ct. at 2245-46 (footnote omitted).
The understanding that a “trial” encompasses voir dire is also supported by judicial decisions construing two other statutes whose enforcement calls for resolution of this issue. Under the Speedy Trial Act, 18 U.S.C. § 3161 (1988) et seq., which provides a mandatory timetable for the conduct of criminal trials, courts have consistently regarded jury selection as the commencement of trial. United States v. Fox, 788 F.2d 905, 908 (2d Cir.1986) (collecting eases); United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); cf. United States v. Stayton, 791 F.2d 17, 19-21 (2d Cir.1986) (unreasonable post-voir dire delay in proceeding to trial may result in violation of Speedy Trial Act). The federal criminal removal statute, 28 U.S.C. § 1446(c)(1) (1988), which authorizes the filing of a petition for removal “before trial,” has also been construed to include voir dire within the meaning of the term “trial.” New Jersey v. Chesimard, 555 F.2d 63, 65 n. 1 (3d Cir.1977) (in banc); United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026-27 (9th Cir.), cert. denied, 423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975).
In light of this general understanding that the term “trial” includes jury selection,. we believe that the district court’s reliance upon decisions involving double jeopardy principles was misplaced. The basis for the court’s decision was that: “A trial begins and jeopardy attaches when the jury is sworn, not when the jury is selected.” White, 764 F.Supp. at 255 (citing United States v. Wedalowski, 572 F.2d 69 (2d Cir.1978)). This is clearly a correct statement of double jeopardy doctrine, see Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); United States v. DiLapi, 616 F.2d 613, 614 (2d Cir.1980) (per curiam), but we do not regard that body of law as controlling the issue presented for decision in this case.
The Double Jeopardy Clause protects an individual from twice being subject to the risk of a determination of guilt. Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064-65. That risk comes into play only when “a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ ” Id. at 391, 95 S.Ct. at 1064 (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904)). Accordingly, the risk associated with trial does not occur, and jeopardy does not attach, until the jury has been empaneled and sworn, and is thus competent to dispense a judgment of guilt. These considerations are inapposite to our inquiry under § 851(a)(1), which requires that we determine when the trial begins, not when the defendant’s exposure to the risk of a guilty verdict begins. Put another way, the Constitution protects against “double jeopardy,” not “double trial,” and the attachment of jeopardy does not occur at the commencement of the trial as “trial” is otherwise commonly defined.
Our interpretation of § 851(a)(1) finds support in United States v. Johnson, 944 F.2d 396 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991), — U.S. -, 112 S.Ct. 983, 117 L.Ed.2d 146 — U.S.-, 112 S.Ct. 2951, 119 L.Ed.2d 574 (1992), in which the Eighth Circuit held that “section 851 requires filing before jury selection begins,” id. at 407; and in Arnold v. United States, 443 A.2d 1318, 1323-27 (D.C.1982), so construing the phrase “prior to trial” in an analogous provision of the District of Columbia Code. Cf. United States v. Brown, 921 F.2d 1304, 1309 n. 6 (D.C.Cir.1990) (declining to address issue); United States v. Jordan, 810 F.2d 262, 268-69 (D.C.Cir.) (information filed before voir dire timely under § 851), cert. denied, 481 U.S. 1032, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987). But cf. United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir.1990) (information served on defendant and counsel before voir dire, but filed with court after trial began, complied with § 851), cert. denied, — U.S. -, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991).
The Johnson court stressed the need to “allow[ ] the defendant ample time to determine whether he should enter a plea or go to trial, and to plan his trial strategy with full knowledge of the consequences of a potential jury verdict.” 944 F.2d at 407. The Arnold court expressed a similar view, based heavily upon legislative history underlying the local enactment at issue in that case. 443 A.2d at 1324-26. This rationale reinforces the conclusion that we reach via a review of the pertinent case law.
We conclude that the phrase “before trial” in § 851(a)(1) means before the commencement of jury selection. We next address the question whether a § 851 information was filed “before trial” in this case.
B. The Validity of the Section 851 Filing.
As noted earlier, the clerk’s office rejected the government’s initial filing of the § 851 information. For the reasons hereinafter stated, we believe that this rejection was unauthorized. It follows that if the initial filing occurred “before trial” within the meaning of § 851(a)(1),- we may affirm the judgment of the district court on that ground, despite our disagreement with its statutory analysis.
This conclusion follows from the familiar rule that we may affirm on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely. Cromwell Assocs. v. Oliver Cromwell Owners, Inc., 941 F.2d 107, 111 (2d Cir.1991); In re Chesley v. Union Carbide Corp., 927 F.2d 60, 68 (2d Cir.1991); Larsen v. NMU Pension Trust, 902 F.2d 1069, 1070 n. 1 (2d Cir.1990); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987). We ultimately conclude, however, that the record on this appeal does not permit a determination as to when the initial filing was completed, and remand for determination of that issue.
Although the government does not take direct issue with the clerk’s rejection of the initial filing of the § 851 information, we perceive no valid basis for that rejection. While, as indicated earlier, the record contains no explicit statement by the clerk’s office of the rationale for its action, it was premised upon the failure to include the attorney’s address below the signature on the § 851 information. No suggestion has been made of any source other than Fed.R.Civ.P. 11 for this requirement, or of any basis for the applicability of Rule 11 other than its incorporation by reference into D.Conn.Crim.R. 1 via D.Conn.Civ.R. 6. See supra notes 5-6 and accompanying text. (Ironically, Civ.R. 6 directly requires only that pleadings “have legibly typed, printed or stamped directly beneath the signature the name of the counsel or party who executed such document [emphasis added].”)
This is not a plausible reading of the operation of the local rules. D.Conn. Crim.R. 1 incorporates by reference twenty-one provisions of the local civil rules, including D.Conn.Civ.R. 6, which in turn requires “pleadings” to be “prepared in conformity with the Federal Rules of Civil Procedure.” Fed.R.Civ.P. 7(a) defines the “[pjleadings [ajllowed” under the Federal Rules of Civil Procedure, and there is of course no mention of indictments or infor-mations. Thus, the only remaining basis for subjecting the § 851 information in this case to the requirements for pleadings would be Fed.R.Crim.P. 12(a), which provides in pertinent part: “Pleadings in criminal proceedings shall be the indictment and the information, and the pleas of not guilty, guilty and nolo contendere.”
However, any claim that Rule 12(a) pleadings should be deemed (by operation of D.Conn.Crim.R. 1 and D.Conn.Civ.R. 6) subject to the requirements imposed upon the preparation of pleadings by the Federal Rules of Civil Procedure will not withstand analysis. This would mean that indictments, informations, and pleas of guilty, not guilty, and nolo contendere must, inter alia, include a short and plain statement of the pleader’s claim and a demand for judgment, Fed.R.Civ.P. 8(a); contain a caption including “a designation as in Rule 7(a),” id. 10(a); and be subject to the sanctions imposed by Fed.R.Civ.P. 11 for unjustified pleadings. Further, superceding indictments, and perhaps withdrawal of guilty pleas, would presumably be governed by the provisions of Fed.R.Civ.P. 15 regarding amended and supplemental pleadings. ■
In this case, the clerk of the court imposed upon a § 851 information the requirement stated in Fed.R.Civ.P. 11 that the signing attorney’s address be stated. The necessary premise that Rule 11 applies to the preparation of criminal law pleadings leads, however, to particularly bizarre results. A prosecutor could be subjected to Rule 11 sanctions for signing an unjustified indictment or information, directly athwart the doctrine of prosecutorial immunity. An indictment or information might be premised upon “a good faith argument for the extension, modification, or reversal of existing law,” Fed.R.Civ.P. 11, a manifest due process violation and an affront to the rule of lenity. Cf. Fed.R.Crim.P. 7(c)(1), which requires a statement of the violated “statute, rule, regulation or other provision of law” supporting each count of an indictment or information. A criminal defendant could be sanctioned for a frivolous plea of not guilty, contravening both the Sixth Amendment right to a speedy and public trial and the Fifth Amendment right not to be deprived of life or liberty without due process of law.
Neither Rule 11 in particular nor the Federal Rules of Civil Procedure are designed for such anomalous applications. The Federal Rules of Civil Procedure “govern the procedure in the United States District Courts in all suits of a civil nature.” Fed.R.Civ.P. 1 (emphasis added); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 391, 110 S.Ct. 2447, 2453, 110 L.Ed.2d 359 (1990). There are instances of incorporation by reference of a specific provision of the federal civil rules in federal criminal procedure. See, e.g., Fed.R.Crim.P. 49(d) (“Papers shall be filed in the manner provided in civil actions.”). Clearly, however, the catchall D.Conn. Crim.R. 1 should not be read to effect a wholesale incorporation of the pleading requirements of the federal civil rules into local criminal practice, and would be invalid if construed to do so. Cf. United States v. Burdette, 161 F.Supp. 326, 331-32 (E.D.Mich.1957) (rejecting motion for psychiatric examination pursuant to Fed. R.Civ.P. 35 in criminal case), aff'd, 254 F.2d 610 (6th Cir.1958) (per curiam), cert. denied, 359 U.S. 976, 79 S.Ct. 887, 3 L.Ed.2d 842 (1959).
The Federal Rules of Criminal Procedure “govern the procedure in all criminal proceedings in the courts of the United States.” Fed.R.Crim.P. 1. Local rules implementing the Federal Rules of Criminal Procedure may not be inconsistent with the federal rules. 28 U.S.C. § 2071(a) (1988); Fed.R.Crim.P. 57; see also Williams v. United States Dist. Court, 658 F.2d 430, 434-37 (6th Cir.) (invalidating local rule inconsistent with Federal Rules of Civil Procedure), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981); McCargo v. Hedrick, 545 F.2d 393, 401-02 (4th Cir.1976) (same). Further, a construction of a local rule that creates a conflict with a federal rule should be avoided. McKinney v. Dole, 765 F.2d 1129, 1135 n. 12 (D.C.Cir.1985); John v. Louisiana (Board of Trustees for State Colleges & Univs.), 757 F.2d 698, 707 (5th Cir.1985); Gerritsen v. Escobar y Cordova, 688 F.Supp. 556, 558 (C.D.Cal.1988).
The requirements for an indictment or information are covered by Fed.R.Crim.P. 7(c)(1), which calls for such instruments to “be signed by the attorney for the government,” but includes no provision for the statement of the signer’s address. Furthermore, the universal practice is that indictments and informations do not include a statement of the United States Attorney’s address. The Appendix of Forms to the Federal Rules of Criminal Procedure has been abrogated as unnecessary; forms of indictment and information are made available to United States Attorneys’ offices by the Department of Justice. Fed.R.Crim.P. Appendix of Forms advisory committee’s note. We understand that none of these forms include the address of the United States Attorney. Nor did prior Forms 1 through 11, which were forms for indictments (1-10) and an information (11). Cf. Form 29 to the Federal Rules of Civil Procedure (calling for provision of address of United States Attorney in civil complaint in accordance with Fed.R.Civ.P. 11).
Given the universal practice in this regard, we strongly doubt that the District of Connecticut could adopt a rule requiring that the government attorney’s address be stated in an indictment or information. We note that there is no counterpart in the Federal Rules of Criminal Procedure to Fed.R.Civ.P. 5(e), see swpra note 7; thus, violation of such a rule could warrant rejection of an attempted filing of an indictment or information, an especially untoward result in the era of the Speedy Trial Act. Further, as outlined earlier, there is no coherent way to interpret the combined operation of the federal and local rules to impose the “address” requirement of Rule 11 upon indictments and informations without imposing all the pleading requirements of the federal civil rules upon such instruments. We are persuaded that the local rules of the District of Connecticut do not intend such a result, and in any event are not authorized to effect it.
We therefore conclude that the court clerk had no valid basis to reject the initial filing of the § 851 information in this case, and accordingly that the issue of the government’s compliance with § 851(a)(1) must be resolved by reference to that initial filing. It is not clear on this appellate record, however, whether the initial filing occurred “before trial” within the meaning of § 851(a)(1); i.e., before jury selection. The record includes an affidavit that the § 851 information was mailed by the U.S. Attorney on November 29, 1990 and received back from the clerk on December 4, 1990, whereupon the Assistant United States Attorney’s address and telephone number were inserted below his signature and the information was mailed to the clerk’s office a second time. There is no specific indication, however, whether the clerk received the initial mailing prior to jury selection on December 3, 1990. The information is stamped only as filed at 11:56 a.m. on December 5, 1990, obviously reflecting the second mailing and receipt of the § 851 information. Since filing requires “ ‘delivery of papers into the actual custody’ ” of the clerk, Greenwood v. New York Office of Mental Health, 842 F.2d 636, 639 (2d Cir.1988) (quoting In re Gubelman, 10 F.2d 926, 929 (2d Cir.1925)); see also Fed. R.Crim.P. 49(d); Fed.R.Civ.P. 5(e), we must remand for a determination as to the time of actual receipt of the initial § 851 information by the court clerk.
Conclusion
The sentence imposed in this case is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
. Section 841(b)(1)(A) provides that in the case of certain drug offenses otherwise subject to a minimum term of imprisonment of ten years, "[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years....” It is undisputed that White committed violations that are subject to the § 841(b)(1)(A) enhancement, for he had previously been convicted in state court of the felony drug offense of possession of narcotics with intent to sell.
. Section 851(a)(1) provides:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
Id. (emphasis added).
. Section 845b was renumbered as § 861 and amended by Pub.L. 101-647, Title X, §§ 1002(c), 1003(c), Title XXXV, § 3599L, 104 Stat. 4827, 4829, 4932 (1990).
. Section 845a was renumbered as § 860 and amended by Pub.L. 101-647, Title X, §§ 1002(b), 1003(b), Title XII, § 1214, Title XV, § 1502, Title XXXV, § 3599L, 104 Stat. 4827, 4829, 4833, 4932 (1990).
. D.Conn.Crim.R. 1 provides:
Rules 2 (Admission of Attorneys), 3 (Discipline of Attorneys), 4 (Definitions), 6 (Preparation of Pleadings), 7(e) (Proof of Service), 7(f) (Sealed Documents), 9(a)l (Motion Procedure), 9(b) (Motions for Extension of Time), 9(e) (Motions for Reconsideration), 12(c) (Examination of Jurors), 12(e) (Opening Statements), 12(f) (Secrecy of Jury Deliberations), 14 (Removal of Papers and Exhibits), 15 (Withdrawal of Appearance), 17 (Bill of Costs), 21 (Reporter’s Fees), 22 (Remand by an Appellate Court), 30 (Recordings and Photographs), 31 (Sanctions Against Counsel), 32 (Auxiliary Orders), and 33 (Prohibition on Counsel as Witness) of the Local Rules of Civil Procedure shall also govern criminal proceedings in the District of Connecticut, as if said Rules were set forth fully in these Local Rules of Criminal Procedure for the District of Connecticut.
. D.Conn.Civ.R. 6 provides:
All pleadings must be prepared in conformity with the Federal Rules of Civil Procedure. Each such pleading shall be double-spaced, on 8V2" x 11" paper with a left margin of at least 1" free from all typewritten or printed material and shall have legibly typed, printed or stamped directly beneath the signature the name of the counsel or party who executed such document. The complete docket number, including the initials of the Judge to whom the case has been assigned, shall be typed on each pleading. The date of filing of each pleading shall be included in the case caption. Pleadings that do not conform to the foregoing requirements will not be accepted by the Clerk.
.An amendment to Fed.R.Civ.P. 5(e) effective December 1, 1991, and therefore inapplicable here, provides that court clerks "shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.”
. White argues that the government also failed to effect timely service upon White or his
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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, Plaintiff-Appellee, v. Arthur Eugene PINKEY, Defendant-Appellant.
No. 76-1254.
United States Court of Appeals, Tenth Circuit.
Submitted Dec. 8, 1976.
Decided Jan. 17, 1977.
Stephen M. Munsinger, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.
Jorge E. Castillo, Denver, Colo. (Richard H. Hill, Denver, Colo., on the brief), for defendant-appellant.
Before McWILLIAMS, BREITENSTEIN and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
Arthur Eugene Pinkey was charged in a four count indictment, tried to a jury and found guilty of using the United States mails to perpetrate a scheme to defraud and obtain money, all in violation of 18 U.S.C.A. § 1341.
Pinkey, who proceeded to defend the charges pro se, with the “stand-by” advice of a Public Defender at trial, does not challenge the sufficiency of the evidence. Accordingly, we shall relate the factual setting as succinctly as possible.
Pinkey was incarcerated in the Colorado State Penitentiary when the charged offenses occurred. At trial the Government called thirteen witnesses and presented twelve exhibits which were admitted in evidence. The crux of the charges is that Pinkey wrote nearly identical letters from the penitentiary to four widowed ladies residing in the State of Colorado after he had read of the deaths of their husbands from newspaper obituary accounts. Pinkey wrote them that he was a friend of the decedents;’ that he had been jailed with them either in “Denver County Jail” or the “Jefferson County Jail” after the decedents had been arrested “for being under the influence [of] alcohol”; that he had loaned them money to “get out of jail” which had not been repaid; and that he wished to have them send him “at least” $80.00 of the $75.00 he had loaned their respective husbands by money order “as soon as possible” because he was to leave for college in October of 1975. In truth, Pinkey did not know the decedents nor did he loan any of them money.
Before the trial commenced, the court fully and completely advised Pinkey of his right to counsel. The judge recommended that Pinkey avail himself of competent court appointed counsel in view of the fact that mail fraud cases are often complicated and technical. [R., Vol. I, pp. 2, 3.] Pinkey responded that he wished to represent himself with counsel present and available simply to advise him. He then volunteered that he intended to testify, whereupon his counsel advised the court that he had discussed the matter with Pinkey and that he (counsel) agreed that Pinkey’s testimony was “relevant, material and necessary.” [R., Vol. I, p. 4.] In Pinkey’s opening statement to the jury, immediately following that of the prosecutor, he remarked, inter alia, that “. . . as far as the letters, the money order, and this type of thing, I can prove that I never wrote these letters . . .” [R., Vol. I, p. 13] At trial, Pin-key voluntarily testified. He then acknowledged writing the letters as “just an idea” but he denied mailing them. There was substantial evidence otherwise.
During the court’s voir dire examination of the jurors, Pinkey hand printed on a yellow legal-sized sheet three questions which he wished to have the judge ask the jurors. These questions were written in the presence of the jurors and submitted to the trial judge. These handwritten questions were later introduced in evidence by the Government, at the suggestion of the court.
A Mr. Verle Truman testified as the Government’s expert on questioned documents, both with regard to comparison and identity of handwriting and typewriting. Truman was then employed at the Western Regional Postal Inspection Service’s Crime Laboratory at San Bruno, California. He gave detailed expert testimony which tied Pinkey to the documents then in evidence, which included the letters, envelopes, etc., offered and admitted during the Government’s case-in-chief. Truman specifically and unequivocally identified the handwriting on the exhibits as that of Pinkey. He demonstrated the identification technique by the use of “blow up charts.”
When Pinkey testified, he stated that he had written the respective letters (contrary to that which he stated he would prove in his opening statement) but he denied mailing them. He contended that he had placed them in a “box” in his cell; that they were nothing more than “just an idea” on his part; and that someone caused the letters to be taken out of the box and placed in the mail. These contentions, we hold, had been effectively — and overwhelmingly — refuted by the Government’s evidence.
On appeal, Pinkey contends that the trial court erred in (1) denying him a fair trial by having suggested to the United States Attorney (out of the presence of the jury) that the handwritten suggested voir dire questions prepared by Pinkey should be furnished to the Government’s handwriting expert for handwriting analysis, said analysis forming the basis of his opinion and (2) denying Pinkey’s right to represent himself by suggesting to the United States Attorney that the aforesaid handwritten voir dire questions be furnished to the handwriting expert for analysis.
I.
Pinkey’s contentions on appeal will be treated and considered jointly in view of the fact that both relate to the same alleged trial court error involving the additional testimony of the expert witness, Truman. At the conclusion of Truman’s direct testimony as a Government witness, the following colloquy occurred out of the presence of the jury:
THE COURT: These proceedings are being had outside the presence of the jury. I do invite your attention, Mr. Waters, to the fact — and I don’t know if you and Mr. Truman are the least bit interested in it — but I do invite your attention to the fact that this being a pro se case, the Defendant submitted here in open court in the presence of the jury earlier today certain samples of his printing. It’s available here if Mr. Truman would like to compare it. The jury saw these samples prepared.
MR. WATERS: Thank you, Your Honor.
THE COURT: They are here and we’ll take a recess. They are here, Mr. Truman, if you would like to look at them.
MR. WATERS: Thank you, Your Honor.
[R., Vol. I, pp. 86, 87.]
Following the above exchange, the Government (through Mr. Waters) caused to have the three voir dire questions which had been hand printed by Pinkey on a yellow sheet marked as Government Exhibit 12c. When the jury was returned, the Government moved the admission of the exhibit after Mr. Truman had identified the writing thereon as that of Pinkey by expert comparison. Pinkey did not object to the admission of Exhibit 12c. Furthermore, he did not cross-examine Truman relative to the identification, even though the court specifically inquired of Pinkey whether he wished to object or cross-examine. After the aforesaid re-direct examination of Truman was completed, the Government rested.
Pinkey voluntarily testified in his own defense. He insisted that even though he wrote the letters to the widows with the “idea” of deceiving them in order to obtain some money that he placed each of the letters in a box in his cell, and that he did not mail them. He contended “the officers mailed them ... It was all a set-up, and I’m just an innocent victim.”
II.
During oral arguments on appeal, counsel for Pinkey contended that the trial court’s suggestion that the prosecutor examine the Government’s handwriting expert with regard to comparison analysis of the writings on documents then in evidence (and with regard to which the expert had already testified) and the hand printed voir dire questions written by Pinkey thereafter handed to the judge, constituted plain error because (a) it denied Pinkey a fair trial by displaying the bias and prejudice of the trial judge toward Pinkey and (b) it compelled Pinkey to testify in his own defense as a result of the expert witness’ testimony on re-direct examination. We find no merit in either contention. The record reflects that the trial court was concerned for and steadfast in protecting Pinkey’s rights at all stages of the proceeding.
In the administration of the criminal justice system, the trial judge has the obligation of safeguarding the rights of the accused while at the same time protecting the interests of society. The adversary nature of criminal proceedings does not prohibit the trial judge from taking proper steps to aid and assist the jury in the truth finding quest leading to the proper determination of guilt or innocence. In the promotion of this goal, the trial judge has an obligation, on his own initiative, at proper times and in a dignified, and impartial manner, to inject certain matters into the trial which he deems important in the search for truth.
In Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933), the trial judge instructed the jury relative to the rules of innocence and reasonable doubt; and he instructed that expressions of opinion on the evidence by the court are not binding on the jury and should be disregarded if the jury believes the evidence indicates otherwise. The judge then expressed his opinion that “I think that every single word that man said, except when he agreed with the Government’s testimony, was a lie.” The judge’s opinion was attributed primarily to the defendant’s mannerism of wiping his hands as he testified. Following the above observation, the court again instructed the jury that his opinion was not binding and that if the jury should not agree “. . . it is your duty to find him not guilty.” The defendant’was convicted. The Supreme Court reversed, based primarily upon the trial judge’s statement of the defendant’s lack of credibility predicated upon his mannerisms rather than any analysis of the evidence. For purposes here, however, this language from the opinion is pertinent:
In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. 289 U.S., at 469, 53 S.Ct. at 698.
In Massey v. United States, 358 F.2d 782 (10th Cir. 1966), cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966), this Court said, inter alia:
The appellant contends that the trial judge participated too actively in the conduct of the trial, especially in suggesting necessary proof to the prosecuting attorney. This court has recently stated, in Ayash v. United States, 352 F.2d 1009 (10th Cir. 1965) that:
. . The trial Judge is not a mere moderator or umpire in the trial of a case in federal court, and, within reasonable bounds, he has the right to participate in eliciting the truth. He should, however, be careful not to become an advocate for any of the parties, (p. 1010.)”
358 F.2d, at pp. 786, 787.
Analogous to the above decisions is this statement from Gardner v. United States, 283 F.2d 580 (10th Cir. 1960):
. appellants point to several incidents where the court ruled out questions without first having an objection from the prosecution. But the circumstances were such that the questions were argumentative, repetitious in the extreme, or subject to an earlier considered ruling by the court. We believe that the control used by the trial court was not only justified but, indeed, was dictated by the duty of the moment.
283 F.2d, at 581.
In United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971), we held:
The trial judge is allowed to participate in a trial and ask questions of witnesses in order to ascertain the facts. He cannot show hostility toward one side or become an advocate for one side.
444 F.2d, at p. 390.
In McBride v. United States, 409 F.2d 1046 (10th Cir. 1969), cert. denied, 396 U.S. 938, 90 S.Ct. 282, 24 L.Ed.2d 240 (1969), the trial judge questioned a witness who had given conflicting answers in response to questions asked on cross-examination. The judge premised his questioning with the explanation that he wanted the witness to clarify his answers. On appeal this Court said:
the Court’s interrogations were for the purpose of clarifying the facts in the case and were not advocacy. The questions asked were within the range of the judge’s authority and did not prejudice in any way the rights of the defendant .
409 F.2d, at 1049.
The general rule is that a federal judge has the right to examine witnesses. Wright, Federal Practice and Procedure, Criminal, Vol. 2, § 415, pp. 176-178; Barba-Reyes v. United States, 387 F.2d 91 (9th Cir. 1967); United States v. Ostendorff, 371 F.2d 729 (4th Cir. 1967); United States v. Rosenberg, 195 F.2d 583 (2nd Cir. 1952), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952); United States v. Amorosa, 167 F.2d 596 (3rd Cir. 1948).
The power of the court to call witnesses on its own motion in criminal cases, while seldom used, is recognized by both state and federal courts. Smith v. United States, 331 F.2d 265 (8th Cir. 1964), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964); United States v. Lutwak, 195 F.2d 748 (7th Cir. 1952), affirmed 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953).
In Cooper v. United States, 403 F.2d 71 (10th Cir. 1968), we said:
. While indications in the presence of the jury [by the judge] that statements of the defense counsel are ridiculous, are not to be encouraged, such conduct certainly does not constitute reversible error. Petersen v. United States, 268 F.2d 87, 88 (10th Cir. 1959). Indeed, that incident and the others discussed above, were no more than displays indicative of a firm control of the proceedings and fall well within the reasonable bounds within which a trial judge may act. Inland Freight Lines v. United States, 191 F.2d 313 (10th Cir. 1951). [Emphasis supplied.] 403 F.2d, at 73.
Measured by the above cited rules and evidence in the record before us, we hold that the trial court did not abuse its discretion. Pinkey’s rights were not prejudiced. Even had we found prejudice, however, it would most certainly be harmless in light of the overwhelming evidence of Pinkey’s guilt. Thus, any prejudicial effect of the trial court’s alleged “advocacy” on behalf of the Government could rise no higher than harmless error. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Chase v. Crisp, 523 F.2d 595 (10th Cir. 1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1418, 47 L.Ed.2d 354 (1976).
Finally, we note that Pinkey failed to object to the trial court’s action in regard to the court’s suggestion that the Government conduct further examination of its handwriting expert. Pinkey elected to proceed with the trial of this case on a pro se basis, with court appointed counsel on hand for “stand-by” or “advisory” purposes whenever Pinkey wished to seek legal assistance. This, of course, was Pinkey’s right. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Montgomery, 529 F.2d 1404 (10th Cir. 1976), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833. And the “hybrid” arrangement [self-representation with “stand-by” counsel] was within the discretion of the trial court to allow. United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182.
Our review of the record in the present case convinces us that the trial judge did everything possible to inform Pin-key of the risks he was assuming by proceeding pro se at trial, particularly in light of the complicated aspects of a mail fraud case. When Pinkey insisted on proceeding pro se, the trial judge encouraged and requested that he seek the advice of his “stand-by” counsel. The trial court carefully and adequately pointed out to Pinkey the magnitude of the undertaking and the risks involved in self-representation. Under these circumstances, Pinkey nevertheless proceeded pro se. When he did so, he assumed the obligation of abiding the technical rules governing the conduct of a trial. Pinkey’s failure to object to the alleged prejudicial action of the trial court works to estop him from raising the objection for the first time on appeal, absent plain error. United States v. Taylor, 536 F.2d 1343 (10th Cir. 1976); Warden v. United States, 391 F.2d 747 (10th Cir. 1968); Fed.Rules Crim. Proc., Rules 30 and 52(a), 18 U.S.C.A. This rule is the more applicable in light of the fact that Pinkey had available competent counsel to represent him at trial, but which he [Pinkey] elected to place on a “stand-by” basis simply to advise and counsel him upon his request. The trial court carefully and meticulously informed Pinkey of the nature of the charges, the complexity of the trial and of the issues involved. The trial court attempted to convince Pinkey that he should not run the risks of proceeding pro se. Pinkey nevertheless intelligently, knowingly, and voluntarily made the choice to do so with full understanding of the risks involved. Under these circumstances the Constitution does not force a lawyer on an accused. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957).
Pinkey intelligently and voluntarily waived his Sixth Amendment right of active participation and assistance of trial counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Having done so, he acquiesced in and subjected himself to the established rules of practice and procedure in federal criminal trials. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).
The hazards which beset a layman when he seeks to represent himself are obvious. He who proceeds pro se with full knowledge and understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under -no obligation to become an “advocate” for or to assist and guide the pro se layman through the trial thicket. Garrison v. Lacey, 362 F.2d 798 (10th Cir. 1966), cert. denied, 387 U.S. 911, 87 S.Ct. 1696, 18 L.Ed.2d 630 (1967); Murphy v. Citizens Bank of Clovis, 244 F.2d 511 (10th Cir. 1957); Carrigan v. California State Legislature, 263 F.2d 560 (9th Cir. 1959), cert. denied, 359 U.S. 980, 79 S.Ct. 901, 3 L.Ed.2d 929 (1959); Barnes v. United States, 241 F.2d 252 (9th Cir. 1956).
WE AFFIRM.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
THE SOCONY NO. 19.
Circuit Court of Appeals, Second Circuit.
March 5, 1928.
No. 181.
1. Collision <§=106 — Case of vessel maneuvering to. leave slip is one of “special circumstances.”
The case of a vessel maneuvering to leave her slip is one of “special circumstances,” and ordinary steering and sailing rules and signals, made for vessels navigating on definite courses, do not apply.
[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Special Circumstances.]
2. Collision <§=95(4) — Small launch held at fault for collision with barge being maneuvered out of slip by tug, where it did nothing to get out of way.
Small motor launch held at fault in collision with barge, which tug was maneuvering out of slip, where launch, though having tug and barge in plain view for five minutes, did nothing to keep out of the way of their maneuvering.
Appeal from the District Court of ■ the United States for the Eastern District of New York.
Libel by the General Ship. Scaling Corporation against the steam tug Socony No. 19, her engines, boilers, etc., wherein the Standard Transportation Company is claimant. From an interlocutory decree holding the steam tug solely at fault for collision between barge, which tug had in tow, and libelant’s motor launch, claimant appeals.
Reversed and remanded, with directions.
Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, Richard F. Lenahan, and Pierre M. Brown, all of New York City, of counsel), for appellant.
Bigham, Englar & Jones, of New York City (Charles W. Hagen, of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The libelant’s vessel, Helene No. 2, was a motor launch, 57 feet in length, carrying heavy machinery and equipment, used for scaling vessels and for eleetrie welding/ She had a 32 horsepower gasoline motor, and 'her crew consisted of an operator and a man to handle the engines. Two other vessels concerned were the Socony No. 122, a loaded barge carrying fuel oil to ships, which was 250 feet long, and in tow of the Socony No. 19, a steam tug about 89 feet in length. The barge was on the south side of Pier 5, Bush Terminal, bow in. The tug went alongside No. 122 on her extreme stem quarter, and made fast to her with a strap, head line, and stem line. A deckhand was stationed as a lookout on the stern of the barge. Thereupon the tug blew the usual long slip whistle and proceeded to back the No. 122 out into the stream. When the barge had cleared the slip, the tug began to swing her around in order to get her on her course, which was to be up the river to Pier 35, Brooklyn. Meanwhile the Helene No. 2 was coming across the bay to Pier 5, Bush Docks, saw the Socony No. 19 when something less than a half mile away, and when she got within 600 or 700 feet of the pier gave a stop bell, because the Socony No. 19 was backing her barge out of the slip.
When the tug, by backing her engines, had pivoted the barge, so that the latter was heading in a southerly direction, the Helene No. 2 assumed that she was going down the bay toward Staten Island, instead of up to Pier 35. As the Socony No. 19 swung her barge farther around, the Helene No. 2, who was then about 500 feet from the pier head, did not get out of' her way, and as a result was struck a swinging blow on her starboard bow by the overhang of the bow of the barge. •
The master of the Socony No. 19 testified that, when the Helene No. 2 was 250 or 300 feet away from him, he saw her start her engines ahead, and that he then stopped his tug’s backward motion and put his wheel hard astarboard to shove his bow to the southward, away from the Helene No. 2. The master of the latter said she did not start up, but lay five minutes outside the pier, waiting for the Socony and her barge to proceed, and that when he saw the tug swinging her barge around, instead of proceeding south, as he had expected, he reversed his engine, but too late to avoid collision. He also said that the Socony pulled her barge out of the slip, got her in a position lying north and south and lengthwise of the ends of the piers, then let go her lines, made fast on the stem quarter of the barge, and started to pivot her around.
The trial judge held that the collision was occasioned through the fault of the Socony No. 19 in failing to signal the Helene No 2 that the former was about to make a,, complete turn and go up the bay, and that there was no fault on the part of the Helene No. 2. He also seems to have found that the Socony made fast to the starboard quarter of her barge after she had got her out into the stream, in u position parallel to the pier ends; that the Helene No. 2 had come to a full stop before this, and did not come forward on her engines thereafter. It seems doubtful whether the Helene No. 2 did not come forward, for the Socony swung her barge around while backing her engines, and it is hard to see, when this was being done, how the barge could have extended out far enough to strike the Helene No. 2, if the latter had remained 500 feet outside of the pier ends.
But, assuming that the finding of the trial court was correct, we still have a ease where the tug Socony was taking a heavy barge out of her pier to get her on a course. The small motor launch, Helene No. 2, according to the account of her master, instead of keeping out of the way of the barge, came within 500 feet of the pier heads, and then, though having the tug and barge in plain view for five minutes, did nothing to keep out of the way of their legitimate maneuvers, but practically lay still until she was struck.
It is perfectly settled that the ease of a vessel maneuvering to leave her slip is one of special circumstances. The Servia, 149 U. S. 144, 13 S. Ct. 877, 37 L. Ed. 681; The John Rugge (C. C. A.) 234 F. 861; The Washington (C. C. A.) 241 F. 952. Therefore ordinary steering and sailing rules and signals made for vessels navigating on definite courses do not apply. The Socony was executing a somewhat awkward maneuver, without taking any unnecessary room. She had blown her slip whistle; the Helene No. 2 plainly saw her, and was bound to keep out of her way while she was attempting to leave her slip and get on her course. Of course, the Socony could not be excused if she.recklessly ran into the barge; but she had a right to assume that a small launch, like the Helene No. 2, would get out of her way when there was plenty of time and space within which to do this, if the Helene No. 2 had begun to move in season.
It is evident that, when a tug made fast to the stem quarter of a barge is swinging the barge, the leverage is all against the tug. It is a slow matter either to start or to stop her swing. This is an ample reason why the tug could not avert the collision with the Helene No. 2. She was justified in supposing the latter would make a seasonable effort to get out of the way, and with every natural force against her she did what she could to break the swing of the barge when the Helene No. 2 had taken no measures to get out of the way until too late.
The fault relied on by the libelant to justify holding the Socony is that the latter attempted an unusual maneuver without giving some warning to the Helene No. 2. It is argued that the maneuver was unexpected, because the -Socony and her barge for a moment lay north and south, and were, therefore, apparently about to proceed down the bay. But when a tug has got her tow outside a slip, and has not yet started anywhere, there can be no justification in making assumptions as to her destination. She is still essentially maneuvering to get on her course. The unwarranted suppositions of the master of the Helene No. 2 can serve as no basis for requiring a signal by the Socony, nor is any signal appropriate to such a situation found in the admiralty rules, sanctioned by maritime practice, or pleaded as a fault in the libel.
The interlocutory decree is reversed, and the cause is remanded, with directions to dismiss the libel, with costs.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul NEMETH, Defendant-Appellant.
No. 20024.
United States Court of Appeals, Sixth Circuit.
Aug. 18, 1970.
Charles E. Peyton (Court Appointed) Louisville, Ky., for appellant on brief.
John L. Smith, U. S. Atty., Louisville, Ky., for appellee on brief.
Before WEICK, CELEBREZZE and PECK, Circuit Judges.
PER CURIAM.
Appellant was observed by two Louisville police officers outside a Louisville bank at 2:15 a. m. on February 10, 1969. The officers testified that as they approached appellant he was standing beside the bank’s night deposit box and that as soon as he saw them, he made a motion as though he were throwing something away and began walking rapidly away from the bank. After questioning appellant about his actions and his reason for being in the area at that time of night and receiving vague and unsatisfactory answers, the police arrested appellant on loitering and disorderly conduct charges. Subsequent investigation at the bank disclosed that $750' was missing from the night deposit box, and an envelope scoop device bearing appellant’s fingerprint was found inside the night deposit box. Appellant was then indicted, tried and convicted by a jury of violation of 18 U.S.C. § 2113(b), larceny of a federally insured bank. This appeal followed.
Appellant did not take the witness stand or offer any evidence in his defense at the trial. The government’s case against him consisted principally of the circumstances of his arrest, of the fact that $750 was missing from the bank’s night deposit box, and of the fact that appellant’s fingerprint was on the envelope device found inside the night deposit box. The government’s final witness was an FBI agent who, after testifying that he was familiar with the method of committing larceny of bank night deposit boxes by the use of wires and envelope scoop devices, testified that appellant had a prior conviction of the same offense with which he was charged in this case. All of the pertinent testimony on this point is contained in the following:
“Q. [By the U. S. Att’y.] Mr. Doma-lewski, [FBI Agent] are you familiar with the defendant, Robert Paul Nemeth?
“A. Yes, I am.
“Q. And how long have you been familiar with him, sir?
“A. I have had knowledge of Robert Paul Nemeth for approximately five years.
“Q. And in what way?
“A. Mr. Nemeth was first brought to my attention in connection with activity of which I had an interest.
“Q. All right; has he been convicted before ?
“Mr. Peyton: [Defense Counsel] Objection, Your Honor.
“By the Court: Overruled.
“Mr. Peyton: Move that the jury be discharged.
“By the Court: Overruled. I will give the jury an admonition at the right time.
“Q. Has Mr. Nemeth been convicted under the same statute before, using that same kind of device?
“A. Yes, sir; he has.”
Although the trial judge immediately instructed the jury in substance that evidence of a prior conviction could not be considered as evidence of guilt of the offense charged, the testimony, and the manner in which it was presented, was so prejudicial that appellant’s conviction must be reversed and a new trial ordered.
The general rule is that evidence of prior criminal activity is inadmissible to prove the commission of a later offense. The only exceptions to that rule are that when intent, motive or lack of mistake are in issue, evidence of prior similar and related offenses tending to show a consistent pattern of conduct is admissible if accompanied by appropriate cautionary instructions. E. g., Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Gilstrap v. United States, 389 F.2d 6, 9-10 (5th Cir. 1968); Zamora v. United States, 369 F.2d 855, 858-859 (10th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967); United States v. Kirkpatrick, 361 F.2d 866, 868 (6th Cir. 1966); Kowalchuk v. United States, 176 F.2d 873, 878 (6th Cir. 1949). Furthermore, in order to show a consistent pattern of conduct relating to the offense charged, the evidence must be of prior similar acts reasonably near in time to the offense charged. Gilstrap v. United States, supra; Whaley v. United States, 324 F.2d 356, 358 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609 (1964).
Here there was no showing where or by what means the appellant committed the prior act, nor was it shown to be related in point of time or otherwise to the offense charged. From all that appears in this testimony, appellant had one prior conviction for the same offense. Presumably this was within the five year period prior to his trial in this case, although even this is not clear. If such is an accurate reflection of the record, even proper evidence of facts concerning a prior offense would be inadmissible as too remote in time. Finally, the manner in which the evidence was presented to the jury was particularly objectionable since the only thing stressed in the instruction to the jury was the agent’s hearsay statement that appellant had a prior conviction of the same offense. Evidence of this fact even if properly documented, would clearly be inadmissible where the defendant does not testify and his character is not otherwise in issue. Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); United States v. Rudolph, 403 F.2d 805, 807 (6th Cir. 1968).
Since the substance and the pres-. entation of the evidence here was clearly inadmissible and prejudicial, the trial judge’s cautionary instruction immediately following the agent’s testimony cannot be held to have cured the error. As stated above, properly authenticated evidence of prior offenses is admissible only if accompanied by appropriate instructions.' However, otherwise proper cautionary instructions cannot supply the first element of the exceptions to the general rule, i. e., authenticated evidence of prior similar offenses tending to show a consistent pattern of conduct.
The remaining issues raised by appellant are either without merit or consideration of them is unnecessary in light of the disposition of this ease.
The judgment of the District Court is reversed and the case is remanded with instructions to grant the appellant a new trial.
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_applfrom
|
L
|
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).
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERV-AIR, INC., Respondent.
No. 70-70.
United States Court of Appeals, Tenth Circuit.
Sept. 9, 1970.
Glen Bendixsen, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Robertamarie Kiley, Attys., N. L. R. B., on the brief), for petitioner.
Frank Carter, Enid, Okl. (Stephen Jones, Enid, Okl., on the brief), for respondent.
Before BREITENSTEIN, HILL and HOLLOWAY, Circuit Judges.
HILL, Circuit Judge.
The National Labor Relations Board is before this court petitioning for enforcement of its supplemental order issued against Serv-Air, Inc., requiring the latter to reinstate R. A. Chodrick to his former position. The order was made on a finding of an unfair labor practice by Serv-Air, in violation of section 8(a) (3) and (1) of the Act. The familiar issue posed is whether substantial evidence supports the decision that Serv-Air suspended and demoted Chodrick in violation of the Act.
R. A. Chodrick was first employed by the Company in 1960 as a hand lineman at Vance Air Force Base. About six months later he was advanced to crew chief of fire fighters. In 1964 the firemen were unionized; Chodrick joined and became a shop steward.
Chodrick has undeniably been a union activist. Since June, 1964, he has served on the union’s negotiation committee; in September, 1964, he led a union walkout; and in February, 1966, he was a leader of a group attempting to present the company with a written grievance over the training schedule. The latter incident resulted in the firing of Chodrick and six others when they refused to drill. Chodrick’s discharge was reduced to a suspension but there has been continued friction between the crew chief and his superiors.
Out of this background arose the incident relevant to this petition for enforcement. In July, 1966, the Company altered its pay procedures by depositing employee salaries in a bank rather than paying the sum directly to each employee. Because of the obvious inconvenience resulting from the change, many of the employees became upset; most considered it to be a thinly veiled attempt to coerce them into opening accounts in the bank because Serv-Air’s president was a stockholder and board member of that bank.
On August 6, 1966, two fire fighters (union members) at Vance Air Force Base left their jobs without permission, apparently to protest the change in pay procedures. For leaving their duty post each was immediately suspended. The next day Chodrick’s crew went on duty. Because men on the earlier shift had reported being bitten by bugs Chodrick’s crew, with his permission, decided to scrub down their sleeping quarters and air out their mattresses. The mattresses were taken outside — two were passed through a window resulting in about $8.00 damage — and laid out to air. The crew then went to chow.
Meanwhile, Terrell, the Assistant Fire Chief, was notified and went to the crash station. After observing the situation and apparently assuming it was a protest related to the suspension of the two union men on the previous day, he called Moxley, the Fire Chief, saying he thought he had “an incident” on his hands. Moxley told Terrell to get the Air Force Security Police, have photographs taken, and a report made. Next Terrell sought out Chodrick and requested an explanation. The reply was that the men were simply attempting to air out the mattresses to rid them of bugs.
Subsequently, Cumpston, director of base operations, asked Moxley what had caused the incident and Moxley answered: “You know as well as I know.” Then, referring to Crew Chief Chodrick, he said: “It looks like this man is continually giving us trouble. It looks like he’s come to the final point. We are going to have to take some action on the individual.” Thereafter Chodrick was suspended for a day and demoted to crash-fireman.
The Company argues that Chodrick’s union activities had nothing to do with the discipline. In their words, “he was laid off because of failure to perform as Crew Chief, his arrogant attitude, his unwillingness to follow prescribed rules and regulations established by Serv-Air, Inc., and the United States Air Force and his callous disregard for the safety of his men.”
Chief Moxley, by his testimony, presented a good case for the Company. But that testimony notwithstanding, the Examiner’s findings are supported by substantial evidence. The Examiner’s observations are clear, pertinent, and concise, and the following excerpts summarize our own conclusions.
“[Ajlthough the purport of Moxley's testimony is that in his opinion Chod-rick had been an unsatisfactory crew chief over a long period of time, Mox-ley was unable to advert to any specific misconduct or act of misfeasance on the part of Chodrick occurring later then [sic] April, 1965 (except for incidents which the Board in prior proceedings found were within the protection of the Act) other than matters which had been continuing for long periods of time.”
“The strenuous effort on the part of respondent to create the appearance of a serious dereliction by Chodrick and members of his crew from something so trivial suggests that Respondent was looking for an opportunity (and judging from the incident onto which it lached — no matter how slight or trivial) for demoting Chodrick. To the argument that the August 7 incident was merely the last straw that broke the camel’s back, it is noted that Respondent was able only to point to outdated misdeeds on the part of Chodrick to demonstrate his unfitness for his job, and several of those matters were incidents with respect to which the Board has found that the Respondent had acted unlawfully. Accordingly, I find no merit to Respondent’s defense that Chodrick was disciplined on August 7, 1966, for ‘good and just cause.’ ”
Serv-Air also charges that the Board violated its rules and regulations in denying the Company’s motions for reopening, reconsideration and rehearing of the case to permit introduction of new and material evidence. A bit of background information is necessary to fully comprehend the argument. The Board’s initial decision in this case issued June 27, 1967. On January 17, 1968, this court issued its decision in a related case, Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557 (10th Cir. 1968), reversing a part of the Board’s decision and remanding that case to the Board for reconsideration. Inasmuch as some of the Board’s findings in the instant case were based on the earlier decision, enforcement proceedings were held in abeyance while the earlier decision was reconsidered. On September 4, 1969, following modification by the Board of its earlier decision, the Board sought the position of the parties as to the effect of such modification on the instant decision. On October 21, 1969, the Board issued a supplemental decision in the present case, reversing it with respect to the discharge of another employee, but reaffirming with respect to the suspension and demotion of Chodrick.
On November 21, 1969, the motions for reconsideration, rehearing and reopening of the record were filed by Serv-Air. The substance of those motions concerns findings by a federal district court in an independent civil proceeding which Serv-Air claims to be related to the same incident over which Chodrick was suspended and demoted.
Under section 10(e) of the Act we are empowered to order a remand where it is shown that the “evidence is material and there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board.” That is the same test contained in the Board’s regulations.
Without considering the reasonableness of the failure to adduce the alleged new evidence, we do not consider the district court findings to be of sufficient materiality to the instant suit to call for a reopening, reconsideration or rehearing. The incident over which the civil suit was litigated occurred more than one year prior to Chodrick’s suspension and demotion. Moreover, the primary reason given for the demotion and suspension concerned only the mattress incident and not the June, 1965, occurrence. And it is of more than casual interest to us that although the Company now attaches great significance to the June, 1965, incident, the record reveals that no disciplinary action whatsoever was taken against Chief Chodrick at the time of the June, 1965, fire, or subsequently. On this state of the record we cannot justify Serv-Air’s motions and conclude that the Board was within its discretion in denying same.
Enforcement of the order of the National Labor Relations Board is hereby granted.
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_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
ROBINSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 6125.
Circuit Court of Appeals, Sixth Circuit.
March 17, 1933.
A. J. Levin, of Detroit, Mich. (Butzel, Levin & Winston, of Detroit, Mich., and Frederick L. Pearce, of Washington, D. C., on the brief), for petitioner.
J. Louis Monarch, of Washington, D. C. (G. A. Youngquist, Sewall Key, Wm. Cutler Thompson, C. M. Charest, and Frank T. Horner, all of Washington, D. C., on the brief), for respondent.
Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges.
MOORMAN, Circuit Judge.
Bernard Wurzburger and Ms wife, Laura Wurzburgor, were residents of Michigan from 1910 until his death on July 10, 1926. Prior to September 8, 1916, the effective date of the first federal estate tax (39 Stat. 777), they acquired two pieces of real estate as tenants by the entirety. Upon the death of the husband the Commissioner assessed an estate tax against the properties. The Board of Tax Appeals affirmed (21 B. T. A. 1373), and the petitioner, executor of the husband’s estate, appeals, contending that section 302 (e) (h) of the Revenue Aet of 1924 (43 Stat. 304, 305 (26 USCA § 1094 note) is unconstitutional, in so far as it requires the inclusion in the gross estate of a decedent of the value of real estate acquired by a decedent and spouse as tenants by the entirety prior to September 8, 1916.
“Tho clear language of the 1924 statute repels the notion that it has no application to joint tenancies created prior to September 8, 1916.” Gwinn v. Commissioner of Internal Revenue, 287 U. S. 224, 53 S. Ct. 157, 158, 77 L. Ed.- (December 5, 1932). Whether its application in the present case is within the limitations of the Constitution depends upon the existence of a taxable event after September 8> 1916, to which it may attach. The death occurred after that date, and if it was a “generating source of definite accessions to the survivor's property rights,” then the tax was constitutionally levied. Sueh was held to he the effect of the death of the joint tenant in the Gwinn Case and in Third National Bank v. White, Collector, 53 S. Ct. 290, 77 L. Ed. -. In the latter ease, the Supreme Court affirmed the decision of the Court of Appeals [58 F.(2d) 1085] sustaining a'judgment of the District Court applying the tax to a tenancy created prior to 1916 [45 F.(2d) 911],
The petitioner relies upon a statement in the Gwinn Case to the effect that under the laws of California the estate could have been terminated by conveyance by either party, through proceedings for partition, or by involuntary alienation by execution. The Third National Bank Case he seeks to distinguish upon tho authority of a brief filed in that ease, citing Massachusetts eases holding that the rights of tho wife in property held by the entirety are subordinate to those of her husband.
It does not seem necessary to examine into the details of the rights of tenants by the entirety under the laws of Massachusetts and California as compared with those in Michigan. The law of Michigan is that prior to the- death. of one tenant neither can convey “without the .other joining in the conveyance.” Naylor v. Minock, 96 Mich. 182, 184, 55 N. W. 664, 665, 35 Am. St. Rep. 595. In Tyler v. United States, 281 U. S. 497, 503, 504, 50 S. Ct. 356, 359, 74 L. Ed. 991, 69 A. L. R. 758, it was said': “Before the death .of. the husband- (to take the Tyler Case, No. 428) the wife had the right to possess and use the whole property, but, so also, had her husband; she could not dispose of the property except with her husband’s concurrence; her rights were hedged about at all points by the equal rights of her husband. At his death, however, and because of it, she, for the first time, became entitled to exclusive possession, use and enjoyment; she ceased to hold the property subject to qualifications imposed by the law relating to tenancy by the entirety, and became entitled to hold and enjoy it absolutely as her own; and then, and then only, she acquired the power, not theretofore possessed, of disposing of the property by an exercise of her sole will. Thus tlje death of one of the parties to the tenancy became the ‘generating source’ of important and definite accessions to the property rights of the other.”
It is also the law of Michigan that an estate by entirety cannot be devised. Webber v. Webber, 217 Mich. 178, 185 N. W. 761. Upon the death-, therefore, of the decedent, his wife for the first time ceased to hold her interest in the property subject to the disabilities' and qualifications imposed by the grant and became entitled to exclusive possession, use, and enjoyment of the whole property. This was,a definite accession to her propei*ty rights under the rulings in the Tyler 'and Gwinn Cases. Cf. O’Shaughnessy v. Commissioner, 60 F.(2d) 235, 237 (6 C. C. A.).
The second question involved in the case relates to a bank deposit in the joint names of the decedent and his wife, payable to both or either or the survivor. The Revenue Act, section 302 (e), 26 USCA § 1094 note, requires that there be included in the estate of a decedent the entire amount of joint bank deposits, “except such part thereof as may be shown to have originally belonged” to the. survivor. No evidence was offered tending to show that any part of this deposit belonged to Laura Wurzburger. The contention is that, in- the absence of proof that it did or did not belong to her, the presumption of equal ownership created by the Compiled' Laws of Michigan, 1915, § 8040, must prevail, Murphy v. Michigan Trust Co., 221 Mich. 243, 246, 190 N. W. 698. It is accordingly contended that one-half of the amount on deposit should have been excluded from decedent’s gross estate. But the Revenue Act provides that all of the amount of such deposit shall be included in the decedent’s estate, except such part as may be shown to have originally belonged to the survivor. This provision cannot, we think, be vitiated by a state court decision construing a state statute as giving rise to a presumption. Burk-Waggoner Oil Ass’n v. Hopkins, 269 U. S. 110, 46 S. Ct. 48, 70 L. Ed. 183; Weiss v. Wiener, 279 U. S. 333, 49 S. Ct. 337, 73 L. Ed. 720. As said in New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 372, 38 S. Ct. 535, 536, 62 L. Ed. 1167, “the question of burden of proof is a matter of substance and not subject to control by laws of the several states.” Commissioner v. Olds (C. C. A.) 60 P. (2d) 252, 254, is not to the contrary. All that was held there was that the Board of Tax Appeals had the right to receive evidence that would have been admissible in the courts of the state where the contract was to be performed.
The order of the Board is affirmed.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure 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.
UNITED STATES of America, Appellee-Cross-Appellant, v. John W.S. McCORMICK, Defendant-Appellant-Cross-Appellee.
Nos. 694, 854, Dockets 92-1470, 92-1482.
United States Court of Appeals, Second Circuit.
Argued Feb. 18, 1993.
Decided April 28, 1993.
Bobbi C. Sternheim, New York City (Barry M. Fallick, Rochman Platzer Fallick Ros-marin & Sternheim, of counsel), for defendant-appellant-cross-appellee.
John M. Conroy, Asst. U.S. Atty., Burlington, VT (Charles A. Caruso, U.S. Atty., David V. Kirby, Chief, Crim. Div., of counsel), for appellee-cross-appellant.
Before: OAKES, ALTIMARI and MAHONEY, Circuit Judges.
OAKES, Circuit Judge:
This appeal raises the question whether the Double Jeopardy Clause prohibits the conviction and imposition of a sentence for an offense where the same offense was used in a prior proceeding to increase the defendant’s offense level under the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). Defendant John McCormick appeals and the government cross-appeals an order by the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, granting in part and denying in part a motion by McCormick to dismiss a 41-count indictment on double jeopardy grounds. The district court determined that those counts, and only those counts, of the Vermont indictment that had been used to determine McCormick’s sentence in a separate Connecticut proceeding had to be dismissed. United States v. McCormick, 798 F.Supp. 203 (D.Vt.1992). For the reasons set forth below, we affirm.
BACKGROUND
McCormick was charged in the District of Connecticut with bank fraud and related crimes in a 31-count indictment. The loss resulting from these crimes totaled approximately $75,000. A few months later, McCormick was charged in the District of Vermont with bank fraud, mail fraud, and related crimes in a 41-count superseding indictment. The losses resulting from these alleged crimes exceeded $4 million. Following a jury trial, McCormick was convicted on all counts in the Connecticut indictment.
At sentencing, the government filed a sentencing memorandum describing not only McCormick’s fraudulent conduct in Connecticut but similar schemes to defraud that allegedly took place in other states, including Vermont. These other schemes were offered as relevant conduct pursuant to Guidelines § 1B1.3(a)(2). This section directs the sentencing court, when determining the amount of loss for the purpose of calculating the offense level for fraud, to consider acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction____” U.S.S.G. § lB1.3(a)(2). Accordingly, the government argued that the loss arising from McCormick’s conduct fell between the $25& million to $5 million range, calling for a 13-level increase from the base offense level of six for fraud convictions. See U.S.S.G. § 2F1.1(b)(1)(N).
In the government’s communications with the Connecticut district court concerning sentencing, the government addressed the possibility several times that the use of the Vermont conduct in sentencing would preclude further prosecution of McCormick in Vermont for that conduct. For example, the United States Attorney’s Office for the District of Connecticut represented in a letter to the court that “[a] sentence based in part on the Vermont conduct will have the effect of barring further prosecution on the Vermont charges.” The letter further stated that, if the district court accepted the offense level enhancement based on the Vermont conduct, the “United States Attorney’s Office for the District of Vermont feels that although such a sentence would preclude the defendant’s conviction on additional felony counts in their District, the ends of justice will have been served....” At the sentencing hearing, the government partially retreated from these statements, claiming that the U.S. Attorney’s Office in Vermont was unsure whether it would be barred from further proceedings but that it would “not be likely to pursue their charges____”
The Connecticut court accepted the government’s argument and increased McCormick’s offense level by 13. Moreover, the court added two more offense points for “more than minimal planning,” pursuant to U.S.S.G. § 2F1.1(b)(2), creating a total offense level of 21. The Guidelines sentencing range based on an offense level of 21 and a criminal history category of I, McCormick’s category, is 37 to 46 months. The court sentenced McCormick to the top of this range, ordering him to serve concurrent terms of 46 months on each count of the conviction, in addition to a 3 year term of supervised release and restitution. This court by summary order affirmed McCormick’s sentence, thus holding that the district court in Connecticut did not err by considering the Vermont frauds in calculating McCormick’s sentence. United States v. McCormick, 969 F.2d 1042 (2d Cir.1992) (Table).
Following the Connecticut sentencing, McCormick submitted a motion to the Vermont District Court requesting that the Vermont indictment be dismissed on the grounds that prosecution would violate the Double Jeopardy Clause of the Fifth Amendment. The district court found that further prosecution was barred by the Double Jeopardy Clause only on those counts that were used by the Connecticut court in raising the offense level. On appeal, McCormick argues that all counts should be covered by the Double Jeopardy Clause and, on cross-appeal, the government challenges the district court’s finding that there is any double jeopardy problem at all.
DISCUSSION
The Double Jeopardy Clause provides that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Clause protects against both a subsequent prosecution for the same offense after acquittal or conviction as well as multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); see also Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873) (“[T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.”). At issue in this case is whether the prosecution of conduct that has already been used to determine a Guidelines offense level violates the multiple punishments prong of the Double Jeopardy Clause.
New courts have addressed this particular question. The district court and McCormick rely on the reasoning of United States v. Koonce, 945 F.2d 1145 (10th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1695, 118 L.Ed.2d 406 and cert. denied, — U.S. —, 112 S.Ct. 1705, 118 L.Ed.2d 413 (1992). The Koonce court identified three issues to be considered in determining whether the Double Jeopardy Clause prohibited the defendant’s prosecution for possession of a controlled substance in the District of Utah, given that the drug possession had already been used to increase the defendant’s offense level in sentencing for a separate offense in the District of South Dakota. The court considered whether increasing the offense level in light of the related conduct is “punishment” within the meaning of the Double Jeopardy Clause, whether Congress intended a defendant to be subjected to two punishments for that conduct, and whether the imposition of concurrent rather than consecutive sentences avoids double jeopardy issues. The court ultimately found that prosecution on the possession charge in Utah would violate the defendant’s constitutional rights.
The district court in Vermont applied the Koonce analysis to McCormick’s case and found that the Double Jeopardy Clause would be violated if McCormick were punished additionally for any of the counts that the Connecticut court considered in raising McCormick’s offense level. We agree with the district court’s analysis and findings: prosecution of McCormick in Vermont for conduct that was already incorporated into his Connecticut sentence would be a second punishment, Congress did not intend to allow multiple punishments for this type of conduct, and the availability of concurrent sentences does not eliminate this double jeopardy problem.
Application of the first part of the Koonce analysis is straight-forward and resolves McCormick’s contention that the district court should have granted his motion to dismiss every count of the Vermont indictment. McCormick was punished for the Vermont conduct that was taken into account by the Connecticut court when it determined the amount of loss for which McCormick was responsible. The government requested that the court take this conduct into account, the court explicitly stated that it was taking the conduct into account, and the ultimate sentence reflects part of McCormick’s Vermont conduct. Thus, any further prosecution of McCormick for this conduct would subject him to the possibility of multiple punishments for the same conduct. However, those counts of the indictment that did not affect the Connecticut court’s Guidelines calculations are not similarly barred from use. McCormick offers no evidence that the Connecticut court did in fact incorporate the counts that were not dismissed into its calculations and, therefore, prosecution for those counts cannot constitute a second punishment in violation of the Double Jeopardy Clause.
The second step of the Koonce analysis, determining whether Congress intended to allow the same conduct to be punished under both the Guidelines and a subsequent prosecution, raises the most difficult issue of this case. To begin with, Congress may authorize several penalties for the same act. The multiple punishments prong of the Double Jeopardy Clause limits prosecutorial and judicial action but does not prevent the legislature from assigning multiple punishments for the same conduct. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). As stated by the Koonce court, “[i]f Congress did intend multiple punishments for a single act, then for the purposes of Double Jeopardy analysis the combined punishment would simply be viewed as the appropriate punishment determined by Congress to represent the gravity of the offense and it would be upheld.” Koonce, 945 F.2d at 1150. However, “[ajbsent evidence to the contrary, it is assumed ‘that Congress ordinarily does not intend to punish the same offense under two different statutes.’ ” Id. at 1151 (quoting Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740 (1985)).
An examination of the Guidelines suggests that Congress did not intend to allow additional punishment for conduct that was used to enhance a defendant’s offense level. Congress authorized the creation of the Guidelines in significant part to respond to the lack of consistency in sentences imposed by the federal courts and supervised by the Parole Commission. S.Rep. No. 225, 98th Cong., 2d Sess. 38-39 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3221-22. See also U.S.S.G., Ch. 1, Pt. A(3), policy statement (“Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders.”). As part of the effort to achieve consistency in sentencing, the Guidelines attempt to group similar harms and to standardize the punishment that is to be applied to the conduct as a whole. See U.S.S.G. Ch. 1, Pt. A(4)(e), policy statement (multi-count convictions); cf. United States v. Merritt, 988 F.2d 1298, 1307-08 (2d Cir.1993) (comparing Guidelines “highly detailed categorization of offense conduct” with the minimal direction provided for evaluating the character of the defendant).
The District of Connecticut’s use of McCormick’s Vermont conduct to determine McCormick’s sentence was accomplished under U.S.S.G. § 1131.3(a)(2), the Guidelines provision designed to allow courts to account for similar conduct and punish for the aggregate relevant conduct. See U.S.S.G. § 1B1.3, comment, (n. 3); see also U.S.S.G. § 3D1.2 (“All counts involving substantially the same harm shall be grouped together into a single Group.”). This approach of determining a single punishment for a set of similar acts is specifically called for in cases of fraud. See U.S.S.G. § 2F1.1, comment, (n. 6) (“The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level....”). Fraud cases require this special treatment because “federal fraud statutes are so broadly written” that “a single pattern of offense conduct usually can be prosecuted under several code sections, as a result of which the offense of conviction may be somewhat arbitrary.” U.S.S.G. § 2F1.1, comment, (backg’d.). Thus, the Guidelines achieve consistency in sentencing for fraud cases by grouping all of the relevant conduct and applying a single offense level to the whole course of conduct.
In light of the purpose and careful shaping of the Guidelines, we do not believe that Congress or the Guidelines Commission intended to allow a defendant to be prosecuted for conduct already used to enhance his or her offense level. To rule otherwise would undermine the purpose of the Guidelines and introduce additional possibilities for inconsistent sentences. As the Koonce court stated, “[i]t is difficult to believe that Congress would have intended the punishment to be larger if the government chose to proceed with two different proceedings ... than if it chose to consolidate all of the counts in one proceeding.” Koonce, 945 F.2d at 1152. Furthermore, consolidation of punishment in a single proceeding avoids the problem of requiring a sentencing court to anticipate whether it is punishing conduct that may also be punished in another proceeding.
The third step in the Koonce analysis considers whether double jeopardy questions may be avoided if a second punishment consists of a concurrent rather than a consecutive sentence. As the district court and Koonce court realized, this issue was resolved by the Supreme Court in Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). The Ball Court recognized that even if a second conviction results in no greater sentence, a “separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored.” Ball, 470 U.S. at 865. Among the potential collateral consequences of conviction the Court mentioned are increased sentences under recidivist statutes and the extra societal stigma that comes from conviction, including possibly effects upon other state proceedings, past or present. Therefore, the availability of concurrent sentences does not eliminate double jeopardy concerns.
Although we find that the Double Jeopardy Clause precludes McCormick from being prosecuted for conduct that was used to enhance his offense level under the Guidelines, we recognize that at sentencing “justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937). Accordingly, there are a number of cases which have upheld a conviction and punishment for conduct that was previously used to enhance a defendant’s sentence for other conduct. Indeed, nothing we have said should be read as undermining the historic authorization of a sentencing judge “to consider all of the aggravating and mitigating circumstances involved in the crime.” Williams, 358 U.S. at 585, 79 S.Ct. at 427.
The critical distinction between these other cases and McCormick’s case is found in our analysis of congressional intent. If Congress intends to allow the same conduct to be used to enhance a sentence and to serve as the basis for a separate prosecution, the Double Jeopardy Clause does not stand in the way. However, as we have discussed, there is much evidence to suggest that Congress intended to consolidate the punishment for certain conduct, such as fraud, when it created the Guidelines scheme that allows for changes to a defendant’s offense level based on related acts. For this reason, the Double Jeopardy Clause precludes any prosecution of McCormick in Vermont based on the conduct used by the Connecticut court to increase his offense level.
CONCLUSION
Accordingly, the order of the district court is affirmed.
. Excluding the Vermont conduct, McCormick’s offense level would have been subject to a 5-level increase for a loss exceeding $40,000. U.S.S.G. § 2F1.1(b)(1)(F).
. The policy of grouping similar harms established in the Guidelines also serves to minimize the risk of prosecutorial manipulation of the counts charged in an indictment. The Guidelines state that "the Commission has written its rules for the treatment of multicount convictions with an eye toward eliminating unfair treatment that might flow from count manipulation." U.S.S.G. Ch. 1, Pt. A.4(a), policy statement.
. The dissent suggests that "§ 5G1.3 recognizes and explicitly addresses the sentencing problem posed by successive prosecutions in which an overall course of conduct is segmented into separate criminal charges....” The problem with this analysis is that § 5G1.3 does not apply to McCormick's situation. Section 5G1.3(b), the relevant provision of § 5G1.3, applies where a defendant’s offense level in a second prosecution is set taking into account conduct that has already been the subject of a conviction and sentencing. In contrast, McCormick’s first conviction and sentencing took into account conduct that is now the subject of a second prosecution. In the first case, covered by § 5G1.3(b), the Sentencing Commission requires concurrent sentencing in order to avoid multiple punishments. In the second case, presented by McCormick, multiple punishments can only be avoided by precluding a second prosecution.
. The government's conduct in this case lends additional support to the district court’s decision to dismiss those counts of the Vermont indictment that were used to enhance McCormick's offense level. Although it is true that at sentencing the government retracted its earlier categorical claim that the U.S. Attorney’s Office in Vermont would not pursue additional felony counts in Vermont, the government continued to make statements that may have confused the Connecticut court. For example, after retreating from its earlier claims, the government nonetheless stated that ”[i]t would appear that [the U.S. Attorney’s Office in Vermont] would not be likely to pursue their charges....” As a result, the Connecticut court may have sentenced McCormick with the understanding that McCormick would face no other punishment for that conduct.
It is thus unfortunate that the double jeopardy issue need be addressed by this court at all. As we have said before, the double jeopardy concerns brought forward by this case would not have arisen if the United States Attorneys’ offices in Connecticut and Vermont had followed the customary and better practice of making an agreement that sentencing would be resolved entirely in Connecticut. United States v. McCormick, 969 F.2d 1042 (2nd Cir.1992).
. See, e.g., Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (no constitutional bar to considering at sentencing for one offense criminal conduct that was the subject of a separate offense); United States v. Carey, 943 F.2d 44 (11th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1676, 118 L.Ed.2d 394 (1992) (two-level increase for obstruction of justice based on defendant's failure to appear does not preclude later prosecution for this act); United States v. Mack, 938 F.2d 678 (6th Cir.1991) (defendant's failure to appear for sentencing, for which he was later indicted, resulted in sentence in high end of guidance range); United States v. Williams, 935 F.2d 1531, 1539 (8th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1992) (enhancement of defendant’s criminal history category and imposition of a sentence based on the same conduct does not violate the Double Jeopardy Clause).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_majvotes
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2
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Roland Carl SHELVY, Appellant, v. Salanda WHITFIELD, et al.
No. 82-1921.
United States Court of Appeals, District of Columbia Circuit.
Calendared April 27, 1983.
Submitted Sept. 1, 1983.
Decided Sept. 16, 1983.
Roland Carl Shelvy, on brief, pro se. Stanley S. Harris, U.S. Atty., Michael W. Farrell, John R. Fisher, and Daniel S. Seikaly, Asst. U.S. Attys., Washington, D.C., on brief, for appellees.
A. Franklin Burgess, Jr., (appointed by this court) and Robert P. Mosteller, Washington, D.C., on brief, for amicus curiae urging reversal.
Before GINSBURG and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
Dissenting opinion filed by Senior Circuit Judge BAZELON.
GINSBURG, Circuit Judge:
This case concerns the calculation of credit for presentence time spent in custody. Petitioning for a writ of habeas corpus, Roland Shelvy claimed that he should receive, in addition to the 233 days of credit allowed by the District of Columbia Department of Corrections, a further credit' of approximately six months. The district court denied Shelvy’s application; it held that the statute governing presentence credit, 18 U.S.C. § 3568, does not permit the relief Shelvy seeks. We affirm the district court’s judgment. Our holding rests on two interrelated conclusions. Both grounds of decision stem from a principal objective of Congress in enacting 18 U.S.C. § 3568: to “remove confusion,” “produce certainty,” and “prevent juggling” as to the date on which a sentence commences. See S.Rep. No. 803, 72d Cong., 1st Sess. 2 (1932); H.R. Rep. No. 960, 72d Cong., 1st Sess. 2 (1932).
First, we conclude that credit for presentence time spent in custody against one or more eventual sentences continues until a defendant commences service of a sentence; but once a defendant actually commences service of a sentence, presentence credit ceases. Upon the prisoner’s reception at the institution for service of that sentence, or commitment to a place of detention to await transportation to the place at which the sentence shall be served, other pending charges do not extend the prisoner’s eligibility for credit for time spent in custody prior to the imposition of a sentence. Second, we conclude that a second sentence ordered to run concurrently with a sentence earlier imposed runs with the remainder of the earlier sentence.
I.
Shelvy was charged, held in presentence custody, and eventually sentenced in two separate proceedings. He was arrested on September 24, 1969, on charges of armed robbery, robbery, and two counts of assault with a dangerous weapon (case 1). He alleges that on the same day, he was also arrested and charged with murder (case 2). Shelvy has remained incarcerated since his arrest.
Case 1 was tried before a jury on March 11, 1970. Shelvy was found guilty on three counts. On May 15,1970, he was sentenced to imprisonment for six to eighteen years for armed robbery, and two to six years on each of the assault counts. These sentences were ordered to run concurrently.
In case 2, Shelvy entered a plea of guilty to second degree murder on October 13, 1970. On November 20, 1970, he was sentenced to the maximum term authorized for this offense, imprisonment for fifteen years to life. The district judge ordered the sentence to run concurrently with any sentence then being served.
Shelvy has received credit against both sentences for the period between September 24,1969, the date of his arrest, and May 15, 1970, the date he was sentenced in case 1. Despite commencement of the case 1 sentence on the latter date, Shelvy claims he is entitled to presentence credit in case 2 for the period from May 15, 1970, until November 20, 1970, the date on which the case 2 sentence commenced. In effect, he urges that we hold both sentencing dates irrelevant, and direct that he receive credit against the longer sentence — the one in case 2 — for every day he has been incarcerated since his arrest on September 24, 1969.
II.
The statute controlling credit for time spent in custody prior to the imposition of sentence provides, in relevant part:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed....
No sentence shall prescribe any other method of computing the term.
18 U.S.C. § 3568 (emphasis added). The district court held that the underscored language foreclosed Shelvy’s claim:
[F]rom May 15[, 1970,] on, the petitioner was incarcerated pursuant to his sentence in case 1; this being so, [he] was not spending [that time] in custody “in connection with the offense in [case 2]” and, hence, he is not entitled to credit for this time served.
Shelvy v. Whitfield, No. 82-1555, slip op. at 2 (D.D.C. July 30, 1982).
We recognize the force of the district court’s position. However, Shelvy’s case has an anomalous aspect: If the two sentence dates had been interchanged — the case 2 (murder) sentence imposed on May 15, 1970, the case 1 (robbery) sentence on November 20, 1970 — it appears that Shelvy would have been entitled to the six months credit he seeks. He would have received credit for presentence custody up to May 15, 1970, and for service of the case 2 sentence thereafter. In this hypothetical situation, there would have been no need to answer the question whether credit should have accrued against the case 1 sentence during the period May 15, 1970, to November 20,1970, for the absence of credit would have had no effect on the total period of incarceration; the case 1 sentence, six to eighteen years, even with no credit gained from May 15,1970, to November 20,1970, if ordered to run concurrently with the case 2 sentence, would have fit entirely within the latter, fifteen years to life, sentence.
Shelvy appeared pro se in the district court and on appeal. Because we believed he might have an arguable point, we invited the Public Defender Service to assist the court by submitting a brief, amicus curiae. That brief cogently points out that because Shelvy’s sentence in case 1 is totally subsumed within the considerably longer, concurrently running sentence in case 2, credit against the case 1 sentence, for all practical purposes, is meaningless. Credit against that sentence alone cannot shorten the time Shelvy will spend in prison.
III.
We are impelled to agree with the district court that Shelvy is not entitled to any additional “credit for time [he spent] in custody prior to the imposition of sentence.” See 18 U.S.C. § 3568 (caption) (emphasis added). First, the section in question fixes the time when a sentence commences. Beyond debate, Shelvy commenced serving a sentence on May 15, 1970. Next, the section provides for presentence credit. Congress has consistently described this provision as aimed at credit for confinement before and during trial, and not at credit for any post-sentence custody. See S.Rep. No. 750, 89th Cong., 1st Sess. 21 (1965) (amendments extending section 3568 to nonbailable offenses and lifting its limitation to statutes with minimum mandatory sentences were designed to “guarantee[] credit for pretrial custody”); H.R.Rep. No. 2058, 86th Cong., 2d Sess. 1 (1960) (purpose of amendment to section 3568 “is to make clear that the defendant receives credit for time spent in custody not only prior to trial but during the trial,” and “also to exclude credit for time spent in custody after sentence, such as while on appeal”). Once a sentence is imposed and becomes operative for the period of time at issue, it is artificial to maintain that custody nonetheless retains its preconviction character, that it remains conditional, unsettled, still dependent upon (and therefore “in connection with”) a trial court’s eventual disposition of other charges not yet adjudicated.
Moreover, were we to read 18 U.S.C. § 3568 as authorizing presentence credit for time a prisoner serves after the imposition of a first sentence, we would alter the instruction a trial judge signals when he or she orders that the sentence imposed shall run concurrently with any sentence then “being served.” For example, assume a trial judge imposed a one-year sentence on a defendant and ordered it to run concurrently with a one-year sentence then being served, eight months of which had elapsed. We have little doubt that the sentencing judge in such a case would envision a second sentence outlasting the first by eight months. Precedent in point confirms that a federal sentence made concurrent with a sentence already being served does not operate in a “fully concurrent” manner. Rather, the second sentence runs together with the remainder of the one then being served. See United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980); Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir.1972).
In his pro se brief, Shelvy correctly points out that the presentence credit for which 18 U.S.C. § 3568 provides is responsive to the situation of a person held in custody because of inability to make bail. See Brief for Appellant at 2. The current statute covers such cases and more. It applies to incarceration prior to the imposition of any sentence where the person is charged with a nonbailable offense or is not released pre-sentence for some other reason, for example, where a person is initially detained as a juvenile but later tried as an adult. Indeed, if the statute limited credit to days spent in custody because of inability to make bail, it appears that Shelvy would not have an arguable ease even for the credit accorded him. Jail records indicate that, while Shelvy was held in lieu of a money bond in case 1, the armed robbery case, he was held without bond in case 2, the murder case. See Brief for Amicus Curiae at 1. We therefore find unpersuasive the central assertion in Shelvy’s pro se brief that he was the victim of invidious discrimination because of his poverty.
The brief for amicus curiae suggests that we could grant “meaningful credit against the total period of [Shelvy’s] confinement,” and preclude the order of the two sentences from affecting the total time he serves, by “interrupting] the running of [the sentence in case 1]” and “making it commence six months later on November 20,1970.” Brief for Amicus Curiae at 20. But the opening statement in 18 U.S.C. § 3568 provides:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence.
The concluding sentence of the section states:
No sentence shall prescribe any other method of computing the term.
Setting out the relevant legislative history, this court observed that Congress dominantly intended to provide “a firm date of sentence commencement.” United States v. Liddy, 510 F.2d 669, 674 (D.C.Cir.1974) (en banc), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975). The court in Liddy recognized authority in the district court to interrupt a sentence once it has commenced and thereby postpone the termination date of the sentence “beyond the time the sentence would have ended had it not been interrupted.” Id. We confront no such situation here. Neither district court order nor statute authorizes the interruption amicus suggests. We therefore have no warrant to treat the case 1 sentence as commencing six months after Shelvy was committed to a place of detention to await transportation to the penitentiary designated for service of that sentence.
Nor, in face of specific congressional instruction to the contrary, are we at liberty to regard the case 2 sentence as “commenc[ing] to run from some date prior to the sentence or some date before [Shelvy] actually commence[d] [its] service.” See S.Rep. No. 803, supra, at 2; H.R.Rep. No. 960, supra, at 2. Moreover, even if we were to ignore the concern of Congress embodied in 18 U.S.C. § 3568 to “prevent juggling with sentences,” id., and entertain the notion that “a sentencing judge has the discretion to provide that a sentence is to be retroactively concurrent with another sentence which has already been served,” it is evident that “no such order was made in this case.” See United States ex rel. Del Genio v. United States Bureau of Prisons, 644 F.2d 585, 589 (7th Cir.1980), cert, denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981) (rejecting petitioner’s argument that a later sentence, ordered to run concurrently with an earlier one, should be treated as having commenced prior to the date it was imposed).
Shelvy’s case 2 sentence, as pronounced, runs concurrently with the case 1 sentence then being served. No statute authorizes us to amend that direction so that the sentence in case 2 not only runs concurrently with the remainder of the sentence in case 1, but is shortened by the time already elapsed on the prior sentence. The anomaly that Shelvy would have been entitled to consideration for release six months earlier had he been sentenced on the case 2 charge first is no more curious than the one suggested by respondents: had Shelvy been charged in case 2 the day after imposition of the sentence in case 1, none of his presentence detention would have served to reduce the period of his incarceration; he would not have received effective credit even for the 233 days between arrest and first sentencing.
Conclusion
We conclude that Shelvy is entitled to presentence credit only for days of incarceration during which he was not serving any sentence. He has received full credit for those days. We can accord him no more without straining the meaning of 18 U.S.C. § 3568 and departing from judicial understanding and precedent on what a “sentence to run concurrently with an earlier sentence” means. Therefore, the judgment from which this appeal has been taken is
Affirmed.
. Citing Preiser v. Rodriguez, 411 U.S. 475, 486-88, 93 S.Ct. 1827, 1834-35, 36 L.Ed.2d 439 (1973), the district court noted that although granting Shelvy’s application would not result in his immediate release from confinement, a habeas corpus petition appears to be an available means to seek the requested relief.
. Respondents stated that prison records indicated October 31, 1969, as the date of Shelvy’s commitment on the murder charge. The district court assumed, for purposes of ruling on Shelvy’s petition, that commitments in both cases occurred on September 24, 1969. See Shelvy v. Whitfield, No. 82-1555, slip op. at 1 n. 1 (D.D.C. July 30, 1982). We make the same assumption.
. Murder in the second degree, defined in D.C. Code § 22-2403, is punishable by imprisonment “for life or not less than 20 years.” D.C. Code § 22-2404. However, D.C.Code § 24-203, the Indeterminate Sentence Act, provides that a maximum sentence of life imprisonment must be accompanied by a minimum sentence not to exceed 15 years imprisonment. Thus Shelvy’s term was 15 years to life. Had the trial judge sentenced Shelvy to the lightest sentence permissible under § 22-2404, i.e., 20 years, § 24-203 would have made him eligible for parole in 6% years. See Frady v. United States Bureau of Prisons, 570 F.2d 1027, 1028-29 (D.C.Cir.1978) (quoting H.R.Rep. No. 677, 87th Cong., 1st Sess. 2 (1961)).
. The position that presentence credit does not include time spent serving another sentence is announced in instructions for administrative determinations of jail-time credit under 18 U.S.C. § 3568, see United States Department of Justice, Federal Prison System Program Statement No. 5880.24, para. 5.b.(2) (Sept. 5, 1979), and is reflected in prior court rulings. See O’Connor v. Rodgers, Habeas Corpus 233-68, aff’d, No. 22,853 (D.C.Cir. June 24, 1970) (noting that Chief Judge Bazelon would remand the case for clarification of the trial judge’s intention in the imposition of the concurrent sentences). We do not attribute precedential value to this court’s unpublished disposition. See D.C.Cir.R. 8(f). We simply note, in view of the dissent’s reading of the statute, that on a prior occasion, after full consideration, the court determined that the issue occasioned no need for an opinion. See D.C.Cir.R. 13(c).
. In Flores, the defendant was sentenced, after conviction, to ten years on one drug offense on February 12,1976, and, after a plea of guilty, to ten years on another drug offense on December 13, 1976, the latter sentence “ ‘to run concurrently with the sentence imposed [in the first case].’ ” 616 F.2d at 841. He sought, unsuccessfully, to vacate the second sentence, urging that he had entered the guilty plea on the misapprehension that the sentence would be considered to begin and terminate on the same dates as the prior sentence, and that his counsel had labored under the same misapprehension. The court held this erroneous construction of the meaning of a concurrent sentence insufficient to invalidate the plea bargain.
In Wilson, the defendant sought credit for 155 days actually served on a sentence imposed by the District Court for the District of Columbia against a longer sentence subsequently imposed by the District Court for the Southern District of New York and ordered to run concurrently with the District of Columbia sentence the defendant was then serving. Credit was denied on the ground that a sentence cannot commence prior to the date it was pronounced even if it is to be served concurrently with a sentence already being served. 468 F.2d at 584. As in the case before us, the defendant in Wilson was awarded credit against both sentences for the period he spent in federal custody (204 days) prior to the first, District of Columbia, sentence. Id. at 583.
. See S.Rep. No. 750, 89th Cong., 1st Sess. 21 (1965) (nonbailable offenses); Federal Bail Procedures: Hearings on S. 2838, S. 2839, S. 2840 Before the Subcomm. on Constitutional Rights and the Subcomm. on Improvements in Judicial Machinery of the Comm, on the Judiciary, 88th Cong., 2d Sess. 135-36 (1964) (juveniles-tried-as-adults and nonbailable offenses).
. At our request, amicus curiae’s brief centered on this question: “Given the fact that Mr. Shelvy would have received the six months credit he now seeks had the sentencing dates been reversed, does 18 U.S.C. § 3568 require a different result because the sentence in the robbery case came first?” Brief for Amicus Curiae at 6. The brief is a careful, comprehensive development of the arguments in support of six months additional credit for Shelvy. The dissent considers “essential” further supplemental briefing and argument. Dissent at 448. Yet it cites not a single decision that even squints in support of a different outcome in Shelvy’s case.
. No doubt “judicial power,” see dissent at 448, existed to render Shelvy eligible for parole earlier. The sentencing judge in case 2 could have shortened Shelvy’s second degree murder sentence. See supra note 3. Instead, in face of contemporaneous interpretation of 18 U.S.C. § 3568, see supra note 4, and extant administrative procedures for computing jail-time credit, he sentenced Shelvy to the statutory maximum.
. Brief for Respondent-Appellees at 6.
. The days would have been credited against the sentence in case 1, but there would have been no presentence credit at all against the considerably longer sentence in case 2.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_denovo
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the standard of review, "de novo on facts" support the government?" The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court. 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".
Babaui MALONE, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION, a corporation, Defendant-Appellee.
No. 26009.
United States Court of Appeals, Ninth Circuit.
March 23, 1972.
Richard I. Wideman (argued), Los Angeles, Cal., for plaintiff-appellant.
Stephen E. Tallent (argued), Kenneth E. Ristau, Jr., of Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendant-appellee.
Charles L. Reischel (argued), Stanley P. Herbert, Gen. Counsel, Russell Specter, Deputy Gen. Counsel, Julia P. Cooper, Gen. Atty., Washington, D. C., for amicus curiae.
Before BROWNING, ELY and CHOY, Circuit Judges.
PER CURIAM:
Mrs. Babaui Malone appeals a district court order granting summary judgment dismissing her complaint charging her employer, North American Rockwell Corporation (North American), with job discrimination in violation of Title VII, the equal employment provisions, of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. We reverse and remand.
Mrs. Malone, a black, has been employed by North American since 1942. She has unsuccessfully sought promotion from her present classification of aircraft assembler to that of aircraft structure mechanic. In early 1967, North American promoted two Caucasian men from assembler to structure mechanic. Both had worked in the same unit as Mrs. Malone; both were below her in seniority.
Mrs. Malone then filed a grievance with her union agent contending that she had been denied promotion in violation of the union contract. The grievance was settled against her on July 12, and Mrs. Malone was so notified on August 27. On September 2, she mailed a charge to the Equal Employment Opportunities Commission (the EEOC), alleging racial discrimination in the promotion of the two men and in the settlement of her grievance. The EEOC immediately referred her charge to the California Fair Employment Practice Commission (the FEPC), in keeping with its policy of forwarding all discrimination charges to the responsible state agency in compliance with § 2000e-5(b). Mrs. Malone personally filed a charge with the FEPC on September 14.
After the sixty-day referral period required by § 2000e-5(b) elapsed, Mrs. Malone requested that the EEOC assume jurisdiction over her case. On February 13, 1968, the EEOC notified her that it had failed to obtain voluntary compliance by North American, and that she had thirty days in which to bring suit in the federal district court. In the interim, the EEOC had not investigated Mrs. Malone’s charge nor attempted conciliation. Mrs. Malone filed her suit on February 20, 1968. Her EEOC charge was not served upon North American until February 11, 1969.
The District Court granted summary judgment for North America, holding that it lacked subject matter jurisdiction because Mrs. Malone’s EEOC charge was not timely filed within the 210 days required by § 2000e-5(d), since the alleged discriminatory acts occurred approximately 330 days before the charge was actually filed in November, 1967. This construction of the statute penalized an employee who sought to adjust her dispute with her employer through the private machinery of the grievance procedure. While resort to contractual grievance procedures may delay somewhat the speedy resolution of discrimination disputes, it nevertheless encourages private settlement without resort to state or federal agencies or to the federal courts. Since Title VII seeks to utilize private settlement as an effective deterrent to employment discrimination, we hold that the 210-day statute of limitations is tolled while an employee in good faith pursues his contractual grievance remedies in a constructive effort to obtain a private settlement. Culpepper v. Reynolds Metal Co., 421 F.2d 888, 891 (5th Cir., 1970); Hutchings v. United States Industries, Inc., 428 F.2d 303, 308-309 (5th Cir., 1970). Cf. Schiff v. Mead Corp. (6th Cir., November 18, 1970). Mrs Malone’s EEOC charge was timely filed.
Reversed and remanded for further proceedings. Under the particular circumstances of this case and pursuant to § 2000e-5(k), we award $2,500 in attorney’s fees for services on this appeal to Mrs. Malone, that amount having been stipulated to as reasonable by North American’s counsel.
. The record does not disclose the exact date of the promotions. We accept the district court’s conclusion that they oc-currecl during January, 1967. Unless otherwise noted, all dates are 1967.
. We do not decide whether North American’s failure to promote Mrs. Malone constituted a “continuing act” of discrimination or whether the settlement of the grievance against her was in itself a discriminatory act.
Question: Did the court's use of the standard of review, "de novo on facts" support the government? The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
SANTEE TIMBER CORPORATION v. ELLIOTT et al. KRUPNICK v. PEOPLE'S STATE BANK OF SOUTH CAROLINA et al.
No. 3564.
Circuit Court of Appeals, Fourth Circuit.
April 3, 1934.
Henry E. Davis, of Florence, S. C., and L. D. Lide, of Marion, S. C., for appellant.
Edward W. Mullins and William M. Shand, both of Columbia, S. C. (Nelson & Mullins and Bénet, Shand & McGowan, all of Columbia, S. C., on the brief), for appel-lees. N
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a decree on an intervening petition in the receivership proceedings of the failed People’s State Bank of South Carolina. The petitioner was the Santee Timber Corporation, which sought to impress a trust on assets in the hands of the receivers on account of deposits made with the bank in the latter part of the year 1931 amounting to $43,532.31. These deposits were made pursuant to contracts between the timber corporation, as seller of certain timber, the purchaser of the timber, and the Mercantile , Trust Compahy of Baltimore, the trustee under a deed of trust securing an issue of bonds. They were subject only to the cheek or order of the trust company. The timber corporation, which had assumed responsibility for the depository, had made payment to the trust company of the amount of the deposits, and all rights of the trust company therein had been assigned to it. The decree adjudged that the claim based on the deposits was without preferential status and dismissed the petition. The timber corporation has appealed.
The material facts are undisputed. In 19-28 the timber corporation entered into a contract for the sale of standing timber to the Tumer-Farber-Love Company, which assigned its rights under the contract to the Santee Hardwood Company. This contract provided that the purchaser should cut the timber on a certain tract of land and pay for same at agreed prices, the basic price being $7 per thousand feet, and should make payment on the 15th day of each month for all lumber shipped during the preceding month. Payment was to be made by depositing the amount due to the credit of the timber corporation in the People’s First National Bank of Charleston, S. C., the predecessor of the failed bank, or in such other bank or banks as might be designated by the timber corporation, that corporation “assuming all responsibility for the solvency of the depository.” The contract provided also that at the time of each monthly payment the purchaser should file with the timber corporation and with the “depository bank” an itemized statement of the lumber shipped during the preceding month.
Shortly after the making of this contract, the timber corporation executed a deed of trust to the Mercantile Trust & Deposit Company of Baltimore, the name of which has since been changed to Mercantile Trust Company, conveying certain property to that company as trustee and assigning to it the rights of the timber corporation under its contract with the Tumer-Farber-Love Company. One of the provisions of the deed of trust was that there should be paid to the trust company semiannually by the bank, acting as depository under the contract heretofore mentioned, “all moneys received by such depository” from the hardwood company to the extent of $6 per thousand feet, and that to this extent the amounts deposited to the credit of the timber corporation should be “subject only to the check or order of the Trustee.” So long as there was no default on the. part of the timber corporation, it was authorized to receive from the depository monthly, for its own use and benefit, the remainder of the moneys received by the depository from the hardwood company. Under the de-ed of trust, as well as under the contract, full responsibility for the depository was assumed by the timber corporation.
The hardwood company carried its general deposit account with the bank. Once each month it drew a cheek on this account for the amount due under its contract with the timber corporation, and this check, together with a copy of the itemized monthly statement provided for in the contract of sale, was sent to one K. E. Bristol, vice president and trust officer of the bank. The cheek was charged to the account of the hardwood company; and so much as was required to meet the conditions of the deed of trust was credited to the “Santee Corporation Sales Agreement Account,” an account carried in the savings department of the bank, and the remainder was credited to the general commercial account of the timber corporation. Every six months the amount accumulated in this “Sales Agreement Account,” with interest thereon, was remitted to the trust company and no compensation was paid to or retained by the bank on account of services rendered as trustee or otherwise. While the account was handled by its trust officer, there was no attempt to segregate or separately invest the funds deposited with it; and there is nothing to show that such segregation or separate investment was contemplated. On July 6, 1931, the bank remitted to the trust company in full for the amounts deposited to that date. The amount here involved represents deposits in the “Sales Agreement Account” made in the manner above described between July 1,1931, and December 31,1931, with interest on such deposits calculated to the latter date. The bank was placed in receivership January 2, 1932.
There can be no question, we think, but that a trust in favor of the trust company was created under the contract and deed of trust with respect to the debt of the bank created by the deposits made pursuant to their provisions; and if the timber corporation, relying upon the fact that the deposits were made in the “Timber Sales Account” carried in its name, were claiming the credit balance as its own and denying the right of the trust company, a trust in favor of the latter would unquestionably be declared. Stickney v. General Electric Co. (C. C. A. 4th) 44 F.(2d) 362. But to say that a trust exists with respect to a debt created by a deposit made pursuant to an agreement of parties does not mean that the bank takes the funds deposited as trustee and is charged with the duty of keeping them separate from its other funds and investing them as trust funds intrusted to its keeping. Complainant confuses a trust with respect to the debt evidenced by a deposit account with a trust in funds held by a bank as trustee, which is an entirely different matter. A general deposit in a bank creates merely a debt oh the part of the bank. The funds thus deposited become the property of the bank; and it is under no obligation to the depositor to preserve them, to invest them, or to keep them separate from its other funds. Funds which are the subject of a trust may be thus deposited in a bank under a general deposit; and the obligation of the bank to repay the deposit may thus become the subject of the trust just as a bond, promissory note, or other obligation. But it is well settled that the bank does not become charged with the duties of a trustee merely because it accepts on deposit funds which are subject to a trust. 3 R. C. L. 518; 7 C. J. 633; notes in 37 A. L. R. 120 and 53 A. L. R. 564. It becomes charged with such duties when it accepts funds, not as a general deposit creating the relationship of debtor and creditor, but under an agreement to handle and account for them in a fiduciary capacity, as in Strauss v. U. S. F. & G. Co. (C. C. A. 4th) 63 F.(2d) 174, or under circumstances giving rise to a constructive trust, as in Tucker v. Newcomb (C. C. A. 4th) 67 F.(2d) 177.
What we have here is nothing more than a series of general deposits made with the bank as a depository pursuant to agreement of the parties to whom the funds belonged and under an agreement that the bank should remit at regular intervals to the party entitled. The fact that the bank was paid nothing for services as trustee but, on the contrary, paid interest on the deposits made with it, shows that the parties thoroughly understood that it was to use the funds deposited as its own, assuming the position of debtor as in the ease of other general deposits, and was not to be charged as a trustee with the duty of segregating and investing the funds. Swan v. Children’s Home Society of West Virginia (C. C. A. 4th) 67 F.(2d) 84; Davis Trust Co. v. Smith (C. C. A. 4th) 226 F. 410; Scammon v. Kimball, 92 U. S. 362, 370, 23 L. Ed. 483. And this is not affected by the fact that it was charged with the duty of dividing the deposit made by the hardwood company between the trust company and the timber corporation, as it is perfectly clear that an ordinary general deposit of the funds held for remittance to the trust company was contemplated and not a segregation or investment of funds for its benefit. Swan v. Children’s Home Society, supra, 67 F.(2d) at page 87. The case is like that presented in Commercial Bank v. Armstrong (Armstrong v. Commercial Bank), 148 U. S. 50, 13 S. Ct. 533, 535, 37 L. Ed. 363, where it was held that no trust arose with respect to collections made by one bank for another under an agreement that remittance for such collections was to be made at stated intervals. The court said:
“The agreement was to collect at par, and remit the 1st, 11th, and 21st of each month. Collections intermediate those dates were, by the custom of banks, and the evident understanding of the parties, to be mingled with the general funds of the Fidelity, and used in its business. The fact that the intervals between the dates for remitting were brief is immaterial. The principle is the same as if the Fidelity was to remit only onee every six months. It was the contemplation of the parties, and must be so adjudged according to the ordinary custom of banking, that these collections were not to be placed on special deposit and held until the day for remitting. The very fact that collections were to be made at par shows that the compensation for the trouble and expense of collection was understood to be the temporary deposit of the funds thus collected, and the temporary use thereof by the Fidelity.”
Another decision by the Supreme Court very mueh in point is Marine Bank v. Fulton Bank, 2 Wall. 252, 256, 17 L. Ed. 785, where the Marine Bank made collections for the Fulton Bank and was advised by the latter to hold the avails subject to order and advise the amount collected. Afterwards the Marine Bank attempted to make payment in the currency which it had received on the collection, then largely depreciated, but its right to do this was denied, the court saying:
“All deposits made with bankers may be divided into two classes, namely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter; and that other kind of deposit of money peculiar to banking business, in which the depositor, for his own convenience, parts with the title to his money, and loans it to the bankers; and the latter, in consideration of .the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand. The case before us is not of the former class. It must be of the latter.”
There is some conflict among the state decisions as to whether a deposit made in a bank for a special purpose creates a trust fund in the hands of the bank. But it is well settled in the federal courts that, if the deposit is made as a general deposit, -the fact that it is made for the purpose of providing a credit which is to be used thereafter for a special purpose does not give it the status of a trust fund in the hands of the bank. Thus, in Blakey v. Brinson, 286 U. S. 254, 52 S. Ct. 516, 76 L. Ed. 1089, 82 A. L. R. 1288, it was held that a deposit made for the purpose of providing a credit against which bonds to be purchased by the bank for the depositor were to be charged, did not give rise to a trust in favor of the depositor. In Manhattan Co. v. Blake, 148 U. S. 412, 425, 13 S. Ct. 640, 644, 37 L. Ed. 504, a deposit by a state with a bank which acted as-agent in paying interest on its obligations-was held not to establish a trust but a deposit account subject to the tax on bank deposits. In Kershaw v. Kimble (C. C. A. 10th) 65 F.(2d) 553, a deposit in a savings account to be charged with purchases of securities to be made by the bank was held not to create-a trust. ' And the same conclusion was reached in Keyes v. Paducah & I. R. Co. (C. C. A. 6th) 61 F.(2d) 611, 86 A. L. R. 203, where there was a deposit of funds in a bank pending the final determination of a lawsuit; in Great Atlantic & Pacific Tea Co. v. Citizens’ Nat. Bank (C. C. A. 3d) 66 F.(2d) 883, where deposits were made with a bank which was t'o make daily transmission to another bank of accumulated deposits; in Pitts v. Pease (C. C. A. 5th) 39 F.(2d) 14, where deposits Were made for the purpose of paying-certain notes; in Northern Sugar Corporation v. Thompson (C. C. A. 8th) 13 F.(2d) 829, where deposits were made to meet a. pay roll; in Davis Trust Co. v. Smith, supra (C. C. A. 4th) 226 F. 410, where funds were deposited in a bank under an agreement that interest on the deposit was to be paid to certain children during their minority and that the principal sum was to be paid to them on their coming of age; and in the recent case of Swan v. Children’s Home Society of West Virginia, supra, 67 F.(2d) 84, where a deposit was made in a hank at interest, pursuant to the terms of a will and an order of a probate court, with direction that the interest on the deposit be paid to a society for the care of orphan children. The holding of the South Carolina courts is to the same effect. See Fant v. Home Bank & Trust Co., 152 S. C. 140, 149 S. E. 599.
In Manhattan Co. v. Blake, supra, the Supreme Court used language which is very appropriate here. In that case the bank agreed to act as agent of the state in paying from the deposits made with it interest on certain state obligations. The court said: “The plaintiff occupied two relations to the state, one that of debtor as a bank for the money deposited with it by the state, and the other that of agent of the state to pay out from the money deposited, if it remained on deposit, money for certain specified purposes.” Here the bank was the debtor of the timber corporation for the amount of the deposits made with it under the contract and was the agent of that corporation to make payment to the trust company of the amounts due it under the provisions of the deed of trust and charge such payments to the deposit account. The fact that the funds credited to the “Sales Agreement Account” were subject to the order of the trust company and not of the timber corporation does not, of course, change the situation. Even if there had been provision that they were not to be withdrawn except in the semiannual remittances, this would have had no effect other than give them the status of time deposits. The controlling factor is that there is nothing in the contract, in the deed of trust, or in the dealings of the parties which shows .that it was ever contemplated that the deposits were to be set apart as trust funds and handled and invested as such. On the contrary, the intention is clear that, the deposit was to be a general deposit; and, if the bank had segregated and invested the funds, a tender of the securities in which they had been invested would not have been a compliance with the duty to make semiannual remittances. If it had sustained losses as a result of such investments, any attempt to deduct such losses from the remittances would have been properly resisted under the holding of the Supreme Court in Marine Bank v. Fulton Bank, supra..
Nor do we think that the timber corporation’s position is helped by the South Carolina statute upon which it relies, the Act of March 28, 1930 (36 St. at Large S. C. p. 1367). That statute requires banks acting in a fiduciary capacity to segregate trust funds from their general assets and invest tnem, and provides that funds held awaiting investment or distribution shall be secured to the trust department of the bank by bond acceptable for the securing of public funds under the law of the state. It applies only to eases where banks accept funds to invest or manage in a fiduciary capacity, and has no application whatever to a general deposit which creates a mere indebtedness on the part of the bank.
Because of the importance of the question involved, we have gone somewhat fully into the question as to the existence of a trust; but, even if the bank were held a trustee of the fund covered by the deposits, complainant has not established any right to subject to the trust any of the assets which came into the hands of the receivers. As heretofore stated, the deposits in question were made by crediting to the “Sales Agreement Account” checks drawn by the hardwood company against its general account in the bank. This resulted in a mere shifting of credits and added nothing to the bank’s assets. There was consequently no augmentation of assets upon which a trust in favor of complainant could be predicated. Swan v. Children’s Home Society of West Virginia, supra; Lifsey, Receiver of Planters’ & Merchants’ First National Bank of South Boston, Va., v. Goodyear Tire & Rubber Co. (C. C. A. 4th) 67 F.(2d) 82; Ellerbe v. Studebaker Corporation of America (C. C. A. 4th) 21 F.(2d) 993, 995; Larabee Mills v. First Nat. Bank (C. C. A. 8th) 13 F.(2d) 330; American Can Co. v. Williams (C. C. A. 2d) 178 F. 420; Mechanics & Metals Nat. Bank v. Buchanan (C. C. A. 8th) 12 F.(2d) 891. And see note in 82 A. L. R. at pages 95 and 101, and cases there cited.
For the reasons stated, the decree appealed from was correct and same will accordingly be affirmed.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_issue_10
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
DONOVAN et al. v. CITY OF DALLAS et al.
No. 264.
Argued April 22, 1964.
Decided June 8, 1964.
James P. Donovan argued the cause and filed a brief for petitioners.
H. P. Kucera argued the cause for respondents. With him on the brief were Charles S. Rhyne, Brice W. Rhyne and Alfred J. Tighe, Jr.
Mr. Justice Black
delivered the opinion of the Court.
The question presented here is whether a state court can validly enjoin a person from prosecuting an action in personam in a district or appellate court of the United States which has jurisdiction both of the parties and of the subject matter.
The City of Dallas, Texas, owns Love Field, a municipal airport. In 1961, 46 Dallas citizens who owned or had interests in property near the airport filed a class suit in a Texas court to restrain the city from building an additional runway and from issuing and selling municipal bonds for that purpose. The complaint alleged many damages that would occur to the plaintiffs if the runway should be built and charged that issuance of the bonds would be illegal for many reasons. The case was tried, summary judgment was given for. the city, the Texas Court of Civil Appeals affirmed, the Supreme Court of Texas denied review, and we denied certio-rari. Later 120 Dallas citizens, including 27 of the plaintiffs in the earlier action, filed another action in the United States District Court for the Northern District of Texas seeking similar relief. A number of new defendants were named in addition to the City of Dallas, all the defendants being charged with taking part in plans to construct the runway and to issue and sell bonds in violation of state and federal laws. The complaint sought an injunction against construction of the runway, issuance of bonds, payment on bonds already issued, and circulation of false information about the bond issue, as well as a declaration that all the bonds were illegal and void. None of the bonds would be approved, and therefore under Texas law none could be issued, so long as there was pending litigation challenging their validity. The city filed a motion to dismiss and an answer to the complaint in the federal court. But at the same time the city applied to the Texas Court of Civil Appeals for a writ of prohibition to bar all the plaintiffs in the case in the United States District Court from prosecuting their case there. The Texas Court of Civil Appeals denied relief, holding that it was without power to enjoin litigants from prosecuting an action in a federal court and that the defense of res judicata on which the city relied could be raised and adjudicated in the United States District Court. On petition for mandamus the Supreme Court of Texas took a different view, however, held it the duty of the Court of Civil Appeals to prohibit the litigants from further prosecuting the United States District Court case, and stated that a writ of mandamus would issue should the Court of Civil Appeals fail to perform this duty. The Court of Civil Appeals promptly issued a writ prohibiting all the plaintiffs in the United States District Court case from any further prosecution of that case and enjoined them “individually and as a class . . . from filing or instituting . . . any further litigation, lawsuits or actions in any court, the purpose of which is to contest the validity of the airport revenue bonds ... or from in any,manner interfering with . . . the proposed bonds . . . The United States District Court in an unreported opinion dismissed the case pending there. Counsel Donovan, who is one of the petitioners here, excepted to the dismissal and then filed an appeal from that dismissal in the United States Court of Appeals for the Fifth Circuit. The Texas Court of Civil Appeals thereupon cited Donovan and the other United States District Court claimants for contempt and convicted 87 of them on a finding that they had violated its “valid order.” Donovan was sentenced to serve 20 days in jail, and the other 86 were fined $200 each, an aggregate of $17,200. These penalties were imposed upon each contemner for having either (1) joined as a party plaintiff in the United States District Court case; (2) failed to request and contested the dismissal of that case; (3) taken exceptions to the dismissal preparatory to appealing to the Court of Appeals; or (4) filed a separate action in the Federal District Court seeking to enjoin the Supreme Court of Texas from interfering with the original federal-court suit. After the fines had been paid and he had served his jail sentence, counsel Donovan appeared in the District Court on behalf of himself and all those who had been fined and moved to dismiss the appeal to the United States Court of Appeals. His motion stated that it was made under duress and that unless the motion was made “the Attorney for Defendant City of Dallas and the Chief Judge of the Court of Civil Appeals have threatened these Appellants and their Attorney with further prosecution for contempt resulting in additional fines and imprisonment.” The United States District Court then dismissed the appeal.
We declined to grant certiorari to review the United States District Court’s dismissal of the case before it or its dismissal of the appeal brought on by the state court’s coercive contempt judgment, but we did grant certiorari to review the State Supreme Court’s judgment directing the Civil Court of Appeals to enjoin petitioners from prosecuting their action in the federal courts and also granted certiorari to review the Civil Court of Appeals’ judgment of conviction for contempt. 375 U. S. 878. We think the Texas Court of Civil Appeals was right in its first holding that it was without power to enjoin these litigants from prosecuting their federal-court action, and we therefore reverse the State Supreme Court’s judgment upsetting that of the Court of Appeals. We vacate the later contempt judgment of the Court of Civil Appeals, which rested on the mistaken belief that the writ prohibiting litigation by the federal plaintiffs was “valid.”
Early in the history of our country a general rule was established that state and federal courts would not interfere with or try to restrain each other’s proceedings. That rule has continued substantially unchanged to this time. An exception has been made in cases where a court has custody of property, that is, proceedings in rem or quasi in rem. In such cases this Court has said that the state or federal court having custody of such property has exclusive jurisdiction to proceed. Princess Lida v. Thompson, 305 U. S. 456, 465-468. In Princess Lida this Court said “where the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other.” Id., at 466. See also Kline v. Burke Construction Co., 260 U. S. 226. It may be that a full hearing in an appropriate court would justify a finding that the state-court judgment in favor of Dallas in the first suit barred the issues raised in the second suit, a question as to which we express no opinion. But plaintiffs in the second suit chose to file that case in the federal court. They had a right to do this, a right which is theirs by reason of congressional enactments passed pursuant to congressional policy. And whether or not a plea of res judicata in the second suit would be good is a question for the federal court to decide. While Congress has seen fit to authorize courts of the United States to restrain state-court proceedings in some special circumstances, it has in no way relaxed the old and well-established judicially declared rule that state courts are completely without power to restrain federal-court proceedings in in personam actions like the one here. And it does not matter that the prohibition here was addressed to the parties rather than to the federal court itself. For the heart of the rule as declared by this Court is that:
“. . . where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. . . . The fact, therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in another and independent forum.”
Petitioners being properly in the federal court had a right granted by Congress to have the court decide the issues they presented, and to appeal to the Court of Appeals from the District Court’s dismissal. They have been punished both for prosecuting their federal-court case and for appealing it. They dismissed their appeal because of threats to punish them more if they did not do so. The legal effect of such a coerced dismissal on their appeal is not now before us, but the propriety of a state court’s punishment of a federal-court litigant for pursuing his right to federal-court remedies is. That right was granted by Congress and cannot be taken away by the State. The Texas courts were without power to take away this federal right by contempt proceedings or otherwise.
It is argued here, however, that the Court of Civil Appeals’ judgment of contempt should nevertheless be upheld on the premise that it was petitioners’ duty to obey the restraining order whether that order was valid or invalid. The Court of Civil Appeals did not consider or pass upon this question, but acted on the assumption that petitioners were guilty of “wilfull disobedience of a valid order.” 368 S. W. 2d, at 244. (Emphasis supplied.) Since we hold the order restraining petitioners from prosecuting their case in the federal courts was not valid, but was invalid, petitioners have been punished for disobeying an invalid order. Whether the Texas court would have punished petitioners for contempt had it known that the restraining order petitioners violated was invalid, we do not know. However, since that question was neither considered nor decided by the Texas court, we leave it for consideration by that court on remand. We express no opinion on that question at this time.
The judgment of the Texas Supreme Court is reversed, the judgment of the Texas Court of Civil Appeals is vacated, and the case is remanded to the Court of Civil Appeals for further proceedings not inconsistent with this opinion.
It is so ordered.
Atkinson v. City of Dallas, 353 S. W. 2d 275 (Tex. Civ. App.).
370 U. S. 939.
Vernon’s Tex. Ann. Civ. Stat. Art. 1269j-5, § 3. See City of Dallas v. Dixon, 365 S. W. 2d 919, 925.
City of Dallas v. Brown, 362 S. W. 2d 372 (Tex. Civ. App.).
City of Dallas v. Dixon, 365 S. W. 2d 919.
City of Dallas v. Brown, 368 S. W. 2d 240 (Tex. Civ. App.).
While in jail counsel Donovan sought habeas corpus from both the Supreme Court of Texas and the United States Court of Appeals for the Fifth Circuit. Both courts denied relief without opinion.
The District Court a week later dismissed as moot the action petitioners had brought in that court against the Supreme Court of Texas to enjoin the Texas court from interfering with the prosecution of the federal-court suit. Donovan v. Supreme Court of Texas, unreported. We denied certiorari sought to review that judgment. 375 U. S. 878.
See, e. g., M‘Kim v. Voorhies, 7 Cranch 279; Diggs v. Wolcott, 4 Cranch 179.
See 28 IT. S. C. § 2283; see also 28 U. S. C. § 1651.
See, e. g., United States v. Council of Keokuk, 6 Wall. 514, 517; Weber v. Lee County, 6 Wall. 210; Riggs v. Johnson County, 6 Wall. 166, 194-196; M‘Kim v. Voorhies, 7 Cranch 279.
Peck v. Jenness, 7 How. 612, 625. See also Central National Bank v. Stevens, 169 U. S. 432; cf. Baltimore & O. R. Co. v. Kepner, 314 U. S. 44, 54, n. 23.
In Baltimore & O. R. Co. v. Kepner, 314 U. S. 44, the Court did not reach the question before us, since the decision there was rested on the special venue provisions of the Federal Employers’ Liability Act. See 36 Stat. 291, as amended, 45 U. S. C. § 56.
Question: What is the issue of the decision?
A. federal-state ownership dispute (cf. Submerged Lands Act)
B. federal pre-emption of state court jurisdiction
C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does.
D. Submerged Lands Act (cf. federal-state ownership dispute)
E. national supremacy: commodities
F. national supremacy: intergovernmental tax immunity
G. national supremacy: marital and family relationships and property, including obligation of child support
H. national supremacy: natural resources (cf. natural resources - environmental protection)
I. national supremacy: pollution, air or water (cf. natural resources - environmental protection)
J. national supremacy: public utilities (cf. federal public utilities regulation)
K. national supremacy: state tax (cf. state tax)
L. national supremacy: miscellaneous
M. miscellaneous federalism
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
POCONO RUBBER CLOTH CO. v. J. A. LIVINGSTON, Inc. J. A. LIVINGSTON, Inc., v. POCONO RUBBER CLOTH CO.
Nos. 5515, 5529.
Circuit Court of Appeals, Third Circuit.
Aug. 30, 1935.
William F. Hall, of Washington, D. C., and Charles F. Dane, of New York City, for Pocono Rubber Cloth Co.
Abraham Shamos and Milton E. Mermelstein, both of New York City, for J. A. Livingston, Inc.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
This was a suit by J. A. Livingston, Inc., hereinafter called plaintiff, against the Pocono Rubber Cloth Company, for infringement of its trade-mark, “Suavelle.” The learned trial judge found that the plaintiff’s trade-mark was valid and infringed, but limited its scope and operation to “clothing” of women and children and permitted the defendant to use its trade-mark on merchandise other than on “articles of women’s or children’s clothing, bearing the trade-mark ‘Swavel’ either alone or in combination with other words or symbols.” The plaintiff appealed from the decree because of this limitation, and the defendant appealed because the plaintiff's trade-mark was held to be valid and infringed by it.
Early in 1930 plaintiff began to use a fine, pure, satin-face silk fabric which was made for it exclusively, to which it gave the name “Suavelle.” It was used for women’s and children’s dresses and “sports wear.” On May 24, 1930, it applied to the United States Patent Office for registration of the name as a trademark and it was granted and registered on March 24, 1931.
Notwithstanding that plaintiff itself does not advertise its business, though some of its customers among the leading shops and stores of New York, Philadelphia, Boston, San Francisco, Los Angeles, Miami, and elsewhere, do advertise_ it, plaintiff’s sales in “Suavelle” dresses by June, 1933, exceeded $250,000.
The defendant, which is a New Jersey corporation, began around April, 1930, to manufacture and sell a “suede-like material” to which in January, 1931, it gave the name of “Swavel.” This was about a year after the plaintiff had begun to use the word “Suavelle” and eight months after it had applied for registration of the name as its trade-mark. On January 17, 1931, the defendant applied for the registration of the name “Swavel” as its trade-mark. This application was first made under Class 42, “Knitted, netted and textile fabrics,” the same class under which the plaintiff had first applied and under which its mark had been published in July, 1930. The defendant’s application was later, by amendment, changed to Class 50, for “merchandise not otherwise classified,” and registration in that class was granted May 26, 1931, two months after the registration of the plaintiff’s trade-mark.
The defendant manufactures the cloth which it calls “Swavel” and sells it to others who make it into various articles, such as bridge-table covers, carryalls, raincoats, shoes, and women’s outfits including coats and jackets. It furnished to its customers labels which were sewed upon the articles, including women’s garments, made from the defendant’s cloth.
The defendant advertised its product as suitable for women’s and misses’ coats and jackets. It advertises in the trade journal which features the plaintiff’s product, and one of the advertisements appeared on the reverse side of the page of “Women’s Wear” which carried pictures of the plaintiff’s dresses. The defendant’s coats and jackets are sold by the same parties and in the same stores as are women’s dresses and move “in the same channel of trade” as does plaintiff’s product.
Defendant says that the use of the word “Suavelle” does not establish trademark rights and the trade-mark is not valid for the reason that it was never used as a trade-mark for sports garments marketed by the plaintiff.
There is testimony, however, which is clear and positive, to the contrary. Miss Brennan testified that the dresses made of the material in question came with the tag of the manufacturer on them, but they removed that tag from the dresses and put on them the tag of the department store or stores for which she was working and wrote on the back of the tag the word “Suavelle.” The dresses so tagged were not only sold from the stores in New York but also from those in South Hampton, Magnolia, Palm Beach, and elsewhere.
The defendant further says that substantially the same word as “Suavelle,” or similar words, were used on the same or similar goods as trade-marks by others at the date the plaintiff entered the field, and the trade-mark is invalid for that reason. The words to which it refers are “crepe suval,” “cavel,” “syvel,” “chamovelle,” “chervel,” and “shelvel.”
We do not think that the word “Suavelle” so nearly resembles any of these words or trade-marks as to be likely to cause confusion or mistake in the mind of the public or to deceive the purchasers.
Congress provided in the Act of February 20, 1905, § 5 (15 USCA § 85): “That trade-marks which are identical with a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not be registered.”
As to the descriptive properties of the materials of plaintiff and defendant the learned trial judge said: “Both litigated commodities are materials for women’s garments. Both are used for the fabrication of such garments. Both are, therefore, sold first to fabricators of women’s garments, and ultimately to the consumer who wears such garments. Both present a surface having a gloss. That is the inherent and typical quality of silk. The sheen of defendant’s suede is artificial.” 8 F. Supp. 249, 250.
The evidence justifies the conclusion that the materials of the plaintiff and defendant are, within the definition of our case of Rosenberg Brothers & Co. v. Elliott, 7 F.(2d) 962, 966, “of the same descriptive properties.” True there may be some difference in the materials, but after mentioning this the trial court said: “This, difference is servient to and will be obscured in the mind of the average purchaser by their joint character as women’s garments with a glossy or silk like finish.”
The defendant suggests that its trademark should be pronounced “Swa-vel,” with the accent on the first syllable, giving the “a” a long sound to distinguish it from the. plaintiff’s trade-mark “Suavelle,” which has the accent on the second syllable.
The selection of the word “Swavel” by the defendant following so closely upon the selection of the word “Suavelle” by the plaintiff would hardly seem a mere coincidence. A fair interpretation of the evidence rather indicates that the word was chosen by design. ' It is absolutely impossible for the defendant to control the pronunciation which the trade would give to the word. It is apparent that the word so nearly resembles in sound, appearance, and spelling the plaintiff’s trade-mark that it will necessarily cause confusion or mistake in the public mind and will deceive purchasers who will think they are buying merchandise produced by the plaintiff, when as a fact they are purchasing defendant’s merchandise.
Infringement of the plaintiff’s trademark by the defendant is evident. Consequently the defendant is enjoined from using the word “Swavel” not only on articles of women’s and children’s clothing but from using it on any of its products.
The decree of the District Court as thus modified is affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_adminrev
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
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 federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_casetyp1_1-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Plaintiff-Appellant, v. Adela MORALES-ZAMORA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Javier OZUNA-FUENTES and Jose Manuel Morales-Diaz, Defendants-Appellees.
Nos. 89-2172, 89-2244.
United States Court of Appeals, Tenth Circuit.
Sept. 6, 1990.
David N. Williams (William L. Lutz, U.S. Atty., and Robert J. Gorence, Asst. U.S. Atty., with him on the brief), Asst. U.S. Atty., for plaintiff-appellant, U.S.
Nancy Hollander of Freedman, Boyd & Daniels, P.A., Albuquerque, N.M., for defendant-appellee Adela Morales-Zamora.
William E. Parnall, Albuquerque, N.M., for defendants-appellees Javier Ozuna-Fuentes and Jose Manuel Morales-Diaz.
Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellee Javier Ozuna-Fuentes.
Before TACHA and EBEL, Circuit Judges, and DUMBAULD, District Judge.
The Honorable Edward Dumbauld, District Judge, United States District Court for the Western District of Pennsylvania, sitting by designation.
TACHA, Circuit Judge.
Defendants Adela Morales-Zamora, Javier Ozuna-Fuentes, and Jose Manuel Morales-Diaz were indicted on drug charges after a trained narcotics detection dog alerted to their vehicles while they were detained at a roadblock operated by Socorro, New Mexico police authorities. The district court in both cases granted the defendants’ motions to suppress on the ground that the dog sniff was a “search” under the fourth amendment, U.S. Const, amend. IV, requiring a reasonable and ar-ticulable suspicion of drug-related criminal activity. We reverse.
I.
The factual circumstances of the two searches at issue are similar. On February 10, 1989, Adela Morales-Zamora (Zamora) and her seven-year-old son were traveling north on Interstate 25 when she was stopped at a roadblock operated by the Socorro, New Mexico police department. The stated purpose of the roadblock was to check drivers’ licenses, vehicle registrations, and proofs of insurance. Zamora produced her driver’s license, registration, and proof of insurance as requested. While one officer was checking her documents, another officer walked a trained narcotics-detection dog around the exterior of Zamora’s car. The dog did not touch the car. Before the document check was finished, the dog alerted to the car. A subsequent search of the car revealed 126 pounds of marijuana hidden in luggage in the car’s trunk.
On March 16, 1989, Javier Ozuna-Fuentes (Fuentes) was driving a van north on Interstate 25. His sole passenger was Jose Manuel Morales-Diaz (Diaz). Fuentes and Diaz encountered the same kind of Socorro police department roadblock as did Zamora. While they were waiting in line at the roadblock and before a check of their documents had been made, a narcotics-detection dog alerted to the van. The dog did not touch the van. After Fuentes stepped out of the van, an officer frisked him and found a .25 caliber handgun in the front right pocket of his pants. A subsequent search of the van revealed 30 pounds of marijuana concealed in a false compartment under the van’s chassis.
Zamora later moved to suppress the evidence of contraband seized at the roadblock. After a hearing on March 31, 1989, the district court granted Zamora’s motion to suppress, holding that when an officer has no reasonable and articulable suspicion of drug-related criminal activity, a canine sniff that occurs while the driver’s documents are being examined violates the fourth amendment. See United States v. Morales, 714 F.Supp. 1146, 1154 (D.N.M.1989).
Fuentes and Diaz also filed a motion to suppress. In a ruling from the bench, the district court in the Fuentes/Diaz case granted the defendants’ motion to suppress for substantially the reasons expressed in the published opinion in the Zamora case. The government took an interlocutory appeal of the two district court rulings pursuant to 18 U.S.C. section 3731, which we consolidated on appeal.
II.
Our standard of review is well-established. When reviewing a grant of a motion to suppress, we accept the trial court’s findings of fact unless clearly erroneous. See United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990). The ultimate determination of reasonableness under the fourth amendment is, however, a conclusion of law that we review de novo. Id.
A.
As a preliminary matter, we turn to the defendants’ argument that their detention by the Socorro police at the roadblock was an unlawful seizure because the roadblock’s stated purpose was a pretext for searching the stopped vehicles for drugs. Both district courts below did not address the defendants’ arguments that the alleged purpose of the roadblocks was pretextual, ruling instead that even if the reason for the roadblock was not pretextual, the dog sniffs constituted illegal searches under the fourth amendment. Because the district courts below assumed that the alleged purpose of the roadblock—to check for valid drivers’ licenses, vehicle registrations, and proofs of insurance—was valid, we do also. Our holding today does not preclude the defendants from renewing their arguments concerning pretext to the district courts.
B.
The Supreme Court has upheld the constitutionality of brief roadblock detentions not based on an individualized reasonable suspicion of criminal activity in the context of a twenty-five second average detention at a sobriety checkpoint, see Michigan Dep’t of State Police v. Sitz, — U.S. -, 110 S.Ct. 2481, 2483-88, 110 L.Ed.2d 412 (U.S.1990), and a 3-5 minute average detention at an immigration checkpoint, see United States v. Martinez-Fuerte, 428 U.S. 543, 546-47, 562, 96 S.Ct. 3074, 3077-78, 3085, 49 L.Ed.2d 1116 (1976). This circuit previously has dismissed fourth amendment challenges against brief roadblock detentions not based on individualized reasonable suspicion of criminal activity where the purpose of the roadblock is to check for valid drivers’ licenses, vehicle registrations, and proofs of insurance. See United States v. Corral, 823 F.2d 1389, 1392 (10th Cir.1987) (driver’s license, car registration, and proof of insurance check), cert. denied, 486 U.S. 1054, 108 S.Ct. 2820, 100 L.Ed.2d 921 (1988); United States v. Lopez, 777 F.2d 543, 547 (10th Cir.1985) (driver’s license and car registration check); United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984) (driver’s license and car registration check); United States v. Prichard, 645 F.2d 854, 856-57 (10th Cir.) (driver’s license and car registration check), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981). Assuming that the initial stop of the defendants was for the valid purpose of checking drivers’ licenses, vehicle registrations, and proofs of insurance, we hold that the defendants’ initial detention at the roadblock was not an unreasonable seizure under the fourth amendment.
To determine whether the defendants’ vehicles were unlawfully detained after a lawful initial stop for the purpose of facilitating the canine sniff, we look to the timing of the events at the roadblock. In both cases the narcotics-detehtion dog alerted to the defendants’ vehicles before the Socorro police officer had completed his inspection of the defendants’ documents. Because the defendants’ vehicles were not detained beyond the measure of time required for the officer to complete his examination of the defendants’ documents, the purpose for which we assume the defendants were lawfully detained, we hold that there was not a “seizure” of the defendants’ vehicles for purposes of facilitating the canine sniff.
C.
We now turn to the question raised by this appeal that we expressly reserved in United States v. Stone, 866 F.2d 359, 363 n. 2 (10th Cir.1989), namely, whether the police must have a reasonable suspicion of drug-related criminal activity before employing a narcotics-detection dog to sniff a vehicle already lawfully detained by the police. We hold that the dog sniff, under these circumstances, is not a “search” within the meaning of the fourth amendment and therefore an individualized reasonable suspicion of drug-related criminal activity is not required when the dog sniff is employed during a lawful seizure of the vehicle. Accord United States v. Colyer, 878 F.2d 469, 477 (D.C.Cir.1989) (dog sniff in train aisle outside private compartment); United States v. Beale, 736 F.2d 1289, 1292 (9th Cir.) (en banc) (dog sniff of checked luggage at airport), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); United States v. Goldstein, 635 F.2d 356, 361-62 (5th Cir.1981) (dog sniff of luggage in the possession of airline), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981).
United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), is the leading Supreme Court case on canine sniffs as “searches.” In Place, law enforcement officers at an airport seized the defendant’s luggage to subject the bags to a “sniff test” by a narcotics-detection dog based on a reasonable suspicion that the luggage contained narcotics. The Court held that the canine sniff was not a "search” within the meaning of the fourth amendment:
A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.
Id. at 707.
The defendants argue, and the district courts below agreed, that Place requires an individualized reasonable suspicion of drug-related criminal activity before the police may subject a vehicle lawfully detained at a roadblock to a canine sniff. In reaching this conclusion, the district court found Place distinguishable on the ground that in Place the brief detention of the luggage necessary to subject it to the canine sniff was lawful because the seizure was based on a reasonable, articulable suspicion that a drug-related crime was being committed, whereas the seizure of Zamora’s car at the roadblock was lawful for reasons wholly unrelated to suspected drug-related activity. Morales, 714 F.Supp. at 1150.
We disagree with the district court’s reading of Place. Place analyzed whether a canine sniff was a “search” independently from the question of whether the detention of the luggage based on reasonable suspicion was justifiable under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It was only after the Court found that a canine sniff was not a search, that the Court turned its attention to whether the 90-minute seizure of the luggage based on reasonable suspicion of drug-related activity satisfied Terry. The drug-related nature of the officer’s reasonable suspicion was simply not a factor in the Court’s determination that a canine sniff was not a search. See Place, 462 U.S. at 707, 103 S.Ct. at 2644; United States v. Scales, 903 F.2d 765, 768 (10th Cir.1990) CPlace held that subjecting luggage to a canine sniff is not a “search” because both the manner of obtaining information and the information obtained are limited).
Moreover, in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court broadly construed Place in holding that a police investigatory tool is not a “search” if it merely reveals the presence or absence of contraband because the privacy interest in possessing contraband is not one that society recognizes as reasonable.
We must first determine whether [a cocaine field test] can be considered a “search” subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable?
The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities....
A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy.... [E]ven if the [test] results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.
This conclusion is dictated by United States v. Place in which the Court held that subjecting luggage to a “sniff test” by a trained narcotics detection dog was not a “search” within the meaning of the Fourth Amendment....
Here, as in Place, the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.
Id. 466 U.S. at 122-24, 104 S.Ct. at 1661-62 (footnotes and citations omitted).
Together, Jacobsen and Place make clear that there is no intrusion on legitimate privacy interests (and hence no “search”) where the only information revealed is limited to contraband items. See Colyer, 878 F.2d at 474 (Place and Jacobsen stand for the proposition that a possessor of contraband can maintain no legitimate expectation that its presence will not be revealed); see also Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (second prong of inquiry defining a fourth amendment “search” under United States v. Katz, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), is whether the individual’s expectation of privacy is one that society is prepared to recognize as “reasonable”).
We find the factual circumstances of the two searches at issue to be legally indistinguishable from the facts of Place. The canine sniffs were made of the exterior of the defendants’ vehicles and did not invade their homes or bodily integrity. The vehicles were detained lawfully in a public area, and the sniff took place in that public area. As in Place, the sniffs did not subject the defendants to any embarassment or inconvenience. Finally, the sniffs did not inconvenience the defendants in any manner. In each case the dog alerted to the vehicle before the officer’s inspection of the driver’s license, vehicle registration, and proof of insurance had been completed; therefore, the defendants did not experience any additional delay to facilitate the canine sniff.
Nevertheless, the defendants argue that they had a legitimate expectation of privacy in the odor of narcotics detected by the dog because this odor emanated from inside their vehicles, a private area protected by the fourth amendment. Consequently, the defendants contend, the dog sniff was akin to an unlawful sniff of their persons, see Horton v. Goose Creek Indep. School Dist., 690 F.2d 470 (5th Cir.1982) (pre-Place decision holding that large dogs physically touching students with their noses is an unreasonable search), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983), or their private residence, see United States v. Thomas, 757 F.2d 1359 (2d Cir.) (dog sniff of exterior of an apartment building is an illegal search), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 67, 88 L.Ed.2d 54 (1985).
We reject defendants’ argument for two reasons. First, we are unpersuaded by defendants’ analogies because there is a lesser expectation of privacy in a vehicle than in a home or one’s bodily integrity. Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. at 3084. Second, we find that when the odor of narcotics escapes from the interior of a vehicle, society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor. See Goldstein, 635 F.2d at 361 (reasonable expectation of privacy does not extend to airspace around luggage).
In holding that police officers do not need an individualized reasonable suspicion of drug-related criminal activity before subjecting a vehicle lawfully detained to a dog sniff, we are cognizant of the concern that “[t]o so hold would give officers the right to subject vehicular traffic stopped at red lights to canine sniffs so long as the sniff was completed before the light changed.” Morales, 714 F.Supp. at 1150; see also Jacobsen, 466 U.S. at 138, 104 S.Ct. at 1669 (Brennan, J., dissenting) (under majority’s reading of Jacobsen and Place, “law enforcement officers could release a trained cocaine-sensitive dog ... to roam the streets at random, alerting the officers to people carrying cocaine”). This type of canine confrontation is not before us, however, and we reserve the question of the constitutionality of such hypothetical situations for another day.
D.
The district court in the Fuentes-Diaz case also suppressed the evidence against Fuentes because he found that Fuentes had not voluntarily consented to the search of the van. The other district court judge suppressed the evidence against Zamora for the same reason. Morales, 714 F.Supp. at 1154. We need not reach the issue of consent because probable cause to search was supplied when the dog alerted to the vehicles. Under the “vehicle exception” to the general rule that searches are reasonable only if conducted pursuant to a valid search warrant, see United States v. Panitz, 907 F.2d 1267, 1271 (1st Cir.1990); United States v. Swingler, 758 F.2d 477, 489-90 (10th Cir.1985), no warrant was necessary in this case for the search of the vehicles to be reasonable under the fourth amendment.
III.
The order granting the defendants’ motions to suppress is REVERSED.
. The district court in Morales found that it did not have to decide whether Zamora's initial stop was pretextual. Morales, 714 F.Supp. at 1148 n. 2. In the Fuentes-Diaz case the district court judge rendered his personal opinion that "had I been required to address that issue, I [would] conclude that [the alleged purpose of the roadblock] was pretextual,” but went on to state that the issue was not properly before him. Rec. vol. Ill p. 94.
. We find irrelevant the testimony of the private investigator who at both suppression hearings related that when she encountered a similar roadblock operated by the Socorro police on a different date, she was detained approximately two minutes after the officer completed his inspection so that the dog could sniff her car. We are concerned in this case only with the legality of the police conduct regarding Zamora, Fuentes, and Diaz.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
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sc_certreason
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M
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
WARDS COVE PACKING CO., INC., et al. v. ATONIO et al.
No. 87-1387.
Argued January 18, 1989
Decided June 5, 1989
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 661. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 662.
Douglas M. Fryer argued the cause for petitioners. With him on the briefs were Douglas M. Duncan and Richard L. Phillips. .
Abraham A. Arditi argued the cause and filed a brief for respondents.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Assistant Attorney General Clegg, Richard G. Taranto, David K. Flynn, and Lisa J. Stark; for the American Society for Personnel Administration by Lawrence Z. Lorber and J. Robert Kirk; for the Chamber of Commerce of the United States by Glen D. Nager, Andrew M. Kramer, David A. Copus, Patricia A. Dunn, and Stephen A. Bokat; and for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Edward E. Potter.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Joan E. Berlin, Isabelle Katz Pinzler, and John A. Powell; for the Lawyers’ Committee for Civil Rights Under Law by Nicholas DeB. Katzenbach, Alan E. Kraus, Conrad Harper, Stuart J. Land, Norman Redlich, Richard T. Seymour, and James C. Gray, Jr.; for the National Association for the Advancement of Colored People by Grover G. Hankins and Alfred W. Blumrosen; and for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius LeVonne Chambers, Charles Stephen Ralston, Ronald L. Ellis, Bill Lann Lee, Patrick O. Patterson, Jr., Theodore M. Shmv, Antonia Hernandez, and E. Richard Larson.
Clint Bolick, Jerald L. Hill, and Mark J. Bredemeier filed a brief for the Center for Civil Rights as Amicus Curiae.
Justice White
delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., makes it an unfair employment practice for an employer to discriminate against any individual with respect to hiring or the terms and condition of employment because of such individual’s race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees in ways that would adversely affect any employee because of the employee’s race, color, religion, sex, or national origin. §2000e-2(a). Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971), construed Title VII to proscribe “not only overt discrimination but also practices that are fair in form but discriminatory in practice.” Under this basis for liability, which is known as the “disparate-impact” theory and which is involved in this case, a facially neutral employment practice may be deemed violative of Title VII without evidence of the employer’s subjective intent to discriminate that is required in a “disparate-treatment” case.
I
The claims before us are disparate-impact claims, involving the employment practices of petitioners, two companies that operate salmon canneries in remote and widely separated areas of Alaska. The canneries operate only during the salmon runs in the summer months. They are inoperative and vacant for the rest of the year. In May or June of each year, a few weeks before the salmon runs begin, workers arrive and prepare the equipment and facilities for the canning operation. Most of these workers possess a variety of skills. When salmon runs are about to begin, the workers who will operate the cannery lines arrive, remain as long as there are fish to can, and then depart. The canneries are then closed down, winterized, and left vacant until the next spring. During the off-season, the companies employ only a small number of individuals at their headquarters in Seattle and Astoria, Oregon, plus some employees at the winter shipyard in Seattle.
The length and size of salmon runs vary from year to year, and hence the number of employees needed at each cannery also varies. Estimates are made as early in the winter as possible; the necessary employees are hired, and when the time comes, they are transported to the canneries. Salmon must be processed soon after they are caught, and the work during the canning season is therefore intense. For this reason, and because the canneries are located in remote regions, all workers are housed at the canneries and have their meals in company-owned mess halls.
Jobs at the canneries are of two general types: “cannery jobs” on the cannery line, which are unskilled positions; and “noncannery jobs,” which fall into a variety of classifications. Most noncannery jobs are classified as skilled positions. Cannery jobs are filled predominantly by nonwhites: Filipinos and Alaska Natives. The Filipinos are hired through, and dispatched by, Local 37 of the International Longshoremen’s and Warehousemen’s Union pursuant to a hiring hall agreement with the local. The Alaska Natives primarily reside in villages near the remote cannery locations. Non-cannery jobs are filled with predominantly white workers, who are hired during the winter months from the companies’ offices in Washington and Oregon. Virtually all of the non-cannery jobs pay more than cannery positions. The predominantly white noncannery workers and the predominantly nonwhite cannery employees live in separate dormitories and eat in separate mess halls.
In 1974, respondents, a class of nonwhite cannery workers who were (or had been) employed at the canneries, brought this Title VII action against petitioners. Respondents alleged that a variety of petitioners’ hiring/promotion practices— e. g., nepotism, a rehire preference, a lack of objective hiring criteria, separate hiring channels, a practice of not promoting from within — were responsible for the racial stratification of the work force and had denied them and other nonwhites employment as noncannery workers on the basis of race. Respondents also complained of petitioners’ racially segregated housing and dining facilities. All of respondents’ claims were advanced under both the disparate-treatment and disparate-impact theories of Title VII liability.
The District Court held a bench trial, after which it entered 172 findings of fact. 34 EPD ¶34,437, pp. 33,822-33,836 (WD Wash. 1983). It then rejected all of respondents’ disparate-treatment claims. It also rejected the disparate-impact challenges involving the subjective employment criteria used by petitioners to fill these noncannery positions, on the ground that those criteria were not subject to attack under a disparate-impact theory. Id., p.33,840. Petitioners’ “objective” employment practices (e. g., an English language requirement, alleged nepotism in hiring, failure to post noncannery openings, the rehire preference, etc.) were found to be subject to challenge under the disparate-impact theory, but these claims were rejected for failure of proof. Judgment was entered for petitioners.
On appeal, a panel of the Ninth Circuit affirmed, 768 F. 2d 1120 (1985), but that decision was vacated when the Court of Appeals agreed to hear the case en banc, 787 F. 2d 462 (1985). The en banc hearing was ordered to settle an intracircuit conflict over the question whether subjective hiring practices could be analyzed under a disparate-impact model; the Court of Appeals held — as this Court subsequently ruled in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988)— that disparate-impact analysis could be applied to subjective hiring practices. 810 F. 2d 1477, 1482 (1987). The Ninth Circuit also concluded that in such a case, “[o]nce the plaintiff class has shown disparate impact caused by specific, identifiable employment practices or criteria, the burden shifts to the employer,” id., at 1485, to “prov[e the] business necessity” of the challenged practice, id., at 1486. Because the en banc holding on subjective employment practices reversed the District Court’s contrary ruling, the en banc Court of Appeals remanded the case to a panel for further proceedings.
On remand, the panel applied the en banc ruling to the facts of this case. 827 F. 2d 439 (1987). It held that respondents had made out a prima facie case of disparate impact in hiring for both skilled and unskilled noncannery positions. The panel remanded the case for further proceedings, instructing the District Court that it was the employer’s burden to prove that any disparate impact caused by its hiring and employment practices was justified by business necessity. Neither the en banc court nor the panel disturbed the District Court’s rejection of the disparate-treatment claims.
Petitioners sought review of the Court of Appeals’ decision in this Court, challenging it on several grounds. Because some of the issues raised by the decision below were matters on which this Court was evenly divided in Watson v. Fort Worth Bank & Trust, supra, we granted certiorari, 487 U. S. 1264 (1988), for the purpose of addressing these disputed questions of the proper application of Title VII’s disparate-impact theory of liability.
II
In holding that respondents had made out a prima facie case of disparate impact, the Court of Appeals relied solely on respondents’ statistics showing a high percentage of nonwhite workers in the cannery jobs and a low percentage of such workers in the noncannery positions. Although statistical proof can alone make out a prima facie case, see Teamsters v. United States, 431 U. S. 324, 339 (1977); Hazelwood School Dist. v. United States, 433 U. S. 299, 307-308 (1977), the Court of Appeals’ ruling here misapprehends our precedents and the purposes of Title VII, and we therefore reverse.
“There can be no doubt,” as there was when a similar mistaken analysis had been undertaken by the courts below in Hazelwood, supra, at 308, “that the . . . comparison . . . fundamentally misconceived the role of statistics in employment discrimination cases.” The “proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market.” Ibid. It is such a comparison — between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs — that generally forms the proper basis for the initial inquiry in a disparate-impact case. Alternatively, in cases where such labor market statistics will be difficult if not impossible to ascertain, we have recognized that certain other statistics — such as measures indicating the racial composition of “otherwise-qualified applicants” for at-issue jobs — are equally probative for this purpose. See, e. g., New York City Transit Authority v. Beazer, 440 U. S. 568, 585 (1979).
It is clear to us that the Court of Appeals’ acceptance of the comparison between the racial composition of the cannery work force and that of the noncannery work force, as probative of a prima facie case of disparate impact in the selection of the latter group of workers, was flawed for several reasons. Most obviously, with respect to the skilled non-cannery jobs at issue here, the cannery work force in no way reflected “the pool of qualified job applicants” or the “qualified population in the labor force.” Measuring alleged discrimination in the selection of accountants, managers, boat captains, electricians, doctors, and engineers — and the long list of other “skilled” noncannery positions found to exist by the District Court, see 34 EPD ¶ 34,437, p. 33,832 — by comparing the number of nonwhites occupying these jobs to the number of nonwhites filling cannery worker positions is nonsensical. If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners’ fault), petitioners’ selection methods or employment practices cannot be said to have had a “disparate impact” on nonwhites.
One example illustrates why this must be so. Respondents’ own statistics concerning the noncannery work force at one of the canneries at issue here indicate that approximately 17% of the new hires for medical jobs, and 15% of the new hires for officer worker positions, were nonwhite. See App. to Brief for Respondents B-l. If it were the case that less than 15 to 17% of the applicants for these jobs were nonwhite and that nonwhites made up a lower percentage of the relevant qualified labor market, it is hard to see how respondents, without more, cf. Connecticut v. Teal, 457 U. S. 440 (1982), would have made out a prima facie case of disparate impact. Yet, under the Court of Appeals’ theory, simply because nonwhites comprise 52% of the cannery workers at the cannery in question, see App. to Brief for Respondents B-l, respondents would be successful in establishing a prima facie case of racial discrimination under Title VII.
Such a result cannot be squared with our cases or with the goals behind the statute. The Court of Appeals’ theory, at the very least, would mean that any employer who had a segment of his work force that was — for some reason — racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the “business necessity” of the methods used to select the other members of his work force. The only practicable option for many employers would be to adopt racial quotas, insuring that no portion of their work forces deviated in racial composition from the other portions thereof; this is a result that Congress expressly rejected in drafting Title VII. See 42 U. S. C. §2000e-2(j); see also Watson v. Fort Worth Bank & Trust, 487 U. S. at 922-994, and n. 2 (opinion of O’Connor, J.). The Court of Appeals’ theory would “leave the employer little choice . . . but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.” Albemarle Paper Co. v. Moody, 422 U. S. 405, 449 (1975) (Blackmun, J., concurring in judgment).
The Court of Appeals also erred with respect to the unskilled noncannery positions. Racial imbalance in one segment of an employer’s work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer’s other positions, even where workers for the different positions may have somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). As long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery positions, see n. 6, supra, if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, the employer’s selection mechanism probably does not operate with a disparate impact on minorities. Where this is the case, the percentage of nonwhite workers found in other positions in the employer’s labor force is irrelevant to the question of a prima facie statistical case of disparate impact. As noted above, a contrary ruling on this point would almost inexorably lead to the use of numerical quotas in the workplace, a result that Congress and this Court have rejected repeatedly in the past.
Moreover, isolating the cannery workers as the potential “labor force” for unskilled noncannery positions is at once both too broad and too narrow in its focus. It is too broad because the vast majority of these cannery workers did not seek jobs in unskilled noneannery positions; there is no showing that many of them would have done so even if none of the arguably “deterring” practices existed. Thus, the pool of cannery workers cannot be used as a surrogate for the class of qualified job applicants because it contains many persons who have not (and would not) be noncannery job applicants. Conversely, if respondents propose to use the cannery workers for comparison purposes because they represent the “qualified labor population” generally, the group is too narrow because there are obviously many qualified persons in the labor market for noncannery jobs who are not cannery workers.
The peculiar facts of this case further illustrate why a comparison between the percentage of nonwhite cannery workers and nonwhite noncannery workers is an improper basis for making out a claim of disparate impact. Here, the District Court found that nonwhites were “overrepresent[ed]” among cannery workers because petitioners had contracted with a predominantly nonwhite union (local 37) to fill these positions. See 34 EPD ¶33,437, p. 33,829. As a result, if petitioners (for some permissible reason) ceased using local 37 as its hiring channel for cannery positions, it appears (according to the District Court’s findings) that the racial stratification between the cannery and noncannery workers might diminish to statistical insignificance. Under the Court of Appeals’ approach, therefore, it is possible that with no change whatsoever in their hiring practices for noncannery workers — the jobs at issue in this lawsuit — petitioners could make respondents’ prima facie case of disparate impact “disappear. ” But ¿/‘there would be no prima facie case of disparate impact in the selection of noncannery workers absent petitioners’ use of local 37 to hire cannery workers, surely petitioners’ reliance on the union to fill the cannery jobs not at issue here (and its resulting “overrepresentation” of nonwhites in those positions) does not — standing alone — make out a prima facie case of disparate impact. Yet it is precisely such an ironic result that the Court of Appeals reached below.
Consequently, we reverse the Court of Appeals’ ruling that a comparison between the percentage of cannery workers who are nonwhite and the percentage of noncannery workers who are nonwhite makes out a prima facie case of disparate impact. Of course, this leaves unresolved whether the record made in the District Court will support a conclusion that a prima facie case of disparate impact has been established on some basis other than the racial disparity between cannery and noncannery workers. This is an issue that the Court of Appeals or the District Court should address in the first instance.
Ill
Since the statistical disparity relied on by the Court of Appeals did not suffice to make out a prima facie case, any inquiry by us into whether the specific challenged employment practices of petitioners caused that disparity is pretermitted, as is any inquiry into whether the disparate impact that any employment practice may have had was justified by business considerations. Because we remand for further proceedings, however, on whether a prima facie case of disparate impact has been made in defensible fashion in this case, we address two other challenges petitioners have made to the decision of the Court of Appeals.
A
First is the question of causation in a disparate-impact case. The law in this respect was correctly stated by Justice O’Connor’s opinion last Term in Watson v. Fort Worth Bank & Trust, 487 U. S., at 994:
“[W]e note that the plaintiff’s burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer’s work force. The plaintiff must begin by identifying the specific employment practice that is challenged. . . . Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”
Cf. also id., at 1000 (Blackmun, J., concurring in part and concurring in judgment).
Indeed, even the Court of Appeals — whose decision petitioners assault on this score — noted that “it is . . . essential that the practices identified by the cannery workers be linked causally with the demonstrated adverse impact.” 827 F. 2d, at 445. Notwithstanding the Court, of Appeals’ apparent adherence to the proper inquiry, petitioners contend that that court erred by permitting respondents to make out their case by offering “only [one] set of cumulative comparative statistics as evidence of the disparate impact of each and all of [petitioners’ hiring] practices.” Brief for Petitioners 31.
Our disparate-impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities. Just as an employer cannot escape liability under Title VII by demonstrating that, “at the bottom line,” his work force is racially balanced (where particular hiring practices may operate to deprive minorities of employment opportunities), see Connecticut v. Teal, 457 U. S., at 450, a Title VII plaintiff does not make out a case of disparate impact simply by showing that, “at the bottom line,” there is racial imbalance in the work force. As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff’s prima facie case in a disparate-impact suit under Title VII.
Here, respondents have alleged that several “objective” employment practices (e. g., nepotism, separate hiring channels, rehire preferences), as well as the use of “subjective decision making” to select noncannery workers, have had a disparate impact on nonwhites. Respondents base this claim on statistics that allegedly show a disproportionately low percentage of nonwhites in the at-issue positions. However, even if on remand respondents can show that nonwhites are underrepresented in the at-issue jobs in a manner that is acceptable under the standards set forth in Part II, supra, this alone will not suffice to make out a prima facie case of disparate impact. Respondents will also have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites. To hold otherwise would result in employers being potentially liable for “the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces.” Watson v. Fort Worth Bank & Trust, supra, at 992.
Some will complain that this specific causation requirement is unduly burdensome on Title VII plaintiffs. But liberal civil discovery rules give plaintiffs broad access to employers’ records in an effort to document their claims. Also, employers falling within the scope of the Uniform Guidelines on Employee Selection Procedures, 29 CFR §1607.1 et seq. (1988), are required to “maintain . . . records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group[s].” See § 1607.4(A). This includes records concerning “the individual components of the selection process” where there is a significant disparity in the selection rates of whites and nonwhites. See § 1607.4(C). Plaintiffs as a general matter will have the benefit of these tools to meet their burden of showing a causal link between challenged employment practices and racial imbalances in the work force; respondents presumably took full advantage of these opportunities to build their case before the trial in the District Court was held.
Consequently, on remand, the courts below are instructed to require, as part of respondents’ prima facie case, a demonstration that specific elements of the petitioners’ hiring process have a significantly disparate impact on non whites.
B
If, on remand, respondents meet the proof burdens outlined above, and establish a prima facie case of disparate impact with respect to any of petitioners’ employment practices, the case will shift to any business justification petitioners offer for their use of these practices. This phase of the disparate-impact case contains two components: first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact. See, e. g., Albemarle Paper Co. v. Moody, 422 U. S., at 425. We consider these two components in turn.
(1)
Though we have phrased the query differently in different cases, it is generally well established that at the justification stage of such a disparate-impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. See, e. g., Watson v. Fort Worth Bank & Trust, 487 U. S., at 997-999; New York City Transit Authority v. Beazer, 440 U. S., at 587, n. 31; Griggs v. Duke Power Co., 401 U. S., at 432. The touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be “essential” or “indispensable” to the employer’s business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above. See supra, at 652-653.
In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff. To the extent that the Ninth Circuit held otherwise in its en banc decision in this case, see 810 F. 2d, at 1485-1486, or in the panel’s decision on remand, see 827 F. 2d, at 445, 447 — suggesting that the persuasion burden should shift to petitioners once respondents established a prima facie case of disparate impact — its decisions were erroneous. “[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.'” Watson, supra, at 997 (O’Con-nor, J.) (emphasis added). This rule conforms with the usual method for allocating persuasion and production burdens in the federal courts, see Fed. Rule Evid. 301, and more specifically, it conforms to the rule in disparate-treatment cases that the plaintiff bears the burden of disproving an employer’s assertion that the adverse employment action or practice was based solely on a legitimate neutral consideration. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 256-258 (1981). We acknowledge that some of our earlier decisions can be read as suggesting otherwise. See Watson, supra, at 1006-1008 (Blackmun, J., concurring in part and concurring in judgment). But to the extent that those cases speak of an employer’s “burden of proof” with respect to a legitimate business justification defense, see, e. g., Dothard v. Rawlinson, 433 U. S. 321, 329 (1977), they should have been understood to mean an employer’s production— but not persuasion — burden. Cf., e. g., NLRB v. Transportation Management Corp., 462 U. S. 393, 404, n. 7 (1983). The persuasion burden here must remain with the plaintiff, for it is he who must prove that it was “because of such individual’s race, color,” etc., that he was denied a desired employment opportunity. See 42 U. S. C. §2000e-2(a).
(2)
Finally, if on remand the case reaches this point, and respondents cannot persuade the trier of fact on the question of petitioners’ business necessity defense, respondents may still be able to prevail. To do so, respondents will have to persuade the factfinder that “other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate [hiring] interest[s]”; by so demonstrating, respondents would prove that “[petitioners were] using [their] tests merely as a ‘pretext’ for discrimination.” Albemarle Paper Co., supra, at 425; see also Watson, 487 U. S., at 998 (O’Connor, J.); id., at 1005-1006 (Blackmun, J., concurring in part and concurring in judgment). If respondents, having established a prima facie case, come forward with alternatives to petitioners’ hiring practices that reduce the racially disparate impact of practices currently being used, and petitioners refuse to adopt these alternatives, such a refusal would belie a claim by petitioners that their incumbent practices are being employed for nondiscriminatory reasons.
Of course, any alternative practices which respondents offer up in this respect must be equally effective as petitioners’ chosen hiring procedures in achieving petitioners’ legitimate employment goals. Moreover, “[fjactors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer’s legitimate business goals.” Watson, supra, at 998 (O’Connor, J.). “Courts are generally less competent than employers to restructure business practices,” Furnco Construction Corp. v. Waters, 438 U. S. 567, 578 (1978); consequently, the judiciary should proceed with care before mandating that an employer must adopt a plaintiff’s alternative selection or hiring practice in response to a Title VII suit.
IV
For the reasons given above, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Title 42 U. S. C. §2000e-2(a), provides:
“(a) It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
“Independent fishermen catch the salmon and turn them over to company-owned boats called ‘tenders,’ which transport the fish from the fishing grounds to the canneries. Once at the cannery, the fish are eviscerated, the eggs pulled, and they are cleaned. Then, operating at a rate of approximately four cans per second, the salmon are filled into cans. Next, the canned salmon are cooked under precise time-temperature requirements established by the FDA, and the cans are inspected to ensure that proper seals are maintained on the top, bottom and sides.” 768 F. 2d 1120, 1123 (CA9), vacated, 787 F. 2d 462 (1985).
The noncannery jobs were described as follows by the Court of Appeals: “Machinists and engineers are hired to maintain the smooth and continuous operation of the canning equipment. Quality control personnel conduct the FDA-required inspections and recordkeeping. Tenders are staffed with a crew necessary to operate the vessel. A variety of support personnel are employed to operate the entire cannery community, including, for example, cooks, carpenters, store-keepers, bookkeepers, beach gangs for dock yard labor and construction, etc.” 768 F. 2d, at 1123.
The fact that neither the District Court, nor the Ninth Circuit en banc, nor the subsequent Court of Appeals panel ruled for respondents on their disparate-treatment claims— i. e., their allegations of intentional racial discrimination-warrants particular attention in light of the dissents’ comment that the canneries “bear an unsettling resemblance to aspects of a plantation economy.” Post, at 664, n. 4 (Stevens, J., dissenting); post, at 662 (Blackmun, J., dissenting).
Whatever the “resemblance,” the unanimous view of the lower courts in this litigation has been that respondents did not prove that the canneries practice intentional racial discrimination. Consequently, Justice Black-mun’s hyperbolic allegation that our decision in this case indicates that this Court no longer “believes that race discrimination . . . against nonwhites ... is a problem in our society,” ibid., is inapt. Of course, it is unfortunately true that race discrimination exists in our country. That does not mean, however, that it exists at the canneries — or more precisely, that it has been proved to exist at the canneries.
Indeed, Justice Stevens concedes that respondents did not press before us the legal theories under which the aspects of cannery life that he finds to most resemble a “plantation economy” might be unlawful. Post, at 664, n. 4. Thus, the question here is not whether we “approve” of petitioners’ employment practices or the society that exists at the canneries, but, rather, whether respondents have properly established that these practices violate Title VII.
The parties dispute the extent to which there is a discrepancy between the percentage of nonwhites employed as cannery workers and those employed in noncannery positions. Compare, e. g., Brief for Petitioners 4-9 with Brief for Respondents 4-6. The District Court made no precise numerical findings in this regard, but simply noted that there were “significant disparities between the at-issue jobs [i. <?., noncannery jobs] and the total workforce at the canneries” which were explained by the fact that “nearly all employed in the ‘cannery worker’ department are non-white.” See 34 EPD ¶ 34,437, pp. 33,841, 33,829 (WD Wash. 1983).
For reasons explained below, the degree of disparity between these groups is not relevant to our decision here.
In fact, where “figures for the general population might. . . accurately reflect the pool of qualified job applicants,” cf. Teamsters v. United States, 431 U. S. 324, 340, n. 20 (1977), we have even permitted plaintiffs to rest their prima facie cases on such statistics as well. See, e. g., Dothard v. Rawlinson, 433 U. S. 321, 329-330 (1977).
Obviously, the analysis would be different if it were found that the dearth of qualified nonwhite applicants was due to practices on petitioners’ part which — expressly or implicitly — deterred minority group members from applying for noncannery positions. See, e. g.. Teamsters v. United States, supra, at 365.
We qualify this conclusion — observing that it is only “probable” that there has been no disparate impact on minorities in such circumstances — because bottom-line racial balance is not a defense under Title VII. See Connecticut v. Teal, 457 U. S. 440 (1982). Thus, even if petitioners could show that the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, respondents would still have a ease under Title VII, if they could prove that some particular hiring practice has a disparate impact on minorities, notwithstanding the bottom-line racial balance in petitioners’ work force. See Teal, supra, at 450.
As we understand the opinions below, the specific employment practices were challenged only insofar as they were claimed to have been responsible for the overall disparity between the number of minority cannery and noncannery workers. The Court of Appeals did not purport to hold that any specified employment practice produced its own disparate impact that was actionable under Title VII. This is not to say that a specific practice, such as nepotism, if it were proved to exist, could not itself be subject to challenge if it had a disparate impact on minorities. Nor is it to say that segregated dormitories and eating facilities in the workplace may not be challenged under 42 U. S. C. § 2000e — 2(a)(2) without showing a disparate impact on hiring or promotion.
Of course, petitioners' obligation to collect or retain any of these data may be limited by the Guidelines themselves. See 29 CFR § 1602.14(b) (1988) (exempting “seasonal” jobs from certain recordkeepingrequirements).
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_const1
|
101
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Appellee, v. Ronald Douglas PATILLO, Appellant.
No. 13948.
United States Court of Appeals, Fourth Circuit.
Argued April 6, 1970.
Decided Aug. 20, 1970.
Albert V. Bryan, Circuit Judge, dissented and filed opinion.
Victor J. Ashe, Norfolk, Va. [Court-appointed] (S. W. Tucker, Seymour Du-bow, and Hill, Tucker & Marsh, Richmond, Va., on brief) for appellant.
Roger T. Williams, Asst. U. S. Atty. (Brien P. Gettings, U. S. Atty., on brief) for appellee.
Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.
CRAVEN, Circuit Judge:
Ronald Douglas Patillo was convicted on two counts of threatening the life of the President of the United States in violation of 18 U.S.C. Section 871 and was sentenced to terms totaling four years. He appeals, and we reverse and remand for a new trial.
I.
The district judge, without a jury, found that Patillo made unlawful threats against President Nixon on two occasions while on duty as a security guard at the Norfolk Naval Shipyard. On the night of May 16, 1969, Patillo and another guard, Herbert N. Cherry, with whom he was only casually acquainted, were riding in a patrol car. Without preamble or explanation, Patillo stated to Cherry: “I’m going to kill President Nixon, and I’m going to Washington to do it.” Neither conversant made further reference that night to the subject of Patillo’s statement. Cherry reported the incident to his supervisor who in turn informed the Secret Service.
On May 22, 1969, a Secret Service agent was secreted in the trunk of a patrol car to be operated by Patillo and Cherry. While on patrol, with the Secret Service agent listening, Cherry engaged Patillo in conversation about the current rioting and about the President’s nomination of a new Chief Justice of the Supreme Court. Patillo said that the rioting was bad, but did not reply to Cherry’s inquiries about the Supreme Court. Cherry then asked Patillo if he thought “Mr. Nixon was doing a good job.” Pa-tillo said, “I will take care of him personally.” Cherry asked how Patillo intended to accomplish that. Patillo did not directly respond, but stated that “he would gladly give up his life doing it * * Patillo further declared, in response to another question from Cherry, that getting close to the President would present no problem because “he (Patillo) did not need to get close to him (the President) to do it * * At that point the conversation terminated.
The trial court fully credited Cherry’s testimony and that of the Secret Service agent. Patillo testified that he had no recollection of the May 16 conversation. He contended that he had nothing against President Nixon, that he didn’t vote, that he was not concerned about politics and that he did not make the statement attributed to him by Cherry. As to the May 22 incident, Patillo testified that he remembered a discussion about the riots but that he had not mentioned or referred to President Nixon.
II.
The Supreme Court recently interpreted, for the first time, the statute under which Patillo was convicted. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). In a per curiam opinion, the Court held that 18 U.S.C. Section 871(a) is constitut-tional on its face.
The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H. R. Rep. No. 652, 64th Cong., 1st Session (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech. 394 U.S. at 707, 89 S.Ct. at 1401.
In deciding Watts, the Court recognized two major elements in the offense created by Congress in 18 U.S.C. Section 871(a). The first is that there be proved “a true ‘threat’ ”, 394 U.S. at 708, 89 S.Ct. 1399 and the second is that the threat be made “knowingly and willfully”, 18 U.S.C. Section 871(a).
The proof in this case clearly meets the first requirement. Patillo’s statements can be viewed only as true threats. He does not assert that his statements were political hyperbole or mere jest. Compare, Watts v. United States, supra, and Alexander v. United States, 418 F.2d 1203 (D.C. Cir. 1969). Instead, his defense was a general denial. His testimony that he was not concerned with politics and that he never voted was offered to make plausible his assertion that he did not utter the words —not to mitigate or explain away their apparent meaning. Within the Watts requirement that the defendant’s statement be examined in its full context, Alexander v. United States, 418 F.2d 1203 (D.C. Cir. 1969), it is clear that Patillo’s flat statement without provocation, that he was “going to kill President Nixon ■x- * * ” was a true threat.
Unlike the May 16 threat, the statements of May 22 were uttered in a context of political discussion. However, it was a very brief discussion. Cherry’s first mention of President Nixon triggered the bald statement: “I [Patillo] will take care of him personally.” In view of Patillo’s admitted lack of concern with politics and with regard to the full context of his statements, the inference drawn by the district judge that the May 22 statement was also a true threat cannot be held erroneous.
III.
We agree with the district judge that the statements made by Patillo were true threats. We must next determine whether the trier of fact properly found that those threats were uttered with the degree of willfulness sufficient for conviction under Section 871(a).
Although recognizing the “willfulness” requirement of Section 871(a), the Watts decision does not resolve a long term controversy over whether “willfulness” means “that a defendant must have intended to carry out his ‘threat’.” 394 U.S. at 707, 89 S.Ct. at 1401. “Some early cases,” the Court observed, “found the willfulness requirement met if the speaker voluntarily uttered the charged words with an apparent determination to carry them into execution. Ragansky v. United States, 253 F. 643, 645 (CA 7th Cir. 1918) (emphasis supplied) ; cf. Pierce v. United States, 365 F.2d 292 (CA 10th Cir. 1966). * * * Perhaps [the Ragansky] interpretation is correct, although we have grave doubts about it. See the dissenting opinion below, [Watts v. United States] 131 U.S.App.D.C. 125, 402 F.2d 676, at 686-693 (Wright, J.)” Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969).
Whatever the motivation for the enactment of Section 871(a), see Watts v. United States, 394 U.S. 705, 709, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (Douglas, J., concurring), it is valid as a safety measure to protect the President and to allow him to perform his duties without interference from threats of physical violence. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Watts v. United States, 131 U.S.App.D.C. 125, 402 F.2d 676, 679 (1968) (Wright, J., dissenting) ; both citing H.R.Rep. No. 652, 64th Cong., 1st Session (1916). The statute must be strictly construed, as are all criminal statutes, to accomplish no more than this purpose. Chief Justice Marshall best stated this rule of construction in United States v. Wiltber-ger, 5 Wheat. 76, 5 L.Ed. 37 (1820):
The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself * * * The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest.
5 Wheat, at 95-96, 5 L.Ed. 37, quoted in Yates v. United States, 354 U.S. 298, 304, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). We think that many of the courts that construed Section 871(a) prior to Watts departed “from the plain meaning of words * * * in search of an intention which the words themselves did not suggest,” with pernicious results. For example, one court held that “[t]he vital inquiry under the act is whether the threat is of such a nature as to create or tend to create sedition or disloyalty.” United States v. Stobo, 251 F. 689 (D.Del.1918). In United States v. Stickrath, 242 F.151 (S.D .Ohio 1917), the first case construing Section 871(a), the court held that the words “knowingly and willfully” in the statute “are intended to signify that the defendant, at the time of making the threat charged him, must have known what he was doing, and, with such knowledge, proceeded in violation of law to make it. They are used in contradistinction to ‘ignorantly’ and ‘unintentionally’.” Id. at 154. The interpretation of “knowingly and willfully” alluded to by the Supreme Court in Watts was first stated in Ragansky v. United States, 253 F. 643, 645 (7th Cir. 1918):
A threat is knowingly made, if the maker of it comprehends the meaning of the words uttered by him. * * * And a threat is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution.
This language in Ragansky was part and parcel of a holding, now discredited by Watts, that a statement made in jest falls within the ambit of Section 871(a).
The Ragansky interpretation of “willfully and knowingly” is not in keeping with the meaning traditionally accorded to those words when found in criminal statutes. “The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose. * * *” United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933). Ragansky’s version of the willfulness requirement demands only an “apparent determination,” expressed by the words themselves, to perpetrate the act threatened. We believe that a “bad purpose” assumes even more than its usual importance in a criminal prosecution based upon the bare utterance of words. Americans, nurtured upon the concept of free speech, are not accustomed to controlling their tongues to avoid criminal indictment.
This case does not involve the communication, or attempted communication, by a defendant of his threat to the President. Accordingly, we do not here consider what intent requirement may be effective to accomplish an insulation of the President from threats of violence to his person and also be in accordance with the wording of Section 871(a). We hold that where, as in Patillo’s case, a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction under the terms of Section 871(a) only if made with a present intention to do injury to the President. Such intent may take the form of a bad purpose to personally do harm to the President or to incite some other person to do the injury. This is the most reasonable construction of the statute’s plain language viewed in light of Congress’ manifest purpose to protect “the safety of [the] Chief Executive.” 394 U.S. at 707, 89 S.Ct. 1399. There is no danger to the President’s safety from one who utters a threat and has no intent to actually do what he threatens. While threatening remarks made without intent to later carry them out and without intent to incite others may, nevertheless, incite others, Congress has precluded the application of the statute to such remarks by requiring willfulness by him who threatens. Without so deciding, we note that an exception, under the normal definition of willfulness, may occur where inflammatory statements are made in a “full context” evidencing on the part of the speaker a reckless disregard for the strong likelihood that his listeners would be incited to do harm to the President.
The district court, quite understandably, applied the time honored Ragansky willfulness requirement, which we today reject, to Patillo’s case. The court articulated that rule as follows:
The question of intent really is not the issue or a bad purpose is not necessary to constitute a violation of the law when the threat is made, and when the section refers to “knowingly and willfully” it means that it is knowingly made if the maker comprehends the meaning of the words which are uttered by him and is willfully made if, in addition to comprehending the meaning of the words, the maker voluntarily and intentionally utters them as a declaration of an apparent determination to carry them into execution.
Because Patillo was thus tried in accordance with legal principles that we have found to be erroneous, his convictions under 18 U.S.C. Section 871 must be reversed and his case remanded for a new trial.
Reversed and remanded.
. 18 U.S.C. Section 871. Threats against President and successors to the Presidency. (a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of the President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
. Patillo was sentenced to two consecutive two year terms under the provisions of 18 U.S.C. Section 4208(a) (1964).
. The Supreme Court’s flat statement upholding the statute’s facial constitutionality unquestionably forecloses these arguments urged upon us by the appellant: (1) The constitution forbids punishment of pure speech as treason or otherwise, and (2) The statute is unconstitutionally vague.
. Cases decided by the lower federal courts prior to the Supreme Court’s Watts decision had placed an extremely broad interpretation upon the “threat” requirement of 18 U.S.C. § 871(a). Neither conditional language, United States v. Jasick, 252 F. 931 (E.D.Mich.1918), nor jest, Pierce v. United States, 365 F.2d 292 (10th Cir. 1966), nor political hyperbole, Rothering v. United States, 384 F.2d 385 (10th Cir. 1967) escaped inclusion in the pre-Watts definition. Indeed, most of the early cases indicate a preoccupation with the supposed disloyal nature of the utterances punishable under the statute. E. g., United States v. Stobo, 251 F. 689 (D.Del.1918); United States v. Stickrath, 242 F. 151 (S.D.Ohio 1917). See, generally, Comment, Threatening the President: Protected Dissenter or Potential Assassin, 57 Geo. L.J. 553 (1969) and Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (Douglas, J., concurring).
. The appellant contends that his statements on May 16 and those on May 22 should not be considered together for purposes of establishing their nature or the intent with which they were made. We reject this contention. It is familiar learning that similar offenses, close in time, may be viewed together to establish intent and knowledge. McCormick, Evidence Section 157. Furthermore, one statement constituting a threat to the President may be, as here, part of “the full context” in which was made another statement also alleged to constitute an unlawful threat. Such statements, though made at different times, must perforce be considered together. See Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Alexander v. United Statesf, 418 F.2d 1203 (D.C.Cir. 1969).
. For early interpretations of the willfulness requirement contra the Ragansky rule, see United States v. Metzdorf, 252 F. 933 (D.Mont.1918), and United States v. French, 243 F. 785 (S.D.FIa.1917).
. As noted by Wright, J., dissenting' in Watts v. United States, 402 F.2d 676, 687 (D.C.Cir. 1968), this was the view stated by a Congressman who sponsored the bill codified as 18 U.S.C. § 871. Referring to the intent requirement, Congressman Webb said: “ * * * I think he ought to be shown to have done it willfully. I think it must be a willful intent to do serious injury to the President. If you make it a mere technical offense, you do not give him much of a chance when he comes to answer before a court and jury. I do not think we ought to be too anxious to convict a man who does a thing thoughtlessly. I think it ought to be a willful expression of an intent to carry out a threat against the Executive, and I hope that the gentleman will not offer his amendment [to delete the willfulness requirement].” 53 Cong. Rec. 9378 (1916).
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_post_trl
|
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 some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellant, v. 78.40 ACRES OF LAND, MORE OR LESS, Situate IN McKEAN COUNTY, STATE OF PENNSYLVANIA, and Laurence J. Hazzard et al.
No. 16474.
United States Court of Appeals Third Circuit.
Argued Oct. 5, 1967.
Decided Oct. 24, 1967.
Edmund B. Clark, Dept, of Justice, Land and Natural Resources Division, Appellate Section, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Lawrence G. Zurawsky, Asst. U. S. Atty., Pittsburgh, Pa., Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellant.
John F. Potter, MacDonald, Illig, Jones & Britton, Erie, Pa. (William F. Illig, Erie, Pa., on the brief), for appellees.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
In this condemnation case the Government seeks on appeal to convict the trial judge of error in instructing the jury, as he did, that it might infer from the Government’s failure to call as a valuation witness one of its employees, who had made an initial valuation of the land taken, that his testimony, if produced, would have been detrimental to the Government’s position. It appears, however, that at the conclusion of the charge, in answer to a direct inquiry by the trial judge, counsel for the Government stated that he had no suggestions or corrections as to the charge. Under these circumstances, the Government is precluded from attacking in this court the portion of the trial judge’s charge referred to. Arnold v. Loose, 3 Cir. 1965, 352 F.2d 959, 963-964. We, therefore, do not reach and do not consider the question which the Government seeks to raise as to the right of a claimant to comment to the jury on the Government’s failure to call as a valuation witness an employee who had made the initial valuation upon which was based the estimate of just compensation for the land taken which is required by 40 U.S.C.A. § 258a(5).
The judgment of the district court will be affirmed.
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_const2
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Charles McCORKLE, Plaintiff-Appellant, v. W.E. JOHNSON, Warden, Joseph Kolb, Chaplain, Freddie V. Smith, Commissioner, Defendants-Appellees.
No. 88-7478
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Aug. 24, 1989.
P. David Bjurberg, David Christy, and Beth Jackson Hughes, Asst. Attys. Gen., Montgomery, Ala., for defendants-appel-lees.
Before VANCE, JOHNSON and CLARK, Circuit Judges.
PER CURIAM:
The judgment of the district court is AFFIRMED on the basis of the memorandum opinion entered by the district court on July 13, 1988. (Attached hereto as Appendix.)
APPENDIX
In The United States District Court For The Southern District of Alabama Southern Division Charles McCorkle, Plaintiff, vs. W.E. Johnson, et al., Defendants.
Civ. A. No. 84-0918-C
MEMORANDUM OPINION
This action was referred to the Magistrate for submission of recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate submitted recommendations, and timely objections to those recommendations were filed by the plaintiff. In accordance with 28 U.S.C. § 636(b)(1)(C), the court has made a de novo determination of those portions of the Magistrate’s recommendations to which objections were made.
Charles McCorkle, a state prisoner confined in the Holman facility, filed this complaint pursuant to 42 U.S.C. § 1983 seeking redress for the deprivation of his First Amendment right to freely exercise his chosen religion. The defendants are prison officials who allegedly impinged on the plaintiff’s practice of the Satanic “religion” by denying plaintiff’s request for access to certain Satanic books and articles, including The Satanic Bible, The Satanic Book of Rituals, and a Satanic medallion. Their defense is three-fold: (1) Satanism is not a religion entitled to First Amendment protection; (2) assuming it is a religion, the plaintiff is not a sincere believer in Satanism; and (3) access to the requested books and medallion would pose a threat to the security of the prison. The Magistrate held that all three defenses were valid and recommended that judgment be entered in favor of the defendants.
The threshold questions of whether Satanism is a religion and, if it is, whether plaintiff is a sincere believer need not be decided since it is clear that, even if these questions are answered affirmatively, the challenged prison policy does not violate the Free Exercise Clause of the First Amendment as it is applied to the States through the Fourteenth Amendment. When it is alleged that a prison policy impinges on an inmate’s constitutional rights, the policy is valid “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Giving the deference that is due to the officials charged with prison administration, see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977), the court finds that the policy at issue in the present case successfully withstands this scrutiny; it is not an exaggerated response to the situation.
There are several factors which are relevant in determining the reasonableness of this policy. First, there must be a “valid, rational connection” between the prison restriction and the legitimate governmental interest put forward to justify it. Turner, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). The restriction at issue here clearly meets this standard. The prohibition on Satanic materials such as those requested by the plaintiff is justified by the defendants’ concern for institutional security and order. It is an informed and measured response to the violence inherent in Satan worship, and to the potential disorder that it might cause within the prison.
Testimony at the evidentiary hearing turned gruesome when the plaintiff recounted two of the rituals espoused by The Satanic Book of Rituals. The fertility ritual includes the sacrifice of a female virgin, preferably a Christian. Also explained in this book, according to the plaintiff, is the initiation ritual. Wrist-slashing, blood-drinking, and the consumption of human flesh — usually fingers — are some of the gory highlights of this ceremony. The plaintiff quipped that hopefully the person whose flesh is eaten is alive at the end of the ritual.
Candles, a common item in many religious ceremonies, are also used in the Satanic rituals. However, the candles preferred by the plaintiff and other Satanists are not made of wax or paraffin; instead, they are made from the fat of unbaptized infants.
An inmate witness subpoenaed by the plaintiff testified that he has observed the plaintiff performing certain Satanic rituals within Holman Prison on several occasions. According to this testimony, the plaintiff, as part of these rituals, drew his own blood by slicing his wrist or using a needle, and burned paper. Mr. McCorkle has also asked other inmates for their blood. Approximately three years ago, one inmate got highly irritated when the plaintiff requested that he donate a vial of blood for use in the worship of Satan.
The teachings of The Satanic Bible, which the plaintiff claims to wholeheartedly believe, and desires to study, also present a significant threat to security and order within the prison. W.E. Johnson, Warden of Holman Prison, testified that upon review of The Satanic Bible, he concluded that persons following its teachings would murder, rape or rob at will without regard for the moral or legal consequences. Moreover, Warden Johnson thought that the plaintiff’s safety would be threatened if other inmates became aware of the contents of The Satanic Bible. Accordingly, he denied plaintiff’s requests.
Testimony from proclaimed Satanists, and an independent review of the book, confirms Warden Johnson’s conclusions about the beliefs of Satanists. A “master counselor” of a Satanic sect testified that the premise underlying all of the teachings in The Satanic Bible is that life should be lived according to individual desires without regard for conscience or consequences. Certain portions of the book are somewhat harsher. For instance, in the chapter entitled “The Book of Satan,” author Anton Szandor LaVey states that right and wrong have been inverted too long. He challenges readers to rebel against the laws of man and God. Furthermore, LaVey declares that hatred of ones enemies is of utmost importance; revenge should be a top priority.
Clearly, practices such as those described above, and the beliefs that encourage them, cannot be tolerated in a prison environment since they pose security threats and are directly contrary to the goals of the institution. Allowing the plaintiff access to the requested books and medallion would only encourage such behavior. Thus, it cannot be said that the policy in question is arbitrary; rather, it is logically connected to the governmental interests asserted.
A second factor relevant in determining the reasonableness of a prison restriction is that alternative means of exercising the asserted right remain open. Turner, 107 S.Ct. at 2262. The inquiry here is whether, under the restrictions imposed, the plaintiff is deprived of all means of practicing his “religion.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 2406, 96 L.Ed.2d 282 (1987). Testimony at trial revealed that the plaintiff and other members of the various Satanic sects in Holman Prison are practicing Satanists despite the deprivation of the books and medallion requested by the plaintiff. Moreover, plaintiff indicated that he wears a duplicate medallion and has memorized portions of both The Satanic Bible and The Satanic Book of Rituals. Clearly, the restrictions about which plaintiff complains have not foreclosed all avenues of his worship of Satan.
A third consideration in the reasonableness inquiry is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. Turner, 107 S.Ct. at 2262. Warden Johnson justifiably believes that books and memorabilia that teach hatred for one’s fellow man and disrespect for laws and legal order, and that encourage and explain the practice of violent acts such as flesh-eating and blood-letting, pose substantial threats to prison security and order, and are contrary to the rehabilitative goals of the institution. Consequently, the plaintiff’s asserted right to freely worship Satan can be exercised only at significant costs to guards, other prisoners, and society in general. Where such a trade-off is necessary, the choice made by prison officials should not be lightly set aside by the court since such judgments are peculiarly within their province. See Turner, 107 S.Ct. at 2263, (citing Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974)).
Finally, the presence of workable alternatives is evidence of the unreasonableness of the restrictions imposed. Turner, 107 S.Ct. at 2262. Plaintiff, however, has not offered any alternatives that would fully accomodate his asserted rights at a de min-imis cost to the valid penological interests that gave rise to the imposed restrictions.
The restrictions challenged by the plaintiff are reasonably related to valid penological interests. Accordingly, the court refuses to substitute its judgment on difficult matters of prison administration for the determinations of those charged with the formidable task of running a prison. See O’Lone, 107 S.Ct. at 2407. The court will by separate document enter final judgment dismissing the plaintiff’s complaint on the merits.
DONE this 13 day of July, 1988.
Emmett R. Cox
UNITED STATES CIRCUIT JUDGE SITTING BY DESIGNATION
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
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