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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.
JAMES v. UNITED STATES
No. 05-9264.
Argued November 7, 2006
Decided April 18, 2007
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Breyer, JJ., joined. Scaua, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 214. Thomas, J., filed a dissenting opinion, post, p. 231.
Craig L. Crawford argued the cause for petitioner. With him on the briefs were R. Fletcher Peacock and Jeffrey T Green.
Jonathan L. Marcus argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Daniel S. Goodman.
Justice Alito
delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e)(1) (2000 ed., Supp. IV), provides that a defendant convicted of possession of a firearm by a convicted felon, in violation of § 922(g), is subject to a mandatory sentence of 15 years of imprisonment if the defendant has three prior convictions “for a violent felony or a serious drug offense.” The question before us is whether attempted burglary, as defined by Florida law, is a “violent felony” under ACCA. We hold that it is, and we therefore affirm the judgment of the Court of Appeals.
I
Petitioner Alphonso James pleaded guilty in federal court to one count of possessing a firearm after being convicted of a felony, in violation of § 922(g)(1). In his guilty plea, James admitted to the three prior felony convictions listed in his federal indictment. These included a conviction in Florida state court for attempted burglary of a dwelling, in violation of Fla. Stat. §§810.02 and 777.04 (1993).
At sentencing, the Government argued that James was subject to ACCA’s 15-year mandatory minimum term because of his three prior convictions. James objected, arguing that his attempted burglary conviction did not qualify as a “violent felony” under 18 U. S. C. § 924(e). The District Court held that attempted burglary is a violent felony, and the Court of Appeals for the Eleventh Circuit affirmed that holding, 430 F. 3d 1150, 1157 (2005). We granted certiorari, 547 U. S. 1191 (2006).
II
A
ACCA’s 15-year mandatory minimum applies “[i]n the case of a person who violates section 922(g) of this title [the felon in possession of a firearm provision] and has three previous convictions... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” § 924(e)(1) (2000 ed., Supp. IV). ACCA defines a “violent felony” as
“any crime punishable by imprisonment for a term exceeding one year... that—
“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B).
Florida defined the crime of burglary at the time of James’ conviction as follows: “ ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat. §810.02(1). Florida’s criminal attempt statute provided: “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.” § 777.04(1). The attempted burglary conviction at issue here was punishable by imprisonment for a term exceeding one year.
The parties agree that attempted burglary does not qualify as a “violent felony” under clause (i) of ACCA’s definition because it does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U. S. C. § 924(e)(2)(B)(i). Nor does it qualify as one of the specific crimes enumerated in clause (ii). Attempted burglary is not arson or extortion. It does not involve the use of explosives. And it is not “burglary” because it does not meet the definition of burglary under ACCA that this Court set forth in Taylor v. United States, 495 U. S. 575, 598 (1990): “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” See Fla. Stat. § 777.04(1) (crime of attempt under Florida law requires as an element that the defendant “fai[l] in the perpetration or [be] intercepted or prevented in the execution” of the underlying offense).
The question before the Court, then, is whether attempted burglary, as defined by Florida law, falls within ACCA’s residual provision for crimes that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. § 924(e)(2)(B)(ii).
B
Before determining whether the elements of attempted burglary under Florida law qualify under ACCA’s residual provision, we first consider James’ argument that the statute’s text and structure categorically exclude attempt offenses from the scope of the residual provision. We conclude that nothing in the plain language of clause (ii), when read together with the rest of the statute, prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another.
James first argues that the residual provision of clause (ii) must be read in conjunction with clause (i), which expressly includes in its definition of “violent felony” offenses that have “as an element the... attempted use... of physical force against the person of another.” § 924(e)(2)(B)(i) (emphasis added). James thus concludes that Congress’ express inclusion of attempt offenses in clause (i), combined with its failure to mention attempts in clause (ii), demonstrates an intent to categorically exclude attempt offenses from the latter provision.
We are not persuaded. James’ reading would unduly narrow clause (ii)’s residual provision, the language of which does not suggest any intent to exclude attempt offenses that otherwise meet the statutory criteria. Clause (i), in contrast, lacks a broad residual provision, thus making it necessary to specify exactly what types of offenses — including attempt offenses — are covered by its language. In short, “the expansive phrasing of” clause (ii) “points directly away from the sort of exclusive specification” that James would read into it. Chevron U S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002); see also United States v. Davis, 16 F. 3d 212, 217 (CA7) (rejecting argument that “had Congress wished to include attempted burglary as a § 924(e) predicate offense, it would have done so expressly” as “untenable in light of the very existence of the ‘otherwise’ clause, which Congress plainly included to serve as a catch-all provision”), cert, denied, 513 U. S. 945 (1994).
James next invokes the canon of ejusdem generis — that when a general phrase follows a list of specifies, it should be read to include only things of the same type as those specifically enumerated. He argues that the “common attribute” of the offenses specifically enumerated in clause (ii) — burglary, arson, extortion, and crimes involving the use of explosives — is that they are all completed offenses. The residual provision, he contends, should similarly be read to extend only to completed offenses.
This argument is unavailing. As an initial matter, the premise on which it depends — that clause (ii)’s specifically enumerated crimes are limited to completed offenses — is false. An unsuccessful attempt to blow up a government building, for example, would qualify as a specifically enumerated predicate offense because it would “involv[e] [the] use of explosives.” See, e.g., § 844(f)(1) (2000 ed., Supp. IV) (making it a crime to “maliciously damag[e] or destro[y], or attempft] to damage or destroy, by means of fire or an explosive,” certain property used in or affecting interstate commerce (emphasis added)).
In any event, the most relevant common attribute of the enumerated offenses of burglary, arson, extortion, and explosives use is not “completion.” Rather, it is that all of these offenses, while not technically crimes against the person, nevertheless create significant risks of bodily injury or confrontation that might result in bodily injury. As we noted in Taylor:
“Congress thought that certain general categories of property crimes — namely burglary, arson, extortion, and the use of explosives — so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person.” 495 U. S., at 597.
See also id., at 588 (noting that Congress singled out burglary because it “often creates the possibility of a violent confrontation”); United States v. Adams, 51 Fed. Appx. 507, 508 (CA6 2002) (arson presents “a serious potential risk of physical injury to another” because “[n]ot only might the targeted building be occupied,” but also “the fire could harm firefighters and onlookers and could spread to occupied structures”); H. R. Rep. No. 99-849, p. 3 (1986) (purpose of clause (ii) was to “add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person”).
Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a § 924(e) predicate offense. Nothing in the statutory language supports the view that Congress intended to limit this category solely to completed offenses.
C
James also relies on ACCA’s legislative history to buttress his argument that clause (ii) categorically excludes attempt offenses. In the deliberations leading up to ACCA’s adoption in 1984, the House rejected a version of the statute that would have provided enhanced penalties for use of a firearm by persons with two prior convictions for “any robbery or burglary offense, or a conspiracy or attempt to commit such an offense.” S. 52, 98th Cong., 2d Sess., § 2 (1984) (emphasis added). The bill that ultimately became law omitted any reference to attempts, and simply defined “violent felony” to include “robbery or burglary, or both.” Armed Career Criminal Act of 1984, § 1802, 98 Stat. 2185, repealed in 1986 by Pub. L. 99-308, § 104(b), 100 Stat. 459. James argues that Congress’ rejection of this explicit “attempt” language in 1984 evidenced an intent to exclude attempted burglary as a predicate offense.
Whatever weight this legislative history might ordinarily have, we do not find it probative here, because the 1984 enactment on which James relies was not Congress’ last word on the subject. In 1986, Congress amended ACCA for the purpose of “‘expanding’ the range of predicate offenses.” Taylor, supra, at 584. The 1986 amendments added the more expansive language that is at issue in this case — including clause (ii)’s language defining as violent felonies offenses that are “burglary, arson, or extortion, involv[e] use of explosives, or otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” Career Criminals Amendment Act of 1986, § 1402(b), 100 Stat. 3207-40, codified at 18 U.S.C. § 924(e)(2)(B)(ii). This language is substantially broader than the 1984 provision that it amended. Because both the Government and the Court of Appeals relied on the broader language of the 1986 amendments — specifically, the residual provision — as the textual basis for including attempted burglary within the law’s scope, Congress’ rejection of express language including attempt offenses in the 1984 provision is not dispositive. Congress did not consider, much less reject, any such language when it enacted the 1986 amendments. What it did consider, and ultimately adopted, was a broadly worded residual clause that does not by its terms exclude attempt offenses, and whose reach is broad enough to encompass at least some such offenses.
Ill
Having concluded that neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of § 924(e)(2)(B)(ii)’s residual provision, we next ask whether attempted burglary, as defined by Florida law, is an offense that “involves conduct that presents a serious potential risk of physical injury to another.” In answering this question, we employ the “ ‘categorical approach’ ” that this Court has taken with respect to other offenses under ACCA. Under this approach, we “Took only to the fact of conviction and the statutory definition of the prior offense,’” and do not generally consider the “particular facts disclosed by the record of conviction.” Shepard v. United States, 544 U. S. 13, 17 (2005) (quoting Taylor, 495 U. S., at 602). That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.
A
We begin by examining what constitutes attempted burglary under Florida law. On its face, Florida’s attempt statute requires only that a defendant take “any act toward the commission” of burglary. Fla. Stat. § 777.04(1). James contends that this broad statutory language sweeps in merely preparatory activity that poses no real danger of harm to others — for example, acquiring burglars’ tools or casing a structure while planning a burglary.
But while the statutory language is broad, the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary, requiring an “overt act directed toward entering or remaining in a structure or conveyance.” Jones v. State, 608 So. 2d 797, 799 (1992). Mere preparation is not enough. See ibid. Florida’s lower courts appear to have consistently applied this heightened standard. See, e. g., Richardson v. State, 922 So. 2d 331, 334 (App. 2006); Davis v. State, 741 So. 2d 1213, 1214 (App. 1999).
The pivotal question, then, is whether overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, is “conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. § 924(e)(2)(B)(ii).
B
In answering this question, we look to the statutory language for guidance. The specific offenses enumerated in clause (ii) provide one baseline from which to measure whether other similar conduct “otherwise... presents a serious potential risk of physical injury.” In this case, we can ask whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses — here, completed burglary. See Taylor, supra, at 600, n. 9 (“The Government remains free to argue that any offense — including offenses similar to generic burglary — should count towards enhancement as one that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another’ under § 924(e)(2)(B)(ii)”).
The main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party — whether an occupant, a police officer, or a bystander — who comes to investigate. That is, the risk arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress.
Attempted burglary poses the same kind of risk. Interrupting an intruder at the doorstep while the would-be burglar is attempting a break-in creates a risk of violent confrontation comparable to that posed by finding him inside the structure itself. As one court has explained:
“In all of these cases the risk of injury arises, not from the completion of the break-in, but rather from the possibility that some innocent party may appear on the scene while the break-in is occurring. This is just as likely to happen before the defendant succeeds in breaking in as after. Indeed, the possibility may be at its peak while the defendant is still outside trying to break in, as that is when he is likely to be making noise and exposed to the public view.... [T]here is a serious risk of confrontation while a perpetrator is attempting to enter the building.” United States v. Payne, 966 F. 2d 4, 8 (CA1 1992).
Indeed, the risk posed by an attempted burglary that can serve as the basis for an ACCA enhancement may be even greater than that posed by a typical completed burglary. All burglaries begin as attempted burglaries. But ACCA only concerns that subset of attempted burglaries where the offender has been apprehended, prosecuted, and convicted. This will typically occur when the attempt is thwarted by some outside intervenor — be it a property owner or law enforcement officer. Many completed burglaries do not involve such confrontations. But attempted burglaries often do; indeed, it is often just such outside intervention that prevents the attempt from ripening into completion.
Concluding that attempted burglary presents a risk that is comparable to the risk posed by the completed offense, every Court of Appeals that has construed an attempted burglary law similar in scope to Florida’s has held that the offense qualifies as a “violent felony” under clause (ii)’s residual provision. The only cases holding to the contrary involved attempt laws that could be satisfied by preparatory conduct that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally. Given that Florida law, as interpreted by that State’s highest court, requires an overt act directed toward the entry of a structure, we need not consider whether the more attenuated conduct encompassed by such laws presents a potential risk of serious injury under ACCA.
The United States Sentencing Commission has come to a similar conclusion with regard to the Sentencing Guidelines’ career offender enhancement, whose definition of a predicate “crime of violence” closely tracks ACCA’s definition of “violent felony.” See United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). The Commission has determined that “crime[s] of violence” for the purpose of the Guidelines enhancement “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” §4B1.2, comment., n. 1. This judgment was based on the Commission’s review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses. As then-Chief Judge Breyer explained, “[t]he Commission, which collects detailed sentencing data on virtually every federal criminal case, is better able than any individual court to make an informed judgment about the relation between” a particular offense and “the likelihood of accompanying violence.” United States v. Doe, 960 F. 2d 221, 225 (CA1 1992); see also USSG §1A3 (Nov. 1987), reprinted in § 1 A1.1 comment. (Nov. 2006) (describing empirical basis of Commission’s formulation of Guidelines); United States v. Chambers, 478 F. 3d 724 (CA7 2007) (noting the usefulness of empirical analysis from the Commission in determining whether an unenumerated crime poses a risk of violence). While we are not bound by the Sentencing Commission’s conclusion, we view it as further evidence that a crime like attempted burglary poses a risk of violence similar to that presented by the completed offense.
C
James responds that it is not enough that attempted burglary “ ‘generally’ ” or in “ ‘most cases’ ” will create a risk of physical injury to others. Brief for Petitioner 32. Citing the categorical approach we employed in Taylor, he argues that we cannot treat attempted burglary as an ACCA predicate offense unless all cases present such a risk. James’ approach is supported by neither the statute’s text nor this Court’s holding in Taylor.
One could, of course, imagine a situation in which attempted burglary might not pose a realistic risk of confrontation or injury to anyone — for example, a break-in of an unoccupied structure located far off the beaten path and away from any potential intervenors. But ACCA does not require metaphysical certainty. Rather, § 924(e)(2)(B)(ii)’s residual provision speaks in terms of a “potential risk.” These are inherently probabilistic concepts. Indeed, the combination of the two terms suggests that Congress intended to encompass possibilities even more contingent or remote than a simpie “risk,” much less a certainty. While there may be some attempted burglaries that do not present a serious potential risk of physical injury to another, the same is true of completed burglaries — which are explicitly covered by the statutory language and provide a baseline against which to measure the degree of risk that a nonenumerated offense must “otherwise” present in order to qualify.
James’ argument also misapprehends Taylor's categorical approach. We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Cf. Gonzales v. Duenas-Alvarez, 549 U. S. 183, 193 (2007) (“[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”).
Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury — for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F. 3d 653, 659 (CADC 2004). Or, to take an example from the offenses specifically enumerated in § 924(e)(2)(B)(ii), one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent.
As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of § 924(e)(2)(B)(ii)’s residual provision. Attempted burglary under Florida law — as construed in Jones to require an overt act directed toward entry of a structure — satisfies this test.
D
Justice Scalia’s dissent criticizes our approach on the ground that it does not provide sufficient guidance for lower courts required to decide whether unenumerated offenses other than attempted burglary qualify as violent felonies under ACCA. But the dissent’s alternative approach has more serious disadvantages. Among other things, that approach unnecessarily decides an important question that the parties have not briefed (the meaning of the term “extortion” in § 924(e)(2)(B)(ii)), decides that question in a way that is hardly free from doubt, and fails to provide an interpretation of the residual provision that furnishes clear guidance for future cases.
The dissent interprets the residual provision to require at least as much risk as the least dangerous enumerated offense. But the ordinary meaning of the language of the residual clause does not impose such a requirement. What the clause demands is “a serious potential risk of physical injury to another.” While it may be reasonable to infer that the risks presented by the enumerated offenses involve a risk of this magnitude, it does not follow that an offense that presents a lesser risk necessarily fails to qualify.. Nothing in the language of § 924(e)(2)(B)(ii) rules out the possibility that an offense may present “a serious risk of physical injury to another” without presenting as great a risk as any of the enumerated offenses.
Moreover, even if an unenumerated offense could not qualify without presenting at least as much risk as the least risky of the enumerated offenses, it would not be necessary to identify the least risky of those offenses in order to decide this case. Rather, it would be sufficient to establish simply that the unenumerated offense presented at least as much risk as one of the enumerated offenses. Thus, Justice Scalia’s interpretation of the meaning of the term “extortion” is unnecessary — and inadvisable. The parties have not briefed this issue, and the proposed interpretation is hardly beyond question. Instead of interpreting the meaning of the term “extortion” in accordance with its meaning at common law or in modern federal and state statutes, see Taylor, 495 U. S., at 598, it is suggested that we adopt an interpretation that seems to be entirely novel and that greatly reduces the reach of ACCA.
The stated reason for tackling this question is to provide guidance for the lower courts in future cases — surely a worthy objective. But in practical terms, the proposed interpretation of the residual clause would not make it much easier for the lower courts to decide whether other unenumerated offenses qualify. Without hard statistics— and no such statistics have been called to our
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185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_usc1
|
15
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
GOODYEAR TIRE & RUBBER CO. v. ROBERTSON, Commissioner of Patents.
Circuit Court of Appeals, Fourth Circuit.
April 10, 1928.
No. 2659.
Trade-marks and trade-names and unfair competition —Device consisting of diamond-shaped projections to be impressed on tread of automobile tires, held not registerable (Trade-Mark Act 1905, § 5 [15 USCA § 85]).
Under Trade-Mark Aet 1905, § 5 (15 USCA §85) providing that “no mark, which consists merely in * * * devices which are descriptive of the goods with which they are used, * * * shall be registered,” a device which consists of a series of diamond-shaped projections or blocks designed to be used or impressed on the tread of automobile tires, and which is a mechanically functional feature of the tire, is not registerable.
Appeal from the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge.
Suit , in equity by the Goodyear Tire & Rubber Company against Thomas E. Robertson, Commissioner of Patents. Decree for defendant, and complainant appeals.
Affirmed.
For opinion below, see 18 F.(2d) 639.
Archibald Cox, of New York City (R. S. Trogner, of Akron, Ohio, William Pepper Constable, of Baltimore, Md., and William G. Henderson, of Washington, D. C., on the brief), for appellant.
T. A. Hostetler, Sol. U. S. Patent Office, of Washington, D. C. (J. F. Mothershead, of Washington, D. C., on the brief), for appellee.
Before WADDILL and PARKER, Circuit Judges, and WEBB, District Judge.
WADDILL, Circuit Judge.
A hill in equity was filed in this cause in the United States District Court for the District of Maryland to require the Commissioner of Patents of the United States to register a trade-mark under the Trade-Mark Act in accordance with an application theretofore filed by the complainant in the Patent Office on July 27, 1921. The bill was filed pursuant to the provisions of section 9 of the Trade-Mark Act of February 20, 1905 (33 Stat. 727 [15 USCA § 89] ; Rev. St. § 4915, U. S. Comp. St. 1916, § 9460 [35 USCA § 63]), and the action taken was in accordance with the ruling of the Supreme Court of the United States in American Steel Foundries v. Robertson, 262 U. S. 209, 43 S. Ct. 541, 67 L. Ed. 953.
The application thus filed in the Patent Office set forth and alleged that the trademark sought to be registered was designed for use upon vehicle tires composed of rubber or rubber and fabric, the same being described as follows:
“The distinctive and distinguishing features of the trade-mark comprise a series of circumferentially disposed, outstanding blocks or elements, approximately diamond-shaped, and spaced by a series of grooves or lines which intersect each other at right angles, the blocks or elements being aligned on parallel cross-planes.
“The trade-mark is impressed or otherwise formed in the tread surface of the goods, or. by printing it on the cover, container, or wrapper of the goods, or by attaching to the goods or to the wrapping thereof a tag or label hearing the mark.”
The Patent Office rejected the application and denied the registration of the mark on the ground that the design was a part of the tire itself, and intended to prevent skidding of the tire, and that, while probably the tread of the tire had become so well known as to indicate the product of the applicant, this was immaterial, since there was no evidence to show that the design was originally adopted solely for trade-mark purposes. Prom this ruling of the Commissioner an appeal was taken to‘ the Court of Appeals of the District of Columbia (55 App. D. C. 400, 4 F. [2d] 1013), and that court affirmed the action of the Patent Office, saying in a memorandum opinion:
“The diamond-shaped projections, which appellant claims as a trade-mark, are clearly descriptive of the goods on which they are used, since they form a very essential part of the goods itself. In other words, these projections are molded on the face of a rubber tire, either to enhance the wear, or to prevent skidding, or both. Section 5 of the Trade-Mark Aet of 1905 [15 USCA § 85] among other things provides that ‘no mark, which consists merely in * * * devices which are descriptive of the goods with which they are used, * * * shall be registered.’ As suggested in brief of counsel for the Patent Office, ‘the most accurate way of describing an article is possibly by the article itself.’ ”
Notwithstanding these rulings, the complainant, in its hill filed in this cause pursuant to the provisions of the federal statutes aforesaid, insists that it is entitled to the relief prayed for, and urges that it is not seeking to register the article itself, that is, the tire, but only such portion thereof as is indicated by the petition, which is composed of a tread pattern of diamond-shaped rubber figures. It is apparent that the words use'd in the application actually describe the trademark sought to be registered, and that the same may be applied to anything without affording the slightest information as to its nature or quality. Section 5 of the TradeMark Act (33 Stat. p. 725, supra) contemplates that even the name of an individual may be a trade-mark, if written, printed, impressed, or woven in some particular or distinctive manner; and it has been decided that it is no objection to the validity of an otherwise good mark that it is impressed upon or inherent in the article manufactured, as in the ease of wat.er-marks upon paper, a word or symbol blown into a glass bottle or jar, or an arbitrary mark on the head of a horseshoe nail. Samson Cordage Works v. Puritan Cordage Mills (C. C. A.) 211 F. 603-605, L. R. A. 1915F, 1107, and cases cited therein.
A careful consideration of this ease demonstrates that complainant does not seek to register a certainly specified mark as an arbitrary symbol indicative, of origin of the product, apart from the tire itself, but a mark which, if not an essential, at least is an important, part thereof, that is to say, the outstanding diamond-shaped blocks disposed circumferentially upon the tire, so as to form the tread. In an attempt to register a trademark. applicable to automobile tires, the words “diamond-shaped tread” are manifestly descriptive of the goods. To adopt the diamond-shaped tread itself will not better convey the idea. The prohibition of section 5 of the Trade-Mark Act against the registration of descriptive words is unqualified, and does not authorize their registration, if adopted to indicate origin, or if publicly used for any particular period of time. No matter how long the use continues, the mark will never become a technical trade-mark. In this ease the appellant had long used its Goodyear tire. The diamohd tread, presenting a broken surface molded into rubber, does tend to prevent slipping and skidding; but that particular feature was not an essential element, since any rough or broken tread would have the same effect, and the size, shape, and arrangements of projections and impressions may vary within wide limits, without affecting their use or operation. Registration as a trade-mark under these circumstances would not cure its invalidity, because the inhibition against such registration is unqualified under section 5 of the Trade-Mark Act. Here we have an effort to register an alleged trademark, consisting of something which is a mechanically functional feature of an automobile tire, and not registerable at all, and is descriptive of the particular type of tire, the registration of which is expressly inhibited by the provisions of section 5.
Considering the question of the effect of the prohibition of section 5 against the registration of descriptive words, in Vacuum Oil Co. v. Climax Refining Co., 120 F. 254, 256, the Circuit Court of Appeals of the Sixth Circuit held such prohibition against registration of descriptive words to be absolute. Justice Lurton, speaking for the court, said that it does not authorize their registration, if adopted to indicate origin, or if publicly used for any particular period of time, and that, no matter how long the use continues, the mark will never become a technical trade-mark. At page 256 he said:
The “descriptive word or sign or symbol * * * may acquire a secondary significance denoting origin or ownership. * * * But this secondary significance is not protected as a- trade-mark, for a descriptive word is not the subject of a valid trade-mark; the only office of a trade-mark being to indicate origin or ownership. When a descriptive word * * * comes by adoption to have a secondary meaning, * * * its use in this secondary sense may be restrained, if it amounts to unfair competition. In such case, if the use of it by another be for the purpose of palming off the goods of one as and for the goods of another, a court of equity will interfere for the purpose of preventing such a fraud. But this kind of relief depends upon the facts of each case, and does not at all come under the rules applicable to the infringement of a trade-mark.” Vacuum Oil Co. v. Climax Refining Co. (C. C. A.) 120 F. 254, 256, supra.
To accept the doctrine contended for by the appellant would in effect enable one by means of registration of a trade-mark to secure a perpetual monopoly of something not patentable within itself. In re American Circular Loom Co., 28 App. D. C. 446; In re United States Tire Co., 44 App. D. C. 469; In re Barrett Co., 48 App. D. C. 586; Hood Rubber Co. v. Needham Tire Co., 48 App. D. C. 227; Putnam Nail Co. v. Dulaney, 140 Pa. 205, 21 A. 391, 11 L. R. A. 524, 23 Am. St. Rep. 228; Davis v. Davis (C. C.) 27 F. 490; Smith v. Krause (C. C.) 160 F. 270; Daniel v. Electric Hose & Rubber Co. (C. C. A.) 231 F. 827.
We have given careful consideration to the assignments of error presented by appellant, five in number, and the able arguments made in support of the assignments by counsel for appellant, as well as the authorities cited, and our conclusion is that the assignments are without merit, and that the arguments and authorities cited do not warrant us in arriving at a different result from that reached by the Commissioner of Patents, the Court of Appeals of the District of Columbia, and the court appealed from herein. Smithey v. Robertson, 299 F. 248, 250 (C. C. A. 4th Circuit); Hernandez v. Robertson, 16 F.(2d) 279 (C. C. A. 4th Circuit).
The decision of the District Court should therefore he affirmed.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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".
In re METZ.
(Circuit Court of Appeals, Second Circuit.
April 6, 1925.)
No. 280.
1. Bankruptcy <@=391(3) — Findings of state court of fraudulent conduct of bankrupt as officer of corporation in transferring funds, accepted by federal court.
Findings of state court, showing that debt arose from fraudulent conduct of bankrupt in transferring funds of corporation as officer within meaning of Bankruptcy Act, § 17 (Comp. St. § 9601), to his individual account, to render corporation insolvent, will be accepted by federal court on application to stay contempt proceedings.
2. Bankruptcy <S=426(2) ~ Judgment obtained against corporate officer misappropriating corporate property not dischargeable; “officer.”
Judgment obtained by judgment creditor of corporation against officer fraudulently misappropriating its money, for the purpose of making the corporation insolvent and unable to pay such judgment, was not a dischargeable debt, under Bankruptcy Act, § 17 (Comp. St. §-9601), excepting debts Created by fraud, embezzlement, misappropriation, or defalcation, while acting as an “officer,” as this includes officers of private corporations.
[Ed. Note. — For other definitions, see Words and Phrases, Officer.]
3. Bankruptcy <@=391 (3) — District Court should determine whether debt dischargeable before granting stay against contempt proceeding.
On application to the District Court for the Southern District of New York for stay under Bankruptcy Act, § 11 (Comp. St. § 9595), and Rev. St. U. S. § 720 (now Judicial Code, § 265 [Comp. St. § 1242]), restraining enforcement of contempt order of state court, under Judiciary Law N. Y. § 753, against one adjudged a bankrupt in the district of New Jersey, it was the court’s duty to determine whether debt wás dischargeable, and to inquire into nature of cause of action and the character of the judgment obtained, and with such knowledge to determine whether stay should be granted, and when debt w'as ^ot dischargeable it was improvident to grant stay on ground that question whether debt was dischargeable was one for the District Court of New Jersey to determine.
Petition to Revise Order of the District Court of the United States for the Southern District of New York.
In the matter of Gustave Metz, also known as Gus Hill, bankrupt. Petition of James J. Dealy to revise an order of the District Court for the Southern District of New York, which restrained the enforcement of a contempt order entered against the alleged bankrupt in the New York1 Supreme Court.
Order reversed.
Philip A. Walter, of New York City (David L. Podell, Herman Shulman, Jacob J. Podell, Mortimer Harp, and A. Kane Kaufman, all of New York City, of counsel), for petitioner.
M. Casewell Heine, of New York City (John A. Laird, of Newark, N. J., of counsel), opposed.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
MANTON, Circuit Judge.
On July 23, 1923, Dealy obtained a judgment in a tort action for personal injuries against a New York corporation known as Gus Hills, Inc. After affirmance, upon appeal to the Appellate Division of the Supreme Court of the state of New York, execution of judgment was returned unsatisfied. After examination, in supplementary proceedings to judgment, an action in equity was instituted against the alleged bankrupt for unlawful transfer and appropriation by him of the assets and property of the corporation known as Gus Hills, Inc. A judgment was entered for the plaintiff, which, upon the findings of fact, adjudicated that the bankrupt, wjfile an officer and director of the corporation, caused sums of money to be fraudulently transferred from the account of the corporation to himself, including the amount of the judgment in the tort action, and that this was done for the purpose of making the corporation insolvent and unable to pay its debt to the petitioner, and that in point of fact the corporation became insolvent by reason of such fraudulent transfer of funds. A receiver was appointed, and the bankrupt was directed to pay the amount of the judgment to such receiver. No appeal was taken from the interlocutory judgment thus entered, and the command of the decree was not complied with. After personal demand and refusal to pay over the money, a motion was made to adjudicate him in contempt of court for such refusal. This motion was granted on November 7,1923, and he was ordered to pay as a fine the amount of the judgment.
On October 26,1923, the alleged bankrupt filed a voluntary petition in bankruptcy in the District Court of the United States for the District of New Jersey, praying that he be adjudicated a bankrupt. On November 16, 1923, he applied for a reargument of the contempt order, which was subsequently denied. Thereupon an order was entered on December 15, 1923, adjudging the alleged bankrupt in contempt of court, under section 753 of the state Judiciary Law (Consol. Laws, c. 30), for defeating, impairing, impeding, and prejudicing the rights and remedies of the petitioner and the receiver of the corporation. It is the enforcement of this order which was stayed by the District Court. Below, as here, the first question presented is whether this was a debt which the bankrupt owed under the New York state decree, and, if so, was it dischargeable in bankruptcy? The court below decided that the question of whether it was a debt dischargeable in bankruptcy must be decided by the United States District Court for the District .of New Jersey, and for the purpose of keeping the status quo of the parties it restrained the petitioner from proceeding in the state court;.
Section 11 of the Bankruptcy Act (Comp. St. § 9595) permits the District Court to stay the state court proceedings, where the suit is founded upon a claim from which discharge in bankruptcy would be a release, and where suit is pending at the time of filing the petition. Such a stay may be granted until after an adjudication or dismissal of the petition. This is the exception contained in section 720 of the Revised Statutes of the United States (1 Comp. St. 1901, p. 581, now Judicial Code, § 265, being Comp. St. § 1242), which provides that a writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state. In re Koronsky, 170 F. 719, 96 C. C. A. 39, this court held, in considering the effect of the stay granted in an ex parte order in enjoining proceedings for the enforcement of a contempt order of the City Court of the City of New York, that fines are not dischargeable under the Bankruptcy Act, and pointed out that the punishment of an offender for contempt is a vindication of the dignity of the court, and does not lose its character as such because the statute authorizes the court to turn over the amount of the fine, when collected, to some person pecuniarily aggrieved by the offender’s misconduct. See, also, In re Spalding v. State of New York, 45 U. S. (4 How.) 21, 11 L. Ed. 858; In re Hall (D. C.) 170 F. 721.
Section 17- of the Bankruptcy Act (Comp. St. § 9601) provides that a discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in the fiduciary capacity. The findings in the state court in the equity suit conclusively show that the claim arose from the fraudulent conduct of the bankrupt in transferring the funds of the corporation, as an officer thereof, to his individual account, and it is further found that it was done solely for the purpose of rendering the corporation insolvent and unable to pay the petitioner’s debt. The findings of fact as to this fraud and its results will be accepted by us. Harper v. Rankin, 141 F. 626, 72 C. C. A. 320; In re Wollock (D. C.) 120 F. 516. Hill was the president, director, and principal stockholder of the corporation, and the transfer of the property, made in a voluntary way, as held in the state court, was made while he was acting in such capacity. The judgment obtained in the creditor’s action was not dischargeable in bankruptcy. It was based upon a liability of the bankrupt, created by his fraudulent misappropriation of the property of the corporation, and while he was acting as such officer of the corporation. He was an officer, as provided within section 17, for an officer there referred to includes within its meaning an officer of a private corporation. Harper v. Rankin, supra; In re Gulick (D. C.) 186 F. 350; Bloemecke v. Applegate (C. C. A.) 271 F. 595.
It therefore became the duty of the learned judge below to determine whether or not, under section 11 of the Bankruptcy Aet, the debt was dischargeable in bankruptcy, in passing upon the stay sought and obtained. This was not a matter of discretion. It was Ms duty to inquire into the nature! of the cause of action pending in the state court, the character of the judgment, so as to determine the facts upon which the decree in the state court was based (In re Lawrence [D. C.] 163 F. 131), and, after such knowledge, then to determine whether or not the application of the petitioner for a stay in the proceedings in the state court should be granted. The same duty rests upon an ancillary court in bankruptcy. In re United Wireless Telegraph Co. (D. C.) 192 F. 238. The stay was improvidently granted.
Order reversed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_casesource
|
072
|
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.
LAKE CARRIERS’ ASSN, et al v. MacMULLAN et al.
No. 71-422.
Argued March 22-23, 1972
Decided May 30, 1972
BreNNAN, J., delivered the opinion of the Court, in which Douglas, Stewart, White, and Marshall, JJ., joined. Black-mun, J., filed a statement concurring in the result, in which Rehnquist, J., joined, post, p. 513. Powell, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 513.
Scott H. Elder argued the cause for appellants. With him on the briefs was John A. Hamilton.
Robert A. Derengoski, Solicitor General of Michigan, argued the cause for appellees. With him on the brief were Frank J. Kelley, Attorney General, and Jerome Maslowski and Francis J. Carrier, Assistant Attorneys General.
Briefs of amid curiae urging reversal were filed by Robert A. Jenkins and Fenton F. Harrison for the Dominion Marine Assn., and by Nicholas J. Healy and Gordon W. Paulsen for Assuranceforeningen Gard et al.
Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Thomas F. Harrison and Philip Weinberg, Assistant Attorneys General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.
Mr. Justice Brennan delivered the opinion of the Court.
This is an appeal from the judgment of a three-judge District Court, convened under 28 U. S. C. §§2281, 2284, dismissing a complaint to have the Michigan Watercraft Pollution Control Act of 1970, Mich. Comp. Laws Ann. § 323.331 et seg. (Supp. 1971), declared invalid and its enforcement enjoined. 336 F. Supp. 248 (1971). We noted probable jurisdiction, 404 U. S. 982 (1971), and affirm the District Court’s determination to abstain from decision pending state court proceedings.
The Michigan statute, effective January 1, 1971, provides in pertinent part:
“Sec. 3. (1) A person [defined in § 2 (i) to mean “an individual, partnership, firm, corporation, association or other entity”] shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any... sewage [defined in § 2 (d) to mean “all human body wastes, treated or untreated”]... or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.
“(2) It is unlawful to discharge, dump, throw or deposit... sewage... from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state.
“Sec. 4. (1) Any pleasure or recreational watercraft operated on the waters of this state which is moored or registered in another state or jurisdiction, if equipped with a pollution control device approved by that jurisdiction, may be approved by the [State Water Resources Commission of the Department of Natural Resources] to operate on the waters of this state.
“(2) A person owning, operating or otherwise concerned in the operation, navigation or management -of a watercraft [defined in § 2 (g) to include “foreign and domestic vessels engaged in commerce upon the waters of this state” as well as “privately owned recreational watercraft”] having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices:
“(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dockside or onshore collection and treatment facilities.
“(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution.
“Sec. 8.... Commercial docks and wharfs designed for receiving and loading cargo and/or freight from commercial watercraft must furnish facilities, if determined necessary, as prescribed by the commission, to accommodate discharge of sewage from heads and galleys ;.. [of] the watercraft which utilize the docks or wharfs.
“Sec. 10. The commission may promulgate all rules necessary or convenient for the carrying out of duties and powers conferred by this act.
“Sec. 11. Any person who violates any provision of this act is guilty of a misdemeanor and shall be fined not more than $500.00. To be enforceable, the provision or the rule shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations.”
Appellees — the State Attorney General, the Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretary — read these provisions as prohibiting the discharge of sewage, whether treated or untreated, in Michigan waters and as requiring vessels with marine toilets to have sewage storage devices.
Appellants — the Lake Carriers’ Association and individual members who own or operate federally enrolled and licensed Great Lakes bulk cargo vessels — challenge the Michigan law on a variety of grounds. They urge that the Michigan law is beyond the State’s police power and places an undue burden on interstate and foreign commerce, impermissibly interferes with uniform maritime law, denies them due process and equal protection of the laws, and is unconstitutionally vague. They also contend that the Michigan statute conflicts with or is pre-empted by federal law, primarily the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970, and is therefore invalid under the Supremacy Clause. Under the Water Quality Improvement Act, the Administrator of the Environmental Protection Agency is directed “[a]s soon as possible, after April 3, 1970,... [to] promulgate Federal standards of performance for marine sanitation devices... which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters of the United States from new vessels and existing vessels, except vessels not equipped with installed toilet facilities.” 84 Stat. 100, 33 U. S. C. § 1163 (b)(1). These standards, which as of now are not issued, are to become effective for new vessels two years after promulgation and for existing vessels five years after promulgation. 84 Stat. 101, 33 U. S. C. § 1163 (c)(1). Thereafter, “no State... shall adopt or enforce any statute or regulation... with respect to the design, manufacture, or installation or use of any marine sanitation device on any vessel subject to the provisions of this section.” Id., § 1163 (f). However, “[u]pon application by a State, and where the Administrator determines that any applicable water quality standards require such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage (whether treated or not) into those waters of such State which are the subject of the application and to which such standards apply.” Ibid. Thus, the federal law appears to contemplate sewage control through on-board treatment before disposal in navigable waters, unless the Administrator provides on special application for a complete prohibition on discharge in designated areas.
The District Court below did not reach the merits of appellants’ complaint on the ground that “the lack of a justiciable controversy precludes entry of this Court into the matter.” 336 F. Supp., at 253¡ “An overview of the factual situation presented by the evidence in this case,” said the District Court, “compels but one conclusion:''that the plaintiffs here are seeking an advisory opinion... Ibid. The District Court also found “compelling reasons to abstain from consideration of the matter in its present posture,” ibid. — namely, “the attitude of Michigan authorities who seek the cooperation of the industry in the implementation of its program and have not instigated, nor does it appear, threatened criminal prosecutions,” id., at 252; the availability of declaratory relief in Michigan courts; the possibility of a complete prohibition on the discharge of sewage in Michigan’s navigable waters under federal law; the absence of existing conflict between the Michigan requirements and other state laws; and the publication of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute.
Appellants now urge that their complaint does present an “actual controversy” within the meaning of the Declaratory Judgment Act, 28 U. S. C. § 2201, that is ripe for decision. We agree. The test to be applied, of course, is the familiar one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941): “Basically, the question in each case is whether... there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Compare, e. g., ibid., with, e. g., Golden v. Zwickler, 394 U. S. 103 (1969). Since, as appellees concede, the Michigan requirements on the discharge of sewage will be preempted when the federal standards become effective, the gist of appellants’ grievance is that, according to Michigan authorities, they are required under Michigan law to install sewage storage devices that (1) may become unnecessary once federal standards, authorizing discharge of treated sewage, become applicable or (2) may, in any event, conflict with other state regulations pending the promulgation and effective date of the federal standards. The immediacy and reality of appellants’ concerns do not depend, contrary to what the District Court may have considered, on the probability that federal standards will authorize discharge of treated sewage in Michigan waters or that other States will implement sewage control requirements inconsistent with those of Michigan. They depend instead only on the present effectiveness in fact of the obligation under the Michigan statute to install sewage storage devices. For if appellants are now under such an obligation, that in and of itself makes their attack on the validity of the law a live controversy, and not an attempt to obtain an advisory opinion. See, e. g., Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945) (existing burden on interstate commerce justiciable controversy in absence of federal pre-emption or other conflicting state laws).
Regarding the present effectiveness in fact of a statutory obligation, the plurality opinion in Poe v. Ullman, 367 U. S. 497, 508 (1961), stated that a justiciable controversy does not exist where “compliance with [challenged] statutes is uncoerced by the risk of their enforcement.” That, however, is not this case. Although appellees have indicated that they will not prosecute under the Michigan act until adequate land-based pump-out facilities are available to service vessels equipped with sewage storage devices, they have sought on the basis of the act and the threat of future enforcement to obtain compliance as soon as possible. The following colloquy that occurred on oral argument here is instructive, Tr. of Oral Arg. 34-35:
“[Appellees]:... We urge that the leadtime for the construction or erection of pump-out facilities is necessary, and there would be no enforcement until pump-out facilities were available.
“Q. But you’re insisting that the carriers get ready to comply and-
“[Appellees]: Yes, sir.
“Q. —because if you wait until pump-out stations are ready to begin [servicing] tanks, then there will be another great delay?
“[Appellees]: Oh, yes, sir.
“Q. So you have a rather concrete confrontation with these carriers now, don’t you?
“[Appellees]: Yes, sir, we do....”
Thus, if appellants are to avoid prosecution, they must be prepared, according to Michigan authorities, to retain all sewage on board as soon as pump-out facilities are available, which, in turn, means that they must promptly install sewage storage devices. In this circumstance, compliance is coerced by the threat of enforcement, and the controversy is both immediate and real. See, e. g., Pierce v. Society of Sisters, 268 U. S. 510 (1925); City of Altus, Oklahoma v. Carr, 255 F. Supp. 828, aff’d per curiam, 385 U. S. 35 (1966). See generally, e. g., Comment, 62 Col. L. Rev. 106 (1962).
Appellants next argue that the District Court erred in abstaining from deciding the merits of their complaint. We agree that abstention was hot proper on the majority of grounds given by the District Court, but hold that abstention was, nevertheless, appropriate for another reason suggested but not fully articulated in its opinion. Abstention is a "judge-made doctrine..., first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U. S. 496, [that] sanctions... escape [from immediate decision] only in narrowly limited ‘special circumstances,’ Propper v. Clark, 337 U. S. 472, 492,” Zwickler v. Koota, 389 U. S. 241, 248 (1967), justifying “the delay and expense to which application of the abstention doctrine inevitably gives rise.” England v. Medical Examiners, 375 U. S. 411, 418 (1964). The majority of circumstances relied on by the District Court in this case do not fall within that category. First, the absence of an immediate threat of prosecution does not argue against reaching the merits of appellants’ complaint. In Younger v. Harris, 401 U. S. 37 (1971), and Samuels v. Mackell, 401 U. S. 66 (1971), this Court held that, apart from “extraordinary circumstances,” a federal court may not enjoin a pending state prosecution or declare invalid the statute under which the prosecution was brought. The decisions there were premised on considerations of equity practice and comity in our federal system that have little force in the absence of a pending state proceeding. In that circumstance, exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met. See generally Perez v. Ledesma, 401 U. S. 82, 93 (1971) (separate opinion).
Similarly, the availability of declaratory relief in Michigan courts on appellants’ federal claims is wholly beside the point. In Zwickler v. Koota, supra, at 248, we said:
“In thus [establishing jurisdiction for the exercise of] federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '... to guard, enforce, and protect every right granted or secured by the Constitution of the United States...,’ Robb v. Connolly, 111 U. S. 624, 637.”
Compare, e. g., Askew v. Hargrave, 401 U. S. 476 (1971). The possibility that the Administrator of the Environmental Protection Agency may upon Michigan’s application forbid the discharge of even treated sewage in state waters and the asserted absence of present conflict between the Michigan requirements and other state laws are equally immaterial. Just as they do not diminish the immediacy and reality of appellants’ grievance, they do not call for abstention.
The last factor relied on by the District Court — the publication of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute — does, however, point toward considerations that fall within the “special circumstances” permitting abstention. The paradigm case for abstention arises when the challenged state statute is susceptible of “a construction by the state courts that would avoid or modify the [federal] constitutional question. Harrison v. NAACP, 360 U. S. 167. Compare Baggett v. Bullitt, 377 U. S. 360.” Zwickler v. Koota, supra, at 249. More fully, we have explained:
“Where resolution of'the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.... The doctrine... contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534 (1965).
That is precisely the circumstance presented here. The Michigan Watercraft Pollution Control Act of 1970 has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars that go to the foundation of their grievance. It is indeed only an assertion by appellees that the Michigan law proscribes the discharge of even treated sewage in state waters. Section 3 (2) of the Act does state that “[i]t is unlawful to discharge... sewage... from a recreational, domestic or foreign watercraft used for pleasure or for [commerce]...,” and § 4 (2) does require vessels equipped with toilet facilities to have sewage storage devices. Yet §3(1) seemingly contemplates the discharge of treated sewage by merely prohibiting any person from emitting sewage '‘which [renders] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.” Moreover, § 11 provides that “[t]o be enforceable, the provision [of the Act] or the rule [presumably promulgated thereunder] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations.” Michigan has thus demonstrated concern that its pollution control requirements be sufficiently flexible to accord with federal law. We do not know, of course, how far Michigan courts will go in interpreting the requirements of the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act and the constraints of the United States Constitution. But we are satisfied that authoritative resolution of the ambiguities in the Michigan law is sufficiently likely to avoid or significantly modify the federal questions appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations that we have found compelling in prior decisions. See, e. g., Harman v. Forssenius, supra, at 537; Baggett v. Bullitt, 377 U. S. 360, 378-379 (1964).
In affirming the decision of the District Court to abstain, we, of course, intimate no view on the merits of appellants’ claims. We do, however, vacate the judgment below and remand the case to the District Court with directions to retain jurisdiction pending institution by appellants of appropriate proceedings in Michigan courts. See Zwickler v. Koota, 389 U. S., at 244 n. 4.
It is so ordered.
Appellants also contend that the Michigan law is pre-empted by the Steamboat Inspection Acts of Feb. 28, 1871, 16 Stat. 440, and of May 27, 1936, 49 Stat. 1380, as amended, 46 TJ. S. C. § 361 et seq. An amicus curiae, moreover, presses the contention, suggested in appellants’ complaint, that the Michigan law conflicts with the United States-Canadian Boundary Waters Treaty of 1909, 36 Stat. 2448, as well as enters into the domain of foreign affairs constitutionally reserved to the National Government. See Brief of Dominion Marine Association amicus curiae.
The authority to administer the Water Quality Improvement Act, originally lodged in the Secretary of the Interior, was transferred to the Administrator of the Environmental Protection Agency by Reorganization Plan No. 3 of 1970, set out in the Appendix to Title 5 of the United States Code.
“Sewage” is defined under the Act to mean “human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes.” 84 Stat. 100, 33 U. S. C. § 1163 (a)(6).
A notice of proposed standards was, however, published on May 12, 1971. See 36 Fed. Reg. 8739.
The District Court also noted that “[w]ith regard to pre-emption, the Supreme Court in Swift & Co. v. Wickham, 382 TJ. S. Ill [1965], held that Supremacy Clause cases are not within the purview of a three judge court.” 336 F. Supp., at 253. Appellants correctly point out that in reinstating that rule, Wickham made clear that a three-judge court is the proper forum for all claims against the challenged statute so long as there is a nonfrivolous constitutional claim that constitutes a justiciable controversy and warrants, on allegations of irreparable harm, consideration for injunctive relief. See 382 U. S., at 122 n. 17, 125. Indeed, that was the explicit holding in Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, 80-81 (1960), re-affirming prior cases. It is clear that appellants’ complaint satisfies this test if the constitutional issues raised are justiciable controversies. Since we hold, infra, that they are, three-judge court jurisdiction exists over all of appellants’ claims, including the Supremacy Clause issues.
The Michigan authorities have so far generally refrained from prosecution because adequate land-based pump-out facilities are not yet available to service vessels equipped with sewage storage devices. See infra, at 507-508. After oral argument here, the Solicitor General of Michigan informed us “that local officials in Cheboygan County, Michigan, have ‘ticketed’ a Coast Guard Captain for discharging sewage into the waters of the Great Lakes.” However, “to assure the Court that Michigan will not depart from the representations it has made to the Court,” the Solicitor General stated that he is “taking immediate steps to quash the charge or have the local court stay its hand until” the decision here.
Michigan has filed an application with the Administrator of the Environmental Protection Agency for a prohibition under 33 U. S. C. § 1163 (f) on the discharge of any sewage, treated or untreated, into all of the State’s waters subject to the Water Quality Improvement Act. The Administrator has indicated that any no-discharge regulation issued will not become effective before the effective date of the initial standards promulgated under § 1163 (b) (1). See 36 Fed. Reg. 8739-8740. Appellants argue that the Administrator’s authority to issue no-discharge regulations is narrow and could not encompass a complete prohibition on discharge throughout Michigan’s navigable waters. Since we find, infra, that the possibility of such a prohibition is immaterial to the issues answered here, we need not now decide this question.
Appellants contend in this regard that the laws of other States dealing with the discharge of sewage are critically different from the Michigan statute in various respects. This question, too, we need not address, since we find, infra, that the presence or absence of conflicting state requirements is irrelevant.
See n. 4, supra.
Although appellees took an equivocal position on this question in oral argument here, see Tr. of Oral Arg. 36-39, the District Court below expressly found such a concession, see 336 F. Supp., at 255, and appellees repeated the concession in opposing appellants’ jurisdictional statement. See Brief in Support of Motion to Dismiss or Affirm 11. In any event, the terms of the Water Quality Improvement Act are clear that pre-emption occurs at least when the initial federal standards promulgated under the Act become effective. See 33 U. S. C. § 1163 (f), quoted in part, supra, at 503-504. See also 36 Fed. Reg. 8739-8740.
Appellees stressed in oral argument here that “[t]he provision for pump-out facilities is no great mechanical accomplishment.” Tr. of Oral Arg. 35. This only reinforces the conclusion that appellants must, according to Michigan authorities, quickly get into a position to comply with the Michigan statute.
In coming to a contrary conclusion, the District Court relied heavily on Public Serv. Comm’n v. Wycoff Co., 344 U. S. 237 (1952), where we held that declaratory relief was inappropriate in behalf of a carrier seeking a determination that its intrastate transportation constituted interstate commerce. The District Court’s reliance on that decision was misplaced. As the Court said in California Comm’n v. United States, 355 U. S. 534, 538-539 (1958), Wycoff Co. was a case “where a carrier sought relief in a federal court against a state commission in order 'to guard against the possibility,’ [344 U. S.], at 244, that the Commission would assume jurisdiction.” Here, as in California Comm’n, the confrontation between the parties has already arisen, and “[t]he controversy is present and concrete.” 355 U. S., at 539.
The question of abstention, of course, is entirely separate from the question of granting declaratory or injunctive relief. See generally Golden v. Zwickler, 394 U. S. 103 (1969); Zwickler v. Koota, 389 U. S. 241 (1967).
We assume that these provisions apply to
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211. Court of Private Land Claims
Answer:
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songer_respond2_4_2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Dawn L. BOYKINS, a minor by Louis Boykins, Jr., her father and next friend, Appellant, v. AMBRIDGE AREA SCHOOL DISTRICT, Ambridge Area School District Board of Education, Dr. Paul R. Vochko, Individually and as Superintendent of Schools and Mary Frances Buk, Individually and as sponsor and coach, Appellees.
No. 79-2027.
United States Court of Appeals, Third Circuit.
Argued Feb. 19, 1980.
Decided May 9, 1980.
David B. Washington (argued), Pittsburgh, Pa., for appellant.
Michael V. Gilberti (argued), Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellee Dr. Paul R. Vochko.
Before GIBBONS and ROSENN, Circuit Judges, ánd SHAPIRO, District Judge.
Honorable Norma L. Shapiro, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Dawn L. Boykins, a minor suing by Louis Boykins, Jr., her father and next friend, appeals from an order granting a final judgment in favor of the defendants on their motion for summary judgment. The defendants are a school district board of education, the district superintendent, and the coach of a drill team organized as a school activity. Boykins charged she was dismissed from the team because she was black. We reverse.
I.
On May 4, 1976 the Boykins filed a verified Complaint alleging that Dawn, a black student attending the Ambridge Area School District high school, had on August 28, 1975 been dismissed as a member of the Bridger Belles, a drill team conducted as a school activity. The Complaint further alleged that although the ostensible reason for her dismissal was that, in violation of drill team regulations, she had missed practice for the sixth time, the actual reason for her dismissal was that she was black. It alleged, further, that she appealed to the School Board, which on September 9, 1975 ordered her reinstatement. Attached to the Complaint as Exhibit A is a copy of the School Board’s September 10, 1975 decision, which notes an inconsistency in the method in which two cases of absence, involving one black student and one white student, were handled; a further inconsistency in the rules permitting excused absence for vacation but not for scheduled work; the fact that the school superintendent had ruled, following Dawn’s fifth absence, that she would be in compliance if she attended all sessions of Band Camp practice, which she had done; and the fact that the sixth absence was not from a regularly scheduled practice session, but from one scheduled on only a few hours’ notice and at a time when she was scheduled to work. The Complaint further alleges that on September 11, 1975, the Board, faced with a threatened resignation of Mrs. Mary Frances Buk, the coach/sponsor of the drill team, changed its position, withdrew its direction to reinstate Dawn, and ruled that the coach/sponsor had the prerogative of choosing her participants. It alleges, further:
The changing of the Board’s position and the action of the coach/sponsor was done because plaintiff was black and even though all parties knew that white girls had been reinstated who actually missed six (6) days of practice.
The defendants’ actions were alleged to be in violation of 42 U.S.C. § 1983 and § 1985. The only relief requested was damages.
In due course the defendants, the School District Board of Education, the Superintendent of Schools, and the coach/sponsor, Mrs. Buk, filed answers.
II.
On June 30, 1977 Louis Boykins, Jr., was deposed. His deposition, on file, discloses that at one time the local chapter of the NAACP, concerned that the school did not select black cheerleaders or drum majorettes, suggested the formation of a drill team which would give girls of minority races greater opportunity to participate. At that time, according to his testimony, there were no black girls on the majorette squad or the cheerleading squad. When the drill team was formed Dawn tried out and qualified. Thereafter, according to Mr. Boykins, Mrs. Buk interrogated Dawn about the activities of the NAACP with respects to charges of discrimination in the selection of drum majorettes and cheerleaders. He described the interrogation as a grilling. Mrs. Buk, he testified, was also a coordinator of cheerleaders and majorettes. The drill team scheduled practices during the summer evenings when Dawn, like the other Boykins children, had a part time summer job. Boykins testified that Mrs. Buk caused other members of the drill team to check at Friendly Ice Cream to see if Dawn was actually working when she claimed to be. Eventually Dawn told her father that she had been threatened by Mrs. Buk with dismissal for missing practices, but disputed the number of times she actually had missed practice. Boykins met with Mrs. Buk, who was adamant in her position about attendance despite any conflict with Dawn’s work schedule. Boykins then called the president of the school board, who in turn called the superintendent of schools, Dr. Vochko, who said “Well, tell Lou that any problem just as long as Dawn does not miss any practices for band camp, . [s]he should have no problem.” Band Camp was a two week period of morning and afternoon sessions, all of which Dawn attended. On a Wednesday Mrs. Buk, at midday, came to Band Camp and told the drill team members that they would have to come to an additional practice session that evening, when, as Mrs. Buk knew, Dawn was scheduled to work. When his daughter asked him whether she should go to work Boykins, in reliance on what the superintendent had said about attending all Band Camp sessions, told her to do so. The next morning Dawn attended Band Camp, and at noon was told by Mrs. Buk that she was dismissed from the drill team. Boykins called Dr. Vochko, who, he says, instructed Mrs. Buk, and Mr. Tolfa, the band director, to put Dawn back on the team. However, when Dawn returned to practice she was excluded. Boykins also testified:
There was a young lady, Terry Kashuba, who had missed drill team practice during school. Mrs. Buk dismissed Terry Kashuba because of this. After Mrs. Buk dismissed Dawn, said she didn’t want Dawn, she then brought Terry Kushuba back on the drill team, says, “You’re back on.”
Terry Kashuba is white.
Thereafter the school board meeting of September 10,1975, referred to in the Complaint, took place, and Boykins was advised, first of the board’s favorable decision and later of its change of position. By then school had reopened, and in the high school a regular activities period was scheduled, during which practice for activities such as band, football and drill team took place. For two or three weeks while the drill team practiced, Dawn was placed in an unattended classroom by herself. Boykins’ deposition was filed on July 22, 1977.
III.
On December 23, 1977 defendant Vochko filed a motion for summary judgment. The motion was not supported by any affidavits. It asserts two grounds for dismissing the Complaint. The first is that on December 3, 1975 plaintiffs presented a Complaint, identical in all particulars to the instant Complaint, to the Pennsylvania Human Relations Commission, at Docket No. P-1172; that hearings were held on that Complaint; that the Commission found there was insufficient basis for a finding of discrimination; that no appeal was taken from the Commission’s judgment; and that the instant case is barred by collateral estoppel or res judicata. The second ground asserted is that the Complaint is insufficiently specific to meet the pleading standards of this court for civil rights actions. Vochko’s moving papers did not contain any pleadings, transcript of proceedings, or orders of the Pennsylvania Human Relations Commission, but attached a letter dated September 23, 1977 from the Executive Director of the Commission to the attorneys for the school board, describing the decision of the Commission. The letter says that the Commission determined that the Boykins’ charge was not substantiated. Nowhere in the moving papers, however, is there any disclosure of the inquiry which prompted the Executive Director’s September 23, 1977 letter, or any disclosure of his authority to certify what the Commission decided.
In response to the Vochko motion for summary judgment the Boykins’ attorney, on January 16, 1978, filed an answer. Like the motion, it is not supported by an affidavit. It does, however, deny unequivocally that the Human Relations Commission ever conducted a hearing on the merits, or made a ruling on the merits. Furthermore, attached as an exhibit to the answer is a letter from Cheryl L. Allen, Assistant General Counsel to the Commission, dated March 15,1977, advising the Boykins’ attorney:
RE: Docket No. P-1172
Louise Boykins v. Ambridge Area School District Dear Mr. Washington:
This is to confirm our recent telephone conversation regarding further Commission action in the above case.
This case will be closed for the following reasons:
1. As the Complainant’s daughter will graduate in June, 1977, a public hearing obtaining an order to reinstate her to the drill team would be inappropriate.
2. The Commission presently does not have the power to order compensatory damages in this case.
I hope that this adequately states our position on this matter.
For further information, please contact me.
The Assistant General Counsel’s statement that the Human Relations Commission cannot order compensatory damages accurately reflects Pennsylvania law. Lee v. Walnut Garden Apartments, Inc., 479 Pa. 142, 144, 387 A.2d 875, 876 (1978) (per curiam); Midland Heights Homes, Inc. v. Commonwealth of Pa. Human Relations Comm’n, 478 Pa. 625, 626, 387 A.2d 664, 664 (1978) (per curiam); Pennsylvania Human Relations Comm’n v. Straw, 478 Pa. 463, 465, 387 A.2d 75, 76 (1978); Pennsylvania Human Relations Comm’n v. Zamantakis, 478 Pa. 454, 457-59, 387 A.2d 70, 72-73 (1978). The only relief requested in the instant action is damages.
Although the Boykins’ answer to the motion for summary judgment was filed on January 16, 1978, that motion was not disposed of immediately. The case was pretried on April 24, 1979, and on May 1, 1979 all defendants filed a new motion for summary judgment identical in every respect to that filed in December 1977 by defendant Vochko. As before, there were no supporting affidavits. There was then on file not only the verified Complaint and the answer to the Vochko motion, but also the Boykins deposition.
On May 30, 1979, the district court granted the motion for summary judgment. The Court listed five reasons:
(1) Dawn’s graduation rendered the case moot;
(2) the incident complained of was not racially motivated;
(3) the drill team activity was that of a private social organization managed by “fans;”
(4) the decision of the Pennsylvania Human Relations Commission adjudicated the charge of racial discrimination adversely to the plaintiffs; and
(5) the complaint lacked the specificity required for a civil rights act case.
This appeal followed.
IV.
On appeal the defendants do not defend the first three reasons relied upon by the District Court. They acknowledge that Dawn’s graduation did not moot her claim for money damages, that no affidavit put in issue the allegations of racial motivation, and that the drill team was an activity sponsored by the school district’s high school. They do contend that an affirmance is proper for either of the remaining grounds. We do not agree.
We turn first to the claimed judgment preclusion effect of the decision of the Pennsylvania Human Relations Commission. On the papers before the court it is impossible to tell what, if anything, the Commission decided. All that the record contains on that issue is two conflicting letters, one from the Commission’s Assistant General Counsel and another from its Executive Director. One letter says there was no hearing and the other, while not saying in as many words that there was a hearing, says that the Commission concluded that there were insufficient facts to support the charge of discrimination. If the motion for summary judgment, unsupported by an affidavit, and resting on a copy of a letter describing in conclusory terms the legal effect of the Commission proceeding, was sufficient, under Fed.R. Civ.P. 56, to require any response, certainly the answer containing the conflicting letter from the Commission’s Assistant General Counsel presented a disputed issue of fact. Moreover even if the actual record of the Commission proceedings had been presented there would be difficulties with a summary disposition. As we noted above, the Supreme Court of Pennsylvania has established beyond doubt that the Commission lacks jurisdiction to award compensatory damages, the relief sought here. Certainly the claims were not the same. Thus res judicata can hardly apply. Moreover the Pennsylvania Supreme Court has narrowly circumscribed the discovery tools available in proceedings before the Commission. Pennsylvania Human Relations Comm’n v. St. Joe Minerals Corp., 476 Pa. 302, 310-12, 382 A.2d 731, 735 (1978). Considering those limitations on discovery, we have no idea what collateral estoppel effect a Pennsylvania court would give to a Commission order. The defendants at oral argument candidly acknowledged that there is no case law illuminating that question. Cf. City of Philadelphia v. Stradford Arms, Inc., 1 Pa. Cmwlth. 190, 274 A.2d 277, 280 (1971). Certainly we would not give greater judgment preclusive effect to a Commission proceeding than would Pennsylvania. See 28 U.S.C. § 1738. Whether we would give any judgment preclusion effect to a state administrative agency proceeding in a suit under 42 U.S.C. § 1983 is at least an open question. See Prentis v. Atlantic Coast Line, 211 U.S. 210, 226-27, 29 S.Ct. 67, 69, 63 L.Ed. 150 (1908) (distinguishing between legislative and adjudicative functions; legislative-type proceedings of state administrative agency not entitled to res judicata effect); cf. Moore v. City of East Cleveland, 431 U.S. 494, 524 n.2, 97 S.Ct. 1932, 1948, 52 L.Ed.2d 531 (1977) (Burger, C. J., dissenting) (because state administrative agency’s determinations have no collateral estoppel effect, requiring exhaustion would not limit access to federal forum); Wooley v. Maynard, 430 U.S. 705, 710-11, 97 S.Ct. 1428, 1432-33, 51 L.Ed.2d 752 (1977) (suggesting state conviction no bar to federal litigation); Huffman v. Pursue, Ltd., 420 U.S. 592, 606 n.18, 95 S.Ct. 1200, 1209, 43 L.Ed.2d 482 (1975) (“we in no way intend to suggest that the normal rules of res judicata and judicial estoppel do not operate to bar relitigation in actions under 42 U.S.C. § 1983 of federal issues arising in state court proceedings”). Compare In re Federal Water & Gas Corp., 188 F.2d 100, 104 (3d Cir.) (quasi-judicial determinations of administrative agency are entitled to res judicata effect), cert. denied sub nom. Chenery Corp. v. SEC, 341 U.S. 953, 71 S.Ct. 1018, 95 L.Ed. 1375 (1951) with Roudebush v. Hartke, 405 U.S. 15, 20-21, 92 S.Ct. 804, 808, 31 L.Ed.2d 1 (1972) (federal courts can review legislative acts of state courts and administrative agencies) and FTC v. Texaco, Inc., 555 F.2d 862, 894 (D.C.Cir.) (Leventhal, J., concurring) (individualized rate-making decisions of state administrative agencies have no res judicata effect), cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). See generally K. Davis, Administrative Law Text §§ 18.02, 18.03 (1972). Certainly the record on which the district court acted is not one compelling us to jump into so difficult an area. We should have before us something more establishing the affirmative defense relied upon than two conflicting letters.
As to the specificity required in a Civil Rights Act Complaint, the currently governing authority is Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978). There we held plaintiff’s Complaint met the pleading standard of Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976) when it “alleged the conduct violating his rights (racially discriminatory activity), time (March 17, 1976), place (King of Prussia) and those responsible (various state and bank officials).” Hall v. Pennsylvania State Police, 570 F.2d at 89. The instant Complaint amply meets the Hall test. It alleges the conduct, expulsion from the drill team, the improper racial motive, the times and places of the activity complained of, and the persons responsible, Mrs. Buk, Dr. Vochko, and the members of the School Board. From the facts alleged we can weigh the substantiality of the claim. No more is required. See Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1171-73 (3d Cir. 1978). Moreover the Complaint was fleshed out in this case by an extensive deposition.
V.
The order granting summary judgment will be reversed and the case remanded for further proceedings.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
BRIGGS & STRATTON CORPORATION v. QUICK ACTION IGNITION CO.
No. 6271.
Circuit Court of Appeals, Seventh Circuit.
Nov. 4, 1937.
Rehearing Denied Dec. 14, 1937.
Ira Milton Jones, of Milwaukee, Wis., and George A. Chritton and Richard Spencer, both of Chicago, 111., for appellant.
N. S. Amstutz, of Valparaiso, Ind., and John G. Yeagley and J. Walter Yeagley, both of South Bend, Ind., for appellee.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Sought to be reversed is a decree finding valid and infringed claims 7 and 8 of patent No. 1,275,294 and claim 3 of patent No. 1,338,151, both assigned to appellee by the inventor Oglesby. The first is for "a combined internal combustion engine and magneto,” and the second, “detachable magneto-armature heads and core.” The claims appear in the footnote. •
Oglesby’s device of patent No. 1,275,-294, had to do with a magneto attached to and combined with an internal combustion engine. The application was dated January 5, 1917, and the grant, August 13, 1918. The suit included claims 1 to 6 of the first patent, as well as claims 7 and 8, but the District Court refused to grant relief upon all except 7 and 8. Appellant insists that the patent is anticipated by prior patents and uses, and that, in view of the existing prior art, only mechanical skill was involved in devising the combination claimed.
Claims 7 and 8 of patent No. 1,275,294 describe a combination of the prior art flywheel magneto applied to the well known crankcase of an internal combustion engine (Múeller 1,147,038), centered and mounted upon the front of the crankshaft of such case. Flywheel magnetos were old, but appellee claims that Oglesby achieved more efficient operation at low speed and greater ease of assembling. Specifically it relies upon the combination of a crankcase wherein the rotating shaft carries a removable end plate, which also serves as a bearing for the shaft, an armature on the plate, a circuit breaker and condenser “placed adjacent thereto” or “supported on the crankcase end plate, adjacent the path of travel” of a field magnet, adapted to pass by the armature, and a cam carried by the shaft for operating the circuit breaker to produce periodic currents of an undirectional character in the armature coil as the shaft is revolved. This, it says, is a combination both novel and useful, constituting a product of inventive genius.
Claims 7 and 8 differ from claims 1 and 6, upon which the court refused to grant relief, only by adding the circuit breaker and operating it by means of a cam carried by the shaft, and a careful analysis of the evidence convinces us that the claim for distinction between Oglesby and the prior art must lie chiefly in the alleged addition of this element. Mueller, in patent No. 1,-147,038, built a unitary compact fly-wheel magneto mounted upon the crankshaft, but he did not provide that the plate upon which the magneto was mounted should be utilized also as the end plate of the crqnk case. He recognized that the generator type flywheel magneto for internal combustion engines was old in the'art and alleged that he was endeavoring to simplify the structure, reduce the cost of construction, and more fully to expose the timer mechanism and electrical connections, whereby repairs and readjustments might be facilitated. He placed the magneto at the end of the crankshaft, but he did not, as Oglesby did, substitute for the conventional crankcase end plate, the outer surface of the magneto container. He specified that, in his combination there should be used “a circuit interrupter,” but he did not use the specific construction or location of Oglesby. We are convinced that all that Oglesby did was to take Mueller’s crankcase and mount it on the crankcase so as to obviate the use of the conventional end plate by substituting in lieu thereof the old mounting plate of flywheel magnetos, such as Mueller, and relocate the circuit breaker. Apparently all that a skilled mechanic dealing in the art, with Mueller before him, needed to do, in applying the flywheel magneto of Mueller to the conventional internal combustion engine crankshaft, was to make these changes. The elements of both magnetos are the same, and the results obtained are identical.
Nor was Mueller the first to mount his magneto upon the end of the crankcase. Podlesak, 948,483, application filed 1901, mounted a magneto in the flywheel of the engine at the head of the crankcase and provided a make and break ignition mechanism accomplishing the interruption to the current by the use of a cam oscillated and retained in any desired position of adjustment. This make and break connection, he said, might “be of any well known and suitable construction.”
Oglesby was delving in an active and rather crowded art, and the question arises, Did he make a combination, similar to those which existed previously, performing the same functions that those .performed, of such greater facility, ease, and simplicity as to constitute invention? Is what he did anything more than what would have occurred to any ordinary skilled engineer with the prior art before him?. .We think not.
We think that the most that can be said is that he gave a somewhat different form to a familiar combination, using the same elements, without achieving from them any new functions and without accomplishing any new result; that he merely carried forward the original thought by eliminating one plate on the end of a crankshaft and by a slightly different location of the recognized essential circuit breaker. These two changes it seems to us did not involve invention. They were rather a mechanical readaptation of familiar devices.
We have not mentioned the prior uses. The testimony of both parties as to the dates of conception of respective devices is based largely upon oral testimony as to what occurred more than 15 years before without substantiating documentary evidence. Oglesby testified originally that his date of conception was in 1917. He subsequently changed his story and offered the testimony of other witnesses, depending entirely upon their personal recollection, to carry his date back to early 1915. Appellant produced rather convincing testimony of a prior use of what, to our thinking, constitutes an anticipatory device by Evinrude, but again the testimony is almost wholly dependent upon the parol testimony of witnesses as to personal recollection of long past events. If Evinrude was first, as we are inclined to believe, for it was certain that his device was conceived in the fall of 1914 and the very first of 1915, his teachings were clearly anticipatory of everything that Oglesby did. The location of the circuit breaker was not the same, but with the recognition of the essential presence of a circuit breaker, its location again was a matter of the exercise of mere mechanical skill. However, in reaching our conclusion we have not grounded it upon the alleged prior uses. It is not necessary to do so in view of our conclusions as to the effect of the prior art in the way of prior patents.
Courts are loathe to ground final decisions as to priority upon the parol testimony of witnesses, many of whom are related by consanguinity or other ties, as to events having to do with the precise and detailed construction of a specific electrical combination some twenty years ago. Consequently we have preferred to base our conclusion upon the documentary evidence rather than upon the parol testimony.
In patent No. 1,338,151, Oglesby claimed that he had created an improvement in a magneto core structure which included duplicate laminae groupings adapted to be interlaced so as to permit prewinding of the coil apart from the core assembly and the duplicate laminae groupings then assembled with the coil and, when assembled, forming a winding space in which the coil is received, which space is “between and beneath the heads.” The claim includes the word “beneath.” In our opinion it was inadvertently included and should be given no effect. But we are further of the opinion that British patent No. 14,732 of 1902 discloses a structure so similar to that of Oglesby as to be identically equivalent thereto. In each are armature arms; in each, winding of a coil on a space between the armatures, which are open at the opposite side of the device. If we were to give any effect to the word “beneath,” clearly the device of appellant would not come within the teaching of the patent. But, ignoring that word, we are unable to perceive that there is any invention in this patent. If it should be held valid, there is no infringement.
The decree of the District Court is reversed, with directions to proceed in accord with this opinion.
Claims 7 and 8 of patent No. 1,275,-294. Claim 7 — In internal combustion engines, a crankcase, a shaft rotatable therein, a removable end plate for said case also serving as a bearing for shaft, an armature supported by the plate, a circuit breaker and condenser placed adjacent thereto, a field magnet attached to the shaft adapted to pass by the armature, and a cam carried by the shaft for periodically operating the circuit breaker as the shaft is revolved.
Claim 8 — In internal combustion engines, a crankcase, a removable and plate therefor, a crankshaft rotatable therein, a fly wheel a field magnet and cam carried by the shaft, an armature comprising a coil connected to a circuit breaker and condenser supported on the crankcase and plate adjacent the path of travel of the field magnet, and adapted through such rotation to have periodic currents generated in its coil and the circuit breaker actuated by the cam as the shaft revolves.
Claim 3 of patent No. 1,338,151. An article of manufacture comprising a combined magnet core and curved head lamination formed integrally with each other, similarly formed duplicate laminae assembled adjacent each other to constitute a group, independently formed head laminae similarly curved and assembled adjacent the other heads to constitute a half-core unit, duplicate core and head parts constituting a second group, similarly shaped, curved heads assembled with the heads of the second group, to also constitute a half-core unit both units being assembled together so as to form a winding space between and beneath the heads.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
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songer_applfrom
|
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).
UNITED STATES of America, Appellee, v. SOCIETY OF INDEPENDENT GASOLINE MARKETERS OF AMERICA, Appellant. UNITED STATES of America, Appellee, v. AMERADA HESS CORPORATION, Appellant. UNITED STATES of America, Appellee, v. ASHLAND OIL, INC., Appellant. UNITED STATES of America, Appellee, v. KAYO OIL COMPANY, Appellant. UNITED STATES of America, Appellee, v. The MEADVILLE CORPORATION, Appellant. UNITED STATES of America, Appellee, v. PETROLEUM MARKETING CORPORATION, Appellant. UNITED STATES of America, Appellee, v. Robert R. CAVIN, Appellant.
Nos. 77-2515 to 77-2521.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1979.
Decided December 26, 1979.
Upon Rehearing June 24, 1980.
Widener, Circuit Judge, filed concurring opinion.
K. K. Hall, Circuit Judge, filed opinion in which he dissented in part.
Wilbur D. Preston, Jr., Baltimore, Md. (Nevett Steele, Jr., Gerson B. Mehlman, Whiteford, Taylor, Preston, Primble & Johnston, Baltimore, Md., A. T. Biggers, Continental Oil Company, Houston, Tex., on brief), for appellant Kayo Oil Company.
John H. Lewin, Jr., Baltimore, Md. (Benson E. Legg, Venable, Baetzer & Howard, Baltimore, Md., Adlai S. Hardin, Jr., Mil-bank, Tween, Hadley & McCloy, New York City, Howard B. Myers, Amerada Hess Corporation, Woodbridge, N. J., on brief), for appellant Amerada Hess Corporation.
William Simon, Washington, D. C. (Ray S. Bolze, Roger C. Simmons, Howrey & Simon, Washington, D. C., Robert H. Compton, Ashland Petroleum Company, Ashland, Ky., on brief), for appellant Ashland Oil, Inc.
Robert E. Nagle, Donald T. Bucklin, Washington, D. C. (Wald, Harkrader & Ross, Washington, D. C., on brief), for appellant Robert R. Cavin.
David F. Albright, Baltimore, Md. (Richard M. Kremen, Franklin T. Caudill, Seemes, Bowen & Semmes, Baltimore, Md., on brief), for appellant Petroleum Marketing Corporation.
Philip L. Cohan, David Freeman, Ginsburg, Feldman & Bress, Washington, D. C., on brief, for appellant The Meadville Corporation.
David A. Donohoe, Jay D. Zeiler, Akin, Gump, Strauss, Hauer & Feld, Washington, D. C., on brief, for appellant Society of Independent Gasoline Marketers of America.
Frederic Freilicher, John J. Powers, III, Dept, of Justice, Washington, D. C. (John H. Shenefield, Asst. Atty. Gen., Rodney O. Thorson, James F. Ponsoldt, Dept, of Justice, Washington, D. C., on brief), for appel-lee, United States of America.
Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.
FIELD, Senior Circuit Judge:
On June 1, 1976, an indictment was returned in the District of Maryland against The Society of Independent Gasoline Marketers of America (“SIGMA”), Amerada Hess Corporation (“Hess”), Ashland Oil, Inc. (“Ashland”), Continental Oil Company (“Continental”), Crown Central Petroleum (“Crown”), Kayo Oil Company (“Kayo”), The Meadville Corporation (“Meadville”), Petroleum Marketing Corporation (“PMC”), Robert R. Cavin (“Cavin”), Norman Goldberg (“Goldberg”), Charles J. Luellen (“Luellen”) and W. H. Burnap (“Burnap”). The indictment, drawn in one count, charged that the defendants had violated Section 1 of the Sherman Act, 15 U.S.C. § 1, prior to its 1974 amendments, by engaging in a conspiracy to fix prices for the retail sale of gasoline in unreasonable restraint of commerce.
After extensive pretrial proceedings, the trial commenced on May 2, 1977, and at the conclusion of the Government’s case the district court granted the motions of three of the individual defendants, Luellen, Goldberg and Burnap, for judgments of acquittal. The trial continued as to the remaining defendants, and on August 30, 1977, the jury returned verdicts of not guilty with respect to Crown and Continental and guilty as to SIGMA, Hess, Ashland, Kayo, Meadville, PMC and Cavin. Judgments of conviction were entered pursuant to the jury’s verdicts and the convicted defendants have appealed.
In an opinion filed December 26,1979, the panel unanimously affirmed the convictions of all of the defendants except Ashland. Similarly, the panel unanimously reversed the conviction of Cavin. With respect to Ashland, a majority of the panel affirmed the conviction, Judge Widener dissenting. Petitions for rehearing and rehearing en banc were filed, and upon the suggestion that the case be reheard en banc less than a majority of the judges in regular active service voted in favor thereof. Accordingly, rehearing en banc is denied. On the petitions for rehearing, however, a majority of the panel are now of the opinion that the conviction of Ashland must be reversed. Additionally, the panel is of the opinion that our disposition of Cavin’s appeal must be modified. To that effect, we withdraw our prior opinion and file the present opinion in lieu thereof.
I
During the period covered by the indictment, and for many years prior thereto, gasoline was sold to motorists through essentially two different types of retail service stations. “Major brand” stations sold the gasoline of major companies, e. g., Exxon, Texaco, Gulf, etc., and in many instances were operated by dealers who were not employees of the major companies. These stations bore brand names that were widely advertised and sold brand name products, including tires, batteries and parts. Many of them offered repair service and accepted recognized company credit cards. “Private brand” stations, on the other hand, offered gasoline under names which were not widely advertised, e. g., Redhead, Kayo, Scatt, etc., and were usually manned by individuals who worked directly for the company which owned the stations. Private brand stations ordinarily offered few products other than gasoline, and spent little money, if any, for media advertising.
With these differences in service, such stations competed with the major brands almost exclusively upon the basis of price. The private brand stations attracted customers from the majors by pricing their gasoline several cents a gallon below that of the major brand stations in the same locale, and as a result the price of major brand gasoline imposed a “ceiling” on private brand prices. In other words, to be competitive the private brand retailer was required to maintain a sufficiently attractive “differential” between his price and that of the majors. Because they were selling gasoline at less than that charged by the majors, the profit margin of the private brand stations was reduced to a marginal level, and the volume of a private brand’s sales was vitally important. In the highly competitive private brand market volume was, of course, significantly related to price. As a result, the private brand company, in the operation of a local station, took into account in pricing its gasoline from day-today not only the price charged in that locale by the major brand stations, but the prices charged by other independents in the same market.
During the period in question the companies which operated private brand stations had available a certain amount of current and accurate data relative to pricing patterns in the major brand gasoline market from a publication known as “Platt’s Oil-gram”. This established trade newspaper conducts price surveys of the majors and publishes such pricing data for major brand markets throughout the country, including advance announcements of upcoming wholesale price moves by the majors. Much information, however, which was vital to the private brand companies could not be gleaned from Oilgram. Oilgram carried little news of major brand retail price behavior on a station-by-station or “street-basis,” and such information was highly important to the private brand companies since their competitive vitality depended upon the ability of their individual retail outlets to undercut at all times the prices charged by neighboring major brand stations. More significantly, Oilgram carried practically no news concerning other private brand retailers’ price behavior, either present or future, nor any analysis of the potential impact of major brand.market behavior upon the private brand market.
In part to fill this void, the private brand retailers formed a trade association called The Society of Independent Gasoline Marketers of America (“SIGMA”). SIGMA’s members were firms and individuals operating private brand stations in various parts of the country. Its board of directors and officers were elected from the membership and its day-to-day operations were managed by a full-time salaried director and his supporting staff. Ordinarily the membership met in convention on a semi-annual basis. SIGMA was characterized at trial by the defendants as an “oral Platt’s Oilgram” for independents. It collected information from various sources (including telephone calls to and from private brand companies in which the companies would discuss upcoming market decisions), and it would relay such information to its members, usually by telephone. Information provided by SIGMA to its members included the behavior of independents and majors in adjoining markets, the impact of wholesale prices on retail price structures, upcoming price moves by other independents, opportunities for increased prices or the perceived need for decreases, and generally such other data which might be of assistance to the members in meeting their competition.
The indictment charged that the defendants, in effectuating the conspiracy to fix prices, “used SIGMA as a clearing house for gasoline pricing information in order to coordinate price increases and to eliminate discounting and settle pricing disputes,” and that they “met at the occasion of SIGMA meetings and discussed pricing strategy, including the coordinated increase of retail gasoline prices and the curtailment and elimination of price cutting and discount practices”. The indictment alleged that this use of SIGMA, supplemented by telephonic or other contact between the several defendants with respect to coordinated price increases and agreements, had resulted in the stabilization of artificial and noncompetitive prices of gasoline, the effect of which was to restrain competition among the defendants and their co-conspirators.
II
In their joint brief the defendants make the prefatory charge that they “were convicted of criminal price fixing for exchanging information on prices,” and assert that no conviction has ever been sustained on such evidence in a highly competitive market of which the participants had a relatively minimal share. In making this contention the defendants draw heavily upon the Supreme Court’s recent decision in United States v. U. S. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Gypsum involved the practice of inter-seller price verification, a practice which is not, in itself, unlawful per se. The Government contended that such an exchange of price information was violative of Section 1 of the Sherman Act if it had either the purpose or the effect of stabilizing prices. The Court held, however, that an effect on prices, without more, would not support a criminal conviction, and that it was necessary to show that such a consequence was intended by the alleged participants.
There is a marked difference between the case before us and the one considered by the Court in Gypsum. Here the indictment charged the defendants with a conspiracy to fix prices, and the “exchange of information” was merely one of the activities by which the alleged agreement was effectuated. “Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129 (1940). Since in a price-fixing conspiracy the conduct is illegal per se, further inquiry on the issues of intent or the anti-competitive effect is not required. The mere existence of a price-fixing agreement establishes the defendants’ illegal purpose since “[t]he aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition.” United States v. Trenton Potteries, 273 U.S. 392, 397, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1926).
Ill
The principal challenge of the defendants is that the Government failed to offer sufficient evidence to prove the conspiracy which was charged in the indictment. The indictment defined the geographical area of the conspiracy as the “Middle Atlantic states of New York, Pennsylvania, New Jersey, Delaware, Maryland and Virginia, as well as the District of Columbia. The defendants maintain that it was necessary for the Government to demonstrate a single continuing conspiracy to fix gasoline prices throughout the entire Middle Atlantic region, and contend that the only evidence of the area-wide coordination of price moves related to general increases in November, 1970, July, 1971, and August of 1972. The defendants acknowledge that there were area-wide increases on those occasions, but assert that the evidence failed to show that they were the result of any price-fixing agreement. On the contrary, they suggest that the evidence clearly showed that the price moves on these three occasions were the result of economic forces at work in the market place over which the defendants had no possible control.
The defendants argue that other than those three occasions, the Government’s evidence, at best, proved nothing but a series of “local and isolated incidents occurring within the Middle Atlantic states, involving some of the defendants and co-conspirators at different, and shorter, periods of time.” Even if we were to accept the defendants’ criticism of the probative quality of the evidence on the three area-wide increases, we think the Government’s evidence with respect to the various local markets was proper for the consideration of the jury. Under the indictment the conspiracy embraced an agreement not only to fix prices on an area-wide basis, but also to establish prices in local markets within the region and to effectuate price changes on a coordinated basis. The Government’s evidence of the single conspiracy implemented in this manner was not merely circumstantial in nature. The Government’s witnesses, many of whom were employed by the corporate appellants, testified concerning the nature and intent of their pricing communications, and their testimony was augmented in many respects by the contemporaneous records of the defendants. Our review of the record persuades us that the evidence was sufficient to support the conclusion of the jury that the defendants were working together for the accomplishment of their common purpose to fix prices within the geographical area described in the indictment.
We are further of the opinion that the court’s instructions to the jury were consistent with the indictment. The court instructed the jury that the defendants were charged with a “single, continuing conspiracy” to fix prices of gasoline in the Middle Atlantic states and, adverting to the evidence with respect to local pricing incidents, emphasized that “if you find that a defendant engaged in isolated incidents of gasoline price fixing, but was not a party to a single overall conspiracy covering the six-state area and the District of Columbia area, you must find that defendant not guilty of the matters charged in the indictment.” This language, we think, made it crystal clear to the jury that their consideration of the evidence should be addressed to the ultimate issue of a single overall conspiracy.
IV
Defendants also claim that there was a fatal variance of proof from the original indictment, the bill of particulars, and the pre-trial stipulation of the parties. Much of what we have said with respect to the sufficiency of the evidence applies equally to this contention of the defendants which, in a large degree, is predicated upon their argument that the indictment required a showing of continuous area-wide price manipulation. As we have noted, there was substantial evidence to support the jury’s finding of guilt and, assuredly, the defendants were not convicted upon a charge that was not specified in the indictment, nor were they uninformed of the charge against them. Additionally, the charges and specifications found within the four corners of the indictment, the bill of particulars, and the pre-trial stipulation not only informed the defendants of the charges against them, but are sufficiently clear to allow the defendants to assert double jeopardy in the event of any future prosecution for the same conduct.
V
We find no merit in the defendants’ charge that the trial court improperly denied their request for a more detailed bill of particulars. Pursuant to a stipulation entered into five months prior to trial, the Government supplied the defendants with copies of all grand jury testimony, access to all documents subpoenaed from non-defendants; all documents voluntarily submitted to the Government by third parties in the course of the investigation; and all available Brady material. In further compliance with the stipulation the defendants received copies of all trial exhibits thirty days prior to trial, as well as a list of intended witnesses and Jencks Act material fourteen days prior to trial. In the light of this extensive disclosure by the Government there was no abuse of discretion by the trial court in declining to require the Government to supply the further information requested by the defendants. See United States v. Schembari, 484 F.2d 931 (4 Cir. 1973).
VI
The Government’s case against the defendant, Ashland, was based primarily upon the theory that Ashland exercised direct control over the retail operations of five of its subsidiary corporations, including Payless Stations, Inc. (“Payless”). One of the Government’s principal witnesses on the question of Ashland’s control was a former vice-president of Payless, who was in charge of its pricing for the period from 1963 through 1973, and who was employed by the company from 1956 through December of 1973. This witness provided direct testimony of Ashland’s control over its subsidiaries. His testimony also included other information regarding the participation of Ashland and Payless in the conspiracy and the relationship of Payless with SIGMA.
This key witness had been hospitalized for psychiatric problems on two separate occasions in Our Lady of Peace Hospital in Louisville, Kentucky, and counsel for Ash-land subpoenaed the hospital records. They were produced by the hospital administrator who was directed to deliver them to the district judge. After examining the records in camera, the judge advised counsel that they reflected two periods of hospitalization, the first being from July 26 to August 29, 1966, and the second from November 20 until December 24,1968 and that the hospitalizations involved “a mental disorder or illness at that time.”
Concluding that the disclosure of the records was within his discretion, the district judge declined to deliver them to counsel for the reason, among others, that he did “not know to what extent the Government’s examination of the witness will include questioning during the relative period” (App.Vol. 3, at 777, 778). In making this ruling, however, the district judge stated that he was not foreclosing counsel for Ash-land from questioning the witness about the two periods of hospitalization, but that he would rule on the questions as the cross-examination of the witness developed.
The hospital records were sealed by the district judge and after this appeal was filed Ashland moved this court for leave to examine such records. The motion was denied with the provision that counsel for Ashland might renew the motion at the time of oral argument. Following oral argument we granted Ashland’s counsel access to the records and they were jointly examined by counsel for Ashland and the Government. Based on this examination of the hospital records, with leave of the court, both Ashland and the Government filed supplemental briefs on the issue of the relevancy of these records.
Counsel for Ashland contends that in denying access to the hospital records the trial court prejudicially impaired Ashland’s ability to effectively cross-examine the witness. Ashland argues, among other things, that the hospital records were significant for the purpose of evaluating the witness’ perceptive ability during the period in question and suggests, for instance, that if the witness were suffering from paranoia, he might have taken an irrational view of his communications with Ashland and interpreted simple inquiries as commands or binding directives.
As we have noted, the first period of the witness’ hospitalization was from July 26 to August 29 of 1966, which was prior to Ash-land’s acquisition of Payless and also prior to the alleged conspiracy. However, the second period of hospitalization from November 20, 1968, to December 21, 1968, fell within the period of the conspiracy which was alleged to have existed from at “at least as early as 1967 * * * and continuing thereafter until November 1974.”
The record discloses that the vice-president in question was admitted to the hospital on the first occasion because of work-related problems. Significantly, the 1966 records show that a “supervisor” at work brought him to the hospital, and that he believed that “people at work were plotting against him.” The official diagnosis indicated that his problems stemmed from his employment rather than being home-related. The 1968 records show that he was “manic depressed and admitted in psychotic state.” The records also state that he “still tends to push himself,” and contained observations that he was “delusional and hallucinatory with poor judgment and insight.” Although the 1968 records do not specifically state that this was a continuation of his work-related problems, the jury might reasonably have drawn such an inference had the contents of the records been disclosed to them during the cross-examination of the witness. The official record incident to the 1968 visit state the1 final diagnosis as “Schizophrenic Reaction, Schizo-affective Type.” On that occasion the “mental status examination” reflected that the patient was manic in behavior and quite talkative, and that he spoke of his experience with God.
It occurs to us that the hospital records should have indicated to the district court that the witness’ hospitalization in 1966 was work-related and that'it was quite probable that his 1968 illness was of a similar nature. The records should also have indicated to the court that the witness’ judgment during both periods of illness was seriously impaired, and that a jury could have concluded that his ability to make rational observations was highly questionable. The records would further indicate that the patient had not fully recovered when he was discharged from the hospital in 1968 since they point out that his condition required further psychiatric treatment and continued medication.
Bearing in mind that the case against Ashland was based upon its alleged direct control over the retail operations of its subsidiaries, including Payless, it is clear that the testimony of the former vice-president was vital to the Government’s case. Ash-land had acquired control of Payless in 1967 and the witness testified that “Ashland, from the time that they acquired the company [Payless] until the time that I left, assumed gradually more and more control.” At another point, in testifying concerning Ashland’s control of prices of Payless the witness stated “this was a growing thing that started in 1968, when Ashland bought it and extended up until at the end, when they were saying what and where and how to price, not just because of the shortage of gasoline, but because they were taking direct control from Ashland’s offices in Ash-land, Kentucky.” It should be noted that during at least a part of this period in 1968 about which the witness testified, he was experiencing acute mental problems with a hospital record which disclosed that he was “delusional and hallucinatory with poor judgment and insight,” and was “secluded for his own welfare.” Despite this fact, the court forbade Ashland from reviewing the hospital records or putting them to any effective use in the cross-examination of the witness.
Even if it is fair to assume that the hospital records had no direct bearing upon the witness’ mental capacity at the time he testified, they were unquestionably relevant in regard to his perception of the events involving his work at Payless during the time of his unfortunate illness, and had a significant bearing upon his ability to testify at trial concerning his recollection of those events. United States v. Partin, 493 F.2d 750 (5 Cir. 1974), is the leading case in this field, and is quite similar to the case before us. In that case, one Rogers was a key government witness, just as the former vice-president was here. Rogers had been admitted to a Veterans Administration Hospital for treatment for mental illness. The hospital record revealed that Rogers had stated he was having auditory hallucinations and at times he thought he was some other person. The trial court rejected the admission of the hospital record either as a predicate for cross-examination or as a basis upon which another psychiatrist could have given an opinion as to the mental state of the witness Rogers as that may have had an effect on Rogers’ ability to see and hear accurately during the period in which the events occurred about which he was testifying.
The court of appeals reversed the conviction because of the trial court’s error in failing to admit the hospital records, reasoning at page 762:
“It is just as reasonable that a jury be informed of a witness’ mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing. It all goes to the ability to comprehend, know, and correctly relate the truth.”
And again on page 763 appears the following:
“Partin [the defendant] had the right to attempt to challenge Rogers’ credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he was attempting to testify.”
To the same effect are United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950), and statements in United States v. Honneus, 508 F.2d 566, 573 (1 Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); Sinclair v. Turner, 447 F.2d 1158, 1163 (10 Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); Ramseyer v. General Motors Corp., 417 F.2d 859, 863 (8 Cir. 1969); United States v. Allegretti, 340 F.2d 254, 257 (7 Cir. 1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965).
In United States v. Figurski, 545 F.2d 389 (4 Cir. 1976), we had occasion to determine whether the contents of a protected report about a key prosecution witness should have been disclosed to defense counsel, and stated:
“If the report contains only material impeaching the witness, disclosure is required only when there is a reasonable likelihood of affecting the trier of the fact. Whether there is such a likelihood depends upon a number of factors such as the importance of the witness to the government’s case, the extent to which the witness has already been impeached, and the significance of the new impeaching material on the witness’ credibility.”
Id., at 391-92. As discussed above, the former vice-president of Payless was the key government witness. Although the defense presented the testimony of two witnesses that contradicted his testimony regarding Ashland’s control over its subsidiaries, the ability of defense counsel to impeach him regarding his ability to properly perceive events about which he testified was severely limited by counsel’s inability to examine the hospital records. We can think of no more relevant or significant material than a hospital record indicating that a witness who is testifying against his former employer had been under treatment for mental illness which rendered him at that time delusional and hallucinatory with poor judgment and insight. Although a trial court should seek to prevent the disclosure of embarrassing, irrelevant information concerning a witness, it is an abuse of discretion to preclude defense counsel from obtaining relevant information, and the witness’ privacy must yield to the paramount right of the defense to cross-examine effectively the witness in a criminal case. See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111-1112, 39 L.Ed.2d 347 (1974).
Upon careful consideration, we are of the opinion that the action of the district court in denying Ashland access to the hospital records for its use in cross-examination of the former vice-president was so prejudicial that Ashland is entitled to reversal and a new trial.
VII
With the exception of Ashland, we affirm the convictions of the other corporate appellants. We think, however, that assurances of immunity given to Robert Cavin during the grand jury’s investigation and upon which he relied require that his conviction be set aside.
The grand jury investigation was initiated about November 18, 1974, under the direction of Rodney A. Thorson of the Antitrust Division of the Department of Justice. On December 23, 1974, Cavin and Richard Reynolds, a fellow employee of SIGMA, were subpoenaed to testify before the grand jury and were jointly notified that they should appear in Baltimore on January 7, 1975. Reynolds and Cavin immediately contacted David A. Donohoe, who also represented SIGMA, and arranged to meet with him on January 2, 1975. Donohoe then called Thorson and inquired whether either Cavin or Reynolds were targets of the grand jury investigation. According to Donohoe, Thorson told him “not to worry” because Thorson “was obtaining immunity orders for both Mr. Cavin and Mr. Reynolds and that both would be testifying under a grant of immunity.” Based upon Thorson’s representation Donohoe concluded that he should suggest to Cavin and Reynolds that they obtain other counsel. In Thorson’s recollection of the conversation with Dono-hoe, he denied making any “promise” that Cavin and Reynolds would receive immunity but recalled stating that he would obtain immunity orders for both if they intended to claim the Fifth Amendment. Thorson also acknowledged that he had requested immunity authorization for both witnesses at about the time he issued subpoenas for their appearance. Thorson also discussed with Donohoe his possible conflict of interest since he was counsel for SIGMA and suggested that Donohoe secure other counsel for Cavin and Reynolds.
At their meeting on January 2, 1975, Do-nohoe told Cavin and Reynolds of Thorson’s assurance that they were to receive immunity, and advised them to obtain other counsel in order to avoid any possible conflict of interest. After some discussion, Do-nohoe recommended that Cavin and Reynolds consider retaining Donald T. Bucklin. Bucklin met with Cavin and Reynolds at Donohoe’s office on that same day and was retained by them. Donohoe repeated to Bucklin the representations concerning immunity that Thorson had made to him. In the light of this information Bucklin discussed with Cavin and Reynolds their rights under a grant of immunity and they were specifically advised of the importance of testifying fully and honestly in order to obtain the maximum protection under 18 U.S.C. § 6001, et seq.
Shortly after the start of a joint briefing session with Cavin and Reynolds on the afternoon of January 2nd, Bucklin called Thorson to advise him of his representation of the two witnesses and to set up a meeting on January 3rd. During this conversation Thorson confirmed the assurance that both Cavin and Reynolds would receive immunity, and was advised by Bucklin that based upon this assurance he perceived no conflict in his joint representation. Thor-son agreed that no conflict existed. While Thorson later denied discussing the question of conflict with Bucklin, he did acknowledge that he had repeated his earlier assurance that he would obtain immunity orders if the witnesses intended to claim the Fifth Amendment. On this point Thorson testified before the district court as follows:
THE COURT: Did you state that he would get immunity; he would testify pursuant to an immunity order?
MR. THORSON: Yes; yes, I did state that.
THE COURT: Can you restate that to me to the best of your recollection as to when it occurred and what was said and to whom.
MR. THORSON: I stated that initially in the telephone conversation preceding the January 3rd meeting in the context that if it is their intention to claim the Fifth Amendment I will obtain an immunity order. And I explained, expressly, that I had no intentions of having the Government go to the expense of having these people come to Baltimore from St. Louis, and then claim the Fifth Amendment and then I’d send them home. That’s why I wanted to know what their intention was, and I did not find that out until the meeting on Friday. [January 3],
(App.Vol. 18, at 15,225 and 15,226.)
During the initial joint interview with Bucklin on January 3rd Cavin and Reynolds refreshed each others recollections, supplemented their respective comments and responses, and corrected each others memory of events, dates and names of people with respect to incriminating evidence. On January 3,1975, Donohoe and Bucklin, together with another attorney, met with Thorson and other prosecutors in the Department of Justice. At this meeting Thorson agreed to obtain immunity orders prior to the grand jury appearances of Cavin and Reynolds based upon the representations that both witnesses would claim their Fifth Amendment privilege.
Subsequent to the meeting on January 3rd, a conflict developed in Bucklin’s schedule for January 7th, and Terry F. Lenzner was brought into the ease to represent Ca-vin and Reynolds. On January 6th Thorson called Lenzner and advised him that the appearance of the two witnesses was postponed until January 8th. During that conversation Thorson again confirmed that both witnesses would receive immunity, and it was agreed that the attorneys would meet on the morning of January 8th and proceed to the supervisory judge’s chambers for the signing of the immunity orders. At about 7:30 p. m. on that evening Thorson called Lenzner at his home and advised him that the subpoena for Cavin was being can-celled. The reason given by Thorson for the cancellation was a scheduling problem and Lenzner was told that he would be advised if and when Cavin’s appearance was rescheduled.
Under date of January 7, 1975, Lenzner advised Thorson by letter that his representation of Cavin and Reynolds was based upon Thorson’s assurance that both individuals were to testify under a grant of immunity on the same day, and that because of a possible conflict of interest resulting from the cancellation of Cavin’s subpoena, Lenz-ner was withdrawing from further representation of Cavin. Lenzner was unable to advise Cavin of these developments since both Cavin and Reynolds were en route to Washington. Cavin expressed some concern about the postponement but was assured by Lenzner that Thorson had indicated it was due only to a scheduling problem.
At the grand jury session on January 8th Thorson commenced his examination of Reynolds concerning SIGMA documents without an immunity order, whereupon Reynolds refused to answer “on the grounds that it violates the agreement between the Government and my counsel that I would be questioned only after receiving immunity and that I would be granted immunity today before testifying.” Thorson then called upon Donohoe to produce someone to identify the SIGMA records, and the following exchange took place:
MR. THORSON: Well, do I understand that you, as counsel for SIGMA are refusing on behalf of SIGMA to produce someone—
MR. DONOHOE: No, I’m not.
MR. THORSON: —from that association to come here and testify, take an oath and testify as to the document production?
MR. DONOHOE: I think you know perfectly well what I’m saying. I brought two people to this City pursuant to subpoenas that you had directed, so I had two people who could have testified with respect to these documents, but because the commitments that you had made to these two individuals have not been kept, I’m no longer able to go get a third or fourth or fifth person. That’s a situation which is not of my making.
MR. THORSON: Do I understand that you are refusing at this juncture to provide a person to make that production?
MR. DONOHOE: All I’m saying is that there are two people that have — that I have brought that are capable to do that, but I’m willing to assure you that it won’t do you any good because you failed to keep your commitment to obtain a proper order from the Court. You can take Mr. Reynolds or Mr. Cavin in here, but it’s not going to do any good.
MR. THORSON: Mr. Donohoe, I think you can take SIGMA’s documents with you now and would you so instruct, if he is your client, would you instruct Mr. Reynolds to appear before the Grand Jury now?
(App.Yoi. 8, at M86 and M87.)
Reynolds was formally granted immunity later that day and testified before the grand jury. In his affidavit, Reynolds stated that during his grand jury appearances he was questioned and testified about matters he had earlier discussed with Cavin and that his testimony, at least
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_r_bus
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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 "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.
Alice J. PAVELKA, Plaintiff-Appellant, v. Susan R. CARTER; Montgomery County, Maryland, Defendants-Appellees.
No. 92-1887.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 4, 1993.
Decided June 9, 1993.
James Berkley Carson, Carson & Jones-Bateman, Baltimore, MD, argued (John B. Jones-Bateman, on brief), for plaintiff-appellant.
Patricia P. Hines, Associate County Atty., Rockville, MD, argued (Joyce R. Stern, County Atty., Joann Robertson, Sr. Asst. County Atty., on brief), for defendants-appel-lees.
Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges.
OPINION
PHILLIPS, Circuit Judge:
Alice Pavelka appeals from a grant of partial summary judgment against her and the dismissal of the remainder of her automobile negligence action against Susan Carter and Montgomery County, Maryland for lack of sufficient amount in controversy to maintain diversity jurisdiction. Because the district court erred in holding that governmental immunity barred recovery against the defendants of amounts in excess of $30,000, we reverse.
I
The material facts, viewed in the light most favorable to the nonmovant Pavelka on this appeal from summary judgment against her, are few. On May 5, 1989, Pavelka’s car was struck from behind by a ear which had itself been struck by a bus owned by appellee Montgomery County, Maryland. The bus was being operated within the County by the appellee Carter, an employee of its Ride-On bus service.
On September 9, 1991, Pavelka, a citizen and resident of Virginia, brought a diversity action in the District of Maryland against the County, a governmental unit of the State of Maryland, and Carter, a Maryland resident, seeking $200,000 in compensation for property damage and personal injuries. The defendants answered, then moved for partial summary judgment, interposing a statutory governmental immunity defense ostensibly limiting claims to $20,000 per injured party and $10,000 in total property damage. After Pavelka answered the motion, pressing a different interpretation of Maryland law on governmental immunity, and the defendants replied, the district court granted defendants the relief they sought. Because that relief limited Pavelka’s potential recovery to $30,-000, the district court then dismissed the cause for failure to meet the $50,000 amount in controversy requirement of diversity jurisdiction. See 28 U.S.C. § 1332.
Pavelka appealed.
II
This case presents a question of the degree to which the defendants enjoy governmental immunity in this negligence action for money damages and requires us to determine how best to. harmonize three aspects of Maryland law: the Maryland common law of local governmental immunity, Maryland Transp.Code Ann. § 17-107(c), and the Local Government Tort Claims Act (LGTCA), Maryland Cts. & Jud.Proc.Code Ann. § 5-401 et seq. In making that determination, we consider first the immunity of the County, then that of the bus driver Carter.
A
With respect to the County there are actually two questions. First, we ask whether it enjoyed governmental immunity with respect to Pavelka’s accident in the first place. After finding that it did, we then consider the extent to which it waived that immunity or otherwise obligated itself with respect to Pavelka’s claim.
1
Counties in Maryland have governmental immunity in negligence actions only when the activity concerning which suit is brought is a governmental and not a proprietary one. Maryland-Nat’l Capital Park and Planning Comm’n v. Kranz, 521 A.2d 729, 731 (Md.1987). Mayor of Baltimore v. State ex rel. Blueford, 173 Md. 267, 195 A. 571, 576 (1937), explains the difference between the two:
Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature.
The Maryland Court of Appeals recently has put it more simply:
Another way of expressing the test ... is whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity.
Tadjer v. Montgomery County, 300 Md. 539, 479 A.2d 1321, 1325 (1984).
The heavily subsidized nature of the Ride-On service, see Joint Appendix at 68, makes clear that it exists for “the common good of all” and not for the special benefit or profit of the County as a corporate body. It is undoubtedly authorized by the legislature, 25A Maryland Ann.Code § 5A(a); Maryland Transp.Code Ann. § 10-207(a), and we take judicial notice that public transportation in general, and thus the Ride-On bus service in particular, benefits the public health and welfare in a variety of well established ways. Moreover, it has no obvious element of private interest. Given the breadth of governmental activities recognized by the Maryland courts, see, e.g., Burns v. Mayor of Rockville, 71 Md.App. 293, 525 A.2d 255, 262 (1987) (civic ballet); Austin v. Mayor of Baltimore, 286 Md. 51, 405 A.2d 255, 263 (1979) (children’s day camp); see also Town of Brunswick v. Hyatt, 91 Md.App. 555, 605 A.2d 620, 625 (1992) (finding municipal pool a governmental activity even though it made a profit), there is no doubt that municipal bus service qualifies for similar treatment. Governmental immunity therefore applies, and Pavelka can recover damages from the County only to the extent it has waived that immunity. We therefore turn to that issue.
2
The County concedes that Maryland Transp.Code Ann. § 17-107(c) waives any governmental immunity that it otherwise might assert with respect to the security that state law requires all vehicle owners or lessees, including governmental ones, to post. That security is $20,000 per person per accident ($40,000 total) and $10,000 in total property damage. Maryland Transp.Code Ann. § 17 — 103(b). The County argues, however, that § 17-107(c) is the only waiver of its liability applicable in this case, making partial summary judgment for it on all liability over and above that required security and the resulting dismissal for lack of subject matter jurisdiction proper.
Pavelka, on the other hand, contends that the Local Government Tort Claims Act, Maryland Cts. & Jud.Proc.Code Ann. § 5-401 et seq., operates concurrently with § 17-107 and, where its notice requirements are met, see § 5-404, makes a more substantial waiver of the County’s immunity. Since she undoubtedly complied with those notice provisions, Pavelka contends, she should be permitted to recover from the County the full $200,000 the LGTCA permits. See § 5-403(a). This argument relies heavily on Maryland v. Harris, 327 Md. 32, 607 A.2d 552 (1992), which implied that the Maryland Tort Claims Act (MTCA), Maryland State Gov’t Code Ann. §§ 101 to 12-110, creates a more expansive waiver of immunity distinct from that provided by § 17-107 in those situations where it applies. Harris, 607 A.2d at 556-57.
But the MTCA actually waives the state’s sovereign immunity in such negligence cases if its notice requirements are met. § 12-104(b); § 12 — 105(b). The LGTCA does not waive local governmental immunity when a local governmental entity is sued in its own capacity, Khawaja v. Mayor of Rockville, 89 Md.App. 314, 598 A.2d 489, 494 & n. 6 (1991), cert. granted, 325 Md. 551, 601 A.2d 1114 (1992), so the logic of Harris is inapplicable. The County’s direct liability for Pavelka’s accident is thus limited to that provided by § 17-107.
The LGTCA does have a function, however, and that function is to protect local government employees from suits and judgments on alleged torts committed by them within the scope of their employment, in order to maintain their incentive to perform to the best of their abilities. Ennis v. Crenca, 322 Md. 285, 587 A.2d 485, 488 (1991). To that end, it obligates local governments to defend their employees for job-related tort claims. § 5-402(a). It also bars direct execution of judgments against those employees, absent proof of actual malice, and forces successful plaintiffs to execute their judgments against the local government employers instead. §§ 5 — 402(b), 5-403(b). The employers are expressly obligated to pay these judgments, § 5 — 403(b), but their obligations are not without limit: liability on an individual claim is limited to $200,000, § 5-403(a), punitive damages cannot be recovered, § 5-403(c), and the employer may raise any defenses or immunities held by the employee, even where those defenses or immunities could not have been vicariously asserted by the employer to bar respondeat superior liability at common law. Compare § 5-403(d)-(e) with the Maryland common law rule discussed in James v. Prince George’s County, 288 Md. 315, 418 A.2d 1173, 1182-83 (1980), superseded by statute as stated in Prince George’s County v. Fitzhugh, 308 Md. 384, 519 A.2d 1285 (1987).
The County doesn’t debate the existence of this obligation to fund judgments against its employees imposed by the LGTCA, but pins its hopes instead on the claim that its bus driver Carter is herself immune from suit, hence not subject to a liability which would trigger its obligation. We therefore turn next to that.
B
The district court found Pavelka’s claim against Carter barred by § 17-107(c), but we disagree, for the reasons expressed below.
Governmental immunity from negligence torts in Maryland extends beyond the governmental entity itself to protect “public officials” exercising discretionary functions. James, 418 A.2d at 1178. It does not, however, extend to “mere government employee[s] or agent[s]” performing ministerial functions like Carter, a city bus driver. Id.
On appeal, Carter does not in fact contend that driving a bus was a discretionary function or that she was a public official. Indeed, she ignores this line of cases altogether and argues that notwithstanding any general rules applicable to employee liability, fidelity to the purpose of § 17-107 requires that she be absolved of potential liability in excess of the security required by the Transportation article. She also argues that the claim against her is barred by the doctrine of respondeat superior.
Both these arguments are mistaken. Perhaps recognizing that § 17-107(c), by its terms, does not apply to her, Carter rests her argument that it nonetheless bars action against her primarily on policy grounds. Failing to read § 17-107(c) to bar suit against her would generate an absurd result, she says, because Pavelka could then evade what appellees contend is a cap on the County’s liability imposed by § 17-107 by seeking up to $200,000 from Carter under the LGTCA, which the County would then be required to pay. The result is only absurd, however, if § 17-107(c) is indeed a cap on the County’s direct and indirect liability to Pavel-ka.
We don’t believe it is. Section 17-107(c) is part of the title requiring most vehicle owners to carry minimal insurance coverage. Md.Transp.Code Ann. § 17-101 et seq. Its caption reads “Prohibitions,” and the section bars two things. First, it forbids drivers to drive cars they know are uninsured and owners to permit their uninsured vehicles to be driven. § 17-107(a). Second, it provides
Defense of Sovereign Immunity. — An owner or lessee of any motor vehicle registered under Title 13 of this article may not raise the defense of sovereign or governmental immunity, to the extent of benefits provided by the security accepted by the Administration under § 17-103 of this subtitle, in any judicial proceeding in which the plaintiff claims that personal injury, property damage, or death was caused by the negligent use of the motor vehicle while in government service or performing a task of benefit to the government.
§ 17 — 107(c). As we read this latter provision, it merely prevents Maryland’s governmental entities from interposing the governmental or sovereign immunity they might otherwise enjoy to frustrate otherwise proper recovery against the mandatory security all vehicle operators (including governmental ones) must post. To the extent of that security, then, it puts governmental vehicle owners or lessees in the same position as private owners or lessees. And by its terms, at least, it says nothing whatsoever about the liability of vehicle operators like Carter.
As we noted at the outset, this dispute requires accommodation of two statutes and a common law doctrine. It seems to us that this accommodation is relatively straightforward. The doctrine of governmental immunity reflects the public’s interest in not paying tort judgments with public funds for torts arising out of the performance of governmental functions for the benefit of all. The Maryland legislature, however, has recognized that other policy considerations trump this one in certain cases. One such case is that of providing minimal recovery for vehicular accidents, where the legislature has privileged, to a limited extent, citizens’ interest in securing compensation for injuries negligently inflicted upon them. That policy is embodied in Maryland Transp.Code Ann. § 17-101 et seq. The other case of relevance here is that of protecting ordinary local government employees, who enjoy no common law immunity from liability for their negligent but good faith acts in the scope of employment, from tort suits which might discourage vigorous prosecution of their duties. Maryland could, of course, have furthered this goal at the expense of tort victims by simply extending governmental immunity to those tortfeasors, but it chose not to do it that way, presumably because the traditional tort system goals of compensating victims and deterring misconduct remained important. Instead, it simply shifted the cost of employee negligence in such cases to a party better able to pay, their local government employer, compromising in the process the public interest described above in keeping tort victims out of the public purse. This is the policy reflected in the LGTCA. With that framework in mind, we see no reason why the policy considerations which undoubtedly led to the enactment of § 17-107 should lead us to provide Carter (and thus, indirectly, the County) with a cloak of. immunity similarly situated parties have never enjoyed in Maryland.
This brings us to the appellees’ more direct assertion of the same logic, their apparent contention that the doctrine of respondeat superior also bars Pavelka’s claim. It is true, as Carter and the County argue, that this doctrine imputes the negligence of the servant to the master and makes the latter liable for the torts of the former. Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 506 A.2d 224, 226 (1986). But that liability is joint and several; the servant is not relieved. See Chilcote v. Von Der Ahe Van Lines, 300 Md. 106, 476 A.2d 204, 208 (1984). Moreover, the doctrine is one of vicarious liability, not vicarious immunity, so any immunity the County may enjoy does not, absent the operation of some other principle of law, protect Carter. No other such principle has been suggested.
Carter therefore is potentially liable for her negligence just like any other civil defendant. Unlike most civil defendants, however, she enjoys the protection of the LGTCA, which bars Pavelka from actually executing any judgment obtained against Carter and forces her to execute instead against the County, which is then obligated to satisfy Pavelka’s adjudicated claim against Carter in an amount up to $200,000.
Ill
Because Carter is liable in damages for any negligence on her part which proximately caused Pavelka’s injury, and because the LGTCA obligates Pavelka to execute any judgment obtained on that claim against the County rather than Carter herself and also obligates the County to satisfy it up to $200,-000, partial summary judgment for Carter and the County on amounts over § 17-103’s statutory security requirements was inappropriate, as was dismissal for lack of subject matter jurisdiction. The judgment of the district court is therefore reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
. The parties refer to § 17 — 107(b), but the relevant provision was apparently redesignated § 17 — 107(c) effective July 1, 1988, before Pavel-ka’s 1989 accident. 1988 Md.Laws 787. Since her accident, it’s been amended again, 1990 Md. Laws 546, § 3, but that amendment has no effect on this appeal, so the text is presented as it was in effect at the time of the accident.
. The County argues that we need not reach the governmental/proprietary function inquiry at all, since (it argues) waiver of governmental immunity turns exclusively on whether the conditions of § 17-107 of the Md.Transp.Code Ann. are met. This is incorrect. The governmental/proprietary function question is logically antecedent to the waiver inquiry, since it determines whether counties have tort immunity at all under Maryland law, Kranz, 521 A.2d at 731, not whether they’ve waived it.
. The only case cited by Pavelka finding a particular activity not to be governmental in nature is Higgins v. City of Rockville, 86 Md.App. 670, 587 A.2d 1168, cert. denied, 323 Md. 309, 593 A.2d 669 (1991). There the court found that maintenance of a state-owned driveway was a proprietary function, but its holding was based on stare decisis, not policy, and was strictly limited to liability for negligent maintenance of streets, sidewalks, footways, and adjacent areas. Id. at 1173 (noting that "[t]he exemption of this particular function from the benefits of governmental immunity, logical or illogical, seems destined to remain with us for the foreseeable future." (footnote omitted)). That anomaly is not relevant here.
. The MTCA concerns state sovereign immunity; the LGTCA addresses the more limited doctrine of local government immunity.
. The Court of Appeals’ writ of certiorari did not specify which questions presented by petitioner it would address. • One of those question's could be read to raise the issue whether the LGTCA does in fact constitute an independent waiver of governmental immunity, but that is not now the law of Maryland.
. Until the enactment of the LGTCA, the public generally had not been deemed to have an interest in insulating local government employees from the consequences of their negligence.
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_usc1sect
|
201
|
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 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
CREEL et al. v. LONE STAR DEFENSE CORPORATION.
No. 12182.
United States Court of Appeals Fifth Circuit.
Jan. 18, 1949.
Rehearing Denied Feb. 7, 1949.
C. M. Kennedy, of Texarkana, Tex., Wayne W. Owen, of Little Rock, Ark., and Pat Coon, of Dallas, Tex., for appellants.
Fred K. Newberry, C. B. Wheel-er and Otto Atcídey, all of Texarkana, Tex., for appellee.
Before HOLMES, WALLER, and LEE, Circuit Judges.
HOLMES, Circuit Judge.
This suit was brought by appellants against appellee to recover overtime compensation, liquidated damages, and reasonable attorney’s fees, under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. In the court below, after issue was joined on the pleadings, the defendant filed a motion for summary judgment, with supporting affidavits; and a hearing was duly had on the pleadings, affidavits, and oral statements of counsel, to determine what-material facts existed without material controversy and those in good faith controverted. The question on this appeal is whether the uncontradicted facts before the court were sufficient to warrant the inference of fact that appellee was not an independent contractor engaged in commerce.
In the light of the Supreme Court’s decisions on the subject, we deem it necessary to write scarcely more than a statement of the uncontradicted facts before the court at the hearing of the appellee’s motion for a summary judgment. This motion was submitted upon affidavits filed by the appellee. Each affiant had personal knowledge of the facts sworn to by him, and was able to give competent testimony of the truth thereof. No opposing affidavits were filed by appellants, and no testimony offered in contradiction of the facts set forth in appellee’s affidavits. The court interrogated counsel at some length as to what were the genuine issues presented for decision. There were many other pleadings, such as motions to amend, motions to dismiss, motions for bills of particulars and for production of documents, and also a response to the motion for summary judgment; all of which show the value of the pretrial-hearing and the summary-judgment procedure; but when the sifting process was completed, it was found that there was absolutely no real controversy between the parties as to any specific fact. The uncontradicted facts were as follows:
During World War II, the appellee’s plant was an ordnance facility owned and operated by the United States for the production of munitions to be used in the prosecution of the war. The appellee was retained, and paid a fixed fee, to manage the operation of the plant. The Government paid all expenses of operation, including the cost of all labor and material. The premises upon which the appellants were employed, the tools furnished them by appellee, and the property with which they dealt in such employment, were in their entirety the property of the United States. The title to all parts, explosives, .and materials, except an inconsequential amount, was vested in the Government at the point of shipment, subject to army inspection upon arrival at the plant.
The appellee did not ship any finished ammunition from the plant; all such shipments were made by the Ordnance Department on government bills of lading. The appellee at no time had title to the finished products of the plant, or of the component parts of such products, the title thereto at all times being in the United States. The latter furnished and shipped to the appellee ninety to ninety-five per cent of all material and equipment used in operating the plant; the remainder was purchased for the United States by the appellee. A Commanding Officer, appointed by the Chief of Ordnance, was on duty at all times relevant hereto.
The contract in this case provided that the appellee was operating the plant as a Government agency; that changes might be made in the contract by the Government but such changes should not excuse the appellee from proceeding with the prosecution of the work as changed; that the Government should prescribe procedures to be followed by the contractor in accounting, checking, and auditing functions, and that if in the opinion of the Contracting Officer the number of employees engaged in checking, auditing, and accounting work, was excessive, the appellee should make such reductions in force as the Contracting Officer deemed necessary; that the contractor should at all times use its best efforts in all acts thereunder to protect and subserve the interest of the Government. The appellee paid wages and salaries of employees by checking against a bank account, the funds of which were furnished by the Government and were subject to withdrawal by the Government.
By a change in the contract, the Government was given the right to pay directly to the persons concerned all sums due from the contractor for labor, material, or other charges; by order dated October 12, 1943, the appellee was ordered to rework and renovate certain ammunition, which provision was reaffirmed and incorporated in a supplement to the contract; by order dated April 3, 1944, the terms of which were included in a supplement to the contract, it was provided that appellee should, as directed from time to time by the Contracting Officer, receive, inspect, assort, screen, segregate, load, renovate, recondition, and rehabilitate, any ammunition (including components and containers), even though it was not specifically mentioned in the contract, regardless of its origin, in such quantities as might be directed by the Contracting Officer.
When we compare the record that was before this court in Kennedy v. Silas Mason Co., 5 Cir., 164 F.2d 1016, with the record in the case at bar, we find many material facts that were not in the former record, which show that this appellee was not an independent contractor but an agency of the Government. Among these additional facts are the following:
The Government paid the freight on materials shipped to the plant. A Government officer was maintained at the plant who was accountable for all property used in connection with appellee’s contract. The Government contracted for electric power, gas, telephone, telegraph, and teletype service at the plant, and paid such bills directly ; the appellee acted as Government agent for the purpose of causing official-business messages to be transmitted; the Government approved all wage and salary rates, and required that no key employees or their principal assistants be hired until there had been submitted and approved by the Contracting Officer a statement of the previous salary, proposed salary, qualifications, and experience, of the persons selected for such assignments; and all munitions processed at the plant were processed under direct Government supervision and control; the Government specified the loading process to be used, directed the type and quantity of munitions, the specifications thereof, and the rate of production; inspections were made by the Government during the various steps of theii processing; detailed rules and regulations covering methods of production were promulgated by the Government; and appellee was required to comply with such rules and regulations; federal officers and employees were in attendance to report as to compliance. Appellee had no discretion as to the type of ammunition, the quantity thereof, or the method of process used in its manufacture, and produced no munitions except as required by the Government. On different occasions, the Government transferred production schedule? from other ordnance plants to appellee for completion, and in such cases, if the original plant had made contracts for materials and supplies on account of such schedules, the appellee was required to take over such supply contracts and pay the vendors thereof from funds supplied to appellee by the Government. Appellee was not penalized if the materials processed at the plant did not’ meet specifications and could not be used. No sales tax was paid by appellee on materials purchased for use at the plant, nor were ad valorem taxes on real or personal property paid to the state or county, and no license or registration fees were paid on motor vehicles used in connection with the operation of the plant.
From the above uncontradicted facts, the court below inferred and found that the appellee was not engaged in the production of goods for commerce, and that the goods in question were munitions of war manufactured by the United States for the purpose of being used by it in the prosecution of the war; and accordingly, as a matter of law, the court entered summary judgment, from which this appeal was taken.
The Supreme Court, in Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, does not condemn the summary judgment procedure if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. There is a large number of these claims, all arising out of a common state of facts and depending for decision upon the same principles of law. The judicial process may break down under the load if the courts fail to use the new methods of procedure provided by the Federal Rules of Civil Procedure, 28 U.S.C.A. While it is true that the appellants here denied generally the facts relied on by appellee for a summary judgment, such denial specified no controverted fact that would be admissible in evidence upon a trial on the merits. Rule 56(e) provides the form of supporting and opposing affidavits in the summary-judgment procedure, and requires that the affidavits shall set-forth such facts as would be admissible in evidence; moreover, the affidavits must show affirmatively that the affiant is competent to testify to the matters therein stated. On motion under this rule, paragraph (d) requires the trial court to ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually in good faith controverted. The court shall thereupon, the rule says, make an order specifying the facts that appear without substantial controversy; and, upon the trial, the facts so specified shall be deemed established.
Paragraphs II and V(D), set out below in full, contain (so far as applicable here) appellee’s response to the motion for a summary judgment. The averments do not meet the requirements for affidavits under Rule 56(e). No witness would be permitted to testify that the appellee operated as an independent contractor and was engaged in the production of goods for commerce, which are the ultimate facts in issue. Those allegations in the pleadings were sufficient to sustain the complaint upon a motion to dismiss for failure to state a claim upon which relief could be granted; but in response to a motion for summary judgment, such allegations at best were only a part of the pleadings to be examined by the court under Rule 56(d) of the Federal Rules of Civil Procedure. They presented issues of fact to be determined by the trial court, at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel. The court below did this, and found as a fact that the appellee was not engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act, and that the United States was not only the actual producer but the ultimate consumer of the goods in question. These findings were deduced from the uncontroverted facts; and, if judgment had not been rendered upon the whole case, an order specifying the facts that appeared without substantial controversy would have been required by Rule 56(d); but, since it appeared from the pleadings, affidavits, and statements of counsel, that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law, the court was required to enter judgment forthwith under subdivision (c) of said rule.
The question before us is not whether the trial court, upon the uncontroverted facts, reasonably might have found that the appellant was operating as an independent contractor in the production of goods for commerce, but whether a fair and impartial tribunal reasonably could have inferred from the uncontroverted facts that the United States was producing munitions for its own use in war, and that the appellee was acting merely as a government agency.
.There is no hard-and-fast rule for determining who are independent contractors, but generally the term signifies one who contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and discharge the workmen independently of such employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as it progresses. Ordinarily the question is one of fact, and each 'case depends on its own facts, no one feature of the relation being determinative, but all being considered together.
With these elementary principles in mind, and without needless repetition, let us summarize the uncontradicted facts upon which the court below based its inference that appellant was not an inde-, pendent contractor, engaged in commerce within the meaning of the Fair Labor Standards Act. Such facts are as follows:
The Army and Navy Departments were responsible for the operation of nearly one hundred government-owned giant munition plants, which were the backbone of -the nation’s armament program. In order fully to utilize the nation’s resources and to minimize encroachments upon its industrial structure, the two departments chose to operate these plants through the agency of selected commercial contractors. All of these plants were owned outright by the United States, and all but a few were located upon military reservations. All were engaged solely in war production, the work performed being of a secret, hazardous, and confidential nature.
The normal profit-making factors were lacking in the arrangement between the Government and appellee in this case. The contractor furnished only its managerial ability, qualities, and services, for which it was paid a fixed fee unaffected by risks of financial loss. The Government retained the right to dismiss any employee at the plant whom it deemed incompetent, or whose retention was deemed by it to be not in the public interest; it approved all wage and salary rates; inspected vigilantly the various processes of production, and required compliance with its detailed specifications that covered every phase of the operation. The Government owned the reservation, owned the plant, tools, working material, and the component parts from which the munitions-were made or assembled; it took title at the point of origin to all goods and materials used in the operations, shipping them to the plant-site under government bills of lading.
The appellee was required to comply with detailed rules and regulations, and no key employees or their assistants- were permitted to be hired or assigned to service until there had been submitted and approved by the Contracting Officer a statement of the previous salary, proposed salary, qualifications, and experience of the persons selected for such assignments. In a word, all munitions processed at the plant were under the direct supervision and control of the Government, with no discretion given the contractor to produce munitions except as required by Government direction. Add to these established facts the self-evident one that the United States is not engaged in commerce in making munitions to be used by it in waging war, and we have a solid and sufficient basis from which to draw the fair and reasonable inference that the appellee was not an independent contractor and not engaged in commerce within the meaning of the Fair Labor Standards Act.
Other defenses, such as payment and statutes of limitation, are presented by the pleadings, but it is unnecessary to discuss them, because wherever we turn in this case we are confronted with the ultimate fact, established by the finding of the court below, that appellee was not an independent contractor. To ignore this fact would be to disregard Rule 56, which was promulgated by the Supreme Court. A reasonable inference fairly deduced from an uncontroverted fact or number of facts may establish the existence of an ultimate fact that entitles one of the parties to judgment as a matter of law.. When this happens, as it did in this case, and summary judgment is sought, Rule ’56(c) requires that “judgment * * * shall be rendered forthwith.”
On the other hand, if the judgment were reversed and the cause remanded, the trial court would be required to proceed under Rule 56(d), by specifying the facts that appeared without substantial controversy; and we know what those facts are from the opinion in this record. Under Rule 52, as amended, findings of fact and conclusions of law are unnecessary on decisions of motions for summary judgment, but under Rule 56(d) the court is required to make an order specifying the facts that appear to be without substantial controversy. Rule 52(a) provides that if an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Thus the court’s opinion in this case, while not required under Rule 52(a), might serve the requirements of Rule 56(d), the provisions of which could not be avoided upon another trial. The intention of this rule is to put an end to useless and expensive litigation if there is no geniune issue as to any material fact.
The judgment appealed from is
Affirmed.
Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031; Murpliey v. Reed, 335 U.S. 866, 69 S.Ct. 105.
Paragraph II. “Plaintiffs state that the defendant is engaged in the production of goods for commerce and in acts necessary for the production of goods for commerce at all times pertinent to the complainant filed herein within the meaning of the Fair Labor Standards Act.”
Paragraph V (D). “That the defendant throughout all times pertinent to this cause operated as an independent contractor upon a cost plus a fixed fee basis and by its contract with the Government of the United States specifically obligated itself to pay plaintiffs the money they seels under this Act.”
Rule 12(b) (6) of Federal Rules of Civil Procedure.
Rule 56(d) of Federal Rules of Civil Procedure.
Pages 93, 94, and 95 of the Transcript; but see Rule 52(a), as amended, which provides that findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 56, i. e., motions for summary judgments.
Rule 56(c) of Federal Rules of Civil Procedure.
42 Corpus Juris Secondum, pages 638 to 641.
See opinion of the court below, pp. 93, 94, and 95 of the record, which contains findings under Rule 52(a), as amended, sufficient to require the entry of an order under Rule 56(d) specifying the facts that “shall be deemed established” upon the trial.
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 29? Answer with a number.
Answer:
|
songer_othadmis
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Lyne Keith KILCREASE, Appellant, v. UNITED STATES of America, Appellee.
No. 71-1309.
United Stales Court of Appeals, Eighth Circuit.
March 28, 1972.
James T. Gleason, Omaha, Neb., for appellant.
R. C. Cougill, Asst. U. S. Atty., Richard A. Dier, U. S. Atty., for appellee.
Before MATTHES, Chief Judge, LAY, Circuit Judge, and HUNTER, District Judge.
Western District of Missouri, sitting by designation.
MATTHES, Chief Judge.
Appellant has appealed from the judgment of conviction entered on the jury’s verdict finding him guilty of knowingly possessing five unregistered firearms. Appellant claims on appeal that the district court committed three errors, to wit: (1) admission into evidence of a firearm obtained during an allegedly illegal search of his car; (2) admission of statements made by him to government agents and of firearms obtained by the government pursuant to these statements; and (3) rejection of his argument that § 5861(d) unconstitutionally abridges rights guaranteed him by the Fifth Amendment. We affirm the judgment of the district court.
I
Appellant was, early, in 1970, an Air Force master sergeant with eighteen years of service to his credit. He was stationed at Offutt Air Force Base, near Omaha, Nebraska. Agents in the Omaha office of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department received information on March 1, 1970, which indicated that appellant had an unregistered and illegally imported firearm in his automobile. Officers approached appellant the following morning as he alighted from his automobile, identified themselves, and asked permission to search the vehicle. The agents had no search warrant. No advice regarding constitutional rights was given at this time to appellant, but he consented to the search. The officers found the firearm inside the automobile.
Appellant next was taken to a government office, where, after being advised of his constitutional rights, he admitted possession of three additional unregistered firearms. Appellant voluntarily drove to his home, picked up the three weapons, and surrendered them to the questioning officers. Later on the same day, again in the Treasury Department office, appellant informed the agents that he had at his home a fifth unregistered firearm. This weapon, too, subsequently was surrendered voluntarily by appellant. Appellant admitted to officers on the following day, March 3, 1970, after renewed advice regarding his constitutional rights, that he had obtained all of the firearms while serving in the armed forces overseas. It is apparent from the trial transcript that appellant understood prior to his contact with the Treasury Department that the importation and possession of these weapons were illegal, and that appellant was troubled by his continuing possession of the weapons and was relieved when the weapons were taken by the government.
Appellant moved prior to trial for suppression of (1) the firearm discovered pursuant to the search of his automobile and (2) the statements made to the Treasury Department agents and the firearms obtained by the agents as a result of these statements. Objection to the admission of the first weapon was premised upon the agents’ failure to advise appellant that he need not consent to the warrantless search of his automobile. The basis of that part of the motion which sought to suppress appellant's statements and the remaining firearms was his contention, advanced at the hearing on the motion to suppress, that he had made the statements at the scene of the search without the benefit of advice concerning his constitutional rights. Treasury Department agents testifying at the hearing asserted that the statements had been made by appellant at their office, some time after the search and after appellant had been advised of his rights.
The district court denied the motion to suppress in all particulars. Appellant subsequently was convicted on all five counts of the indictment charging violations of 26 U.S.C. § 5861(d) and was sentenced to serve six months for each conviction. The district court designated the sentences to run concurrently, and placed appellant on probation.
II
We deal first with appellant’s contention that the search of his automobile was illegal, because he was not advised of his right to refuse to consent to the search, and thus that the firearm discovered during the search should have been suppressed. This argument is unpersuasive because appellant, as evidenced by his own testimony at the suppression hearing, was aware of his rights under the Constitution. Cf., Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. 1971), cert. granted, 405 U.S. 953, 92 S. Ct. 1168, 31 L.Ed.2d 230 (1972). It is well settled that “[t]he protection afforded by the Fourth Amendment . may, of course, be waived by a consent freely and intelligently given.” Drummond v. United States, 350 F.2d 983, 988 (8th Cir. 1965), cert. denied, Castaldi v. United States, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1966). The evidence convinces us that appellant “freely and intelligently” consented to the search of his automobile and that he thereby waived his right to object to that search.
Appellant’s argument against the admissibility of his statements to Treasury Department agents, and the firearms obtained by the government as a result of those statements, also must be rejected. The district court, in ruling against appellant on this portion of the motion to suppress, necessarily resolved in the government’s favor the factual dispute regarding the location at which the controverted statements were made. We construe the finding to be that the statements were made at the Treasury Department office. Because appellant concedes that he was advised of his rights upon arrival at that office, he can only prevail in this portion of his appeal if we reverse the district court’s finding as to the place at which the statements were made. This we are not disposed to do. Factual findings made by the trial court in a criminal case must stand unless clearly erroneous, at least where such findings concern matters other than the ultimate question of guilt. Rule 52(a), F.R.Civ.P., 28 U.S.C.; Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); United States v. Tallman, 437 F.2d 1103, 1104-1105 (7th Cir. 1971); Drummond v. United States, supra, 350 F.2d at 988. It is clear from the record in this ease that the challenged finding was not so in error.
Even assuming, arguendo, that the firearm found in appellant’s automobile should have been suppressed for the reasons advanced by appellant, we would not be warranted in reversing his conviction.
It is conceded that appellant was advised of his rights at least prior to giving the statement regarding the final illegal weapon eventually recovered from his home. Thus the admission into evidence of this firearm and appellant’s statement regarding his possession of it are not challengeable, and appellant’s conviction on the count of his indictment which alleged possession of this weapon must be upheld.
The law is settled that reversal is not required if the conviction underlying any one of several concurrent sentences is valid and alone supports the sentence and judgment. Greene v. United States, 358 U.S. 326, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959); United States v. Bessesen, 433 F.2d 861 (8th Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed.2d 545 (1971).
We come finally to appellant’s contention that the Fifth Amendment guarantee of freedom from compulsory self-incrimination bars his prosecution under § 5861(d). Appellant points out that because he is neither an importer, manufacturer, dealer, nor transferor of firearms within the definitions of 26 U.S.C. § 5845(k-m), he was not required by 26 U.S.C. § 5841(b) to register the firearms for possession of which he was prosecuted. Further, he observes, because 26 U.S.C. § 5848(a) precludes the incriminating use of registration information only if it is “required to be submitted,” he is not protected by the latter section, and thus, had he registered the weapons, the registration information could have been used in a prosecution against him for violations of other sections of the Gun Control Act.
Appellant’s argument is not acceptable. The result would be different if appellant, by registering his firearms, could have abated the possibility of prosecution under § 5861(d). Had that been the case, appellant would have been confronted with the Hobson’s choice, proscribed by the Supreme Court in Mar-chetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), and related cases, of failing to register and thus subjecting himself to prosecution under the registration section, or of registering and thus supplying the government with information which would have incriminated him under other sections. But no such choice is available under the Act to one in possession of unregistered firearms: only manufacturers, dealers, and professional importers of firearms are capable of registration. 26 U.S.C. §§ 5841(b), 5845(k-m); United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). The act prohibited by section 5861(d) is not failure to register weapons, but rather it is possession of weapons which should have been, but were not, registered. Cf., United States v. Harrelson, 442 F.2d 290, 292 (8th Cir. 1971). We reiterate the following conclusion, drawn in Reed v. United States, 401 F.2d 756, 763 (8th Cir. 1968), cert. denied, 394 U.S. 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48 (1969) :
“We do not believe the Supreme Court intended that its holding in Haynes should be applied to a situation where, as here, the defendant was under no statutory command to and did not in fact supply any self-incriminating information.”
See also United States v. Harflinger, 436 F.2d 928, 936-938 (8th Cir. 1970).
The judgment of the district court is affirmed.
. The agents may have acted unnecessarily in identifying themselves. Appellant, testifying at a hearing prior to his trial, stated that the agents “were as obvious as clowns at a circus.”
. Appellant’s concern is evidenced by the following testimony, which occurred during his cross-examination at the pretrial hearing on the motion to suppress:
“Q. You were cooperative with [the agents], weren’t you?
A. I was trying.
Q. Isn’t it a fact that you told them that you were relieved to get rid of the guns, and so forth?
A. That is true.
Q. They had been a burden to you for some time?
A. Yes.”
. Section 5861(d) provides that it shall be unlawful for any person “to receive or possess a firearm which is not registered to him in the National Elrearms Registration and Transfer Record.”
. Section 5844 prohibits the importation of firearms with exceptions not including appellant’s importations. Section 5861 (k) prohibits the possession of an illegally imported firearm.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_usc2
|
26
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
MARSMAN v. COMMISSIONER OF INTERNAL REVENUE.
No. 6535.
United States Court of Appeals Fourth Circuit.
Argued April 13, 1953.
Decided June 3, 1953.
Rehearing Denied July 7, 1953.
Herbert W. Clark, San Francisco, Cal. (Nelson T. Hartson, Seymour S. Mintz, William T. Plumb, Jr., Washington, D. C., Leon F. De Fremery, Clarence E. Musto, Richard J. Archer, Morrison, Hohfeld, Foerster, Shuman & Clark, San Francisco, Cal., and Hogan & Hartson, Washington, D. C., on the brief), for petitioner.
Louise Foster, Special Asst, to the Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and Plelen Goodner, Special Assts. to the Atty. Gen., on the brief), for respondent.
Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This petition to review the decision of the Tax Court presents the questions whether Mary A. Marsman, a citizen of the Commonwealth of the Philippines, was a resident of the United States during the period from September 22, 1940 to December 31, 1941, and if so, whether she is liable for United States income tax on certain undistributed net income held on December 31, 1940 by La Trafagona, a Philippine corporation, wholly owned by her. If these questions are resolved against the taxpayer, it is also necessary to determine (1) whether the tax should be based on one-half of the entire amount of the undistributed income of La Trafagona on December 31, 1940, or only so much thereof as was acquired after September 22, 1940, when she became a resident of the United States; and (2) whether the taxpayer, being on a cash basis, is entitled to a credit against her United States income tax for 1941 in the amount of the income taxes paid by her to the Philippine Islands in 1941 for the years 1938 and 1940.
The Tax Court found that Mrs. Mars-man was a resident of tile United States between September 22, 1940 and December 31, 1941, the tax periods involved herein, and that she was taxable on the undistributed income of La Trafagona for the entire year 1940 rather than for the period from September 22 to December 31, 1940, and that no pari of the income taxes paid to the Philippine government in 1941 was available to her as a credit against the United States income taxes due by her for that year.
The evidence on the controlling issues of residence may be summarized as follows: The taxpayer, a native of Scotland, and her present husband, J. H. Marsman, a native of Holland, became residents of the Philippines prior to 1920 and were married there in that year. They were naturalized in the Philippines in 1934 and became citizens of the Commonwealth in 1935 and remained citizens during the taxable period.
During these years each of them controlled large corporate business enterprises through the medium of a wholly owned Philippine holding company, that is, La Trafagona, owned by the taxpayer, and El Emprendedor, owned by her husband. They maintained two large and well furnished houses in the Philippines, one in Manila and another at Baguio, which were adequately staffed and always open for occupation. In 1939 and 1940 they made extensive improvements in these residences and acquired new furnishings for them.
In 1939 they planned to place their daughter Anne in school in England or on the continent of Europe, and on April 28 of that year, the three came to San Francisco partly for this purpose and partly to combine a business trip to the United States with a vacation in Europe. After their arrival Mr. Marsman, whose wide connections kept him well informed of the threat of war, concluded that it was not advisable to take his family to Europe and so he left them in California and flew to Europe on a business trip. He returned to San Francisco in September and shortly thereafter returned to Manila and did not return to the United States until December, 1939.
The husband and wife opened a joint account with a stockbroker in San Francisco in 1939 and Mrs. Marsman also opened such an account in her own name.
When the family first arrived in San Francisco in April, 1939 they took up residence in a hotel, accompanied by several servants. In June, 1939 Marsman bought a house for $30,000 and furnished it for use as a residence by the daughter while in attendance at school, and persons were engaged to care for her and the residence during her parents’ absence. In 1943 the house was sold and another was purchased in Los Altos, California.
The daughter was enrolled in a private school in San Francisco in September, 1939, completed her first year, and left for Manila in July, 1940. Her parents had preceded her in the previous April. They bought a yacht in California for $75,000 in 1940 and engaged a crew to sail the vessel to the Philippines in April.
The tax period under consideration began on September 22, 1940, when Mrs. Marsman and the daughter returned to San Francisco by air, and the child was again entered in school. Marsman remained in Manila except for short business trips and a visit to' the United States from June to September, 1941, when he returned to Manila. In December, 1941 he flew to Hong Kong and was captured by the Japanese. He escaped and came to the United States in 1942. He was not a resident of the United States at any time during the tax period which ended December, 1941.
Mrs. Marsman remained in the United States continuously from September 22, 1940 until 1945. She and her daughter were admitted on the occasion of their first visit in April, 1939 for “a temporary period, of six months.” In October, 1939 an extension of the temporary stay was granted for six months. On September 22, 1940, the mother and daughter were admitted for “a temporary period of ten months.” On July 1, 1941 an. extension for one year was requested for the reason that conditions abroad were still in an unsettled state; and in 1942, 1943 and 1944 additional extensions were requested and granted because of the war. In 1945 a one year extension was denied. On February 7, 1948 the taxpayer was allowed to enter the United States through Canada as a permanent British immigrant.
Mrs. Marsman denied that she formed the intent to remain in the United States during the taxable period, but there is nevertheless abundant evidence that her extended stay in this country was caused by war conditions and the desire to avoid the danger that would have attended a return to the Philippines. The Marsmans were acquainted with persons of importance in many parts of-the world and through their contacts were led to believe that there was grave danger of war in the Orient in 1940. Correspondence between the husband in Manila and the wife in San Francisco in the fall of 1940 and thereafter indicates his fear of war, his acquaintance with the' preparations of the United States in the Philippines to meet the emergency, and his satisfaction that his wife was in a safe place. Her letters to him frequently expressed her desire to return to her home, even as late as October, 1941, as well as her sense of obligation to the Marsman employees in the Philippines, but she nevertheless yielded to his wishes and his advice and was herself convinced of the danger, and in October, 1940, advised relatives in Canada to stay away from Manila.
In view of these facts we are of the opinion that the Tax Court was justified in finding that on September 22, 1940 Mrs. Marsman “had a definite intent to remain in the United States until such time as the danger of war in the Orient subsided”; and we do not think that the issuance of certificates for a stay in this country for temporary periods, or the presence of her daughter at school in San Francisco, or the strong desire of the taxpayer to return to her established home in the Philippines as soon as it should become safe for- her to do so, are inconsistent with the court’s conclusion. The case is governed by Treasury Regulations 111 § 29.211-2 where it is laid down that one who comes to the United States for a purpose of such a nature that an extended stay may be necessary for its accomplishment, and to that end makes his home temporarily in the United States, becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. The weight to be given to this Regulation in considering a question of residence in the application of the income tax law, was discussed by this court under somewhat similar factual conditions in Commissioner of Internal Revenue v. Nubar, 4 Cir., 185 F.2d 584, and Commissioner of Internal Revenue v. Patino, 4 Cir., 186 F.2d 962. We conclude that the taxpayer was taxable as a resident alien during the taxable years.
We come then to the questions relating to the inclusion of the undistributed net income of La Trafagona in the taxable income of Mrs. Marsman for the year 1940, and her claim to a credit against her United States income tax for 1941 of the amount of the income taxes paid by her to the Philippine government in 1941. The undistributed net income of La Trafagona for the entire year 1940 was $130,357.04, when computed under the provisions relating to “undistributed Supplement P net income” contained in Section 335 of the Internal Revenue Code, 26 U.S.C.A. § 335. The amount is not in dispute and the controversy is as to what portion thereof should be included in the taxable income, the taxpayer contending that the income acquired by the corporation prior to September 22, 1940 is not taxable in the United States, while the government contends that the income of the corporation for the entire taxable year was taxable to Mrs. Marsman. The statute relied on is Section 337 of the Internal Revenue Code, 26 U.S.C.A. § 337, which provides that the undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of citizens or residents of the United States who are shareholders thereof in the manner and to the extent set forth in the Supplement. Section 331 provides that a foreign corporation is such a holding company, if at least 50 per cent of its gross income (as defined in Section 334(a) is of the character described in Section 332, and if at any time during the taxable year more than 50 per cent in value of its outstanding stock is owned by not more than five individuals or residents of the United States who are called “United States group”.
It is not disputed that La Trafagona meets these requirements both as to the nature of its income and the ownership of its stock. The question is as to the interpretation of Section 337 which specifies the amount of the undistributed Supplement P net income which shall be included in the gross income, as follows:
“(a) General rule. The undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of the citizens or residents of the United States * * * who are shareholders in such foreign personal holding company (hereinafter called ‘United States shareholders’) in the manner and to the extent set forth in this Supplement.
“(b) Amount included in gross income. Each United States shareholder, who was a shareholder on the day in the taxable year of the company which was the last day on which a United States group (as defined in section 331(a)(2) existed with respect to the company, shall include in his gross income, as a dividend, for the taxable year in which or with which the taxable year of the company ends, the amount he would have received as a dividend if on such last day there had been distributed by the company, and received by the shareholders, an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable year as the portion of such taxable year up to and including such last day bears to the entire taxable year.”
It will be seen that this section requires every “United States shareholder” of a foreign personal holding corporation to include in his gross income certain undistributed net income of the corporation if he was a stockholder on the last day in the tax year when the United States group was in existence. In this case the group consisted of Mrs. Marsman alone and she remained the sole shareholder until the last day of the year, so that she is within the definition of shareholder contained in the statute. As such she is required to include in her gross taxable income the amount she would have received as a dividend upon the last day of 1940 if on that day there had been distributed to her as the sole stockholder “an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable .year as the portion of such taxable year up to and including such last day bears to the entire taxable year.” Since the last day in this case is the last day of the year 1940, Mrs. Marsman would be required to include in her- gross income the Supplement P net income of La Trafagona for the entire year, if the language.of the section is to be given a strictly literal interpretation.
We do not think, however, that the statute should be applied literally and without reference to the purpose for which it was admittedly enacted. The provisions of the statute now set out in Sections 331 to 340 of the Internal Revenue Code, 26 U.S.C.A. §§ 331-340, as Supplement P — Foreign Personal Holding Companies, were first enacted in Title II of the Revenue Code of 1937. They were passed by Congress to prevent the avoidance of income tax by taxpayers in the United States which was accomplished by placing-income of the taxpayer in the hands of a foreign holding company that was itself not subject to the jurisdiction of the United States. The Ways and Means Committee of the House of Representatives made this plain in its report to the House (IT.R.Rep. No. 1546, 75th Cong., 1st Sess. 1937), when it said: “* * * The- evidence presented to the Joint Committee has shown that foreign personal holding companies have afforded one of the most flagrant loopholes for tax avoidance. The use of such corporations has greatly increased within the last few years. Unless- immediate preventative measures are taken increased loss of revenue will be suffered in the future.”
The statute was obviously designed to reach the income of persons who were subject to the tax laws of the United States but were eluding taxation through the foreign holding company device. Accordingly Section 331(a)(2) provided that the stock ownership requirement of a foreign personal holding company should be the ownership of 50 per cent in value of its outstanding stock by not more than five individual citizens or residents of the United States, who are called “United States group” in- Section 331 and “United States shareholders” in Section 337; and Section 337 provided that the undistributed Supple-' ment P income of such a corporation must •be included in the gross income of such shareholders. Thereby the distinction between the corporate entity and its controlling United States shareholders was wiped out for the purposes of income taxation and the tax avoidance device of placing undistributed taxable income in a corporation outside the United States was frustrated.
But Congress did not intend to reach the income of persons, such as alien nonresidents, which was not subject to the laws of the United States when it was received by them or by a holding company subject to their control. If that part of the income of Mrs. Marsman, now sought to be taxed, which was earned prior to September 22, 1940, had been received by her instead of by her holding company prior to that date, no one would contend that it was subject to taxation by the United States when she became a resident of this country; and it is not reasonable to suppose that Congress intended that the statute should produce such an unlooked for result. The government’s answer to this view is that the taxpayer and the holding corporation are separate and distinct entities in the eye of the law, and hence the income of La Trafagona prior to September 22, 1940 was not the taxpayer’s income, when received, but became such only after she acquired a residence in this country and became subject to the provisions of the statute which converted undistributed income of a holding company into the income of the shareholders as of the last day of the year. We cannot agree with this analysis of the problem, for it not only extends the statute far beyond its announced purpose, but .it is inconsistent in itself in that it treats the taxpayer and the corporation as distinct legal persons during the first part of the year but as one and the same person after the taxpayer acquired her residence in the United States. If the government’s contention is sound, an alien? who controls a foreign holding company with undistributed income and becomes a resident of the United States on the last day of the year, and hence is a taxpayer of the United States for only a single day, would he subject to income tax upon the income for the entire year. We cannot attribute to the Congress of the United States the intent to accomplish such an extraordinary result.
A more reasonable approach has been taken by the Tax Court in the analogous situation which occurs when there is a change in the status of a taxpayer during the tax year, as where a taxpayer, who is exempt from income tax at the beginning of the year, loses the exemption in the course of the twelve months. Thus iu Economy Savings & Loan Co. v. Com’r, 6 Cir., 158 F.2d 472, a building and loan association, which was exempt from taxation because its business was substantially confined to making loans to members, lost its exemption during the year by changing substantially all of its business to lending money to depositors. Although the statute made no specific provision for such a contingency, ilie court held that the income for the portion of the year prior to the change of business operations was exempt but that the income for the remainder of the year was subject to taxation. See also Royal Highlanders v. C. I. R., 1 T.C. 184, reversed on other grounds, 8 Cir., 138 F. 2d 240; Reserve Loan Life Ins. Co. of Tex. v. C. I. R., 4 T.C. 732.
No reason is suggested, other than the insistence upon a literal interpretation of the statute regardless of results, why a similar procedure should not be followed in the pending case. Returns for a fractional part of the tax year are recognized by Section 48(a) of the Internal Revenue Code, 26 U.S.C.A. § 48(a). Such a return was required of the taxpayer for that part of the year which began when she took up her residence in this country; and if the taxpa3>-er is permitted to limit her report of the undistributed income of La Trafagona to the amount received by that corporation during the last 101 days of 1940, she will pay the tax on all the income received during the period when she was subject to the tax laws of the United States and the purpose of the statute will be effectuated.
This view is in accord with Ihe rule of interpretation enunciated in United States v. Amer. Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345, where the court declined to interpret literally the word “employee” as found in the Motor Carriers Act, because it would place upon the Interstate Commerce Commission, contrary to the settled practice of Congress, the duty of regulating the qualifications of a large number of employees who had nothing to do with safety of operation. The court said, 310 U.S. at pages 543-544, 60 S.Ct. at page 1063:
“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ”
The last question for decision relates to the right of the taxpayer to a credit against her United States income tax for the year 1941 of the amount of her Philippine income taxes for the years 1938 and 1940;A paid by her in 1941. In the last mentioned year, the taxpayer, her husband and daughter, filed joint Philippine income tax returns for the years 1938-41, and paid to the Philippine government 265,812.87 pesos for a deficiency in income tax for the year 1938, and 198,699.12 pesos for income tax for the year 1940.
The taxpayer bases her claim to the credit upon the literal unambiguous wording of Section 131 of the Internal Revenue Code, as amended by the Revenue Act of 1942, 26 U.S.C.A. § 131, as follows:
“Sec. 131(a) Allowance of Credit. — ■ If the taxpayer chooses to have the benefits of this section, the tax imposed by this chapter, except the tax imposed under section 102 or section 4S0, shall be credited with:
******
“(2) Resident of United States. — ■ In the case of a resident of the United States, the amount of any such taxes paid or accrued during the taxable year to any possession of the United States; and * *
“Section 131(b) Limit on Credit.— The amount of the credit taken under this section shall be subject to each of the following limitations:
“(1) The amount of the credit in respect of the tax paid or accrued to any country shall not exceed the same proportion of the tax against which such credit is taken, which the taxpayer’s net income from sources within such country bears to his entire net income, in the case'of a taxpayer other than a corporation, * *
The taxpayer contends that the full amount of the Philippine income taxes paid by her in 1941 is available to her as a credit against her United States income tax for that year because the payments fell clearly within the express terms of Section 131(a)(2) subject only to the limitation contained in Section 131(b) which in this case means that the amount, of the credit shall not exceed the same proportion of the United States tax as her taxable income derived from the Philippines bore to her entire income.
The Tax Court denied the credit as to 1938 entirely and allowed the credit as to 1940 only as to such portion of the Philippine income taxes as were allocable to the period between September 22 and December 31, 1940, during which the taxpayer was a resident of the United States. In so doing the Tax Court departed from its insistence upon the literal meaning of the applicable statute which it displayed in interpreting Section 337 of the Internal Revenue Code as shown above, and held that Section 131 should be so construed as to effect the Congressional purpose to allow a credit of taxes paid to other countries so as to lift the burden of double taxation from the shoulders of the taxpayer.
We are in accord with this interpretation. The Supreme Court has held that the primary purpose of the tax credit, which was first authorized by Section 222 of the Revenue Act of 1918 and is now found in Section 131, was to mitigate the evils of double taxation. See Burnet v. Chicago Portrait Co., 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587; American Chicle Co. v. United States, 316 U.S. 450, 62 S.Ct. 1144, 86 L.Ed. 1591; Hubbard v. United States, Ct.Cl., 17 F.Supp. 93, certiorari denied 300 U.S. 666, 57 S.Ct. 508, 81 L.Ed. 873. This, purpose will not be served and double taxation will not be avoided by allowing the credit now sought by the taxpayer because the 1938 and 1940 Philippine income taxes, paid by the taxpayer in 1941 were imposed upon income which was never subjected and could not be subjected to the United States income taxes for the reason that the taxpayer was a nonresident of the United States until September 22, 1940 and the Philippine income during these two. years was derived from sources outside the United States. To allow the credit under such circumstances would be to give preferred status to a citizen of the Philippines, as compared with a citizen of the United States, and it is not reasonable to suppose that such a result was within the contemplation of Congress.
Other cognate sections of the taxing statutes support this construction of Section 131. It is provided in Section 252 of the Internal Revenue Code, 26 U.S.C.A. §; 252, that an individual, such as the taxpayer, who was a citizen of a possession of' the United States but not otherwise a citizen of the United States, shall be taxed only on income derived from the United States, and that the tax must be computed. as in the case of other persons who are taxable only on income derived from the United States. These other persons are non-resident aliens who by the terms of Section 216 of the Code are expressly denied tax credits based on taxes paid to foreign countries and possessions of the United States. Consequently, if the taxpayer had had income from sources within the United States in 1938 or in 1940 prior to September 22, she would have been allowed no credit for the Philippine taxes paid for these years. In view of these provisions of the tax statutes relating to non-residents it would be anomalous to hold that when the taxpayer became a resident of the United States in 1940 and paid in 1941 overdue Philippine income taxes for 1938, she became entitled to a tax credit under Section 131 which could not have been allowed if the tax had been paid in the year when it was due and payable.
The taxpayer relies on the decision of this court in Helvering v. Campbell, 4 Cir., 139 F.2d 865, where we held that a United States citizen residing in the Philippine Islands was entitled to a credit for the entire Philippine income tax and not merely to a credit for the taxes paid on a portion of the income. But this decision related not to the right to a credit for Philippine taxes paid during the year but to the amount of the credit to be allowed, and we do not regard it as controlling in the present case.
The decision of the Tax Court will be affirmed as to the question of residence and the question of the proper tax credit to be allowed, and will be reversed as to the amount of the undistributed income of La Trafagona to be included in the income of the taxpayer subject to the United States income tax, and the case will be remanded for further proceedings in accordance with this opinion.
Reversed and remanded.
. It is conceded that the taxpayer’s income under Philippine law is community property and that she is chargeable for only one-half of the undistributed property of La Trafagona.
. Section 29.211-2 of the Regulations also provides that an alien whose stay is limited to a definite period by the immigration laws is not a resident in the absence of' exceptional circumstances; and Section 29.211 — 4 states that an alien is presumed to be a non-resident but that the presumption may be overcome by proof that his stay in this country has been of such an extended nature as to constitute Mm a resident. It is evident, however, that these provisions do not conflict with the conclusion that has been reached.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_usc1sect
|
155
|
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 8. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES ex rel. TRINLER v. CARUSI.
No. 9461.
Circuit Court of Appeals, Third Circuit.
Argued Dec. 15, 1947.
Decided Feb. 16, 1948.
O’CONNELL, Circuit Judge, dissenting.
Abram Orlow, of Philadelphia, Pa. (Lemuel B. Schofield, of Philadelphia, Pa., on the brief), for appellant.
Maurice A. Roberts, of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., and James P. McCormick, Asst. U. S. Atty., both of Philadelphia, Pa., on the brief), for ap-pellee.
Before GOODRICH, McLAUGHLIN and O’CONNELL, Circuit Judges.
GOODRICH, Circuit Judge.
This case raises an interesting question concerning the right to judicial review under the Administrative Procedure Act, hereinafter referred to as the Act.
The appellant, Trinler, is.an alien who was admitted to the United States in 1942 as a “treaty merchant”. He was subsequently convicted for the violation of a Presidential war order, paid his fine and served the sentence imposed on him. Still later he has been made the unhappy subject of a deportation order issued by the Commissioner of Immigration and Naturalization, the person to whom the authority of the Attorney General to deport has been delegated. This order was issued on the ground that he had failed to maintain his “treaty merchant” status. Claiming that the Act gave him a right to judicial review of this order, he filed in the District Court of the United States for the Eastern District of Pennsylvania a document labelled “Petition for Review”. On motion of the respondent the petition was dismissed. 72 F.Supp. 193 (E.D.Pa.1947) noted in 96 U. of Pa.L.Rev. 268 (1947). He has appealed.
The first question raised is whether, assuming all other questions are answered in favor of the appellant, this case is ripe for review. It was suggested in the argument in this Court that the administrative process had not yet come to an end and until it had, review was premature. This point was evidently not made in the District Court and, indeed, was not taken seriously in the briefs submitted to us. But it was stressed in oral argument and has made us some difficulty.
We think this objection does not impose any substantial obstacle to review. The administrative process has come to an end. The statute says “the decision of the Attorney General shall be final.” That decision has been made by the Commissioner of Immigration and Naturalization, the duly delegated official, and this deportation order has been issued thereupon. It is true that Trinler has not been taken into custody and, obviously, has not been put on a ship for deportation, nor has the ship sailed. But these three things are no part of the administrative process. That ended when, intermediate proceedings provided for by the regulations issued by the Attorney General having been gone through with, the order of deportation was issued. There is nothing more to do now than the purely ministerial act of taking the man into custody, putting him on a ship bound for the designated port.
No inconsistency between this view and that of the selective service cases is present. In fact they furnish a persuasive analogy here, as shown by the following language of Mr. Justice Douglas in Estep v. United States: “Falbo v. United States, supra [320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305], does not preclude such a defense in the present cases. In the Falbo case the defendant challenged the order of his local board before he had exhausted his administrative remedies. Here these registrants had pursued their administrative remedies to the end. All had been done which could be done. Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them.”
To conclude that the administrative proc-ess has ceased with the issuance of the deportation order by the delegatee of the Attorney General does not, however, settle the question of whether Trinler has a right of judicial review or the nature of that right, if any he has. Attention has already been called to the language of the statute which says that the “decision of the Attorney General shall be final.” Nevertheless, and in spite of such language, it is perfectly clear that it is not final in the sense that courts cannot do anything about it. The petitioner points out, and the Government agrees, that the legality of deportation orders may be tested in habeas corpus proceedings. The Government also points out and the petitioner agrees, that such orders have been tested successfully only in such proceedings and subject to whatever limitations as there are inherent in such proceedings as to the scope of those questions which may be raised by habeas corpus. Such review is not available to this petitioner because he has not yet been taken into custody.
We have, therefore, a situation where in spite of statutory language of finality for an administrative order there is judicial review of long standing, albeit of a limited nature. The new question presented in this litigation is whether that review has been enlarged by Section 10 of the Administrative Procedure Act. Paragraph (a) of Section 10 gives judicial review to “Any person * * * adversely affected * * * by such action.” We do not need to labor the point that petitioner is adversely affected by the deportation order. His difficulty comes, however, in the “excepting” clause with which Section 10 opens. That clause says “Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion” the right of judicial review is given.
The Commissioner says that this case is an instance under the first exception because the basic statute precludes judicial review and it precludes it in the already quoted phrase that the “decision of the Attorney General shall be final.” Trinler says this phrase does not settle the question because in spite of that language courts have judicially reviewed deportation orders for many years through the habeas corpus proceedings. It is admitted, says Trinler, that at this particular stage of his deportation matter habeas corpus would not be available. Nevertheless, his argument runs, since there is a court created judicial review for deportation orders it cannot be said that the case is one where judicial review is precluded. Therefore, the argument continues, he has the right to review which Section 10 of the statute gives and the right accrues when the order is issued without his having to wait for the court created right of review by habeas corpus.
The Commissioner argues that such a result would upset long established administrative procedure in the handling of deportation cases. The petitioner argues that to permit a right of review upon the issuance of the deportation order instead of compelling .a man to wait until arrested is ever so much fairer to him and prevents the hardship of his having to sacrifice his American possessions and be prepared to be taken out of the country if his habeas corpus proceedings fail. We can grant the truth of the foregoing statements by each side without being helped in the- solution of our problem here. If the Act creates new rights for aliens by providing an earlier review of deportation orders, the Attorney General will have to modify his administrative practice. If it does not, the alien will have to continue to suffer whatever hardships that accompany his right to habeas corpus. The nub of the question seems to us to be whether these deportation proceedings are such as to fall within the first exception to Section 10 as a proceeding provided by a statute which “preclude[s] judicial review”.
Our conclusion is that the case does not fall within the exception. Therefore the judicial review provisions found in Section 10 of the Act are applicable. We are impressed by the fact that in spite of the basic statute’s wording habeas corpus proceedings have always been available. Since they have been available the situation cannot be one where judicial review in the past has been precluded. In this we are supported, we think, by discussion found in the legislative history of the Act. In that discussion it was pointed out that statutes which preclude judicial review are unusual. Congressman Walter pointed out to the House of Representatives that this clause was simply put in to provide for the unusual situation where judicial review of administrative action was actually precluded.
It may be granted that the area covered by Section 10 of the statute is not very wide. Counsel for petitioner has given us a long list of important statutes in which judicial review is expressly provided for. It may well be that the instances where it is expressly precluded are few. But whether the new law made by Section 10 be wide or narrow, the instant case seems to us to be one which fits into it.
While it might look as though judicial review were precluded by the giving to the deportation order the air of finality, in practice such finality never existed because of the availability of habeas corpus. The fact that review has been judge-made out of the concept of due process does not make it any less a qualification of the statute than if the legislators had put the provision in it when the statute was first drawn.
Since we conclude that petitioner is entitled to judicial review following the issuing of the order which adversely affects him, we think the form in which he has asked for such review is proper enough. The respondent pointed out to us that a bill in equity, declaratory judgment, and similar remedies were not available in these deportation cases. That is agreed to as the law stood prior to the Administrative Procedure Act. What we are here deciding is that the Act did enlarge the rights of people against whom deportation orders have been issued and that they are now entitled to judicial review after the issuing of a deportation order. That being so, a document headed “Petition for Review” is an appropriate enough form in which to ask for the relief.
It will be noted that the caption of this case is the type which customarily appears in habeas corpus proceedings. It seems to us inappropriate here. The United States is not the complaining party nor is Trin-ler a “relator”. He is a petitioner and a public official is the respondent. These points do not go to the merits of the controversy but should be observed in the interest of neat presentation.
We express at this point no opinion whatever upon the merits -of the petitioner’s case. All we are deciding is that under the Administrative Procedure Act of 1946 he is entitled to have judicial review as one adversely affected by the deportation order after its promulgation but before he has been taken into custody.
The judgment of the District Court will be reversed and the case remanded for further proceedings in accordance with this opinion.
60 Stat. 237, Act June 11, 1946, 5 U.S.C.A. § 1001 et seq.
43 Stat. 154, Act May 26, 1924, 8 U.S.C.A. § 203.
The deportation of aliens has by law been committed to the Attorney General. He has, however, delegated that authority to the Commissioner of Immigration and Naturalization with a right of review of the Commissioner’s order to the Board of Immigration Appeals in those cases in which the Commissioner determines that the alien should be deported. 8 C.F.R. 90.1 (Supp.1943); 8 C.F.R. 90.3 (Supp. 1945); see Warren, The Federal Administrative Procedure Act and The Administrative Agencies (1947) pp. 294-295. If the Board’s conclusions conflict with those of the Commissioner the case may be certified to the Attorney General upon the Commissioner’s request or the Attorney General may request that the record in any case be certified to him. 8 C.F.R. 90.3 (Supp.1945).
The allegations in the petition, which for the purpose of this appeal we must take to be true, do not state which procedure was followed in the case at bar. But the following paragraphs of that petition state the authority of the Commissioner and that he issued the final order. They state:
“2. That the Defendant is the Commissioner of Immigration and Naturalization duly authorized by law to carry into effect the provisions of the Immigration Act of February 5, 1917 and all amendments thereto, and authorized by law to enter final orders thereunder.”
“4. That by virtue of the provisions of the ‘Administrative Procedure Act’ above referred to, this Court has jurisdiction to review the proceedings in which the Commissioner of Immigration and Naturalization is a party in his final capacity as a designated officer of the Government of the United States who enters a final order in administrative proceedings by an Agency of the Government of the United States.”
“8. That thereafter the defendant issued a warrant of arrest in proceedings for deportation by virtue of the authority of the defendant under the Immigration Act of 1924 and after hearing and review, the said defendant directed the deportation of your petitioner and advised him that a final order had been entered by the defendant under the proceedings whereby the petitioner was to make himself ready for deportation at the convenience of the Defendant.”
§ 19 of the Immigration Act of 1917, 39 Stat. 889, amended by 54 Stat. 1238, Reorganization Plan No. 5, June 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A. § 155.
When the Commissioner determines that there is cause to suspect that a person is in the country in violation of the Immigration statute he causes a warrant to be issued. It is the issuance of the warrant which starts the administrative process and the hearing afforded the alien comes after the warrant is issued. See Warren, The Federal Administrative Procedure Act and The Administrative Agencies (1947) pp. 294-295. The regulations of the Attorney General provide that the alien shall be accorded a hearing before an immigration inspector to determine whether he is subject to deportation on the charges stated in the warrant of arrest, at which hearing the alien is entitled to representation by counsel and to offer evidence in his behalf. After the conclusion of the hearing, the inspector is required to prepare a memorandum setting forth a summary of the evidence adduced at the hearing, his proposed findings of fact and conclusions of law and a proposed order, which are to be furnished to the alien, or his counsel who may file exception thereto and submit a brief. 8 C.F.R. 150.6 (Supp.1941). The decision is then made by the Commissioner. The alien then has a right of appeal to the Board of Immigration Appeals, a body authorized by the Attorney General to perform his functions in relation to deportation but responsible solely to him. 8 C.F.R. 90.3 (Supp.1945). If one member of the Board dissents the proceedings are reviewed by the Attorney General, 8 C.F.R. 90.5, 90.12 (Supp.1945). Otherwise, the warrant of deportation is issued by the Commissioner.
Once the order is issued the Commissioner would be recreant to his duty and disobeying the law if he did not deport the alien unless the matter came within the exception contained in the Immigration Act which is not involved here. 39 Stat. 889, Act Feb. 5, 1917, amended 54 Stat. 1238, Reorganization Plan No. 5, Juné 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A. § 155; see United States v. Commissioner of Immigration, S.D.N. Y.1936, 14 F.Supp. 484,487.
1946, 327 U.S. 114, 123, 66 S.Ct. 423, 428, 90 L.Ed. 567.
In Japanese Immigration Case, 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721, it was Feld that in habeas corpus proceedings a court could inquire into the ■deportation proceedings to ascertain if a fair hearing was had, notwithstanding that the statute contained no provision for a judicial review. Congress was aware of this case when it wrote the present immigration law. Sen.Rep.No. 352, 64th Cong., 1st Sess., Vol. 2, Misc. ii. p. 16 (1916); see 96 U. of Pa.L.Rev. 268 (1947).
Petitioner, however, states that other proceedings have failed because the remedy employed was not the proper one rather than due to the fact that ha-beas corpus was the exclusive remedy. See 96 U. of Pa.L.Rev. 268 (1947). In this connection it is interesting to note that the Attorney General’s Committee indicated that the Declaratory Judgment Act of 1934 may afford a method to review deportation orders. See Administrative Procedure Act — Legislative History, Sen.Doc.No.248, 79th Cong., 2d. Sess. p. 37.
60 Stat. 243, Act June 11, 1946, 5 U.S.C.A. § 1009(a).
60 Stat. 243, Act June 11, 1946, 5 U. S.C.A. § 1009.
The Immigration Act of 1917, 39 Stat. 889, Act Feb. 5, 1917, amended by 54 Stat. 1238, Reorganization Plan No. 5, June 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A § 155.
An example is the Economy Act of 1933, 48 Stat. 9, Act March 20, 1933, 38 U.S.O.A. § 705. In that Act such prohibition is expressly stated in clear and unequivocal language. United States v. Mroch, 6 Cir., 1937, 88 F.2d 888. The language used in the Selective Service Act, on the other hand, caused the court to hold that review of a Board’s order was permissible. Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Congress, itself, recognized that such language was not strong enough to prohibit all review for it indicated that habeas corpus would be available after the registrant was inducted. H. Rep.No.36, 79th Cong., 1st Sess. (1945) 5.
See Administrative Procedure Act— Legislative History, Sen.Doc.No.248, 79th Cong., 2d Sess. p. 380. In five of the six bills introduced the original phrase in the section prescribing judicial review was “expressly preclude”. The elimination of the word “expressly” in the bill which finally became law has no significance other than to indicate that the failure of the basic statute to contain the exact words “precludes review” is not conclusive. But the words of the Act when given their ordinary meaning and reference to the legislative history makes it clear that a mere failure to provide for review or an intent to limit the review granted does not place a statute within the “excepting clause” of the Act. See Administrative Procedure Act — Legislative History, supra pp. 131-183 (various bills introduced), 311, 318, 325, 212.
That it was the Congressional intent to make new law in this connection is evident from the answers given by the sponsor of the bill when it was being presented to the Senate. See Administrative Procedure Act — Legislative History, Sen.Doe.No.248, 79th Cong., 2d Sess. pp. 311, 318, 325.
gee Freund, Administrative Powers Over Persons and Property 240-1 (1928).
Question: What is the 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 8? Answer with a number.
Answer:
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sc_respondentstate
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04
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
WHITE MOUNTAIN APACHE TRIBE et al. v. BRACKER et al.
No. 78-1177.
Argued January 14, 1980
Decided June 27, 1980
Mabshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, and Powell, JJ., joined. Powell, J., filed a concurring opinion, post, p. 170. Stevens, J., filed a dissenting opinion, in which Stewart and Rehnquist, JJ., joined, post, p. 153.
Neil Vincent Wake argued the cause for petitioner Pinetop Logging Co. Michael J. Brown argued the cause for petitioner White Mountain Apache Tribe. With them on the briefs were Leo R. Beus and Kathleen A. Rihr.
Ian A. Macpherson, Assistant Attorney General of Arizona, argued the cause for respondents. With him on the brief were Robert K. Corbin, Attorney General, and Anthony B. Ching, Solicitor General.
Elinor Hadley Stillman argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, and Robert L. Klarquist.
Ms. Justice Marshall
delivered the opinion of the Court. In this case we áre once again called upon to consider the extent of state authority over the activities of non-Indians engaged in commerce on an Indian reservation. The State of Arizona seeks to apply its motor carrier license and use fuel taxes to petitioner Pinetop Logging Co. (Pinetop), an enterprise consisting of two non-Indian corporations authorized to do business in Arizona and operating solely on the Fort Apache Reservation. Pinetop and petitioner White Mountain Apache Tribe contend that the taxes are pre-empted by federal law or, alternatively, that they represent an unlawful infringement on tribal self-government. The Arizona Court of Appeals rejected petitioners’ claims. We hold that the taxes are pre-empted by federal law, and we therefore reverse.
I
The 6,500 members of petitioner White Mountain Apache Tribe reside on the Fort Apache Reservation in a mountainous and forested region of northeastern Arizona. The Tribe is organized under a constitution approved by the Secretary of the Interior under the Indian Reorganization Act, 25 U. S. C. § 476. The revenue used to fund the Tribe’s governmental programs is derived almost exclusively from tribal enterprises. Of these enterprises, timber operations have proved by far the most important, accounting for over 90% of the Tribe’s total annual profits.
The Fort Apache Reservation occupies over 1,650,000 acres, including 720,000 acres of commercial forest. Approximately 300,000 acres are used for the harvesting of timber on a “sustained yield” basis, permitting each area to be cut every 20 years without endangering the forest’s continuing productivity. Under federal law, timber on reservation land is owned by the United States for the benefit of the Tribe and cannot be harvested for sale without the consent of Congress. Acting under the authority of 25 CFR § 141.6 (1979) and the tribal constitution, and with the specific approval of the Secretary of the Interior, the Tribe in 1964 organized the Fort Apache Timber Co. (FATCO), a tribal enterprise that manages, harvests, processes, and sells timber. FATCO, which conducts all of its activities on the reservation, was created with the aid of federal funds. It employs about 300 tribal members.
The United States has entered into contracts with FATCO, authorizing it to harvest timber pursuant to regulations of the Bureau of Indian Affairs. FATCO has itself contracted with six logging companies, including Pinetop, which perform certain operations that FATCO could not carry out as economically on its own. Since it first entered into agreements with FATCO in 1969, Pinetop has been required to fell trees, cut them to the correct size, and transport them to FATCO’s sawmill in return for a contractually specified fee. Pinetop employs approximately 50 tribal members. Its activities, performed solely on the Fort Apache Reservation, are subject to extensive federal control.
In 1971 respondents sought to impose on Pinetop the two state taxes at issue here. The first, a motor carrier license tax, is assessed on “[e]very common motor carrier of property and every contract motor carrier of property.” Ariz. Rev. Stat. Ann. § 40-641 (A)(1) (Supp. 1979). Pinetop is a “contract motor carrier of property” since it is engaged in “the transportation by motor vehicle of property, for compensation, on any public highway.” § 40-601 (A) (1) (1974). The motor carrier license tax amounts to 2.5% of the carrier’s gross receipts. § 40-641 (A)(1) (Supp. 1979). The second tax at issue is an excise or use fuel tax designed “[f]or the purpose of partially compensating the state for the use of its highway ” Ariz. Rev. Stat. Ann. § 28-1552 (Supp. 1979). The tax amounts to eight cents per gallon of fuel used “in the propulsion of a motor vehicle on any highway within this state.” Ibid. The use fuel tax was assessed on Pinetop because it uses diesel fuel to propel its vehicles on the state highways within the Fort Apache Reservation.
Pinetop paid the taxes under protest, and then brought suit in state court, asserting that under federal law the taxes could not lawfully be imposed on logging activities conducted exclusively within the reservation or on hauling activities on Bureau of Indian Affairs and tribal roads. The Tribe agreed to reimburse Pinetop for any tax liability incurred as a result of its on-reservation business activities, and the Tribe intervened in the action as a plaintiff.
Both petitioners and respondents moved for summary judgment on the issue of the applicability of the two taxes to Pinetop. Petitioners submitted supporting affidavits from the manager of FATCO, the head forester of the Bureau of Indian Affairs, and the Chairman of the White Mountain Apache Tribal Council; respondents offered no affidavits disputing the factual assertions by petitioners’ affiants. The trial court awarded summary judgment to respondents, and the petitioners appealed to the Arizona Court of Appeals. The Court of Appeals rejected petitioners’ pre-emption claim. 120 Ariz. 282, 585 P. 2d 891 (1978). Purporting to apply the test set forth in Pennsylvania v. Nelson, 350 U. S. 497 (1956), the court held that the taxes did not conflict with federal regulation of tribal timber, that the federal interest was not so dominant as to preclude assessment of the challenged state taxes, and that the federal regulatory scheme did not “occupy the field.” The court also concluded that the state taxes would not unlawfully infringe on tribal self-government. The Arizona Supreme Court declined to review the decision of the Court of Appeals. We granted certiorari. 444 U. S, 823 (1980).
II
Although “ [generalizations on this subject have become . . . treacherous,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973), our decisions establish several basic principles with respect to the boundaries between state regulatory authority and tribal self-government. Long ago the Court departed from' Mr. Chief Justice Marshall’s view that “the laws of [a State] can have no force” within reservation boundaries, Worcester v. Georgia, 6 Pet. 515, 561 (1832). See Moe v. Salish & Kootenai Tribes, 425 U. S. 463, 481-483 (1976); New York ex rel. Ray v. Martin, 326 U. S. 496 (1946); Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885). At the same time we have recognized that the Indian tribes retain “attributes of sovereignty over both their members and their territory.” United States v. Mazurie, 419 U. S. 544, 557 (1975). See also United States v. Wheeler, 435 U. S. 313, 323 (1978); Santa Clara Pueblo v. Martinez, 436 U. S. 49, 55-56 (1978). As a result, there is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members. The status of the tribes has been described as “ 'an anomalous one and of complex character,’ ” for despite their partial assimilation into American culture, the tribes have retained “ 'a semi-independent position . . . not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.’ ” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 173 (1973), quoting United States v. Kagama, 118 U. S. 375, 381-382 (1886).
Congress has broad power to regulate tribal affairs under the Indian Commerce Clause, Art. 1, § 8, cl. 3. See United States v. Wheeler, supra, at 322-323. This congressional authority and the “semi-independent position” of Indian tribes have given rise to two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members. First, the exercise of such authority may be pre-empted by federal law. See, e. g.. Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965); McClanahan v. Arizona State Tax Comm’n, supra. Second, it may unlawfully infringe “on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U. S. 217, 220 (1959). See also Washington v. Yakima Indian Nation, 439 U. S. 463, 502 (1979); Fisher v. District Court, 424 U. S. 382 (1976) (per curiam); Kennedy v. District Court of Montana, 400 U. S. 423 (1971). The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important “backdrop,” McClanahan v. Arizona State Tax Comm’n, supra, at 172, against which vague or ambiguous federal enactments must always be measured.
The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law. Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other. The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law. Moe v. Salish & Kootenai Tribes, supra, at 475. As we have repeatedly recognized, this tradition is reflected and encouraged in a number of congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development. Ambiguities in federal law have been construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence. See McClanahan v. Arizona State Tax Comm’n, supra, at 174-175, and n. 13. We have thus rejected the proposition that in order to find a particular state law to have been pre-empted by operation of federal law, an express congressional statement to that effect is required. Warren Trading Post Co. v. Arizona Tax Comm’n, supra. At the same time any applicable regulatory interest of the State must be given weight, McClanahan v. Arizona State Tax Comm’n, supra, at 171, and “automatic exemptions 'as a matter of constitutional law’ ” are unusual. Moe v. Salish & Kootenai Tribes, 425 U. S., at 481, n. 17.
When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest. See Moe v. Salish & Kootenai Tribes, supra, at 480-481; McClanahan v. Arizona State Tax Comm’n. More difficult questions arise where, as here, a State asserts authority over the conduct of non-Indians engaging in activity on the reservation. In such cases we have examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence. This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. Compare Warren Trading Post Co. v. Arizona Tax Comm’n, supra, and Williams v. Lee, supra, with Moe v. Salish & Kootenai Tribes, supra, and Thomas v. Gay, 169 U. S. 264 (1898). Cf. McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 171; Mescalero Apache Tribe v. Jones, 411 U. S., at 148.
Ill
With these principles in mind, we turn to the respondents’ claim that they may, consistent with federal law, impose the contested motor vehicle license and use fuel taxes on the logging and hauling operations of petitioner Pinetop. At the outset we observe that the Federal Government’s regulation of the harvesting of Indian timber is comprehensive. That regulation takes the form of Acts of Congress, detailed regulations promulgated by the Secretary of the Interior, and day-to-day supervision by the Bureau of Indian Affairs. Under 25 U. S. C. §§ 405-407, the Secretary of the Interior is granted broad authority over the sale of timber on the reservation. Timber on Indian land may be sold only with the consent of the Secretary, and the proceeds from any such sales, less administrative expenses incurred by the Federal Government, are to be used for the benefit of the Indians or transferred to the Indian owner.. Sales of timber must “be based upon a consideration of the needs and best interests of the Indian owner and his heirs.” 25 U. S. C. § 406 (a). The statute specifies the factors which the Secretary must consider in making that determination. In order to assure the continued productivity of timber-producing land on tribal reservations, timber on unallotted lands “may be sold in accordance with the principles of sustained yield.” 25 U. S. C. § 407. The Secretary is granted power to determine the disposition of the proceeds from timber sales. He is authorized to promulgate regulations for the operation and management of Indian forestry units. 25 U. S. C. § 466.
Acting pursuant to this authority, the Secretary has promulgated a detailed set of regulations to govern the harvesting and sale of tribal timber. Among the stated objectives of the regulations is the “development of Indian forests by the Indian people for the purpose of promoting self-sustaining communities, to the end that the Indians may receive from their own property not only the stumpage value, but also the benefit of whatever profit it is capable of yielding and whatever labor the Indians are qualified to perform.” 25 CFR § 141.3 (a)(3) (1979). The regulations cover a wide variety of matters: for example, they restrict clear-cutting, § 141.5; establish comprehensive guidelines for the sale of timber, §141.7; regulate the advertising of timber sales, §§141.8, 141.9; specify the manner in which bids may be accepted and rejected, §141.11; describe the circumstances in which contracts may be entered into, §§ 141.12, 141.13; require the approval of all contracts by the Secretary, § 141.13; call for timber-cutting permits to be approved by the Secretary, § 141.19; specify fire protective measures, § 141.21; and provide a board of administrative appeals, § 141.23. Tribes are expressly authorized to establish commercial enterprises for the harvesting and logging of tribal timber. § 141.6.
Under these regulations, the Bureau of Indian Affairs exercises literally daily supervision over the harvesting and management of tribal timber. In the present case, contracts between FATCO and Pinetop must be approved by the Bureau; indeed, the record shows that some of those contracts were drafted by employees of the Federal Government. Bureau employees regulate the cutting, hauling, and marking of timber by FATCO and Pinetop. The Bureau decides such matters as how much timber will be cut, which trees will be felled, which roads are to be used, which hauling equipment Pinetop should employ, the speeds at which logging equipment may travel, and the width, length, height, and weight of loads.
The Secretary has also promulgated detailed regulations governing the roads developed by the Bureau of Indian Affairs. 25 CFR Part 162 (1979). Bureau roads are open to “[f]ree public use.” § 162.8. Their administration and maintenance are funded by the Federal Government, with contributions from the Indian tribes. §§ 162.6-162.6a. On the Fort Apache Reservation the Forestry Department of the Bureau has required FATCO and its contractors, including Pinetop, to repair and maintain existing Bureau and tribal roads and in some cases to construct new logging roads. Substantial sums have been spent for these purposes. In its federally approved contract with FATCO, Pinetop has agreed to construct new roads and to repair existing ones. A high percentage of Pinetop’s receipts are expended for those purposes, and it has maintained separate personnel and equipment to carry out a variety of tasks relating to road maintenance.
In these circumstances we agree with petitioners that the federal regulatory scheme is so pervasive as to preclude the additional burdens sought to be imposed in this case. Respondents seek to apply their motor vehicle license and use fuel taxes on Pinetop for operations that are conducted solely on Bureau and tribal roads within the reservation. There is no room for these taxes in the comprehensive federal regulatory scheme. In a variety of ways, the assessment of state taxes would obstruct federal policies. And equally important, respondents have been unable to identify any regulatory function or service performed by the State that would justify the assessment of taxes for activities on Bureau and tribal roads within the reservation.
At the most general level, the taxes would threaten the overriding federal objective of guaranteeing Indians that they will “receive . . . the benefit of whatever profit [the forest] is capable of yielding. . . .” 25 CFR, § 141.3 (a)(3) (1979). Underlying the federal regulatory program rests a policy of assuring that the profits derived from timber sales will inure to the benefit of the Tribe, subject only to administrative expenses incurred by the Federal Government. That objective is part of the general federal policy of encouraging tribes “to revitalize their self-government” and to assume control over their “business and economic affairs.” Mescalero Apache Tribe v. Jones, 411 U. S., at 151. The imposition of the taxes at issue would undermine that policy in a context in which the Federal Government has undertaken to regulate the most minute details of timber production and expressed a firm desire that the Tribe should retain the benefits derived from the harvesting and sale of reservation timber.
In addition, the taxes would undermine the Secretary’s ability to make the wide range of determinations committed to his authority concerning the setting of fees and rates with respect to the harvesting and sale of tribal timber. The Secretary reviews and approves the terms of the Tribe’s agreements with its contractors, sets fees for services rendered to the Tribe by the Federal Government, and determines stump-age rates for timber to be paid to the Tribe. Most notably in reviewing or writing the terms of the contracts between FATCO and its contractors, federal agents must predict the amount and determine the proper allocation of all business expenses, including fuel costs. The assessment of state taxes would throw additional factors into the federal calculus, reducing tribal revenues and diminishing the profitability of the enterprise for potential contractors.
Finally, the imposition of state taxes would adversely affect the Tribe’s ability to comply with the sustained-yield management policies imposed by federal law. Substantial expenditures are paid out by the Federal Government, the Tribe, and its contractors in order to undertake a wide variety of measures to ensure the continued productivity of the forest. These measures include reforestation, fire control, wildlife promotion, road improvement, safety inspections, and general policing of the forest. The expenditures are largely paid for out of tribal revenues, which are in turn derived almost exclusively from the sale of timber. The imposition of state taxes on FATCO’s contractors would effectively diminish the amount of those revenues and thus leave the Tribe and its contractors with reduced sums with which to pay out federally required expenses.
As noted above, this is not a case in which the State seeks to assess taxes in return for governmental functions it performs for those on whom the taxes fall. Nor have respondents been able to identify a legitimate regulatory interest served by the taxes they seek to impose. They refer to a general desire to raise revenue, but we are unable to discern a responsibility or service that justifies the assertion of taxes imposed for on-reservation operations conducted solely on tribal and Bureau of Indian Affairs roads. Pinetop’s business in Arizona is conducted solely on the Fort Apache Reservation. Though at least the use fuel tax purports to “compensat[e] the state for the use of its highways,” Ariz. Rev. Stat. Ann. § 28-1552 (Supp. 1979), no such compensatory purpose is present here. The roads at issue have been built, maintained, and policed exclusively by the Federal Government, the Tribe, and its contractors. We do not believe that respondents’ generalized interest in raising revenue is in this context sufficient to permit its proposed intrusion into the federal regulatory scheme with respect to the harvesting and sale of tribal timber.
Respondents’ argument is reduced to a claim that they may assess taxes on non-Indians engaged in commerce on the reservation whenever there is no express congressional statement to the contrary. That is simply not the law. In a number of cases we have held that state authority over non-Indians acting on tribal reservations is pre-empted even though Congress has offered no explicit statement on the subject. See Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965); Williams v. Lee, 358 U. S. 217 (1958); Kennerly v. District Court of Montana, 400 U. S. 423 (1971). The Court has repeatedly emphasized that there is a significant geographical component to tribal sovereignty, a component which remains highly relevant to the pre-emption inquiry; though the reservation boundary is not absolute, it remains an important factor to weigh in determining whether state authority- has exceeded the permissible limits. “ ‘The cases in this Court have consistently guarded the authority of Indian governments over their reservations.’ ” United States v. Mazurie, 419 U. S., at 558, quoting Williams v. Lee, supra, at 223. Moreover, it is undisputed that the economic burden of the asserted taxes will ultimately fall on the Tribe. Where, as here, the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber, where a number of the policies underlying the federal regulatory scheme are threatened by the taxes respondents seek to impose, and where respondents are unable to justify the taxes except in terms of a generalized interest in raising revenue, we believe that thé proposed exercise of state authority is impermissible.
Both the reasoning and result in this case follow naturally from our unanimous decision in Warren Trading Post Co. v. Arizona Tax Comm’n, supra. There the State of Arizona sought to impose a “gross proceeds” tax on a non-Indian company which conducted a retail trading business on the Navajo Indian Reservation. Referring to the tradition of sovereign power over the reservation, the Court held that the “comprehensive federal regulation of Indian traders” prohibited the assessment of the attempted taxes. Id., at 688. No federal statute by its terms precluded the assessment of state tax. Nonetheless, the “detailed regulations,” specifying “in the most minute fashion,” id., at 689, the. licensing and regulation of Indian traders, were held “to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders.” Id., at 690. The imposition of those burdens, we held, “could . . . disturb and disarrange the statutory plan” because the economic burden of the state taxes would eventually be passed on to the Indians themselves. Id., at 691. We referred to the fact that the Tribe had been “largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities.” Id., at 690. And we emphasized that “since federal legislation has left the State with no duties or responsibilities respecting the reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this tax.” Id., at 691. The present case, we conclude, is in all relevant respects indistinguishable from Warren Trading Post.
The decision of the Arizona Court of Appeals is
Reversed.
[For concurring opinion of Me. Justice Powell, see post, p. 170.]
The Fort Apache Reservation was originally established as the White Mountain Reservation by an Executive Order signed by President Grant on November 9, 1871. By the Act of Congress of June 7, 1897, 30 Stat. 64; the White Mountain Reservation was divided into the Fort Apache and San Carlos Reservations.
In 1973, for example, tribal enterprises showed a net profit of $1,667,091, $1,508,713 of which was attributable to timber operations.
FATCO initially attempted to perform some of its own logging and hauling operations but found itself unable to do these tasks economically.
Respondents are the Arizona Highway Department, the Arizona Highway Commission, and individual members of each entity.
Between November 1971 and May 1976 Pinetop paid under protest $19,114.59 in use fuel taxes and $14,701.42 in motor carrier license taxes. Since that time it has continued to pay taxes pending the outcome of this case. Refund litigation is pending in state court with respect to the five other non-Indian contractors employed by the Tribe, and that litigation has been stayed pending the outcome of this suit.
For purposes of this action petitioners have conceded Pinetop’s liability for both motor carrier license and use fuel taxes attributable to travel on state highways within the reservation. Pinetop has maintained records of fuel attributable to travel on those highways, and computations would evidently be made in order to allocate a portion of the gross receipts taxable under the motor carrier license tax to state highways.
When Pinetop contracted to undertake timber operations for FATCO in 1969, both Pinetop and FATCO believed that it would not be required to pay state-taxes. After respondents assessed the taxes at issue, FATCO agreed to pay them to avoid the loss of Pinetop’s services.
After the trial court entered summary judgment on the issue of the applieabilhy of the state taxes, the case proceeded to trial on the state-law issue of the manner of calculating the motor vehicle license tax Final judgment was entered for respondents on all issues after trial. The Arizona Court of Appeals reversed the decision of the Superior Court on the calculation of the motor vehicle license tax. 120 Ariz. 282, 291, 585 P 2d 891, 900 (1978).
The shift in approach is discussed in Williams v. Lee, 358 U. S. 217, 219 (1959): Organized Village of Kake v. Egan, 369 U. S. 60, 71-75 (1962); and McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172 (1973).
For example, the Indian Financing Act of 1974, 25 U. S. C. § 1451 et seq., states: “It is hereby declared to be the policy of Congress . . . to help develop and utilize Indian resources, both physical and human, to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources and where they will enjoy a standard of living from their own productive efforts comparable to that enjoyed by non-Indians in neighboring communities.” Similar policies underlie the Indian Self-Determination and Education Assistance Act of 1975, 25 U. S. C. § 450 et seq., as well as the Indian Reorganization Act of 1934, 25 U. S. C. § 461 et seq., whose “intent and purpose . . . was 'to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.’” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973), quoting H. R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). See also Santa Clara Pueblo v. Martinez, 436 U. S. 49 (1978). Cf. Gross, Indian Self-Determination and Tribal Sovereignty: An Analysis of Recent Federal Policy, 56 TexasL. Rev. 1195 (1978).
In the case of “Indians going beyond reservation boundaries,” however, a “nondiseriminatory state law” is generally applicable in the absence of “express federal law to the contrary.” Mescalero Apache Tribe v. Jones, supra, at 148-149.
Federal policies with respect to tribal timber have a long history. In United States v. Cook, 19 Wall. 591 (1874), and Pine River Logging Co. v. United States, 186 U. S. 279 (1902), the Court held that tribal members had no right to sell timber on reservation land unless the sale was related to the improvement of the land. At the same time the Court interpreted the governing statute as designed “to permit deserving Indians, who had no other sufficient means of support, to cut... a limited quantity of . . . timber . . . and to use the proceeds for their support . . . , provided that 10 percent of the gross proceeds should go to the stumpage or poor fund of the tribe, from which the old, sick and otherwise helpless might be supported.” Id., at 285-286.
The Attorney General interpreted the holding in Cook to mean that Indians had no right to reservation timber. See 19 Op. Atty. Gen. 194 (1888). This interpretation was overturned by Congress by Act of June 25, 1910, ch. 431, 36 Stat. 855, as amended, 25 U. S. C. § 407, and also repudiated in United States v. Shoshone Tribe, 304 U. S. Ill (1938). Thus, as the Court summarized in United States v. Algoma Lumber Co., 305 U. S. 415, 420 (1939), “[u]nder . . . established principles applicable to land reservations created for the benefit of the Indian tribes, the Indians are beneficial owners of the land and the timber standing upon it and of the proceeds of their sale, subject to the plenary power of control by the United States, to be exercised for the benefit and protection of the Indians.” See 25 U. S. C. § 196; United States v. Mitchell, 445 U. S. 535 (1980).
Those factors include “(1) the state of growth of the timber and the need for maintaining the productive capacity of the land for the benefit of the owner and his heirs, (2) the highest and the best use of the land, including the advisability and practicality of devoting it to other uses for the benefit of the owner and his heirs, and (3) the present and future financial needs of the owner and his heirs.” 25 U. S. C. § 406 (a).
In oral argument counsel for respondents appeared to concede that the asserted state taxes could not lawfully be applied to tribal roads and was unwilling to defend the contrary conclusion of the court below, which made no distinction between Bureau and tribal roads under state and federal law. Tr. of Oral Arg. 34-37. Contrary to respondents’ position throughout the litigation and in their brief in this Court, counsel limited his argument to a contention that the taxes could be asserted on the roads of the Bureau of Indian Affairs. Ibid. ' For purposes of federal pre-emption, however, we see no basis, and respondents point to none, for distinguishing between roads maintained by the Tribe and roads maintained by the Bureau of Indian Affairs.
Of course, the fact that the economic burden of the tax falls on the Tribe does not by itself mean that the tax is pre-empted, as Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), makes clear. Our decision today is based on the pre-emptive effect of the comprehensive federal regulatory scheme, which, like that in Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965), leaves no room for the additional burdens sought to be imposed by state law.
Respondents also contend that the taxes are authorized by the Buck Act, 4 U. S. C. § 105 et seq., and the Hayden-Cartwright Act, 4 U. S. C. § 104. In Warren Trading Post Co. v. Arizona Tax Comm’n, supra, at 691, n. 18, we squarely held that the Buck Act did not apply to Indian reservations, and respondents present no sufficient reason for us to depart from that holding. We agree with petitioners that the Hayden-Cartwright Act, which authorizes state taxes “on United States military or other reservations,” was not designed to overcome the otherwise pre-emptive effect of federal regulation of tribal timber. We need not reach the more general question whether the Hayden-Cartwright Act applies to Indian reservations at all.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Bob D. WHITESIDE; Lenore H. Whiteside, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 86-6004.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 1, 1987.
Decided Dec. 1, 1987.
Lawrence R. Lieberman and Patricia M. Snyder, Levinson & Lieberman, Inc., Beverly Hills, Cal., for plaintiffs-appellants.
Matthew Anderton, Washington, D.C., for defendant-appellee.
Before KENNEDY, PREGERSON and KOZINSKI, Circuit Judges.
KOZINSKI, Circuit Judge:
We review an order dismissing Mr. and Mrs. Whiteside’s complaint which charged the United States with wrongfully levying on their property.
Facts
On April 29, 1980, the Whitesides lent $45,000 to another couple, Heert and Linda DeWindt. The loan was secured by a deed of trust on a property the DeWindts owned in San Bernardino, California. The trust deed was duly recorded in San Bernardino County on August 15, 1980.
In 1983, the DeWindts developed financial problems. In April of that year, the Whitesides recorded a notice of default against the property. In October, the IRS recorded two federal tax liens against all the DeWindts’ property in San Bernardino County. The liens, each in the sum of $12,757.94, were identical in every respect except that one named Heert as taxpayer, while the other named Linda.
On November 28, 1983, the trustee notified the IRS that the DeWindts’ property would be sold pursuant to the Whitesides’ notice of default. The sale was called off, however, after the IRS notified the trustee that the notice of sale did not conform to IRS regulations. On December 9, 1983, the trustee sent the IRS a new notice of sale which included the IRS notice of lien against Heert but said nothing about the lien against Linda. The IRS did not object to this second notice and the trustee’s sale was held as scheduled on January 4, 1984. The IRS did not participate in the sale and the Whitesides bought the property for approximately $35,000.
In May 1984, the IRS levied against the property, claiming that the sale had failed to discharge Linda's tax lien. The White-sides exhausted their administrative remedies and then brought suit against the IRS seeking a declaration that Linda’s tax lien was discharged by the trustee’s sale, and that the IRS levy was therefore wrongful. The district court granted summary judgment for the IRS. The Whitesides appeal.
Discussion
As a general rule, a lien in favor of the United States is not disturbed by a nonjudicial sale of the property. I.R.C. § 7425(b). There is an exception, however, if the IRS is given notice of the sale in accordance with IRS regulations. Id. at § 7425(c)(1). The question presented on this appeal is whether the notice given by the Whitesides — disclosing Heert’s lien but not Linda’s — was sufficient to extinguish the government’s interest in the property.
Because I.R.C. § 7425 delegates to the Secretary of the Treasury the authority to specify what a notice of sale must provide, we must look to the applicable regulations in making our decision. Under the regulations, a notice of sale must contain the following four items: (i) the name and address of the person submitting it; (ii) copies of each of the tax liens to be discharged or a summary of the information they contain; (iii) a description of the property and the terms of its proposed sale; and (iv) the approximate amount of the obligation, plus costs, that the sale will discharge. 26 C.F.R. § 301.7425-3(d)(l)(iHiv).
The Whitesides’ December 9 notice of sale was plainly inadequate because it omitted information about Linda’s tax lien as required under item (ii) above. Plaintiffs argue that we should nevertheless deem the notice to the IRS sufficient because the liens against Heert and Linda were identical in every material respect and the IRS therefore suffered no prejudice from the omission. The IRS responds that the regulations clearly provide that the notice of sale shall contain “[a] copy of each Notice of Federal Tax Lien (Form 668) affecting the property to be sold....” 26 C.F.R. § 301.7425 — 3(d)(l)(ii) (emphasis added). Though they be technical, the IRS says, the regulations must be complied with. We agree.
However, the IRS may not simply ignore an inadequate notice and retain the right to levy on the property after the sale. Rather, it must give the trustee “written notification of the items of information which are inadequate.” Id. at § 301.7425-3(d)(2). Where the IRS does not object to the notice more than five days prior to the sale, “the notice shall be considered adequate for purposes of this section.” Id.
Here, the Whitesides provided the IRS notice that was timely but defective. This shifted the burden to the IRS to notify the Whitesides of the defect. Under the plain language of the regulations, the defect in the notice was cured when no IRS objection was received by the trustee five days before the sale. Id. Since the notice of sale was thus deemed effective, it operated to extinguish the government’s lien once the sale was consummated.
The government advances two arguments as to why we should reject this conclusion. First, it suggests that the government’s obligation to object is triggered on a lien-by-lien basis and that, by failing to notify the IRS of Linda’s lien, the Whitesides forfeited the protections provided for them in the regulations. This is simply not so. The statute and regulations provide that the IRS will be given a single notice for each sale, I.R.C. § 7425(c)(1); 26 C.F.R. § 301.7425-3(a)(l), even when there are multiple IRS liens on the property. See id. § 301.7425 — 3(d)(l)(ii) (Notice of sale shall contain “[a] copy of each Notice of Federal Tax Lien (Form 668) affecting the property_”). The regulations contemplate that the notice of sale may be defective and provide procedures for dealing with such a defect: The IRS is required to object. The government provides no support for the proposition that omission of a lien is so serious a defect that it relieves the IRS of the obligation to object. Indeed, the regulations do provide that the IRS may stand mute in the face of one type of defect in the notice of sale. See supra n. 4. The IRS is not given the same privilege when a notice of lien is omitted. The natural inference is that omission of a lien is to be treated like any other defect and the IRS must object if it is to preserve its rights.
The government also argues that requiring the IRS to object where a lien is completely omitted from the notice of sale places upon it an unfair or unreasonable burden. Perhaps so. But we may disregard regulations only if they violate a statute or the constitution. The Secretary had broad authority to shape these regulations but having done so, he is bound by them. See United, States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954); Flores v. Bowen, 790 F.2d 740, 742 (9th Cir.1986).
Conclusion
We reverse the decision of the district court and remand for entry of judgment in favor of the Whitesides.
. The notice did not give an adequate description of the property or the location of the sale.
. The government claims that the Whitesides’ notice of appeal was defective because they made a motion under Fed.R.Civ.P. 52(b) for an additional finding of fact after the district court had entered judgment against them. This question was presented to, and resolved by, a motions panel of this court which asserted jurisdiction over the appeal.
. All references are to the Internal Revenue Code as amended through the date of the trustee's sale.
. There is a single exception to the requirement that the IRS advise the trustee of a deficiency in the notice: where the “notice of sale ... does not contain the name and address of the person submitting such notice_" 26 C.F.R. § 301.7425-3(d)(2).
. The government’s argument that we ought to depart from the strict language of the regulations in the pursuit of fairness sounds a dissonant note with its steadfast reliance on the strict letter of the regulations pertaining to whether the notice was adequate. See Government Br. at 15-16; supra p. 821-22. Having agreed with the government that the notice of sale was technically defective — even though it could have caused the IRS no conceivable prejudice in these circumstances — we surely then cannot be expected to take a different approach when a literal reading of the regulations benefits the taxpayer.
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_casetyp1_7-2
|
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 "economic activity and regulation".
JANEWAY et ux. v. COMMISSIONER OF INTERNAL REVENUE. SHIELDS v. SAME.
Nos. 29, 30.
Circuit Court of Appeals, Second Circuit.
Feb. 6, 1945.
Wright, Gordon, Zachry, Parlin & Ca-hill, of New York City (Charles C. Parlin and Robert C. Brown, both of New York City, of counsel), for petitioners.
Samuel O. Qark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, and Newton K. Fox, all of Washington, D. C., for respondent.
Before CPIASE, HUTCHESON, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
We read the findings of the Tax Court taken together with its opinion as saying that, as a matter of fact, all the payments made by the taxpayers to the corporation were capital contributions of such character that, as against any third persons (such as, e.g., persons contracting with the corporation) the taxpayers would have to be regarded as stockholders and nothing else. As the Tax Court’s conclusion rests upon a determination of fact supported by substantial evidence, we cannot disturb it, even under a restricted interpretation of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239. Accepting that conclusion, the decision of the Tax Court is correct.
Affirmed.
That we may do so, see, e.g., Insurance & Title Guarantee Co. v. Commissioner, 2 Cir., 36 F.2d 842, 845; California Iron Yards Co. v. Commissioner, 8 Cir., 47 F.2d 514, 518; Producers’ Creamery Co. v. United States, 5 Cir., 55 F.2d 104, 108; Emerald Oil Co. v. Commissioner, 10 Cir., 72 F.2d 681, 683; Flynn v. Commissioner, 5 Cir., 77 F.2d 180, 183; California Barrel Co., Inc. v. Commissioner, 9 Cir., 81 F.2d 190, 193; Baker v. Commissioner, 6 Cir., 115 F.2d 987, 989.
Involved is the question of the credibility of the witnesses as to the taxpayers’ intentions, a question surely for the Tax Court.
See Paul, Dobson v. Commissioner: The Strange Ways of Law and Fact (1944), 57 Harv.L.Rev. 753, 822-831; Buckminster’s Estate v. Commissioner, 2 Cir., 1944, 147 F.2d 331.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
sc_issue_1
|
03
|
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.
Sherry L. BURT, Warden, Petitioner
v.
Vonlee Nicole TITLOW.
No. 12-414.
Supreme Court of the United States
Argued Oct. 8, 2013.
Decided Nov. 5, 2013.
Syllabus*
Respondent Titlow and Billie Rogers were arrested for the murder of Billie's husband. After explaining to respondent that the State's evidence could support a conviction for first-degree murder, respondent's attorney negotiated a manslaughter plea in exchange for an agreement to testify against Billie. Three days before Billie's trial, respondent retained a new attorney, Frederick Toca, who demanded an even lower sentence in exchange for the guilty plea and testimony. The prosecutor rejected the proposal, and respondent withdrew the original plea. Without that testimony, Billie was acquitted. Respondent was subsequently convicted of second-degree murder. On direct appeal, respondent argued that Toca provided ineffective assistance by advising withdrawal of the plea without taking time to learn the strength of the State's evidence. The Michigan Court of Appeals rejected the claim, concluding that Toca's actions were reasonable in light of his client's protestations of innocence. On federal habeas review, the District Court applied the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), concluded that the Michigan Court of Appeals' ruling was reasonable on the law and facts, and denied relief. The Sixth Circuit reversed. It found the factual predicate for the state court's decision-that the plea withdrawal was based on respondent's assertion of innocence-an unreasonable interpretation of the factual record, given Toca's explanation at the withdrawal hearing that the decision to withdraw was made because the State's original plea offer was higher than the sentencing range provided by the Michigan guidelines. It also found no evidence in the record that Toca adequately advised respondent of the consequences of withdrawal.
Held: The Sixth Circuit failed to apply the "doubly deferential" standard of review recognized by the Court's case law when it refused to credit the state court's reasonable factual finding and assumed that counsel was ineffective where the record was silent. Pp. 14 - 18.
(a) AEDPA recognizes the federalism principle that state courts are adequate forums for the vindication of federal statutory and constitutional rights. It erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court, requiring them to "show that the state court's ruling ... was so lacking in justification that there was an error ... beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. ----, ----, 131 S.Ct. 770, 787, 178 L.Ed.2d 624. Pp. 14 - 16.
(b) Here, the record readily supports the Michigan Court of Appeals' factual finding that Toca advised withdrawal of the guilty plea only after respondent's proclamation of innocence. The facts that respondent passed a polygraph test denying being in the room when Billie's husband was killed, discussed the case with a jailer who advised against pleading guilty if respondent was indeed innocent, and hired Toca just three days before Billie's trial at which respondent had agreed to self-incriminate, strongly suggest that respondent had second thoughts about confessing in open court and proclaimed innocence to Toca. The only evidence cited by the Sixth Circuit for its contrary conclusion was that Toca's sole explanation at the withdrawal hearing focused on the fact that the State's plea offer was substantially higher than that provided by the Michigan guidelines. The Michigan Court of Appeals was well aware of Toca's representations to the trial court and correctly found nothing inconsistent about a defendant's asserting innocence on the one hand and refusing to plead guilty to manslaughter accompanied by higher-than-normal punishment on the other. Accepting as true the Michigan Court of Appeals' factual determination that respondent proclaimed innocence to Toca, the Sixth Circuit's Strickland analysis cannot be sustained. More troubling is that court's conclusion that Toca was ineffective because the record contained no evidence that he gave constitutionally adequate advice on whether to withdraw the plea. The Sixth Circuit turned on its head the principle that counsel should be "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674, with the burden to show otherwise resting squarely on the defendant, id., at 687, 104 S.Ct. 2052. The single fact that Toca failed to retrieve respondent's file from former counsel before withdrawing the guilty plea cannot overcome Strickland 's strong presumption of effectiveness. In any event, respondent admitted in open court that former counsel had explained the State's evidence and that it would support a first-degree murder conviction. Toca was justified in relying on this admission to conclude that respondent understood the strength of the prosecution's case. Toca's conduct in this litigation was far from exemplary, but a lawyer's ethical violations do not make the lawyer per se ineffective, and Toca's questionable conduct was irrelevant to the narrow issue before the Sixth Circuit. Pp. 15 - 18.
680 F.3d 577, reversed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in the judgment.
John J. Bursch, Solicitor General, Lansing, MI, for Petitioner.
Ann O'Connell, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner.
Valerie R. Newman, Detroit, MI, for Respondent.
Bill Schuette, Attorney General, John J. Bursch, Michigan Solicitor General, Counsel of Record, Lansing, MI, B. Eric Restuccia, Deputy Solicitor General, Aaron D. Lindstrom, Assistant Solicitor General, Raina Korbakis, Assistant Attorney General, Appellate Division, for Petitioner.
Jeffrey T. Green, Karen S. Smith, Brian A. Fox, Benjamin B. Glerum, Sidley Austin LLP, Washington, DC, Sarah O'Rourke Schrup, Chicago, IL, Valerie R. Newman, Counsel of Record, Jessica L. Zimbelman, State Appellate Defender Office, Detroit, MI, for Respondent.
Justice ALITO delivered the opinion of the Court.
When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a " 'doubly deferential' " standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U.S. ----, ----, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court's reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys, the Sixth Circuit's decision must be reversed.
I
Respondent Titlow and Billie Rogers, respondent's aunt, murdered Billie's husband Don by pouring vodka down his throat and smothering him with a pillow. With help from attorney Richard Lustig, respondent reached an agreement with state prosecutors to testify against Billie, plead guilty to manslaughter, and receive a 7- to 15-year sentence. As confirmed at a plea hearing, Lustig reviewed the State's evidence with respondent "over a long period of time," and respondent understood that that evidence could support a conviction for first-degree murder. App. 43-44. The Michigan trial court approved the plea bargain.
Three days before Billie Rogers' trial was to commence, however, respondent retained a new lawyer, Frederick Toca. With Toca's help, respondent demanded a substantially lower minimum sentence (three years, instead of seven) in exchange for the agreement to plead guilty and testify. When the prosecutor refused to accede to the new demands, respondent withdrew the plea, acknowledging in open court the consequences of withdrawal (including reinstatement of the first-degree murder charge). Without respondent's critical testimony, Billie Rogers was acquitted, and later died.
Respondent subsequently stood trial. During the course of the trial, respondent denied any intent to harm Don Rogers or any knowledge, at the time respondent covered his mouth or poured vodka down his throat, that Billie intended to harm him. Indeed, respondent testified to attempting to prevent Billie from harming her husband. The jury, however, elected to believe respondent's previous out-of-court statements, which squarely demonstrated participation in the killing, and convicted respondent of second-degree murder. The trial court imposed a 20- to 40-year term of imprisonment.
On direct appeal, respondent argued that Toca advised withdrawal of the guilty plea without taking time to learn more about the case, thereby failing to realize the strength of the State's evidence and providing ineffective assistance of counsel. Rejecting that claim, the Michigan Court of Appeals found that Toca acted reasonably in light of his client's protestations of innocence. That court found that respondent's decision to hire Toca was "set in motion" by respondent's "statement to a sheriff's deputy that [respondent] did not commit the offense." App. to Pet. for Cert. 101a. Applying the standard set forth by our decision in Strickland, which requires that defense counsel satisfy "an objective standard of reasonableness," 466 U.S., at 688, 104 S.Ct. 2052, the Michigan Court of Appeals concluded that "[w]hen a defendant proclaims ... innocence ..., it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty-no matter how 'good' the deal may appear." App. to Pet. for Cert. 102a.
Respondent then filed a federal habeas petition under 28 U.S.C. § 2254. Applying AEDPA's deferential standard of review, the District Court concluded that the Michigan Court of Appeals' ruling was "completely reasonable on the law and the facts" and denied relief. No. 07-CV-13614, 2010 WL 4115410, *15 (E.D.Mich., Oct. 19, 2010). In particular, the District Court concluded that "[c]ounsel could not be ineffective by trying to negotiate a better plea agreement for [Titlow] with Billie Rogers's trial imminent and [Titlow] stating at the time that Billie Rogers had committed the murder without ... assistance." Ibid.
The Sixth Circuit reversed. It found that the factual predicate for the state court's decision-that the withdrawal of the plea was based on respondent's assertion of innocence-was an unreasonable interpretation of the factual record, given Toca's explanation at the withdrawal hearing that "the decision to withdraw Titlow's plea was based on the fact that the State's plea offer was substantially higher than the Michigan guidelines for second-degree murder." 680 F.3d 577, 589 (2012). Further observing that "[t]he record in this case contains no evidence" that Toca fully informed respondent of the possible consequences of withdrawing the guilty plea, the Sixth Circuit held that Toca rendered ineffective assistance of counsel that resulted in respondent's loss of the benefit of the plea bargain. Id., at 589-592. Citing our decision in Lafler v. Cooper, 566 U.S. ----, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the Sixth Circuit remanded this case with instructions that the prosecution must reoffer the original plea agreement to respondent, and that the state court should "consul[t]" the plea agreement and "fashion" a remedy for the violation of respondent's Sixth Amendment right to effective assistance of counsel during plea bargaining. 680 F.3d, at 592. Chief Judge Batchelder dissented on the grounds that the Michigan Court of Appeals' decision was reasonable. Id., at 593.
On remand, the prosecution followed the Sixth Circuit's instructions and reoffered the plea agreement it had offered some 10 years before-even though, in light of Billie Rogers' acquittal and subsequent death, respondent was no longer able to deliver on the promises originally made to the prosecution. At the plea hearing, however, respondent balked, refusing to provide a factual basis for the plea which the court could accept. Respondent admitted to pouring vodka down Don Rogers' throat, but denied assisting in killing him or knowing that pouring vodka down his throat could lead to his death. As at trial, respondent testified to attempting to prevent Billie Rogers from harming her husband. Eventually, after conferring with current counsel (not Toca), respondent admitted to placing Don Rogers in danger by pouring vodka down his throat with the knowledge that his death could result. The trial court took the plea under advisement, where the matter stands at present. We granted certiorari. 568 U.S. ---- (2013).
II
AEDPA instructs that, when a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, the federal court may overturn the state court's decision only if it was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The prisoner bears the burden of rebutting the state court's factual findings "by clear and convincing evidence." § 2254(e)(1). We have not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), and we need not do so here. See Wood v. Allen, 558 U.S. 290, 293, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). For present purposes, it is enough to reiterate "that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Id., at 301, 130 S.Ct. 841. AEDPA likewise imposes a highly deferential standard for reviewing claims of legal error by the state courts: A writ of habeas corpus may issue only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by" this Court. § 2254(d)(1).
AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights. "[T]he States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States." Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). This principle applies to claimed violations of constitutional, as well as statutory, rights. See Trainor v. Hernandez, 431 U.S. 434, 443, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). Indeed, "state courts have the solemn responsibility equally with the federal courts to safeguard constitutional rights," and this Court has refused to sanction any decision that would "reflec[t] negatively upon [a] state court's ability to do so." Ibid. (internal quotation marks omitted). Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland-a claim state courts have now adjudicated in countless criminal cases for nearly 30 years-"there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned ... than his neighbor in the state courthouse." Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (internal quotation marks omitted).
Recognizing the duty and ability of our state-court colleagues to adjudicate claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires "a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error ... beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. ----, ----, 131 S.Ct. 770, 786-787, 178 L.Ed.2d 624 (2011). "If this standard is difficult to meet"-and it is-"that is because it was meant to be." Id., at ----, 131 S.Ct., at 786. We will not lightly conclude that a State's criminal justice system has experienced the "extreme malfunctio[n]" for which federal habeas relief is the remedy. Id., at ----, 131 S.Ct., at 786 (internal quotation marks omitted).
III
The record readily supports the Michigan Court of Appeals' factual finding that Toca advised withdrawal of the guilty plea only after respondent's proclamation of innocence. Respondent passed a polygraph denying planning to kill Don Rogers or being in the room when he died. Thereafter, according to an affidavit in the record, respondent discussed the case with a jailer, who advised against pleading guilty if respondent was not in fact guilty. App. 298 (affidavit of William Pierson).1 That conversation "set into motion" respondent's decision to retain Toca. Ibid., ¶ 8. Those facts, together with the timing of Toca's hiring-on the eve of the trial at which respondent was to self-incriminate-strongly suggest that respondent had second thoughts about confessing in open court and proclaimed innocence to Toca. That conclusion is further bolstered by respondent's maintenance of innocence of Don Rogers' death at trial.
Indeed, reading the record in any other way is difficult. Respondent's first lawyer, Lustig, had negotiated a deal that was quite favorable in light of the fact, admitted by respondent in open court, that the State's evidence could support a conviction for first-degree murder. This deal involved a guilty plea to manslaughter and a 7- to 15-year sentence-far less than the mandatory sentence of life in prison that results from a conviction for first-degree murder under Michigan law. See Mich. Comp. Laws Ann. § 750.316 (West Supp.2013). Yet after a jailer advised against pleading guilty if respondent was not guilty, something caused respondent both to fire Lustig and hire Toca (who within a few days withdrew the guilty plea), and then to maintain innocence at trial. If that something was not a desire to assert innocence, it is difficult to imagine what it was, and respondent does not offer an alternative theory.
The only evidence the Sixth Circuit cited for its conclusion that the plea withdrawal was not based on respondent's proclamation of innocence was that, when Toca moved to withdraw the guilty plea, he "did not refer to Titlow's claims of innocence," but instead "explained that the decision to withdraw [the] plea was based on the fact that the State's plea offer was substantially higher than the Michigan guidelines" for manslaughter. 680 F.3d, at 589. The Sixth Circuit believed that this fact "sufficiently rebuts the Michigan Court of Appeals'
finding that the plea withdrawal was based on Titlow's assertion of innocence." Ibid.
But the Michigan Court of Appeals was well aware of Toca's representations to the trial court, noting in its opinion that respondent "moved to withdraw [the] plea because the agreed upon sentence exceeded the sentencing guidelines range." App. to Pet. for Cert. 100a. The Michigan Court of Appeals, however-unlike the Sixth Circuit-also correctly recognized that there is nothing inconsistent about a defendant's asserting innocence on the one hand and refusing to plead guilty to manslaughter accompanied by higher-than-normal punishment on the other. Indeed, a defendant convinced of his or her own innocence may have a particularly optimistic view of the likelihood of acquittal, and therefore be more likely to drive a hard bargain with the prosecution before pleading guilty. Viewing the record as a whole, we conclude that the Sixth Circuit improperly set aside a "reasonable state-court determinatio[n] of fact in favor of its own debatable interpretation of the record." Rice v. Collins, 546 U.S. 333, 335, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).
Accepting as true the Michigan Court of Appeals' factual determination that respondent proclaimed innocence to Toca, the Sixth Circuit's Strickland analysis cannot be sustained. Although a defendant's proclamation of innocence does not relieve counsel of his normal responsibilities under Strickland, it may affect the advice counsel gives. The Michigan Court of Appeals' conclusion that Toca's advice satisfied Strickland fell within the bounds of reasonableness under AEDPA, given that respondent was claiming innocence and only days away from offering self-incriminating testimony in open court pursuant to a plea agreement involving an above-guidelines sentence.2 See Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (explaining that the defendant has the " 'ultimate authority' " to decide whether to accept a plea bargain); Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (observing that a lawyer must not "override his client's desire ... to plead not guilty"). The Sixth Circuit's conclusion to the contrary was error.
Even more troubling is the Sixth Circuit's conclusion that Toca was ineffective because the "record in this case contains no evidence that" he gave constitutionally adequate advice on whether to withdraw the guilty plea. 680 F.3d, at 590. We have said that counsel should be "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," Strickland, 466 U.S., at 690, 104 S.Ct. 2052, and that the burden to "show that counsel's performance was deficient" rests squarely on the defendant, id., at 687, 104 S.Ct. 2052. The Sixth Circuit turned that presumption of effectiveness on its head. It should go without saying that the absence of evidence cannot overcome the "strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id., at 689, 104 S.Ct. 2052. As Chief Judge Batchelder correctly explained in her dissent, "[w]ithout evidence that Toca gave incorrect advice or evidence that he failed to give material advice, Titlow cannot establish that his performance was deficient." 680 F.3d, at 595.
The Sixth Circuit pointed to a single fact in support of its conclusion that Toca failed to adequately advise respondent: his failure to retrieve respondent's file from Lustig before withdrawing the guilty plea. Id., at 590. But here, too, the Sixth Circuit deviated from Strickland 's strong presumption of effectiveness. The record does not reveal how much Toca was able to glean about respondent's case from other sources; he may well have obtained copies of the critical materials from prosecutors or the court. (Indeed, Toca's statement at the plea withdrawal hearing that "[t]here's a lot of material here" strongly suggests that he did have access to a source of documentation other than Lustig's file. App. 71.)
In any event, the same considerations were relevant to entering and withdrawing the guilty plea, and respondent admitted in open court when initially pleading guilty that Lustig had explained the State's evidence and that this evidence would support a conviction for first-degree murder. Toca was justified in relying on this admission to conclude that respondent understood the strength of the prosecution's case and nevertheless wished to withdraw the plea. With respondent having knowingly entered the guilty plea, we think any confusion about the strength of the State's evidence upon withdrawing the plea less than a month later highly unlikely.
Despite our conclusion that there was no factual or legal justification for overturning the state court's decision, we recognize that Toca's conduct in this litigation was far from exemplary. He may well have violated the rules of professional conduct by accepting respondent's publication rights as partial payment for his services, and he waited weeks before consulting respondent's first lawyer about the case. But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer's violation of ethical norms does not make the lawyer per se ineffective. See Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Troubling as Toca's actions were, they were irrelevant to the narrow question that was before the Sixth Circuit: whether the state court reasonably determined that respondent was adequately advised before deciding to withdraw the guilty plea. Because the Michigan Court of Appeals' decision that respondent was so advised is reasonable and supported by the record, the Sixth Circuit's judgment is reversed.3
It is so ordered.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
songer_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.
ZICOS v. DICKMANN et al.
No. 11084.
Circuit Court of Appeals, Eighth Circuit.
Aug. 18, 1938.
Louis Hudson and Maurice J. Gordon, both of St. Louis, Mo., for appellant.
Oliver Senti, of St. Louis, Mo. (E. H. Wayman, of St. Louis, Mo., on the brief), for appellees.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
This is a suit in equity brought by the appellant to enjoin law enforcement officers of the City of St. Louis, Missouri, from seizing or confiscating mint vending machines belonging to him. From a decree dismissing the bill of complaint and the suit for want of equity, this appeal is taken.
The bill of complaint alleges that the petitioner (appellant) is a resident and citizen of Illinois, and' that defendants (appellees) are “the duly appointed, qualified and acting members of the Board of Commissioners of the Police Department of the City of St. Louis, Missouri,” “the duly appointed, qualified and acting Chief of Police of the City of St. Louis, Missouri,” “the duly elected, qualified and acting Circuit Attorney of the City of St. Louis, Missouri,” and “the duly elected, qualified and acting Sheriff of the City of St, Louis. Missouri”; that petitioner is in the business of selling mints by means of vending machines and has been engaged in that business in St. Louis, Missouri; that his business consists of placing mint vending machines in restaurants and other places of business; that he is the owner of about fifty of such machines in locations in St. Louis, which machines are worth $100 each, that he has in St. Louis 100 cases of mints of the value of $1,000, and that his total investment in machines' and equipment in that City is about $6,000 or more; that in November, 1937, the Board of Commissioners of the Police Department, acting through its police officers, “without cause or justification and without warrant issued by a competent or judicial authority, unlawfully seized and confiscated” one of petitioner’s machines, arresting the proprietor of the place where it was installed, and that the defendants ordered the proprietors of two other places in which petitioner’s machines had bepn installed, to remove them under threat of arrest; that petitioner is informed and believes that the Police Board of the City of St. Louis ordered the seizure and removal of all of the petitioner’s machines and the arrest of the proprietors of the places where they were located; that after the seizure by police officers of “the mint vending machines aforesaid” petitioner withdrew the machines theretofore installed and has not since attempted to install any machines or to have any machines operated in St. Louis, “in orders to forestall the unlawful and unwarranted seizure and confiscation thereof by defendants.”
The bill of complaint describes the nature and use of the vending machines and the contracts under which they are installed, all" of which the petitioner claims clearly indicate that they are not gambling devices and are not capable of being used for the purpose of gambling; and the petitioner alleges that there is no law of Missouri or of the United States, enacted to prevent gambling, which applies to the operation of the petitioner’s machines, but that, unless the defendants are restrained from so doing they will destroy any machines of petitioner which may be found in places of business, and arrest the proprietors of. such places and compel petitioner to withdraw his machines from use forever, and will prevent him from earning the profits which would otherwise accrue to him through the leasing of the machines and the selling of mints thereby.
The bill contains this allegation: “Petitioner states that by reason of the seizure, confiscation, and destruction of th$ mint vending machines, now being held by defendant Police Board, aforesaid, and the continued seizure, confiscation and destruction of further machines as threatened by the defendants, and by reason of the loss-of the profits which lawfully accrued to him through the operation and leasing of the said mint vending machines, petitioner is unlawfully deprived of his property without due process of law, in violation of Section 30, Article II, of the Constitution of Missouri [Mo.St.Ann.Const. art. 2, § 30] and of Article V, of the Amendments to the Constitution of the United States [U. S.C.A.Const. Amend. 5]; that by reason of the seizure of said machines, petitioner and his property and effects are being subjected to unreasonable searches and seizures in violation of Section [Article] II, of the Constitution of Missouri [Mo.St.Ann. Const, art. 2, § 11], and of Amendment IV, (four) of the Amendments to the Constitution of the United States [U.S.C.A.Const. Amend. 4] ; that by reason of the seizure and confiscation and destruction of said machines, petitioner is deprived of the right to follow a lawful business and earn a livelihood, in violation of Section IV, of Article II, of the Constitution of Missouri [Mo.St.Ann.Const. art. 2, § 4]; guaranteeing all persons a natural right to the enjoyment of the gains of their own industry.”
The first question to be determined is whether the court below acquired jurisdiction of this case.
It is to be noted that the bill of complaint contains no allegation as to the value of the right of the petitioner to .conduct his business in the City of St. Louis, and states no facts from which the value of that right can be determined. Petitioner alleges merely that he had an investment of some $6,000 in his business in that City, and that, after the seizure of one of his machines and after threats had been made to confiscate two others, he withdrew his investment and ceased operations in St. Louis. That the value of his right to continue in business in St. Louis is worth more than $3,000 does not appear from the facts stated. Since his mint vending machines (with the exception of one which was seized) have been withdrawn, it appears that they are no longer in jeopardy and their value would certainly not measure the sum or value of the matter in controversy.
In a suit of this nature, the jurisdiction of the District Court attaches only “where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under th? Constitution or laws of the United States, or 'treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects.” Jud.Code, § 24(1), 28 U.S.C. § 41(1), 28 U.S.C.A. § 41(1).
The Act of March 3, 1911, c. 231, § 37, 36 Stat. 1098, 28 U.S.C. § 80,28 U.S.C.A. § 80, makes it the duty of the District Court to enforce these jurisdictional limitations (McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 182, 56 S.Ct. 780, 782, 80 L.Ed. 1135; American United Life Ins. Co. v. Franklin, 8 Cir., 97 F.2d 76), and it is incumbent upon one who seeks the exercise of jurisdiction in his favor to allege in his pleading the facts essential to give jurisdiction, and throughout the litigation to carry the burden of showing that he is properly in court. McNutt v. General Motors Acceptance Corporation, supra, page 189, 56 S.Ct. page 785.
It is the value of the right which the petitioner seeks to protect against interference which measures the amount in controversy in such a suit as this. Hunt v. New York Cotton Exchange, 205 U.S. 322, 336, 27 S.Ct. 529, 51 L.Ed. 821; Bitterman v. Louisville & Nashville R. Co., 207 U.S. 205, 225, 28 S.Ct. 91, 52 L.Ed. 171, 12 Ann. Cas. 693; Berryman v. Whitman College, 222 U.S. 334, 345, 346, 32 S.Ct. 147, 56 L.Ed. 225; Glenwood Light Co. v. Mutual Light Co., 239 U.S. 121, 125, 126, 36 S.Ct. 30, 60 L.Ed. 174; McNutt v. General Motors Acceptance Corporation, supra, page 181, 56 S.Ct. page 781.
Suits between citizens of different states and suits arising under the Constitution and laws of the United States cannot be brought in the federal courts unless the value of the matter in controversy is more than $3,000. Holt v. Indiana Manufacturing Co., 176 U.S. 68, 72, 73, 20 S.Ct. 272, 44 L.Ed. 374; Healy v. Ratta, 292 U.S. 263, 269, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248.
While it is unnecessary to consider other questions, we take the liberty of directing attention to the failure of appellant to allege .in his bill that the defendants are citizens of Missouri, and to the rule that jurisdictional facts may not be inferred argumentatively from the allegations of a pleading. Brown v. Keene, 8 Pet. 112, 115, 8 L.Ed. 885; Continental Ins. Co. v. Rhoads, 119 U.S. 237, 240, 7 S.Ct. 193, 30 L.Ed. 380; Anderson v. Watt, 138 U.S. 694, 702, 11 S.Ct. 449, 34 L.Ed. 1078; Timmons v. Elyton Land Co., 139 U.S. 378, 11 S.Ct. 585, 35 L.Ed. 195; Roberts v. Lewis, 144 U.S. 653, 656, 12 S.Ct. 781, 36 L.Ed. 579; Stuart v. Easton, 156 U.S. 46, 15 S.Ct. 268, 39 L.Ed. 341; Hanford v. Davies, 163 U. S. 273, 279, 280, 16 S.Ct 1051, 41 L.Ed. 157.
The suit should have been dismissed for lack of jurisdiction, and not for want of equity.
The case 'is remanded, with directions to set aside the decree appealed from, and .to enter a decree of dismissal for lack of jurisdiction.
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_circuit
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Frances E. HOARE, Surviving Widow of Joseph A. Hoare, Deceased, Appellant, v. UNITED STATES of America, Appellee.
No. 17162.
United States Court of Appeals Ninth Circuit.
Sept. 21, 1961.
Kenneth S. Treadwell, of Miracle, Treadwell & Pruzan, Seattle, Wash., for appellant.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Fred E. Youngman and C. Guy Tadlock, Attys., Dept, of Justice, Washington, D. C., Charles P. Moriarty, U. S. Atty., and Joseph C. McKinnon, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges.
HAMLEY, Circuit Judge.
The question here presented is whether under the circumstances of this case a government tax lien has priority over a chattel mortgage given by the tax debtors as security for the performance of a lease.
The referee in bankruptcy held that the tax lien had priority. The district court confirmed that determination. The surviving widow representing the lessors-mortgagees has appealed. For the reasons indicated below we hold that the chattel mortgagees had priority with respect to rent due and other arrearages prior to the time notice was given of the tax lien.
On October 16, 1957, Joseph A. Hoare and his wife leased the ground floor of a business building in Port Angeles, Washington, to Alfred P. Conrad and wife. The term of the lease was five years, and the lessors, fulfilling an obligation assumed under the lease, expended $29,-496.62 in remodeling the premises for use as a restaurant and cocktail lounge.
The rental was fixed at $660 a month, the lease providing for an increased rental in any month that six per cent of gross monthly sales should exceed that figure. Only that part of the $660 monthly rent which equaled six per cent of gross sales for the month was required to be paid at the end of the month. If at the end of any month the sum thus immediately due did not equal $660, the balance of the rent for that month was payable at any time within six months.
It was further provided in the lease that in the event of the lessees’ failure to perform any term, covenant or condition of the lease the lessors should state the breach in writing to the lessees. The lessees were then given thirty days within which to fully perform, upon failing which “this lease forthwith shall be can-celled. * * *”
As required by other provisions of the lease, the Conrads on October 31, 1957, made, executed and delivered to the lessors a demand promissory note in the amount of $15,000 and a chattel mortgage on the lessees’ property located on the premises. The note was given “as security for the performance” of the lease. The note was “without interest” but contained the provision that “if not paid when due” it would bear interest at six per cent. The mortgage was given “as security for the payment” of the note and “as security for the performance” of the lease.
In both the note and mortgage it was recited that in the event the makers fully performed the lease during the first three years of its term the note and mortgage would be canceled and satisfied. Both instruments provided for foreclosure of the mortgage in the event of failure to perform any term, covenant or condition of the lease. In the note it was stated that from the proceeds of a foreclosure sale the whole amount of the note together with attorney’s fees were to be paid. In the mortgage it was recited that the sum owing by virtue of the note and mortgage should be “the agreed and liquidated damages owing the payees for said breach.”
The Conrads entered into possession on December 21, 1957. They paid no rent until April 1958. They thereafter paid various monthly amounts ranging from $100 to $750, the last payment having been made on October 6, 1958. The Director of Internal Revenue took possession of the leasehold on October 14, 1958, by a proper levy for unpaid taxes in the amount of $5,993.85. The Conrads were accordingly forced to close their business, on that date. On November 13, 1958,, the lessors served upon the Conrads a formal cancellation of the lease. The lease provided for cancellation in the event the lessees became insolvent.
Four days later the Conrads filed a voluntary petition in bankruptcy. Pursuant to a stipulation entered into between the trustee and all lien claimants, the trustee in bankruptcy sold all of the assets of the bankrupt’s business known as Conrad’s Cafe, and after payment of expenses of sale and of administration had $7,500 on hand for distribution to lien claimants.
Proceedings were then had before the referee in bankruptcy to establish the rank and priority of payment of various claims. The referee found that at the time the lease was canceled the bankrupt was delinquent on rent payments in the sum of $3,800, and had permitted utility bills and labor liens to accrue in the amount of $616.56. The Government’s net tax claim was found to be in the amount of $5,775.58, with an additional $776.86 for costs and expenses of levy. It was found that the lessors had re-leased the premises on June 6, 1959, for a monthly rental of $350 and that the lessors’ total loss due to the Conrads’ nonpayment of rent and subsequent cancellation of the Conrad lease was $11,000-.
The referee determined that the claim for the $776.86 expended by the Director of Internal Revenue in enforcing the tax lien had first priority of payment. Second priority was given to a claim in the sum of $743.72 secured by a chattel mortgage held by a hotel supply company. Third priority was given to the tax lien in the sum of $5,775.58. Joseph A. Hoare was given fourth priority “in payment of the lien of his chattel mortgage in the amount of not to exceed $11,000.”
The lessors petitioned the district ■court for a review of the referee’s determination in so far as it gave the tax lien priority over their chattel mortgage. The court adopted and confirmed the referee’s determination, and this appeal followed.
The lien of the United States for unpaid taxes arose under section 6321 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6321. As therein provided, "the lien was “upon all property and rights to property, whether real or personal,” belonging to Conrad. The lien arose at the time the assessment was made (§ 6322 of 1954 Code, 26 U.S.C.A. § 6322) which was after the filing of the ■chattel mortgage here in question. It is provided in section 6323(a) of the 1954 Code, 26 U.S.C.A. § 6323(a), that, with ■exceptions not here relevant, the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed as therein provided.
The lessors asserted that by reason of ■their chattel mortgage they were mortgagees within the meaning of section ■6323(a) and that the tax lien was therefore invalid as to them. The district court, however, confirming the determination of the referee, held that the lessors’ lien under their chattel mortgage was neither perfected nor specific as to the obligation to pay the note and mortgage or the amount owing at the time of the assessment and levy, and that section 6323(a) was therefore inapplicable.
It is not indicated in the record whether a notice of lien was filed in the manner provided by section 6323(a) or if so, when. We will therefore assume that section 60.68.010 of the Revised Code of Washington, providing for the filing of notice of federal tax liens in the office of the county auditor of the county in which the property subject to the lien is situated, was complied with at least as of the date of levy.
The instrument relied upon is labeled a chattel mortgage and was executed and filed in the manner required for chattel mortgages in the state of Washington. Chattel mortgages to secure the performance of the obligations of a lessee under a lease are valid in Washington. Pollock v. Ives Theatres, Inc., 174 Wash. 65, 24 P.2d 396.
What is meant by the word “mortgagee” as used in section 6323(a), however, is a federal question, as to which state law is to be considered but is not controlling. With regard to categories of interests set out in section 6323(a) it has been held that Congress used the terms in their usual and conventional sense. The question then is whether the lessors are, by reason of the chattel mortgage which has been described, “mortgagees” in the usual and conventional sense.
In so far as the mortgage was given to secure the payment of $15,000 as liquidated damages in the event of a breach of the lease, the lessors were not mortgagees in the usual and conventional sense. The foreclosure contemplated by the customary mortgage is intended to effectuate a return of value given by the mortgagee and nothing more.
But the mortgage was given not only to secure payment of the note but also as security for the performance of the lease. If with respect to performance of the lease, at the time of the tax levy, the lessors occupied a position substantially equivalent to that of mortgagees under a conventional mortgage, their claim is to that extent protected against the section 6321 lien under section 6323(a).
It is true that the mortgage provides that in the event of foreclosure payment shall be made from the proceeds of the sale of the whole amount specified in the note. But if the provisions of the mortgage concerning the obligation assumed and the occasioning of a breach are, as we have concluded, compatible with the generally accepted notion of a mortgage, the fact that an unorthodox measure of recovery is specified does not require total rejection of the instrument as a mortgage to which the provisions of section 6323 (a) apply. In this event it comports with the spirit of the statute to afford section 6323(a) protection consistent with the measure of security which an ordinary mortgage affords, if doing so effectuates the underlying purpose of the parties.
In our view, with regard to arrearages actually existing at the time of the tax levy, the lessors occupied a position which may be fairly likened to that of the mortgagee under an open-end mortgage on which advances were made prior to the notice of the tax lien. As each month under the lease went by, the lessees’ use of the premises represented in effect the acceptance and use of value advanced by the lessors. The fact that such value was in the form of the right to occupy premises rather than in the form of cash does not seem important. Had the lessors supplied money each month, secured by an open-end mortgage, the amount owing when the tax lien attached would be protected by section 6323(a). We see no reason why the same protection should not be afforded where the money value is in some form other than actual cash.
The Government argues that section 6323(a) protection is not available because the liability of the bankrupt under the note and mortgage and the corresponding right of the mortgagee to recover were wholly contingent upon some default of the mortgagors in their performance under the lease. It is pointed out in this connection that the first step taken by the mortgagees to assert their right under the mortgage and fix liability on the mortgage was the giving of notice of cancellation on November 13, 1958, which was subsequent to the tax levy.
The mortgage expressly provides that in the event the lessees shall fail to perform any term, covenant or condition of the lease during the first three years of the term “then the Mortgagees may foreclose this mortgage in the manner provided by law. * * * ” There is no requirement that the lease be canceled or that any event beyond a default by the mortgagor occur before the mortgage may be foreclosed.
We have not overlooked the fact that under the terms of the lease the lessees were entitled to thirty days in which to correct any delinquency after being given notice of a breach. It follows that the mortgage was not subject to foreclosure until such notice had been given and the thirty-day period had run without remedial performance by the mortgagors. No such notice had been given prior to the tax levy, and so the lessees had not, prior to the tax levy, been given an opportunity to repair the breach.
But as we view it, the thirty-day grace period relates to the manner of enforcing the mortgage, not its validity. The mortgagors had, to the extent of their use of the premises, already received value and were obligated to pay for it. Notice of the breach was just a step in the process of the mortgagees’ enforcement of their existing right.
With regard to any mortgage, the fact that steps have not been taken to foreclose prior to notice of a federal tax lien does not deprive the mortgagee of the benefit of section 6323(a). Evans v. Stewart, 245 Iowa 1268, 66 N.W.2d 442, 449. Indeed, the underlying promissory note may not yet be due and still section 6323(a) protection is available. This is true despite the fact that under either of these circumstances the mortgagor may, subsequent to the tax lien, pay the obligation if or when due and so avoid foreclosure.
The Government next argues that the identity of the property subject to lien in this case was as indefinite as was the property subject to the lien in United States v. Waddill, Holland & Flinn, 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294, in which the Government tax lien was given priority.
Waddill did not involve section 6323 (a), but rather the priority accorded government claims against an insolvent debtor under 31 U.S.C.A. § 191. The tax lien was asserted with regard to personal property, the fixtures and equipment used in the conduct of a restaurant. The counter-lien was one asserted by a landlord by virtue of certain Virginia statutes. These statutes authorized a landlord to levy distress for six months’ rent upon “any goods” of the lessee found on the premises.
The landlord had not asserted his lien prior to the date on which the tax lien attached. The court, holding that the property subject to the landlord’s lien was not then identifiable, pointed out that until the lien was asserted it was impossible to determine what goods were subject to the lien.
In our case there is no such problem. The chattel mortgage identifies as the mortgaged property all furniture, fixtures, supplies, equipment, appliances, licenses and the trade-name of the restaurant in question, together with added and substituted parts. This identification is as precise and complete as that of the ordinary chattel mortgage. The statutory landlord’s lien in Waddill could not be related to any specific property until the lien was enforced. Here the property was identified in the contract instrument.
The Government further argues that the amount of the liability was not fixed and could not be determined until the mortgagee took steps to foreclose.
The liability to pay delinquent rent arose as soon as the rent became delinquent. At the time of the tax levy the amount then owing was known to or was ascertainable by the parties. This amount was then subject to collection by foreclosure.
Under these circumstances it is immaterial that this amount had not by then been judicially determined, since the lessors are not seeking status as judgment creditors. It is immaterial that the amount due was not then known to the Government or to third parties generally. This is ordinarily the case where, for example, a mortgage is given to secure payment of an installment note. It is likewise immaterial that the lessees’ liability was, by payment, subject to mitigation or elimination after the levy. This possibility exists with regard to any unforeclosed mortgage.
The Government relies upon United States v. R. F. Ball Construction Co., 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510, as requiring a holding that the mortgage before us is not protected by section 6323 (a). The encumbrance involved in Ball was not in form a mortgage, and what tire Supreme Court said in its per curiam opinion may have been intended to indicate the view that the claimant was not a mortgagee within the meaning of the statute.
However that may be, neither of the assignments under consideration in Ball were given to secure an indebtedness which to any extent matured before the tax lien attached. The assignments were given to protect a bonding company with regard to the potential liability it assumed under two performance bonds. There was no failure of performance giving rise to actual liability until after the tax lien was filed. The liability for which the assignments had been given was thus contingent and unliquidated when the tax lien attached.
In the instant case liability had already arisen to the extent of the arrearages existing when the tax levy attached. The fact that the lessees might have thereafter extinguished this liability by paying the arrearages did not render such liabilities either contingent or unliquidated.
Nothing said in United States v. Christensen, 9 Cir., 269 F.2d 624, or United States v. Bond, 4 Cir., 279 F.2d 837, calls for a different conclusion than expressed above. Both of these cases involved the question of whether the protection afforded by section 6323(a) extends to property taxes assessed against mortgaged property and paid by the mortgagee after a tax lien attached. Our conclusions in favor of the mortgage, on the other hand, have been limited to the amount representing value given by the mortgagees to the mortgagors prior to the tax levy.
At the time of the termination of the lease the actual arrearages for rent and other items were $4,416.56. But the lease was not terminated until November 13, 1958, whereas the tax levy was made on October 14, 1958. The arrearages on the latter date, which we hold to be protected by section 6323(a), may have been something less than $4,416.56.
The judgment is reversed and the cause is remanded with directions to determine the actual arrearages on October 14, 1958, and to accord the lessors priority to that extent over the federal tax lien.
. See United States v. Gilbert Associates, 345 U.S. 361, 363, 73 S.Ct. 701, 97 L.Ed. 1071; United States v. Acri, 348 U.S. 211, 213, 75 S.Ct. 239, 99 L.Ed. 264. To be distinguished is the question of ■whether and to what extent the taxpayer has property or rights to property to which a tax lien could attach, as to which question state law controls. Aquelino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365; United States v. Durham Lumber Co., 363 U.S. 522, 80 S.Ct. 1282, 4 L.Ed.2d 1371. No such question is presented here, since lessors do not contend that their chattel mortgage divested the lessees of a property interest in the mortgaged property upon which the Government could levy. Nor would such a contention have substance under Washington law. Glaspey v. Prelusky, 36 Wash.2d 592, 219 P.2d 585, 588.
. United States v. Scovil, 348 U.S. 218, 221, 75 S.Ct. 244, 99 L.Ed. 271, “purchaser”; United States v. Gilbert Associates, Inc., 345 U.S. 361, 364, 73 S.Ct. 701, 97 L.Ed. 1071, “judgment creditor.” Regarding what constitutes a mortgagee within the meaning of 26 U.S.C.A. § 6323, see United States v. Gargill, 1 Cir., 218 F.2d 556, 560-561.
. The Internal Revenue Service has itself so ruled. Rev.Rul. 56-144, 1956-1 Oum. Bull. 562, 563:
“In the ease of an ‘open-end mortgage’ which covers future advances, it is possible that no future advances may ever be made. Therefore, until such an advance is actually made, there can be no fixed and specific or perfected lien under Federal law as distinguished from a mere contingent hen or ‘caveat of a more perfect hen to come.’ Consequently, an intervening recorded Federal tax hen has priority over advances made subsequent to the date of such recording.”
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_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.
Robert S. DAVIS, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Robert S. DAVIS, Respondent.
Nos. 11727, 11728.
United States Court of Appeals Seventh Circuit.
March 1, 1957.
Walter E. Barton, Washington, D. C., for. Davis.
Charles K. Rice, Asst. Atty. Gen., Davis W. Morton, Jr., Attorney, Tax Division, U. S. Department of Justice, Washington, D. C., Lee A. Jackson, Robert N. Anderson, Attorneys, Department of Justice, Washington, D. C., for 'C. I. R.
Before LINDLEY and SCHNACKEN-¡BERG, Circuit Judges, and WHAM, District Judge.
LINDLEY, Circuit Judge.
In 11727 the taxpayer seeks to set ■aside a judgment of the Tax Court denying him the right to take as a deduction his admitted loss of $32,000 for the year 1945 on an investment in a part interest •in an oil and gas lease. In 11728 the 'Commissioner seeks to avoid a judgment of the same court allowing the loss as •a deduction- for the year 1944. The second appeal is taken, as the Government frankly avows, to protect its rights if this court disturbs the decision that the loss was sustained in the year 1944. Consequently, the only question presented is whether the Tax Court properly held the deduction in question attributable to the year 1944 instead of the year 1945.
On January 1, 1940 an oil and gas lease was executed by the United States as lessor to certain lessees, covering four ‘ sections of land in Lee County, New Mexico, “for a period of five years and as long thereafter as oil and gas is produced in paying quantities.” On October 17, 1944, the lessees assigned that part of the lease, to Cherry and Kidd, covering Sections 21 and 28 in Town 19 S., R. 33 E., N.M.P.M., Lee County. On July 6, 1944, petitioner advanced to Cherry and Kidd, $32,000 as payment for an undivided one-half interest in their sub-lease covering Sections 21 and 28, and they executed and delivered to him a written assignment. This instrument was not filed with the Secretary of the Interior.
In the fall of 1944 Cherry and Kidd drilled a well on Section 21, but discontinued work thereon, on December 19, 1944, at a depth of 3600 feet. This well was plugged and abandoned on January 6, 1945 and this action was approved by the Secretary of the Interior on November 7, 1945. No other well was drilled on either Section 21 or Section 28. Promptly after ceasing drilling the well in Section 21, the original lessees filed with the Government, a preference right application for a new lease on Sections 29 and 30, and this was allowed by the Department of Interior later effective as of December 31, 1944. On the same day Cherry and Kidd filed a like application for a new lease covering Sections 21 and 28, and, on August 29, 1946, received it effective as of December 31, 1944. The record does not disclose that petitioner at any time obtained or had any interest in either of the new leases.
These facts and others were stipulated and parol evidence was submitted.- The stipulation included an agreement as to the year 1944 that: “The correct net income of the petitioner for 1944 is $32,-387.99, unless the Court should hold that petitioner sustained a loss of $32,000.00 during said year 1944 upon the termination of said lease referred to in paragraph 4(a), supra, in which event the correct net income of petitioner for said year 1944 is $387.99” and, as to the year 1945, that: “The correct net income for 1945 is $103,063.37, unless the Court should hold that petitioner sustained a loss of $32,000.00 during said year 1945 upon the termination of said lease referred to in paragraph 4(a), supra, in which event the correct net income of petitioner for said year 1945 is $71,063.37”. The trial court, believing that that part of the stipulation which refers to the termination of the lease as the decisive event was a stipulation of law, held that the taxpayer had not proved that the loss occurred in 1945 but that, in fact, it had been sustained in 1944.
Section 23 of the Internal Revenue Act of 1939, 26 U.S.C.A. § 23, permits deduction, under subparagraph (e) of individual losses “sustained during the taxable year”, if the loss was “incurred in any transaction entered into for profit.” Regulation 118, Sec. 39.23 (e)-1(b), provides that a loss, to be deductible, “must be evidenced by closed and completed transactions, fixed by identifiable events, bona fide and actually sustained during the taxable period for which allowed.” As the Supreme Court, in Boehm v. Commissioner, 326 U.S. 287, at pages 292, 293, 66 S.Ct. 120, at pages 123, 124, 90 L.Ed. 78, said: “Section 23 (e) itself speaks of losses ‘sustained during the taxable year.’ The regulations in turn refer to losses ‘actually sustained during the taxable period,’ as fixed by ‘identifiable events.’ Such unmistakable phraseology compels the conclusion that a loss, to be deductible under § 23(e), must have been sustained in fact during the taxable year. * * * The standard for determining the year for deduction of a loss is thus a flexible, practical one, varying according to the-circumstances of each case.” And, as. the court said, in Nelson v. United States, 8 Cir., 131 F.2d 301, at page 302, the question is one of fact controlled by evidence in the particular case. So, here, the parties properly stipulated that the.court’s decision as to liability should be based upon a determination of the year-in which the loss occurred. Obviously, the further stipulation that this meant, termination of the lease was not controlling, and the Tax Court rightfully proceeded to decide the question of the-proper date for itself.
However, we find no justification for the conclusion of the Tax Court, that the evidence does not reflect a loss sustained in the year 1945. It is undisputed that the lease did not expire until January 1, 1945; that it covered’ two sections of land; that only one well had been driven, on one of the two sections ; that complete exploration of the-possibilities for production of oil and gas on 1280 acres had not been explored or ascertained; that the lessees had a right to apply to the Government for new leases before the expiration date; and, that, until the lease expired, they had the right to proceed to endeavor to-discover oil and gas. As long as the lease was in effect, there was a possibility that other wells on the section in which the one well had been driven and on the-other sections on which no well had been drilled might result in finding oil and gas. in productive quantities. Consequently, it cannot be said that the leases were worthless. The abandonment of one well on a total of 1280 acres is not proof off the worthlessness of an oil lease upon the entire acreage. That the parties continued to believe in such possibilities, is evident from their applications for and' allowance of new leases. Consequently, this lease, not made worthless by the drilling of one well, was of some value-at all times until it expired, and the Tax Court, we think, was not justified in-saying that stopping work on the one well was an abandonment of the entire-leasehold, and proof of the lack of value-of the entire lease at that time. The identifiable event, in our opinion, irrespective of the stipulation of the parties to that effect, but as a matter' of law, upon the undisputed facts, was the time of the closed transaction, that is, the year 1945. Until that time plaintiff retained an interest in the lease, the possibilities of which had not been exhausted. Obviously, however, when his lease expired and no .attempt was made to renew it, he lost everything he had invested in the lease; and that loss occurred upon the effective termination of the lease in 1945.
Similar to the question here was the one before the court in Helvering v. Canisteo Mining Co., 8 Cir., 76 F.2d 378, 379. There the lease was to become invalid upon giving six months’ notice. The Government contended that the loss occurred when the notice was given, but the court held that the loss was sustained when the lease expired by virtue of the notice saying: “Until the expiration of this prescribed period the lessee is bound by the terms of the lease and all its obligations thereunder.” Mertens, in his Law of Federal Income Taxation, Volume 5, page 54 (1956 Edition) concludes that any loss of investment in an oil lease is sustained at the expiration of the lease, unless there is a definite abandonment prior to the termination thereof. Otherwise, there is no loss, until the lease is cancelled or terminated according to its provisions. We approve of this reasoning.
We think there can be no doubt that the definable date for fixing the time of the loss was January 1, 1945. In making such computations the first day of the period is excluded. Consequently, the lease, having been made January 1, 1940, did not expire until the end of January 1, 1945. This is in accord with the doctrine announced by Mr. Justice Holmes in Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448. Similar are the announcements of other courts. See Eastern Oil Co. v. Coulehan, 65 W.Va. 531, at page 539, 64 S.E. 836 at page 839, as well as the text writei’s.
We conclude therefore, that the only possible inference to be drawn from the facts submitted to the Tax Court is that the identifiable date fixing the time of accruement of the loss was January 1, 1945, and that the deduction, accordingly, should be attributed to the year 1945 rather than to 1944. Each of the judgments of the Tax Court is reversed. Each of the causes is remanded for further proceedings in accord with the announcements herein contained.
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_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America and Albert J. Valentas, Internal Revenue Agent, Plaintiffs-Appellants, v. HUMBLE OIL & REFINING COMPANY, Defendant-Appellee.
No. 72-3029.
United States Court of Appeals, Fifth Circuit.
Sept. 8, 1975.
Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Mary J. McGinn, Charles E. Anderson, Gilbert E. Andrews, Crombie J. D. Garrett, Robert E. Lindsay, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellants.
Walter B. Morgan, Robert G. Standlee, Houston, Tex., for defendant-appellee.
Before GEWIN and MORGAN, Circuit Judges, and GORDON, District Judge.
PER CURIAM:
The Supreme Court of the United States on April 28, 1975 vacated the judgment of this court in the case of United States v. Humble Oil and Refining Company, 488 F.2d 953 (5th Cir. 1974) and remanded the case'for further consideration in light of United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975).
We have carefully considered Bisceglia and have concluded that it does not require a reversal of our decision in this case. Both cases involve the enforceability of a “John Doe” summons issued by the Internal Revenue Service. While the Bisceglia Court held the “John Doe” summons before it to be enforceable, we decline to construe that holding as a blanket endorsement of the use of “John Doe” summonses in every situation without reference either to the purpose of the summons or to the factual circumstances which underlie its issuance.
At issue in Bisceglia was the enforceability of a “John Doe” summons issued by the IRS to a bank. The impetus behind the issuance of the summons was the deposit with the bank of some 400 badly deteriorated one hundred dollar bills by an unknown bank customer. This extraordinary transaction gave rise to a strong suspicion of unpaid taxes. An agent was assigned to investigate, and the issuance of the summons constituted the first step in the investigative process.
In the case now before us the IRS issued a “John Doe” summons in order to discover the identities of all lessors of mineral leases surrendered by Humble Oil in the calendar year 1970. The information sought did not relate to a specific, extraordinary transaction as in Bisceglia. Nor were there any factu- . ally demonstrable grounds to suggest the likelihood of unpaid taxes. The summons was not issued to facilitate any ongoing investigation. Rather, the information was sought from Humble to expedite research on an IRS project concerning compliance with the lease restoration requirements of the Internal Revenue Code. An adjustment of tax liabilities may have incidentally resulted from the project, but the primary purpose of the project was research. We do not believe that the provisions of 26 U.S.C. §§ 7601 and 7602 authorize the IRS to force private citizens to do its research. Nor do we believe that Bisceglia sanctions this use of the summons power. The judgment is therefore affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_casetyp1_7-2
|
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 "economic activity and regulation".
R. U. V. ENGINEERING CORPORATION v. BORDEN CO.
No. 37, Docket 20722.
United States Court of Appeals Second Circuit
Nov. 8, 1948.
Bohleber, Fassett & Montstream and William Bohleber, all of New York City (Francis H. Fassett and John M. Montstream, both of New York City, of counsel), for appellant.
Fish Richardson & Neave and Maxwell Barus, all of New York City, for appellee.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
L. HAND, Chief Judge.
Judge Coxe’s opinion in the District Court states the facts so fully that we need not repeat them here; and, indeed, we follow so closely his discussion of the invalidity of the claims because of their variance from the original disclosure, that it is perhaps doubtful whether we can add anything useful to what he has said. We have set out in an appendix a number of passages from- the disclosure, which relate to the “activation” of milk to produce Vitamin D. These very fully describe that process (there are other passages specifically devoted to “sterilization”), and it is so apparent from a mere reading of them that the process was conceived in general as requiring “multiple exposure,” that it cannot be necessary to labor the argument. ' The same was true of all the original claims except Claims Ten to Sixteen, inclusive. Claims Ten and Twelve were substantially alike-; they were both to “induce beneficial properties” in the milk by exposure for only a “fraction of a second”; and in 'Clairfis Eleven and Thirteen, which were .also alike, this period was enlarged to “less than eight seconds.” These • four claims,, being general as to the number of exposures, intended,.would have had to be read upon, and confined to, the disclosure; and .they add nothing to the plaintiff’s argument that the specifications from the outset foreshadowed the claims in suit. On the other hand, original Claims Fourteen and Fifteen, again substantially alike, prescribed “one or more” exposures, as did- Claim Sixteen; and it was upon these and upon a passage in the disclosure, which we quote in the margin, that the applicants relied when they later • introduced the claims now in suit.
The meaning of this passage, especially when it is read together with the paragraph which just preceded it, is that a single exposure, “when the irradiation is properly controlled,” will resttlt in a “substantial increase” in vitamins; and that “increase” was described as equal to “ten” Steenbock, or 30 U. S. P. “units.” That meant that, if you were content with that much “activation,” one exposure would do; but that, since the effect of successive exposures was cumulative, if you wished more than the 30 U. S. P. “units,” you might apply the “cyclic method”; i.e>. repeat the exposure. If you repeated it eight times, you would get “a substantial increase * * * with each exposure, and a high vitamin content at the end.” The preceding paragraph spoke more quantitatively; if you repeated the exposure twenty-five times you would get 300 U. S. P. “units.” (Obviously, the increase, though cumulative, would not be in proportion to the number of exposures.) These claims could, therefore, only have meant to cover the first modest “increase,” when they spoke of “treating milk” by one exposure; and similarly Ciai'm Sixteen, when it spoke of “activating and sterilizing milk” by one exposure. Thus it appears, not only that the disclosure in general prescribed “multiple exposure,” but that in the only instance in which a single exposure was suggested, it declared affirmatively that a very low degree of “activation” would result. From one end to the other of the specifications, they did not even intimate the possibility of obtaining 400 U. S. P. “units” by one exposure; indeed, they were to the. contrary.
Claims Thirteen and Fourteen in suit were introduced into the application on March 22, 1935, less than two years before the Creamery Package machine was proved to have gone into public use, and a fortiori before the advent of the Hanovia machine. These claims were not expressly for one exposure, though they could have been read to cover one exposure after the disclosure had been amended as it was on July 26, 1936. When' introduced, merely as matter of interpretation, they would, like Original Claims Fourteen, Fifteen and Sixteen, have confined the single exposure process to the production of a low “activation.” This appears from an analysis of Claim Thirteen, which will serve as a sample for all three. It says that the “desired potency” may be obtained for the whole volume of milk by exposing only a “fraction” of the layer to the rays, the layer as a whole being too thick to be penetrated. That was true enough, if the “desired potency” was in the neighborhood of the 30 U. S. P. “units”; but if a greater “potency” was “desired,” the disclosure, as it then stood,' declared that the exposure must be repeated. Certainly it would be contrary to every canon to interpret such a claim as covering the infringing processes. However, the vice goes deeper, because, even though we were to assume that the claim could be stretched so far, it would then lack any support in the disclosure; and that, of course, would be fatal to its validity. All such support continued to be absent until the disclosure was finally amended on July 26, 1936, and when that was done, not only, did the amendments flatly contradict the disclosure as a whole, but it was too late, for the processes had been in operation for more than two years. Muncie Gear Works, Inc., v. Outboard Marine & Manufacturing Co. is only the' last of many decisions which have halted such attempts. Indeed, it is hard to imagine a more glaring effort to introduce into specifications a new and unexpressed invention two years after the art had already made the advance.
Judgment affirmd.
Appendix
Lines '52-57, Col. I, Page 3: “It is con-: templated to effect the successive treating of portions of substances of this character, such treated portions being mixed with untreated portions between the successive- treating steps in order that the resulting process provides a substance which is relatively uniformly treated.”
Lines 23-47, Col. II, Page 3: “Our method relates to the irradiation of substances capable of having beneficial or detrimental effects imparted thereto and comprises treating such a substance with a number of short intermittent exposures to radiant energy emanating from one or more sources or stages of active rays, no one of said exposures being sufficient to give the whole body of the substance the amount of treatment necessary to produce the ultimate desired beneficial results or effects, and mixing the substance between exposures, such that said mixings take place away from the action of the rays to permit one to control the distribution and amount of treatment received by the substance. The proper combination of the time of each exposure or amount of treatment and the number of exposures will give a much better result than that obtained if the same total time of treatment were given without regard to the amount of each exposure. The number of treatments to be given depends on the layer thickness used, the time limits of exposure and the amount of desirable or beneficial effects desired and the amount of undesirable effects that may be tolerated.”
Lines 57-70, Col. II, Page 3: “With this understanding our invention, in one of its broad aspects, comprises exposing a substance to the influence of active rays of sufficient effectiveness and for such duration as to give the same a fractional treatment and to impart beneficial effects thereto but for a duration insufficient to impart undesirable effects thereto, mixing said substance after such fractional treatment, and then alternately repeating this cycle until the desired beneficial effects throughout the substance have been attained, these repetitions being less than that required to impart detrimental effects thereto.”
Lines 40-45, Col. II, Page 4: “We have discovered that a few or thousands of exposures to radiant energy of short wave lengths may be utilized to produce beneficial effects in a substance when the time of each exposure is only a fraction of a second, as will be hereinafter described."
Lines 73-75, Col. I, Page 5 and Lines 1-10, Col. II, Page 5: “In a general way it can be said that instead of trying to irradiate the complete layer of a substance in one exposure, as is done by those using a thin film or thin stream or by those who agitate while under the action of the rays, we only try to beneficially irradiate a relatively small portion, or, you might say, the surface of the layer or film and then mix the substance while it is away from the action of the rays and thereafter return it again for treatment, repeating the cycle for as many treatments as are necessary to give the results desired.”
Lines 17-39, Col. II, Page 5: “We have discovered that this cyclic method of giving a substance fractional or several properly timed short intermittent exposures (in place of one continuous exposure) for a given number of times and mixing between exposures gives us excellent results. We have found that with a given amount of active ray energy to be applied to a substance, the amount of beneficial effect imparted to a substance varies with the number of treatments given. We have also found that as a rule, the number of treatments to which a substance may be safely subjected depends upon the relation between the amount of treatment required to deleteriously affect the substance and the minimum amount of treatment necessary to produce a beneficial effect in said substance. If the time of each exposure is too long, or the amount of treatment too great, then one is obliged to reduce the number of exposures in order to avoid detrimental effects, and consequently the amount of beneficial effects will be less than if shorter exposures and more of them were used.”
Lines 44-59, Col. II, Page 5: “Likewise, the time intervals between exposures may be readily predetermined. This is particularly important in- sterilizing, because if the time intervals are too great it will enable bacteria to recuperate from the effects of any preceding exposure or exposures. We have found, as already stated, that the layer thickness used when the substance is presented for irradiation has a bearing on the number of exposures to be given and the time of each exposure. We have also found that the degree of mixing given between exposures will also vary the results. Thorough mixing between exposures gives the most accurate control of the amount of treatment and therefore the best results.”
67 F.Supp. 587..
Lines 62-75, Col. 2, Page 6, Lines: 1 and 2, Col. 1, Page 7:
“We have also found that when the irradiation is properly controlled we can produce in milk a substantial increase in the vitamin D effect with a single exposure of about 1/20 of a second. In one of these experiments the vitamin D content produced was ten units per quart with one exposure 1)4 inches from the ray source above described and in a layer of milk 3/32 of an inch thick ov.er an area of about twenty square inches. When we applied our cyclic method and exposed eight times with short exposures of 1/20th of a second each time, we obtain a substantial increase in the number of vitamin D units with each exposure and a high vitamin content at the end of eight exposures.”
Adams Electric Railway Co. v. Lindell Ry. Co., 8 Cir., 77 F. 432, 449; Bird v. Elaborated Roofing Co., 2 Cir., 256 F. 366, 373, 374; Baker Perkins Co. v. Thomas Roulston, Inc., 2 Cir., 62 F.2d 509, 513; Thompson v. Westinghouse El. & Mfg. Co., 2 Cir., 116 F.2d 422, 425; Carl Braun, Inc., v. Kendall-Lamar Corporation, 2 Cir., 116 F.2d 663, 665.
315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_sentence
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
COASTLAND CORPORATION, Appellee, v. THIRD NATIONAL MORTGAGE COMPANY, as successor to defendant John W. Murphree Company, Appellant, and Kenneth R. Larish and Grover C. Cauthen, Defendants. COASTLAND CORPORATION, Appellant, v. THIRD NATIONAL MORTGAGE COMPANY, as successor to defendant, John W. Murphree Company, Appellee.
Nos. 78-1418, 78-1420.
United States Court of Appeals, Fourth Circuit.
Argued March 5, 1979.
Decided Dec. 26, 1979.
Thomas P. Kanaday, Jr., Nashville, Tenn. (Robert D. Tuke, Farris, Warfield & Kanaday, Nashville, Tenn., Braden Vandeventer, Robert L. O’Donnell, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for Third National Mortgage Co.
Philip G. Denman, Norfolk, Va. (James C. Howell, Willcox, Savage, Lawrence, Dickson & Spindle, Norfolk, Va., on brief), for Coastland Corp.
Before RUSSELL and WIDENER, Circuit Judges, and DUMBAULD, Senior District Judge.
United States District Court for the Western District of Pennsylvania, at Pittsburgh.
WIDENER, Circuit Judge:
Third National Mortgage Company (Mortgage Company or appellant), defendant in the action below, appeals from the decision of the district court holding that it breached an oral commitment to provide construction financing to Coastland Corporation for the construction of a condominium project. The district court awarded Coastland $620,650.00 in damages for the breach. The Mortgage Company contends that the district court erred both in finding that an oral commitment existed and in its award of damages. Coastland has filed a cross-appeal contending that the district court’s limitation of damages was erroneous. Jurisdiction in this case is based upon diversity of citizenship, 28 U.S.C. § 1332, and both parties agree, as they did in the court below, that the disposition of the issues raised on appeal is controlled by the law of Virginia.
Coastland brought suit in the district court against Third National Bank in Nashville; John W. Murphree Company, now Third National Mortgage Company (appellant); Kenneth R. Larish, President of Third National Mortgage Company; and Grover C. Cauthen, former Vice President of John W. Murphree Company, alleging that Third National Mortgage Company breached an alleged agreement made through Cauthen to provide construction financing to Coastland for the proposed construction of a condominium project to be known as the Schooner Point Condominium in Currituck, North Carolina. The district court either dismissed as to, or found for, Third National Bank, Cauthen and Larish. Those actions are not questioned on appeal. As noted, however, it entered judgment against the Mortgage Company.
The evidence adduced at trial includes the following. Coastland, a North Carolina corporation with its principal place of business in Virginia, was formed in 1970 and is engaged in the business of real estate development. In 1971, Coastland purchased approximately 600 acres of land approximately seven miles north of Duck and twenty-four miles north of Nagshead on the Outer Banks of North Carolina, for purposes of residential development. A master plan of development was prepared for this tract of land under the name Ocean Sands Subdivision. The plan included provisions for the construction of a condominium project to be known as the Schooner Point Condominium. This condominium project was envisioned as consisting of 134 units, with seventy-one units being constructed during the first phase of development.
James E. Johnson, Jr., President of Coast-land, and Gary G. Cowan, a former officer of Coastland, testified that in January 1974 Coastland began to seek financing for the first phase (71 units) of the Schooner Point project. Appellant was one of the institutions Coastland went to in search of financing. Johnson and Cowan testified that Coastland sought both construction and permanent financing for the project, and entered into discussions with Cauthen, who was acting on behalf of the Mortgage Company, for that purpose.
In connection with the seeking of financing for the condominium project, Coastland provided appellant with cost breakdowns, projected sales figures, estimated budgets, plans, legal documents and other information relating to the project. Johnson and Cowan testified that after the above documentation was supplied, appellant, acting through Cauthen, verbally agreed in May 1974 to provide Coastland with both construction and permanent financing for the first phase of the project.
The commitment to provide permanent financing to qualifying individual purchasers of the proposed condominiums was reduced to a written agreement dated June 26,1974. It was for a total of $3,100,000.00, and was to expire on December 31, 1975. Coastland agreed to pay a fee of $100,000.00 for the commitment for permanent financing. At the time Coastland accepted the permanent financing commitment, it paid appellant $50,000.00 in cash therefor, and issued a note for $50,000.00 payable on or before November 1, 1974 for the unpaid balance of the commitment fee. There are no contentions between the parties concerning either the existence or terms of the permanent financing commitment.
The verbal commitment to provide construction financing was not reduced to writing. However, Johnson testified that subsequent to Cauthen’s assurance in May 1974 that both construction and permanent financing would be available Cauthen called him by telephone to inform him that he, Cauthen, had worked out the details of the financing with Cowan. Cowan testified that the construction financing was to be in the amount of 2.2 million dollars at 4x/2 percent over the prime interest rate, and that the financing would be available for up to eighteen months. Cowan also testified that Coastland was to pay appellant a fee of $20,000.00 to $40,000.00 for the construction financing commitment, but this fee was never paid.
Both Johnson and Cowan testified that the construction financing commitment was not reduced to writing because of a tight banking situation precipitated by the collapse of the Franklin National Bank. They testified that several weeks after Cauthen assured them of construction financing, and prior to the issuance of the written commitment for permanent financing, Cauthen called Coastland to inform it that appellant’s parent company, Third National Bank, did not want it to make any commitments for approximately six months in order to improve its liquidity. Johnson and Cowan further testified that Cauthen related that because of this policy, funding for the construction financing commitment could not be immediately forthcoming, but that around January 1, 1975 funding for said commitment should be available. Cow-an testified that Cauthen said Coastland would be “on the top of the list and could go ahead and get [its] funding” in January 1975.
Subsequent to the just mentioned telephone conversation and the execution of the written commitment for permanent financing, in a letter dated July 5, 1974, from Cowan to Cauthen, Cowan stated, “As we discussed, the 12/31/75 commitment date [for permanent financing] may be a little tight, and you indicated you would grant a reasonable extension if the need arises.” At trial, Cowan explained the reference to the permanent financing commitment date of December 31, 1975 as being too tight as follows:
“Well, we had negotiated originally the terms of the permanent loan at the same time of the construction loan, and, therefore, we had set that date as a reasonable date because we intended to start construction in the immediate future, but the fact the construction loan now had been deferred for a period of six months we wanted to extend the period of the termination date of the permanent financing.!’
Johnson also testified that Coastland sought an extension of the termination date for the permanent financing commitment because appellant could not provide the construction financing at the time originally anticipated.
Cauthen did agree to extend the termination date of the permanent financing commitment from December 31, 1975 to September 1, 1976. In October 1974, Cauthen went to Coastland’s offices in Virginia Beach, where the extension of time for the permanent financing commitment was executed. At that time, $25,000.00 was paid on the promissory note that had been given for the balance of the fee for the permanent financing commitment. The time for payment of the remaining $25,000.00 balance was extended from November 1, 1974 to April 1, 1975, and a new promissory note was issued for the balance. Johnson testified that this new arrangement for paying the balance of the fee for the permanent financing commitment was adopted “because the permanent loan was extended because the construction loan was going to be provided later.” Additionally, both Johnson and Cowan testified that at this October 1974 meeting Cauthen reassured them that he thought the construction financing would be available in January 1975, and certainly no later than April 1975.
Johnson further testified that in early 1975 he contacted Larish, whom he understood to be the new president of appellant, to exercise the commitment for the construction financing loan. Johnson testified that Larish informed him that he would check into the matter and get back in touch with him, but never did. Johnson said that he tried to contact Larish numerous times via telephone, letter, and his attorney, but never received any response to his inquiries. Larish admitted that he did not respond to these inquiries of Johnson or his attorney.
Larish began his employment with appellant in February 1975. He testified that the construction financing matter first came to his attention in March 1975 during discussions with Cauthen, as well as after receiving a memorandum from Cauthen that discussed the matter. Larish further testified that Cauthen stated to him that he never “verbally or formally” committed appellant to provide Coastland with construction financing but, rather, made a single commitment to provide Coastland with permanent financing.
A number of internal memoranda sent between various employees of the Mortgage Company were introduced by Coastland which support its contention that appellant entered into a binding commitment to provide Coastland with construction financing. Cauthen sent a memorandum dated October 22, 1974 to Richard G. Keeran, then President of John W. Murphree Company, that concerned the Schooner Point project. Cauthen stated in that memo: “I am sure that you will agree with me that this is a fine piece of work on my part to have negotiated such a deal under this intense pressure in the worst money market anyone can remember. As the market begins to turn, I am confident that we can obtain back-up for our commitments from investors in the New Jersey area.” (Emphasis added) No explanation was offered by appellant at trial as to Cauthen’s reference to commitments in the October 22, 1974 memorandum, although opportunity to explain was offered. Cauthen also sent a memorandum dated March 18, 1975 to Larish that stated, in part: “When we originally issued our permanent loan commitment, we had hoped to provide construction financing, however due to market conditions, and our own shortages of funds, we were unable to come up with an interim loan commitment.”
Additionally, Larish sent a memorandum dated April 8, 1975 to Chip Stanley, then appellant’s capital asset manager, that stated, in part: “They [Coastland] paid $75,-000.00 in front end points for our take-out commitment and Grover [Cauthen] indicated to them [Johnson and Cowan] at the time that we would make the construction loan as well. Because we didn’t have ready funds to make this deal, Grover convinced them to just take the end mortgage commitment.” (Emphasis added) Larish testified that he was merely relating to Stanley what Johnson had informed him Cauthen had done and that at the time he sent the above memo to Stanley he assumed Johnson was correct in his assertions. He further testified that after checking into the matter he determined that Johnson was not correct in his assertion that Cauthen had assured Coastland that appellant would provide it with construction financing. But the district court did not accept this explanation.
In this same April 8th memo from Larish to Stanley, Larish further stated: “Would you please have Scott or J.P. dig into this case and acquaint us with all the facts and the genesis of the deal? If it can be solved by us getting a backup take-out commitment now, it might be a way for us to help them [Coastland] and get off the hook at the same time.” (Emphasis added) Regarding the quoted language, Larish testified, “The hook I was referring to is: We had when I got with the company over a hundred million dollars of commitments, 88 percent of which were condominium and land development loans. We were on the hook, to use that terminology, for over 50 million dollars of permanent loans on condominiums. We were trying to reduce that potential outstanding.” Again, the district court did not accept the explanation.
Based, in part, upon the testimony of Johnson and Cowan, which the court characterized as uncontradicted and unchallenged, as well as the above mentioned memoranda, the court determined that there was a binding agreement between the Mortgage Company and Coastland for appellant to furnish construction financing for the first phase of the Schooner Point Condominium project. As previously mentioned, the court awarded Coastland $620,-650.00 as damages for the breach of said agreement. The court arrived at the $620,-650.00 figure by allowing Coastland to recover one-half of its projected profits on the first phase (71 units) of the project; one-half of the expenses it incurred for architectural, engineering and legal services, as well as other expenses it incurred, in preparation for the construction of the first phase of the project; and the $75,000.00 it paid as a fee for the permanent financing commitment. Additionally, the court ordered appellant to surrender to Coastland the unpaid note for $25,000.00 that constituted the balance of the $100,000.00 fee for the permanent financing commitment.
I
Appellant contends the district court erred in finding that it made a commitment to provide Coastland with construction financing for the first phase of the Schooner Point Condominium project. This contention is vitiated somewhat by the fact that the Mortgage Company now acknowledges that the district court’s fact findings are supported by the record, leaving the definiteness of the terms of the contract and the measure of damages as its essential arguments. In any event, after considering the evidence of record, including the testimony of Johnson and Cowan and the memoranda mentioned above, we do not think the district court erred in finding that the Mortgage Company made a commitment to Coastland to provide it with construction financing. FRCP 52(a).
Appellant argues that a construction loan of the magnitude of the one at issue here would not have been so loosely entered into, especially without having been reduced to writing. However, as the Virginia Court stated in Twohy v. Harris, 194 Va. 69, 72 S.E.2d 329, 334-35 (1952), “While there is force to the argument, the fact that the parties did not reduce the agreement to writing was but a circumstance to be weighed... in determining whether the agreement was entered into.” And, as the Twohy court also stated, the absence of a written memorandum does not, of course, make Johnson’s and Cowan’s testimony as to the verbal contract incredible.
A related contention is the assumption that the Mortgage Company would not have entered into such a construction loan agreement absent an agreement in writing. No writing was executed, however, apparently because of the Mortgage Company’s parent company’s policy, adopted in June 1974, of not making any commitments for approximately six months. Appellant cites Atlantic Coast Realty Company v. Robertson’s Ex’r, 135 Va. 247, 116 S.E. 476, 478 (1923), for the proposition “that when it is shown that the parties intend to reduce a contract to writing -this circumstance creates a presumption that no final contract has been entered into, which requires strong evidence to overcome.” Assuming that a writing was contemplated, and the district court did not address the point, that case is subject to the qualification stated by the Court in Manss-Owens Co. v. H. S. Owens & Sons, 129 Va. 183, 105 S.E. 543, 547 (1921): “the mere fact that a written contract was contemplated does not necessarily show that no binding agreement had been entered into.” The court further stated:
“The whole question is one of intention. If the parties are fully agreed, there is a binding contract, notwithstanding the fact that a formal contract is to be prepared and signed; but the parties must be fully agreed and must intend the agreement to be binding. If though fully agreed on the terms of their contract, they do not intend to be bound until a formal contract is prepared, there is no contract, and the circumstance that the parties do intend a formal contract to be drawn up is strong evidence to show they did not intend the previous negotiations to amount to an agreement.”
Id., citing Boisseau v. Fuller, 96 Va. 45, 30 S.E. 457 (1898).
In the instant case, we think the evidence of record supports the district court’s finding that a binding verbal commitment- was given by appellant to Coastland to provide it with construction financing for the first phase of the Schooner Point project, and that any presumption to the contrary was overcome. We do not think the district court was clearly erroneous in its finding that appellant intended to be bound by its verbal commitment made through Cauthen. FRCP 52(a).
II
Appellant’s primary contention with regard to the existence of a binding agreement is that, even if a commitment was given to Coastland to provide it with construction financing, the terms of the agreement were so incomplete and uncertain so as to render such agreement unenforceable. It argues that a typical construction loan commitment would contain the following terms: amount of the loan; limitation of principal amount; term of the loan; options to extend; interest rate; computation of interest; prepayment penalties; identification of contractors and location of construction; closing agent; loan servicing arrangements; title insurance; construction performance bonds; architectural specifications to be complied with; filing responsibilities; collateral documents to be prepared; provisions for payment of expenses incurred; commitment fee; provisions for the release of individual units when sold; the manner of making disbursements; and special conditions. It contrasts the terms of the construction financing commitment as testified to by Cowan, i. e., amount— $2,200,000.00; term of the loan — 18 months; interest rate — 4V2 percent over an unspecified prime rate; and commitment fee— $20,000.00 to $40,000.00, with the above enumerated terms purportedly contained in a typical construction loan commitment, and argues that the construction financing commitment in issue here is too incomplete and uncertain to be enforceable.
Appellant relies upon Progressive Construction Co. v. Thumm, 209 Va. 24, 161 S.E.2d 687, 691 (1968), in which the court stated:
“It is fundamental that no person may be subjected by law to a contractual obligation, unless the character of the obligation is definitely fixed by an express or implied agreement of the parties. In order to be binding, an agreement must be definite and certain as to its terms and requirements; it must identify the subject matter and spell out the essential commitments and agreements with respect thereto. * * * ”
See also Parker v. Murphy, 152 Va. 173, 146 S.E. 254, 257 (1929), and Smith v. Farrell, 199 Va. 121, 98 S.E.2d 3, 7 (1957).
While it is true that a contract to be valid and enforceable must be complete and definite in its terms, “reasonable certainty is all that is required.” Smith v. Farrell, 199 Va. 121, 98 S.E.2d 3, 7 (1957). For, “[t]he law does not favor declaring contracts void for indefiniteness and uncertainty, and leans against a construction which has that tendency. While courts cannot make contracts for the parties, neither will they permit parties to be released from the obligations which they have assumed if this can be ascertained with reasonable certainty from language used, in the light of all the surrounding circumstances.” High Knob, Inc. v. Allen, 205 Va. 503, 138 S.E.2d 49, 53 (1964). See also McDaniel v. Daves, 139 Va. 178, 123 S.E. 663, 666 (1924). Additionally,
‘Where the relief sought is specific execution, it is essential that the contract itself should be specific. In other words, the certainty required must extend to all the particulars essential to the enforcement of the contract. But where there has been an entire breach, and compensation is asked in damages, it may be sufficient if there be certainty only as to the general scope and stipulations of the contract.’ Manss-Owens Co. v. H. S. Owens & Son, 129 Va. 183, 105 S.E. 543, 547 (1921). See also McDaniel, 123 S.E. at 666.
In the instant case, Coastland brought suit against appellant for damages, not specific performance. Accordingly, it is sufficient if there is certainty as to the “general scope and stipulations of the contract.” Manss-Owens, 105 S.E. at 547.
When the construction financing commitment is construed in the light of the surrounding circumstances, we do not think the court below erred in finding that it was sufficiently complete and definite to be valid and enforceable. Johnson testified that Cauthen informed him that he had worked out the details of the loan with Cowan. Cowan testified that the loan was to be in the amount of $2.2 million at 4V2 percent over the prime interest rate, and that the loan was to be available for up to eighteen months. Cowan also testified that Coast-land agreed to pay a fee of $20,000.00 to $40,000.00 for the construction financing commitment. Appellant introduced no evidence to show that the terms of the alleged agreement were different than those testified to by Cowan. In light of the fact this is a suit for damages and not specific performance, we think the terms testified to by Cowan were sufficiently complete and definite so as to render the construction financing commitment valid and enforceable.
Ill
Appellant also contests the district court’s award of damages for the breach of its commitment to provide Coastland with construction financing. Appellant contends the court erred as a matter of law in allowing Coastland to recover one-half of its projected profits on the first phase (71 units) of the Schooner Point project.
In allowing Coastland to recover one-half of its projected profits on the seventy-one units, the court recited the general rule of damages that, “[w]hen there has been a breach of a contract to lend money for a particular purpose, profits reasonably within the contemplation of the defaulting parties at the time the contract was made and which are lost by reason of the breach may be recovered, if capable of reasonable ascertainment.” Determining that profits were' reasonably within the contemplation of appellant at the time the construction financing commitment was given and that the projected profits were capable of reasonable ascertainment, the court awarded Coastland $482,750.00 in lost profits, such amount constituting one-half of Coastland’s projected profits on the seventy-one units.
Although the rule as above stated may be the general rule, it has a corollary that distinguishes between the recovery of lost profits when an established business is involved and the recovery of lost profits when a new business, venture, or enterprise, or one merely in contemplation, is involved. In Virginia, as in most other jurisdictions:
When an established business, with an established earning capacity, is interrupted and there is no other practical way to estimate the damages thereby caused, evidence of the prior and subsequent record of the business has been held admissible to permit an intelligent and probable estimate of damages.... But where a new business or enterprise is involved, the rule is not applicable for the reason that such a business is a speculative venture, the successful operation of which depends upon future bargains, the status of the market, and too many other contingencies to furnish a safeguard in fixing the measure of damages.
Mullen v. Brantley, 213 Va. 765, 195 S.E.2d 696, 699-70 (1973). To the same effect are Kay Advertising Co. v. Olde London Transportation Co., 216 Va. 273, 217 S.E.2d 876, 878 (1975); Pennsylvania State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372, 377 (1961); Sinclair Refining Co. v. Hamilton & Dotson, 164 Va. 203, 178 S.E. 777, 780 (1935).
Thus, “where the business which is interfered with or prevented as a result of a breach of contract is a new or unestablished nonindustrial business, or one merely in contemplation, the anticipated profits from such business cannot be recovered, for the reason that it cannot be rendered certain that there would have been any profits at all from the conduct of such business.” Sinclair Refining Co. v. Hamilton & Dotson, 164 Va. 203, 178 S.E. 777, 780 (1935).
In Pennsylvania State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372 (1961), the court reversed a jury’s award of damages because the jury wrongfully considered loss of anticipated profits in arriving at its award. Plaintiff had brought suit for a breach of contract that involved the lease of a service station yet to be constructed. Evidence was offered by plaintiff and others on anticipated profits from the station’s operation. Although plaintiff was an experienced service station operator who successfully operated some fourteen service stations, the court held that anticipated profits based on the estimated number of gallons of gasoline that would be sold at the intended new service station site were not recoverable. The court stated:
Such estimates cannot be made with any degree of certainty for a new business, since they are purely speculative and existing only in anticipation. The successful operation of a gasoline filling station business depends upon many factors, such as the personality of the operator and the service rendered by him and his employees, the popularity of the brand of gasoline sold, the condition of the market, and many other contingencies.
Id. 120 S.E.2d at 378. Thus, the court held plaintiff’s proper measure of damages was the value of the lease in excess of the agreed rent for the term and any expenses or costs which the plaintiff may have reasonably incurred under the contract.
And, in Mullen v. Brantley, 213 Va. 765, 195 S.E.2d 696 (1973), the court again reversed an award of damages that included anticipated profits from the contemplated operation of a Shakey’s Pizza Parlor, despite the fact plaintiff was a successful franchise operator. The court stated:
In the present case it was impossible to determine the profit, if any, Mullen would have derived from the operation of a Shakey’s Pizza Parlor if he had established it on or near the Duke Street site.. Even though Shakey’s Pizza Parlors are a part of a national chain, the establishment of such a pizza parlor at or near the Duke Street site would nevertheless have been a new business. The profits derived from the Annandale, Hybla Valley and Rockville franchises and the national average of all Shakey’s Pizza Parlors, do not represent a reasonable basis upon which to judge with any degree of reasonable certainty what the profits would have been if Mullen had operated a Shakey’s Pizza Parlor at the Duke Street site. The amount of business Mullen would have had at the Duke Street site, and the anticipated profits therefrom, could have been based only on speculation and conjecture.
We hold that Mullen’s proper measure of damages could not be based on loss of anticipated profits from an unestablished business.
Id. 195 S.E.2d at 700.
In the instant case, there is no doubt but that the Schooner Point Condominium project was a new venture or enterprise. Although Coastland has been in business since 1970, the Schooner Point project constituted a new endeavor. See Mullen and Pennsylvania State Shopping Plazas, supra. Consequently, the profits Coastland anticipated could only have been based upon speculation and conjecture. This is so because such business is an adventure, the successful operation of which depends upon future bargains, states of the market, and on too many other contingencies.
Coastland has not attempted to distinguish the new business line of cases from the case at hand. Rather, Coastland argues, based on the general rule of damages, that since appellant was given documentation that included Coastland’s projected profits on the seventy-one units, appellant was aware of Coastland’s potential profits and therefore should be liable in damages for the loss of those potential profits.
As the cases set forth above point out, there is a corollary to the general rule of damages that may be summarized as follows: When the business that is interfered with as a result of a breach of contract is a new business or venture, or one merely in contemplation, the anticipated profits from such business, cannot be recovered as an item of damages because it cannot be rendered reasonably certain that there would have been any profits at all from the conduct of the business. The fact Coastland supplied appellant with documentation that included Coastland’s projected profits on the seventy-one units does not make it certain that there would have been any profits at all from the sale of the seventy-one units. Accordingly, the district court’s award to Coastland of one-half of its anticipated profits on the sale of the seventy-one units is reversed.
IV
Appellant also contends that the balance of the court’s damage award was arbitrary and capricious. Its primary contention is that the court erred in including as an element of damages one-half of the architectural, engineering and attorneys’ fees incurred by Coastland prior to the time the construction financing commitment was given. Appellant also asserts that the court’s inclusion of the permanent financing commitment fee as an element of the damage award was erroneous. We disagree.
A portion of the architectural, engineering, legal and other expenses incurred by Coastland in preparation for the construction of the project was incurred prior to the time appellant agreed to provide Coastland with construction financing. Appellant argues that such expenses were not properly included as an element of damages for breach of contract since those expenditures were not made in reliance upon the contract.
“[0]ne injured by the breach of a contract to which he is a party is entitled to recover special damages which arise from circumstances peculiar to the particular case, where those circumstances were communicated to, or known by, the other party at the time the contract was made; that is, he may recover such damages as are the reasonable and natural consequences of the breach under the circumstances so disclosed and as may reasonably be supposed to have been in the contemplation of both parties.”
22 Am.Jur.2d, Damages § 59, at p. 90. See also 22 Am.Jr.2d, Damages § 69, at pp. 103-04. As previously mentioned, in the instant case, appellant was provided with documentation at the time Coastland applied for construction and permanent financing that included Coastland’s expected total expenditures for architectural, engineering and legal services, as well as other expenses, for the construction of the Schooner Point Condominium project. Consequently, appellant was aware that those expenses were or would be incurred by Coastland and, further, that a breach of its commitment to provide the construction financing might cause Coastland to suffer damages in the amount expended for such services. Without contradiction, and prior to the time such financing became generally unavailable, Coastland rejected offers by others to provide construction financing after the commitment from the Mortgage Company was made. In light of the above, we do not think the district court erred in including expenditures made by Coastland prior to the time the construction financing commitment was given when awarding Coastland one-half of the expenses it incurred in preparation for the construction of the project as damages for the breach of said commitment.
Appellant also contends the district court erred in including the fee for the permanent financing commitment in its award of damages for the breach of the commitment to provide construction financing because appellant never breached its commitment to provide the permanent financing and, in fact, remained ready to provide such financing through the termination date of the commitment. Appellant argues it earned the fee upon the making of the commitment and holding the commitment open through its term.
The evidence of record shows that Coast-land went to appellant seeking both construction and permanent financing. The evidence is that the permanent financing was of no value to Coastland without the construction financing. Additionally, both Johnson and Cowan testified that after appellant informed them that the funding for the construction financing commitment would not be immediately available, Coast-land attempted to secure construction financing elsewhere, but was unsuccessful because of the then existing tight banking situation. Appellant’s breach of its commitment to provide Coastland with construction financing, in conjunction with Coastland’s inability to obtain construction financing elsewhere, did, in a very real sense, render the permanent financing commitment worthless. Accordingly, we are of opinion the district court did not err in including the fee Coastland paid for the permanent financing commitment as an element of Coastland’s damages for appellant’s breach of its commitment to provide construction financing.
In sum, aside from the court’s award to Coastland of one-half of its projected profits on the sale of seventy-one units, we find no merit in appellant’s contentions that the court acted arbitrarily or capriciously, or erroneously as a matter of law, in its award of damages.
V
Coastland has filed a cross-appeal to the district court’s award of damages. It contends that the court erred in awarding Coastland only one-half of the architectural, engineering, legal and other expenses it incurred in preparation for the construction of the Schooner Point project, and in not awarding Coastland interest on the $75,-000.00 it paid to appellant as part of the fee for the permanent financing commitment. We think Coastland’s contentions are without merit.
“When, as in the present case, a defendant is liable for some damages for breach of contract and no evidence is available to show the exact amount, the quantum may be fixed when the facts and circumstances are such as to permit an intelligent and probable estimate thereof.” M&B Construction Co. v. Mitchell, 213 Va. 755, 759, 195 S.E.2d 873, 877 (1973). When describing the total expenses Coastland incurred in preparation for the construction of the project, the court noted that “probably some of the information may yet be used.” It then concluded that considering all of the facts and circumstances in the case, Coastland should be awarded one-half of its expenses as an item of appellant’s breach of contract. As we do not think the court erred in this regard, we do not think the court abused its discretion in concluding that on the facts of this case Coastland should only recover one-half of its total expenses.
Likewise without merit is Coast-land’s assertion that the court erred in not awarding it interest on the $75,000.00 that Coastland paid to appellant for the permanent financing commitment. So far as is relevant to this case, whether to allow Coastland interest on the $75,000.00 was in the sound discretion of the district court. Va.Code § 8.01-382. See Doyle & Russell, Inc. v. Welch Pile Driving Corp., 213 Va. 698, 194 S.E.2d 719, 723 (1973) (interpreting a predecessor statute). We think the denial of interest by the district court was well within its discretion.
Accordingly, on remand the judgment of the district court will be reduced by $482,-750.00, the amount of anticipated profits included therein; otherwise, it is in all respects affirmed.
Each side will bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
. Initially, the Mortgage Company also contended that the district court erred in its determination that Virginia’s Statute of Frauds did not apply and in its admission of parol evidence to prove the existence, conditions and terms of the alleged commitment. However, these contentions were abandoned.
. Johnson and Cowan also testified that during said telephone conversation Cauthen stated that appellant would have no objections if Coastland wanted to try and obtain construction financing elsewhere since appellant could not fund the project immediately. Both Johnson and Cow
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_genapel2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
In re ALTON R. CO. GIBBONS v. GARDNER.
Nos. 9251, 9252.
Circuit Court of Appeals, Seventh Circuit.
Jan. 24, 1947.
Thomas Dodd Healy, of Chicago, Ill. (Louis Boehm, of New York City, of counsel), for appellants.
Anan Raymond, Tappan Gregory, Robert L. Hunter, and Carl A. Waldron, all of Chicago, Ill., Fred N. Oliver, Willard P. Scott, and Delano Andrews, all of New York City, and Kenneth F. Burgess, Douglas F. Smith, George Ragland, Jr., and Luther M. Walter, all of Chicago, Ill. (Oliver & Donnally, of New York City, and Sidley, Austin, Burgess & Harper, of Chicago, Ill., of counsel), for appellees.
Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
This appeal involves five orders of the District Court entered in the Alton Railroad Company reorganization proceedings under. Sec. 77 of the Bankruptcy Act, Title 11 U.S.C.A. § 205 et seq. The orders were entered October 21, November 13,. November 15 (only a portion of this order is appealed from), November 22 and November 27, 1946.
Appellants are a committee asserted to represent a substantial majority of all security holders participating in the Plan of Reorganization, who’ by permission, of the court intervened in the proceedings April 1, 1943. The Plan of Reorganization, after certification by the Interstate Commerce Commission and approval by the court, was submitted to and accepted by the requisite security holders and confirmed by the court on October 21, 1946. The essential purpose to be accomplished by the Plan is a sale of the debtor’s property to the Gulf, Mobile and Ohio Railroad Company (sometimes referred to as G. M. & O.), with that company issuing securities in exchange for distribution to the debtor’s bondholders. Other railroads were included in the reorganization setup, namely, the Kansas City, St. Louis and Chicago Railroad Company, the Joliet and Chicago Railroad Company, and the Louisiana and Missouri River Railroad Company.
All the orders appealed from were entered subsequent to the confirmation of the Plan by the court and have to do with its consummation. It appears unnecessary, therefore, to describe the provisions of the Plan other than those directly relevant to and concerned with such orders. While the contested issues are stated by the respective parties in numerous ways, we think the overall issue, succinctly stated, is whether the court exceeded its authority in entering the orders complained of.
The provisions of the Plan so far as material to the instant controversy may appropriately be noted at this point. Under the heading of “Reorganization Managers,” it provides:
. “There shall be - three reorganization managers, one of whom shall be designated by the Stephen B. Gibbons protective committee for holders of refunding-mortgage 3-percent bonds due October 1, 1949, of The Chicago and Alton Railroad Company, one by the Mutual Savings Bank Group and The Equitable Life Assurance Society of the United States, jointly, and one by the Thorvald F. Hammer independent committee for holders of 6-percent guaranteed preferred stock of the Kansas City, St. Louis and Chicago Railroad Company, all subject to the approval of the court; provided, however, that if the court shall find that at the time of designation either of the committees named has ceased to hold or to represent a substantial interest in' the property, the court may in its discretion designate in lieu of such committee. Should any of the parties named fail to make such designation within such time after confirmation of the plan and notice as the court shall consider reasonable, the court shall appoint the reorganization manager whom such party was entitled to designate. If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court. In case of failure of any party to designate any such successor within such time as the court shall consider reasonable, such successor shall be designated by the court.”
At this point, we note that there is no finding by the court or any contention that those authorized by this provision to designate managers had “ceased to hold or to represent a substantial interest in the property,” or that they failed to make such designation within such time “as the court shall consider reasonable,” or that they failed in case of vacancy to designate any such successor “within such time as the court shall consider reasonable.”
The Plan provides:
“Subject to limitations of law, including the limitations of subsection 77(c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power (a) to take all such action and to enter into such arrangements, financial and otherwise, as they may deem necessary or advisable in order to consummate and carry into execution the plan; (b) to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company; * * * (d) to provide the method by which creditors and other interested parties may participate in the plan, including the distribution of new securities of the reorganized Kansas City, St. Louis and Chicago Railroad Company and of the Gulf, Mobile and Ohio Railroad Company; * * * (f) to make subject to the approval of this court minor adjustments in details of the plan as they may deem advisable; and (g) to construe the plan.”
The Plan further provides:
“Any construction of the plan by the reorganization managers on advice of counsel shall, subject to the approval of the court, be conclusive. The reorganization managers shall, however, exercise only such powers as shall be necessary to carry out the plan in accordance with its provisions subject to the direction of the court * * *. The reorganization managers * * * may employ such agents, attorneys, and others as they may deem desirable to carry out the plan, and may delegate to others any powers or discretion conferred upon them, and no reorganization manager shall be liable for any action taken by him in good faith * * *.”
The Plan also provides “the carrying out of the plan shall be under the direction and supervision of the court,” and under a heading, “Construction of the plan,” provides :
“The construction of the plan by the court, whether before or after submission of the plan to creditors and stockholders shall be final and conclusive. The court, whether before or after submission, may cure any defect, supply any omission, or reconcile any inconsistency, in such manner or to such extent as may be necessary or expedient in order to carry out the plan effectively.”
Appellants in their brief enumerate at great length the “important functions, powers and discretions lodged in or to be exercised by the reorganization managers in carrying out and implementing the plan,” with which it is asserted appellants, on behalf of the security holders represented by them, are vitally concerned. On the other hand, appellees seek to minimize the importance of the duties and obligations with which the managers were vested. We are of the view that we need be little concerned with whether the duties and responsibilities which the Plan imposed upon the managers are as important as claimed by appellants or as insignificant as asserted by appellees. Whatever be the merits of the controversy in this respect, there is no escape from the fact that the manner of designating the reorganization managers, as well as their duties, rights and responsibilities, is definitely fixed by the Plan, certified by the Commission, assented to by the creditors, and confirmed by the court.
This brings us to a consideration of the orders complained of. On October 21 (the same date the Plan was confirmed by the court), the court entered the first order complained of, as follows:
“On the Court’s own motion, It Is Ordered That:
“(1) Henry A. Gardner, Trustee of the properties of the Debtor, be, and he hereby is, authorized and directed, to put into effect and carry out the Plan of Reorganization heretofore approved and confirmed by this Court, under the direction and supervision of this Court; and
“(2) The trustee be, and he hereby is, authorized and directed to employ Messrs. Sidley, Austin, Burgess & Harper as counsel to so put into éffect and carry out the Plan * *
On or prior to October 18, 1946, the names of the designees of the three groups authorized by the Plan to designate reorganization managers were submitted to the court. Immediately after, the entry of the order of October 21, the court announced from the bench its refusal to approve such designees for the reason that they were residents of New York, although they were “unquestionably men of high standing and men of ability.” The court at the same time announced:
“Now, I have directed the Trustee to take the steps necessary to put the plan into execution. It is my desire that that be done forthwith. * * * Accordingly I take it it will be unnecessary for the reorganization managers to employ counsel unless some extraordinary situation may arise which makes that employment necessary * * * »
Thus at the very inception the court authorized and directed the debtor’s trustee to carry out the Plan, in direct contravention of the provisions of the Plan which expressly and specifically vested such authority and power in reorganization managers. Also at the same time the court directed the trustee to employ certain designated counsel, in violation of Sec. 205, sub. c (2), which authorizes the trustee to select his own counsel subject to confirmation by the court.
The parties authorized, by the-Plan to designate reorganization managers evidently for the purpose of avoiding delay acquiesced in the court’s refusal to approve nonresident managers. It is not necessary, therefore, to consider the action of the court in this respect. On October 24, October 29 and November 4, 1946, the Thorvald F. Hammer committee, the Mutual Savings Bank group and the Equitable Life Assurance Society jointly, and appellants, in conformity with their authority contained in the Plan, designated respectively John E. Gavin, Roy D. Keehn and A. Bradley Eben, all of Chicago, to act as reorganization managers. With these newly designated managers awaiting its approval, the court on November 13, 1946 entered the second order complained of. This order was entered upon the petition of Gardner as trustee and provided:
“(1) That the Trustee be, and he hereby is authorized and directed to exercise all powers of the reorganization managers under the Plan, pending their designation and approval.
“(2) That the Clerk of this Court be, and he hereby is authorized and directed to forward a copy of the said petition to the Interstate Commerce Commission, Washington, D. C., together with a copy of this order, for the fixing of the maximum limits of, allowance for said expenses and services in connection with carrying out and putting into effect the Plan of Reorganization herein.”
On November 15, 1946, twenty-two days after the designation of Gavin, seventeen days after the designation of Keehn and eleven days after the designation of Eben. the court entered an order reciting their designation as reorganization managers and approved their appointment, “provided that their exercise of authority under the Plan shall at all times be subject to the direction of this Court.” This order further recited the court’s action of October 21, 1946, authorizing and directing that the trustee employ “Messrs. Sidley, Austin, Burgess & Harper as counsel to put into effect and carry out the Plan of Reorganization,” and without a scintilla of proof, so far as the record discloses, that “substantial progress has been made in effectuating said Plan.” The reorganization managers were speqifically directed not to “employ other counsel or in any manner limit or impair the direction heretofore given to the Trustee and his counsel above named.” The portion of this order which limits the authority of the managers as contained in the Plan is involved in this appeal.
At this point it is pertinent to note that no question is raised on this record as to the honesty, integrity or ability of Eben, Keehn or Gavin to serve as reorganization managers. In fact, they are all well and favorably known members of the Chicago Bar. Why the court so long delayed the approval of their appointment is not disclosed. More than that, the court by its orders of November 13 and November 15 renewed the authority of the trustee and the court-appointed counsel to carry the Plan into effect. Moreover, the authority thus conferred upon the trustee and counsel was not withdrawn or diminished in any respect. In fact, the order of Noyember 15 approving the appointment of Eben, Keehn and Gavin was little more than a meaningless gesture for the reason that by the same order the court stripped them of all substance of power and authority which was theirs according to the provisions of the Plan. Furthermore, the reorganization managers were specifically forbidden to employ counsel, notwithstanding the fact that they were specifically authorized so to do by the Plan.
On November 22, 1946, the court entered the fourth order involved in this appeal. This order also recites that it is on the court’s own motion and provides that the court’s order of November 15, 1946 “approving the designations of certain persons as reorganization managers be, and it hereby is, vacated and suspended pending the further order of this court.” Like the other orders, it was also entered without hearing and without any reason assigned as to why the approval of the reorganization managers theretofore made was “vacated and suspended.” They had been designated strictly in accordance with the provisions of the Plan, and we think the court was without authority to summarily remove them, especially without cause and without an opportunity to be heard.
Notwithstanding the fact that the approval of these reorganization managers had been “vacated and suspended,” the court in the same order directed that they and the trustee file reports on or before November 26, 1946, “showing what each of them had done, is doing, and contemplates doing, to carry out and put into effect the plan of reorganization.” In conformity with this direction, such reports were filed and a hearing was had on November 26, 1946. These reports were considered and the testimony of one witness connected with the legal firm designated by the court to represent the trustee was heard. Much is said concerning these reports and the testimony of this witness, most of which we think is beside the point and immaterial to the issues raised on this appeal.
At the conclusion of the hearing, on November 27, 1946, the fifth order involved in this appeal was entered, which in a large measure supersedes the prior orders. In this order it is recited that on October 21, 1946, when the Plan of Reorganization was confirmed, “it appeared that there would be delay in the designation and approval of Reorganization Managers, and properly to progress the consummation of the plan, notwithstanding that delay, the Court directed the Trustee to employ counsel experienced in railroad reorganization matters, named by the Court, and proceed at once to initiate the steps necessary to the consmmation of the plan.” The order further recites in effect that when the reorganization managers were approved by the court, the trustee and his counsel had made such progress in the effectuation of the Plan that the reorganization managers were “directed by the Court not to employ other counsel, and to proceed with the exercise of their authority under the plan.” The order recites as the reason for the order suspending the order approving the reorganization managers that “delay was being encountered in taking certain steps essential to an expeditious reorganization, and that further delay was threatened.” The order also states:
“The plan of reorganization does not in terms deal with the particular circumstances and the emergency situation which has developed herein except by the provision that the Court may cure any defect and supply any omission necessary to carry out the plan effectively.”
Thus it appears that the court by this order attempted to justify its previous orders upon two grounds, (1) a fear that there would be delay in the consummation of the Plan, and (2) that at the time the managers were approved (November 15, 1946), the trustee and his counsel had made such progress in the effectuation of the Plan that it was unnecessary for the reorganization managers to employ counsel, as they were authorized to do under the Plan. We think the first ground is wholly without merit and that the second ground is beside the point. Obviously, there was no reason on October 21, 1946 (the same day the Plan was confirmed) for thinking that reorganization managers designated as provided by the Plan would delay its execution, yet on that very day the court provided a means of its own for the execution of the Plan, contrary to its plain provisions. It would also appear that there was no basis for charging the reorganization managers designated under the Plan with delay during the time required by the court to make up its mind as to whether it would approve their appointment. It would appear equally certain that they cannot properly be charged with delay even after their approval, in view of the fact that the court stripped them of their prerogatives as set forth in the Plan. Thus with their authority impaired to the point where it was doubtful if they had a right to perform any function, it is difficult to discern how they could have been reasonably expected to make any progress in the execution and carrying out of the Plan. That the court was anxious to see the Plan expeditiously put into effect is to be commended, but speed cannot be indulged in at the expense of the rights of parties as fixed by a Plan. Therefore, we think that i't is 'immaterial' to the issues raised on this appeal that the trustee and his counsel had made progress,'if such be the fact, in the carrying out of the Plan. It is no answer to the charge that their appointment was unauthorized and illegal.
Neither do we think there was an emergency situation which justified the course pursued by the court. If, .however, there was any emergency existing on November 27, it was of the court’s own making. . Neither do we agree that there' was any defect or omission in the Plan which justified the court’s action. In fact, the provisions of the Plan, so far as they relate to the issues before us are written in such plain, clear and unambiguous language as to leave no room for doubt as to their meaning.
The court in its order of November 27 directed “that John E. Gavin, William T. Faricy and Claude A. Roth be, and they hereby are appointed by the Court as Reorganization Managers under the plan of reorganization herein.” (Gavin was one of the original designees.) These Court’s designated managers were not appointed under the Plan; in fact, they were appointed in contravention of its specific terms. Assuming that the removal of Gavin, Keehn and Eben was proper (which assumption we think is not tenable), and that a vacancy thereby existed, the court again ignored the Plan, which clearly provided the manner in which successor-managers were to be designated. It provides:
“If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court.”
The court at the hearing on November 27 further demonstrated its displeasure for the provision in the Plan pertaining to the appointment of reorganization managers by stating:
“* * * the reorganization ‘ managers are- sort of vermiform appendices, without any useful function. But we have them, and we will get along with them if we can.”
Again we think that if the court entertained that view as to the reorganization managers, it should have been given effect at the time it considered the merits of the Plan, as a prerequisite to its approval. It is true, of course, that the court had the authority and -the duty, both under the Act and by the provisions of the Plan, to supervise its execution. Such authority, how-, ever, did not confer upon the court the right to substitute a means of execution of its own contrary to 'and- in derogation of the provisions of the Plan. The duties and responsibilities of the reorganization managers in the execution and carrying into effect its provisions were as definite and certain as those of the court in its supervisory capacity. And the fact that the court might have thought that its means was better or more advantageous to the interested parties than that provided by the Plan can furnish no excuse for depriving the reorganization managers of their duties and responsibilities. To think otherwise is to work an injustice upon the creditors whose required assent to the Plan was procured on its stated terms and conditions, including those for its execution. In this connection, it is pertinent to observe that the means for the execution of a Plan of Reorganization is a positive requirement of the Act. Sec. 77, sub. b (5).
We desire to make it plain that nothing said in this opinion is intended to reflect upon the court’s appointed counsel for the trustee, Messrs. Sidley, Austin, Burgess and Harper. The court evidently had great confidence in their ability to promptly and expeditiously carry the Plan into effect. So have we. Again, however, this is no answer to the contention that the orders complained of were unauthorized.
It may be well at this point to call attention to a few of the cases for the purpose of showing the limited authority which is given the court under Sec. 77, and particularly after a plan has been approved. In Palmer et al. v. Commonwealth of Massachusetts, 308 U.S. 79, 87, 60 S.Ct. 34, 38, 84 L.Ed. 93, the court stated:
“But the whole scheme of § 77 leaves no doubt that Congress did not mean to grant to the district courts the same scope as to bankrupt roads that they may have in dealing with other bankrupt estates.”
In Ecker et al. v. Western Pacific Railroad Corporation, 318 U.S. 448, 468, 63 S.Ct. 692, 705, 87 L.Ed. 892, the court stated:
“When 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 bv the court.”
In Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 294 U.S. 648, 672, 55 S.Ct. 595, 604, 79 L.Ed. 1110, the court in referring to Sec. 77 stated:
“As outlined by that section, a plan of reorganization, when confirmed, cannot be distinguished in principle from the composition with creditors authorized by the act of 1867, as amended by the act of 1874.”
While we find no case exactly in point, numerous courts have construed the court’s authority in connection with the execution of a plan under Sec. 77 (B). This court, for instance, in In re Corona Radio & Television Corporation, 7 Cir., 102 F.2d 959, 963, held that the court was without authority to direct the execution of a plan in a manner inconsistent with its terms. To the same effect is In re Pilsener Brewing Co., 9 Cir., 79 F.2d 63, 68, and In re Diversey Building Corporation, 7 Cir., 141 F.2d 65, 68. It has also been held that a plan of reorganization is, when certified, approved, accepted and confirmed, in effect a binding contract between a debtor, the security holders and all other parties concerned. Downtown Inv. Ass’n v. Boston Metropolitan Buildings, Inc., 1 Cir., 81 F.2d 314; American United Life Ins. Co. v. Haines City, Fla., 5 Cir., 117 F.2d 574.
Counsel for appellees in their brief and argument in this court go even further than the court in attempting to justify the orders complained of. For instance, it is argued: “Particularly fresh in the Judge’s mind was the recent hearing on fees in connection with the approval of the Plan.” In this connection, it is pointed out that appellants filed with the Interstate Commerce Commission excessive claims for compensation and reimbursement of expenses. Assuming that such is the case, we think it is irrelevant to the orders under attack. If the purpose of such contention is to impugn appellants’ motive or integrity, it is sufficient answer to state that the application for fees referred to and the action of the Commission thereon took place long before October 21, 1946, when the Plan was approved by the court. Such activities certainly were as “fresh in the Judge’s mind” at that time as when he later entered the orders complained of. If there was anything in appellants’ previous conduct which indicated that it was undesirable that they be given the right under the Plan to designate the reorganization managers, it was a. matter for the court’s concern before the Plan was approved rather than subsequently. Furthermore, appellants appear to have played an important part in the formulation of the Reorganization Plan. The Commission in its report of April 25, 1946 stated :
“Counsel and the committee and its advisers, on and after April 17, 1945, concluded the negotiations which led to agreement with the Gulf, Mobile & Ohio on the terms of the plan, and took the lead; in proceedings which thereafter culminated in approval of the plan by the. Commission and the. court * *
Appellees further argue that the court properly exercised its discretion because appellants attempted to block the reorganization and circumvent Sec. 77, sub. c (12). At this point it is pertinent to recall that the court in its order of November 13, 1946 directed its clerk to forward to the Interstate Commerce Commission the petition of the trustee to prescribe maximum limits of 'expenses pursuant to Sec. 77, sub. c(12). The clerk complied with the direction of the court in this respect. Thereupon, New York counsel for the appellant Committee, under date of November 15, 1946, directed a letter to the Commission opposing the petition “on the ground that the Trustee has no power to put into effect and carry out the Plan.of Reorganization.” The letter also called attention to the provision of the Plan by which such power was lodged in the reorganization managers. On November 21, 1946, appellants by the same New York counsel filed with the Commission an answer to the trustee’s petition in which was set forth the provisions of the Plan as well as the orders complained of designed to show that the latter were entered without authority. It was asserted in such answer that the execution of the Plan by the trustee would be in violation of the Plan and would cast a serious doubt and cloud upon the title of the G. M. & O. and on other interested parties. 'It was also asserted that Sec. 77, sub. c(12), was without application because the Plan of Reorganization provided that the compensation and expenses of those employed in carrying out the Plan should be paid by the G. M. & O.
Appellees assert that by this action the appellant Committee “immediately undertook to block the required proceeding before the Interstate Commerce Commission,” and that “It will be seen that while pretending to name a Reorganization Manager to participate in the consummation of the Plan, appellant was actually moving to defeat the consummation of the Plan under and pursuant to the vital limitations imposed by subsection c(12) * *
Thus it will be observed that the attack which appellants sought to make before the Commission was substantially the same as that made here, that is, that the court was acting without authority and in contravention of the terms of the Plan. We are of the view that appellants were not only within their rights in attacking the orders of the court before the Commission but that they would have been derelict in their duty if they had failed to do so.
We have heretofore quoted the provision of the Plan conferring broad and exclusive powers upon the reorganization managers in the execution of the Plan. We repeat this provision, so far as material to the instant discussion. It provides:
“Subject to limitations of law, including the limitations of subsection 77 (c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power * * * to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company * *
Sec. 77, sub. c (12), provides, so far as here material:
“Within such maximum limits as are fixed by the Commission, the judge * * * may make an allowance, to be paid out of the debtor’s estate, for the actual_ and reasonable expenses * * * incurred in connection with the proceedings ana plan and reasonable compensation for services in connection therewith by trustees under indentures, depositaries and such assistants as the Commission with the approval of the judge may especially employ.”
It is true, as appellees assert, that the provision of the Plan imposing upon the railroad the obligation of paying the expenses incurred in the execution of the Plan is “subject to limitations of law, including the limitations of Sec. 77 (c) (12).” Obviously, this limitation in the Plan is of no consequence unless the statutory provision is controlling. We think it is not. The latter expressly limits the allowances to those payable “out of the debtor’s estate.” This fact is emphasized in Reconstruction Finance Corporation v. Bankers Trust Co., 316 U.S. 163, 166, 63 S.Ct. 515, 87 L.Ed. 680. In the instant case, the fees and expenses incurred are not to be paid out of the debtor’s estate. The Plan specifically provides that the compensation and expenses of those authorized to execute the Plan “shall be paid by the Gulf, Mobile & Ohio Railroad Company.” We must assume that there is nothing wrong with a plan containing such a provision; otherwise the Commission would not have certified and the court would not have approved it. We think the creditors and interested parties whose assents were necessary to the validity of the Plan are entitled to have this provision as well as others respected and put into effect.
We might go further and state that even though it be assumed that appellants' action before the Commission, taken in response to the trustee’s petition, was ill-advised, still there would be no basis for properly charging them with blocking the execution of the Plan. It cannot be said that their action was frivolous or not taken in good faith. Certainly the very least that can he said is that they presented a meritorious legal question, which they were entitled to do before the Commission as they have before this court. Furthermore, as already pointed out, the court entered upon a course contrary to the provisions of the Plan prior to appellants’ action now asserted to have blocked consummation of the Plan.
In conclusion, we regret to relate that the court below during the hearing on November 27, 1946, in discussing the provision of the Plan imposing upon the G. M. & O. the obligation of paying the compensation and expenses incurred in its execution, made inquiry as to whether the railroad was represented in court. Upon being informed that its general counsel was present, the court threatened it with contempt “if any engagement is made or if any payment is made by way of attorneys fees or expenses of attorneys or otherwise in and about this reorganization other than within maximum limits fixed by the Interstate Commerce Commission and approved within those limits by this Court.” In our opinion, this threat of contempt directed at the railroad was not only improper but without justification. After all, the G. M. & O. was merely taking over the assets of the debtor corporation; in effect it was the purchaser of those assets. It was solvent and we assume possessed of officials capable of attending to its business. It is doubtful if the court had any jurisdiction over its funds and certainly no authority over the railroad other than to supervise its part in the execution of the Plan. As already shown, the railroad was obligated to pay the expenses of carrying the Plan into effect. Even though there had been a serious legal question as to its obligation in this respect, which we think there was not, such a question could have been more appropriately decided in the traditional judicial manner than by threatened contempt.
The orders appealed from are reversed, with the direction that they be vacated and set aside and that the Plan of Reorganization approved by the court be consummated according to its terms and provisions.
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_respond1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
TRW, INC., Plaintiff-Appellant, v. ELLIPSE CORPORATION and Ford Motor Company, corporations, Defendants-Appellees.
No. 73-1348.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 12, 1974.
Decided April 22, 1974.
Lee N. Abrams, George N. Hibben, Chicago, Ill., Robert W. Poore, Cleveland, Ohio, for plaintiff-appellant.
Norman Lettvin, Chicago, Ill., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
CASTLE, Senior Circuit Judge.
Plaintiff TRW, Inc. appeals from an order dismissing its complaint against defendants Ellipse Corp. and Ford Motor Co. in an action seeking a declaratory judgment that claim 3 of Rhine patent No. 2,628,568 is invalid. TRW asserts on appeal that the lower court erred in dismissing the complaint for lack of jurisdiction and in the exercise of its discretion. Specifically, TRW contends that it is not bound under principles of res judicata by the finding in Ellipse Corp. v. Ford Motor Co. respecting the validity of claim 3 of the Rhine patent. TRW asserts that the jurisdictional elements of a declaratory judgment action are present, because a justiciable case or controversy, reflected in a viable, outstanding charge of patent infringement exists, and because effective relief to effectuate the judgment could be granted. Moreover, TRW maintains that it is an abuse of discretion to dismiss the action, since the issues have not been resolved as against TRW and since the entertaining of this suit would not result in “piecemeal” litigation of the claim’s validity. In the alternative, TRW argues that if this suit’s objective' is deemed designed to seek modification of the court’s mandate in Ellipse Corp. v. Ford Motor Co., this court should grant leave to the district court to evaluate the validity of the patent claim in light of the new evidence tendered by TRW and to reopen the merits of that case to effect relief, because the court was misled into sustaining the patent claim on an erroneous inventive feature. We have considered these issues, and we affirm the dismissal of the action.
This suit grew out of an earlier action, Ellipse Corp. v. Ford Motor Co., supra, in which Ellipse charged that power steering pumps manufactured or sold by Ford infringed the Rhine patent. The lower court sustained the validity and infringement of claims 1 and 3 of the patent,2 and this court affirmed the findings respecting claim 3. The Supreme Court denied certiorari, and the action is now pending in the district court on an accounting to determine damages.
TRW was not a named party in the prior suit, and its participation was limited to observing the district court proceedings and to filing amicus curiae briefs at the appellate level. However, TRW manufactured and sold to Ford approximately 35% of the power steering pumps held to infringe claim 3 of the Rhine patent. These pumps were sold pursuant to a contract in which TRW agreed to indemnify Ford for the costs of defending any accounting proceeding and for any judgment based on patent infringement by the pumps purchased from TRW.
TRW asserts that as it was not a named party in the suit of Ellipse Corp. v. Ford Motor Co., it was not bound by the findings of this court in that case respecting the validity of claim 3 of the Rhine patent, Philips Electronics and Pharmaceutical Industries Corp. v. Thermal and Electronics Industries, Inc., 450 F.2d 1164, 1170 (3rd Cir. 1971), and it is not barred from relitigating the validity of the claim. American Photocopy Equipment Co. v. Rovico, Inc., 384 F.2d 813 (7th Cir. 1967), cert. den., 390 U.S. 945, 88 S.Ct. 1030, 19 L. Ed.2d 1133 (1968). Ellipse does not contend that TRW was a party to the previous litigation; rather, it argues that TRW was in privity with Ford and is thereby barred from bringing this suit. “Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal. ... A judgment is res judicata in a second action upon the same claim between the same parties or those in privity with them.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S.Ct. 907, 917, 84 L.Ed. 1263 (1939); Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876).
In most situations where privity has been found to exist, one or more of the following relationships are present between the privies: concurrent relationship to the same right of property, successive relationship to the same right of property, or representation of the interests of the same person. IB J. Moore, Federal Practice, ¶ 0.411 [1] (2d ed. 1948). These relationships are illustrated by the cases cited by Ellipse. Thus, in Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 37 S.Ct. 506, 61 L.Ed. 1148 (1917), the Supreme Court found that a company wholly-owned by another company was its privy, because the companies “represented precisely the same, single interest.” Id. at 298, 37 S.Ct. at 507. The same principle was applied by the Court in Sunshine Anthracite Coal Co. v. Adkins, supra, where the Court found privity between officers of the same government “so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation between that party and another officer of the government.” That holding was followed in Ma Chuck Moon v. Dulles, 237 F.2d 241 (9th Cir. 1956), cert. den., 352 U.S. 1002, 77 S.Ct. 559, 1 L.Ed.2d 547 (1957), where the court also held that privity existed between a father who brought a prior action on behalf of his sons and the sons themselves in a later action. In J. R. Clark Co. v. Jones & Laughlin Steel Corp., 288 F.2d 279 (7th Cir. 1961), and in Brunswick Corp. v. Chrysler Corp., 408 F.2d 335 (7th Cir. 1969), the second defendant had purchased the business assets of the unsuccessful party during or subsequent to the determination in the previous litigation to which he was held bound. Similarly, in Schnitger v. Canoga Electronics Corp., 462 F.2d 628. (9th Cir. 1972), the court found res judicata applicable where the declaratory judgment plaintiff was a prospective buyer of infringing products which the manufacturer had been enjoined from making available, thus presenting only a derivative, successive interest to the same property right. None of these relationships is applicable to the case at bar; certainly there is no question of representation of the interests of the same party, and furthermore, there is no relationship (either concurrent or successive) arising from the general doctrine of privity of estate.
Two other cases cited by Ellipse, Switzer Bros., Inc. v. Chicago Cardboard Co., 252 F.2d 407, 411 (7th Cir. 1958), and Jones v. Craig, 212 F.2d 187, 188 (6th Cir. 1954), illustrate the res judicata effect of participation in litigation by a nonparty whose interest is sufficiently closely related to the suit. In the former case, an indemnitor who retained the indemnitee-defendant’s counsel and controlled the litigation was held entitled to the benefit of the judgment for the indemnitee. In the latter case, a warrantor received the benefit of an earlier judgment in a case in which he jointly prepared the defense and shared its cost. It is well-established that one interest sufficient to bring a participating non-party within the conclusionary rule is a legal duty, right or interest dependent wholly or in part on a cause of action before the court for adjudication. IB J. Moore, supra, at 0.411[6]. Professor Moore explicitly suggests that a manufacturer-indemnitor who participates in the defense of a patent infringement suit against a dealer in the manufactured product would have sufficient interest under this principle to be bound by the resulting decree. Id. at n. 20. But the crucial distinction between this example and the cited cases and the case at bar is the extent of participation, for privity in the law of judicial finality usually connotes representation. TRW limited its role in the prior suit to observing the proceedings and to filing amicus curiae briefs. These are insufficient modes of participation to render applicable the doctrine of res judicata, Brown-Crummer Investment Co. v. Paulter, 70 F.2d 184 (10th Cir. 1934) ; 1B J. Moore, supra, and therefore TRW is not bound by the adjudication of the validity of the claim in Ellipse Corp. v. Ford Motor Co.
TRW contends that the jurisdictional requisites for a declaratory judgment exist in part because a justiciable controversy is created between a patent owner and the manufacturer of a product when the patent owner alleges infringement against one who has purchased the product from the manufacturer, even when no direct charge has been made against the manufacturer. The implication of the argument is that a real controversy was created between Ellipse and TRW as a consequence of Ellipse’s allegation of infringement against Ford respecting certain power steering pumps, some of which were manufactured by TRW. It is true, as this court stated in Sticker Industrial Supply Corp. v. Blaw-Knox Co., 367 F.2d 744, 747 (7th Cir. 1966), that under the Declaratory Judgment Act, justiciability exists if the alleged infringer or his customers or dealers have been notified of the patent owner’s claim. Accord, E. Borchard, Declaratory Judgments 807 (2d ed. 1941). But that contention begs a fundamental question of this appeal: When is the underlying charge of patent infringement adjudicated with sufficient finality to extinguish the justiciable controversy ?
This case markedly resembles Walker Process Equipment Co. v. FMC Corp., 356 F.2d 449 (7th Cir. 1966), in which a manufacturer of sewage equipment sought a declaratory judgment of the invalidity of a patent. The patent owner, FMC, had previously sued one of Walker’s customers, alleging infringement through the use of Walker equipment. The Fourth Circuit held that the patent was valid and not infringed. In the action for a declaratory judgment, this court affirmed because of the absence of an actual controversy, stating, “Whatever infringement charges were made in the . . . litigation were resolved, and the controversy between the parties terminated, by the judgment of the Court of Appeals.” Id. at 451. The court cited Aralac, Inc. v. Hat Corp. of America, 166 F.2d 286 (3rd Cir. 1948), for the proposition that a declaratory judgment cannot be maintained against a patent owner unless the plaintiff is in fact accused of infringement by the owner, and the court concluded, “In view of the fact that there are no outstanding charges by FMC of infringement by Walker or Walker’s customers, there is no justiciable controversy between the parties.”
TRW asserts that Walker and Aralac are factually distinguishable from the present case, because at the time of the filing of the declaratory judgment complaints, these patents were not being asserted as infringed by products manufactured by the declaratory judgment plaintiffs. In fact, however, FMC had formally charged Walker with active inducement of infringement in the prior case. Moreover, the gist of every justi-ciable controversy involving a patent owner and a manufacturer whose customer is sued is the implicit charge of active inducement to infringement or contributory infringement. Again, the issue in both Walker and the present case was the extinguishment, and not the creation, of a justiciable controversy. And the striking parallel between Walker and the case at bar is that in neither case did the patent owner make a charge of infringement against the manufacturer independently of the allegation against the customer.
TRW replies that in fact an implicit, independent charge of patent infringement was leveled against TRW by Ellipse by virtue of the allegation of infringement in Ellipse Corp. v. Ford Motor Co. which survives any termination in that suit and provides the jurisdictional basis for this action. TRW asserts that a claim of infringement against a product purchased and used without essential alteration by the customer necessarily embodies a claim of infringement against the manufacturer (in contrast with a claim of infringement arising out of the use of the manufacturer’s product in a process allegedly within the scope of the patent). We find this distinction unacceptably artificial and arbitrary. While it is true that the casein fibers, the manufacturer’s product in Aralac, were noninfringing except when used in an allegedly infringing process to convert the fibers and other ingredients into a new commodity, the manufacturer’s product in Walker, sewage digester stirrer equipment, was not likewise susceptible to myriad uses. Though the complaint in Walker may have been couched in terms of process infringement, it was actually directed against a product so specialized (unlike that of Aralac) as to have doubtful utility outside the process. Similarly, the charge here was directed against a particular customer’s specialized use of an infringing power steering pump. We conclude that where, as here, the charge of patent infringement is asserted against the use of a product by a particular customer, no independent charges of patent infringement unrelated to the litigation are implied.
TRW next contends that whereas the patent in Walker was held not infringed, Ford’s power steering pump was found to infringe Ellipse’s patent. Therefore, the “cloud” on TRW’s patent persists, and the controversy is not extinguished. However, the existence of a viable, outstanding charge of patent infringement is only an indirect measurement of a reasonable apprehension of liability, the “touchstone” for determining jurisdiction under the Declaratory Judgment Act. Sticker Industrial Supply Corp. v. Blaw-Knox Co., swpra, 367 F.2d at 747. Under the holding of the Supreme Court in Aro Manufacturing Co. v. Convertible Top Co., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964), there can be no apprehension of liability by TRW arising from the decision against Ford because judgment against Ford extinguishes the claim and bars a second suit against TRW on the same matter. Similarly, there can be no reasonable apprehension of liability respecting other claims, because no viable, outstanding charges of patent infringement survive the Ellipse Corp. v. Ford Motor Co. litigation.
TRW finally contends that even if there are no independent charges of infringement against it, a justiciable controversy still exists because, unlike Walker, the prior litigation has not yet been terminated by a final decree which is a binding adjudication between the parties. Therefore, because the court could reopen the case prior to entry of its final judgment at the close of the accounting, the jurisdictional predicate for this action is present. In In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994 (1897), the Supreme Court held that there could be no rehearing of the merits even though the reviewing court’s decision did not amount to a final judgment because of a pending accounting, unless the reviewing court had first granted leave. The case of Ellipse Corp. v. Ford Motor Co. was exhaustively litigated through an appeal in this court on the validity of claim 3 of the patent, followed by a petition for rehearing in this court as well as by both a petition for certiorari and a petition for rehearing in the Supreme Court. Further, even TRW concedes that the allegedly new evidence which it has obtained was either known or could have reasonable been known by Ford, precluding its use as a basis for a motion for a rehearing on the merits in an attempt to achieve a different result. Unlike Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922), there is no litigation arising from independent charges of patent infringement pending elsewhere which might undermine the lower court’s decision respecting the patent’s validity. Thus, whether the lower court’s decision is technically res judicata, Locklin v. Day-Glo Color Corp., 468 F.2d 1359 (9th Cir. 1972), or “law of the case” is somewhat of an academic question. On the facts presented here, the possibility of a rehearing on the merits is so extremely remote as to warrant the conclusion that the lower court’s decision is sufficiently final for purposes of extinguishing the controversy on which the viable, outstanding charge of patent infringement would have necessarily had to have been grounded.
Erroneously assuming that an actual controversy still exists, TRW further argues that effective relief predicated on a favorable decision could be granted, and therefore, a decision in favor of TRW holding claim 3 of the patent invalid would be more than a mere advisory opinion. As TRW points out, a most significant fact, critical to this appeal, is that the proceedings in Ellipse Corp. v. Ford Motor Co. are still pending on an accounting. TRW suggests, as an example of effective relief, that a court could require Ellipse to forego pursuit of any further effort to recover from Ford on account of any alleged patent monopoly. This request for this extraordinary form of relief from a prior decree is wholly unsupported; Direetoplate Corp. v. Huebner-Bleistein Patents Co., 44 F.2d 783 (7th Cir. 1930), is authority only for effecting rather than relieving a prior court decree. Rather, as the lower court presently noted, what TRW is really asking for is a modification of the decision previously entered in Ellipse Corp. v. Ford Motor Co. However, as the Ninth Circuit has held, a court of appeals is without power to transform an independent action into a motion to reopen a former judgment to permit further proceedings. Ma Chuck Moon v. Dulles, supra, 237 F. 2d at 243. Therefore, since we cannot stay the accounting and order the reopening of the merits of the decision in Ellipse Corp. v. Ford Motor Co., we agree with the conclusion of the lower court that a finding of invalidity of the patent at this time would be no more than an advisory opinion.
TRW suggests, too, that if it is allowed to proceed in this ease and to obtain a final judgment of patent invalidity, it could receive effective relief indirectly, because that judgment would be a basis on which Ford, a customer in privity with TRW, could properly seek leave to reopen the earlier case. We reject the distortion in the requirement of privity inherent in TRW’s litigation strategy. It is true that in Hart Steel Co. v. Railroad Supply Co., supra, the Supreme Court held that res judicata was applicable in the patent owner’s prior suit pending on appeal against the distributor of the manufacturer’s product when the patent owner lost a later-filed suit against the manufacturer of the accused product. But significantly, the manufacturer and the distributor in that case were but two manifestations of the same identity. In National Brake & Electric Co. v. Christensen, 254 U.S. 425, 41 S. Ct. 154, 65 L.Ed. 341 (1921), the Seventh Circuit had affirmed a holding of infringement and remanded for an accounting when the defendant, National Brake, petitioned to reopen the case to show that a final judgment in the Third Circuit had held the same patent to he invalid. This court decided against entertaining the petition, as its judgment was final, but the Supreme Court held that the petition should be treated as a request to the court to grant leave to the district court to reopen the case. Yet, unlike the case at bar, the defendant in that case alleged that it had been the substantial party in interest, though not the nominal defendant, in the Third Circuit action. Moreover, TRW incorrectly asserts that Ford on its own motion could present proof in the accounting proceeding of a decision in favor of TRW as a ground for excluding TRW pumps from the scope of the accounting. National Brake makes plain that Ford would have to apply in this court for leave to file a bill in the court of original jurisdiction in the nature of a bill of review, setting up the new matter as a bar to further proceedings. “Such applications are addressed to the sound discretion of the appellate tribunal, and should be decided on considerations addressed to the materiality of the new matter and diligence in its presentation.” Id. at 430, 41 S.Ct. at 156. We need not prematurely face this question not before us at this time. We only note in passing, because of its bearing on the court’s capacity to grant effective relief, that it seems somewhat dubious to assume that the material is either new or was diligently pursued, given the candid admission of TRW that Ford either knew or could have reasonably known about the material.
TRW finally asserts that effective relief could be granted because it manufactures a myriad of products, including many forms of pumps which might be considered similar or equivalent in design characteristics to those sold to Ford. We note that no charge of patent infringement has been made against such TRW products. Furthermore, TRW has not even attempted to demonstrate to the court that its other products so sufficiently resemble the pump at issue that an independent, viable charge of infringement could be inferred.
Even if jurisdiction were present, it would not have been an abuse of discretion for the district court to dismiss the declaratory action, contrary to TRW’s assertion. In E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852 (7th Cir. 1937), cert. den., 300 U.S. 680, 57 S.Ct. 673, 81 L.Ed. 884 (1937), this court held that the Declaratory Judgment Act permitted an alleged infringer to test the validity of a patent, for “it was the congressional intent to avoid [the] accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to bring suit, after damage had accrued.” Id. 88 F.2d at 854. This was to prevent a patent owner from threatening a manufacturer’s customer with suit for infringement while avoiding suit by the injured manufacturer in merely failing to communicate a direct threat to the manufacturer. Sticker Industrial Supply Corp. v. Blaw-Knox Co., supra. The decision of the court to entertain a suit for a declaratory judgment is a discretionary one. Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321 (4th Cir. 1937). Only when the above policy of the Act is effectuated may the discretion of the court to hear an action be soundly exercised. Where there is a suit pending between the same parties or their privies in which the issue of infringement may be properly adjudicated, discretionary dismissal is appropriate, American Automobile Insurance Co. v. Freundt, 103 F.2d 613 (7th Cir. 1939), because the opportunity to litigate the issue is not denied to the manufacturer. Similarly, where a manufacturer is permitted to intervene in an infringement suit against the customer or where the in-demnitee-customer permits the indemnitor-manufacturer to control the litigation, discretionary dismissal is justified, because again a fair opportunity to litigate the issue has been given to the manufacturer.
In the present case, there is no showing that Ford refused to permit TRW to participate in the defense in the prior suit, that TRW petitioned for intervention in the earlier suit, or that other circumstances such as conflicting positions adopted by the manufacturer and the customer would have denied TRW a fair opportunity to litigate the issue it seeks to have adjudicated in the present case. See, Western Electric Co. v. Hammond, 135 F.2d 283 (1st Cir. 1943). Indeed, it appears that in this case, it was the manufacturer, not the patent owner, who studiously avoided a legal confrontation by limiting his participation solely to observing the earlier proceedings and to filing amicus curiae briefs. It would be perverse to permit the Declaratory Judgment Act, designed to effectuate lawsuits, to be manipulated into a device allowing the avoidance of real legal involvement in an earlier pending suit between the manufacturer’s customer and the patent owner, while permitting the manufacturer subsequently to collaterally attack aspects of the decision unfavorable to its position. Moreover, such action to obtain a judgment in order to reverse the prior court decision smacks of a race for res judica-ta, a variant of the procedural fencing which this court abhorred in Freundt. Finally, for reasons explained previously, since no effective relief could be granted even if a decision favorable to TRW resulted, the dismissal of the declaratory action would be warranted because it could serve no useful purpose. Cf., Chicago Furniture Forwarding Co. v. Bowles, 161 F.2d 411 (7th Cir. 1947). In that sense, the present case resembles the “piecemeal trial” condemned in Yellow Cab Co. v. City of Chicago, 186 F.2d 946 (7th Cir. 1951), which the court held was an advisory opinion to determine the effectiveness of a defense to be introduced in another proceeding.
TRW asserts, in the alternative, that if this action is deemed an attempt to modify the decision of the court in Ellipse Corp. v. Ford Motor Co., and if leave must be granted by this court to empower the lower court to alter its findings during the pendency of an accounting, such leave should be granted to prevent a “miscarriage of justice.” First, a stranger to the lawsuit, who apparently concluded that its interests were insufficiently involved in the suit to warrant even an attempt at intervention, does not have standing to challenge subsequently the findings of the court. Second, even if TRW had standing, this court is not empowered to transmute an independent suit into a motion to reopen a previous decision. Third, even if the alleged new evidence were presented by Ford, since that evidence was either known or could have reasonably been known to Ford, it is unlikely that this evidence would provide the basis for granting a petition for leave to the district court to rehear the merits of the suit. Fourth, there is no basis for claiming that Ellipse has repudiated the court’s decision in Ellipse Corp. v. Ford Motor Co.; on the contrary, in its response to TRW’s request for admissions, the company stated, “Ellipse admits all facts finally found or concluded by the Courts in the adjudication of Ellipse v. Ford, supra, and denies any and all requests that are contrary to, or which collaterally attack, the facts finally found or concluded in said previous adjudication.” Moreover, TRW’s claim that Ellipse Corp. misled the court in the prior action is totally unsupported by the record.
The judgment of the district court is affirmed.
Affirmed.
. U. S. Patent No. 2,628,568, entitled “High Pressure Pump,” was issued on February 17, 1953 to M. L. Rhine and was subsequently assigned to Ellipse Corp.
. Ellipse Corp. v. Ford Motor Co., 452 F.2d 163 (7th Cir. 1971), reh. den., (1971, unpub.), cert. den., 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (Douglas, J., dissenting), reh. den., 409 U.S. 898, 93 S.Ct. 99, 34 L.Ed.2d 337 (1972).
. 312 F.Supp. 646 (N.D.Ill.1969).
. The court also held that a mere economic interest, in the absence of a viable charge of infringement, was insufficient, in rejecting the argument that a manufacturer’s indemnity agreements with possible infringing customers, without more, gave it standing to maintain the action.
. FMC actually sued both .Walker and a customer in the earlier action. Walker was dismissed from the suit because it was not subject to process in that jurisdiction.
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_circuit
|
F
|
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.
BOBY v. ZURBRICK, District Director of Immigration.
No. 6256.
Circuit Court of Appeals, Sixth Circuit.
Dec. 16, 1932.
Ida Lippman, of Detroit, Mich. (Benjamin A. Rossin, of Detroit, Mich., on. the brief), for appellant.
Y. F. McAuliflie, of Detroit Midi. (Gregory H. Frederick, of Detroit, Mich., on the brief), for appellee.
Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.
PER CURIAM.
Appellant, George Boby, filed his petition for writ of habeas eorpus. He sought to be discharged from arrest under a warrant of deportation directing that he be deported to Roumania. lie did not challenge the right of the government to deport him, but insisted that Roumania was not the country “whence he came.” See section 20 of the Immigration Act of February 5', 1917, U. S. C., tit. 8, § 156 (8 USCA § 156).
At the hearing the District Court dismissed the writ. Appellant has preserved nothing for review. No bill of exceptions nor statement of evidence has been “authenticated” or “approved” by the trial judge. The record contains what purports to bo a stipulation, that at the hearing “United States Department of Labor File No. 55,717 was offered and received in evidence,” and a further stipulation that this record be certified to us and made a part of the record on appeal. What purports to be such a file has been sent to us, but it was not ordered to be sent either by the District Court or by this court. It bears no identification marks showing that it was ever considered by the District Court. Indeed, the record entries show only that the petition for the writ of habeas corpus was dismissed after it was read and after the attorney for petitioner had been heard. For the reasons indicated, this file No. 55,717 cannot be considered. Dukas v. Zurbrick, 56 F.(2d) 518 (C. C. A. 6).
The stipulation last above referred to also purports to set forth other evidence and proceedings before the District Court, but it cannot take the place of the authentication or approval by the trial judge necessary to make its contents a part of the record. Malony v. Adsit, 175 U. S. 281, 287, 20 S. Ct. 115, 44 L. Ed. 163; Metropolitan R. R. Co. v. District of Columbia, 195 U. S. 322, 332, 25 S. Ct. 28, 49 L. Ed. 219; Buessel v. U. S., 258 F. 811, 817 (C. C. A. 2). Annexed to this stipulation is the name and official title of the judge, but wo cannot assume that he signed the paper as an authentication or approval of it as a part of the record.
Because of the insufficiency in the record in the particulars indicated, the order of the District Court must be and is affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_direct2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Sven TVETER, an individual, doing business as SGT Enterprises, Defendant-Appellant, v. AB TURN-O-MATIC, a Swedish corporation, and Scandus, Inc., a California Corporation, Plaintiffs-Appellees.
No. 77-2299.
United States Court of Appeals, Ninth Circuit.
Dec. 4, 1980.
Jack M. Wiseman, San Jose, Cal., argued, for defendant-appellant.
George C. Limbach, Limbach, Limbach & Sutton, William Rochester, San Francisco, Cal., for plaintiffs-appellees.
Before BROWNING, Chief Judge, WALLACE, Circuit Judge, and CURTIS, District Judge.
Honorable Jesse W. Curtis, Senior Judge, United States District Court for the Central District of California, sitting by designation.
BROWNING, Chief Judge:
Appellant Tveter produces and distributes “Take-A-Turn,” a device for dispensing numbered tickets to persons awaiting service. Appellee AB Turn — 0—Matic produces “Turn-O-Matic,” a similar device performing the same function. The “Turn-O-Matic” device is distributed in the United States by appellee Scandus, Inc. It was first on the market. The district court held that appellant had infringed appellees’ patent and trademark rights, and that appellant had unfairly competed with appellees by simulating the appearance of the “Turn-O-Matic” and “palming off” appellant’s goods as those of appellees.
We reverse in part and affirm in part, concluding that the “Turn-O-Matic” device is unpatentable for obviousness, but that appellant violated appellees’ trademark rights and engaged in unfair competition in the marketing of “Take-A-Turn.”
I
Appellees’ “Turn-O-Matic” is a commercial embodiment of Ehrlund U.S. Patent No. 3,885,724, issued May 27, 1975, for a “Device for Tearing Off Pieces of a Certain Length from a Strip.” Appellant contends the Ehrlund patent was invalid under 35 U.S.C. § 103, which does not permit a patent to be issued
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.
The district court made findings on the factual issues identified in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966), as relevant to the determination of obviousness under section 103: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; and (3) the level of ordinary skill in the pertinent art.
The district court concluded that the device disclosed by the Ehrlund patent would not have been obvious to one skilled in the art and was therefore patentable-a conclusion of law. Sakraida v. Ag Pro, Inc., 425 U.S. 273, 280, 96 S.Ct. 1532, 1536, 47 L.Ed.2d 784 (1976).
In defending the court’s findings and conclusion, appellees argue that because of the statutory presumption of validity, 35 U.S.C. § 282, appellant bore “the heavy burden of persuasion by ‘clear and convincing’ proof of the alleged obviousness of the patented invention.”
The presumption of non-obviousness over the prior art rests upon the assumption that the patent examiner compared the claims with the prior art. The examiner did not have before him Ingram No. 1,704,-044, Burr & Davis No. 843,579, Osborn Nos. 3,173,601 and 3,229,876, Williams No. 3,098,-594, Beloud No. 2,361,528, Kingsbury No. 1,983,463, and Suk No. 1,575,081. As indicated below, these prior patents contain disclosures closer to Ehrlund’s device than those found in the patents considered by the examiner. This circumstance dissipated the presumption of validity. The burden of proof with respect to non-obviousness remained with appellees as claimants under the patent. Photo Electronics Corp. v. England, 581 F.2d 772, 775 (9th Cir. 1978); Deere & Co. v. Sperry Band Corp., 513 F.2d 1131, 1132 (9th Cir. 1975); Hewlett Packard Co. v. Tel-Design Inc., 460 F.2d 625, 628 (9th Cir. 1972).
The district court’s findings as to the content of the prior art are not in question. The court treated all of the prior patents relied upon by appellant as pertinent prior art.
The district court’s findings as to the differences between the prior art and the patented device consist primarily of listings of one or more respects in which a particular device disclosed in a particular prior art patent, separately considered, differed from the device disclosed in the Ehrlund patent. The differences are largely semantic-often relating more to the label attached to a particular element than to its function.2 In any event, the fact that each prior patented device differed in one or more respects from the Ehrlund device establishes only that the latter was not “identically disclosed or described” in previous patents, thus satisfying section 102 of Title 35. This is not enough to satisfy the requirement of section 103 that a patentable device disclose a non-obvious advance over the whole of the pertinent prior art.
Nor is the non-obviousness requirement satisfied simply because the article sought to be patented differs from the pertinent prior art taken as a whole. “[T]he mere existence of differences between the prior art and an invention does not establish the invention’s nonobviousness. The gap between the prior art and [the invention must be sufficiently] great as to render the system nonobvious to one reasonably skilled in the art.” Dann v. Johnston, 425 U.S. 219, 230, 96 S.Ct. 1393, 1399, 47 L.Ed.2d 692 (1976).
The district court found that the “skill of the average man in this art includes mechanical knowledge, knowledge of materials, and properties of materials, a mechanical ability to see how things fit together, and probably exposure to earlier model dispensers.” (Emphasis added). The emphasized phrase suggests a misapprehension of the law. There can be no doubt that the test for patentable invention is whether the innovation would have been obvious to a person of ordinary skill charged with complete knowledge of all pertinent prior developments, however much universal knowledge might exceed the knowledge actually possessed by the ordinary workman in the art. Walker v. General Motors Corp., 362 F.2d 56, 60 n.3 (9th Cir. 1966). Since such compendious knowledge is at best unlikely, in the usual case the inquiry must be hypothetical.
The district court’s findings recite testimony by the alleged inventor and by two experts that the patented device would not have been obvious either to them or to a person of average skill in the art even had they known of the prior art cited by appellant. Such testimony is of little value. “Obviousness” is not a simple factual conclusion drawn from the subsidiary findings of fact as a matter of ineluctable logic. “Obviousness” is a question of law, Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 280, 96 S.Ct. at 1536, a legal concept embodying the constitutional standard of invention.
An innovation is not necessarily patentable because it results in greater convenience and utility. To be patentable, an innovation must embody “invention”; and “invention” excludes adjustments, alterations, and improvements that could be expected to result from the exercise of the skill and ingenuity of a mechanic charged with knowledge of all that is disclosed in prior art. This is the exclusion expressed in section 103’s requirement that the innovation must not be “obvious” to such a person. Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 279, 96 S.Ct. at 1536.
The level of innovation required for patentability is especially high where the device is a combination of old elements, as here. Such a “mechanical combination must utilize a new principle or achieve a new result to cause it to rise to the status of invention.” SSP Agricultural Equipment, Inc. v. Orchard-Rite Ltd., 592 F.2d 1096, 1101 (9th Cir. 1979). “The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950). There must be “unusual or surprising consequences from the unification of the elements”; the old elements must perform an “additional or different function in the combination than they perform out of it.” Id. As we have repeatedly said, this is a “severe test.” See, e. g., Regimbal v. Scymansky, 444 F.2d 333, 339 (9th Cir. 1971); Santa Anita Manufacturing Corp. v. Lugash, 369 F.2d 964, 967 (9th Cir. 1966); Bentley v. Sunset House Distributing Corp., 359 F.2d 140, 144 (9th Cir. 1966). “Mechanical patents covering a combination of old elements must be scrutinized with care, since it is unlikely that such combinations will amount to patentable invention.” SSP Agricultural Equipment, Inc. v. Orchard-Rite Ltd., supra, 592 F.2d at 1101.
The Ehrlund “Turn-O-Matic” contains a roll of paper tickets numbered consecutively. The tickets are divided by a punched or perforated line across most of the width of the strip, leaving an uncut margin on both sides. The perforated or punched line is curved or angled toward the user at midpoint. As a ticket is pulled, it passes over a projecting flange having the same width as the flap or tongue. Downward pressure on the tape brings the uncut, unperforated margins of the tape in contact with cutting edges at each side of the flange, separating the ticket. The flap or tongue of the succeeding ticket, held level by the flange, projects from the dispenser for the next user to grasp.
Appellees’ claim of inventive difference in the Ehrlund device “is the guidance structure that cooperates without moving parts with the forwardly directed ticket tongue or flap to dispense intended tickets in a one-hand, one-step pulling operation in which the end ticket is separated from the roll leaving the ticket tongue of the succeeding ticket protruding from the dispenser ready to pull the next ticket.” Ap-pellees’ Brief, page 16.
Devices for severing and dispensing sheet material in predetermined lengths are old. Such devices commonly disclose means for guiding the material over a cutting edge for separation. Several employ a one-hand, one-step operation and have no moving parts.
In the final analysis, appellees’ argument for patentability over the prior art rests upon the interaction between the projecting flange and a ticket strip having flaps or tongues pointed in the feeding direction of the strip. Brief for Appellees, page 31. This development is not inventive over Burr & Davis No. 843,579 (1907), in light of Be-loud No. 2,361,528 (1944), or over the so-called “Baggie” patents, Osborn Nos. 3,173,-601 (1965) and 3,229,876 (1966) and Williamson No. 3,098,594 (1963).
Burr & Davis No. 843,579 (“Means for Holding and Detaching Ribbon Strip Labels”) discloses a rolled ribbon, divided into individual labels by perforated lines, wound inside the machine. The perforated cloth strip is pulled out and down over a frame or flange causing the perforations to tear, beginning in the center of the perforation, until a single label is separated. The outer casing or cover of the device has an inward curve over the flange that exposes a tongue-shaped portion of the succeeding label resting on the flange. By pulling this exposed tongue out and down over the flange, the next user may detach a label with a single motion. Burr & Davis cuts from the center rather than at the sides, and the next ticket, though exposed, does not protrude. But cutting at the sides and protrusion are found in Beloud No. 2,361,-528, a dispenser described as
leaving a portion of the next section of the material visible and accessible, in order to allow the operator to withdraw the material to the desired position which will permit a section to be separated from the main body of the material and to repeat the operation at will.
Under the “Baggie” patents, a rolled sheet of bags or plastic, divided by perforations, is drawn from a container across a cutting edge having a vertically projecting section at the center. When the perforated line is pulled over this projection or flange, the perforations tear and the forward motion of the next bag is arrested by the flange. Continued pulling completes the separation. The patent description specifies that after each bag is removed its successor protrudes:
During the act of severance, some small distortion of the sheet material takes place whereby the severed portions thereof on opposite sides of the arresting tab extend outwardly and the corner extremities are supported upon the angular edges of the guide tabs and thus restrained against dropping within the container and out of reach. In this manner the material of the roll (or otherwise packaged material) remains available for convenient grasping whereby withdrawal and severance of the next successive length may be accomplished.
Appellant argues that the Baggie device requires the user to lift the next bag over the projecting flange before it can be removed. This problem could be solved by curving or angling the line of perforations between bags to produce one or more tabs or tongues. Appellant recognizes that “[a] major difference between this prior art and the claims of the Turn-O-Matic patent is the construction of the ticket strip recited in the Turn-O-Matic claim.”
Because the description of the ticket strip is found in the preamble rather than in the body of the claims of the Ehrlund patent, the parties debate whether it is an element of the combination claimed by Ehrlund. It is unnecessary to resolve the issue. Based on the record before us, the essentials of the strip’s construction are in any event old in the art. Suk No. 1,575,081 (1926) claims:
A record strip comprising a signal [sic] oblong length of flexible fibrous material having equally spaced portions thereof scored transversely to provide a series of detachable sections, the scoring between adjacent sections extending along an irregular shaped line so that each section upon detachment will have at one end a projecting tongue.
Appellees contend the Ehrlund device meets the not “obvious” standard because the combination of old elements is “synergistic,” i. e., “result[s] in an effect greater than the sum of the several effects taken separately.” Anderson’s Black Rock v. Pavement Co., 396 U.S. 57, 61, 90 S.Ct. 305, 308, 24 L.Ed.2d 258 (1976). Appellees cite the following exchange with their expert witness:
Q. In your opinion, does the device of the patent produce a synergistic result?
A. Yes, it does, indeed. As I have already described it, it permits several things to happen at the same time. That is it permits a ticket, a single ticket, to be dispensed with one hand without moving parts other than the ticket strip itself in the casing, and in such a way that the next ticket is not touched by the person who pulls off the previous ticket, or anyone else for that matter.”
This description accurately mirrors Borden’s 1940 patent (No. 2,221,213) for a simple cellophane tape dispenser, cited as prior art by the patent examiner.
The Ehrlund combination is an improvement over previous devices in this field, “perhaps producing a more striking result,” Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 282, 96 S.Ct. at 1537. But it does not reflect the application of a new principle or the achievement of a surprising or unexpected result required to satisfy the severe test for patentability of a new combination of elements old in the art.
The projecting flange temporarily arrests the movement of the tape, separates the tongue from the tape, and guides the tongue horizontally toward the user as in Burr & Davis, the cutting edge severs the tape at the sides as in Beloud, the tongue of the succeeding ticket serves as a handle for the next user to grasp as in Suk, the elements combine to permit a single segment of the tape to be dispensed with a one-step pulling operation, without moving parts, as in Burr & Davis and the Baggie structure.
As we said in Kamei-Autokomfort v. Eurasian Automotive Products, 553 F.2d 603, at 609 (9th Cir. 1977), quoting our earlier decision in Rex Chainbelt Inc. v. Harco Products, Inc., 512 F.2d 993, 1000 (9th Cir. 1975): “What we have here is: ‘an improved product but not an innovatively different one . . . [W]e see the development and refinement of an old concept .. . but not an inventive or new approach to the problem.’ ”
The commercial success of the Ehrlund device “cannot fill the gap.” Exer-Genie, Inc. v. McDonald, 453 F.2d 132 (9th Cir. 1971). See SSP Agricultural Equipment, Inc. v. Orchard-Rite, Ltd., supra, 592 F.2d at 1101.
II
Trademark Infringement and Unfair Competition
The district court’s holding that appellant’s use of the name Take-A-Turn infringed appellees’ registered Turn-O-Matic trademark and that appellant had engaged in unfair competition by “palming” off appellant’s dispenser as that produced by ap-pellee are factually and legally unassailable.
Appellant was a distributor of appellees’ Turn-O-Matic ticket dispenser in an assigned territory for over seven years. He became dissatisfied with the relationship. When appellee introduced its new dispenser based upon the Ehrlund patent, appellant set about to copy it. In less than a month he had obtained quotations for the manufacture of a like dispenser from a producer of plastic products. He continued to distribute appellees’ Turn-O-Matic until his dispenser became available. About a year later appellant began distributing his dispenser under the name Take-A-Turn. Appellant’s dispenser is virtually identical with appellees’ Turn-O-Matic in operation, and is almost indistinguishable in appearance, even to the distinctive red color and the location and type-style of the trade name. Appellant’s advertising brochure for Take-A-Turn was copied from appellees’ Turn-O-Matic brochure. Appellant employed the same stock number he had previously used in the sale of Turn-O-Matic dispenser and parts. He sold the Take-A-Turn dispenser in the same territory in which he had previously sold the Turn-O-Matic, and to the same customers. Customers ordered Turn-O-Matic by name but were delivered Take-A-Turn.
Appellees’ evidence fully supported the district court’s findings that appellant’s Take-A-Turn trademark was likely to and did cause confusion, mistake, and deception as to the origin of the dispenser, that the appearance of appellees’ dispenser, copied by appellant, had acquired a secondary meaning identifying appellee as its source, and that appellant deliberately intended to pass his goods off as those of appellee. As a matter of hornbook law, these facts established both trademark infringement and unfair competition.
Appellant argues that “Turn-O-Matic” is descriptive of the use of appellees’ dispenser and is therefore a “weak” mark. Appellees respond that the mark has become “incontestable” under 15 U.S.C. § 1065, and therefore cannot be challenged on the ground that it is descriptive. Appellant answers that he is not challenging the validity of appellees’ mark but is asserting that because of the weakness of the mark there is no likelihood of confusion. The short answer is that even if this factor had the probative tendency appellant suggests, it was overwhelmed by appellees’ evidence that confusion was likely, intended, and occurred.
Appellant argues that because the name “SGT Enterprises” (under which Tveter conducted business) was printed on appellant’s dispenser there could have been no confusion as to source. Although proper labeling will usually preclude confusion, see American Roiex Watch Corporation v. Ri-coh Time Corp., 491 F.2d 877, 879 (2d Cir. 1974); Bose Corp. v. Linear Design Labs, Inc., 467 F.2d 304, 310 (2d Cir. 1972), the overwhelming evidence in this instance is that confusion did occur. Appellant cites West Point Manufacturing Co. v. Detroit Stamping Co., 222 F.2d 581 (6th Cir. 1955), but in that case the court found the labeling was in fact sufficient “to avoid confusing the public as to the producer or the source of the product”. Id. at 596. The court recognized that “when the imitation is likely to deceive prospective customers who care about source . .. the imitator is guilty of unfair competition.” Id.
Appellant was known in the trade as a distributor of appellees’ product. Under such circumstances, the addition of his own label “is an aggravation and not a justification.” Menendez v. Holt, 128 U.S. 514, 521, 9 S.Ct. 143, 144, 32 L.Ed. 526 (1888); see A. T. Cross Co. v. Jonathan Bradley Pens, Inc., 470 F.2d 689, 692 (2d Cir. 1972).
There was evidence that appellees used the mark “Turn-O-Matic” on their earlier dispenser together with the words “Patent Pending” when no patent application on this dispenser was in fact pending. Appellant argues that this misuse bars judicial enforcement of appellees’ trademark rights. But “misconduct in the abstract, unrelated to the claim to which it is asserted as a defense, does not constitute unclean hands.” Republic Molding Corp. v. B. W. Photo Utilities, 319 F.2d 347, 349 (9th Cir. 1963). “What is material is not that plaintiff’s hands are dirty, but that he dirtied them in acquiring the rights he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant.” Id. No relationship is suggested between appellees’ asserted misuse and the acquisition of appellees’ trademark rights; no other reason, arising out of the misuse, is advanced that would make it inequitable to enforce those rights.
Appellant argues that since appellees’ dispenser was not patentable, appellant had a right to copy it in light of Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). Under the rule of these decisions, however, copying may constitute evidence which, when accompanied by proof of confusion as to source or deliberate palming off, as in this case, may support a cause of action for unfair competition upon which appropriate relief may be founded. Compco Corp., supra, 376 U.S. at 238, 84 S.Ct. at 782.
Ill
Remedy
The judgment and the injunction issued pursuant to the judgment must be modified in light of our decision that the Ehrlund United States Patent 3,885,724 is invalid; that the trademark “Turn-O-Matic” is valid and infringed by the mark “Take-A-Turn;” that the configuration of appellees’ dispenser has acquired a secondary meaning reflective of its source, and that appellant has engaged in unfair competition by passing off appellant’s dispenser as originating from the same source as appellees’ dispenser. These adjustments are best left initially to the district court, but it may be helpful to comment upon two matters.
First, it is clear from the decisions in Sears, Roebuck & Co. v. Stiffel Co., supra, and Compco Corp. v. Day-Brite Lighting, Inc., supra, that an injunction against copying the configuration of appellees’ dispenser cannot be based upon California unfair competition law. This does not, however, preclude an injunction under state law that will prevent the palming off of appellant’s product as that of appellees, nor an injunction requiring that appellant’s product “be labeled or that other precautionary steps be taken to prevent customers from being misled as to the source.” Sears, Roebuck & Co., supra, 376 U.S. at 232, 84 S.Ct. at 789. See generally, Cal.Civ. Code § 3369; Tomlin v. Walt Disney Productions, 18 Cal. App.3d 226, 231-235, 96 Cal.Rptr. 118, 120-123 (Ct.App.1971); Components for Research, Inc. v. Isolation Products, Inc., 241 Cal.App.2d 726, 730-731, 50 Cal.Rptr. 829, 832 (Ct.App.1966).
The more difficult question is whether Sears and Compco preclude an injunction based upon § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) against copying the exterior design insofar as it incorporates nonfunctional features and has acquired a secondary meaning. See Truck Equipment Service Co. v. Freuhauf Corp., 536 F.2d 1210 (8th Cir. 1976); American Rolex Watch Corp. v. Ricoh Time Corp., supra, 491 F.2d at 879. The district court should reconsider this question free of the distracting assumption that an injunction against copying appellees’ device was in any event justified because of infringement of the Ehrlund patent. Even if such an injunction would not be barred by Sears and Compco, it could not be so broadly drawn as to preclude appellant from using a circular casing to enclose the circular roll of tickets, a common and essentially utilitarian feature of tape dispenser designs. See Application of Honeywell, Inc., 532 F.2d 180, 182-83 (Cust. & Pat.App.1976).
Second, the provision of the injunction requiring appellant to deliver up for im-poundment and destruction devices and materials infringing the Ehrlund patent or the “Turn-O-Matic” trademark will require reconsideration and modification for the same reasons. In addition, however, appellant contends this provision exceeds the pretrial stipulation of the parties that “[o]nly the remedy of injunction is sought.” Appellant objects on similar grounds to the requirement that appellant notify future customers that he does not sell products under the marks “Turn-O-Matic” and “Take-A-Turn.” But orders for impoundment or destruction and for issuing remedial notices are no less injunctive because they impose affirmative requirements to act. Neither provision imposes liability “for damages, costs, and attorney’s fees” in contravention of the parties’ agreement.
U.S. Letters Patent No. 3,885,724 is declared invalid. The judgment and injunction are vacated and the cause remanded for further proceedings consistent with this opinion.
. See note 6, infra.
. Burr & Davis No. 843,579 (“Means For Holding and Detaching Ribbon Strip Labels”) (1907); Ingram No. 1,704,044 (“Dispensing and Severing Device for Rolled Strip Material”) (1929); Beloud No. 2,361,528 (“Device to Sever Paper Sales Tax Slips”) (1944); Williamson No. 3,098,594 (“Container For Shipping, Storing and Dispensing Sheet Material in Predetermined Lengths”) (1963); Obsorn No. 3,173,601 (“Dispensing Sheet Material in Predetermined Lengths”) (1965); Osborn No. 3,229,876 (“Dispensing Sheet Material in Predetermined Lengths”) (1966).
. Burr & Davis No. 843,579; Ingram No. 1,704,-044; Beloud No. 2,361,528.
. Burr & Davis No. 843,579; Williamson No. 3,098,594; Osborn No. 3,173,601; Osborn No. 3,229,876.
. None of these references was cited by the examiner, who relied instead upon four less pertinent patents. Borden No. 2,221,213 (1940) discloses a dispenser permitting the user to tear off a piece of any length desired from a roll of adhesive tape. Burcz No. 3,007,619 (1961) discloses a similar dispenser for thick tapes that are difficult to tear, such as plastic electricians’ tape. Kunsch No. 3,088,640 (1963) is a variation of the standard aluminum foil box, having several large teeth on the cutting edge so that foil may be either torn off or perforated, or both, at any intervals desired. German Application Disclosure No. 1,218,492 (German Federal Republic 1966) discloses a device for separating punched data processing tape and at the same time marking the direction in which the tape is traveling.
. The district court found that Burr & Davis No. 843,579 “does not disclose a flange for temporarily arresting movement of the ticket tongue that is directed in the feeding of the strip as specified in” the Ehrlund patent. Whether or not any portion of the projecting separation edge of the Burr & Davis device is called a “flange,” the Burr & Davis patent discloses a guiding means that arrests the tape, allowing separation. Similar semantic distinction clouded the district court findings as to Beloud No. 2,361,528 and the “Baggie” patents, all of which disclose arresting mechanisms.
. Claim 1 of the Ehrlund patent, for example, reads:
A device for tearing off pieces of the same predetermined length from a roll of fed flexible strip, said strip having punched lines forming tongues equally spaced along said strip with their spacing equal to said predetermined length and directed in the feeding direction for said strip, whereby the portion of each tongue which is firmly connected to the remainder of the strip is perpendicular to the longitudional direction of the strip, said device comprising a casing for said strip roll, said casing having side walls and an open top, a cover pivotally connected to said casing and closing said top, said cover having an outwardly extending portion, another portion integral with the first-mentioned portion and extending in a downwardly direction relatively to the cover, said casing having a portion extending substantially parallel to the first-mentioned portion but spaced therefrom to form a gap for the passage of the strip out of the casing, a flange for temporarily arresting movement of said tongue integram with the third-mentioned portion and extending close to the second-mentioned portion but spaced therefrom to form a gap for the continuing passage of the remainder of the strip, and tear-off portions on either side of said flange connecting the base of said flange to the side walls of the casing arranged for the cut-off to the remainder of the strip.
(Emphasis added.)
. Marston v. J. C. Penney Co., 353 F.2d 976, 986 (4th Cir. 1965); Stradar v. Watson, 244 F.2d 737, 741 (D.C.Cir.1957); Kropa v. Robie, 187 F.2d 150, 38 CCPA 858 (1951). Appellant comes close to arguing that the tape is part of the claimed combination for the purpose of determining validity but not for the purpose of determining infringement, a position forced upon them by the fact that appellees did not manufacture or distribute the tape itself.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_typeiss
|
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.
William C. LANDSTROM, d/b/a Landstrom Gravel Co., Plaintiff-Appellee, v. CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 65 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Defendant-Appellant.
No. 334, Docket 72-1906.
United States Court of Appeals, Second Circuit.
Argued Jan. 15, 1973.
Decided March 30, 1973.
Peter P. Paravati, Utica, N. Y., for defendant-appellant.
James L. Burke, Elmira, N. Y., for plaintiff-appellee.
Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
OAKES, Circuit Judge:
This appeal is by a local union held liable for $60,000 compensatory damages under § 303 of the Labor Management Relations Act of 1947, 29 U.S.C. § 187, for unfair labor practices as defined in § 8(b) (4) (ii) (B) of the Act, 29 U.S.C. § 158(b) (4) (ii) (B). The appellee, a' non-union gravel and ready-mix concrete contractor in Ithaca, New York, alleged that he lost jobs as a result of appellant’s threats to shut down major area contractors if they subcontracted gravel or concrete work to appellee. The questions raised by the appeal relate to (1) sufficiency of the evidence of a violation of § 8(b) (4) (ii) (B); (2) sufficiency of the evidence concerning the charge pertaining to, and excessiveness of, damages; and (3) the admission of evidence on matters not set forth in appellee’s answers to interrogatories.
We resolve the questions of liability in appellee’s favor but reverse and remand for a new trial on the issue of damages.
Appellee’s business is a small one, on the outskirts of Ithaca, where he has a gravel pit, a transit mix concrete plant, three concrete mixers (one standby), about five dump trucks, and eight regular employees. After trying unsuccess-, fully in 1967 to organize the plant, the appellant union picketed it for two weeks in the spring of 1969. Apparently the picketing was stopped after both the union and appellee had filed charges with the NLRB. These charges were later dropped by mutual agreement before May 23, 1969. After that date, for the most part, the course of conduct on which this suit was brought ensued.
Taking the evidence in the light most favorable to the party prevailing before the jury, it appears that appellee had started to supply sand, gravel, or in one case ready-mix concrete to a number of contractors in the period 1969-1971 when he was told by the contractors or their representatives to stop making delivery. There was testimony from those coerced as follows:
(1) John Card, assistant superintendent for Dyer Fitts Construction Company in charge of the Cornell Student Housing Project, testified that he stopped appellee from making deliveries to his site because the appellant’s business agent “told me I better not use Landstrom’s trucks delivering on that job . . . that he might shut the job down, our part of the work down.”
(2) James Cartwright, executive secretary of the Cortland-Ithaca Building Exchange, a contractors’ group, testified that he had several meetings with Mr. Michaels, the business agent of the appellant, who told him that the union “would quite possibly have to picket” the job sites of members of the Exchange who dealt with Landstrom. Acting on this information, Cartwright advised the Exchange’s membership “they should anticipate some type of work stoppage” if they utilized Landstrom material or service. One of the contractors to whom Cartwright said he told this was Mr. McGuire of the firm of Stewart and Bennett.
(3) Mr. McGuire, whose employer was the prime contractor on the Spencer-Van Etten School project, corroborated Cartwright, saying that he recalled being informed by Cartwright that “there was a possibility that the job could have trouble, pickets and so forth,” if Landstrom was used. As a result of Cartwright’s statement, although Landstrom was low bidder, he did not get the 6-7,000 yard concrete contract for the school.
(4) Donald H. Brown, general superintendent of Streeter Associates, another contractor, testified that he had a conversation with Michaels before the Inlet Park job, in the course of which Michaels told him, “You must realize we don’t have an agreement with Landstrom and if you use him you would be violating your contract with us.” As a result of that conversation, according to Brown, Streeter did not order gravel from Landstrom that would have otherwise been ordered. Brown also implied that because of the “groundwork [that] had been laid” in discussion with Michaels about the Inlet Park job, Landstrom did not get the contract to supply gravel on the Unex Press job, Brown also testified, however, that another supplier — Paully Mancini & Son — did haul gravel that was bought at the Landstrom pit to the Unex Press job.
(5) Elwood Marshall, plant foreman of a Landstrom sand supplier, RumseyIthaca Company, testified that Michaels “came to us and told us not to load any of the Landstrom trucks,” and that “if we loaded trucks, he was going to shut the place down.” As a result of Michaels’ intervention with Rumsey-Ithaca, Landstrom had to find another, more expensive, supplier of sand.
(6) Rhaeto Pfister, president of Lynch Excavating Trucking Corporation, who had the excavating contract at the Ithaca College dormitories, testified that he stopped deliveries by Landstrom after “[t]he Teamsters informed us that if Bill Landstrom continued to deliver gravel that . . . I am not sure if he said picketing, or he would pull his men off, there would be a strike. Something to the effect that we would have a shutdown.” He also testified as to a similar threat by Michaels in connection with the excavating contract at Cornell Student Complex at Cornell University and as to his “other jobs,” including jobs at Tompkins Hospital and BOCES School. Pfister’s testimony was subsequently corroborated by the testimony of his then excavation superintendent, William J. Mobbs.
(7) John H. Boniface, Assistant Vice President of A. Frederick & Sons, contractors on the First' National Bank job at Ithaca, testified that he had employed Landstrom on that job but then had a call from Michaels. The substance of Michaels’ message was that “if [Boniface] continued, . . . using the non-union equipment, [Michaels] would put pickets on that job.” Boniface, however, used Landstrom anyway, without further consequences.
(8) Peter Giacobbi of Giacobbi Excavating and Grading Contractors Incorporated said he conferred with Michaels who told him Landstrom was “not union at all” and that thus he could not use Landstrom on the Northeast School Job, one involving some 8,373 cubic yards of gravel.
(9) William Schlobohna, plumbing superintendent of J & B Plumbing & Heating, testified that he had had to stop using Landstrom for hauling a small amount of gravel for a water main ditch in downtown Ithaca when Michaels told him that Landstrom’s gravel was “nonunion” and that Michaels “would shut down the job if I continued to use it.”
The principal line of defense to all of this evidence was that there was a “subcontractor’s clause” in the contracts between the union and the general contractors which required that subcontractors pay their employees the same as the general contractor paid its employees. By using Landstrom, the union argued, a general contractor was violating that clause. Thus Michaels, when asked whether he had ever threatened to shut down any of the contractors for using Landstrom, testified that he had merely “told them I was going to go to the grievance procedure,” by which he explained that he meant “I contacted my legal attorney, I find out what I can do legally, outside of giving him the seventy-two hour notice or three day notice and withdrawing my men”’ In essence, however, the jury disbelieved Michaels’ testimony that he did not tell Card, Pfister, Mobbs, Boniface, Marshall, or Schlobohna that he was going to picket their jobs or shut them down. While there is no indication that Landstrom was a subcontractor, as opposed to being a supplier, even if he were, the clause could only be enforced through the courts, NLRB v. Local 445, 473 F.2d 249 at 252 (2d Cir., 1973), since the clause was clearly “secondary.” See Orange Belt Painters District Council No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534, 537-538 (1964). Here there was a jury issue under § 8(b)(4)(ii)(B) in that the jury rationally could have found that appellant threatened or coerced a number of general contractors and others with the object of forcing them “to cease using, selling, ... or otherwise dealing in the products of any other producer, . . or to cease doing business with any other person . . . .” There was evidence from which the jury could have found the appellee’s conduct was “unmistakably and flagrantly secondary” and caused a severe disruption of Landstrom’s business relationships with contractors not involved in the primary labor dispute. NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 304-305, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). See Note, Secondary Boycotts: The New Scope and Application of the “Cease Doing Business” Requirement of Section 8(b)(4) (B), 71 Colum.L.Rev. 1077, 1087 (1971); 12 B.C.Ind. & Comm.L.Rev. 1255 (1971). Thus, appellant’s contention that the evidence was insufficient to support the jury’s finding of a § 8(b) (4) (ii) (B) violation must be rejected.
Appellant makes a somewhat confused subsidiary argument in reference to the Cornell Student Housing and Rumsey-Ithaca job which also applies to the statement made by Michaels to Cartwright of the Building Exchange and repeated by Cartwright to McGuire so as to deprive appellee of the Spencer-Van Etten School contract. As we understand it, appellant relies on the proviso to § 8(b) (4) (ii) (B) and Sailor’s Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950), approved in Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961), and argues that since the alleged threats relating to those three projects occurred during the pendency of a primary dispute between Landstrom and the union, the union could properly picket (and implicitly threaten to picket) Landstrom wherever he was working until the primary dispute was ended in the spring of 1969. The jury could well have found, however, that the threats that occurred in the spring of 1969 went beyond a threat of picketing in conformity with Moore Dry Dock standards, for Michaels’ words were ominous and threatening and included an explicit or implied threat to shut the neutral contractor down if he continued to deal with Landstrom. The Moore Dry Dock rules are only evidentiary aids to the finder of fact and can be overcome by other evidence of illegal secondary purpose. NLRB v. Northern California District Council of Hod Carriers, 389 F. 2d 721, 725 (9th Cir. 1968). But more important, the issue was not raised below, the court’s charge did not deal with it, and no objection was taken to any failure to charge on this question. We would add that as we read the record, the most appellant might have been entitled to in any event was a charge in respect only to the three jobs mentioned above. Coneededly such a charge might have affected the damages substantially, but having permitted the case to be submitted otherwise, appellant cannot now be heard to complain.
Appellant’s final argument on liability is that as to the A. Frederick job, by leaving the gravel in different piles Landstrom was doing on-site work. Hence the argument is this Was work performed by a subcontractor, not a supplier, and subject to the subcontractor clause of the contractor’s labor contracts and the construction industry proviso to § 8(e), 29 U.S.C. § 158(e). But the work Landstrom performed on this particular job is no different from the delivery of concrete by mixing and pouring it at the job site, which we held not to be subcontracting in NLRB v. Teamsters Local 294, 342 F.2d 18, 21-22 (2d Cir. 1965).
Relative to damages, the only evidence consisted of Landstrom’s uncontroverted testimony that his profit (the excess of selling price over cost) on the sale of gravel picked up at his pit was 25 cents per yard, on the sale of gravel delivered by his trucks to a work site approximately 75 cents per yard, and with regard to concrete at the Spencer-Van Etten school job (the only one involving the sale of concrete) $8.95 per yard. Briefly stated, there was evidence from which the jury could find that, multiplying the numbers of yards of gravel lost on the various jobs by the “profits” above stated, together with a “lost profit” for 5400 yards of concrete at $8.95 per yard or $48,330, the total damage on this basis was $74,625.25.
Appellant argues, however, that as a matter of law the evidence on damages was insufficient because appellee had the burden of proof of damages, Jodice v. Calabrese, 80 LRRM 2681 (S.D.N.Y., June 6, 1970), was free to and did use his employees and materials on other jobs, and made no showing of a general loss of profits. H. L. Robertson & Associates, Inc. v. Plumbers Local 519, 74 LRRM 2689 (S.D.Fla., Dec. 9, 1969) , aff’d, 429 F.2d 520 (5th Cir. 1970) (per curiam). It is now clear that, irrespective of state law, only compensatory damages are recoverable 303 actions. Teamsters Local 20 v. Morton, 377 U.S. 252, 260-261, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). It is equally clear that damages in a § 303 action need not be proven to a certainty, but only to an approximation inferable reasonably and justly. Flame Coal Co. v. UMW, 303 F.2d 39 (6th Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 186, 9 L.Ed.2d 125 (1962); UMW v. Patton, 211 F.2d 742 (4th Cir.), cert. denied, 348 U.S. 824, 75 S.Ct. 38, 99 L.Ed. 649 (1954). See also Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 567-568, 51 S.Ct. 248, 75 L.Ed. 544 (1931) (loss of business from Sherman Act violation). But here, with one minor exception, appellee produced no evidence of out of pocket expense as in Gulf Coast Building & Supply Co. v. Electrical Workers Local 480, 428 F.2d 121 (5th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970), or Burns Brothers Plumbers, Inc. v. Groves Ventures Co., 412 F.2d 202 (6th Cir. 1969). There was no evidence produced that appellee did not or could not have employed his material elsewhere and used his trucks and men in connection with other projects not interfered with by appellant — no evidence that his men and equipment were idled by appellant’s activity. The most that was shown is a lost gross profit, but not a loss of net income. The proof of damage here thus falls far short of that adduced by the general contractor in Abbott v. Pipefitters Local 142, 429 F.2d 786, 789-790 (5th Cir. 1970) (proof of average profit over three year period and less profit on particular job, coupled with proof that losses were not attributable to factors other than picketing). See also Sheet Metal Workers Local 223 v. Atlas Sheet Metal Co., 384 F.2d 101 (5th Cir. 1967); Teamsters Local 984 v. Humko Co., 287 F.2d 231 (6th Cir.), cert. denied, 366 U.S. 962, 81 S.Ct. 1922, 6 L.Ed.2d 1254 (1961). While there is ample proof that as a result of appellant’s unlawful activity appellee sustained lost profits on some gravel that he could have sold at the pit and some that he could have delivered, there is no proof that the same gravel — surely the most fungible and widely used of minerals — was not sold elsewhere or in any event delivered elsewhere in the ordinary course of business by the use of Landstrom’s men and equipment. Thus, appellee did not sustain his burden of proving actual damage.
Since we must remand in respect to alleged losses of profits in any event, it is unnecessary to determine whether the court’s response to a jury question in respect to Landstrom’s claim for damages should have been framed in substantially the same terms as Landstrom’s attorney’s summation. We do hold, however, that appellant’s belated objections to evidence relating to liability and damages on the Spencer-Van Etten, Morris Chain and Unex Press jobs on the ground that they were not specifically mentioned in appellee’s answers to interrogatories are unavailing. Reference was made in the interrogatory answers to claimed damages of $62,500 in respect to Stewart and Bennett, the Spencer-Van Etten contractors, and in connection with the Unex Press project there was a general answer of claimed damages of $25,000 on additional jobs; appellant cannot now claim, having failed to press for further specification before trial, that he was surprised by this evidence. Landstrom’s deposition could have been, but was not taken. The Morris Chain project of which appellant now complains was not material since no claim for damages in respect to it was made.
Judgment affirmed as to liability, reversed and remanded for new trial on damages only, costs to neither party.
. Section 8 provides in pertinent part:
(b) It shall be an unfair labor practice for a labor organization or its agents'—
(4) . . . (ii) to threaten, coerce, or restrain any person . . . where . 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[.]
. Appellee originally also sued Michaels and Lawrence Small, Secretary-Treasurer of the appellant. These suits were dismissed by consent prior to trial.
. On the validity of such clauses, see Truck Drivers Local 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539, cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964).
. Section 8(b) (4) (ii) (B) makes an explicit exception with respect to primary disputes. See note 1 supra. See generally United Steelworkers v. NLRB, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964); Typographical Union No. 37 v. NLRB, 131 U.S.App.D.C. 1, 401 F.2d 952 (1968); NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721 (9th Cir. 1968).
. The pertinent portion of the charge as to appellant’s defenses read as follows:
The defendant Union, on the other hand, denies that its officers many [sic] any threats to anyone as testified to by the various witnesses produced by the plaintiff. The defendant contends that on various occasions its president advised contractors with whom the Union had .agreements that it would resort to the lawful procedure set forth in those agreements to enforce the Union’s rights under them. The Union concedes that in the course of a dispute with the plaintiff in the spring of 1969 it posted pickets at its place of business. They deny threatening to picket or strike on any other or in connection with anyone else.
You will recall that there is evidence that various charges and counter-charges were filed with the National Labor Relations Board as a result of which the pickets were withdrawn and the matter was resolved in some manner.
The defendant further denies that its actions taken in connection with the plaintiff had any object or purpose or intent to require or force any of the contractors or the Rumsey-Ithaca Corporation to cease doing business with the plaintiff.
Finally, the defendant denies that the plaintiff suffered any injury to his business and property as a proximate result of any unfair or unlawful labor practice. The defendant further maintains that it was only seeking to enforce its rights under three contracts which were introduced into evidence ....
Obviously, this did not suffice to place the Moore Dry Dock issue before the jury.
. (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, ti-ansporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible [sic] and void: Provided, That nothing in this subsection shall apply to an agreement 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 ....
. Our understanding of what happened on the damage and other issues in this case below is hampered by a transcript that contains numerous uncorrectod errors, followed by briefs and appendices that are most unhelpful (and as regards the briefs in violation of Fed.R.App.P. 28, in numerous respects). To the best of our understanding, it appears that the trial court’s charge as to Landstrom’s claims was somewhat different from the testimony adduced because in connection with the BOCES School, appellant’s counsel in summation and the court spoke of twenty-seven hundred yards of gravel used there, as to which Landstrom would have delivered only one-half, making a loss of $1,-012.50. The testimony of Mr. Pfister at pages 150 et seq. of the transcript, however, was that the total yardage on the project was twenty-two thousand seven hundred yards of which Landstrom would have delivered at least one-half. On this basis the loss sustained would have been $8,512.50. This discrepancy in the charge of $7,500 in favor of appellant was not objected to by appellee and may have been due to a mistake in transcribing the testimony rather than counsel’s computations.
. For mason sand Landstrom had to purchase at a higher cost — $222.50.
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_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
LEIBMAN v. SIEGEL et al.
No. 9601.
United States Court of Appeals Seventh Circuit.
March 21, 1949.
KERNER, Circuit Judge, dissenting.
Albert E. Jenner, Jr. and Edward H. Hatton, both of Chicago, 111., for appellants.
David M. Jacobson and Ralph E. Jacobson, both of Chicago, 111., for appellee.
Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge.
MAJOR, Chief Judge.
This is an action by plaintiff, a tenant, against the defendants, landlords, for the recovery of damages and attorney fees for alleged violation of the Emergency Price Control Act of 1942 as amended, 50 U.S. C.A.Appendix, § 925(e), and certain regulations promulgated thereunder. The damages sought to be recovered are for an overcharge alleged to 'have been made by the defendants by the sale to the plaintiff of furniture for the sum of $1500, in connection with and as a condition to the leasing of an apartment. The court below made findings of fact, conclusions of law and, on February 25, 1948, entered a judgment in favor of the plaintiff in the sum of $3000, and in addition thereto, assessed $500 as plaintiff’s reasonable attorney fees.
Upon appeal by the defendants, this court affirmed the judgment in an opinion announced November 24, 1948. Further consideration of the case on petition for rehearing has convinced us that the judgment must be reversed. Our previous opinion is, therefore, withdrawn, and all orders entered pursuant thereto are vacated and set aside.
Sec. 925(e), upon which the instant action is predicated, provides: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity * * * may * * * bring an action against the seller on account of the overcharge. * * * For the purposes of this section the payment or receipt of rent * * * shall be deemed the buying or selling of a commodity, as the case may be; and the word 'overcharge’ shall mean the amiount by which the consideration exceeds the applicable maximum price.” (Italics ours.)
We are thus at once confronted with the perplexing issue as to whether a legal maximum rental existed for the apartment in question at the time of the alleged overcharge sought to be recovered. This issue was not previously decided by this court and it appears was given no more than incidental consideration in the court below. The importance of the issue is apparent from the fact that if decided adversely to the plaintiff no recovery can be had, and it must be kept in mind that the burden is upon the plaintiff to establish the affirmative of this issue as a prerequisite to his right to recover. See Porter, etc. v. Kenmore Mfg. Co., 7 Cir., 161 F.2d 123.
The defendants were the owners of an apartment (housing accommodation) which they inherited on October 12, 1946, upon the death of their mother, who previous to 'her death had occupied the apartment as the owner. The court below found that the defendants on December 18, 1946, agreed with the plaintiff that they would lease the apartment in question to the plaintiff “at a rental of $45.00 per month, which said rental was the maximum rent for said dwelling unit, but as a condition precedent to the said leasing of the said apartment, required the plaintiff to purchase the furniture then in said premises for the sum of Fifteen Hundred ($1500.00) Dollars and the plaintiff, pursuant to the demands and requirements of the defendants, paid over the sum of $1500.00 to the defendants who accepted and received said sum as a condition to the leasing of the said apartment.” The court also found that the transaction was “through the subterfuge and scheme of selling furniture located in said apartment and said sum was in excess of the maximum legal rents * * And the cou'rt further found that the defendants “did not obtain the written consent of the Administrator approving the sale of said 'furniture as a condition upon the leasing of said apartment.” The court concluded as a matter of law that the defendants had violated the Act and the Regulations promulgated thereunder and awarded judgment in favor of the plaintiff.
The court’s finding that defendants on December 18, 1946 sold the furniture to the plaintiff as a condition precedent to the leasing of the apartment and that they did so without the consent of the Administrator is amply supported by the record and must be accepted. But the validity of the finding that $45 per month “was the maximum rent for said dwelling Unit” on December 18, 1946, furnishes the basis for the instant controversy. On what theory the court made this finding is not shown; moreover, we think it is more in the nature of a conclusion of law than one of fact.
It is conceded that no maximum rental had been established for the apartment prior to December 18, 1946, because it had been owner-occupied by the mother of the defendants to the date of her death on October 12, 1946, and in the interim between that date and December 18, 1946, although owned by the defendants, had remained vacant.
On the date involved there was in effect Par. 4(e), 8 F. R. 7324, of the Regulations, which provided the means of determining the first maximum legal rent. See Peters v. Porter, Em.App., 157 F.2d 186,189. This Regulation, insofar as here pertinent, provides : “Section 4. Maximum Rent. Maximum rents * * * shall be: (e) First rent after effective date. For * * * (3) Housing Accommodations not rented at any time during the two months ending on the maximum rent date (March 1, 1942) nor between that date and the effective date (July 1, 1942), the first rent for su'ch accommodations after the change or the effective date as the case may be, but in no event more than the maximum rent provided for such accommodations by any order of the Administrator issued prior to September 22, 1942. Within 30 days after so renting, the landlord shall register the accommodations * *
Thus, a solution to the question under discussion depends upon the meaning to be attributed to “the first rent for such accommodations.” Does it refer to the time when an offer or promise to lease is made by the landlord, which is the situation in the instant case, or to the time when the first rent is received by the landlord?
The record discloses without controversy that no lease was executed on December 18, when the furniture was sold, which is consistent with the court’s finding that the defendants agreed that they “would lease” the apartment. We have read the testimony of the witnesses and the most which it shows is that the defendants on December 18, at and in connection with the sale of the furniture, offered to lease the apartment to the plaintiff for a term commencing January 1, 1947, at $45 per month. In a memorandum signed by the plaintiff on December 17, 1946, it is stated, “I expect that you will lease this apt. to me at $45.00 per mo. beginning Jan. 1st, 1947 for 1 yr. (Rental subject to be approved by O.P.A.) * * * I agree to execute lease accordingly if accepted as tenant.” It is true one of the defendants testified that after she received the $1500 check in payment for the furniture, the keys to the apartment were delivered to the plaintiff and that plaintiff took possession. However, no rent was paid by the plaintiff for the period from December 18 to January 1, and it was on the latter date that the defendants received the first month’s rental. It is -also shown that the defendants later refused to give plaintiff a written lease as promised, for reasons not here material.
The Regulation heretofore quoted required the defendants to register the accommodation with the Administrator within thirty days “after so renting,” and in compliance therewith defendants registered the accommodation at $45 per month on January 29, 1947. This rental has never been challenged by the Administrator acting under the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq., or the Housing Expediter acting under the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. If December 18, 1946 is determined as the date of the “first rent for such accommodations,” the registration was not in compliance with the Regulation because it was not registered with the Administrator within thirty days. It was, however, registered within thirty days of January 1, 1947, and the fact that it was not challenged by the Administrator would indicate a recognition of January 1, 1947, when the first month’s rent was received by the defendants, as the “first rent for such accommodations.”
'We find no case where the precise question before us has been decided, although that of Woods v. Dodge, 1 Cir., 170 F.2d 761, is similar. There, the accommodation in question was a furnished apartment on which no maximum rental had been fixed as it had previously been rented unfurnished. On September 11, 1946, the landlord accepted from the tenant $150 on account of rent for the month beginning September 13. On September 16, a lease was executed for one year beginning September 13, at $150 per month, payable in advance. Shortly after September 16, the landlord agreed to and did install heating equipment and increased the rental to $167.-50 per month, which thereafter was paid by -the tenant. The landlord within thirty days filed a registration of the first rental at $150 per month, and again within the thirty days filed an amended registration showing the rental to be $167.50 per month. The court -held that it was the $150 per month rental which determined the legal maximum. In this connection, the court stated, 170 F.2d at page 763, “The registration statement is merely a reporting device,” and that the landlord in order to obtain an increase must make application to the Expediter. The court on the same page also stated, “Nor can there be any doubt that the ‘first rent’ charged for the -suite, furnished, which under § 4(j) of the Rent Regulation established the maximum legal rent chargeable for it u'nless and until -changed by the Expediter, was $150 per month.” We understand the court to use the word “charged” in the same sense as “paid,” because the rent held to determine the maximum was paid at the same time that it was agreed upon.
Plaintiff’s argument in support of his contention that a maximum rent was established and in existence at the time of the furniture sale is not convincing. It is argued that the defendants by their an-, -swer “admitted -they promised plaintiff a lease at $45.00 per month.” The exact language of the answer is, “Plaintiff was promised a one-year lease from January 1, 1947 to December 31, 1947 at $45.00 per month rental, subject -to approval by the Office of Price Administration.” As already shown, there is no finding and no proof that any rental was to become effective on December 18, 1946. The defendants did nothing more than promise a lease to become operative in the future at a designated rental.
Certain definitions contained in the Regulation are inconsistent with plaintiff’s contention. Sec. 13(a) (8) provides, “ ‘Landlord’ includes an owner * * * or other person receiving or entitled to receive rent for the use or occupancy of any housing accommodations * * It appears certain that defendants did not receive any rent from the plaintiff on December 18, nor were they entitled to receive rent under their agreement to lease prior to January 1, 1947. Sec. 13(a) (9) defines the term “Tenant” as a person “entitled to the possession or to the use or occupancy of any housing accommodations.” It seems equally apparent that plaintiff was not under the terms of the agreement with the defendants on December 18, 1946 entitled either to the possession, use or occupancy of the apartment. (We think this is true notwithstanding that defendants permitted the plaintiff as a matter of grace to occupy the apartment without the payment of rent from December 18, 1946 to January 1, 1947.) Sec. 13 (a) (10) defines “Rent” as meaning the “consideration * * * demanded or received for the use or occupancy of housing accommodations * * It is also plain that the defendants on December 18, 1946 neither demanded nor received any consideration in the form of rent for the use or occupancy of the apartment. By agreement of the parties and in accordance with what subsequently transpired, the receipt of rent did not take place until January 1, 1947. Of course, it may be claimed, and no doubt properly so, that the $1500 received for the furniture was a part of the consideration received by the defendants, but this amount represents the overcharge sought to be recovered and cannot be considered as the base rental which is determinative of the maximum legal rent as a prerequisite to a determination as to whether any overcharge was made.
Plaintiff in attempting to meet this situation also argues that it was not necessary to make proof as to the maximum legal rent. The brief states, “This type of cause of action does not depend upon the existence of an established maximum rental on a given date.” This argument is predicated upon Sec. 9-B of the Regulations, which so far as here material is the same as Regulation 8, which we considered and discussed in Small v. Schultz, 7 Cir., 173 F. 2d 940, in an opinion filed simultaneously with this opinion. What we said there is equally applicable here and need not be reiterated. It is sufficient to note that a landlord’s requirement that a tenant purchase furniture as a condition to the renting of a housing accommodation without the prior consent of the Administrator, while a violation of the Regulation, does not authorize recovery by the tenant in a civil suit for damages. Such a suit must rest upon the statutory provision which authorizes an action against the landlord for an overcharge. The overcharge relied on in the instant case is the amount the plaintiff paid for the furniture but, obviously, such payment could not constitute an overcharge in the absence of a maximum legal rental in existence at the time. No such maximum legal rent having been fixed or in existence at that time, there can be no recovery.
The judgment is, therefore, reversed, with directions to dismiss the complaint.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_adminaction_is
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES v. ROBINSON
No. 86-937.
Argued November 3, 1987
Decided February 24, 1988
Rehnquist, C. J., delivered the opinion of the Court, in which White, Stevens, O’Connor, and Scalia, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, post, p. 34. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 37. Kennedy, J., took no part in the consideration or decision of the case.
Lawrence S. Robbins argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Weld, and Deputy Solicitor General Bryson.
Carolou P. Durham argued the cause for respondent. With her on the brief was Bart C. Durham III.
Chief Justice Rehnquist
delivered the opinion of the Court.
During the course of respondent Robinson’s mail fraud trial in the Middle District of Tennessee, his counsel urged in closing argument that the Government had not allowed respondent to explain his side of the story. The prosecutor during his summation informed the jury that respondent “could have taken the stand and explained it to you. . . .” App. 27. We hold that the comment by the prosecutor did not violate respondent’s privilege to be free from compulsory self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.
Following a jury trial in the United States District Court for the Middle District of Tennessee, respondent was convicted of two counts of mail fraud, 18 U. S. C. § 1341; both counts involved arson-related insurance claims. The evidence at trial showed that respondent leased a truck stop in Guthrie, Kentucky, in 1979. The business deteriorated over the next several months. Two days after respondent increased the insurance coverage on the truckstop an explosion and fire destroyed the premises. A number of unusual circumstances suggested arson. Respondent subsequently submitted an insurance claim of $80,000.
Approximately one year later, respondent’s home in Clarksville, Tennessee, was badly damaged by arson an hour after respondent had departed for California in a large truck filled with household furnishings. When interviewed by investigators, respondent denied setting fire to his house and explained that he had removed the household furnishings to take them to his daughter in California. Respondent filed with his insurance company a proof of loss claim of $200,000, including a $106,500 personal property claim. Certain property included in this claim was later discovered by authorities in respondent’s California home.
Respondent did not testify at trial. In his closing argument to the jury, the theme of respondent’s counsel was that the Government had breached its “duty to be fair.” Several different times, counsel charged that the Government had unfairly denied respondent the opportunity to explain his actions. Counsel concluded by informing the jury that respondent was not required to testify, and that although it would be natural to draw an adverse inference from respondent’s failure to take the stand, the jury could not and should not do so.
Following this closing and out of the presence of the jury, the prosecution objected to the remarks of defense counsel and contended that the defense had “opened the door.” The court agreed, stating:
"... I will tell you what, the Fifth Amendment ties the Government’s hands in terms of commenting upon the defendant’s failure to testify. But that tying of hands is not putting you into a boxing match with your hands tied behind your back and allowing him to punch you in the face.
“That is not what it was intended for and not fair. I will let you say that the defendants had every opportunity, if they wanted to, to explain this to the ladies and gentlemen of the jury.” App. 25.
Respondent did not object.
Following a short recess, the prosecutor gave his rebuttal summation. He began by stating that the Government had an obligation to “play fair” and had complied with that obligation in this case. Specifically, he stated:
“[Defense counsel] has made comments to the extent the Government has not allowed the defendants an opportunity to explain. It is totally unacceptable.
“He explained himself away on tape right into an indictment. He explained himself to the insurance investigator, to the extent that he wanted to.
“He could have taken the stand and explained it to. you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain.” Id., at 27.
Defense counsel did not object to this closing and did not request a cautionary instruction. Nonetheless, the court included in the jury instruction the admonition that “no inference whatever may be drawn from the election of a defendant not to testify.” Tr. 694.
The United States Court of Appeals for the Sixth Circuit reversed respondent’s convictions, finding that the prosecutor’s comment had “deprived the defendant ... of a fair trial under the Fifth Amendment and 18 U. S. C. §3481.” 716 F. 2d 1095, 1096, 1097 (1983) (citing Griffin v. California, 380 U. S. 609 (1965), and Wilson v. United States, 149 U. S. 60 (1893)). The court held that because the prosecution’s reference to respondent’s failure to testify had been “direct,” it did not matter that it was made in response to remarks by defense counsel. This Court granted certiorari, vacated that judgment of the Court of Appeals, and remanded for reconsideration in light of United States v. Young, 470 U. S. 1 (1985). 470 U. S. 1025 (1985). There we held that improper remarks by the prosecutor — in which he expressed his personal belief that the defendant was guilty — did not constitute reversible error under the standard properly applicable. On remand, a divided panel of the Court of Appeals reinstated its prior judgment. 794 F. 2d 1132 (1986). We granted certiorari, 479 U. S. 1083 (1987), to consider whether the remarks violated the Fifth Amendment, and if so, whether the violation constituted plain error. Because we conclude that there was no constitutional error at all, we do not reach the plain-error issue.
In Griffin v. California, supra, the defendant, who had not testified, was found guilty by a jury of first-degree murder. The prosecution had emphasized to the jury in closing argument that the defendant, who had been with the victim just prior to her demise, was the only person who could provide information as to certain details related to the murder, and yet, he had “ ‘not seen fit to take the stand and deny or explain.’” Id., at 611. In accordance with the California Constitution, the trial court had instructed the jury that although the defendant had a constitutional right not to testify, the jury could draw an inference unfavorable to the defendant as to facts within his knowledge about which he chose not to testify. Id., at 610. This Court reversed the conviction ruling that the prosecutor’s comments and the jury instruction impermissibly infringed upon the defendant’s Fifth Amendment right to remain silent:
“[Comment on the refusal to testify] is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Id., at 614 (citations omitted).
The Court said that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615.
We think that the Court of Appeals’ holding in this case rests both upon too broad a reading of Griffin and upon too restrictive a reading of the closing comments of respondent’s counsel. Taking up the second of these points first, we think the reasoning of the opinion of the Court of Appeals necessarily rests on the assumption that the references by respondent’s counsel to the Government’s failure to provide respondent an opportunity to “explain” were directed only to the period during which the offenses were being investigated, and not the trial itself. Respondent understandably mirrors this position in his brief here. While we agree that defense counsel’s remarks could have been interpreted in this manner, we do not think that an appellate court may substitute its reading of ambiguous language for that of the trial court and counsel. The colloquy quoted earlier shows that the trial court, immediately after hearing counsel’s comment, understood them to mean that the Government had not allowed respondent to explain his side of the story either before or during trial. While respondent now contends that this interpretation is incorrect, he did not offer, while the matter was being considered by the trial judge, the explanation which he now supports. If counsel’s remarks were, as respondent now argues, so clearly limited to the pretrial period, we think it unusual, to say the least, that counsel would have stood silently by when the trial court made clear its contrary interpretation. We accept what we regard as a reasonable interpretation of the remarks adopted by the trial court.
We hold that the prosecutor’s statement that respondent could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon respondent’s Fifth Amendment rights. The Court of Appeals and respondent apparently take the view that any “direct” reference by the prosecutor to the failure of the defendant to testify violates the Fifth Amendment as construed in Griffin. We decline to give Griffin such a broad reading, because we think such a reading would be quite inconsistent with the Fifth Amendment, which protects against compulsory self-incrimination. The Griffin court addressed prosecutorial comment which baldly stated to the jury that the defendant must have known what the disputed facts were, but that he had refused to take the stand to deny or explain them. We think there is considerable difference for purposes of the privilege against compulsory self-incrimination between the sort of comments involved in Griffin and the comments involved in this case.
In Baxter v. Palmigiano, 425 U. S. 308, 319 (1976), we stated that “Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt.” See also Lakeside v. Oregon, 435 U. S. 333, 338 (1978). In the present case it is evident that the prosecutorial comment did not treat the defendant’s silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, Griffin holds that the privilege against compulsory self-incrimination is violated. But where as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege.
“Under Griffin ... it is improper for either the court or the prosecutor to ask the jury to draw an adverse inference from a defendant’s silence. But I do not believe the protective shield of the Fifth Amendment should be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case.” United States v. Hasting, 461 U. S. 499, 515 (1983) (STEVENS, J., concurring) (citation omitted).
The principle that prosecutorial comment must be examined in context is illustrated by our treatment of a Fifth Amendment claim in Lockett v. Ohio, 438 U. S. 586 (1978). We quickly dismissed the argument that the prosecutor had violated the defendant’s right to remain silent when he repeatedly remarked that the evidence was uncontradicted. We did not need to decide whether such comment was generally improper, because in that case “Lockett’s own counsel had clearly focused the jury’s attention on her silence, first, by outlining her contemplated defense in his opening statement and, second, by stating to the court and jury near the close of the case, that Lockett would be the ‘next witness.’” Id., at 595. We concluded: “When viewed against this background, it seems clear that the prosecutor’s closing remarks added nothing to the impression that had already been created by Lockett’s refusal to testify after the jury had been promised a defense by her lawyer and told that Lockett would take the stand.” Ibid.; cf. United States v. Young, 470 U. S. 1 (1985); Darden v. Wainwright, 477 U. S. 168 (1986).
“[The] central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U. S. 225 (1975) . . . .” Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another. The broad dicta in Griffin to the effect that the Fifth Amendment “forbids . . . comment by the prosecution on the accused’s silence,” 380 U. S., at 615, must be taken in the light of the facts of that case. It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence. There may be some “cost” to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one.
The judgment of the Court of Appeals is
Reversed.
Justice Kennedy took no part in the consideration or decision of this case.
Respondent was acquitted on two counts of making false statements to a bank for purposes of obtaining a loan, 18 U. S. C. § 1014, and the District Court dismissed at the close of the evidence two counts of making and possessing a destructive device, 26 U. S. C. § 5861.
“By the way, all of those statements, I don’t know how many statements we heard of Mr. Robinson, they were all about the arson. Did they ever give him a chance to explain about those sorts of things, about mail fraud?
“Did they ever give this man an opportunity in their many, many statements they took at the time to say, “Well, I had two bedroom sets.’” App. 18.
“The furniture and clothing, all that clothing out on the lawn, . . -. ‘What about your clothing?’ They never gave him a chance to explain.” Id., at 19.
“Now, would you like to get indicted for that, without the Government being fair, and being able to explain, have him explain before you, members of your own community, rather than before the agents?” Ibid.
“Now, here is what the Government, to be fair with the jury, should have done. They should have taken those items in the Kentucky inventory and just proved them. Why let the defendant disprove them, give him an opportunity to explain?” Id., at 21.
“In trial of all persons charged with the commission of offense against the United States . . . the person charged shall, at his own request, be a competent witness. His failure to make such a request shall not create any presumption against him.” 18 U. S. C. § 3481.
Concomitant with the protections of the Fifth Amendment are those afforded by § 3481. See n. 3, supra. For many years, the prohibition on adverse comment concerning a defendant’s failure to testify was grounded solely in § 3481. See Wilson v. United States, 149 U. S. 60 (1893). Since that time, however, the scope of the Fifth Amendment has been expanded to encompass in large part the terrain previously occupied solely by § 3481. See Griffin v. California, 380 U. S. 609 (1965). In circumstances such as these, the two provisions are generally construed in a parallel fashion. Id., at 613-614 (quoting a passage from Wilson and concluding: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected”); see also United States v. Hasting, 461 U. S. 499, 504-508 (1983).
In United States v. Young and Darden v. Wainwright, we concluded that statements by the prosecutor which inflamed the jury, vouched for the credibility of witnesses, or offered the prosecutor’s personal opinion as to the defendant’s guilt were improper, but we held that, in context, those statements did not necessitate reversal. In contrast, a reference to the defendant’s failure to take the witness stand may, in context, be perfectly proper.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_jurisdiction
|
B
|
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, Appellee, v. Clifford Keith MERRILL, Appellant.
No. 72-1707.
United States Court of Appeals, Eighth Circuit.
Submitted Jeme 12, 1973.
Decided July 20, 1973.
Certiorari Denied Dec. 3, 1973.
See 94 S.Ct. 594.
Donald R. Shultz, Rapid City, S. D., for appellant.
William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee.
Before Mr. Justice CLARK, and HEANEY and BRIGHT, Circuit Judges.
Associate Justice Tom O. Clark, United States Supreme Court, Retired, is sitting by designation.
PER CURIAM:
Clifford Keith Merrill, Jr. was found guilty by a jury on three substantive counts of robbery of a federally insured bank and a fourth count of conspiracy to commit such robbery. Merrill challenges his conviction on six points: (1) the Government’s alleged failure to establish the District Court’s jurisdiction, i. e., that the bank was federally insured; (2) use of a transcript of Merrill’s testimony at a previous removal proceeding infringed his privilege against incrimination; (3) the introduction of a spontaneous statement made by the robbery victim at the scene as part of the res gestae; (4) the admission into evidence of a motel registration card bearing Merrill’s fingerprint; (5) the denial of Merrill’s protective motion that in the event he testified, inquiries as to prior convictions would not be permissible; and (6) the Government’s alleged failure to prove beyond a reasonable doubt that the robbery victim’s death was caused by the injuries received in the robbery. We find no merit in any of these contentions and, therefore, affirm the judgment.
1. Proof of F.D.I.C. Coverage:
The federally insured status of the Blackpipe State Bank of Martin, South Dakota, was proved by the certificate of the Federal Deposit Insurance Corporation issued to the bank in the regular course of business. This, together with testimony that the insurance premium was paid, was quite sufficient proof that the bank was federally insured under 18 U.S.C. § 2113(f). Scruggs v. United States, 450 F.2d 359 (8 Cir. 1971), cert, denied, Chambers et al. v. United States, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972).
2. Use of Merrill’s Testimony at Removal Hearing:
Portions of Merrill’s testimony at his removal hearing held in Chicago in which he said that he had never been to Martin, South Dakota, and did not “ever remember going to South or North Dakota’’ were admitted at his trial. Merrill was represented by counsel at the removal hearing and he does not claim that he was not fully and adequately warned of his rights. In fact he was clearly warned at the hearing that his testimony there might be used against him at any future trial. Merrill cites Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 247 (1968), as authority for excluding his prior testimony. There the Court held that Simmon’s testimony at a motion to suppress was not admissible at his trial on the merits. This holding protects a defendant from the necessity of foregoing one constitutional right (privilege against self-incrimination) in order to exercise another one (right to be free from unreasonable search and seizure). In the present case, however, only the privilege against self-incrimination was involved; the exercise of no other constitutional privilege was dependent on Merrill’s decision to testify at the removal hearing. Merrill’s decision was entirely one of trial strategy. The general evidentiary rule is controlling, i. e., that one’s testimony at a prior hearing is admissible in evidence against him at subsequent proceedings. Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L.Ed.2d 1047 (1968). A long line of cases holds that false exculpatory statements are properly admissible as substantive evidence as tending to show guilt. E. g., Rizzo v. United States, 304 F.2d 810, 830 (8 Cir. 1962), cert, denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962).
3. Introduction of Spontaneous Statement of O. A. Hodson:
The record indicates that in the ■ early morning of Monday, October 26, 1970 O. A. Hodson, the 88 year old President of the Blackpipe State Bank at Martin, South Dakota, and his son Richard, an officer of the bank, had breakfast at a local hotel in Martin. O. A. Hodson left the cafe before his son and proceeded to the bank.
Merrill and his stepson, Robert J. Bruce, had driven to the bank earlier in a rented car and had parked near the rear entrance of the bank. Merrill and Bruce had not expected Hodson to appear so early. When the latter had reached the entry way of the bank, Merrill, armed with a pistol, and his stepson ran up to Hodson and demanded that he open the bank door. When he refused, Merrill hit him on the head with the pistol and Hodson began to bleed profusely, whereupon Merrill took the bank keys from him, opened the door and dragged Hodson into the posting room behind the tellers’ section. He then tied Hodson’s hands behind his back and taped his feet and his mouth. When Hodson refused to give the combination of the safe to Merrill, the latter searched through the teller’s cage and drawers and took the bait money. Merrill again demanded the combination and when Hodson refused, kicked him on the buttocks, ribs, belly and back near the left hip. Hodson’s wallet was taken from him and his body was thrown in the corner against a wastepaper basket.
Merrill removed approximately $100 from the wallet and then threw it in the wastebasket. Hodson’s eyeglasses were also found in the wastebasket. Bruce and Merrill were in the bank about half an hour when Bruce became alarmed and fled the bank at the sight of Richard Hodson outside the bank. The father signalled to Richard and he, along with his brother Bruce Hodson, also a bank officer, came running up. When the tape was removed from the elder Hodson’s mouth and his hands were untied, he told his son Bruce:
“He could not believe that somebody would tie and gag another human being and then stomp him. He said, ‘Son, I didn’t think anybody would do that to a dog.’ ”
This conversation was admitted into evidence as res gestae. The record shows that the elder Hodson was nervous, apprehensive and in a state of emotional shock. He was bleeding actively from headwounds. The statements were made under the stress and strain of the moment. Because of these circumstances and the close proximity of the utterances to the event, the trial judge determined that Hodson’s statement was admissible. Such a determination rests with the sound discretion of the trial court, to be disturbed only when clearly erroneous. Roberts v. United States, 332 F.2d 892, 898 (8 Cir. 1964), cert, denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965). A careful study of the record supports the District Court’s determination.
4. Admission of Motel Registration into Evidence:
There is no merit to the contention that Merrill’s registration card with the Hot Springs, South Dakota, motel, where he and Bruce spent the night the day before the robbery, was improperly admitted into evidence. It was identified by the motel’s manager, who had personally prepared it when Merrill registered and who testified that such registration cards were kept in the ordinary course of business. A motel clerk testified that at the request of the F.B.I. she had searched the motel’s business records for the card. The cards were indexed alphabetically and Merrill’s card was found in its proper place. The card was examined by experts at the F.B.I., who were able to develop Merrill’s latent fingerprint. This proof met the test of 28 U.S.C. § 1732. See United States v. Anderson, 447 F.2d 833, 838 (8 Cir. 1971), cert, denied, 405 U.S. 918, 92 S. Ct. 943, 30 L.Ed.2d 788 (1972). In addition, Bruce testified for the Government that he and Merrill spent the night at the motel as shown on the registration card.
5. Merrill’s Protective Motion Concerning the Use of Former Convictions:
Merrill moved for a protective order prohibiting the Government from cross-examining him on his felony record in the event he took the stand. He claims that because the motion was denied, he was barred as a practical matter from taking the stand in his own defense. It is hornbook law that one who takes the stand in his own defense may be cross-examined relative to prior convictions. United States v. Scarpellino, 431 F.2d 475, 478-479 (8 Cir. 1970).
6. Proof as to the Cause of Death of O. A. Hodson:
Merrill claims that the Government failed to prove beyond a reasonable doubt that O. A. Hodson’s death resulted from injuries which he received in the bank robbery. We have carefully reviewed the record on this point and cannot agree.
Hodson was 88 years of age at the time of the robbery. Prior to the robbery he was in “excellent health,” according to his physician, Dr. Gerald Walton. Dr. Walton was a 38 year old graduate of the Southwestern Medical School at Dallas and had been in the practice at Martin, South Dakota, since 1965. He had been O. A. Hodson’s doctor since coming to Martin and had seen him frequently around town and a few times professionally. During this period Hodson was never hospitalized and suffered no serious illnesses. A routine physical examination made by Dr. Walton on January 8, 1970, indicated that Hodson’s cardiogram was “within normal limits” and his health “excellent.”
On the morning of the robbery Dr. Walton received an emergency call to come to the bank and he arrived there shortly after 8:00 a. m. He found Hod-son “lying on the floor . . . somewhat in a state of emotional shock and very nervous and apprehensive. He was bleeding actively from a head wound.” Dr. Walton had him removed by ambulance to the hospital. Examination showed no evidence of any skull fracture or bleeding under the skin. His blood pressure was 132 over 58, somewhat lower than at previous examinations but “not significantly low.” His respiration and temperature were normal, but his pulse showed “some irregularity.” Tests indicated pus cells in his urine which were related more to trauma than to infection. He had developed a cardiac irregularity with “some weakness and dizziness for several days and ran a persistent elevated blood count, white blood cells . . . ” He was placed on antibiotics “. . . because of his age and the wounds that he had received on the head.” He was discharged from the hospital on October 30 “to home rest.” At the time he was “somewhat weak, still having some cardiac irregularity but his wounds seemed to be healing well at that time.” There was some swelling in the left hip area along with some bruises in the buttocks and hip. Dr. Walton found the heart irregularity to be the result of stress associated with the robbery assault. An examination on November 12 at Dr. Walton’s office revealed an anemic condition with elevated white cell count. Diarrhea had also developed and Mr. Hodson experienced slight confusion and vertigo for several days. Mr. Hodson was returned to the hospital on November 19, 1970, with acute diarrhea and acute urinary retention. He was catheterized and 2000 c.c.’s of urine were removed from the bladder. An earlier urinalysis on October 27 “indicated there was evidence of injury or trauma to the urinary tract.” Hodson began to spike fever on the day of admission to the hospital. The doctor attributed this condition to the urinary tract obstruction and infection in turn related to difficulty in urination and treatment for the diarrhea and to the “possible injury.” During hospitalization Hodson developed fluid in the lungs because his heart was not sufficiently pumping the blood fluid through his system. A tracheostomy was performed on November 25 to facilitate suctioning of the lungs and assist breathing. On November 28 Mr. Hodson suffered a cardiac arrest and died. Dr. Walton found that the causes of death “were related to his initial injuries [suffered at the bank robbery] and complications that developed thereafter. An autopsy of Mr. Hodson by Dr. Freeman revealed “large black and blue areas over the dorsal surface of the hands,” indicative of intravenous infusion; lacerations on the top of the head which were healed; heavier lungs than usual with probable areas of pneumonia; a blood clot in the main artery of the heart: “a normal size heart and remarkably good for a man of his age”; liver within normal weight range; kidneys were normal; bladder was discolored or red; a scar was found in the cerebellum of four weeks or more duration. Dr. Freeman concluded that the cause of death was “hospitalization leading to — with bed rest — leading to bronchial pneumonia and pulmonary em-bolus.”
The cause of death issue was properly submitted to the jury and it found against Merrill. Viewing the evidence, as we must, in the light most favorable to the prosecution, we believe that the Government clearly sustained its burden of proof. Evidence of a chain of causation leading from injuries suffered in the robbery assault to Hodson’s death was strong and there were no missing links in that chain.
In the light of all of these considerations the judgment is affirmed.
. Merrill asserts that Dr. Walton could not relate the infection, urinary retention or diarrhea to the blows received at the bank robbery. In his direct testimony Dr. Walton did say that “it would be impossible to say specifically that the infection came about as a result of the blows.” However, on cross-examination he was shown the October 27 urinalysis which he said:
“I hadn’t seen for some time” and this did indicate injury or trauma to the urinary tract. This in turn brought on difficulty in urination and infection. Merrill also claims that there was no evidence of bed rest. The record, however, shows continuous bed rest during two periods of hospitalization together with “home rest.”
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_applfrom
|
E
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES ex rel. EMANUEL v. JAEGER, U. S. Marshal.
No. 175.
Circuit Court of Appeals, Second Circuit
Feb. 10, 1941.
Max Shlivek, of New York City (Shlivek & Brin and Saul S. Brin, all of New York City, on the brief), for relator-appellant.
Nathan Weidenbaum, of New York City (Benjamin F. Steinberg, of New York City, on the brief), for respondent-appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The relator herein is the president and sole stockholder of Martin Clothes, Inc., which in the fall of 1937 filed a petition in the court below for reorganization under the then § 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. Proceedings in connection with that reorganization and involving one Frank Raskin have now led to the judgment of commitment for contempt against the relator, from which he seeks relief on this writ of habeas corpus. Raskin was not originally, and seemingly never formally, a party to the reorganization proceedings; his interest arises, initially at least, by virtue of a written agreement made November 24, 1937, between him and the relator, whereby he agreed to furnish the necessary cash to consummate the reorganization. Relator’s commitment was occasioned by his failure to comply with an order of the bankruptcy court that he refund to Raskin the money advanced by the latter and pay certain expenses in connection therewith. He attacks this order as beyond the jurisdiction of the court in bankruptcy.
The agreement of November 24, 1937, provided that Raskin was to deposit $2,500 with the clerk of court to provide a 30 per cent cash payment to creditors as soon as a plan of reorganization to that effect should be accepted and confirmed; that relator’s stock, to be held in escrow until confirmation of the plan, should then be delivered to Raskin to hold until relator had reimbursed him, and thereafter to be returned to relator; and that until Raskin was paid, relator should work for the business at a fair and reasonable salary. After it was made, Raskin made the required deposit with the clerk, though only $1,500 was his own money, since $1,000 was supplied by relator’s father-in-law, Feldman. Thereafter the plan of reorganization was modified to substitute for the 30 per cent cash settlement with creditors a combined cash and note settlement of 20 and 10 per cent respectively, with notes of 5 per cent each of the debtor, endorsed by relator, relator’s wife, and Feldman, payable March 20 and April 20, 1938, respectively. The creditors accepted the amended plan and the court confirmed it on February 3, 1938. In its order of confirmation, the court directed the clerk to pay to the debtor the money theretofore deposited “for the purpose of debtor making distribution and payments to creditors under said Amended Plan of Reorganization and under this order.” Relator asserts, and it is not challenged, that debtor, upon receipt of the deposit, distributed it to the creditors as ordered, delivered the notes as required and paid them when they came due, and paid priority claims, as well as administration expenses, in full in accordance with the plan.
On February 15, 1938, Raskin applied to the district court for a resettlement of the confirmation order, on the grounds that he had not been served with a copy of the proposed order, and that the changes in the plan, described above, had been made without his consent. The court referred his application to a special master to hear and report. After extensive hearings the master reported, and the court on December 6, 1938, made an order, which went quite beyond a mere resettlement of the confirmation order. In this order the debtor was directed to pay to Raskin $1,500, representing the sum advanced by him, $125 representing an additional loan, and $115 for a copy of the stenographic record obtained for the special master, and to the special master, court reporters, and Raskin’s attorney fees in the amount of $1,302.50, or a total of $3,042.50. The quite inadequate record before us does not explain why this order was passed at a time when the creditors had apparently received the full 30 per cent payment for which Raskin had stipulated.
Thereafter Raskin moved for a resettlement of this order so that it might include a direction to require not only the debtor, but also the relator individually, to make the stated payments. Relator asserts that this step was taken only after an attempt to have him adjudged in- contempt for failure to make the payments had failed because the court held that the original order applied only to the debtor corporation. The new application was granted on April 17, 1939, in a resettled order wherein relator individually and the debtor corporation were severally and jointly directed to make the said payments, and were further directed to deliver to Raskin “the property, books, and papers of the Debtor herein.” A motion to punish them for contempt, originally returnable on July 12, 1939, eventually resulted in an order on September 26, 1939, which found them both in contempt, and provided that as punishment they “were jointly and severally fined the sum of $3,042.50,” relator, however, to be permitted to purge himself by paying the amount of the fine at the rate of not less than $40 a month. Relator made payments amounting to only $140. On August 10, 1940, the court passed its order directing the United States marshal to apprehend relator and to confine him in the Federal House of Detention until he paid the balance of his fine and the marshal’s expenses, or “until the further orders of this court.”
Between the entry of the contempt order and the commitment order there were further proceedings in the way of motions by relator for modification of the order, for reargument, and for the taking of testimony on the subject of the delivery of the books, records, and papers. These motions were all denied. Whether the books, records, and papers remained undelivered is not clear; the commitment order, while reciting the earlier order which included them, is in terms based upon relator’s failure to purge himself of contempt by paying his fine. Again on June 5, 1940, just after the court had ruled that it would order commitment unless the arrears were paid within two weeks, relator moved for a reargument of all the applications by Raskin and all the prior orders. This motion the court denied, as relator alleges, “in a memorandum decision, holding that he did have jurisdiction over the proceedings instituted by Frank Raskin.” No appeal was taken from any of these orders of the bankruptcy court. The petition for this writ came before another district judge, who expressed doubt as to the jurisdiction of the bankruptcy court over payments of money required by the agreement, but thought that the provision to turn over the stock and papers was sufficient to give the court jurisdiction over the whole subject matter.
From the brief record herein, limited in substance to the facts set forth in relator’s petition and an affidavit filed by Raskin in the earlier proceedings, somewhat supplemented by the recitals of the commitment order, we are left in the dark as to the legal basis for the orders of the bankruptcy court. It is unfortunate that an appeal involving personal liberty should be presented on so scanty a record. The facts before us indicate error in the action taken against the relator; our real problem is to determine whether or not this amounts to a jurisdictional defect open to collateral attack. We address ourselves first to the resettled order of April 17, 1939, for that is the first command directed against the relator personally.
We have not before us either the application for that order or the complete order itself. Since the question of jurisdiction had previously been raised, it would appear that the court passed upon it; at any rate it did so upon the application for reargument in 1940 and found in favor of its jurisdiction. Just the grounds upon which it went are not clear. The arguments and allegations of the parties seem to suggest one or both of two grounds: (1) enforcement of the original agreement with Raskin, and (2) identity of relator with the debtor corporation of which he was president and sole stockholder. We do not believe either ground singly^ or both together are adequate to support the order so far as it required relator to make refund of the loan to Raskin and to pay the expenses in connection therewith. There would be also requisite a finding that relator himself had had possession of the funds in question. The -finding said to have been made that the debtor corporation “was only a medium or a conduit used by” relator seems to be nothing more than a conclusion as to this form of legal and business device which in itself discloses nothing sinister. Corporations at best are only mediums or conduits whereby individuals carry on their affairs. And a violation of the agreement, so far as relator is concerned, is only a contractual breach on a matter collateral to the bankruptcy and hence not within its authority. Nixon v. Michaels, 8 Cir., 38 F.2d 420; In re Railroad Supply Co., 7 Cir., 78 F.2d 530; Smith v. Chase National Bank, 8 Cir., 84 F.2d 608.
*It is said that the plan of reorganization, while not referring to Raskin by name, did, however, recognize the obligation to him incurred by the debtor and his rights in the stock, the books, and the papers of debtor. That might well justify an order for a refund on non-consummation of the plan or for delivery of physical things, and the bankruptcy court surely retained jurisdiction under former § 77B, sub. a, to revoke its confirmation of the original plan twelve days after it had been had. True, it is not clear why the essential features of the agreed-upon plan had not been carried out, nor how the lender could get back both his money and the security for it; but that would appear to be at most error, not a defect of jurisdiction. And since it is natural to expect the president and sole stockholder of a corporation to be able to turn over its physical assets, an order as to them might go against thp president ; at least we held in Re Arctic Leather Garment Co., 2 Cir., 89 F.2d 871, that lack of finding of the officer’s possession of corporate bonds and his own stock was only formal and did not vitiate a turnover order. See also In re Byrd Coal Co., 2 Cir., 83 F.2d 190, 192.
But even if this part of the order is justified, it is not the part upon which the actual commitment was based; and in any event, where an order is partly within and partly without the court’s jurisdiction, the part without is void. In re Bonner, 151 U.S. 242, 257, 14 S.Ct. 323, 38 L. Ed. 149. The remainder of the order, as we view it, must assume that relator had possession of the deposit received from the court. That appears to be contrary to the statement that debtor received it and distributed it to the creditors, presumably long before this hearing, which came a year and a half after the original confirmation order. It involves in substance a holding that relator had taken trust funds in violation of the court’s order. If still open, we should certainly be loath so to hold on the basis of anything appearing in this record. True, Raskin does make charges that debtor’s store was closed, and all the merchandise and fixtures removed, while the hearings were proceeding before the master, and again that relator at some time misappropriated more than $1,100 over a period of six weeks after the trustee had been removed. These apparently unconnected allegations are tied together in respondent’s brief to show that they referred to the physical assets of the corporation and had no connection with the fund for the cash payment to creditors. We have already referred to the “conduit” theory; we see nothing else affording any justification for such a conclusion.
Nevertheless it appears on the authorities that, however harsh may be the result as to the relator herein, that issue is not open to collateral attack. What we have said indicates that in an appropriate case the bankruptcy court could have made the order in question. It is now well settled that on contempt proceedings no attack can lie made on the regularity, correctness, or validity of the original order. Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419, affirming In re Oriel, 2 Cir., 23 F.2d 409, 413; In re Siegler, 2 Cir., 31 F.2d 972; In re Arctic Leather Garment Co., supra; Id., 2 Cir., 106 F.2d 99; cases collected 3 Moore’s Collier on Bankruptcy, 14th Ed., 535-537. A like rule applies to habeas corpus proceedings; they cannot be used to review, as on appeal, the court action which has led to the commitment order. Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293, affirming Ex parte Craig, 2 Cir., 282 F. 138; Ex parte Kearney, 7 Wheat. 38, 20 U.S. 38, 5 L.Ed. 391; United States ex rel. Paleais v. Moore, 2 Cir., 294 F. 852.
Relator has appealed from neither the commitment nor the contempt order; he therefore can raise here the issue of jurisdiction only. Yet he had opportunity to and did raise that issue in the prior proceedings, and the court found against him. Even if we assume that the court was acting upon erroneous grounds as indicated above, yet Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104, makes it clear that the matter is settled against collateral attack. There the issue whether or not the bankruptcy court could release a guarantor in reorganization from his guaranty was decided by the Court in favor of its jurisdiction. Yet the Supreme, Court holds that, even if that ruling be erroneous, and the matter without the power of a bankruptcy court (In re Diversey Bldg. Corp., 7 Cir., 86 F.2d 456; In re Nine North Church Street, Inc., 2 Cir., 82 F.2d 186), the issue cannot be raised collaterally. The situation seems the same as that here presented. Later decisions of the Court reiterate and reinforce this conclusion. Jackson v. Irving Trust Co., Jan. 6, 1941, 61 S.Ct. 326, 85 L.Ed. —; Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329; cf. 40 Col.L.Rev. 1006, 1008; 53 Harv.L. Rev. 652, 659; 49 Yale L.J. 959; and see also Ripperger v. A. C. Allyn & Co., 2 Cir., 113 F.2d 332, certiorari denied 61 S. Ct. 136, 85 L.Ed. -; Commercial Cable Staffs’ Ass’n v. Lehman, 2 Cir., 107 F.2d 917, 921.
Hence we conclude that the commitment order was authority, not subject to attack herein, for the marshal to hold the relator in his custody. The dismissal of this writ must therefore be affirmed. It would seem, however, that the relator is not wholly without remedy. The recitals herein indicate that the bankruptcy court retained jurisdiction' of all proceedings in connection with the reorganization after it had assumed to pass upon the plan. It may be that jurisdiction once more to resettle the original turnover order exists. Since, so far as the record shows, the issue of relator’s possession of the money. has never been tried out, as his various objections were apparently based on a misapprehension of his legal rights, it would seem appropriate for the court to reconsider that issue if it still retains jurisdiction so to do. In any event the original contempt order was of a continuing nature and the order of commitment was expressly made subject to further orders of the court. It would seem, therefore, that the bankruptcy court may properly be appealed to for action in the light of the considerations we have herein set forth. Present inability to perform has been considered an appropriate defense to a contempt proceeding. Oriel v. Russell, supra; In re Byrd Coal Co., 2 Cir., 83 F.2d 256; 3 Gerdes on Corporate Reorganizations § 1274; cf. United States ex rel. Paleais v. Moore, supra; In re Roxy Liquor Corp., 7 Cir., 107 F.2d 533. Under the circumstances it seems appropriate that no costs be taxed on this appeal, and we so direct.
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_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
In re GLANTZ. B. J. HARRISON MFG. CO. v. BROMBERG.
No. 266.
Circuit Court of Appeals, Second Circuit.
March 6, 1933.
CHASE, Circuit Judge, dissenting.
Arthur F. Curtis, of Delhi, N. Y. (Sidney Fertig, of New York City, of counsel), for trustee.
Irving I. Goldsmith, of New York City, for Harry Bromberg.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
The B. J. Harrison Manufacturing Company was owned by Charles Glantz, against whom a petition in involuntary bankruptcy was filed and for whom the appellee has been appointed trustee. The property of the bankrupt consisted of a factory building, machinery, stocks, materials, accounts receivable, and patent rights. After tho appointment of the trustee, he received two offers for the purchase of the assets, one of $6,500, by the appellant, and another of $8,000, by John F. Kuhn. After the offers were received, the referee in bankruptcy gave formal written notice to the creditors of the bankrupt that such offers had been made. The notice called for a meeting of the creditors at the plant at Arkville, Delaware county, on the 14th of May, 1932, “to consider said offer, also to consider any other offers which may ho [made] before or at said meeting.” At this meeting, tho appellant increased Ms hid to $10,100, which was higher than all other bids. There was full opportunity for bidding. Two days later, a petition for confirmation of tho sale was filed and notice thereof was sent to the creditors. A few days after service of the notice, and before the 31st of May, 1932, when the matter was set for a hearing, Kuhn increased his offer to $11,500. At the hearing, the trustee communicated to the referee, and the creditors present, this increased offer of Kuhn, and the majority in number opposed the confirmation because a Mgher price could be procured. The final confirmation was adjourned until tho 20th of June, 1932, when the trustee and representatives of tho majority of the creditors again considered bids and approved the appellant’s. Tho referee stated that the sale was fairly conducted and the price offered by the appellant was fair, and that there had been no misrepresentations at the time of acceptance of the appellant’s bid, and he confirmed the sale. On July 7, 1932, the referee made an order accordingly. A petition to reviso was filed in the District Court, and the order of confirmation was reversed, and the property was sold a second time at private sale, August 22, 1932, to John F. Kuhn for $12,750.
The District Judge grounded his decision upon the failure to comply with the provisions of subdivision 2 of General Order XVIII (11 USCA § 53), which provides that upon an application to the court the trustee may be authorized to sell any specific portion of the bankrupt’s estate at private sale, in whieh case he shall keep an accurate account of each article sold and the price received therefor and to whom sold, which account he shall file at onee with the referee. The court below held that this was a private sale and that no application or order was made therefor. This was a jurisdictional requirement, and a private sale may not be had without it. The court said: “There seems to be no eases holding that such requirement may be dispensed with.”
It appears that the receiver attempted to sell the business and failed. The trustee, aided by the receiver and the creditors, had solicited purchasers and had but two bids. It was thought most advantageous by the creditors to have a private sale, rather than a publie sale, and the creditors demanded an authorization to the trustee to negotiate with prospective purchasers. The referee states it was the unanimous opinion that a publie auction should not be undertaken but a private sale had, and he so recommended. The trustee thereupon asked for a private sale, whieh was granted, as the findings of fact indicated. Staley v. Dwyer, 29 F.(2d) 982 (C. C. A. 8); Baker v. Sproul (D. C.) 37 F.(2d) 937, affirmed 37 F.(2d) 938 (C. C. A. 3).
A notice formally directing a meeting of the creditors to consider the bids on May 14, 1932, 'was a sufficient order to proceed with the private sale of the property. Later a meeting was held, the offers considered, and the offer of the appellant accepted. The final act of the referee in confirming this sale to the appellant and the order entered thereon leaves no doubt we think as to the compliance with subdivision 2, General Order XVIII.
The only objection appears to be to the form and not the substance of the order. Nothing in General Order XVIII or in any of the rules malíes this order of sale insufficient. Rule 12 of the Rules of the Northern District of New York requires petition to be written or printed. Collier on Bankruptcy (13th Ed. p. 175), speaking of publie auctions and private sales and referring to General Order XVIII says: “At the same time, in the face of the mandatory provisions of § 58-a (4), this rule will be cautiously applied, and only where the moving papers show clearly either a necessity for immediate sale or a fair and adequate offer.” We regard the proceedings here as a sufficient compliance with this rule. There was just as complete and definite a record made of the proceedings and order therefor as was necessary under the circumstances. The facts satisfied the referee that a private sale was advisable; the trustee asked for such sale, and it was authorized. The purpose of the General Order No. XVIII was complied with; the creditors, fully advised, approved.
Order reversed.
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:
|
sc_issue_8
|
14
|
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.
WEYERHAEUSER COMPANY, Petitioner
v.
UNITED STATES FISH AND WILDLIFE SERVICE, et al.
No. 17-71.
Supreme Court of the United States
Argued Oct. 1, 2018.
Decided Nov. 27, 2018.
Timothy S. Bishop, Chicago, IL, for Petitioner.
Edwin S. Kneedler, Washington, D.C., for Respondents.
Damien M. Schiff, Anthony L. François, Oliver J. Dunford, Pacific Legal Foundation, Sacramento, CA, Jonathan Wood, Pacific Legal Foundation, Arlington VA, Mark Miller, Christina M. Martin, Pacific Legal Foundation, Palm Beach Gardens, FL, Edward B. Poitevent, II, Stone Pigman Walther, Wittman LLC, New Orleans, LA, for Respondents Markle Interests, LLC; P&F Lumber Company 2000, LLC; and PF Monroe Properties, LLC.
Richard C. Stanley, Stanley, Renter, Ross, Thornton & Alford, LLC, New Orleans, LA, James R. Johnston, Zachary R. Hiatt, Weyerhaeuser Company, Seattle, WA, Timothy S. Bishop, Chad M. Clamage, Jed W. Glickstein, Jill M. Fortney, Mayer Brown LLP, Chicago, IL, for Petitioner.
John T. Buse, Center for Biological Diversity, Oakland, CA, Collette L. Adkins, Center for Biological Diversity, Circle Pines, MN, David T. Goldberg, Pamela S. Karlan, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, for Intervenor-Respondents Center for Biological Diversity and Gulf Restoration Network.
Noel J. Francisco, Solicitor General, Jeffrey H. Wood, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Jeffrey E. Sandberg, Assistant to the Solicitor General, Andrew C. Mergen, Mary Hollingsworth, J. David Gunter II, Attorneys, Department of Justice, Washington, D.C., for Federal Respondents.
Chief Justice ROBERTS delivered the opinion of the Court.
The Endangered Species Act directs the Secretary of the Interior, upon listing a species as endangered, to also designate the "critical habitat" of the species. A group of landowners whose property was designated as critical habitat for an endangered frog challenged the designation. The landowners urge that their land cannot be critical habitat because it is not habitat, which they contend refers only to areas where the frog could currently survive. The court below ruled that the Act imposed no such limitation on the scope of critical habitat.
The Act also authorizes the Secretary to exclude an area that would otherwise be included as critical habitat, if the benefits of exclusion outweigh the benefits of designation. The landowners challenged the decision of the Secretary not to exclude their property, but the court below held that the Secretary's action was not subject to judicial review.
We granted certiorari to review both rulings.
I
A
The amphibian Rana sevosa is popularly known as the "dusky gopher frog"-"dusky" because of its dark coloring and "gopher" because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. Final Rule To List the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog as Endangered, 66 Fed.Reg. 62993 (2001) (Final Listing). It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Markle Interests, LLC v. United States Fish and Wildlife Serv., 827 F.3d 452, 458, n. 2 (C.A.5 2016). Less endearingly, it also secretes a bitter, milky substance to deter would-be diners. Brief for Intervenor-Respondents 6, n. 1.
The frog spends most of its time in burrows and stump holes located in upland longleaf pine forests. In such forests, frequent fires help maintain an open canopy, which in turn allows vegetation to grow on the forest floor. The vegetation supports the small insects that the frog eats and provides a place for the frog's eggs to attach when it breeds. The frog breeds in "ephemeral" ponds that are dry for part of the year. Such ponds are safe for tadpoles because predatory fish cannot live in them. Designation of Critical Habitat for Dusky Gopher Frog, 77 Fed.Reg. 35129-35131 (2012) (Designation).
The dusky gopher frog once lived throughout coastal Alabama, Louisiana, and Mississippi, in the longleaf pine forests that used to cover the southeast. But more than 98% of those forests have been removed to make way for urban development, agriculture, and timber plantations. The timber plantations consist of fast-growing loblolly pines planted as close together as possible, resulting in a closed-canopy forest inhospitable to the frog. The near eradication of the frog's habitat sent the species into severe decline. By 2001, the known wild population of the dusky gopher frog had dwindled to a group of 100 at a single pond in southern Mississippi. That year, the Fish and Wildlife Service, which administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior, listed the dusky gopher frog as an endangered species. Final Listing 62993-62995; see 87 Stat. 886, 16 U.S.C. § 1533(a)(1).
B
When the Secretary lists a species as endangered, he must also designate the critical habitat of that species. § 1533(a)(3)(A)(i). The ESA defines "critical habitat" as:
"(i) the specific areas within the geographical area occupied by the species ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
"(ii) specific areas outside the geographical area occupied by the species ... upon a determination by the Secretary that such areas are essential for the conservation of the species." § 1532(5)(A).
Before the Secretary may designate an area as critical habitat, the ESA requires him to "tak[e] into consideration the economic impact" and other relevant impacts of the designation. § 1533(b)(2). The statute goes on to authorize him to "exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of [designation]," unless exclusion would result in extinction of the species. Ibid.
A critical-habitat designation does not directly limit the rights of private landowners. It instead places conditions on the Federal Government's authority to effect any physical changes to the designated area, whether through activities of its own or by facilitating private development. Section 7 of the ESA requires all federal agencies to consult with the Secretary to "[e]nsure that any action authorized, funded, or carried out by such agency" is not likely to adversely affect a listed species' critical habitat. 16 U.S.C. § 1536(a)(2). If the Secretary determines that an agency action, such as issuing a permit, would harm critical habitat, then the agency must terminate the action, implement an alternative proposed by the Secretary, or seek an exemption from the Cabinet-level Endangered Species Committee. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ; 50 C.F.R. 402.15 (2017).
Due to resource constraints, the Service did not designate the frog's critical habitat in 2001, when it listed the frog as endangered. Designation, at 35118-35119. In the following years, the Service discovered two additional naturally occurring populations and established another population through translocation. The first population nonetheless remains the only stable one and by far the largest. Dept. of Interior, U.S. Fish and Wildlife Serv., Dusky Gopher Frog (Rana sevosa ) Recovery Plan iv, 6-7 (2015).
In 2010, in response to litigation by the Center for Biological Diversity, the Service published a proposed critical-habitat designation. Designation, at 35119. The Service proposed to designate as occupied critical habitat all four areas with existing dusky gopher frog populations. The Service found that each of those areas possessed the three features that the Service considered "essential to the conservation" of the frog and that required special protection: ephemeral ponds; upland open-canopy forest containing the holes and burrows in which the frog could live; and open-canopy forest connecting the two. But the Service also determined that designating only those four sites would not adequately ensure the frog's conservation. Because the existing dusky gopher frog populations were all located in two adjacent counties on the Gulf Coast of Mississippi, local events such as extreme weather or an outbreak of an infectious disease could jeopardize the entire species. Designation of Critical Habitat for Mississippi Gopher Frog, 75 Fed.Reg. 31394 (2010) (proposed 50 C.F.R. Part 17).
To protect against that risk, the Service proposed to designate as unoccupied critical habitat a 1,544-acre site in St. Tammany Parish, Louisiana. The site, dubbed "Unit 1" by the Service, had been home to the last known population of dusky gopher frogs outside of Mississippi. The frog had not been seen in Unit 1 since 1965, and a closed-canopy timber plantation occupied much of the site. But the Service found that the site retained five ephemeral ponds "of remarkable quality," and determined that an open-canopy forest could be restored on the surrounding uplands "with reasonable effort." Although the uplands in Unit 1 lacked the open-canopy forests (and, of course, the frogs) necessary for designation as occupied critical habitat, the Service concluded that the site met the statutory definition of unoccupied critical habitat because its rare, high-quality breeding ponds and its distance from existing frog populations made it essential for the conservation of the species. Designation, at 35118, 35124, 35133, 35135.
After issuing its proposal, the Service commissioned a report on the probable economic impact of designating each area, including Unit 1, as critical habitat for the dusky gopher frog. See 16 U.S.C. § 1533(b)(2) ; App. 63. Petitioner Weyerhaeuser Company, a timber company, owns part of Unit 1 and leases the remainder from a group of family landowners. Brief for Petitioner 16. While the critical-habitat designation has no direct effect on the timber operations, St. Tammany Parish is a fast-growing part of the New Orleans metropolitan area, and the landowners have already invested in plans to more profitably develop the site. App. 80-83. The report recognized that anyone developing the area may need to obtain Clean Water Act permits from the Army Corps of Engineers before filling any wetlands on Unit 1. 33 U.S.C. § 1344(a). Because Unit 1 is designated as critical habitat, Section 7 of the ESA would require the Corps to consult with the Service before issuing any permits.
According to the report, that consultation process could result in one of three outcomes. First, it could turn out that the wetlands in Unit 1 are not subject to the Clean Water Act permitting requirements, in which case the landowners could proceed with their plans unimpeded. Second, the Service could ask the Corps not to issue permits to the landowners to fill some of the wetlands on the site, in effect prohibiting development on 60% of Unit 1. The report estimated that this would deprive the owners of $20.4 million in development value. Third, by asking the Corps to deny even more of the permit requests, the Service could bar all development of Unit 1, costing the owners $33.9 million. The Service concluded that those potential costs were not "disproportionate" to the conservation benefits of designation. "Consequently," the Service announced, it would not "exercis[e][its] discretion to exclude" Unit 1 from the dusky gopher frog's critical habitat. App. 188-190.
C
Weyerhaeuser and the family landowners sought to vacate the designation in Federal District Court. They contended that Unit 1 could not be critical habitat for the dusky gopher frog because the frog could not survive there: Survival would require replacing the closed-canopy timber plantation encircling the ponds with an open-canopy longleaf pine forest. The District Court nonetheless upheld the designation. Markle Interests, LLC v. United States Fish and Wildlife Serv ., 40 F.Supp.3d 744 (E.D.La.2014). The court determined that Unit 1 satisfied the statutory definition of unoccupied critical habitat, which requires only that the Service deem the land "essential for the conservation [of] the species." Id., at 760.
Weyerhaeuser also challenged the Service's decision not to exclude Unit 1 from the dusky gopher frog's critical habitat, arguing that the Service had failed to adequately weigh the benefits of designating Unit 1 against the economic impact. In addition, Weyerhaeuser argued that the Service had used an unreasonable methodology for estimating economic impact and, regardless of methodology, had failed to consider several categories of costs. Id., at 759. The court approved the Service's methodology and declined to consider Weyerhaeuser's challenge to the decision not to exclude. See id ., at 763-767, and n. 29.
The Fifth Circuit affirmed. 827 F.3d 452. The Court of Appeals rejected the suggestion that the definition of critical habitat contains any "habitability requirement." Id., at 468. The court also concluded that the Service's decision not to exclude Unit 1 was committed to agency discretion by law and was therefore unreviewable. Id., at 473-475. Judge Owen dissented. She wrote that Unit 1 could not be "essential for the conservation of the species" because it lacked the open-canopy forest that the Service itself had determined was "essential to the conservation" of the frog. Id., at 480-481.
The Fifth Circuit denied rehearing en banc. Markle Interests, LLC v. United States Fish and Wildlife Serv ., 848 F.3d 635 (2017). Judge Jones dissented, joined by Judges Jolly, Smith, Clement, Owen, and Elrod. They reasoned that critical habitat must first be habitat, and Unit 1 in its present state could not be habitat for the dusky gopher frog. Id., at 641. The dissenting judges also concluded that the Service's decision not to exclude Unit 1 was reviewable for abuse of discretion. Id., at 654, and n. 21.
We granted certiorari to consider two questions: (1) whether "critical habitat" under the ESA must also be habitat; and (2) whether a federal court may review an agency decision not to exclude a certain area from critical habitat because of the economic impact of such a designation. 583 U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (2018).
II
A
Our analysis starts with the phrase "critical habitat." According to the ordinary understanding of how adjectives work, "critical habitat" must also be "habitat." Adjectives modify nouns-they pick out a subset of a category that possesses a certain quality. It follows that "critical habitat" is the subset of "habitat" that is "critical" to the conservation of an endangered species.
Of course, "[s]tatutory language cannot be construed in a vacuum," Sturgeon v. Frost, 577 U.S. ----, ----, 136 S.Ct. 1061, 1070, 194 L.Ed.2d 108 (2016) (internal quotation marks omitted), and so we must also consider "critical habitat" in its statutory context. Section 4(a)(3)(A)(i), which the lower courts did not analyze, is the sole source of authority for critical-habitat designations. That provision states that when the Secretary lists a species as endangered he must also "designate any habitat of such species which is then considered to be critical habitat." 16 U.S.C. § 1533(a)(3)(A)(i) (emphasis added). Only the "habitat" of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.
The Center for Biological Diversity contends that the statutory definition of critical habitat is complete in itself and does not require any independent inquiry into the meaning of the term "habitat," which the statute leaves undefined. Brief for Intervenor-Respondents 43-49. But the statutory definition of "critical habitat" tells us what makes habitat "critical," not what makes it "habitat." Under the statutory definition, critical habitat comprises areas occupied by the species "on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection," as well as unoccupied areas that the Secretary determines to be "essential for the conservation of the species." 16 U.S.C. § 1532(5)(A). That is no baseline definition of habitat-it identifies only certain areas that are indispensable to the conservation of the endangered species. The definition allows the Secretary to identify the subset of habitat that is critical, but leaves the larger category of habitat undefined.
The Service does not now dispute that critical habitat must be habitat, see Brief for Federal Respondents 23, although it made no such concession below. Instead, the Service argues that habitat includes areas that, like Unit 1, would require some degree of modification to support a sustainable population of a given species. Id ., at 27. Weyerhaeuser, for its part, urges that habitat cannot include areas where the species could not currently survive. Brief for Petitioner 25. (Habitat can, of course, include areas where the species does not currently live, given that the statute defines critical habitat to include unoccupied areas.) The Service in turn disputes Weyerhaeuser's premise that the administrative record shows that the frog could not survive in Unit 1. Brief for Federal Respondents 22, n. 4.
The Court of Appeals concluded that "critical habitat" designations under the statute were not limited to areas that qualified as habitat. See 827 F.3d, at 468 ("There is no habitability requirement in the text of the ESA or the implementing regulations."). The court therefore had no occasion to interpret the term "habitat" in Section 4(a)(3)(A)(i) or to assess the Service's administrative findings regarding Unit 1. Accordingly, we vacate the judgment below and remand to the Court of Appeals to consider these questions in the first instance.
B
Weyerhaeuser also contends that, even if Unit 1 could be properly classified as critical habitat for the dusky gopher frog, the Service should have excluded it from designation under Section 4(b)(2) of the ESA. That provision requires the Secretary to "tak[e] into consideration the economic impact ... of specifying any particular area as critical habitat" and authorizes him to "exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat." 16 U.S.C. § 1533(b)(2). To satisfy its obligation to consider economic impact, the Service commissioned a report estimating the costs of its proposed critical-habitat designation. The Service concluded that the costs of designating the proposed areas, including Unit 1, were not "disproportionate" to the conservation benefits and, "[c]onsequently," declined to make any exclusions.
Weyerhaeuser claims that the Service's conclusion rested on a faulty assessment of the costs and benefits of designation and that the resulting decision not to exclude should be set aside. Specifically, Weyerhaeuser contends that the Service improperly weighed the costs of designating Unit 1 against the benefits of designating all proposed critical habitat, rather than the benefits of designating Unit 1 in particular. Weyerhaeuser also argues that the Service did not fully account for the economic impact of designating Unit 1 because it ignored, among other things, the costs of replacing timber trees with longleaf pines, maintaining an open canopy through controlled burning, and the tax revenue that St. Tammany Parish would lose if Unit 1 were never developed. Brief for Petitioner 53-54. The Court of Appeals did not consider Weyerhaeuser's claim because it concluded that a decision not to exclude a certain area from critical habitat is unreviewable.
The Administrative Procedure Act creates a "basic presumption of judicial review [for] one 'suffering legal wrong because of agency action.' " Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (quoting 5 U.S.C. § 702 ). As we explained recently, "legal lapses and violations occur, and especially so when they have no consequence. That is why this Court has so long applied a strong presumption favoring judicial review of administrative action." Mach Mining, LLC v. EEOC, 575 U.S. ----, ---- - ----, 135 S.Ct. 1645, 1652-1653, 191 L.Ed.2d 607 (2015). The presumption may be rebutted only if the relevant statute precludes review, 5 U.S.C. § 701(a)(1), or if the action is "committed to agency discretion by law," § 701(a)(2). The Service contends, and the lower courts agreed, that Section 4(b)(2) of the ESA commits to the Secretary's discretion decisions not to exclude an area from critical habitat.
This Court has noted the "tension" between the prohibition of judicial review for actions "committed to agency discretion" and the command in § 706(2)(A) that courts set aside any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Heckler v. Chaney, 470 U.S. 821, 829, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). A court could never determine that an agency abused its discretion if all matters committed to agency discretion were unreviewable. To give effect to § 706(2)(A) and to honor the presumption of review, we have read the exception in § 701(a)(2) quite narrowly, restricting it to "those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993). The Service contends that Section 4(b)(2) of the ESA is one of those rare statutory provisions.
There is, at the outset, reason to be skeptical of the Service's position. The few cases in which we have applied the § 701(a)(2) exception involved agency decisions that courts have traditionally regarded as unreviewable, such as the allocation of funds from a lump-sum appropriation, Lincoln, 508 U.S., at 191, 113 S.Ct. 2024 or a decision not to reconsider a final action, ICC v. Locomotive Engineers, 482 U.S. 270, 282, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987). By contrast, this case involves the sort of routine dispute that federal courts regularly review: An agency issues an order affecting the rights of a private party, and the private party objects that the agency did not properly justify its determination under a standard set forth in the statute.
Section 4(b)(2) states that the Secretary
"shall designate critical habitat ... after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.
The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area ... unless he determines ... that the failure to designate such area as critical habitat will result in the extinction of the species concerned." 16 U.S.C. § 1533(b)(2).
Although the text meanders a bit, we recognized in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), that the provision describes a unified process for weighing the impact of designating an area as critical habitat. The first sentence of Section 4(b)(2) imposes a "categorical requirement" that the Secretary "tak[e] into consideration" economic and other impacts before such a designation. Id., at 172, 117 S.Ct. 1154 (emphasis deleted). The second sentence authorizes the Secretary to act on his consideration by providing that he may exclude an area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designation. The Service followed that procedure here (albeit in a flawed manner, according to Weyerhaeuser). It commissioned a report to estimate the costs of designating the proposed critical habitat, concluded that those costs were not "disproportionate" to the benefits of designation, and "[c]onsequently" declined to "exercis[e] [its] discretion to exclude any areas from [the] designation of critical habitat." App. 190.
Bennett explained that the Secretary's "ultimate decision" to designate or exclude, which he "arriv[es] at" after considering economic and other impacts, is reviewable "for abuse of discretion." 520 U.S., at 172, 117 S.Ct. 1154. The Service dismisses that language as a "passing reference ... not necessarily inconsistent with the Service's understanding," which is that the Secretary's decision not to exclude an area is wholly discretionary and therefore unreviewable. Brief for Federal Respondents 50. The Service bases its understanding on the second sentence of Section 4(b)(2), which states that the Secretary "may exclude [an] area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of [designation]."
The use of the word "may" certainly confers discretion on the Secretary. That does not, however, segregate his discretionary decision not to exclude from the procedure mandated by Section 4(b)(2), which directs the Secretary to consider the economic and other impacts of designation when making his exclusion decisions. Weyerhaeuser's claim is the familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. Specifically, Weyerhaeuser contends that the Service ignored some costs and conflated the benefits of designating Unit 1 with the benefits of designating all of the proposed critical habitat. This is the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion under § 706(2)(A). See Judulang v. Holder, 565 U.S. 42, 53, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) ("When reviewing an agency action, we must assess ... whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." (internal quotation marks omitted)).
Section 4(b)(2) requires the Secretary to consider economic impact and relative benefits before deciding whether to exclude an area from critical habitat or to proceed with designation. The statute is, therefore, not "drawn so that a court would have no meaningful standard against which to judge the [Secretary's] exercise of [his] discretion" not to exclude. Lincoln, 508 U.S., at 191, 113 S.Ct. 2024.
Because it determined that the Service's decisions not to exclude were committed to agency discretion and therefore unreviewable, the Court of Appeals did not consider whether the Service's assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude Unit 1 arbitrary, capricious, or an abuse of discretion. Accordingly, we remand to the Court of Appeals to consider that question, if necessary, in the first instance.
* * *
The judgment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice KAVANAUGH took no part in the consideration or decision of this case.
Intervenor Center for Biological Diversity raises an additional question in its brief, arguing that Weyerhaeuser lacks standing to challenge the critical-habitat designation because it has not suffered an injury in fact. We agree with the lower courts that the decrease in the market value of Weyerhaeuser's land as a result of the designation is a sufficiently concrete injury for Article III purposes. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386, 47 S.Ct. 114, 71 L.Ed. 303 (1926) (holding that a zoning ordinance that "greatly ... reduce[d] the value of appellee's lands and destroy[ed] their marketability for industrial, commercial and residential uses" constituted a "present invasion of appellee's property rights").
Because we hold that an area is eligible for designation as critical habitat under Section 4(a)(3)(A)(i) only if it is habitat for the species, it is not necessary to consider the landowners' argument that land cannot be "essential for the conservation of the species," and thus cannot satisfy the statutory definition of unoccupied critical habitat, if it is not habitat for the species. See Brief for Petitioner 27-28; Brief for Respondent Markle Interests, LLC, et al. in Support of Petitioner 28-31.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
|
songer_mootness
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that an issue was moot?" 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".
MACK et al. (FRANK, Intervenor) v. PASSAIC NAT. BANK & TRUST CO. et al.
No. 8855.
Circuit Court of Appeals, Third Circuit
Argued April 19, 1945.
Decided July 6, 1945.
Ernest Kurzrok, in pro. per.
Samuel Kaufman, Bilder, Bilder & Kaufman, all of Newark, N. J. (J. Leo Rothschild, of Newark, N. J., on the brief), for appellee Adam Frank.
Ralph A. Corbin, of Passaic, N. J., for appellee Passaic Nat. Bank.
Isadore Glauberman, of Jersey City, N. J., for appellees Ruth Mack and Lucy Elias.
Before BIGGS, GOODRICH, and Mc-LAUGHLIN, Circuit Judges.
BIGGS, Circuit Judge.
The plaintiffs, Mack and Elias, executrices of the estate of Clara B. Prince, brought suit as holders of “Certificate[s] of shares of proceeds of sale of the East and West Ridgelawn Cemeteries, bodies corporate of the State of New Jersey”, against Passaic National Bank & Trust Company hereinafter called the Trust Company, successor trustee to the Passaic Trust & Safe Deposit Company, hereinafter called the Deposit Company, alleging a breach of the provisions of a trust indenture by the successor trustee. The trust indenture, executed on December 21, 1906, recites, among other things, that one Gruber conveyed to the Deposit Company certain lands in Passaic County, New Jersey, and that the Deposit" Company conveyed these lands to East Ridgelawn Cemetery subject to certain trusts in pertinent part as follows: East Ridgelawn Cemetery was to pay to the Deposit Company as trustee not less than 6‡ for each square foot of land sold by the Cemetery Company for burial purposes, the Deposit Company being required to use these moneys for the perpetual care of the cemetery. The rest of the money received from the sale of lots, less certain specified expenses, was also to be paid to the Deposit Company which on certain dates was required to divide it among certificate holders of which Mrs. Prince was one.
The form of the certificate issued was set out in the indenture and was indeed anomalous. The certificate was as follows: “Certificate of shares of proceeds of sale of the East and West Ridgelawn Cemeteries, bodies corporate of the State of New Jersey. This is to certify that * * * is the registered holder of * * * shares of the proceeds of the sale of these companies of sub-lots or plots in the hands of said corporations after deducting certain expenses, charges and disbursements provided for in the deed by which the said lands were conveyed to the said corporations by the * * * Deposit Company. * * * This certificate is part of an issue of shares amounting in the whole to thirteen thousand five hundred. * * * The holder of this certificate is entitled to receive his pro rata share of such proceeds of sale from time to time as provided in said agreement above mentioned. Witness the seals of the companies and the signatures of their Presidents and Treasurers this -- day of -, 19 — .” There follows the words “East Ridgelawn Cemetery - President - Treasurer.” and "West Ridgelawn Cemetery - President -- Treasurer.” It should be stated that except within the form of the certificate just quoted, West Ridgelawn Cemetery is not referred to in the indenture. The parties state that a trust indenture in similar terms, mutatis mutandis, was executed on June 3, 1907, by the Deposit Company in respect to the sale of lots of West Ridgelawn Cemetery. Mrs. Mack and Mrs. Elias as executrices own certificates in the form stated.
The complaint filed by the executrices alleges that the Trust Company is the successor to the Deposit Company, that the Trust Company is in breach of its fiduciary duty in that it failed to collect a certain money decree procured by it in the New Jersey Court of Chancery on July 18, 1933 against East Ridgelawn Cemetery in the sum of $205,973 and that the Trust Company has permitted East Ridgelawn Cemetery “to disburse its funds to other creditors for salaries and other expenses * * *”, that “Although requested by other shareholders [certificate holders] to * * * sequester the income of the * * * East Ridgelawn Cemetery for the purpose of applying a portion thereof to the payment” of the decree of the Court of Chancery of New Jersey, the Trust Company failed to do so and that by reason of this failure the income and funds of East Ridgelawn Cemetery was dissipated. The complaint refers to the trust indenture of 1906 and to conveyances made to "East and West Ridge-lawn Cemeteries” and asserts that though the Deposit Company was given a lien upon the cemetery properties “upon default in payment of the shares of proceeds of sale of lots by the said cemeteries” the lien has been lost by the failure of the Trust Company to exercise it. The complaint also alleges that the Trust Company was a negligent trustee because it invested a large part of the “permanent care fund", the fund for the perpetual care of graves, in securities illegal for trust investments under the laws of New' Jersey whereby the moneys were dissipated.
The complainant prays that the Trust Company be compelled to account for the losses suffered by the plaintiffs’ estate and by “all other shareholders of the East and West Ridgelawn Cemeteries”; that the Trust Company be relieved of its trust and that a decree be entered removing it as trustee; that the Trust Company be required to pay to the new trustee such sums as may be determined to be due and owing from it by reason of the trustee’s negligence, misfeasance and nonfeasance; and for such other and further relief as the court may deem to be just and proper.
The Trust Company appeared and filed an answer and counterclaim. The learned District Judge referred the case to a special master. It appears from evidence offered to the master that neither the Deposit Company nor the Trust Company collected or received funds from West Ridgelawn Cemetery but did collect and receive funds from East Ridgelawn Cemetery. It does not appear how the Deposit Company and its successor the Trust Company could collect funds from the sale of lots in East Ridgelawn Cemetery for the benefit of certificate holders and not collect funds for the benefit of certificate holders from the sale of lots in West Ridgelawn Cemetery without standing in breach of trust. The memorandum opinion of Vice Chancellor Backes and the decree entered in the New Jersey Chancery suit cited do not compel a contrary conclusion. From the decree and the opinion it appears that on January 1, 1933, there was due from East Ridge-lawn Cemetery to the perpetual care fund of that cemetery the sum of $3,418, and that there was due from East Ridgelawn Cemetery to the fund for the benefit of the certificate holders the sum of $205,973. The learned Vice Chancellor did not determine whether or not there was any sum due from West Ridgelawn Cemetery to the trustee. West Ridgelawn Cemetery was not a defendant in the case before him.
In the proceeding in the court below the Trust Company filed an account “as to the dividend and perpetual care funds”. The special master received evidence in respect to the trustee’s account, heard argument and on May 22, 1944, filed a report recommending the approval and allowance of the account of the Trust Company “as Trustee under the Declaration of Trust”. On this report the court below entered a decree which contained a number of recitals. The first states that Gruber conveyed certain lands in the “City of Clifton,' County of Passaic and State of New Jersey, to the - Deposit Company set forth in two Declarations of Trust made by the - Deposit Company dated December 21, 1906 [dealing with lands of East Ridgelawn Cemetery] and June 3, 1907 [dealing with lands of West Ridgelawn Cemetery] respectively -; that in accordance with the said Declarations of Trust the-Deposit Company took title to the said lands and premises, which it thereafter conveyed to two Cemetery Associations known as East Ridgelawn Cemetery and West Ridgelawn Cemetery. -”
The decree confirmed the special master’s report as filed and approved and allowed the account of the Trust Company “as Trustee under the Declaration of Trust”, authorized the resignation and withdrawal of the Trust Company “as Trustee under said Declarations of Trust”, appointed substitute trustees in place of the Trust Company, vested them “with all powers, privileges and duties of the Trustee appointed under the terms and conditions of the DecIcurations of Trust * * * with full power and authority to liquidate the assets of the Trust Estate to the end that the proceeds may hereafter be distributed to those entitled thereto * * *”. The decree also authorized the trustees to collect all moneys due under the decree of July 18, 1933, of the New Jersey Chancery Court and enjoined all persons from interfering with the possession or the management of the successor trustees and restrained all persons from bringing any suit against “the said Trust Estate“ without first obtaining leave of the court. The decree also reserved jurisdiction to fix the reasonable value of the services of the Trust Company and the Deposit Company “as Trustees under the Declarations of Trust”. The closing paragraph of the decree required “all known shareholders [to appear and] show cause * * *” on June 12, 1944 “why a decree should not be entered relieving the * * * Trust Company from any responsibility in connection with said Trust. * * *” It will be observed that parts of the decree referred to and purported to telieve the Trust Company as trustee under both trusts while other parts of the decree are directed only to the asserted negligence of the Trust Company in not collecting from East Ridgelawn Cemetery that portion of the money decree entered by the New Jersey Chancery Court for the benefit of certificate holders.
In view of the form established for the certificates by both indentures there may be one, and only one, fund established or to be established for the benefit of certificate holders. Such moneys, if any, as may be collected from the Trust Company may be subject to a prior charge in favor of the perpetual care funds of both cemeteries or of either cemetery. The decree of May 29, 1944, purports to deal with any right which any person may seek to assert against the Trust Company; for example, it enjoins “all persons” from interfering with the possession or the management of the successor trustees, and as we have pointed out treats on occasion with both declarations of trust, that of December 21, 1906 as well as that of June 3, 1907. If the certificate holders are entitled to share in a single fund and that fund be subject to paramount equitable liens which may be asserted on behalf of the lot holders of both cemeteries or of either cemetery, the decree of May 29, 1944, and a decree entered in the form suggested by the rule to show cause may affect the rights of the lot holders of both cemeteries or of either cemetery.
We must next proceed to appraise the position of the appellant Kurzrok against this background. Kurzrok, a lot owner in West Ridgelawn Cemetery, but not a certificate holder, appeared pro se in the District Court on June 12, 1944, the return day of the rule to show cause designated in the decree of May 29, 1944, and sought to intervene in the proceedings on the ground that any rights which he and other lot owners in West Ridgelawn Cemetery might have against the Trust Company for breach of trust in respect to the perpetual care fund required to be set up for West Ridge-lawn Cemetery, were prejudiced by the decree of May 29, 1944, and might be affected by any subsequent decree framed as the rule to show cause would suggest. His application to intervene was denied and he appealed to this court.
Counsel for the plaintiffs and for another intervening certificate holder assert, and it is not denied by the appellant, that West Ridgelawn Cemetery is now in receivership in the New Jersey Court of Chancery and that that Court has taken possession of all of the property and assets of the corporation and is presently engaged in administering its affairs. Counsel for the certificate holders concede, however, that the decree of May 29, 1944, unless modified, may affect Kurzrok’s rights and they, as well as Kurzrok, have submitted to us suggested forms of decrees to be entered by this court in order that Kurzrok’s rights may be protected in the court below. In our opinion none of the suggested decrees meets the questions here presented. We think it is clear that Kurzrok’s rights are affected by the decree of May 29, 1944, in its present form and that he was and is entitled to intervention of right pursuant to Rule 24(a) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for the lot owners of West Ridgelawn Cemetery are not and cannot be represented adequately by the certificate holders. Kurzrok’s right to appeal therefore is absolute and will lie from the order of the court below refusing him intervention. See Moore’s Federal Practice, vol. 2, § 24.06, p. 2332, and the authorities cited in note 9. Cf. the circumstances and the ruling in Kennedy v. Bethlehem Steel Company, 3 Cir., 102 F.2d 141. Cf. also old Equity Rule 37, 28 U.S.C.A. § 723 Appendix. Counsel for the certificate holders assert that the decree of May 29, 1944, may be so modified that Kurzrok’s rights will not be affected thereby. If this be so, it is a matter for the District Court to be dealt with by that tribunal as the facts and the law require.
The order appealed from is reversed and the cause is remanded for such action by the court below as may be appropriate.
Emphasis added throughout this opinion.
Neither the answer nor the counterclaim is part of the record before us.
No opinion for publication.
We reach this conclusion despite the statements of counsel, which we accept fully, that the court below by an amendatory order struck out of the decree of May 29, 1944, the two paragraphs, hereinbefore referred to, confirming the report of the special master in all respects and approving and allowing the account of the Trust Company as trustee.
Question: Did the court conclude that an issue was moot?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
HARTFORD-EMPIRE COMPANY, Petitioner, v. Charles B. FARIS, District Judge.
No. 362.
Circuit Court of Appeals, Eighth Circuit.
March 26, 1931.
A. C. Paxil, of Chicago, HI., for petitioner.
Lawrence C. Kingsland, of St. Louis, Mo., for respondent.
PER CURIAM.
Motion for leave to file petition for writ of mandamus and prohibition granted, and petition denied.
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_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
INDUSTRIAL CLEARINGHOUSE, INC., Plaintiff-Appellee, v. BROWNING MANUFACTURING DIVISION OF EMERSON ELECTRIC COMPANY, Defendant-Appellant.
No. 91-1928
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 21, 1992.
Kevin P. Sullivan, Fulbright & Jaworski, Dallas, Tex., W. Wendall Hall, Fulbright & Jaworski, San Antonio, Tex., for Browning Mfg.
Mark J. Zimmermann, Thomas C. Clark, John W. Hicks, Jr., Tori S. Levine, Baker, Glast & Middleton, Dallas, Tex., for Indus. Clearinghouse, Inc.
Before POLITZ, Chief Judge, REAVLEY and DAVIS, Circuit Judges.
REAVLEY, Circuit Judge:
Browning Manufacturing (Browning) appeals from a district court’s interlocutory order allowing Industrial Clearinghouse, Inc. (Industrial) to discover communications between Browning and Browning’s former counsel in this suit between Browning and Industrial. We reverse the district court’s order because there is no evidence to support the district court’s finding that Browning, by suing its former counsel, publicized confidential communications that it made to its former counsel.
I. BACKGROUND
Industrial and Browning have long disputed the ownership of certain inventory in the district court proceeding (the Industrial dispute) from which Browning now makes this interlocutory appeal. Midway through the Industrial dispute, Browning became dissatisfied with its counsel, Canterbury, Stuber, Elder, & Gooch (Canterbury), and retained a different law firm to manage that dispute.
Browning also filed a separate action against Canterbury for legal malpractice (the Canterbury suit), alleging, inter alia, that Canterbury failed to verify the accuracy of facts contained in affidavits that Canterbury prepared for Browning’s employees to sign. Browning also alleged that Canterbury did not adequately prepare Browning’s employee, Richard Schaa, for his deposition in the Industrial dispute because Canterbury failed to review with Schaa his prior testimony in a bankruptcy proceeding. Browning alleged that Canterbury’s failure resulted in damaging inconsistencies between Schaa’s deposition and bankruptcy-court testimony.
After Browning filed the Canterbury suit, but before anything else happened in that action, Industrial served Canterbury with a notice of deposition and subpoena duces tecum by which Industrial requested information concerning Canterbury’s representation of Browning. At the deposition, Canterbury’s representative, Charles Stu-ber, refused to produce documents and answer many of Industrial’s questions because of Browning’s attorney-client privilege.
Industrial filed a motion to compel Canterbury’s testimony. The district court referred the motion to a magistrate, who ruled that Browning, by suing Canterbury, waived its attorney-client privilege as to matters “fairly raised” in Browning’s complaint in the Canterbury suit. Record on Appeal at 260. While accepting Industrial’s waiver-by-publication argument, the magistrate refused to hold that Industrial presented sufficient evidence that the crime/fraud exception to the attorney-client privilege entitles Industrial to secure otherwise-protected information from Canterbury.
After considering the parties’ arguments and the transcript of the hearing before the magistrate, the district court found that “Browning has so compromised the confidentiality requirement of the attorney-client privilege that it has, by its actions, waived the privilege with regard to matters complained of in its state court petition that also bear upon Industrial’s claims in this case.” District Court Opinion at 15. The district court also agreed with the magistrate’s ruling as to the crime/fraud exception to the attorney-client privilege; the court held that “Industrial has made no showing that Browning used its relationship with Canterbury/Stuber to promote intended criminal activity.” District Court Opinion at 12-13 n. 16. So the district court affirmed and adopted the magistrate’s order compelling Canterbury to produce documents and provide deposition testimony concerning matters which were fairly raised by Browning’s complaint against Canterbury. Browning appeals.
II. DISCUSSION
Industrial claims that Browning admitted that it waived its attorney-client privilege as to the issues raised in the Canterbury suit by suing Canterbury, so the only issue now presented is whether the district court correctly held that Browning’s waiver extends beyond Canterbury to third parties like Industrial. But at the hearing wherein the magistrate considered Industrial’s motion to compel, Browning’s counsel argued that “there’s been no waiver.” Record on Appeal at 238. Industrial’s only evidence that Browning admitted to waiving its attorney-client privilege is the parties’ agreed statement of the issue presented to both the magistrate and the district court: District Court Opinion at 11 (emphasis added). Browning waived nothing by agreeing to this issue statement. The phrase “which are waived” required the district court, as it did, to find that a waiver occurred before addressing the waiver’s scope. So Browning legitimately appeals from the district court’s finding that Browning waived its attorney-client privilege by suing Canterbury.
The issue presented to the court is the extent of the waiver of the privilege for those communications which are waived by reason of their inclusion in the malpractice petition, i.e., whether they are waived only as to Canterbury/Stuber’s defense of the malpractice suit, or whether they are waived completely and as to any third party.
The attorney-client privilege exists to encourage clients to be candid with their attorneys. United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir.1982), cert. denied, 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984). The privilege protects only confidential communications of the client to the attorney. Id. at 538 nn. 8, 9. “ ‘[Disclosure of any significant portion of a confidential communication waives the privilege as to the whole.’ ” Id. at 538 (quoting United States v. Davis, 636 F.2d 1028, 1043 n. 18 (5th Cir.1981)). The confidentiality of a client’s communications may be compromised either through the publication of evidence of the communications themselves or through the publication of evidence of attorney statements or documents that disclose the client’s confidential communications. In re Sealed Case, 877 F.2d 976, 979 (D.C.Cir.1989). The attorney-client privilege protects only evidence of client communications; it “does not protect against discovery of underlying facts from their source merely because those facts have been communicated to an attorney.” El Paso Co., 682 F.2d at 538-39 n. 10.
The only evidence of waiver presented by Industrial and considered by the magistrate and the district court is Browning’s complaint, titled “Original Petition,” filed against Canterbury in Texas state court. Industrial, the magistrate, and the district court fail to specify one single communication of Browning’s that is revealed by the Original Petition, let alone any confidential communication. The Original Petition simply accuses Canterbury of various negligent actions in handling the Industrial dispute on Browning’s behalf. While the Original Petition reveals some things that Canterbury told Browning, it reveals no communication from Browning either directly or by reference to Canterbury’s statements. We thus find no record support for the district court’s finding that Browning waived its attorney-client privilege by suing Canterbury.
We are also concerned that the magistrate and the district court so easily dismissed as dicta Judge Rubin’s statement that “[t]he mere institution of suit against a lawyer ... is not a waiver of the privilege for all subsequent proceedings, however related or unrelated.” United States v. Ballard, 779 F.2d 287, 292 (5th Cir.), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). Ballard teaches, quite correctly, that the mere institution of suit against an attorney is insufficient to waive the attorney-client privilege as to third parties in a separate action that concerns the same subject matter as the attorney malpractice action. Id. at 291-92; accord Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed.Cir.1985) (“A party does not automatically waive [the attorney-client privilege] simply by bringing suit.”). The institution of suit against an attorney does not waive the privilege even as to matters that are raised in both the malpractice suit and the third party suit. Ballard, 779 F.2d at 291-92. The revelation of confidential communications, not the institution of suit, determines whether a party waives the attorney-client privilege. Thus, if a complaint against an attorney, or the attorney’s response or testimony in the malpractice case, reveals confidential client communications, the client waives the privilege as to the subject matter of the disclosed communications. See, e.g., Laughner v. United States, 373 F.2d 326, 327 (5th Cir.1967) (privilege waived where client “demanded and obtained” factual inquiry into claim that appointed attorney failed to render effective assistance). No such revelation has compromised Browning’s attorney-client privilege.
Finally, Industrial argues that the communications are not protected due to the crime/fraud exception to the attorney-client privilege, and that the district court erred in holding that Industrial is not entitled to Canterbury’s testimony and documents under the crime/fraud exception. To invoke the crime/fraud exception, a party must establish a prima facie case that a crime has been committed. Ward v. Succession of Freeman, 854 F.2d 780, 789-90 (5th Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989). The district court found that Industrial failed to show that any misrepresentations made by Browning were intentional. Industrial presents nothing to show that the district court abused its discretion in making its finding as to Browning’s intent. See id. at 789 (standard of review is abuse of discretion). A party must present evidence of an intent to deceive to establish a prima facie case of fraud or perjury. Therefore, the district court properly rejected Industrial’s claim to Canterbury’s information based on the crime/fraud exception to the attorney-client privilege.
REVERSED and REMANDED.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_r_nonp
|
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 "groups and associations". 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 v. William SAMS et al. Appeal of Victor CARLUCCI.
No. 75-1023.
United States Court of Appeals, Third Circuit.
Argued April 28, 1975.
Decided Aug. 4, 1975.
Irving M. Green, New Kensington, Pa., for appellant.
Richard L. Thornburgh, U. S. Atty., Henry G. Barr, Asst. U. S. Atty., John C. Kenney, Acting Asst. Atty. Gen., Robert L. Kruch, Edward S. Christenbury, Larry L. Gregg, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before VAN DUSEN, ADAMS and GARTH, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
The two principal issues to be resolved on this appeal are:
1. Whether a district court may, on a coram nobis petition, annul a conviction under the federal wagering tax statutes when the conviction is based on a guilty plea entered prior to the time the Supreme Court held that the privilege against self incrimination furnished a complete defense against such charges; and
2. Whether the petition here presents a claim for the return of the fine imposed as a result of a conviction under the wagering tax statutes that is barred by the statute of limitations.
I.
On February 18, 1963, Victor Carlucci pleaded guilty to two counts of willful failure to pay the special federal occupational tax imposed on wagering. As a result, he was sentenced to pay a fine of $10,000.
In Marchetti v. United States and Grosso v. United States both decided January 26, 1968, the Supreme Court held that the framework of federal wagering tax statutes “may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination.” Overruling their decisions in Kahriger and Lewis, the Court declared that the practice of gambling was so permeated with criminal prohibitions that prosecution for failure to comply with the requirements of the federal gambling tax statutes would encroach upon the Fifth Amendment’s protection against compulsory self-incrimination.
Subsequently, in United States v. United States Coin and Currency the Supreme Court ruled that the Marchetti and Grosso decisions should be given retroactive effect to invalidate a forfeiture proceeding. Donald Angelini had been convicted of not registering as a gambler and not paying the federal gambling tax. The government, prior to the Court’s decisions in Marchetti and Grosso commenced forfeiture proceedings with respect to $8,674 which Angelini had in his possession at the time of his arrest. The Supreme Court held that the doctrine of Marchetti and Grosso should be applied to reverse the judgment of forfeiture.
This was the background when, almost eleven years after his conviction, Carluc-ci, in June, 1974, filed an application for a writ of error coram nobis. Carlucci requested that the district court vacate, annul and set aside his conviction and refund the fine paid. He predicated his application on the Fifth Amendment, the All Writs Act and section 1346(a)(2) of the Tucker Act. The district court denied all the relief sought. It reasoned that by entering a guilty plea Carlucci had waived any defense under the Fifth Amendment, and that because there was no congressional waiver of sovereign immunity, the court had no authority to order a return of the fine.
II.
On this appeal Carlucci contends that under Marehetti and Grosso the Fifth Amendment provides an absolute bar to his conviction, and that the principle of those cases should be applied retroactively. Carlucci further maintains that since at the time of his conviction he could not have known that the prosecution ran afoul of the Constitution, his plea of guilty was not knowing and voluntary, and therefore his conviction should be vacated.
In addition, the Tucker Act, according to Carlucci, affords the district court the power to order his fine refunded, and a coram nobis proceeding is a proper occasion upon which to present his demand for the return of the money unconstitutionally taken from him. Finally,.Car-lucci argues that since he could not have known prior to the decision of the Supreme Court in Coin and Currency that he possessed a cause of action for the refund of the fine, the statute of limitations did not commence running until the date of that decision.
The government, in response, submits that Carlucci’s guilty plea is not subject to collateral attack because it was voluntarily entered and because Carlucci received assistance of counsel which was adequate with respect to the then-existing law. Even if the conviction is invalid, the United States asserts, the district court has no jurisdiction to order the fine remitted. The six year statute of limitations, according to the government, began running at least at the time of Marehetti and Grosso, and thus the period for filing a proceeding under the Tucker Act elapsed before Carlucci instituted this action. Additionally, the government alleges that there is no statutory authorization for repayment of the fine, and that in any case Carlucci has not qualified for recovery because he has not submitted a claim to the Secretary of the Treasury in conformity with the requirements of 26 U.S.C. § 7422.
For reasons which will be set forth below, we reverse that portion of the district court’s judgment that declined to expunge the conviction, and affirm that portion of the judgment that denied Car-lucci’s Tucker Act claim.
HL
A. The effect of Carlucci’s Guilty Plea on the Availability of Collateral Relief.
In three companion cases of Brady, McMann and Parker the Supreme Court established the general rule that where a conviction is based upon a plea of guilty, the conviction is subject to federal collateral attack only on limited grounds. To invalidate his conviction the defendant must show that he did not make the plea knowingly, intelligently and voluntarily or upon a demonstration that the plea was not uttered with the assistance of counsel competent with respect to the law as it existed at the time of the conviction. In particular, the Court stated that “a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”
However, in Bannister v. United States this Court, en bane, decided that the general rule of the finality of guilty pleas did not preclude the assertion in a federal habeas petition of a Fifth Amendment defense by a person who had, prior to the ruling in Leary, submitted a guilty plea to charges under the marihuana tax statutes, Bannister pleaded guilty to both counts of a two count indictment alleging criminal failure to pay the marihuana taxes, and in June, 1967, was sentenced to two concurrent prison terms. Thereafter, the Supreme Court, relying on the rationale of Marehetti and Grosso, held in Leary that the privilege against compulsory self-incrimination provided a defense against an accusation of concealing marihuana without payment of the federal transfer tax. It was the judgment of a majority of this Court, albeit on the basis of somewhat divergent reasoning, that in light of Leary Bannister was entitled to have the writ issue in spite of his guilty plea.
We have interpreted the Bannister decision as meaning that in a situation such as that now before us, where a petitioner seeks to upset an earlier guilty plea on the basis of a decision articulating previously unrecognized constitutional rights,
whether we apply the general rule of the guilty plea trilogy depends on the quality of the right sought to be asserted in the collateral attack. Does the newly-expressed right affect. “the integrity of the conviction”. or does it constitute what [has been] described as an “essentially procedural” change in the law...?
In the present case, the constitutional objection raised by Carlucci, like that in Bannister undermines “the integrity of the conviction.” Indeed, the right asserted is the same as that urged in Bannister — freedom from criminal punishment for not incriminating one’s self by paying a special tax on an activity closely circumscribed by criminal penalties. The Supreme Court, in Coin and Currency gave the following description of the self-incrimination privilege as formulated in Marehetti:
“Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the fact finding process.... Rather, Marehetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance.”
We do not find persuasive the government’s argument that our decision in Bannister has been subverted by the opinion of the Supreme Court in Tollett v. Henderson. There the Supreme Court declared that the defendant’s guilty plea to an indictment for murder foreclosed him from litigating on habeas the issue of racial discrimination in the selection of the grand jury that had indicted him. Eschewing an analysis solely in terms of a knowing waiver of a constitutional right, the Court stated that in such cases the focus of the habe-as inquiry should be on “the nature of the advice and the involuntariness of the plea, not the existence as such of an antecedent constitutional infirmity.”
The situation before us, however, is distinguishable from that in Tollett. In Tollett, as in McMann, Brady and Parker, the nature of the recently acknowledged constitutional right which formed the basis for the challenge to the conviction was essentially procedural. Here, in contrast, the assertion is that the very conduct charged against Carluc-ci is constitutionally privileged.
In this case as in Bannister, and unlike Tollett and the cases of the trilogy, there is no longer any governmental interest in continuing to punish the offender. In Tollett the state of Tennessee had a legitimate continuing interest in persisting with the conviction and punishment of the perpetrator of the murder at issue. There was also an on-going public concern in the chastening of those who had committed the crimes involved in Parker, McMann and Brady. Here, however, since the Supreme Court has held that the conduct in question is not constitutionally punishable, upholding the conviction will not vindicate any legitimate societal goal.
Also there is no difficulty here in assessing what course Carlucci would have followed if he had, at the time of his conviction, known of his rights under Marchetti. In Tollett it is difficult, perhaps impossible, to determine whether the defendant, if he had known the grand jury had been selected in a racially discriminatory manner, would have voluntarily waived his right to challenge the indictment in exchange for the prospect of a less burdensome sentence following a guilty plea. We may be quite certain on the other hand, that if Carluc-cf had known of his Fifth Amendment right under Marchetti, and had been competently counseled, he would not have pleaded guilty. For here, unlike in Tollett, the constitutional right in question is not merely one of several possible “pleas in abatement” but a complete defense. Vacating the plea therefore does not present the United States with the arduous task of attempting, years after the trial would originally have taken place, to piece together a case for the prosecution. Carlucci is not now contesting the allegation that he did not pay the statutorily required taxes. Rather, he professes that his failure to do so was privileged under the Constitution.
To hold that Carlucci’s guilty plea prevents him from asserting the Fifth Amendment defense on collateral review would be inconsistent with the solicitude which the Supreme Court has evidenced for allowing defendants a realistic opportunity to assert the self-incrimination defense to prosecutions like those under the wagering tax statutes. The most significant case in this respect is Haynes v. United States. Charged with possession of an unregistered firearm, Haynes moved before trial to dismiss the indictment because the statute abridged his privilege against self-incrimination. After the trial court denied the motion, Haynes pleaded guilty. On his appeal from that conviction, the Supreme Court stated, “Petitioner’s plea of guilty did not, of course, waive his previous claim of constitutional privilege.”
Also in Leary, the defendant, who did not invoke the self-incrimination defense until after the verdict, took the stand and testified that he had indeed acquired the marihuana without paying the tax. “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged,” the Supreme Court said in Tollett in explaining the finality accorded to guilty pleas, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” The Court held, however, that Leary’s admission that he had committed those acts which constituted a violation of the statute did not preclude him from contending, after the trial, that his conviction abrogated the Fifth Amendment.
The aspect of the self-incrimination privilege pressed by Leary before the Supreme Court, Justice Harlan stated, was not the right to remain silent at trial, but rather the right not to be punished for his previous failure to obey a statute which required an incriminatory act. “His admission at trial that he had indeed failed to comply with the statute was perfectly consistent with the claim that that omission was excused by the privilege.”
Thus the seeming incongruity between the Supreme Court’s treatment of the self-incrimination defense and its later guilty plea cases intimates that the Court may, sub silentio, have recognized the distinction drawn in Bannister. In any case, there would appear to be no meaningful difference between a defendant who, like Leary, takes the stand and testifies to his guilt without invoking the Fifth Amendment defense, and one who admits his culpability more succinctly by entering a guilty plea.
In Blackledge v. Perry the Supreme Court signaled that there are exceptions to the general rule articulated in Brady, McMann, Parker and Tollett. Perry, after a trial without a jury, was convicted in the state district court of the misdemeanor of assault with a deadly weapon. As a consequence of that conviction, Perry had an automatic right to a trial de novo in the superior court. After Perry evidenced his intent to exercise that right, the prosecutor obtained an indictment charging him with the felony of “assault with a deadly weapon with intent to kill and inflict various bodily injury.” The indictment was grounded on the same assault that had been the basis of the earlier misdemeanor conviction. Perry pleaded guilty to the felony charge. Subsequently, however, he sought federal habeas corpus on the ground that the felony indictment deprived him of due process because it punished him for exercising his statutory right to a trial de novo. The Supreme Court held that, in spite of the guilty plea, federal habeas was available. The Court distinguished the holdings in Tol-lett and the McMann triad on the ground that the constitutional claims there did not, as did Perry’s argument, challenge the very power of the state to bring the defendant into court to answer the charge against him. In McMann, for example, the defendants could have been brought to trial without the use of the allegedly coerced confessions. And Tol-lett, Justice Stewart pointed out, could have been brought to trial for the same crime through a new indictment by a properly selected grand jury. In Perry, on the other hand,
The nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge, in the District Court, the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon [Perry] to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of “antecedent constitutional violations” or of a “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Rather, the right that he asserts and that we today accept is the right not to be hailed into court at all upon the felony charge. The very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.
The right asserted by Carlucci is somewhat akin to that involved in Perry in that Carlucci is not objecting to the procedures by which he was arrested and convicted. Rather, he claims “the right not to be haled into court at all” because the institution of the prosecution itself derogated from his right not to incriminate himself.
Accordingly, we conclude that the district court erred in holding that, because of Tollett, Carlucci’s guilty plea is not open to collateral attack on the basis of Marchetti and Grosso.
B. Application of the Statute of Limitations to the Claim for Refund of the Fine.
Even if we assume arguendo that the Tucker Act provides authority for district courts to order the return of fines based on convictions derogating from constitutional rights, and further assume that a Tucker Act claim may be raised during the course of a coram no-bis proceeding, we must, because of the'statute of limitations, conclude that the district court properly denied Carlucci’s plea for restitution of the penalty.
Actions against the United States such as the one pressed here are controlled by the statute of limitations contained in 28 U.S.C. Section 2401(a). That section provides: “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.” The protection afforded by section 2401(a) “may not be waived by the United States, and where it.appears to the court that the time for bringing the action has run, the action must be dismissed.” Therefore, if Carlucci’s action for the return of the fine imposed in 1963 was filed out of time, the district court was without authority to grant the monetary relief requested.
Since the statute requires that the complaint be filed within six years “after the right of action first accrues,” a critical question is when Carlueci’s right of action “accrued.” The government argues that the cause of action accrued at the time the fine was imposed because all the events necessary to make out the claim for a refund had occurred at that time. Alternatively, the government contends that even if, as Carlucci asserts, the statute of limitations did not begin running until the claimant had reason to believe that he had a recoverable claim, the cause of action “accrued” on the date of the Supreme Court decisions in Marchetti and Grosso that the Fifth Amendment, properly interpreted, provided a defense to criminal charges under the gambling tax statutes.
Carlucci, on the other hand, contends that the limitation period did not begin when the fine was levied because Kahriger and Lewis indicated that, at least at that time, he did not have an enforceable claim against the United States. The statute began to run, Car-lucci asserts, when the Supreme Court declared in Coin and Currency that the Marchetti-Grosso interpretation of the Fifth Amendment would be applied retroactively.
We conclude that the statute of limitations commenced running no later than January 29, 1968, the day Marchetti and Grosso were decided. Consequently, Carlucci’s request for the return of the fine — a claim not presented until June 4, 1974 — was beyond the jurisdiction of the district court.
In resolving the issue regarding when the statute of limitations commenced running, we must bear in mind that the time when the statute begins running is a matter of congressional intent. The judiciary is not at liberty to create exceptions to or to enlarge the waiver of immunity by the government.
There is no specific evidence of the legislative intent with regard to the time from which we should measure the period specified in section 2401(a). In construing similarly worded waivers of sovereign immunity courts have generally defined a right of action as “accruing” upon the occurrence of the final event necessary to complete the elements of the claim. “A claim first accrues when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” Here, the wrongful conduct was complete upon payment of the fine, and the statute of limitations would therefore generally begin to run at that time.
The federal courts have, at least in some instances, postponed the commencement of the limitation peridd regulating suits against the United States where the claimant did not know, and in the exercise of reasonable diligence could not learn, that he had been injured by the government’s allegedly wrongful conduct. The Court of Claims has provided the following exposition of this variant:
In certain instances the running of the statute will be suspended when an accrual date has been ascertained, but plaintiff does not know of his claim. Plaintiff must either show that [the United States] has concealed its acts with the result that plaintiff was unaware of their existence or [plaintiff] must show that its injury was “inherently unknowable” at the accrual date.
This exception to the normal commencement of the limitations period does not appear applicable to the present claim, however, because Carlucci was aware of the damage to him at the time the fine was imposed. His situation is therefore distinguishable from that of the plaintiffs in Japanese War Notes who allegedly did not know that the United States was circulating counterfeit Japanese currency. Nor is his claim analogous to that of a medical malpractice plaintiff who cannot with reasonable diligence learn of the physician’s negligent action or of his own injuries until some future time.
In United States v. One 1961 Red Chevrolet Impala Sedan the claimant sought compensation for property which had been forfeited to the government because of its use in the conduct of a wagering operation that did not comply with the federal gambling tax statutes. The Fifth Circuit ruled that under section 2401(a) the limitations period did not begin to run against the claimant until the decisions in Marchetti and Grosso gave notice that the owner of the automobile had a Fifth Amendment defense against its seizure. That Circuit declared that the period should not commence until plaintiff had a “reasonable probability of successfully prosecuting his claim against the government,” and that prior to those Supreme Court decisions his suit would probably have been dismissed on the basis of Lewis and Kah-riger.
We need not, however, determine at this time whether section 2401(a) commenced running when the fine was imposed or when the Marchetti and Grosso decisions were announced. Under either test, Carlucci’s claim would be barred. This is so, because in any event the decisions in Marchetti and Grosso provided Carlucci with reasonable grounds to believe his rights had been violated. Although there had been no ruling that the Marchetti doctrine would be applied retroactively for the benefit of persons like Carlucci, there was certainly nothing indicating that Carlucci could not obtain a refund if he pursued one promptly. Even if we accept, ar-guendo, Carlucci’s argument that the running of section 2401(a) was suspended until such time as he had reason to know he might succeed with his claim against the United States, since Marchetti and Grosso were handed down more than six years before Carlucci applied for a refund, his claim is time-barred.
IV.
Accordingly, that portion of the judgment of the district court denying Car-lucci’s motion to set aside his conviction will be reversed, and that portion of the judgment refusing Carlucci’s request for a refund of the fine will be affirmed.
. Carlucci was convicted of violating 26 U.S.C. § 7203. He was indicted under 26 U.S.C. §§ 7201, 7262 and 18 U.S.C. § 371 as well. All of the allegations of the indictment related to his failure to pay special taxes on wagering. See 26 U.S.C. §§ 4401, 4411. See also 26 U.S.C. § 4412 mandating all persons required to pay the tax under § 4411 to register with the Internal Revenue Service. For a description of the statutory scheme for taxing wagers, see Marchetti v. United States, 390 U.S. 39, 42-44, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 65-66, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).
. 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889.
. 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906. See also Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968) (invalidating federal fire-arm registration statutes on similar self-incrimination grounds); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) (striking down the marihuana transfer tax for the same reason).
. Marchetti, 390 U.S. at 42, 88 S.Ct. at 699.
. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953).
. Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955).
. 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).
. 28 U.S.C. § 1651(a) provides:
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
. 28 U.S.C. § 1346(a) provides:
“The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:...
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort..
. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).
. Brady, 397 U.S. at 757, 90 S.Ct. at 1473.
. 446 F.2d 1250 (3rd Cir. 1971).
. 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
. 26 U.S.C. § 4744(a)(2).
. Smith v. Yeager, 459 F.2d 124, 126 (3rd Cir. 1972).
. 401 U.S. at 723, 91 S.Ct. at 1045.
. 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
. 411 U.S. at 266, 93 S.Ct. 1602.
. Id.
. Cf. Bannister, 446 F.2d at 1254 (Biggs, J.); 446 F.2d at 1264-65 (Gibbons, J., concurring).
. We need not at this time determine the effect of a guilty plea in a plea bargaining situation where the self-incrimination defense does not apply to all of the charges. For instance, a defendant charged with possession of marihuana with intent to distribute and also accused of failure to pay the transfer tax may agree to plead to the tax count in exchange for dismissal of the other charge, the validity of which is unaffected by Leary. See Gaxiola v. United States, 481 F.2d 383 (9th Cir. 1973); Bannister, 446 F.2d at 1251-53.
. See Coin and Currency, 401 U.S. at 723, 91 S.Ct. 1041.
. See Bannister, 446 F.2d at 1254, 1255; United States v. Russo, 358 F.Supp. 436 (D.N.J. 1973).
. Tollett, 411 U.S. at 268, 93 S.Ct. 1602.
. Marchetti, 390 U.S. at 41-42, 88 S.Ct. 697. See Bannister, 446 F.2d at 1254, 1264; United States v. Liguori, 430 F.2d 842 at 849 (2 Cir.)
. Contrast McMann, 397 U.S. at 733, 90 S.Ct. 1441.
. See Bannister, 446 F.2d at 1254-55, 1264-65; Liguori, 430 F.2d at 849.
. 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).
. Id. at 87 n. 2, 88 S.Ct. at 725.
. 397 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.
. 411 U.S. at 267, 93 S.Ct. at 1608.
. 395 U.S. at 28, 89 S.Ct. at 1544.
. In Grosso, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the defendant had asserted in the district court only that the privilege against self-incrimination foreclosed his conviction for failure to pay the excise tax on wagering. He had not raised the constitutional issue with respect to the charges of failing to pay the occupational tax on wagering and conspiracy to avoid the latter tax. Even in the Supreme Court his arguments did not address the validity of the occupational tax allegations. The Supreme Court, however, held that in light of its earlier decisions in Lewis and Kahriger, “we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege.” 390 U.S. at 71, 88 S.Ct. at 715. See also United States v. Manfredonia, 391 F.2d 229 (2d Cir. 1968); Greenwood v. United States, 392 F.2d 558 (4th Cir. 1968).
. 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
. 417 U.S. at 30-31, 94 S.Ct. at 2104.
. Although the Court is aware of the contrary precedent in the District of Maryland in Bluso v. United States, 375 F.Supp. 1085 (D.C.Md. 1974), we find the rationale there unpersuasive.
. See Pasha v. United States, 484 F.2d 630, 632 (7th Cir. 1973); DeCecco v. United States, 485 F.2d 372, 373 (1st Cir. 1973); United States v. Summa, 362 F.Supp. 1177, 1180 (D.Conn.1972), aff’d No. 73-1153 (2d Cir., filed August 14, 1973).
. See Pasha, 484 F.2d at 633; DeCecco, 485 F.2d at 373-74; Summa, 362 F.Supp. at 1179; United States v. Lewis, 478 F.2d 835, 836 (5th Cir. 1973).
. Christian Beacon v. United States, 322 F.2d 512, 514 (3d Cir. 1963). As the Fifth Circuit has stated more recently, “Failure to bring an action within the time specified under the Tucker Act does not merely provide the government with a waivable defense to the action, but deprives the district court of jurisdiction to hear the action at all.” United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1357 (5th Cir. 1972).
. Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968). See Crown Coat Front Co. v. United States, 386 U.S. 503, 514, 517, 520, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967).
. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Sori-ano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968).
. Japanese War Notes Claimants Ass’n v. United States, 373 F.2d 356, 358, 178 Ct.Cl. 630 (1967). See Cosmopolitan Mfg. Co. v. United States, 297 F.2d 546, 547, 156 Ct
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? 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.
BOWERS v. BOWERS.
No. 8686.
United States Court of Appeals District of Columbia.
Argued May 12, 1944.
Decided June 26, 1944.
Mr. Ethelbert B. Frey, of Washington, D. C., for appellant.
Mr. Ben Lindas, of Washington, D.C., for appellee.
Before GRONER, Chief Justice and EDGERTON and ARNOLD, Associate Justices.
EDGERTON, Associate Justice.
This is an appeal by the defendant wife from a judgment for the plaintiff husband in a suit for divorce. The complaint alleged in substance, and the District Court found, “that on July 22d, 1937, plaintiff and defendant mutually agreed to live separate and apart and that in accordance with the said agreement the said parties have lived separate and apart since the said date to, the date of this judgment and that said parties have not lived together as husband and wife since the said date of July 22, 1937.” The court ruled that the plaintiff was entitled to a divorce on the ground of separation for five years by mutual consent.
The District of Columbia Code 1940, § 16 — 403, authorizes divorce for “voluntary separation from bed and board for five consecutive years without cohabitation.” The issue turns upon the continuing character of the separation, not its origin; but its origin is evidence of its continuing character. We have held that if both parties voluntarily and continuously acquiesce in separation during five years, the statute authorizes divorce even though the separation was not originally voluntary on both sides. Parks v. Parks, 73 App. D.C. 93, 116 F.2d 556. It is equally true that if either party does not voluntarily and continuously acquiesce in separation during five years, the statute does not authorize divorce even though the separation was originally voluntary on both sides. But one who contends that a voluntary separation ceased to be voluntary should have the burden of proving his contention. The separation in the present case was originally voluntary on both sides. Although the wife after-wards asked her husband to return to her, the court was “not convinced” that her requests were “made in good faith.” It follows that the judgment should be affirmed.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
AUTO OWNERS INSURANCE COMPANY, a Michigan Corporation, Plaintiff-Appellee, v. John David BASS and Gloria Jean Bass, Defendants-Appellants.
No. 80-7741.
United States Court of Appeals, Eleventh Circuit.
Sept. 1, 1982.
Hornsby & Schmitt, Steven F. Schmitt, Tallassee, Ala., for defendants-appellants.
Lloyd, Ennis & Lloyd, John T. Ennis, Sr., Birmingham, Ala., for plaintiff-appellee.
Before GODBOLD, Chief Judge, MERRITT and HENDERSON, Circuit Judges.
Honorable Gilbert S. Merritt, U. S. Circuit Judge for the Sixth Circuit, sitting by designation.
GODBOLD, Chief Judge:
This is an Alabama diversity suit by Auto Owners Insurance Company against its insureds John David Bass and Gloria Jean Bass seeking to recover amounts it had paid to loss payees for a fire loss on the Bass home and also claiming punitive damages for fraud by the Basses. The precise allegations are significant and will be discussed later in this opinion, but, described in general terms, Auto Owners asserted that John Bass intentionally burned the home and made false and fraudulent claims and statements concerning both the fire and the losses incurred. It charged that Gloria knew of John’s setting the fire and participated in false swearing concerning the fire and the loss. John and Gloria counterclaimed for amounts allegedly still owing under the policy. Following a trial in which John appeared pro se for himself and his wife, a jury found for Auto Owners and awarded $82,239 compensatory damages and $50,000 punitive damages. We affirm the judgment against John and reverse the judgment as to Gloria.
I. The defective verdict
The general jury verdict read:
We, the Jury, find for the plaintiff and award $82,239.22 compensatory damages and $50,000.00 punitive damages.
This the 19th day of August, 1980.
There were no special interrogatories. The court entered judgment as follows:
It is hereby the Finding and Judgment of this Court that John David Bass and Gloria Jean Bass did commit willful and malicious fraud against the Plaintiff, Auto-Owners’ Insurance Company. It is hereby
ORDERED ADJUDGED and DECREED as follows:
The Defendants shall pay to Plaintiff the sum of $82,239.22 plus six percent interest from the date of this Judgment in compensatory damages. The Defendants shall also pay to Plaintiff the additional sum of $50,000.00 plus six percent interest from the date of this Judgment in punitive damages with costs assessed against the Defendants.
No one objected to the form of the verdict, or the proposed forms submitted to the jury, or the form of the judgment. On appeal the defendants contend the judgment should be set aside and a new trial granted because it is based on a verdict for the plaintiff but against no one. Unquestionably the verdict is defective. If a verdict is so ambiguous a reasonable person cannot determine the jury’s intent the verdict cannot stand. See generally Denham v. Yancey, 19 Ala.App. 45, 95 So. 201 (1922).
[T]he sufficiency of a verdict, reasonably interpreted as to its language, depends upon it being capable of definiteness when referred to the pleadings and papers in the case, the pertinent entries, and under the interpretation of the law given by the court to the jury.
In Hopkins v. Duggar, 204 Ala. 626, 628, 87 So. 103, 104, Mr. Justice Sayre observed:
“The real question is whether the verdict was not hopelessly defective and so afforded no proper basis for the judgment. This point was not raised in the trial court. It is raised now for the first time. In order that the objection should avail it is necessary that the judgment be found to be wholly void. Intendments are indulged in favor of judgments.”
Was, then, the verdict rendered void, under the issues of fact submitted by the court and instructions interpreting the law having application thereto, or was it definite and complete when referred to the issues submitted, to support the judgment entered thereon?
Penney v. State, 229 Ala. 36, 155 So. 576, 578 (1934).
[Wjhere the language of judgments, or verdicts can be reasonably interpreted by reference to the pleadings and papers in the case, and the instructions of the court, then on such basis intendments are indulged in favor of judgments. The real question is whether the verdict was hopelessly defective thereby affording no proper basis for a judgment.
Reynolds Brothers Lumber Co. v. W. S. Newell Construction Co., 284 Ala. 352, 224 So.2d 899, 902 (1969).
One of the few federal cases is Moore v. Harjo, 144 F.2d 318, 321 (10th Cir. 1944) where the court said:
Where a judgment or decree is ambiguous or obscure, and fails to express the final determination of the court with clarity or accuracy, reference may be had to the pleadings, the verdict, the findings, and the entire record for the purpose of ascertaining what was determined.
We need not pause over the argument that the verdict can have no effect because it does not say “against defendants” (or a named defendant). The verdict was intended to be against some one or more persons. John and Gloria were the only defendants and the only persons against whom the damages referred to in the verdict could be awarded. The question rather is whether the verdict can be interpreted reasonably and with sufficient certainty as being against both John and Gloria, or against only one of them, and if one which one. In pursuit of this inquiry we turn to examination of the pleadings, the evidence and events at the trial, and the jury instructions.
The complaint alleged that Auto Owners issued a policy to the defendants on their home. It charged that John committed acts of fraud or false swearing by:
(a) deliberately causing an incendiary fire in their dwelling with intent to defraud;
(b) filing a false and fraudulent inventory;
(c) willfully concealing material facts about the contents of the home and the cause of the fire;
(d) falsely swearing to material facts in a statement given the company.
It charged Gloria knew or should have known of John’s fraudulent conduct or false swearing with intent to defraud the company. Finally, it alleged that as a direct and proximate result of the fraudulent conduct of the defendants the plaintiff paid fire loss proceeds to two loss payees.
The pretrial order restated plaintiff’s position to be: that John, with the knowledge of Gloria, set fire to the house; that both committed fraud in causing the fire to be set; alternatively, as to Gloria, if she had no knowledge of a plan to burn the house, she conspired to conceal from the insurance company the facts concerning the loss.
We have read the record. There was sufficient evidence to submit to the jury the issue of liability of Gloria on the basis that she knew of John’s setting the fire. She was present at the home with John and her children when the fire occurred during early morning hours. She was dressed when she escaped from the house. There was some inconsistencies in her stories about removal of items from the house. Also the evidence permitted the jury to infer that she assisted in concealing facts on the cause of the fire and the extent of loss. Thus the jury could have found her liable. This is a long way from saying with any degree of certainty that a verdict against her was what the jury had in mind.
John was the primary actor throughout and Auto Owners’ primary target at trial. There was no direct evidence of who, if anyone, set the fire. Experts testified that they found evidence that an accelerant— gasoline or a similar means — had been used, and they found other evidence that the fire had been set. Much of the trial was devoted to testimony concerning the family’s precarious financial position. Mortgages on the house were in default. John was being pressed for payments. He was overdrawn in his bank accounts, and he was earnestly seeking money. The fire occurred April 17, 1979. On March 12, 1979, John had increased the coverage on the dwelling from $84,000 to $90,000, which increased other coverages under the homeowner’s policy as well. Auto Owners’ stated theory was that John set the fire. It made no contention that Gloria set it (beyond a single statement in closing argument, discussed below). The inventory of personal property destroyed was prepared by John; Gloria stated that from time to time she told him of items that she had remembered that should be included. The complex financial dealings preceding the fire were carried on by John.
In approximately an hour of oral argument Auto Owners examined minutely John’s affairs and conduct before, during and after the fire, and connected up its proof to every theory of liability against him for both compensatory and punitive damages. During this hour there was but a single reference to alleged liability of Gloria. Counsel said “John Bass and Gloria Jean Bass burned that house down.”
We have considered the jury instructions not for correctness, because there was no objection to them, but to see if they assist in resolving the ambiguity of the verdict. Insofar as intent of the jury to subject Gloria to judgment, they contribute no certainty to the uncertain verdict. The instructions are a confusing mixture of language concerning liability of the husband, liability of the defendant (singular), and liability of the defendants (plural) (emphasis is added throughout):
One of the things that the Auto Owners claim is that one or both of the insured with actual intent to deceive or to increase the loss included some items in their proof of loss additional to those actually destroyed by the fire in that proof of loss and that the policy is voided thereby. And I charge you that if an insured with actual intent to deceive or to increase the loss does include items additional to those items actually destroyed by fire in his proof of loss, then the policy is voided and the defendant may not recover any proceeds under the policy and the plaintiff should recover its actual damages claimed which — excuse me, its actual damages which approximately resulted from the defendants’ said acts or actions.
Another aspect of the case, which the insurance company says occurred, is that the defendant deliberately and with intent to defraud set fire to his own house for the purpose of collecting under his policy. And the law is that if you find by a preponderance of the evidence that the defendant wilfully set the fire which caused the destruction of his home and ear, you must find for the insurance company and award damages in an amount that the preponderance of the evidence shows the insurance company paid out of the investigation, the payment of mortgages and the other items of expenses that would not have been incurred but for the said act of the defendants.
Now, in this case the insurance company has sought not only its actual damages, which it says resulted approximately from the wrongful acts of Mr. and Mrs. Bass, it claims punitive damages of fifty thousand dollars. That is in addition to actual damages. In order to award punitive damages you must find that the defendant acted maliciously, wilfully, or with reckless disregard for the rights of others or that he or she made false statements knowingly and with the intent to cheat. Now, the intentional burning of a dwelling with intent to defraud an insurance company is by law a malicious and wrongful act with reckless or wanton disregard for the rights of others. If you find that the defendant committed arson by deliberately burning his house, you should award actual damages and you may award punitive damages to the insurance company. And if you feel the evidence shows by a preponderance of it, a wilful and wrongful act as I have described to you by Mr. Bass and Mrs. Bass, you may include in your award an amount of money for punitive damages which you feel with [sic] adequately punish the wrongdoer and set an example to others who might be inclined to do likewise.
The trial court instructed as follows on the alternate forms of verdict:
The first of them is a proposed jury verdict for the plaintiff insurance company. “We the jury find the plaintiff — excuse me — find for the plaintiff and award blank dollars compensatory damages.” Now, that is the amount that will compensate the insurance company for whatever damages occurred to it because of a wrongful act if any by the Basses. “And blank dollars punitive damages.” The punitive damages are the damages to punish the Basses for the wrongful act under the circumstances that I have described to you if they committed any such wrongful act. I will go back over: “We the jury find for the plaintiff and award blank dollars punitive damages. This the blank day of August, nineteen eighty.” Add a line here under that line, foreperson. You will go back to the jury room and select one of your members to act as your foreperson. That person will preside over your deliberations and will be your spokesman here in court. [Second,] [n]ow, if on the other hand you find in favor of the defendant in this case on their claim on the policy. If you find that they bona fidely, as I have described to you, took out this insurance policy and they had nothing to do with setting this fire, as I have described it, then you would enter a verdict, “We the jury find for the defendants and award blank dollars compensatory damages,” bear in mind they do not seek punitive damages, “this the blank day of August, nineteen eighty.” And a place for the foreperson. The foreperson will sign the verdict that you may enter and will date it and will fill in the amount of damages. Now, I remember when I was a student of law, considered myself one, I had a little trouble at times remembering which was the plaintiff and which was the defendant. You will notice that up here at the top of the name of the case is set out and it says the Auto Insurance — Auto Owners Insurance Company, plaintiff, and John David Bass and Gloria Jean Bass, defendants, so you could always look up there and solve any problem may have there. [Third] the last possible verdict is that you will find that neither the plaintiff nor the defendant proved its right to recover from the other side; the parties will be left as they are. In that event you may enter the verdict, “We the jury find neither for the plaintiff nor for the defendants. This the blank day of August, nineteen eighty.”
Considering all of these circumstances we have outlined — the allegations as further developed in the pretrial order, the evidence, oral argument, and the instructions to the jury, there can be no reasonable doubt that the jury intended to assess compensatory and punitive damages against the principal actor John. But it cannot be said with any degree of certainty that the verdict was also intended to reach Gloria, who was not a central actor and was only a secondary target at trial. Plaintiff’s brief devotes a single page to the matter of the defective verdict, and makes only the points that John and Gloria could be held jointly and severally liable as concurrent tort-feasors and that the evidence was sufficient to support a verdict against both of them. Both statements are correct, but neither addresses the point in issue.
II. Other points
Remarks by Auto Owners’ counsel made to the jury in closing argument, not objected to, were not so improper and prejudicial to require reversal. A comment on defendants’ failure to call a fire expert who had been employed by their first attorney was not error at all. Generally, counsel in a civil trial may comment on the failure of a party to call an available witness whose testimony the party would naturally be expected to produce if favorable to him. United States v. Certain Land in City of Fort Worth, Texas, 414 F.2d 1026, 1028 (5th Cir. 1969). The second comment, that Mr. Bass “has had two prior attorneys and now he is representing himself. You make your own judgment on that,” was inappropriate but certainly not grounds for reversal.
The instruction to the jury concerning failure to produce a witness was not incorrect and moreover was not objected to.
The court did not abuse its discretion in allowing testimony from a plaintiff witness not listed on the pretrial order. The witness was an expert who substituted for another expert listed in the pretrial order. Defendants were informed of this change a month prior to the scheduled trial date and did not object to the witness’ testimony at trial.
There was no error in expert witness Johnson’s testifying to the absence at the scene of the fire of evidence of the existence of personal items claimed to be in the house.. The absence of valuable or sentimental items from a fire scene is circumstantial evidence that the fire was set. Moreover, Johnson’s testimony was relevant to defendants’ counterclaim asking punitive damages for willful refusal to pay a valid claim.
The trial court denied a motion to have the jury view the scene of the fire. The fire had occurred 16 months before the trial and 30 to 35 miles from the courthouse. More than 100 photographs taken shortly after the fire were introduced into evidence. Whether to allow the jury to visit the scene was in the discretion of the district court. Johnson v. William C. Ellis & Sons Iron Works, Inc., 604 F.2d 950, 958 (5th Cir. 1979). See also Fed.R.Evid. 403.
The judgment is AFFIRMED as against John David Bass, REVERSED as against Gloria Jean Bass.
. Arguably the motion to dismiss should have been granted as to the “should have known” allegation, but this issue was not raised on appeal.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc1
|
26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Appellant, v. Paul WHITE and Anna Lee White, Appellees.
No. 6974.
United States Court of Appeals Tenth Circuit.
Dec. 31, 1962.
Robert L. Waters, Attorney, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Melva M. Graney, Attorneys, Washington, D. C., Lawrence M. Henry, U. S. Atty., and Merle R. Knous, Asst. U. S. Atty., Denver, Colo., on the brief), for appellant.
Stanley L. Drexler, Denver, Colo. (Ellis J. Sobol, Denver, Colo., on the brief), for appellees.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
PICKETT, Circuit Judge.
This tax refund case presents the question of the appropriate treatment, for purposes of federal income taxation, of a $175,000 payment received upon a transfer of a mineral interest in Colorado lands. In their joint federal income tax return for 1956, the taxpayers, Paul White and Anna Lee White, reported the payment as income from the sale of a capital asset pursuant to Sections 1201 and 1202 of the Internal Revenue Code of 1954. A deficiency was assessed on the theory that this sum constituted ordinary income, and, after paying the tax and filing a claim for refund, which was disallowed, the Whites brought this suit to recover the amount of the tax paid, plus interest. The district court held that the transfer did not have the characteristics of a lease, but “was intended to be a true conveyance in fee of the minerals within and underlying the land described in the deed”, and that the consideration received therefor was a capital gain for income tax purposes. Judgment was entered accordingly, and the United States appeals.
The essential facts are not in dispute. In 1924 the taxpayers bought some land in Jefferson County, Colorado. About 1953 or 1954, one Schwartzwalder, an amateur geologist, discovered a valuable uranium deposit on a quarter section of the Whites’ land. He entered into a mineral lease with the Whites in February 1955, but it subsequently became apparent that Schwartzwalder was unable to satisfactorily develop the property for the production of minerals. Reliable surveys indicated that the lands contained uranium deposits valued at approximately $1,000,000, and Schwartzwalder and the Whites agreed that it would be to their best interests to find responsible third parties to mine and market this deposit. Ultimately, it was agreed that the minerals, together with Schwartzwalder’s leasehold, should be sold to Denver-Golden Oil and Uranium Company, a Colorado corporation.
The Whites’ interest was transferred on February 16, 1956, by an instrument entitled “Mineral Deed”. This deed, with the usual warranty of title, recites that the Whites “have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell, convey and confirm unto” Denver-Golden Oil and Uranium Company, “its successors and assigns forever, all and each of the ores and minerals, of whatsoever class or kind, EXCEPT oil, gas, casinghead gas or other gaseous or vaporous substances,” on the aforesaid quarter section of land. As a consideration for this transfer the Whites received $175,000 and “a royalty of ten per centum (10%) of the gross value of all minerals mined, marketed and sold from the premises, said gross value being determined by payments received for all ores including bonuses and freight allowances but after deduction of actual costs of milling, smelting, treatment, cost of transporting the ores, and imposition of penalties of [sic] any; * * The provisions of the deed did not require the grantee to mine or develop the mineral interest in any manner, nor did the grantor retain any reversionary rights to the minerals conveyed. At the same time, Schwartzwalder, with the consent of the Whites, assigned his lease interest in the property to Denver-Golden Oil and Uranium Company for $275,000.
Relying on Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199, and like cases, the United States insists that the $175,000 is taxable as ordinary income subject to the allowance for depletion. The government asserts that, by virtue of the reservation of the so-called “royalty,” the taxpayers retained an “economic interest” in the property. Its position is that, regardless of the circumstances, the effect of reserving or retaining an “economic interest” in a transfer of minerals is that all amounts, including a lump sum payment, received by the transferor constitute ordinary income.
The Supreme Court has considered and utilized the concept of an “economic interest” in a number of cases involving mineral properties. E. g., Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747; Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347; Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062; Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343; Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277; Helvering v. Elbe Oil Land Dev. Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904; Helvering v. O’Donnell, 303 U.S. 370, 58 S.Ct. 619, 82 L.Ed. 903; Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897; Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324; Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489. Although the issue presented in these cases was uniformly whether the taxpayer was entitled to depletion allowances on periodic payments received by virtue of an interest in mineral producing properties, or, alternatively, whether certain income from mineral production should be attributed to one taxpayer or another, the principle of “economic interest” has been seized upon as dispositive in reaching a correct solution to all problems involving the taxation of transfers of mineral interests. E. G., Laudenslager v. Commissioner, 3 Cir., 305 F.2d 686; Albritton v. Commissioner, 5 Cir., 248 F.2d 49; Hamme v. Commissioner, 4 Cir., 209 F.2d 29, cert. denied 347 U.S. 954, 74 S.Ct. 679, 98 L.Ed. 1099; Gray v. Commissioner, 5 Cir., 183 F.2d 329; Choate v. Commissioner, 10 Cir., 141 F.2d 641, reversed on another point 324 U.S. 1, 65 S.Ct. 469, 89 L.Ed. 653; Hogan v. Commissioner, 5 Cir., 141 F.2d 92, cert. denied 323 U.S. 710, 65 S.Ct. 36, 89 L.Ed. 571; Commissioner of Internal Revenue v. I. A. O’Shaughnessy, Inc., 10 Cir., 124 F.2d 33. Cf. McLean v. Commissioner, 5 Cir., 120 F.2d 942, cert. denied 314 U.S. 670, 62 S.Ct. 138, 86 L.Ed. 536; Cullen v. Commissioner, 5 Cir., 118 F.2d 651.
311 F.2d — 26
The depletion and income allocation cases are not the final word in determining the appropriate tax treatment of transfers of mineral interests. Barker v. Commissioner, 2 Cir., 250 F.2d 195; Robert M. Dann, 30 T.C. 499. The extent of the holding in Burnet v. Harmel, supra, is that bonuses, or royalties, from oil and gas leases are not income from the sale of capital assets within the meaning of the capital gains provisions of the taxing statute. However, as the Supreme Court said in Helvering v. Bankline Oil Co., supra, 303 U.S. at 367, 58 S.Ct. at 618:
“(T)he phrase ‘economic interest’ is not to be taken as embracing a mere economic advantage derived from production through a contractual relation to the owner, by one who has no capital investment in the mineral deposit. See Thomas v. Perkins, 301 U.S. 655, 661 [57 S.Ct. 911, 81 L.Ed. 1324].”
See Commissioner of Internal Revenue v. Remer, 8 Cir., 260 F.2d 337. In Helvering v. Elbe Oil Land Dev. Co., supra, 303 U.S. at 375, 58 S.Ct. at 622, in considering a factual situation much like the one here, the Supreme Court said:
“We agree with the conclusion of the Board of Tax Appeals that the contract between the respondent and the Honolulu Company provided for an absolute sale of all the properties in question, including all the oil and gas in place, and that respondent did not retain any interest or investment thei*ein. The aggregate sum of $2,000,000 was paid as an agreed purchase price to which was to be added the one-third of the net profits payable on the conditions specified. We are unable to conclude that the provision for this additional payment qualified in any way the effect of the transaction as an absolute sale or was other than a personal covenant of the Honolulu Company. See Helvering v. O’Donnell [303 U.S.], ante, p. 370 [58 S.Ct. 619, 82 L.Ed. 903]. In this view, neither the cash payments nor the agreement for a share of subsequent profits constituted an advance royalty, or a ‘bonus’ in the nature of an advance royalty, within the decisions recognizing a right to the depletion allowance with respect to payments of that sort. Such payments are made to the recipient as a return upon his capital investment in the oil or gas in place. See Burnet v. Harmel, 287 U.S. 103, 111, 112 [53 S.Ct. 74, 77 L.Ed. 199]; Murphy Oil Co. v. Burnet, 287 U.S. 299, 302 [53 S.Ct. 161, 77 L.Ed. 318]. * * *”
It is apparent from the quoted language that the Supreme Court has not intended that the Palmer v. Bender, supra, theory of economic interest is to govern all transfers of mineral interests involving future payments to be made from production. See West v. Commissioner, 5 Cir., 150 F.2d 723, cert. denied 326 U.S. 795, 66 S.Ct. 488, 90 L.Ed. 484.
In another group of cases the federal courts, including the Tax Court, have relied upon a finding as to the intent of the parties, their dominant purpose in entering into the transaction, or the true substance of the transaction, in holding that sales of mineral interests were effected so that taxation of the proceeds was governed by the capital gains provisions. Linehan v. Commissioner, 1 Cir., 297 F.2d 276; Barker v. Commissioner, supra; Crowell Land and Mineral Corp. v. Commissioner, 5 Cir., 242 F.2d 864; Robert M. Dann, supra. Cf. Albritton v. Commissioner, supra. Several cases have reached results on facts similar to the instant case which lead to a conclusion that the transfer made here was an outright sale, and that the provision for sharing in subsequent production did not necessarily characterize the cash payment as an advance royalty or a bonus in the nature of an advance royalty. Maude W. Olinger, 27 T.C. 93. Cf. Griffith v. United States, D.Wyo., 180 F.Supp. 454. See Commissioner of Internal Revenue v. Remer, supra; Gowans v. Commissioner, 9 Cir., 246 F.2d 448. The Whites retained no investment or interest, economic or otherwise, in the minerals in place. The purchaser was free to remove the minerals, or not, as it saw fit. If there was production, the taxpayer was entitled to an additional payment. In this context the economic interest principle advanced by the United States is wholly a legal fiction. We hold that there was a sale of the minerals, and that the $175,000 payment as part of the consideration therefor, was properly treated as a capital gain for income tax purposes. We do not reach the question of whether the payments to be made from production amount to the reservation of an economic interest which would require a différent tax treatment of the income from that source. See United States v. Witte, 5 Cir., 306 F.2d 81.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_genresp2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
PRESTON et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND et al.
No. 7494.
Circuit Court of Appeals, Sixth Circuit.
June 9, 1938.
William L. Frierson, of Chattanooga, Tenn. (W. D. Moon, William L. Frierson, Cantrell, Meacham & Moon, and Williams & Frierson, all of Chattanooga, Tenn., on the brief), for appellants.
Vaughn Miller, of Chattanooga, Tenn., (Vaughn Miller, Miller, Miller & Martin, and Floyd' Estill, all of Chattanooga, Tenn., on the brief), for appellees.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
ALLEN, Circuit Judge.
Appeal from a decree against Charles E. Watson, a former county court clerk of Hamilton County, Tennessee, and the individual sureties on his bond. Two of the sureties obtained a severance from the other surety, and appealed. Watson has not appealed, and a motion to dismiss the appeal has been filed upon the ground that he was not joined in the appeal nor detached by summons and severance. Appellants assert that Watson has no interest in their controversy on appeal, and that the motion must be denied upon the authority of Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340, which held that when the interest of a defendant is separate from that of other defendants, he may appeal without them.
We think the Winters Case is clearly distinguishable from that presented here. There the non-appealing defendants had failed to answer and a judgment pro confesso had been taken against them, so that they were absolutely barred and precluded from questioning the correctness of the decree, unless manifest error appeared. But here Watson is not precluded from questioning the correctness of the decree, herein and the liability of the sureties is necessarily involved with and grows out of the liability of Watson, the principal on the bond.
Appellants in effect contend that the-question of their liability is a matter to be determined apart from Watson’s liability,, and that hence neither joinder nor severance of Watson is necessary in this appeal. But the decree holds Watson and his sureties jointly liable.
This court cannot undertake to explore the record to ascertain what issues-were relied on in the court below. It must accept the judgment as entered. Hartford. Accident & Indemnity Co. v. Bunn, 285 U. S. 169, 52 S.Ct. 354, 76 L.Ed. 685. Since the judgment is joint in form, and no reason appears upon its face why both Watson- and the sureties might not appeal, it follows either that Watson should have joined in. the appeal or that there should have been a summons and severance in order to detach Watson from his right of appeal. Humes v. Third National Bank, 5 Cir., 54 F. 917; H. E. Wolfe Construction Co. v. Fersner, 4 Cir., 58 F.2d 27; Holbrook, Cabot & Daly Contracting Co. v. Menard, 2 Cir., 145 F. 498. Cf. City of Detroit v. Guaranty Trust Co. of N. Y., 6 Cir., 168 F, 608; Oakland County, Mich., v. Hazlett, 6 Cir., 87 F.2d 795.
The motion is sustained; and the appeal is dismissed'.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
GOVERNMENT OF the VIRGIN ISLANDS v. Raphael PARROTT, Appellant.
No. 71-1934.
United States Court of Appeals, Third Circuit.
Argued Jan. 29, 1973.
Decided April 18, 1973.
Joseph L. Costello, Bryant & Costello, Christiansted, St. Croix, V. I., for appellant.
Gary P. Naftalis, Sp. Asst. U. S. Atty., S. D. New York, New York City, for appellee.
Before MARIS, VAN DUSEN and ROSENN, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
This is an appeal by the defendant from a judgment of the District Court of the Virgin Islands convicting him of robbing one Howard Hambler of a sum of money. The offense was committed in the evening when Hambler was walking with two companions on the Long Bay Road in the vicinity of the Paul M. Pearson Gardens in St. Thomas. The defendant did not demand a jury trial and the case was tried to the judge alone. The defendant was identified in court by Hambler and by one Samuel Davis who lived in Pearson Gardens, knew the defendant and who came to Hambler’s assistance at the time of the robbery. The defendant testified that during the evening in question he was playing basket ball in Pearson Gardens, was later playing cards there and at the time of the robbery was in a nearby restaurant. He produced a number of witnesses who testified that they were with, or saw, or spoke to him at various times on the evening in question. Concluding that the government witnesses were credible, that there were conflicts in the testimony of the defendant and his witnesses, and that in any event the defendant under his own evidence could have committed the robbery, the trial judge found the defendant guilty beyond a reasonable doubt of the offense charged and entered the judgment of conviction here appealed from.
On this appeal the defendant contends that the trial judge’s finding of guilty was not supported by the evidence. It is argued that the defendant’s evidence that he was elsewhere when the crime was committed raised a reasonable doubt which required a finding of not guilty. Our consideration of the evidence which was before the trial judge satisfies us, however, that it amply supports the finding of guilty. The “elsewhere” where the defendant claims to have been and where his witnesses said they saw him, was in fact in the immediate vicinity of the scene of the robbery, which he could have committed without absenting himself for any substantial period of time from the places where he claimed to have been. We find no merit in the contention of the defendant that the evidence did not support his conviction.
The defendant further contends, a contention asserted for the first time on this appeal, that he was denied the right to a jury trial because he was not accorded such a trial although he did not expressly waive it in the manner prescribed by Rule 23(a) of the Federal Rules of Criminal Procedure. Admittedly he did not demand such a trial, as is required by section 26, as amended, of the Revised Organic Act of the Virgin Islands. The question is thus squarely raised as to whether the procedure for determining whether or not the defendant desires to exercise his right to a jury trial in a criminal case in the District Court of the Virgin Islands is governed by Rule 23(a), F.R.Cr.P., or by section 26 of the Revised Organic Act.
It is clear that whatever may have been the situation in the Virgin Islands prior to 1968, section 11 of the Act of August 23, 1968, 82 Stat. 837, 841, by extending the Sixth Amendment to the Constitution of the United States to the territory conferred upon persons accused of crimes triable in the District Court of the Virgin Islands the right to trial by jury. It is equally clear that this right is a privilege which need not be invoked if the accused does not desire to do so. Patton v. United States, 1930, 281 U.S. 276, 50 S.Ct. 253, 74 L. Ed. 854; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268.
The question before us, however, is not the existence of the right to trial by jury but rather the procedure by which an accused may exercise his option whether or not to invoke the right. One form of procedure would be to require the accused desiring to enjoy the right to a trial by jury to demand it of the court and to assume in the absence of such a demand that he does not desire a jury trial. This is the procedure provided by section 26 of the Revised Organic Act. Another approach would be to require the accused who does not desire to exercise the right to a jury trial so to state to the court and to assume in the absence of such a statement that the accused desires such a trial. This, of course, is the procedure provided by Rule 23(a) of the Federal Rules of Criminal Procedure.
The question accordingly comes down to whether Rule 23(a), F.R.Cr.P., or section 26 of the Revised Organic Act controls the procedure in this regard in the District Court of the Virgin Islands. Rule 23(a) was one of the original rules of criminal procedure which were adopted by the Supreme Court on December 26, 1944, pursuant to the Act of June 29, 1940, 54 Stat. 688, which was subsequently codified in Title 18, U.S.C., as § 3771. By Rule 54(a)(1) the rules were made applicable, inter alia, to the District Court of the Virgin Islands.
The Revised Organic Act of the Virgin Islands was enacted by the Act of July 22, 1954, 68 Stat. 497. Section 26 of the Act in its original form carried forward the provisions of section 31 of the Organic Act of 1936, 43 Stat. 1814, in substantially their original form. Section 26 was amended, however, by section 8 of the Act of August 28, 1958, 72 Stat. 1095. In its amended form, the section was drastically rephrased so as to make perfectly clear that a defendant would receive a jury trial if he demanded it. That it was the intention of Congress to clarify this appears from the legislative history. The procedural rule embodied in Rule 23(a) of the Federal Rules of Criminal Procedure, having been adopted by the Supreme Court pursuant to Congressional authority, was subject to being repealed, amended or superseded in whole or in part by Congress as well as by the Court. Hawkins v. United States, 1958, 358 U.S. 74, 78, 79 S.Ct. 136, 3 L.Ed.2d 125. We think that this is exactly what has happened here and that by the Congressional amendment in 1958 of section 26 of the Revised Organic Act the procedural provisions of that section have superseded, for the District Court of the Virgin Islands, the earlier provisions of Rule 23(a), F.R.Cr.P. The provisions of section 26 as amended thereby became the Congressionally established procedure under which an accused in the Virgin Islands invokes his right to a trial by jury.
The procedure thus established by Congress for the Virgin Islands, namely, that the duty is laid upon the accused to ask for a jury trial if he desires one, appears to be quite appropriate for the territory in view of the fact that the use of a jury in the trial of criminal eases is of comparatively recent origin in the Islands. There is no ancient or deep-seated tradition that jury trial is the usual and preferred method of trial, as is true in the continental United States. On the contrary, the use of a jury in criminal cases appears to have been first introduced in the Virgin Islands by the Municipal Codes of 1920 and 1921, and then only for felony cases if demanded by the accused. Prior to that time and in the time of Danish rule the use of juries was unknown and criminal trials were by the presiding judge alone or with associate lay judges. This would appear to have been a not impermissible procedure. And we may take judicial notice of the fact that even after jury trials became permissible their use was the rare exception until quite recently and even today a great many criminal cases continue to be tried to the judge alone in accordance with the older tradition.
We recognize that the right to a jury trial under the Sixth Amendment is not effectively waived unless there is a knowing and intelligent waiver of such right by the defendant himself, as required in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See also Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Adams v. United States ex rel. McCann, 317 U.S. 269, 280-281, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ; Patton v. United States, 281 U.S. 276, 312-313, 50 S.Ct. 253, 74 L.Ed. 854 (1930). We are in no way persuaded that the traditional Virgin Islands practice now codified in section 26 is inconsistent with the constitutional requirement that a waiver be knowing and intelligent. In Johnson v. Zerbst, the Court said, inter alia: “The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused.” 304 U.S. at p. 464, 58 S. Ct. at p. 1023.
We believe that the procedure now assured by the Criminal Justice Act of 1964, 18 U.S.C.A. § 3006A, under which every defendant in the District Court of the Virgin Islands who cannot afford to retain counsel is provided with counsel at the expense of the United States, will in most cases result in knowledge by the accused that he has the right to request a jury trial and must make such request. Thus, with the rarest exceptions, every person accused of crime who appears in the district court has the benefit of the advice of counsel who, of course, knows of his client’s basic right to a jury trial and should clearly and positively inform him of it, so that it may be decided whether or not, as a matter of trial strategy, the right should be demanded.
On the record in the present case, defendant does not allege that he did not know of his right to a jury trial and that he was not in a position to make an informed choice. He was advised by a lawyer of his choice, the late Francisco Corneiro, one of the ablest members of the Virgin Islands bar, who was a former United States Attorney and Attorney General of the territory. Under these circumstances, he has no grounds to complain that he did not receive the jury trial for which he did not ask.'
The defendant’s remaining contentions are so wholly without merit as to require no discussion.
The judgment of the district court will be affirmed.
. “Rule 23. Trial by Jury or by the Court (a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.”
. “All criminal cases originating in the district court shall be tried by jury upon demand by the defendant or by the Government. If no jury is demanded the case shall be tried by the judge of the district court without a jury, except that the judge may, on his own motion, order a jury for the trial of any criminal action. The legislature may provide for trial in misdemeanor cases by a jury of six qualified persons.” 48 U.S.C.A. § 1616.
. For a discussion of this see Government of the Virgin Islands v. Bodle, 3 Cir. 1970, 427 F.2d 532, footnote 1.
. Senate Report No. 2267, 85th Congress, 2d session, on H.R. 12303, U.S.Code Cong. & Admin.News 1958, pp. 4334, 4336, which was enacted as the Act of August 28, 1958, states with respect to section 8:
“Section 8 clarifies section 26 of the Revised Organic Act of the Virgin Islands which concerns the right to trial by jury in criminal cases.”
. Code of Laws of the Municipality of St. Croix, approved June 15, 1920, effective August 1, 1920, Title V, Chap. 12, Sec. 1; Code of Laws of the Municipality of St. Thomas and St. John, approved March 17, 1921, effective July 1, 1921, Title V, Chap. 12, Sec. 1.
. See Soto v. United States, 3 Cir. 1921, 273 F. 628.
. Palko v. Connecticut, 1937, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288:
■ “ . . . The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not the very essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ . . New would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.”
. In the case of those rare defendants who choose to defend themselves without counsel, the district court should, of course, inform them of their right to demand a jury trial.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_const2
|
105
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel HUGUEZ-IBARRA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dagobastro OLIVARRIA-PALACIOS, Defendant-Appellant.
Nos. 88-1354, 88-1384.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 12, 1989.
Decided Jan. 21, 1992.
Peter B. Keller, Keller & Postero, Tucson, Ariz., for defendant-appellant Juan Huguez-Ibarra.
Stephen G. Ralls, Sean Bruner, Ralls & Bruner, Tucson, Ariz., for defendant-appellant Dagobastro Olivarria-Palacios.
Phillip G. Espinosa, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Before POOLE, REINHARDT and BEEZER, Circuit Judges.
POOLE, Circuit Judge:
Appellants Juan Huguez-Ibarra and Da-gobastro Olivarria-Palacios appeal their convictions for conspiracy to possess with intent to distribute and possession with the intent to distribute 500 grams or more but less than five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(B)(ii)(II). They were tried as co-defendants and their appeals have been consolidated.
They appeal the district court’s denial of their motions to suppress. Both also claim that the district court erred when it denied their motions to exclude from evidence notebooks found in their residence. Hu-guez-Ibarra alone alleges the district court erred when it allowed a receipt for the purchase of an automobile, found in the residence, to be admitted into evidence. Furthermore, Huguez-Ibarra challenges the district court’s denial of his motion for a mistrial or continuance based on the late disclosure of evidence. Finally, Huguez-Ibarra argues that the district court erred when it denied his proposed jury instruction on a so-called “lesser included offense.”
We conclude that the government agents lacked probable cause for their warrantless entry into Appellants’ residence. The evidence which the government obtained as a result of that entry should therefore have been suppressed. Because of the prejudicial impact which the inadmissible evidence potentially had on the jury, we reverse the convictions and remand for a new trial.
We have also concluded that the search warrant for the residence was not supported by probable cause. Accordingly, we reverse and remand to the district court for further proceedings to consider whether the evidence seized pursuant to the search warrants is nevertheless admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For the guidance of the district court in the event of retrial, we also discuss the other issues raised by Appellants in their appeals.
FACTS
In August 1987, United States Drug Enforcement Administration (DEA) agents received citizen complaints regarding a high level of vehicular traffic at 3701 East Dover Stravenue (“residence”), in Tucson, Arizona. In response to the citizen complaints, DEA Agents Teresa Gulotta and Alex Vazquez began drive-by surveillance of the residence several times a week in August 1987. Agents began extended surveillance in October 1987, while continuing to drive by periodically. Starting in December 1987 or January 1988, stationary surveillance of the residence was conducted one or two times a month. Agent Gulotta herself participated in stationary surveillance three or four times over the course of the investigation.
Over the course of the entire investigation, agents documented in excess of forty different vehicles at the residence. The agents ran checks on those vehicles, and found that some were registered to individuals reputed to be “affiliates” of narcotics organizations. Agents on occasion tried to follow vehicles departing the residence, and found them to drive in “an erratic and circuitous manner.” Several vehicles were stopped after leaving the residence, their occupants questioned, and the vehicles searched.
During the stationary surveillance, which lasted five or six hours, agents observed as many as six to eight vehicles pulling up to the residence, although the number of vehicles observed varied. Individuals would enter the residence, sometimes empty-handed and sometimes carrying boxes or bags. Visits would last anywhere from a few minutes to several hours, and then the visitors would return to their vehicles, sometimes carrying boxes and bags, and sometimes empty-handed. Agents also observed cars pulling into the carport, and on at least one occasion, a vehicle pulling through the carport and into the backyard. Agents noted that when the vehicle would reach the carport, the carport lights would be extinguished. Agents also on occasion observed “activity” surrounding the vehicles, but were unable to discern what was being done.
On April 29, 1988, at approximately 6:00 p.m., agents Vazquez and Gulotta, accompanied by other agents from the United States Customs Service and the United States Border Patrol, set up a stationary surveillance at the house. Two cars parked in front of the residence were joined by a Mercury Lynx (Mercury) and later a two-tone pick-up truck (pick-up). The occupants of the Mercury were seen entering the residence empty-handed and returning to their car with a white plastic shopping bag. They then drove away from the residence. The Border Patrol agents stopped the Mercury about two miles from the residence. Upon approaching the car, the agents detected the smell of marijuana. They brought a narcotics detection dog to the car, and the dog alerted to two suitcases visible in the car’s hatch area. The white plastic bag seen carried to the car was empty and a search of the car revealed no drugs. A subsequent search of the suitcases also failed to reveal any narcotics. The occupants of the Mercury were released.
When the dog alerted to the suitcases, the agents decided to seek a search warrant for the residence. Agent Gulotta ended her surveillance of the residence to obtain the warrant. After she left the surveillance area but before she could obtain the search warrant, Agent Vazquez with other agents stopped the pick-up. Agent Gulotta’s affidavit supporting the first search warrant contains no information regarding the events which took place after the stop of the Mercury. The stop of the pick-up occurred some time between 6:40 p.m. and 6:52 p.m. In response to questioning, the occupants of the pick-up denied having been at the residence. In addition to questioning the occupants, the agents brought a narcotics detection dog to the pick-up. The dog did not alert to the presence of drugs, and the agents released the pick-up.
At 7:20 p.m., Agent Vazquez made the decision to secure the residence until the search warrant could be obtained. He estimated that it would take two hours to obtain the search warrant and he was afraid that the occupants of the stopped vehicles would warn the residents of 3701 East Dover Stravenue. At approximately 7:36 p.m., Agent Vazquez and law enforcement agents drove up to the residence in one unmarked car and three marked cars. While approaching the residence, the agents saw the front door shut and the lights inside the residence go out. Agent Vazquez proceeded to the front door of the residence, knocked on the door, and announced his presence in Spanish and English. He heard rustling inside the residence. Receiving no response, he forced the front door open and entered the residence.
Agent Vazquez entered a bedroom and opened its bathroom door where he found a man, later identified as Huguez-Ibarra, holding an empty plastic bag, later found to contain cocaine residue, over a toilet. Agent Vazquez retrieved a semi-liquid slush from the toilet. The slush was found to be cocaine. A plastic bag and plastic sifter both containing cocaine residue, and money totaling approximately $10,000 were scattered around the toilet.
A second agent entered another bedroom and found Olivarria-Palacios in it. Both Huguez-Ibarra and Olivarria-Palacios were taken from the residence, and the agents waited outside for the search warrant. Until they entered the residence, the agents neither knew who lived in the residence nor had they actually found or seen any narcotics being carried into or out of the residence.
Upon obtaining the search warrant, the agents re-entered the residence. In the residence agents found a loaded Colt .38 revolver, phone bills, some rent receipts, and bottled water receipts in the name of Olivarria-Palacios. Inside the bedroom in which they found Olivarria-Palacios, the agents discovered two safes, one open and one closed. In the open safe they found a plastic bag containing cocaine residue, a notepad, a check payable to Olivarria-Pa-lacios, and an automobile receipt in the name of Juan Beltran Hughes. In the closed safe, opened at the DEA office pursuant to a second search warrant, agents found approximately three pounds (1,323.6 grams) of cocaine, about $9,000 in cash, and five more notebooks.
PROCEDURAL HISTORY
On May 18, 1988, Huguez-Ibarra and Olivarria-Palacios were charged in a two-count indictment with conspiracy to possess with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(l)(B)(ii)(II). Huguez-Ibarra and Oli-varria-Palacios filed various pre-trial motions. Among them were motions requesting a Franks hearing, the suppression of evidence seized in the warrantless entry, and the suppression of evidence seized in the subsequent entry pursuant to the search warrant.
In response, the district court redacted portions of the affidavit used to obtain the search warrant. The court then denied the motion for a Franks hearing and the motions to suppress, finding that probable cause existed to support a search warrant and, after the testimony of Agent Vazquez, that exigent circumstances existed to justify the warrantless entry.
On July 13, 1988, the first day of trial, the government revealed the existence of a videotape recording of activities surrounding the residence taken by a neighbor of the defendants. The government previously had turned the tape over to the the court for in camera review. Huguez-Ibarra’s motion to produce the tape was denied. On July 14, 1989 he renewed his motion to produce the tape, which was also denied. At the end of that day the court reconsidered and allowed Huguez-Ibarra’s attorney to view the tape before he cross-examined Agent Gulotta. For security reasons it was not introduced at trial.
The district court denied Appellants’ motions to exclude the notebooks allegedly detailing drug transactions as well as Hu-guez-Ibarra’s motion to exclude the car payment receipt. The notebooks were admitted with a limiting instruction. In addition, the court denied Huguez-Ibarra’s motion for a continuance or mistrial based on the late disclosure of the videotape and the agents’ notes. Finally, the court denied Huguez-Ibarra’s proffered jury instruction on a so-called “lesser included offense.”
Both Appellants were found guilty on each count of the indictment. On July 22, 1988, Huguez-Ibarra filed a motion for a new trial which was denied on September 16, 1988. On September 16, 1988, both Appellants were sentenced to six years imprisonment on both counts to run concurrently with one another.
DISCUSSION
1. The Motions to Suppress
Appellants have argued for suppression of evidence seized in the warrant-less search of the residence, and for evidence seized pursuant to the search warrants. We review de novo the trial court’s determination of the validity of a warrant-less entry into a residence. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.1989). In assessing the validity of the searches conducted pursuant to the warrants, we review the magistrate’s decision that probable cause existed for clear error. The district court’s determination of probable cause in a case with redacted affidavits is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).
A. The Warrantless Entry
The agents’ warrantless entry securing the residence was a seizure subject to the requirements of the Fourth Amendment. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987). The government has the burden of justifying the seizure under one of a few specifically established exceptions to the warrant requirement. To justify a warrantless entry, the government must demonstrate both probable cause and the existence of an exception to the warrant requirement, such as exigent circumstances. Lindsey, 877 F.2d at 780. Because we find that there was no probable cause, we need not consider whether exigent circumstances existed.
In reviewing a warrantless entry, it is up to this court “to make a practical, commonsense decision” whether based on the “totality of the circumstances” as known by the agents when they entered the residence there was a “fair probability that contraband or evidence of a crime” would be found inside. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Lindsey, 877 F.2d at 780.
The agents observed facts during the course of the investigation giving rise to a suspicion of illegal activity. However, the only evidence of narcotics ever uncovered during the vehicular stops — the narcotics detection dog alerting to the suitcases in the Mercury on April 29th — was discredited when a search of the suitcases failed to turn up any narcotics. In addition, as the agents themselves admitted, there was no connection between the suitcases and the residence — the occupants of the Mercury had entered the residence empty handed and had returned with only a bag, itself found to be empty.
The only other circumstance supporting an inference that the residence housed narcotics or evidence of narcotics trafficking was the ability of agents to trace automobiles frequenting the residence to “affiliates” of narcotics organizations or “facilitators” of narcotics trafficking. While such evidence is certainly relevant, it alone is not sufficient to transform otherwise legal (albeit suspicious) activity into circumstances supporting probable cause. This is especially true where, as here, the visitors to the residence had at best a tenuous and undefined relationship to narcotics trafficking. Such allegations show only that the residents of the house at 3701 East Dover Stravenue were acquaintances of acquaintances of individuals involved in the narcotics trade. Such twice-removed evidence, while not wholly irrelevant, cannot reasonably give rise to a “fair probability” that the residence was the locus of criminal activities. This is true even when combined with the unusual amount of vehicular traffic.
Since there was not probable cause supporting the warrantless entry of the residence, the evidence seized as a direct result of this illegal entry should have been suppressed. Segura v. United States, 468 U.S. 796, 812, 104 S.Ct. 3380, 3389, 82 L.Ed.2d 599 (1984).
B. Searches Pursuant to Warrants
In reviewing the magistrate’s decision that probable cause existed, we are limited to the information contained within the four corners of the affidavits supporting the application for the search warrant. United States v. Stanert, 762 F.2d 775, 778 (9th Cir.), amended, 769 F.2d 1410 (1985). The redacted affidavits in this case contained even less proof than that known to the agents who seized the residence, and thus were deficient for the same reasons as discussed above. We therefore find that the magistrate’s determination that sufficient probable cause existed to issue the warrant was clearly erroneous.
This, however, does not automatically require suppression. Under United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), evidence will not be suppressed if the government acted in good faith — i.e., if the agents’ reliance on the warrant was objectively reasonable. Because the reasonableness of the agent’s reliance on the facially valid search warrant was not addressed in the trial court, we remand for a hearing on this issue.
II. The Notebooks
Appellants assert that the court erred in admitting the notepads because the government did not sufficiently establish the factual predicate for their admission as co-conspirator statements. They argue that under United States v. Ordonez, 737 F.2d 793 (9th Cir.1984), the government was required to lay a foundation for admission of drug ledgers. Ordonez, however, held only that the hearsay rule prohibits the introduction of drug ledgers without a foundation when the ledgers are being admitted to prove the truth of the matters asserted in them. In this case the trial judge made clear in his limiting instructions to the jury that the ledgers were not being admitted to prove the truth of what was written in them. Instead, they were admitted to show that the type of activities charged in the indictment were being carried out in the residence. Thus, “the rule against hearsay was not implicated and the requirement of ‘a proper foundational showing for admitting the records to prove the truth of the matters asserted’ was not triggered.” United States v. Jaramillo-Suarez, 942 F.2d 1412, 1416 (9th Cir.1991).
Since it is not hearsay, such evidence may come in if there is a sufficient showing of relevance and authenticity and if its probative value outweighs undue prejudice. Id. at 1416-1417 (citing United States v. Wilson, 532 F.2d 641, 645 (8th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976)). The notebooks in this case were circumstantially authenticated because they were found in the Appellants’ home in safes with cocaine and documents bearing the Appellants’ names. They were further authenticated by the nature of their contents and the fact that they corroborated the testimony of government agents regarding the suspected drug-trafficking. We do not believe that the trial court abused its discretion in determining that the ledgers were sufficiently authenticated and relevant to come into evidence.
III.The Car Payment Receipt
Appellant Huguez-Ibarra argues that the district court erred in admitting into evidence a receipt for an automobile in the name of “Juan Hughes.” The receipt showed a cash payment of $4000.00 to Watson Chevrolet on March 18, 1988. It was found in the unlocked safe in the same room as the locked safe in which the cocaine was found. Appellant Huguez-Ibar-ra argues that the admission of this document violates the hearsay rule and the prejudice caused by it outweighs its probative value.
As was the case with the notebooks, the receipt falls outside of the hearsay doctrine because it was not offered for the purpose of proving the truth of its contents. See United States v. Campbell, 466 F.2d 529, 531 (9th Cir.), cert. denied, 409 U.S. 1062, 93 S.Ct. 571, 34 L.Ed.2d 516 (1972).
The fact that the name on the receipt was spelled differently than Huguez-Ibarra’s was fully probed. Defense counsel was permitted to attempt to establish that the receipt belonged to Juan Beltran Hughes and not the Appellant. In light of the foregoing, the district court did not abuse its discretion in allowing the receipt into evidence.
IV. The Videotape and Agent’s Notes
Huguez-Ibarra asserts that his conviction was based on an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and in light of this violation he should have been granted a mistrial or at the very least a continuance. It is well-settled that the suppression of evidence favorable to the accused upon request violates due process when the evidence is material to either guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196. Since, however, we reverse the Appellants’ conviction on other grounds, this argument is now moot. Appellants’ counsel have had access to all the information that was sought and, in the event of a retrial, will be fully able to employ that information in Appellants’ defense.
V. Huguez-Ibarra’s Requested Jury Instruction
Huguez-Ibarra asserts that the court erred in refusing to give the jury an instruction which would have allowed him to be convicted of possession of less than 500 grams of cocaine.
Huguez-Ibarra’s theory of the case at the beginning of the trial was to ask the jury to find him guilty only of possession of the drugs he was caught dumping in the toilet and not conspiracy or possession of the three pounds in the safe. The district court refused to instruct the jury on possession of the cocaine recovered from the toilet because the indictment did not charge Huguez-Ibarra with possession of that cocaine. Instead, both Appellants were charged with conspiracy and possession with intent to distribute the three pounds of cocaine found in the safe.
We see no grounds for granting the request for instructing the jury on a crime unconnected with the charges in the indictment. The prosecution enjoys broad discretion in choosing what charges to bring against criminal defendants. Since the government did not charge Huguez-Ibarra with possession of the approximately 74 grams of cocaine recovered from the toilet, the jury could not have rationally convicted him of possession of that cocaine, and consequently there was no error in the refusal to instruct the jury on the “lesser charge.” See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir.1986).
CONCLUSION
The judgment is REVERSED as to each count. The case is REMANDED to the district court for further proceedings consistent with this opinion.
. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
. One example is provided by the affidavit supporting the applications for search warrants, which observes that Clementina Rivera, one of the subscribers for utilities at the residence, was married to Jesus Arias "who was involved in a narcotics related shooting in 1984.” This fact, although more specific than many of the other allegations of involvement with narcotics trafficking, does little to support an inference that the residence was the site of illegal narcotics trade.
This would, of course, be a different case were there a specific showing that the individuals frequenting the residence had themselves been previously involved in narcotics trafficking. Even so, however, such evidence would not alone provide probable cause for a seizure of the residence.
. It is well established that mere association with known or suspected criminals does not give rise to probable cause. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979); United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984).
. The affidavit in support of the search warrant for the closed safe included information gained in the warrantless seizure of the residence. It goes without saying that this "fruit of the poisonous tree” is not to be considered in evaluating the existence of probable cause. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
.As we read the record, the district court denied Appellants’ motion for a Franks hearing on the ground that probable cause existed even without the allegedly false statements in the supporting affidavit. Since we reverse on the issue of probable cause, we direct the district court on remand to determine whether Appellants can make a "substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978).
. We note that a limiting instruction should have been given but was not, apparently due to the failure of defense counsel to request one. Prior to admitting the document the court asked defense counsel if he wanted a limiting instruction. Counsel moved to have the jury advised where the receipt was found but to withhold submitting the actual document to the jury. This motion was denied, and no limiting instruction was given. Huguez-Ibarra does not specifically raise the failure to give one on appeal.
. Huguez-Ibarra seems to have recognized this by arguing in his closing presentation that his theory of the case had changed — that now it was "all or nothing,” and that the jury could either convict him of possession of the three pounds or acquit him, but that it could not convict him for possession of the cocaine he was found dumping in the toilet.
Question: 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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songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MUTUAL TEL. CO. v. UNITED STATES.
No. 13284.
United States Court of Appeals Ninth Circuit.
April 27, 1953.
Rehearing Denied July 20, 1953.
Heaton L. Wrenn and Marshall M. Goodsill, Jr., Honolulu, Hawaii, for appellant, Mutual Tel. Co.
A. William Barlow, U. S. Atty. Honolulu, Hawaii, Ellis N. Slack, Acting Asst. Atty. Gen., Howard Locke, Robert N. Anderson and S. Dee Hanson, Sp. Assts. to Atty. Gen., for appellee.
Before ORR, Circuit Judge, and LING and BYRNE, District Judges.
ORR, Circuit Judge.
Appellant is an Hawaiian public utility corporation engaged in furnishing wire telephone service in the Hawaiian Islands. It is subject to the jurisdiction of the Public Utilities Commission of the Territory of Hawaii, hereinafter called Commission.
In 1941 appellant experienced an unusually heavy demand for new telephone service in Honolulu which became a burdensome load on its central office facilities and distribution plant. This difficulty was contributed to by existing restrictions on obtaining materials and supplies. In order to alleviate the situation a plan was worked out which, it was thought, would discourage the demand for new installations. In September, 1941, appellant petitioned the Commission for permission to increase its existing “installation” .and to establish a new “supersedure” charge. The requested increases were approved by the Commission and the increased collection authorized but definite limitations as to use and custody of the receipts were imposed. Pertinent provisions of Commission’s order are set out in- the margin.
On October 2, 1941, the increased installation and new supersedure charges went into effect and continued until May 1, 1942, when they were terminated by an order of the Commission. Appellant requested the Commission’s permission to recapture the amount of the increased rates as income. This request was denied because, as the Commission stated, this did not appear “to be the proper method by which this amount should be accounted for after giving consideration to the purposes for which these monies were obtained from subscribers.” The receipts from the increased charges had been placed by appellant in an account designated as “175.2.” The Commission decided that the accrued balance in this account should, until its further order, be considered as “Contribution to Telephone Plant” and remain in subaccount 175.2 and not be taken into the income account until the Commission authorized such action. This order was complied with by appellant and the amounts collected because of the increased rates were ascertainable at all times. Moneys collected from increased rates were intermingled with other moneys in the general treasury of appellant but appellant kept on hand at all times sufficient cash or marketable securities so that it could immediately comply with any order the Commission might make as to the disposition of the fund.
Appellant did not report amounts received from the increased charges in 1941 and 1942 as part of its gross income in its tax returns for those years. The Commissioner of Internal Revenue determined a deficiency of $36,728.39. This amount was paid by appellant. Claims for refund were made and disallowed and this action resulted.
The trial court held the receipts from the increased rates to be taxable income in 1941 and 1942. We disagree. We are pursuaded that the increased rates were not received by appellant “under a claim of right and without restriction as to its disposition." See North American Oil Consolidated v. Burnet, 1932, 286 U.S. 417, 424, 52 S.Ct. 613, 76 L.Ed. 1197. (Emphasis added.) The Commission possessed and exercised authority to direct retention of the lhoneys received from the increased rates. Certainly it cannot be said that the receipts came into the possession of appellant subject to its “unfettered command” and that it was free to enjoy the receipts at its option. See Corliss v. Bowers, 1930, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 604. The command exercised in this case emanated from the Commission which imposed upon the appellant the duty to hold in reserve an amount equal to the collections made at all times. The most that can be said is that appellant may have received the moneys under a claim of right but the remaining element necessary to constitute the collections in 1941-1942 taxable income, viz., “without restrictions,” is absent here. The Government argues that a correct application of the principle laid down in the long line of cases dealing with the claim of right doctrine compels an affirmance ofthe judgment in this case. We conclude that the proper interpretation of the Supreme Court’s decisions as applied to the facts of this case compel a contrary result. We think the Government has failed to correctly appraise the second requirement with which the cases deal. The controlled circumstances under which the moneys were received and the imposed restriction as. to disposition are the dominant factors here. The Commission’s order requires more than a mere bookkeeping detail. It in effect directs appellant to retain custody of the moneys or its equivalent until further disposition is directed. An order directing such disposition was entered by the Commission on February 24, 1949, and on March 1, 1949, appellant deposited, as directed, the moneys to the “Retirement System of Mutual Telephone Company” in Bank of Hawaii. Then, and not until -then, did the moneys become taxable to it.-
Appellant argued in its brief, but all but abandoned during oral argument, a contention that the increased “installation” and new “supersedure” charges did not become taxable income at any time.' In any event' we think the contention has no merit.
Reversed.
. “The company makes no showing that such an increase of revenue is required, and we believe it improper to allow the increase to go through in a manner that would permit the increase to be passed on to the common stockholders in the form of increased dividends.
tt * * *
“The increase over present charges would be credited to Account No. 175, Contributions to Telephone Plant, and in computing rates on an ‘investment basis’ would be a reduction from the net. investment in arriving at a rate base. In-
vostors would not require a return and subscribers would be spared paying a capital charge on same. On motion of the Commission or upon application of the Company, other disposition of the accrued balance might be made as conditions warranted.
u tk >}s >;c
“The Commission in approving the increase and establishment of said charges, does not intend that such approval is to be construed as a finding of reasonableness of such charges or practices and is of the opinion that said charges should
be but temporary, and that withdrawal of such approval should be made at such time as the Commission deemed appropriate.
ti * * *
“The amounts representing the increase in connection charges and charges for supersedure of service over and above those which are now being charged by petitioner in the same respective categories and the newly established charges for superseduro of service where no charge lias been previously made, shall be charged to Account No. 175, Contributions to Telephone Plant, the amounts so accruing to he segregated from other charges to said account.”
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
BACHELLAR et al. v. MARYLAND
No. 729.
Argued March 2, 1970
Decided April 20, 1970
Anthony O. Amsterdam argued the cause for petitioners. With him. on the brief was Fred E. Weisgal.
H. Edgar Lentz, Assistant Attorney General of Maryland, argued the cause for respondent. With him on the brief were Francis B. Burch, Attorney General, and Edward F. Borgerding, Assistant Attorney General.
Mr. Justice Brennan
delivered the opinion of the Court.
A jury in Baltimore City Criminal Court convicted petitioners of violating Md. Ann. Code, Art. 27, § 123 (1967 Repl. Vol.), which prohibits “acting in a disorderly manner to the disturbance of the public peace, upon any public street ... in any [Maryland] city . . .” The prosecution arose out of a demonstration protesting the Vietnam war which was staged between 3 and shortly after 5 o’clock on the afternoon of March 28, 1966, in front of a United States Army recruiting station located on a downtown Baltimore street. The Maryland Court of Special Appeals rejected petitioners’ contention that their conduct was constitutionally protected under the First and Fourteenth Amendments and affirmed their convictions. 3 Md. App. 626, 240 A. 2d 623 (1968). The Court of Appeals of Maryland denied certiorari in an unreported order. We granted certiorari, 396 U. S. 816 (1969). We reverse.
The trial judge instructed the jury that there were alternative grounds upon which petitioners might be found guilty of violating § 123. The judge charged, first, that a guilty verdict might be returned if the jury found that petitioners had engaged in “the doing or saying or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.” The judge also told the jury that “[a] refusal to obey a policeman’s command to move on when not to do so may endanger the public peace, may amount to disorderly conduct.” So instructed, the jury returned a general verdict of guilty against each of the petitioners.
Since petitioners argue that their conduct was constitutionally protected, we have examined the record for ourselves. When “a claim of constitutionally protected right is involved, it 'remains our duty ... to make an independent examination of the whole record/ ” Cox v. Louisiana (I), 379 U. S. 536, 545 n. 8 (1965). We shall discuss first the factual situation that existed until shortly before 5 o’clock on the afternoon of the demonstration, since the pattern of events changed after that time. There is general agreement regarding the nature of the events during the initial period.
Baltimore law enforcement authorities had advance notice of the demonstration, and a dozen or more police officers and some United States marshals were on hand when approximately 15 protesters began peacefully to march in a circle on the sidewalk in front of the station. The marchers carried or wore signs bearing such legends as: "Peasant Emancipation, Not Escalation,” “Make Love not War,” “Stop in the Name of Love," and “Why are We in Viet Nam?” The number of protesters increased to between 30 and 40 before the demonstration ended. A crowd of onlookers gathered nearby and across the street. From time to time some of the petitioners and other marchers left the circle and distributed leaflets among and talked to persons in the crowd. The lieutenant in charge of the police detail testified that he “overheard” some of the marchers debate with members of the crowd about “the Viet Cong situation,” and that a few in the crowd resented the protest; “[o]ne particular one objected very much to receiving the circular.” However, the lieutenant did not think that the situation constituted a disturbance of the peace. He testified that “[a]s long as the peace was not disturbed I wasn’t doing anything about it.”
Clearly the wording of the placards was not within that small class of “fighting words” that, under Chaplinsky v. New Hampshire, 315 U. S. 568, 574 (1942), are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace,” nor is there any evidence that the demonstrators’ remarks to the crowd constituted “fighting words.” Any shock effect caused by the placards, remarks, and peaceful marching must be attributed to the content of the ideas being expressed, or to the onlookers’ dislike of demonstrations as a means of expressing dissent. But “[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,” Street v. New York, 394 U. S. 576, 592 (1969); see also Cox v. Louisiana (I), supra; Edwards v. South Carolina, 372 U. S. 229 (1963); Terminiello v. Chicago, 337 U. S. 1 (1949), or simply because bystanders object to peaceful and orderly demonstrations. Plainly nothing that occurred during this period could constitutionally be the ground for conviction under § 123. Indeed, the State makes no claim that § 123 was violated then.
We turn now to the events that occurred shortly before and after 5 o’clock. The petitioners had left the marchers after half past 3 to enter the recruiting station. There they had attempted to persuade the sergeant in charge to permit them to display their antiwar materials in the station or in its window fronting on the sidewalk. The sergeant had told them that Army regulations forbade him to grant such permission. The six thereupon staged a sit-in on chairs and a couch in the station. A few minutes before 5 o’clock the sergeant asked them to leave, as he wanted to close the station for the day. When petitioners refused, the sergeant called on United States marshals who were present in the station to remove them. After deputizing several police officers to help, the marshals undertook to eject the petitioners.
There is irreconcilable conflict in the evidence as to what next occurred. The prosecution’s witnesses testified that the marshals and the police officers “escorted” the petitioners outside, and that the petitioners thereupon sat or lay down, “blocking free passage of the sidewalk.” The police lieutenant in charge stated that he then took over and three times ordered the petitioners to get up and leave. He testified that when they remained sitting or lying down, he had each of them picked up bodily and removed to a patrol wagon. In sharp contrast, defense witnesses said that each petitioner was thrown bodily out the door of the station and landed on his back, that petitioners were not positioned so as to block the sidewalk completely, and that no police command was given to them to move away; on the contrary, that as some of them struggled to get to their feet, they were held down by the police officers until they were picked up and thrown into the patrol wagon. The evidence is clear, however, that while petitioners were on the sidewalk, they began to sing “We Shall Overcome” and that they were surrounded by other demonstrators carrying antiwar placards. Thus, petitioners remained obvious participants in the demonstration even after their expulsion from the recruiting station. A crowd of 50-150 people, including the demonstrators, was in the area during this period.
The reaction of the onlookers to these events was substantially the same as that to the earlier events of the afternoon. The police lieutenant added only that two uniformed marines in the crowd appeared angry and that a few other bystanders “were debating back and forth about Bomb Hanoi and different things and I had to be out there to protect these people because they wouldn’t leave.” Earlier too, however, some of the crowd had taken exception to the petitioners’ protest against the Vietnam war.
On this evidence, in light of the instructions given by the trial judge, the jury could have rested its verdict on any of a number of grounds. The jurors may have found that petitioners refused “to obey a policeman’s command to move on when not to do so [might have endangered] the public peace.” Or they may have relied on a finding that petitioners deliberately obstructed the sidewalk, thus offending, disturbing, and inciting the bystanders. Or the jurors may have credited petitioners’ testimony that they were thrown to the sidewalk by the police and held there, and yet still have found them guilty of violating § 123 because their anti-Vietnam protest amounted to “the doing or saying ... of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.” Thus, on this record, we find that petitioners may have been found guilty of violating § 123 simply because they advocated unpopular ideas. Since conviction on this ground would violate the Constitution, it is our duty to set aside petitioners’ convictions.
Stromberg v. California, 283 U. S. 359 (1931), is the controlling authority. There the jury returned a general verdict of guilty against an appellant charged under a California statute making it an offense publicly to display a red flag (a) “as a sign, symbol or emblem of opposition to organized government,” (b) “as an invitation or stimulus to anarchistic action,” or (c) “as an aid to propaganda that is and was of a seditious character.” Id., at 361. This Court held that clause (a) was unconstitutional as possibly punishing peaceful and orderly opposition to government by legal means and within constitutional limitations. The Court held that, even though the other two statutory grounds were severable and constitutional, the conviction had to be reversed, because the verdict “did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. . . . [T]he necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” 283 U. S., at 368. See also Williams v. North Carolina, 317 U. S. 287 (1942); Terminiello v. Chicago, supra; Yates v. United States, 354 U. S. 298 (1957); Street v. New York, supra.
On this record, if the jury believed the State’s evidence, petitioners’ convictions could constitutionally have rested on a finding that they sat or lay across a public sidewalk with the intent of fully blocking passage along it, or that they refused to obey police commands to stop obstructing the sidewalk in this manner and move on. See, e. g., Cox v. Louisiana (I), supra, at 554-555; Shuttlesworth v. Birmingham, 382 U. S. 87, 99-91 (1965). It is impossible to say, however, that either of these grounds was the basis for the verdict. On the contrary, so far as we can tell, it is equally likely that the verdict resulted “merely because [petitioners’ views about Vietnam were] themselves offensive to some of their hearers.” Street v. New York, supra, at 592. Thus, since petitioners’ convictions may have rested on an unconstitutional ground, they must be set aside.
The judgment of the Maryland Court of Special Appeals is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The trial in the Criminal Court was de novo upon appeal from a conviction in the Municipal Court of Baltimore. The Criminal Court judge sentenced each petitioner to 60 days in jail and a $50 fine.
The statute was amended in 1968 but without change in the operative language involved in this case. See Md. Ann. Code, Art. 27, § 123 (c) (Supp. 1969).
Both elements of the instruction were based on the Maryland Court of Appeals’ construction of § 123 in Drews v. Maryland, 224 Md. 186, 192, 167 A. 2d 341, 343-344 (1961), vacated and remanded on other grounds, 378 U. S. 547 (1964), reaffirmed on remand, 236 Md. 349, 204 A. 2d 64 (1964), appeal dismissed and cert. denied, 381 U. S. 421 (1965). The instruction was “that disorderly conduct is the doing or saying or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area. It is conduct of such nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment because of it. A refusal to obey a policeman’s command to move on when not to do so may endanger the public peace, may amount to disorderly conduct.”
The trial judge refused to grant petitioners’ request that the jury be charged to disregard any anger of onlookers that arose from their disagreement with petitioners’ expressed views about Vietnam. For example, the judge refused to instruct the jury that “if the only threat of public disturbance arising from the actions of these defendants was a threat that arose from the anger of others who were made angry by their disagreement with the defendants’ expressed views concerning Viet Nam, or American involvement in Viet Nam, you must acquit these defendants. And if you have a reasonable doubt whether the anger of those other persons was occasioned by their disagreement with defendants’ views on Viet Nam, rather than by the conduct of the defendants in sitting or staying on the street, you must acquit these defendants.”
Petitioners’ conduct in the station is not at issue in this case, since the State did not prosecute them for their conduct in that place.
The local police officers were deputized as marshals because their local police powers did not extend to the federally operated recruiting station.
The defense evidence indicated that petitioners were on the sidewalk after their removal from the recruiting station for only five minutes. A prosecution witness testified that they were there for 15 or 20 minutes.
Maryland states in its brief, at 41-42, that “[obstructing the sidewalk had the legal effect under these circumstances of not only constituting a violation of ... § 123 . . . but also of Article 27, § 121 of the Maryland Code, obstructing free passage.” Had the State wished to ensure a jury finding on the obstruction question, it could have prosecuted petitioners under § 121, which specifically punishes “[a]ny person who shall wilfully obstruct or hinder the free passage of persons passing along or by any public street or highway . . .
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
sc_casedisposition
|
B
|
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.
LEWIS v. UNITED STATES.
No. 203.
Argued February 3, 1955.
Decided March 14, 1955.
Walter E. Gallagher argued the cause for petitioner. With him on the brief was Myron G. Ehrlich.
Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Marvin E. Frankel and Joseph A. Barry.
Mr. Justice Minton
delivered the opinion of the Court.
An information was filed in the Municipal Court of the District of Columbia charging the petitioner with violation of 26 U. S. C. § 3290 in that he engaged in the business of accepting wagers without paying the occupational tax imposed by that section. The Municipal Court sustained a motion to dismiss the information. The Municipal Court of Appeals for the District reversed, 100 A. 2d 40, and the Circuit Court of Appeals affirmed the Municipal Court of Appeals. 94 U. S. App. D. C.-, 214 F. 2d 853. We granted certiorari. 348 U. S. 810.
The questions presented in this case are: Does the Act, as applied to the petitioner in the District of Columbia, constitute a valid exercise of the taxing power or is it a penalty under the guise of a tax? Secondly, does it violate the Fifth Amendment’s prohibition as to compulsory self-incrimination? Thirdly, does it contravene the Fourth Amendment’s ban against unreasonable search and seizure? The first two questions were categorically answered in the negative, and the validity and constitutionality of the Act upheld by us in United States v. Kahriger, 345 U. S. 22; the third question is not substantially different from the second and is also controlled by Kahriger. The only material factual difference between that case and the instant case is that in Kahriger the violation occurred in a State, namely, Pennsylvania, while in the instant case the violation is charged to have taken place in the District of Columbia.
The statute, 26 TJ. S. C. § 3290, provides:
“A special tax of $50 per year shall be paid by each person who is liable for tax under subchapter A or who is engaged in receiving wagers for or on behalf of any person so liable.”
Another section, 26 TJ. S. C. § 3271, reads:
“Payment of tax — (a) Condition precedent to doing business.
“No person shall be engaged in or carry on any trade or business mentioned in this chapter until he has paid a special tax therefor in the manner provided in this chapter.”
Subchapter A, referred to in § 3290, provides in § 3285:
“(a) Wagers.
“There shall be imposed on wagers, as defined in subsection (b), an excise tax equal to 10 per centum of the amount thereof.”
These provisions must be read together, and when we do, it seems clear that payment of the special $50 tax is to be made prior to engaging in the business of accepting wagers.
We held in Kahriger that this statute was a constitutional exercise of the taxing power and was not a penalty under the guise of a tax. 345 U. S., at 2A-32. It is argued that that case involved wagering in a State, where such activity is not a violation of federal law, that the instant case arises in the District of Columbia, where wagering is by federal law a crime, D. C. Code, 1951, § 22-1501 et seq., and that this statute as applied to petitioner in the District of Columbia is a penalty in the guise of a tax. The short answer to this argument is that this Court has long held that the Federal Government may tax what it also forbids. United States v. Stafoff, 260 U. S. 477.
Secondly, it is contended by petitioner that the Act in question is unconstitutional because compliance compels self-incrimination in contravention of the Fifth Amendment. The Fifth Amendment provides that one cannot be compelled, in a criminal case, to be a witness against himself. It is a shield that prevents one from being convicted out of his own mouth by anything short of voluntary statements.
Petitioner maintains that the taxes imposed are retrospective in application. It is argued that he must be liable for the tax under subchapter A in the sense that he must have already wagered before he is required to take out the occupational tax, and that to require him to do so compels admission that he has gambled. We do not so read the statute. The Act does not mean one must first have made a wager as defined in subchapter A and therefore incurred liability to pay the tax levied therein before liability for the occupational tax attaches. The Act is wholly prospective and by its terms did not become applicable until November 1,1951, more than ten days after its enactment on October 20, 1951. See compiler’s note to 26 U. S. C. § 3285. The statute simply designates a class that is liable to pay the ten percent tax when a wager or wagers are made. Payment of the $50 tax here under consideration is a registration fee that must be paid before engaging in the business of wagering.
We said in Kahriger, supra, at 32-33: “Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions.” The condition here important was that petitioner must first pay the $50 tax, but that did not give him any license to engage in an unlawful business. License Tax Cases, 5 Wall. 462, 471. It only warned that if he proposed to carry on this particular business he must pay the tax.
If petitioner desires to engage in an unlawful business, he does so only on his own volition. The fact that he may elect to pay the tax and make the prescribed disclosures required by the Act is a matter of his choice. There is nothing compulsory about it, and, consequently, there is nothing violative of the Fifth Amendment. If he does not pay the occupational tax, proceeds to accept wagers, and is prosecuted therefor, as in this case, he cannot be compelled to testify and may claim his privilege. The only compulsion under the Act is that requiring the decision which would-be gamblers must make at the threshold. They may have to give up gambling, but there is no constitutional right to gamble. If they elect to wager, though it be unlawful, they must pay the tax.
And, finally, the petitioner argues that to require him to pay the tax and exhibit the stamp in his place of business, as required by 26 U. S. C. § 3293 of the Act, is to furnish probable cause for the issuance of a search warrant. This is just another facet of the Fifth Amendment argument, but the ready answer is that the petitioner has no stamp. If he does not purchase a stamp even though he wagers, which is this case, it is difficult to see how such failure would give probable cause for the issuance of a search warrant. His complaint is that if he had one he might get in trouble. Since petitioner is without a stamp, he is not in a position to raise the question as to what might happen to him if he had one.
The judgment is
Affirmed.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_trialpro
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
MURPHY v. CITY OF ASBURY PARK et al.
No. 8378.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 22, 1943.
Decided Jan. 14, 1944.
Ward Kremer, of Asbury Park, N. J. (Joseph F. Mattice, of Asbury Park, N. J., on the brief), for appellant.
Theodore D. Parsons, of Red Bank, N. J. (Parsons, Labrecque & Borden, of Red Bank, N. J., on the brief), for appellee.
Before TONES, GOODRICH, and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a personal injury case. The plaintiff was a passenger in an automobile, owned by John J. Bennett and operated by Peter A. Bennett, which collided with one of a series of structures erected on Ocean Avenue, Asbury Park, New Jersey, by that municipality. The accident happened about 6:00 P.M., January 20, 1940, on Ocean Avenue at its intersection with Sixth Avenue in that city. Ocean Avenue runs north and south. It is the most easterly thoroughfare of Asbury Park and is next to and parallels the ocean front. It is 54 feet, seven inches wide. It is a main highway, carrying much of the Asbury Park vehicular traffic and is crossed by pedestrians going to and from the beach. At the time of the accident, there was in existence, a set of standards at intervals along the center of Ocean Avenue for substantially its length, or at least for a number of blocks. The standards had bell-shaped concrete bases. The bottom diameter of such base was 4 feet, its height was 3L/z feet. From the top of the base, a vertical metal column extended about 10 feet further into the air. At the top of the column there was an electric light fixture. In addition, some of the poles had traffic lights attached to them. The particular standard identified with the collision, did not. It did, however, have an inlaid sign on its base reading “Sixth Avenue,” which was the east-west street opposite and deadending into Ocean Avenue. ' The particular base had painted on it the words “No center parking.”
The Bennett automobile had been proceeding north on Ocean Avenue and to avoid hitting a car, Peter Bennett turned out to his left and struck the standard. In the District Court, there was a judgment in favor of the plaintiff and against the driver, Peter Bennett, and the City of Asbury Park. This appeal is taken by the City of Asbury Park. The defendant, Peter Bennett, did not take any appeal.
It is evident that the standard was a part of Asbury Park’s lighting and traffic system on Ocean Avenue. The municipality itself installed and maintained that system, including the particular stanchion in question. The fundamental question in the case is whether it was authorized by law. If it was, then, as Judge Biggs, speaking for this Court, said in Delaware, Lackawanna & Western Railroad Company v. Chiara, 3 Cir., 95 F.2d 663, at page 664: “* * * members of the public, including the appellees, are required to take notice of its presence and situation, and the learned trial judge should have directed a verdict for the appellant as prayed for by it.”
It is not clear from the testimony just when the standards were erected. The only one of plaintiff’s witnesses who ventured to hazard a date, fixed the time as about 1927. Plaintiff’s attorney, in response to the Court’s questions, said that from the best proof they had, the standard had been erected approximately fifteen years prior to the trial date which was M ay 1942 and which woi:ld make the construction date approximately 1927. The date of construction is not mentioned in the trial court’s charge. However, in the opinion on the motion to set aside the verdict, the court, from language in one of the Asbury Park ordinances in evidence inferred that the standards were erected in 1921. In any event, 1921 is the earliest possible date.
In 1917, the New Jersey Legislature passed what is popularly called the “Home Rule Act” (P.L. 1917, Chapter 152, pages 319, 410, N.J.S.A. 40:42-1 et seq.). Paragraph 1, Article XXIV of that Act reads as follows: “1. The governing body of every municipality shall have power by ordinance to cause the streets and public places of such municipality to be lighted, to acquire all necessary lands and real estate for that purpose by purchase, gift or condemnation, and to erect thereon all necessary buildings and to equip the same with all necessary machinery and equipment, and to erect and maintain on or under said streets and public places all necessary poles, conduits, wires, fixtures and equipment, and to operate such lighting system at public expense.” N.J.S.A. 40:67-13.
That law as it reads was in effect in 1921. It will be noted that a municipality was directed to proceed by ordinance. In 1921, Asbury Park enacted its ordinance No. 335 which ordained “that the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue be installed and completed, and that the paving of Ocean Avenue Boulevard be completed * * In the same ordinance, the cost “for the extension and completion of the sewers and drains and bases for lamp standards in Ocean Avenue and for the completion of the paving of said Ocean Avenue” was estimated at $52,000.
In 1927 Asbury Park passed Ordinance No. 454 which referred to the previous Ordinance No. 335, saying that the work called for by the latter had been completed and authorizing a bond issue to pay for same.
In Paragraph 5(a) of Ordinance No. 454 appeared the following sentence in parenthesis: “(The original average periods of usefulness of said improvements being twenty years, six years of the period of said usefulness having already expired and leaving remaining fourteen years.)” This referred to all of the improvements mentioned in the ordinance, including “the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue.” It is from the above that the trial court assumed that the standard, with which we are concerned, was erected in 1921.
In 1923 a supplement to the 1917 Home Rule Act was enacted, P.L. 1923, Chapter 92, page 178, N.J.S.A. 40:67-16. That reads: “1. The governing body of every municipality shall have the power to establish safety zones, to erect, construct and maintain platforms, commonly called ‘safety isles’; to erect, construct, maintain and operate standards, commonly called ‘silent policemen,’ beacon lights, guide posts or other structures, which in its judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.”
As is seen, the 1923 statute contained-no restrictions on municipalities as to the necessity of proceeding by ordinance. This statute was more concerned with traffic regulation and control than with lighting, which latter had been the primary purpose of the 1917 Act.
A photograph of the stanchion, one of the exhibits in the case, was before this court on the argument of this appeal. It gives a general idea of the Ocean Avenue light and traffic setup. From it, and the other facts in the case, it is clear that the particular stanchion is authorized under both the 1917 and the 1923 statutes. It is in reality an ornamental pole or fixture set in a wide base and serving the double purpose of street lighting and traffic assistance. The appellant argues at length that the structure was not specifically authorized by either law. It is true that the Legislature did not in either Act, see fit to detail exact dimensions of “light poles” or of “standards, commonly called silent policemen, beacon lights, guide posts or other structures, which in its (the municipality) judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.” However, having in mind that both Acts were general laws, applying to every municipality in New Jersey and to an endless variety of local conditions, it is difficult to conceive how either law could be more specific and at the same time enable the municipalities of the State- to function for practical purposes under them, in the respects indicated. As was said in Denzer v. D., L. & W. R. Co., 103 N.J.L. 95, 134 A. 820, at page 821, by the New Jersey Court of Errors and Appeals: “* * * the inquiry must be whether the particular structure is authorized by law; and whether a structure in one place differs from one in another is beside the mark.”
Though it is extremely doubtful from the evidence, assuming that the standards were constructed in 1921, we think that the 1923 statute is applicable. That law, in addition to giving the municipalities the power to erect standards, etc., in the .same sequence specifically authorizes them to maintain and operate such standards, etc. The language fairly embraces municipal structures of the type designated as were in existence at the time the 1923 Act came into being and authorizes their maintenance and operation. The Legislature in its effort to assist municipalities with their then increasing traffic problems never intended to create chaos. It certainly did not intend forcing the municipalities of the entire 'State to make the stupid, costly gestures of tearing down existing traffic structures and immediately thereafter erecting similar ones guided entirely by their judgment as to what was necessary for the safety and convenience of persons and vehicles using the streets of the municipalities. That such retrospective law is valid seems well settled. Professor Dillon in his work on Municipal Corporations, 4th Edition 2, page 780 says: “By virtue of its authority over public ways, the legislature may authorize acts to be done in and upon them or legalize obstructions therein which would be otherwise deemed nuisances.”
In Calder v. Bull, 3 Dall. 386, at page 391, 1 L.Ed. 648, Justice Chase said:
“Every law that is to have an operation before the making thereof, as to commence at an antecedent time; * * * is retrospective. But such laws may be proper or necessary, as the case may be. * * *
“There are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement.”
The issue herejs controlled by New Jersey law and the statutes and decisions of that State have been carefully examined in this light. It is settled in New Jersey that there can be no recovery as the result of a collision with a legalized permanent obstruction on a highway. In Lorentz v. P. S. R. Co., 103 N.J.L. 104, 134 A. 818, 49 A.L.R. 989, which is a New Jersey Court -of Errors and Appeals case, an automobile collided with an elevated structure maintained by the defendant utility company on Central Avenue, Jersey City, New Jersey. It was shown that the structure was authorized by a New Jersey statute which contained a general authority to erect structures of that type. There was also an ordinance of Jersey City permitting its construction. The Court said at page 818 of 134 A.: “From what has been said it should be sufficiently obvious that the structure in question was a lawful one, sanctioned by legislative and municipal authority. It is elementary, of course, that any unlawful obstruction of the highway is prima facie a nuisance, and that the party responsible for it is liable in damages to the one injured thereby. This was the theory of the leading case of Durant v. Palmer, 29 N.J.L. 544. But it is equally well settled that the Legislature may legalize what would otherwise be a nuisance.”
The Chiara case, supra, also involved a personal injury claim arising out of a New Jersey accident and decided under New Jersey law. There, an automobile collided with the base of a support of defendant’s railroad bridge crossing Henderson Street, Jersey City. This Court said on page 664 of 95 F.2d: “The sole question presented for our consideration is whether or not the structure in question was a lawful one, sanctioned by legislative and municipal authority. Under the law of New Jersey, as construed by the Court of Errors and Appeals, any unlawful obstruction of a highway is prima facie a nuisance and the party responsible for it is liable in damages to one injured thereby. It is equally well settled that the Legislature may legalize what otherwise might be a nuisance.” Citing the Lorentz case and a number of other New Jersey decisions.
In this view of the case, since the standard was authorized by law, it follows that the question of alleged active negligence on the part of the municipality does not arise. The trial court should have directed a verdict for the appellant as prayed for by it.
The judgment of the District Court is reversed.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_petitioner
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029
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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.
HERNANDEZ v. TEXAS.
No. 406.
Argued January 11, 1954.
Decided May 3, 1954.
Carlos C. Cadena and Gus C. Garcia argued the cause for petitioner. With them on the brief were Maury Maverick, Sr. and John J. Herrera.
Horace Wimberly, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were John Ben Shepperd, Attorney General, and Rudy G. Rice, Milton Richardson and Wayne L. Hartman, Assistant Attorneys General, for respondent.
Mr. Chief Justice Warren
delivered the opinion of the Court.
The petitioner, Pete Hernandez, was indicted for the murder of one Joe Espinosa by a grand jury in Jackson County, Texas. He was convicted and sentenced to life imprisonment. The Texas Court of Criminal Appeals affirmed the judgment of the trial court.-Tex. Cr. R. -, 251 S. W. 2d 531. Prior to the trial, the petitioner, by his counsel, offered timely motions to quash the indictment and the jury panel. He alleged that persons of Mexican descent were systematically excluded from service as jury commissioners, grand jurors, and petit jurors, although there were such persons fully qualified to serve residing in Jackson County. The petitioner asserted that exclusion of this class deprived him, as a member of the class, of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution. After a hearing, the trial court denied the motions. At the trial, the motions were renewed, further evidence taken, and the motions again denied. An allegation that the trial court erred in denying the motions was the sole basis of petitioner’s appeal. In affirming the judgment of the trial court, the Texas Court of Criminal Appeals considered and passed upon the substantial federal question raised by the petitioner. We granted a writ of certiorari to review that decision. 346 U. S. 811.
In numerous decisions, this Court has held that it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury, or before a petit jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the State, whether acting through its legislature, its courts, or its executive or administrative officers. Although the Court has had little occasion to rule on the question directly, it has been recognized since Strauder v. West Virginia, 100 U. S. 303, that the exclusion of a class of persons from jury service on grounds other than race or color may also deprive a defendant who is a member of that class of the constitutional guarantee of equal protection of the laws. The State of Texas would have us hold that there are only two classes — white and Negro — within the contemplation of the Fourteenth Amendment. The decisions of this Court do not support that view. And, except where the question presented involves the exclusion of persons of Mexican descent from juries, Texas courts have taken a broader view of the scope of the equal protection clause.
Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a “two-class theory” — that is, based upon differences between “white” and Negro.
As the petitioner acknowledges, the Texas system of selecting grand and petit jurors by the use of jury commissions is fair on its face and capable of being utilized without discrimination. But as this Court has held, the system is susceptible to abuse and can be employed in a discriminatory manner. The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment. The Texas statute makes no such discrimination, but the petitioner alleges that those administering the law do.
The petitioner’s initial burden in substantiating his charge of group discrimination was to prove that persons of Mexican descent constitute a separate class in Jackson County, distinct from “whites.” One method by which this may be demonstrated is by showing the attitude of the community. Here the testimony of responsible officials and citizens contained the admission that residents of the community distinguished between “white” and “Mexican.” The participation of persons of Mexican descent in business and community groups was shown to be slight. Until very recent times, children of Mexican descent were required to attend a segregated school for the first four grades. At least one restaurant in town prominently displayed a sign announcing “No Mexicans Served.” On the courthouse grounds at the time of the hearing, there were two men’s toilets, one unmarked, and the other marked “Colored Men” and “Hombres Aqui” (“Men Here”). No substantial evidence was offered to rebut the logical inference to be drawn from these facts, and it must be concluded that petitioner succeeded in his proof.
Having established the existence of a class, petitioner was then charged with the burden of proving discrimination. To do so, he relied on the pattern of proof established by Norris v. Alabama, 294 U. S. 587. In that case, proof that Negroes constituted a substantial segment of the population of the jurisdiction, that some Negroes were qualified to serve as jurors, and that none had been called for jury service over an extended period of time, was held to constitute prima facie proof of the systematic exclusion of Negroes from jury service. This holding, sometimes called the “rule of exclusion,” has been applied in other cases, and it is available in supplying proof of discrimination against any delineated class.
The petitioner established that 14% of the population of Jackson County were persons with Mexican or Latin-American surnames, and that 11% of the males over 21 bore such names. The County Tax Assessor testified that 6 or 7 percent of the freeholders on the tax rolls of the County were persons of Mexican descent. The State of Texas stipulated that "“for the last twenty-five years there is no record of any person with a Mexican or Latin American name having served on a jury commission, grand jury or petit jury in Jackson County.” The parties also stipulated that “there are some male persons of Mexican or Latin American descent in Jackson County who, by virtue of being citizens, householders, or freeholders, and having all other legal prerequisites to jury service, are eligible to serve as members of a jury commission, grand jury and/or petit jury.”
The petitioner met the burden of proof imposed in Norris v. Alabama, supra. To rebut the strong prima facie case of the denial of the equal protection of the laws guaranteed by the Constitution thus established, the State offered the testimony of five jury commissioners that they had not discriminated against persons of Mexican or Latin-American descent in selecting jurors. They stated that their only objective had been to select those whom they thought were best qualified. This testimony is not enough to overcome the petitioner’s case. As the Court said in Norris v. Alabama:
“That showing as to the long-continued exclusion of negroes from jury service, and as to the many negroes qualified for that service, could not be met by mere generalities. If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the constitutional provision . . . would be but a vain and illusory requirement.”
The same reasoning is applicable to these facts.
Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner. The judgment of conviction must be reversed.
To say that this decision revives the rejected contention that the Fourteenth Amendment requires proportional representation of all the component ethnic groups of the community on every jury ignores the facts. The petitioner did not seek proportional representation, nor did he claim a right to have persons of Mexican descent sit on the particular juries which he faced. His only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded— juries selected from among all qualified persons regardless of national origin or descent. To this much, he is entitled by the Constitution.
Reversed.
Texas law provides that at each term of court, the judge shall appoint three to five jury commissioners. The judge instructs these commissioners as to their duties. After taking an oath that they will not knowingly select a grand juror they believe unfit or unqualified, the commissioners retire to a room in the courthouse where they select from the county assessment roll the names of 16 grand jurors from different parts of the county. These names are placed in a sealed envelope and delivered to the clerk. Thirty days before court meets, the clerk delivers a copy of the list to the sheriff who summons the jurors. Vernon’s Tex. Code Crim. Proc., 1948, Arts. 333-350.
The general jury panel is also selected by the jury commission. Vernon’s Tex. Rev. Civ. Stat., 1948, Art. 2107. In capital cases, a special venire may be selected from the list furnished by the commissioners. Vernon’s Tex. Code Crim. Proc., 1948, Art. 592.
See Carter v. Texas, 177 U. S. 442, 447.
“Nor if a law should be passed excluding all naturalized Celtic Irishmen [from jury service], would there be any doubt of its inconsistency with the spirit of the amendment.” 100 U. S., at 308. Cf. American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 92.
See Truax v. Raich, 239 U. S. 33; Takahashi v. Fish & Game Commission, 334 U. S. 410. Cf. Hirabayashi v. United States, 320 U. S. 81, 100: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”
Sanchez v. State, 147 Tex. Cr. R. 436, 181 S. W. 2d 87; Salazar v. State, 149 Tex. Cr. R. 260, 193 S. W. 2d 211; Sanchez v. State, 243 S.W. 2d 700.
In Juarez v. State, 102 Tex. Cr. R. 297, 277 S. W. 1091, the Texas court held that the systematic exclusion of Roman Catholics from juries was barred by the Fourteenth Amendment. In Clifton v. Puente, 218 S. W. 2d 272, the Texas court ruled that restrictive covenants prohibiting the sale of land to persons of Mexican descent were unenforceable.
Smith v. Texas, 311 U. S. 128, 130.
Smith v. Texas, supra, note 7; Hill v. Texas, 316 U. S. 400; Cassell v. Texas, 339 U. S. 282; Ross v. Texas, 341 U. S. 918.
We do not have before us the question whether or not the Court might take judicial notice that persons of Mexican descent are there considered as a separate class. See Marden, Minorities in American Society; McDonagh & Richards, Ethnic Relations in the United States.
The reason given by the school superintendent for this segregation was that these children needed special help in learning English. In this special school, however, each teacher taught two grades, while in the regular school each taught only one in most instances. Most of the children of Mexican descent left school by the fifth or sixth grade.
See note 8, supra.
The 1950 census report shows that of the 12,916 residents of Jackson County, 1,865, or about 14%, had Mexican or Latin-American surnames. U. S. Census of Population, 1950, Vol. II, pt. 43, p. 180; id., Vol. IV, pt. 3, c. C, p. 45. Of these 1,865, 1,738 were native-born American citizens and 65 were naturalized citizens. Id., Vol. IV, pt. 3, c. C, p. 45. Of the 3,754 males over 21 years of age in the County, 408, or about 11%, had Spanish surnames. Id., Vol. II, pt. 43, p. 180; id., Vol. IV, pt. 3, c. C, p. 67. The State challenges any reliance on names as showing the descent of persons in the County. However, just as persons of a different race are distinguished by color, these Spanish names provide ready identification of the members of this class. In selecting jurors, the jury commissioners work from a list of names.
R. 34.
R. 55. The parties also stipulated that there were no persons of Mexican or Latin-American descent on the list of talesmen. R. 83. Each item of each stipulation was amply supported by the testimony adduced at the hearing.
294 U. S., at 598.
See Akins v. Texas, 325 U. S. 398, 403; Cassell v. Texas, 339 U. S. 282, 286-287.
See Akins v. Texas, supra, note 16, at 403.
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_usc1
|
28
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Roderick PLUMMER, Raymond W. Armorer, Neville F. Caesar, Gwendolyn Moore, and all others similarly situated, Plaintiffs-Appellants, v. CHEMICAL BANK, Defendant-Appellant. Miguel A. Oppenheimer, Louis Straker, Herman L. Clark, James Morrison, Theodore Ferguson and Herman I. Taitt, Objectors-Appellees.
Nos. 289, 298, Dockets 81-7528, 81-7546.
United States Court of Appeals, Second Circuit.
Argued Sept. 30, 1981.
Decided Jan. 5, 1982.
Judith P. Vladeck, New York City (Vladeck, Elias, Vladeck & Engelhard, Joseph J. Garcia, Richard S. Corenthal and Andrew Schulz, New York City, on the brief), for plaintiff s-appellants.
Ronald M. Green, New York City (Epstein Becker Borsody & Green and Susan Schenkel-Savitt, New York City, on the brief), for defendant-appellant.
Sidney B. Silverman, New York City (Silverman & Harnes, Joan T. Harnes and Martin H. Olesh, New York City, on the brief), for objectors-appellees Herman I. Taitt, Louis Straker, Herman L. Clark, James Morrison and Miguel A. Oppenheimer.
Jose A. Rivera, Brooklyn, N. Y., for objector-appellee Theodore L. Ferguson.
William L. Robinson and Beatrice Rosenberg, Washington, D. C., (Lawyers’ Committee for Civil Rights under Law and Donna R. Lenhoff, Women’s Legal Defense Fund, Washington, D. C., on the brief), amicus curiae in support of plaintiffs-appellants.
Before LUMBARD, MOORE and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Plaintiffs and the defendant both appeal from an order of the United States District Court for the Southern District of New York, Conner, J., 91 F.R.D. 434, denying approval of the proposed settlement of an employment discrimination class action. The appeal which we agreed to expedite is properly before us. Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). For reasons hereafter stated, we hold that the district judge did not abuse his discretion in rejecting the settlement as it was presented to him. However, we believe that appellants should be given an opportunity to amplify the record where the district judge found support for the settlement to be wanting and to correct any remediable defects that the district court may find to exist. This affirmance is without prejudice therefore to a renewed application by appellants, with such changes, if any, in substance and procedure as court and counsel deem proper and with opportunity provided for proponents and objectors to establish such evidentiary matters as the district court deems necessary for making an informed decision.
On December 24, 1980, plaintiffs commenced this Rule 23(b)(2) class action alleging racial discrimination by the defendant Bank. The class which plaintiffs purported to represent consisted of all the black officials, managers, and professionals then employed by the Bank in New York City or who subsequently might become employed by the Bank in New York City. The complaint alleges that the defendant “differentiates between black and white employees with respect to all terms and conditions of employment, providing black employees with less favorable terms and conditions of employment.” In addition to declaratory and injunctive relief against the alleged unlawful practices, the complaint demands that class members be promoted or assigned to the positions they would have occupied had there been no discrimination. It demands that the named plaintiffs be made whole for all lost earnings but seeks only salary adjustments for the remaining class members.
Judge Conner quickly discovered that the filing of the complaint signaled, not the start of a journey, but the end of the road. Plaintiffs’ attorneys, acting as spokesmen for self-declared representatives of an uncertified class, had been negotiating with the Bank’s attorneys for almost two years, and a compromise of their differences was imminent when the complaint was filed. On February 4, 1981, the Bank filed its answer denying all allegations of wrongdoing. On February 10, 1981, plaintiffs’ attorneys presented the district court with a proposed settlement decree.
For the purposes of this opinion, a brief summary of the fifty-nine page decree will suffice. The decree adopts the complaint’s description of the class, i.e., all blacks currently or subsequently employed in official, managerial, or professional capacities. It sets up three-year affirmative action goals which the Bank must make a good faith effort to meet, requires more intensive recruitment of blacks, validated tests for training programs, career counseling for class members and the appointment of an ombudsman to assist in resolving disputes.
The proposed decree makes no provision, however, for advancement in rank of any of the unnamed class members who, like the named plaintiffs, were allegedly discriminated against. It likewise makes no provision for back pay awards to any of the unnamed discriminatees. It provides instead for “Promotion” and “Scholarship” payments. During the three-year term of the decree, any unnamed class member who is promoted into or within any of certain identified job groups is to be paid a “Promotion Payment” if his years of service at the Bank exceed by two or more years the average total number of years of white employees who had received a similar promotion during the previous year. The amount of the Promotion Payment will vary from a minimum of $1,500 to a maximum of $4,500, depending upon the recipient’s length of service in excess of the white average. The Bank’s total liability for these payments is not to exceed $300,-000. Each unnamed class member who is promoted into or within the official, managerial, or professional job groups, is entitled to a Scholarship Payment not to exceed $1,000, until a fund of $100,000 established by the Bank for this purpose is exhausted.
In contrast to these provisional awards, the decree provides that the four named plaintiffs are to receive immediate payments as follows: Plummer ($8,500), Armorer ($10,000). Moore ($17,500), Caesar ($17,500). In addition, Plummer is to be promoted to Senior Trust Officer/Assistant Vice President, Armorer to Supervising Auditor/Assistant Secretary, Moore to Senior Auditor, and Caesar to Senior Tax Specialist.
The district judge ordered that a hearing on the proposed decree be held and directed that a “Notice of Proposed Settlement” be sent by certified mail to all class members. He also directed that the notice be published in a newspaper of general circulation and that copies be posted on Bank bulletin boards. Although suit on behalf of the class was brought under Rule 28(b)(2), the notice to class members permitted them to opt out by filing a written request with “a brief statement of the reasons therefor.” Two hearings were held, at neither of which testimony was taken. By the time of the second hearing, twenty-five persons had indicated their opposition to the settlement and another twenty-five had opted out.
On July 10, 1981, Judge Conner filed an opinion and order denying appellants’ motion for approval of the settlement. Influenced in part by the Manual for Complex Litigation’s admonishment against pre-certification settlement negotiations, Judge Conner felt that the procedure followed in the instant case required him to take special care to assure himself that the settlement was fair, reasonable, and adequate. He concluded that the record before him was inadequate to support a responsible finding that the settlement was fair, reasonable, and adequate or that the “grossly disparate benefits” awarded the named plaintiffs were justified.
Appellants urge that we either make a de novo examination of the record and reverse the decision below or remand for further proceedings. Because our review of the record satisfies us that Judge Conner’s misgivings were warranted at least in part, we adopt the latter alternative.
Although tentative designations of class for settlement purposes are not uncommon, they have been the subject of considerable controversy. See In re Beef Industry Antitrust Litigation, 607 F.2d 167, 173-78 (5th Circuit 1979). Section 1.46 of the Manual for Complex Litigation suggests that ordinarily, before any settlement negotiations occur, there should be a class action determination and that, if settlement has been negotiated before class action determination and the appointment of a class representative, the court must be doubly careful in evaluating the fairness of the settlement. Readers of this opinion, who do not have ready access to the Manual, will find the reasons for its Board of Editors’ recommendations set forth in the Appendix of In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 183-84. The recommendations contained in the Manual were of sufficient merit to warrant the district judge’s consideration. See McDonald v. Chicago Milwaukee Corp., 565 F.2d 416, 420 (7th Cir. 1977); Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 33 (3d Cir. 1971).
Because of the limited control exercisable by class members, class settlements are susceptible to abuse. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir.), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1978). “The interest of lawyer and class may diverge, as may the interests of different members of the class, and certain interests may be wrongfully compromised, betrayed, or ‘sold out’ without drawing the attention of the court.” Id.; see In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 174. This is more likely to occur in a situation such as we have here, where the plaintiffs have negotiated to the verge of settlement before suit is brought and have then sued under Rule 23(b)(2), which requires no pre-certification notice to class members.
In City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), upon which appellants heavily rely, the settlement agreement was reached after more than three years of litigation, in which discovery had been virtually completed, all preliminary motions had been disposed of, and a motion for class certification was pending. Id. at 453. See also, In re Beef Industry Antitrust Litigation, supra, 607 F.2d 167, where “settlement was achieved only after several years of pending litigation”, id. at 176, and Brucker v. Thyssen-Bornemisza Europe N. V., 424 F.Supp. 679, (S.D.N.Y.1976), aff’d sub nom., Brucker v. Indian Head, Inc., 559 F.2d 1202 (2d Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 183 (1977), where “the settlement was not negotiated in the early stages of the dispute, but rather after the parties had engaged in considerable litigation.” 424 F.Supp. at 688. While the settlement negotiations in the instant case apparently proceeded on the basis of information voluntarily furnished by the Bank, some of this information was received by plaintiffs’ attorneys pursuant to a stipulation of confidentiality. In each of the foregoing cases, the court also was careful to note the absence of any conflict between the proposed class and its unofficial representative. See City of Detroit, 495 F.2d at 465; In re Beef, 607 F.2d at 179; Brucker, 424 F.Supp. at 688-89.
Although negotiations in the instant case were conducted by undesignated class representatives without formal pretrial discovery, this, standing alone, did not preclude judicial approval. However, the district judge was bound to withhold such approval until he had closely and carefully scrutinized the joint settlement proposal to make sure that it was fair, adequate and reasonable, and not influenced in any way by fraud or collusion. Greenfield v. Villager Industries, Inc., 483 F.2d 824, 833 (3d Cir. 1973). The district judge also had to satisfy himself that the named plaintiffs were adequate representatives of the entire class in this across-the-board type of settlement. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403-06, 97 S.Ct. 1891, 1896-98, 52 L.Ed.2d 453 (1977), and that plaintiffs had no interests which were antagonistic to those of other class members, Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968).
Indeed, if Judge Conner was not preliminarily satisfied that class members had been adequately represented in the settlement negotiations, he was empowered to explore that issue before submitting the proposed settlement to the class. See In re Traffic Executive Association-Eastern Railroads, 627 F.2d 631, 634 (2d Cir. 1980); Burwell v. Eastern Airlines, Inc., 68 F.R.D. 495, 499 (E.D.Va.1975). Although pre-certification notice is not required in Rule 23(b)(2) cases, Frost v. Weinberger, 515 F.2d 57, 65 (2d Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976), a district court has the discretionary power under Rule 23(d) to require that class members be notified of an opportunity to “signify whether they consider the representation fair and adequate.” Id. See Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 44-45 (N.D.Cal.1977); Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., 71 F.R.D. at 666, 671 (S.D.N.Y.1976).
Adequacy of representation and fairness of compromise are questions of fact for the district court. Johnson v. Georgia Highway Express Inc., 417 F.2d 1122, 1124 (5th Cir. 1969). Although we do not expect district judges to convert settlement hearings into trials on the merits, we do expect them to explore the facts sufficiently to make intelligent determinations concerning adequacy and fairness. In re Traffic Executive Association-Eastern Railroads, supra, 627 F.2d at 633. There must be some “evidentiary foundation” in support of the proposed settlement. Saylor v. Bastedo, 623 F.2d 230, 239 n.11 (2d Cir. 1980); see Mendoza v. United States, 623 F.2d 1338, 1348 (9th Cir. 1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). Some Circuits have held that the district court must make findings of fact and conclusions whenever the propriety of a settlement is in dispute. Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977); Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 834-36 (9th Cir. 1976); see Patterson v. Newspaper and Mail Deliverers’ Union, 384 F.Supp. 585, 588 (S.D.N.Y.1974), aff’d 514 F.2d 767 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976). If Title VII class settlements are to be treated henceforth as injunctions for purposes of appeal, see Carson v. American Brands, supra, 101 S.Ct. 993, it would seem that findings and conclusions should be made with respect to every controverted settlement in order to permit intelligent review. See United States v. Rohm & Haas Co., 500 F.2d 167, 177 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1352, 43 L.Ed.2d 439 (1975); Fed.R.Civ.P. 52(a). Moreover, those findings and conclusions should not be based simply on the arguments and recommendations of counsel. In re General Motors Corporation Engine Interchange Litigation, supra, 594 F.2d at 1125; Pettway v. American Cast Iron Pipe Co., supra, 576 F.2d at 1215-16; Saylor v. Lindsley, 456 F.2d 896, 900-01 (2d Cir. 1972).
The factors which the district court should consider in assessing proposed settlements have been discussed in detail in numerous opinions. See, e.g., In re General Motors Corporation Engine Interchange Litigation, supra, 594 F.2d at 1123-33; City of Detroit v. Grinnell Corp., supra, 495 F.2d at 463. Judge Conner correctly recognized these factors as appropriate for consideration in class actions alleging discrimination. See, e.g., Armstrong v. Board of School Directors, supra, 616 F.2d at 314-15; Boyd v. Bechtel Corp., 485 F.Supp. 610, 617 (N.D.Cal.1979); Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., supra, 76 F.R.D. at 175. When a district court approves a settlement which is not based upon “well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors”, its decision will not survive appellate review. Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 434, 88 S.Ct. 1157, 1168, 20 L.Ed.2d 1 (1968); Newman v. Stein, 464 F.2d 689, 692 (2d Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972); see Ashbach v. Kirtley, 289 F.2d 159, 163-66 (8th Cir. 1961); Upson v. Otis, 155 F.2d 606, 612-15 (2d Cir. 1946).
The record supports Judge Conner’s uncertainty concerning the fairness of the agreement and the adequacy of the class representation. Because there are only a limited number of supervisory positions in the Bank, all members of the proposed class, at least 500 of whom are current employees, could not be promoted. The possibility of an antagonism in interests as between plaintiffs and other class members seeking advancement could not be ignored. See Franks v. Kroger Co., 649 F.2d 1216, 1226 (6th Cir. 1981); Hill v. Western Electric Co., 596 F.2d 99, 101-02 (4th Cir.), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979); Air Line Stewards and Stewardesses Ass’n v. American Airlines, Inc., 490 F.2d 636, 640-42 (7th Cir. 1973); Gray v. International Brotherhood of Electrical Workers, 73 F.R.D. 638, 642 (D.D.C. 1977).
Appellees’ objections to plaintiffs’ preferential treatment are not satisfactorily answered with the argument that plaintiffs were the ones who filed charges with the Equal Employment Opportunity Commission and thereafter became the named party plaintiffs. At the time the EEOC charges were filed, plaintiffs’ attorneys purported to be acting as representatives of the entire class. No showing has been made that the attorneys offered their services to all class members for the purpose of filing charges or that those members were advised of the preferential treatment which would be given those who filed. Indeed, the notice of settlement itself failed to inform class members that plaintiffs were being given preferred treatment. There is nothing in the record to show that plaintiffs were discriminated against in any greater or different manner than were other class members.
It may be, of course, that the named plaintiffs’ claims are more meritorious than those of other class members. There is no proof in the record that the Bank ever discriminated against blacks as a class, and the Bank’s willingness to pay damages to the named plaintiffs does not mean that it would agree to pay similar sums to other class members. It is quite possible that unnamed class members would get nothing if forced to litigate their claims. Bearing all these possibilities in mind, we believe, nonetheless, that the district court properly exercised its discretion in requiring additional evidentiary support for the more generous treatment accorded plaintiffs in the proposed decree. See, e.g., Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., supra, 76 F.R.D. at 180-82.
In deciding whether to approve a proposed class settlement, the most significant factor for the district court is the strength of the claimants’ case balanced against the settlement offer. In re Traffic Executive Association-Eastern Railroads, supra, 627 F.2d at 633. In view of the fact that all class members who do not opt out of the proposed settlement are forever barred from any claim for race discrimination on or before the date of the decree, the district judge ought to be able to make a finding as to what those members are giving up. See, e.g., Krasner v. Dreyfus Corp., 500 F.Supp. 36, 45 (S.D.N.Y.1980). We have no doubt that the proposed consent decree will give class members more than they are receiving under the affirmative action plan presently in effect. The decree’s three-year affirmative action goal speeds up by several years the current goals. The Bank is committed to disbursing $400,000, and eligible class members will receive payments from this fund without the need to prove personal discrimination and damages. The appointment of an ombudsman is also a significant improvement over the current plan. However, the district court is required to weigh these advantages against the disadvantages, if any, that may result from the proposed decree. We agree with the district court that the facts were insufficiently developed to enable it intelligently to make such an appraisal.
In so holding, we do not mean to suggest that extensive pre-trial discovery is a prerequisite to approval or that obstructionist tactics by a minority of objecting class members should be permitted to turn a settlement hearing into a full blown trial on the merits. Having made this point, we see no need to direct the manner in which factual development should take place on remand.
The order appealed from is affirmed without prejudice and without costs, and the matter is remanded to the district court for further proceedings consistent with this opinion.
. The district court judge should not take it upon himself to modify the terms of the proposed settlement decree, nor should he participate in any bargaining for better terms. In re General Motors Corporation Engine Interchange Litigation, 594 F.2d 1106, 1125 n.24 (7th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979); Armstrong v. Board of School Directors, 471 F.Supp. 800, 804 (E.D. Wis.1979), aff'd, 616 F.2d 305 (7th Cir. 1980). However, a dissatisfied judge may, with circumspection, “edge” the parties in what he believes to be the right direction. Seigal v. Merrick, 590 F.2d 35, 39 (2d Cir. 1978).
. The Circuits differ as to whether opting-out is permissible in Rule 23(b)(2) actions. See, e.g., Laskey v. International Union, United Automotive, Aerospace and Agricultural Implement Workers, 638 F.2d 954, 956 (6th Cir. 1981); Penson v. Terminal Transport Co., 634 F.2d 989, 992-96 (5th Cir. 1981); Bauman v. United States District Court, 557 F.2d 650, 659-60 (9th Cir. 1977); Grigsby v. North Mississippi Medical Center, Inc., supra, 586 F.2d 457, 461 (5th Cir. 1978). Although that issue in its present posture has not yet been before this Court, the tenor of the opinions in this Circuit has been that opting-out is permissible only in Rule 23(b)(3) cases. See Robertson v. National Basketball Ass’n., 556 F.2d 682, 684-86 (2d Cir. 1977); Cullen v. New York State Civil Service Commission, 435 F.Supp. 546, 561 (E.D.N.Y. 1977), appeal dismissed, 566 F.2d 846 (2d Cir. 1977); Van Gemert v. Boeing Co., 259 F.Supp. 125, 130 (S.D.N.Y.1966). But see Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., 71 F.R.D. 666, 671 (S.D.N.Y.1976). If proposed class members are to be permitted to opt out, we find nothing in Rule 23 which requires them to file written reasons for their exercise of choice. Any reasonable indication of a desire to opt out should suffice. In re Four Seasons Securities Laws Litigation, 493 F.2d 1288, 1291 (10th Cir. 1974); 7A Wright & Miller, Federal Practice and Procedure § 1787 (1972).
. Eight of those who explained why they opted out said that they had not been discriminated against. One who sought exclusion wondered why plaintiffs were being paid a total of $55,-000 when discrimination had neither been proved nor admitted, and asked “If four people by filing suit can obtain compensation ranging from $8,500 to $17,500 without proving discrimination, why aren’t all members of the class being similarly compensated?” Another expressed a belief that many of the provisions of the decree “are already in place at Chemical Bank.”
. Nothing continued in Judge Conner’s opinion or in this Court’s opinion should be construed to impugn in any way the character or competence of counsel for either the plaintiffs or the defendant. Simply put, a court may not delegate to counsel the performance of its duty to protect the interests of absent class members.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_casesourcestate
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10
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
PALMORE v. UNITED STATES
No. 72-11.
Argued February 21, 1973
Decided April 24, 1973
White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 410.
Frank F. Flegal argued the cause and filed briefs for appellant.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Petersen, Deputy Solicitor General Lacovara, Keith A. Jones, Roger A. Pauley, and Marshall Tamor Golding.
Mr. Justice White
delivered the opinion of the Court.
Aside from an initial question of our appellate jurisdiction under 28 U. S. C. § 1257 (2), this case requires us to decide whether a defendant charged with a felony under the District of Columbia Code may be tried by a judge who does not have protection with respect to tenure and salary under Art. Ill of the Constitution. We hold that under its Art. I, § 8, cl. 17, power to legislate for the District of Columbia, Congress may provide for trying local criminal cases before judges who, in accordance with the District of Columbia Code, are not accorded life tenure and protection against reduction in salary. In this respect, the position of the District of Columbia defendant is similar to that of the citizen of any of the 50 States when charged with violation of a state criminal law: Neither has a federal constitutional right to be tried before jhdges with tenure and salary guarantees.
I
The facts are uncomplicated. In January 1971, two officers of the District of Columbia Metropolitan Police Department observed a moving automobile with license tags suggesting that it was a rented vehicle. Although no traffic or other violation was then indicated, the officer stopped the vehicle for a spot-check of the driver’s license and car-rental agreement. Palmore, the driver of the vehicle, produced a rental agreement from the glove compartment'of the car and explained why the car appeared to be, but was not, overdue. During this time, one of the officers observed the hammer mechanism of a gun protruding from under the armrest in the front seat of the vehicle. Palmore was arrested and later charged with the felony of carrying an unregistered pistol in the District of Columbia after having been convicted of a felony, in violation of the District of Columbia Code, §22-3204 (1967). He was tried and found guilty in the Superior Court of the District of Columbia.
Under Title I of the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473 (Reorganization Act), the judges of the Superior Court are appointed by the President and serve for terms of 15 years. D. C. Code Ann. §§ 11-1501 (a), 11-1502 (Supp. V, 1972). Palmore moved to dismiss the indictment against him, urging that only a court “ordam[ed] and establish [ed]” in accordance with Art. Ill of the United States Constitution could constitutionally try him for a felony prosecution under the District of Columbia Code. He also moved to suppress the pistol as the fruit of an illegal search and seizure. The motions were denied in the Superior Court, and Palmore was convicted.
The District of Columbia Court of Appeals affirmed, concluding that under the plenary power to legislate for the District of Columbia, conferred by Art. I, § 8, cl. 17, of the Constitution, Congress had “constitutional power to proscribe certain criminal conduct only in the District and to select the appropriate court, whether it is created by virtue of article III or article I, to hear and determine these particular criminal cases within the District.” 290 A. 2d 573, 576-577 (1972). Palmore filed a notice of appeal with the District of Columbia Court of Appeals and his jurisdictional statement here, purporting to perfect an appeal under 28 U. S. C. § 1257 (2). We postponed further consideration of our jurisdiction to review this case by way of appeal to the hearing on the merits. 409 U. S. 840 (1972).
II
Title 28 U. S. C. § 1257 specifies the circumstances under which the final judgments of the highest court of a State may be reviewed in this Court by way of appeal or writ of certiorari. As amended in 1970 by § 172 (a)(1) of the Reorganization Act, 84 Stat. 590, the term “highest court of a State” as used in § 1257 includes the District of Columbia Court of Appeals. Appeal lies from such courts only where a statute of the United States is struck down, 28 U. S. C. § 1257 (1), or where a statute of a State is sustained against federal constitutional attack, id., § 1257 (2). Because the statute at issue was upheld in this case, an appeal to this Court from that judgment lies only if the statute was a “statute of any state” within the meaning of § 1257 (2). Palmore insists that it is, but we cannot agree.
The 1970 amendment to § 1257 plainly provided that the District of Columbia Court of Appeals should be treated as the “highest court of a State,” but nowhere in § 1257, or elsewhere, has Congress provided that the words “statute of any state,” as used in § 1257 (2), are to include the provisions of the District of Columbia Code. A reference to “state statutes” would ordinarily not include provisions of the District of Columbia Code, which was enacted, not by a state legislature, but by Congress, and. which applies only within the boundaries of the District of Columbia. The District of Columbia is constitutionally distinct from the States, Hepburn v. Ellzey, 2 Cranch 445 (1805); cf. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582 (1949). Nor does it follow from the decision to treat the District of Columbia Court of Appeals as a state court that the District Code was to be considered a state statute for the purposes of § 1257. We are entitled to assume that in amending § 1257, Congress legislated with care, and that had Congress intended to equate the District Code and state statutes for the purposes of § 1257, it would have said so expressly, and not left the matter to mere implication.
Jurisdictional statutes are to be construed “with precision and with fidelity to the terms by which Congress has expressed its wishes,” Cheng Fan Kwok v. INS, 392 U. S. 206, 212 (1968); and we are particularly prone to accord “strict construction of statutes authorizing appeals” to this Court. Fornaris v. Ridge Tool Co., 400 U. S. 41, 42 n. 1 (1970). We will not, therefore, hold that Congress intended to treat the District of Columbia Code as a state statute for the purposes of § 1257 (2). Cf. Farnsworth v. Montana, 129 U. S. 104, 112-114 (1889).
Palmore relies on Balzac v. Porto Rico, 258 U. S. 298 (1922), where an enactment of the territorial legislature of Puerto Rico was held to be a statute of a State within the meaning of the then-applicable statutory provisions governing appeals to this Court. That result has been codified in 28 U. S. C. § 1258; but, even so, the Balzac rationale was severely undermined in Fornaris, where we held that a statute passed by the legislature of Puerto Rico is not “a State statute” within the meaning of 28 U. S. C. § 1254 (2), and that it should not be treated as such in the absence of more definitive guidance from Congress.
We conclude that we do not have jurisdiction of the appeal filed in this case. Palmore presents federal constitutional issues, however, that are reviewable by writ of certiorari under § 1257 (3); and treating the jurisdictional statement as a petition for writ of certiorari, cf. 28 U. S. C. § 2103, we grant the petition limited to the question of whether Palmore was entitled to be tried by a court ordained and established in accordance with Art. Ill, § 1, of the Constitution. It is to this issue that we now turn.
III
Art. I, § 8, cl. 17, of the Constitution provides that Congress shall have power “[t]o exercise exclusive Legislation in all Cases whatsoever, over” the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. Congress “may exercise within the District all legislative powers that the legislature of a State might exercise within the State; and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the Constitution of the United States.” Capital Traction Co. v. Hof, 174 U. S. 1, 5 (1899). This has been the characteristic view in this Court of congressional powers with respect to the District. It is apparent that the power of Congress under Clause 17 permits it to legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it under Art. I, § 8. See Gibbons v. District of Columbia, 116 U. S. 404, 408 (1886).
Pursuant to its Clause 17 authority, Congress has from time to time enacted laws that compose the District of Columbia Code. The 1970 Reorganization Act amended the Code by creating the Superior Court of the District of Columbia and the District of Columbia Court of Appeals, the courts being expressly “established pursuant to article I of the Constitution.” D. C. Code Ann. § 11-101 (2) (Supp. V, 1972). See n. 2, supra. The Superior Court, among other things, was vested with jurisdiction to hear criminal cases involving alleged violations of the criminal laws applicable only to the District of Columbia, id., § 11-923; the District of Columbia Court of Appeals, with jurisdiction to hear appeals in such cases. Id., § 11-721. At the same time, Congress exercised its powers under Art. I, § 8, cl. 9, and Art. Ill to redefine the jurisdiction of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit. Id., §§ 11-301, 11-501, and 11-502. As the Committee on the District of Columbia said, H. R. Rep. No. 91-907, p. 44:
“This title makes clear (section 11-101) that the District of Columbia Courts (the District of Columbia Court of Appeals, and the Superior Court of the District of Columbia) are Article I courts, created pursuant to Article I, section 8, clause 17 of the United States Constitution, and not Article III courts. The authority under which the local courts are established has not been statutorily provided in prior law; the Supreme Court of the United States has not declared the local system to be either Article I or Article III courts, decisions having indicated that the District of Columbia courts are, in this respect, both fish and fowl. This expression of the intent of the Congress clarifies the status of the local courts.”
It was under the judicial power conferred on the Superior Court by the 1970 Reorganization Act that Palmore was convicted of violation of § 22-3204 of the District of Columbia Code (1967). The conviction was clearly within the authority granted Congress by Art. I, § 8, cl. 17, unless, as Palmore contends, Art. III of the Constitution requires that prosecutions for District of Columbia felonies must be presided over by a judge having the tenure and salary protections provided by Art. III.
Palmore’s argument is straightforward: Art. III vests the “judicial Power” of the United States in courts with judges holding office during good behavior and whose salary cannot be diminished; the “judicial Power” that these courts are to exercise “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...”; the District of Columbia Code, having been enacted by Congress, is a law of the United States; this prosecution for violation of § 22-3204 of the Code is therefore a case arising under the laws of the United States, involves an exercise of the “judicial Power” of the United States, and must therefore be tried by an Art. III judge.
This position ultimately rests on the proposition that an Art. Ill judge must preside over every proceeding in which a charge, claim, or defense is based on an Act of Congress or a law made under its authority. At the very least, it asserts that criminal offenses under the laws passed by Congress may not be prosecuted except in courts established pursuant to Art. III. In our view, however, there is no support for this view in either constitutional text or in constitutional history and practice.
Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the power is vested “in such inferior Courts as the Congress may from time to time ordain and establish.” The decision with respect to inferior federal courts, as well as the task of defining their jurisdiction, was left to the discietion of Congress. That body was not constitutionally required to create inferior Art. III courts to hear and decide cases within the judicial power of the United States, including those criminal cases arising under the laws of the United States. Nor, if inferior federal courts were created, was it required to invest them with all the jurisdiction it was authorized to bestow under Art. III. “[T]he judicial power of the United States... is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court)... and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.” Cary v. Curtis, 3 How. 236, 245 (1845). Congress plainly understood this, for until 1875 Congress refrained from providing the lower federal courts with general federal-question jurisdiction. Until that time, the state courts provided the only forum for vindicating many important federal claims. Even then, with exceptions, the state courts remained the sole forum for the trial of federal cases not involving the required jurisdictional amount, and for the most part retained concurrent jurisdiction of federal claims properly within the jurisdiction of the lower federal courts.
It was neither the legislative nor judicial view, therefore, that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly, has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III courts. Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III. See Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545, 551-553, 570-572 (1925); F. Frankfurter & J. Landis, The Business of the Supreme Court 293 (1927) ; Note, Utilization of State Courts to Enforce Federal Penal and Criminal Statutes: Development in Judicial Federalism, 60 Harv. L. Rev. 966 (1947). More recently, this Court unanimously held that Congress could constitutionally require state courts to hear and decide Emergency Price Control Act cases involving the enforcement of federal penal laws; the fact “that Rhode Island has an established policy against enforcement by its courts of statutes of other states and the United States which it deems penal, cannot be accepted as a ‘valid excuse.’” Testa v. Katt, 330 U. S. 386, 392 (1947). Although recognizing the contrary sentiments expressed in Prigg v. Pennsylvania, 16 Pet. 539, 615-616 (1842), and other cases, the sense of the Testa opinion was that it merely reflected longstanding constitutional decision and policy represented by such cases as Claflin v. Houseman, 93 U. S. 130 (1876), and Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1 (1912).
It is also true that throughout our history, Congress has exercised its power under Art. IY to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” by creating territorial courts and manning them with judges appointed for a term of years. These courts have not been deemed subject to the strictures of Art. Ill, even though they characteristically enforced not only the civil and criminal laws of Congress applicable throughout the United States, but also the laws applicable only within the boundaries of the particular territory. Speaking for a unanimous Court in American Ins. Co. v. Canter, 1 Pet. 511 (1828), Mr. Chief Justice Marshall held that the territorial courts of Florida, although not Art. III courts, could hear and determine cases governed by the admiralty and maritime law that ordinarily could be heard only by Art. III judges. “[T]he same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government.” Id., at 546. This has been the consistent view of this Court. Territorial courts, therefore, have regularly tried criminal cases arising under the general laws of Congress, as well as those brought under territorial laws.
There is another context in which criminal cases arising under federal statutes are tried, and defendants convicted, in non-Art. III courts. Under its Art. I, § 8, cl. 14, power “[t]o make Rules for the Government and Regulation of the land and naval Forces,” Congress has declared certain behavior by members of the Armed Forces to be criminal and provided for the trial of such cases by court-martial proceedings in the military mode, not by courts ordained and established under Art. III. Within their proper sphere, courts-martial are constitutional instruments to carry out congressional and executive will. Dynes v. Hoover, 20 How. 65, 79, 82 (1857). The “exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply,” O’Callahan v. Parker, 395 U. S. 258, 261 (1969); and “the Constitution does not provide life tenure for those performing judicial functions in military trials,” Toth v. Quarles, 350 U. S. 11, 17 (1955).
“The same confluence of practical considerations that dictated the result in [American Ins. Co. v. Canter, supra], has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure,” Glidden Co. v. Zdanok, 370 U. S. 530, 547 (1962), such as the Court of Private Land Claims, United States v. Coe, 155 U. S. 76, 85-86 (1894) ; the Choctaw and Chickasaw Citizenship Court, Stephens v. Cherokee Nation, 174 U. S. 445 (1899); Ex parte Joins, 191 U. S. 93 (1903); Wallace v. Adams, 204 U. S. 415 (1907); courts created in unincorporated districts outside the mainland, Downes v. Bidwell, 182 U. S. 244, 266-267 (1901); Balzac v. Porto Rico, 258 U. S., at 312-313, and the Consular Courts established by concessions from foreign countries, In re Ross, 140 U. S. 453, 464-465, 480 (1891).
IV
Whatever may be true in other instances, however, it is strongly argued that O’Donoghue v. United States, 289 U. S. 516 (1933), constrains us to hold that all of the courts of the District of Columbia must be deemed Art. Ill courts and that the judges presiding over them must be appointed to serve during their good behavior in accordance with the requirements of Art. III. O’Donoghue involved the question whether the judges of the District of Columbia’s Supreme Court and Court of Appeals were constitutionally protected from having their salaries reduced by an Act of Congress. This Court, over three dissents and contrary to extensive prior dicta, see Ex parte Bakelite Corp,, 279 U. S. 438, 450 (1929); Butterworth v. Hoe, 112 U. S. 50 (1884); Keller v. Potomac Electric Power Co., 261 U. S. 428 (1923); Federal Radio Comm’n v. General Electric Co., 281 U. S. 464 (1930), held that the two courts under consideration were constitutional courts exercising the judicial power of the United States and that the judges in question weremot subject to the salary reduction legislation as they would have been had they been judges of legislative courts.
We cannot agree that O’Donoghue governs this case. The District of Columbia courts there involved, the Supreme Court and the Court of Appeals, had authority not only in the District, but also over all those controversies, civil and criminal, arising under the Constitution and the statutes of the United States and having nationwide application. These courts, as this Court noted in its opinion, were “of equal rank and power with those of other inferior courts of the federal system... O’Donoghue, supra, at 534. Relying heavily on congressional intent, the Court considered that Congress, by consistently providing the judges of these courts with lifetime tenure, had indicated a “congressional practice from the beginning [which] recognize [d] a complete parallelism between the courts of the District [of Columbia] and the district and circuit courts of appeals of the United States.” Id., at 549. Moreover, these courts, constituted as they were, and being closer to the legislative department, “exercise a more extensive jurisdiction in cases affecting the operations of the general government and its various departments,” id., at 535, and were the only courts within the District in which District inhabitants could exercise their “right to have their cases arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III.” Id., at 540.
The case before us is a far cry from O’Donoghue. Here Congress has expressly created two systems of courts in the District. One of them is made up of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit, which are constitutional courts manned by Art. Ill judges to which the citizens of the District must or may resort for consideration of those constitutional and statutory matters of general concern which so moved the Court in O’Donoghue. The other system is made up of strictly local, courts, the Superior Court and the District of Columbia Court of Appeals. These courts were expressly created pursuant to the plenary Art. I power to legislate for the District of Columbia, D. C. Code Ann. § 11-101 (2) (Supp. V, 1972), and to exercise the “powers of... a State government in all cases where legislation is possible.” Stoutenburgh v. Hennick, 129 U. S. 141, 147 (1889).
The O’Donoghue Court had before it District of Columbia courts in which the consideration of “purely local affairs [was] obviously subordinate and incidental.” O’Donoghue, supra, at 539. Here, on the other hand, we have courts the focus of whose work is primarily upon cases arising under the District of Columbia Code and to other matters of strictly local concern. They handle criminal cases only under statutes that are applicable to the District of Columbia alone. O’Donoghue did not concern itself with courts like these, and it is not controlling here.
V
It is apparent that neither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress, to be tried in an Art. Ill court before a judge enjoying lifetime tenure and protection against salary reduction. Rather, both Congress and this Court have recognized that state courts are appropriate forums in which federal questions and federal crimes may at times be tried; and that the requirements of Art. III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment. Here, Congress reorganized the court system in the District of Columbia and established one set of courts in the District with Art. III characteristics and devoted to matters of national concern. It also created a wholly separate court system designed primarily to concern itself with local law and to serve as a local court system for a large metropolitan area.
From its own studies, Congress had concluded that there was a crisis in the judicial system of the District of Columbia, that case loads had become unmanageable, and that neither those matters of national concern nor those of strictly local cognizance were being promptly tried and disposed of by the existing court system. See, e. g., 115 Cong. Rec. 25538 (1969); 116 Cong. Rec. 8091-8092 (1970). The remedy in part, was to relieve the regular Art. Ill courts, that is, the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit, from the smothering responsibility for the great mass of litigation, civil and criminal, that inevitably characterizes the court system in a major city and to confine the work of those courts to that which, for the most part, they were designed to do, namely, to try cases arising under the Constitution and the nationally applicable laws of Congress. The other part of the remedy, equally essential, was to establish an entirely new court system with functions essentially similar to those of the local courts found in the 50 States of the Union with responsibility for trying and deciding those distinctively local controversies that arise under local law, including local criminal laws having little, if any, impact beyond the local jurisdiction. S. Rep. No. 91-405, pp. 1-3, 5, 18; H. R. Rep. No. 91-907, pp. 23-24, 33.
Furthermore, Congress, after careful consideration, determined that it preferred, and had the power to utilize, a local court system staffed by judges without lifetime tenure. S. Rep. No. 91-405, supra, at 17-18; H. R. Rep. No. 91-907, supra, at 44. Congress made a deliberate choice to create judgeships with terms of 15 years, D. C. Code Ann. § 11-1502 (Supp. V, 1972), and to subject judges in those positions to removal or suspension by a judicial commission under certain established circumstances. Id., §§ 11-1502, 11-1521 et seq. It was thought that such a system would be more workable and efficient in administering and discharging the work of a multifaceted metropolitan court system. See S. Rep. No. 91-405, supra, at 8-11; H. R. Rep. No. 91-907, supra, at 35-39.
In providing for fixed terms of office, Congress was cognizant of the fact that “virtually no State has provided” for tenure during good behavior, S. Rep. No. 91-405, supra, at 8, see H. R. Rep. No. 91-907, supra, at 38, the District of Columbia Court of Appeals noting that 46 of the 50 States have not provided life tenure for trial judges who hear felony cases, 290 A. 2d, at 578 n. 12; and the provisions of the Act, with respect to court administration and to judicial removal and suspension, were considered by some as a model for the States. 115 Cong. Rec. 25538 (1969). See Hearings on H. R. 13689 and 12854 before Subcommittee No. 1 of the House Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 1, pp. 69, 71 (1969).
We do not discount the importance attached to the tenure and salary provisions of Art. Ill, but we conclude that Congress was not required to provide an Art. Ill court for the trial of criminal cases arising under its laws applicable only within the District of Columbia. Palmore’s trial in the Superior Court was authorized by Congress’ Art. I power to legislate for the District in all cases whatsoever. Palmore was no more disadvantaged and no more entitled to an Art. Ill judge than any other citizen of any of the 50 States who is tried for a strictly local crime. Nor did his trial by a nontenured judge deprive him of due process of law under the Fifth Amendment any more than the trial of the citizens of the various States for local crimes by judges without protection as to tenure deprives them of due process of law under the Fourteenth Amendment.
The judgment of the District of Columbia Court of Appeals is affirmed.
So ordered.
The section provided:
“No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in section 22-3215, unless the violation occurs after he has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or in another jurisdiction, in which case he shall be sentenced to imprisonment for not more than ten years.”
Before passage of the District of Columbia Court Reform and Criminal Procedure Act of 1970, the local court system consisted of one appellate court and three trial courts, two of which, the juvenile court and the tax court, were courts of special jurisdiction. The third trial court, the District of Columbia Court of General Sessions, was one of quite limited jurisdiction, its criminal jurisdiction consisting solely of that exercised concurrently with the United States District Court over misdemeanors and petty offenses, D. C. Code Ann. § 11-963 (1967). The court's civil jurisdiction was restricted to cases where the amount in controversy did not exceed $10,000, and it had jurisdiction over cases involving title to real property only as part of a divorce action. Id., §§ 11-961 and 11-1141. The judgments of the appellate court, the District of Columbia Court of Appeals, were subject to review by the United States Court of Appeals for the District of Columbia Circuit. Id., § 11-321.
The United States District Court for the District had concurrent jurisdiction with the Court of General Sessions over most of the criminal and civil matters handled by that court, id., §§ 11-521, 11-522, and 11-523, and had exclusive jurisdiction over felony offenses, even though committed in violation of locally applicable laws, id., § 11-521. Thus, the District Court was filling the role of both a local and federal court.
Seeking to improve the performance of the court system, Congress, in Title I of the Reorganization Act, invested the local courts with jurisdiction equivalent to that exercised by state courts. S. Rep. No. 91-405, pp. 2-3; H. R. Rep. No. 91-907, pp. 23-24. The three former trial courts were combined into the new Superior Court of the District of Columbia, D. C. Code Ann. § 11-901 (Supp. V, 1972), which was vested, with a minor exception, id., § 11-502 (3), with exclusive jurisdiction over all criminal cases, including felonies, brought under laws applicable exclusively to the District, id., § 11-923 (b). Its civil jurisdiction reached all civil actions and any other matter at law or in equity, brought in the District of Columbia, except those in which exclusive jurisdiction was vested in the United States District Court. Id., § 11-921. The local appeals court, the District of Columbia Court of Appeals, would ultimately not be subject to review by the United States Court of Appeals, id., § 11-301, and was declared to be the “highest court of the District of Columbia” for purposes of further review by this Court. Id., § 11-102.
In addition to the shift in jurisdiction, the number of local judges was increased, their tenure was lengthened from 10 to 15 years, and their salaries were increased and fixed at a percentage of that of judges of the United States courts. Id., §§ 11-702, 11-703, 11-903, 11-904, and 11-1502; D. C. Code Ann. §§ 11-702, 11-902, 11-1502, 47-2402 (1967). The Reorganization Act established a Commission on Judicial Disabilities and Tenure to deal with suspension, retirement, or removal of local judges, D. C. Code Ann. §11-1521 et seq. (Supp. V, 1972). It also provided for improved administration of the local courts, id., § 11-1701 et seq., including authorization for an Executive Officer responsible for the administration of the local court system. Id., § 11-1703.
The 15-year term is subject to the provision for mandatory retirement at age 70. D. C. Code Ann. § 11-1502. (Supp. V, 1972).
Title 28 U. S. C. § 1257 provides:
“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
“(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
“(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
“ (3) By writ o'f certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
“For the purposes of this section, the term 'highest court of a State’ includes the District of Columbia Court of Appeals.”
An express provision “would have been easy,” Farnsworth v. Montana, 129 U. S. 104, 113 (1889), as demonstrated by specific provisions in the United States Code concerning the District of Columbia. Cf. 28 U. S. C. § 1363, added to the United States Code by § 172 (c) (1) of the Reorganization Act, 84 Stat. 590, where for purposes of c. 85 dealing with the jurisdiction of the United States District Courts, it is provided that “references to laws of the United States or Acts of Congress do not include laws applicable exclusively to the District of Columbia.” See also the treatment of the District of Columbia as a “State
Question: What is the state of the court whose decision the Supreme Court reviewed?
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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songer_treat
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F
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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.
In re William B. SHAMBLIN; Grace G. Shamblin, Debtors. PHOENIX BOND & INDEMNITY COMPANY; Stanford D. Marks; Debois Investment Group, Inc., Appellants, v. William B. SHAMBLIN; Grace Shamblin, Appellees.
No. 88-5840.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 6, 1989.
Decided June 30, 1989.
As Amended on Denial of Rehearing and Rehearing En Banc Nov. 22, 1989.
Russell H. Rapoport, Encino, Cal., for appellants.
Gerard C. Heldrich, Jr., Chicago, Ill., for appellees.
Before WRIGHT and FARRIS, Circuit Judges, and SMITH, District Judge.
The Honorable Fern M. Smith, United States District Judge for the Northern District of Cali; fornia, sitting by designation.
EUGENE A. WRIGHT, Circuit Judge.
Phoenix Bond & Indemnity Company, Stanford D. Marks, and DeBois Investment Group, Inc., appeal the decision of the Bankruptcy Appellate Panel. The panel reversed the bankruptcy court’s refusal to set aside the tax sale of Grace Shamblin’s real property. The panel also granted the tax sale purchaser a lien on the property to the extent of present equivalent value given. We reverse the panel’s grant of a lien to the tax sale purchaser. We affirm the panel’s decision in all other respects.
FACTS
Grace and William Shamblin filed a voluntary Chapter 11 bankruptcy petition in California on February 2, 1982. When the Shamblins filed for bankruptcy, Grace Shamblin owned an apartment building in Cook County, Illinois, on which she owed back taxes. The Shamblins failed to notify the Cook County Recorder’s Office of their bankruptcy, although they later amended their bankruptcy schedule to include the Cook County Assessor as a creditor.
Stanford D. Marks is principal shareholder and principal operating officer of Phoenix Bond & Indemnity. Marks is also the managing officer and a director of DeBois Investment Group, Inc. The two firms share office space.
On February 22, 1982, the Circuit Court of Cook County entered judgment against Grace Shamblin’s apartment building for back taxes. The Cook County Treasurer conducted a tax sale on May 19, 1982. Phoenix Bond & Indemnity paid $24,430.85 in back taxes, interest, and costs and received a Certificate of Purchase. Neither the Cook County officials nor Phoenix knew of the Shamblins’ bankruptcy at that time.
A Phoenix employee received notice of the Shamblins’ bankruptcy no later than May 22, 1984. Illinois law provides a two year redemption period for property sold at tax sales. This period expired on May 21, 1984. On May 22, 1984, Phoenix assigned its Certificate of Purchase to Debois. After discovering the pending bankruptcy, the Cook County state’s attorney demanded that DeBois return the Certificate of Purchase. DeBois refused. On May 30, 1984, Phoenix, through Stanford Marks, filed an application for an order directing the county clerk to issue a tax deed. Although it is unclear exactly when Marks personally received notice of the bankruptcy, he knew unequivocally of the Shamb-lins’ bankruptcy by June 25, 1984, when he received the Shamblins’ complaint in their bankruptcy court action to set aside the tax sale. Nevertheless, on July 3, 1984, when Marks argued on behalf of the Phoenix/De-bois tax deed in Cook County Circuit Court, he informed the court of the Shamblins’ possible bankruptcy, but said he was speaking from “second-hand information.” The tax deed was issued to DeBois on July 6, 1984.
The Shamblins filed this action in bankruptcy court on June 13, 1984 requesting that the court set aside the tax sale. Phoenix and Marks filed a joint answer on July 18, 1984. The bankruptcy court refused to set the sale aside, holding that the Shamb-lins’ action was untimely under 11 U.S.C. § 549(d)(1). The court held also that even though the sale violated the automatic stay of 11 U.S.C. § 362, the sale was voidable only during the two year redemption period for tax sales under Illinois law. The bankruptcy appellate panel reversed, holding that both the tax sale and the tax deed violated the automatic stay and were therefore void. Finding that Phoenix was a good faith purchaser for value, however, the panel granted Debois, Phoenix’s successor in interest, an 11 U.S.C. § 549(c) lien against the property.
I. Mootness
Phoenix, Marks, and DeBois argue that the Shamblins’ failure to obtain a stay pending appeal from the bankruptcy court order makes the appeal moot. “Bankruptcy’s mootness rule applies when an appellant has failed to obtain a stay from an order that permits a sale of a debtor’s assets.” In re Onouli-Kona Land Co., 846 F.2d 1170, 1171 (9th Cir.1988). However, the rule operates only when a purchaser bought an asset in good faith. Id. at 1173. Lack of good faith includes fraudulent behavior or an attempt to take unfair advantage. See id.; In re Suchy, 786 F.2d 900, 902 (9th Cir.1985).
The tax deed was not obtained in good faith. Phoenix, Marks, and DeBois all had notice of the bankruptcy before the tax deed proceeding. They refused to return the Certificate of Purchase to Cook County authorities, they did not attempt to resolve the possible violation of the bankruptcy stay until after the deed was issued, and they made misleading statements to the court to obtain the order to issue the deed. The mootness rule does not apply.
II. Section 362 Automatic Stay
A. The May Tax Sale
The BAP held correctly that the tax sale was void from the outset. 11 U.S.C. § 362 provides that a petition in bankruptcy operates as a stay on any act to create, perfect, or enforce any lien against property of the bankruptcy estate. Judicial proceedings in violation of this automatic stay are void. In re Stringer, 847 F.2d 549, 551 (9th Cir.1988). In Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940), several mortgagees sought to confirm a sheriff’s sale of a farm owned by persons with petitions pending in bankruptcy court. The Court stated:
Because that State court had been deprived of all jurisdiction or power to proceed with the foreclosure, the confirmation of sale, the execution of the sheriff’s deed, the writ of assistance, and the ejection of appellants from their property— to the extent based upon the court’s actions — were all without authority of law.
308 U.S. at 443, 60 S.Ct. at 348. We decline to depart from this well established rule.
Numerous federal courts have followed Kalb and held tax and foreclosure sales in violation of the automatic stay to be void. See Richard v. City of Chicago, 80 B.R. 451, 453 (N.D.Ill.1987) (Illinois tax sale); In re Greer, 89 B.R. 757, 759 (Bankr.S.D.Ill.1988) (Illinois tax sale); In re Young, 14 B.R. 809, 811 (Bankr.N.D.Ill.1981) (Illinois tax sale); cf. In re Dennis, 14 B.R. 125, 126-27 (Bankr.E.D.Pa.1981) (sheriff’s sale under Pennsylvania law). We agree.
Appellants Phoenix, Marks and DeBois argue that the bankruptcy court retroactively annulled the stay, thereby validating the tax sale. The bankruptcy court judgment discusses annulling the automatic stay, but the court’s decision appears to rest on 11 U.S.C. § 549(d)(1) and the lapse of the two-year redemption period.
Even if the bankruptcy court had annulled the stay retroactively, the BAP correctly held that the court would have abused its discretion by doing so. We need not decide whether equitable principles may, in a proper case, justify retroactive annulment of the automatic stay. In this case, equity favors enforcement rather than annulment of the stay. Any equitable exception to the automatic stay should be narrow and applied only in extreme circumstances. See, e.g., Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984) (refusing, due to laches, to nullify a nearly three-year-old state court order declaring the validity of a land sale contract).
The appellants’ behavior regarding the tax deed proceeding borders on bad faith. The equities therefore favor the Shamblins. Appellants claim that the stay should be annulled retroactively for purposes of the tax sale alone, which they claim was accomplished in good faith. However, issuance of the tax deed was inextricably intertwined with the tax sale proceeding. We decline to view separately the behavior surrounding these two events.
B. The Tax Deed Proceeding
The BAP correctly held that the tax deed proceeding was void due to the invalid tax sale. We agree with the analysis of this issue in Richard v. City of Chicago, 80 B.R. at 452-53. The facts in Richard were similar to this case and, like this case, Richard involved Illinois law. In Richard the purchaser argued that the tax sale was a voidable act ratified when the debtor let the two-year statutory redemption period lapse. The court rejected this argument, holding the tax sale void. Id. at 453. It further held invalid the tax deed issued because of the void tax sale. Id. at 455; see also In re Young, 14 B.R. at 812 (enjoining purchaser at tax sale from seeking issuance of tax deed because sale, conducted in violation of automatic stay, was null and void); cf. In re Wheeler, 5 B.R. 600, 603-04 (Bankr.N.D.Ga.1980) (holding delivery of deed, acceptance of check, and recording of deed all void actions and without legal effect) (Georgia law).
The decisions cited by Phoenix, Marks, and DeBois and relied on by the bankruptcy court involve facts different from this case. All involve situations where the bankruptcy petition was filed during the statutory redemption period. See, e.g., In re Tynan, 773 F.2d 177, 179 (7th Cir.1985) (Wright, J.); In re Martinson, 731 F.2d 543, 544 (8th Cir.1984); Johnson v. First Nat’l Bank, 719 F.2d 270, 272 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); In re Tabor Enters., Inc., 65 B.R. 42, 44 (Bankr.N.D. Ohio 1986) (under Illinois law). The Shamblins filed their petition well before the tax sale occurred.
The equities surrounding the tax deed proceeding also weigh against the appellants. They could have sought relief from the automatic stay before committing acts that violated it. See Richard, 80 B.R. at 453 n. 2, 455. Instead, they refused to return the Certificate of Purchase, continued with the tax deed proceeding, and misled the court regarding the bankruptcy.
III. Section 5^9
Appellants claim that, under 11 U.S.C. § 549, the tax sale should be allowed to stand despite violation of the automatic stay. 11 U.S.C. § 549(a) states a general rule permitting the trustee in bankruptcy (or debtor-in-possession) to avoid certain transactions. It provides: Postpetition transactions.
(a) Except as provided in subsection (b) and (c) of this section, the trustee may avoid a transfer of property of the estate:
(1) that occurs after the commencement of the case; and ...
(2) ... that is not authorized under this title or by the court.
(emphasis added). The remaining subsections provide exceptions to the general rule that unauthorized transfers of property may be avoided. Appellants claim the tax sale falls within the exceptions in § 549(c) and (d). Subsection (c) provides an exception for certain good faith purchasers. When the good faith purchaser has paid less than present fair equivalent value for the property, subsection (c) grants the purchaser a lien on the property to the extent of present equivalent value given. Subsection (d) precludes the commencement of § 549 actions beyond the earlier of two years after the date of the transfer sought to be avoided and the time the case is closed or dismissed.
Section 549 does not apply. The tax sale as conducted under Illinois law was not a “transfer of property of the estate” under § 549. See Richard, 80 B.R. at 454-55 (tax sale does not transfer property, but a claim against the property); In re Young, 14 B.R. at 812 (tax sale transfers only a chose in action) (both cases eonstru-ing Illinois law). Because an Illinois tax sale gives the purchaser only a lien on the property, see Cook County Collector v. ABA Gen. Contractors & Businesses, Inc., 135 Ill.App.3d 901, 90 Ill.Dec. 542, 547, 482 N.E.2d 361, 366 (1985), the purchaser does not obtain a transfer of property of the estate, but obtains only a claim against it. Because the tax sale was not a “transfer of property of the estate” under subsection (a), none of the provisions of § 549 apply. The exceptions to § 549, including the provision granting a lien to certain good faith purchasers, cannot, therefore, apply. CONCLUSION
The tax sale and subsequent tax deed violated the automatic stay and are void. Section 549 does not apply to the tax sale because it is not a “transfer of property of the estate” under subsection (a). Because we conclude that § 549 does not apply, we REVERSE the BAP’s determination that DeBois has a lien on the subject property under § 549(c). We AFFIRM the panel’s decision in all other respects.
. The mootness rule also does not apply to the May tax sale because of a two-year redemption period under Illinois law. See In re Onouli-Kona Land Co., 846 F.2d at 1173 ("To the extent that a sale is subject to rights of redemption, the sale is not truly final.").
. The case arose under the predecessor statute to 11 U.S.C. § 362(a).
. Whether the bankruptcy court may annul the automatic stay retroactively is an open question in this circuit. Compare In re Mellor, 734 F.2d 1396, 1402 (9th Cir.1984) ("[W]e do not reach the serious question which is presented where a bankruptcy court purports to annul an automatic stay in order to attempt retroactively to validate a void state court judgment.") with Alger-an, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1425 (9th Cir.1985) ("Algeran's position that an automatic stay cannot be lifted so as to validate a sale made while the stay was enforced, is without merit.”).
. Mrs. Shamblin, a debtor-in-possession, is regarded as a trustee for § 549(a) purposes. See In re Dant & Russell, Inc., 853 F.2d 700, 703 n. 2 (9th Cir.1988).
. The Shamblins argue that § 549 should not apply because the tax sale and tax deed issuance are void for violating the automatic stay. Because we decide that § 549 does not apply for other reasons, we need not resolve that difficult question. Cf. In re Brooks, 871 F.2d 89, 90 n. 1 (9th Cir.1989). We also do not address whether a party may use § 549 as a defense where the trustee or debtor-in-possession has not raised that section as a basis for avoiding a post-petition transaction.
. The Code in effect at the time of this case defined "transfer” as:
every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest, (emphasis supplied)
.This court has consistently treated the creation of liens on the debtor’s property as a transfer. See, e.g., In re Wind Power Systems, Inc., 841 F.2d 288, 291-92 (9th Cir.1988); Bass v. Stodd, 357 F.2d 458, 464-65 (9th Cir.1966). These cases, however, define "transfer” in the context of pre -petition, as opposed to post -petition, transactions. The Shamblins and their creditors were fully protected against the post-petition creation of a lien under § 362(a)(4). “Transfer" under § 549, therefore, need not include the lien created by the Illinois tax sale.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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sc_authoritydecision
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G
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
MAYO COLLABORATIVE SERVICES, dba MAYO MEDICAL LABORATORIES, et al. v. PROMETHEUS LABORATORIES, INC.
No. 10-1150.
Argued December 7, 2011
Decided March 20, 2012
Breyer, J., delivered the opinion for a unanimous Court.
Stephen M. Shapiro argued the cause for petitioners. With him on the briefs were Timothy S. Bishop, Jeffrey W. Sarles, Charles Rothfeld, Jonathan Singer, John Dragseth, Deanna Reichel, and Eugene Volokh.
Solicitor General Verrilli argued the cause for the United States as amicus curiae. With him on the brief were Assistant Attorney General West, Deputy Solicitor General Stewart, Mark R. Freeman, Scott R. McIntosh, Kelsi Brown Corkran, Raymond T. Chen, Thomas W. Krause, and Scott C. Weidenfeller.
Richard P. Bress argued the cause for respondent. With him on the brief were J. Scott Ballenger, Maximilian A. Grant, Matthew J. Moore, and Gabriel K. Bell.
Briefs of amici curiae urging reversal were filed for AARP et al. by Daniel B. Ravicher, Stacy Canan, and Michael Schuster; for the American Civil Liberties Union by Sandra S. Park, Christopher A. Hansen, Lenora M. Lapidus, and Steven R. Shapiro; for the American College of Medical Genetics et al. by Katherine J. Strandhwrg; for ARUP Laboratories, Inc., et al. by Kathleen M. Sullivan and Brian Cannon; and for the Cato Institute et al. by Ilya Shapiro, James W. Harper, Sam Kazman, and Manuel S. Klausner.
Briefs of amici curiae urging affirmance were filed for the American Intellectual Property Law Association by Denise W. DeFranco, David S. Forman, and William G. Barber; for the Association of University Technology Managers by Donald R. Ware and Barbara A. Fiacco; for the Biotechnology Industry Organization by Jeffrey P. Kushan and Eric A. Shumsky; for Genomic Health, Inc., et al. by Edward R. Reines; for the Intellectual Property Amicus Brief Clinic of the University of New Hampshire School of Law by Ann M. McCrackin; for the Intellectual Property Law Association of Chicago by Meredith Martin Addy and Charles' Shiftey; for the Intellectual Property Owners Association by Gary M. Hoffman, Kenneth W Brothers, Douglas K. Norman, and Kevin H. Rhodes; for the Juhasz Law Firm, P. C., by Paul R. Juhasz; for Myriad Genetics, Inc., by Gregory A Castanias and Jay Z. Zhang; for the National Venture Capital Association by Lynn H. Pasahow, Michael J. Shus-ter, and Carolyn Chang; for Novartis Corp. by Evan A. Young; for the Pharmaceutical Research and Manufacturers of America by Harry J. Roper, Paul M. Smith, and Elaine J. Goldenberg; and for SAP America, Inc., by Erika H. Arner and Jeffrey A. Berkowitz.
Briefs of amici curiae were filed for the Association Internationale pour la Protection de la Propriété Intellectuelle et al. by Peter C. Schechter and Richard P Beem; for CONNECT et al. by Douglas E. Olson, Ned Israel-sen, and Timothy N. Tardibono; for Health Law, Policy, and Ethics Scholars by Mark S. Davies and Michael K. Gottlieb; for Microsoft Corp. et al. by Matthew D. McGill and William G. Jenks; for the New York Intellectual Property Law Association by Ronald M. Daignault, Matthew B. McFarlane, Anthony F. LoCicero, and Charles R. Macedo; for Nine Law Professors by Joshua D. Sarnoff; for Roche Molecular Systems, Inc., et al. by Seth P. Waxman, Mark C. Fleming, Kevin A. Marks, Blair Elizabeth Taylor, Jeffrey A. Lamken, and Sonali S. Srivastava; and for Verizon Communications, Inc., et al. by Michael K. Kellogg, John Thorne, and Paul H. Roeder.
Justice Breyer
delivered the opinion of the Court.
Section 101 of the Patent Act defines patentable subject matter. It says:
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U. S. C. § 101.
The Court has long held that this provision contains an important implicit exception. “[Ljaws of nature, natural phenomena, and abstract ideas” are not patentable. Diamond v. Diehr, 450 U. S. 175, 185 (1981); see also Bilski v. Kappos, 561 U. S. 593, 601 (2010); Diamond v. Chakrabarty, 447 U. S. 303, 309 (1980); Le Roy v. Tatham, 14 How. 156, 175 (1853); O’Reilly v. Morse, 15 How. 62, 112-120 (1854); cf. Neilson v. Harford, Webster’s Patent Cases 295, 371 (1841) (English case discussing same). Thus, the Court has written that “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are ‘manifestations of... nature, free to all men and reserved exclusively to none.’ ” Chakrabarty, supra, at 309 (quoting Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948)).
“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972). And monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it.
The Court has recognized, however, that too broad an interpretation of this exclusionary principle could eviscerate patent law. For all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas. Thus, in Diehr the Court pointed out that “ ‘a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm.’” 450 U. S., at 187 (quoting Parker v. Flook, 437 U. S. 584, 590 (1978)). It added that “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.” Diehr, supra, at 187. And it emphasized Justice Stone’s similar observation in Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U. S. 86 (1939):
“ ‘While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scien-tifie truth may be.’ ” 450 U. S., at 188 (quoting Mackay Radio, supra, at 94).
See also Funk Brothers, supra, at 130 (“If there is to be invention from [a discovery of a law of nature], it must come from the application of the law of nature to a new and useful end”).
Still, as the Court has also made clear, to transform an unpatentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature while adding the words “apply it.” See, e.g., Benson, supra, at 71-72.
The case before us lies at the intersection of these basic principles. It concerns patent claims covering processes that help doctors who use thiopurine drugs to treat patients with autoimmune diseases determine whether a given dosage level is too low or too high. The claims purport to apply natural laws describing the relationships between the concentration in the blood of certain thiopurine metabolites and the likelihood that the drug dosage will be ineffective or induce harmful side effects. We must determine whether the claimed processes have transformed these unpatentable natural laws into patent-eligible applications of those laws. We conclude that they have not done so and that therefore the processes are not patentable.
Our conclusion rests upon an examination of the particular claims before us in light of the Court’s precedents. Those cases warn us against interpreting patent statutes in ways that make patent eligibility “depend simply on the draftsman’s art” without reference to the “principles underlying the prohibition against patents for [natural laws].” Flook, supra, at 593. They warn us against upholding patents that claim processes that too broadly pre-empt the use of a natural law. Morse, supra, at 112-120; Benson, supra, at 71-72. And they insist that a process that focuses upon the use of a natural law also contain other elements or a combination of elements, sometimes referred to as an “inventive concept,” sufficient to ensure that the patent in practice, amounts to significantly more than a patent upon the natural law itself. Flook, supra, at 594; see also Bilski, 561 U. S., at 610-611 (“[T]he prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or adding ‘insignificant postsolution activity’ ” (quoting Diehr, supra, at 191-192)).
We find that the process claims at issue here do not satisfy these conditions. In particular, the steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. At the same time, upholding the patents would risk disproportionately tying up the use of the underlying natural laws, inhibiting their use in the making of further discoveries.
I
A
The patents before us concern the use of thiopurine drugs in the treatment of autoimmune diseases, such as Crohn’s disease and ulcerative colitis. When a patient ingests a thi-opurine compound, his body metabolizes the drug, causing metabolites to form in his bloodstream. Because the way in which people metabolize thiopurine compounds varies, the same dose of a thiopurine drug affects different people differently, and it has been difficult for doctors to determine whether for a particular patient a given dose is too high, risking harmful side effects, or too low, and so likely ineffective.
At the time the discoveries embodied in the patents were made, scientists already understood that the levels in a patient’s blood of certain metabolites, including, in particular, 6-thioguanine and its nucleotides (6-TG) and 6-methyl-mercaptopurine (6-MMP), were correlated with the likelihood that a particular dosage of a thiopurine drug could cause harm or prove ineffective. See U. S. Patent No. 6,355,623, col. 8, 11. 37-40, 2 App. 10 (“Previous studies suggested that measurement of [6-mercaptopurine (6-MP)] metabolite levels can be used to predict clinical efficacy and tolerance to azathioprine or 6-MP” (citing Cuffari, Théorét, Latour, & Seidman, 6-Mercaptopurine Metabolism in Crohn’s Disease: Correlation With Efficacy and Toxicity, 39 Gut 401 (1996))). But those in the field did not know the precise correlations between metabolite levels and likely harm or ineffectiveness. The patent claims at issue here set forth processes embodying researchers’ findings that identified these correlations with some precision.
More specifically, the patents — U. S. Patent No. 6,355,623 (’623 patent) and U. S. Patent No. 6,680,302 (’302 patent)— embody findings that concentrations in a patient’s blood of 6-TG or of 6-MMP metabolite beyond a certain level (400 and 7,000 picomoles (pmol) per 8xl08 red blood cells, respectively) indicate that the dosage is likely too high for the patient, while concentrations in the blood of 6-TG metabolite lower than a certain level (about 230 pmol per 8xl08 red blood cells) indicate that the dosage is likely too low to be effective.
The patent claims seek to embody this research in a set of processes. Like the Federal Circuit we take as typical claim 1 of the ’623 patent, which describes one of the claimed processes as follows:
“A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:
“(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and
“(b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,
“wherein the level of 6-thioguanine less than about 230 pmol per 8xl08 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and
“wherein the level of 6-thioguanine greater than about 400 pmol per 8xl08 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.” ’623 patent, col. 20,11. 10-25, 2 App. 16.
For present purposes we may assume that the other claims in the patents do not differ significantly from claim 1.
B
Respondent, Prometheus Laboratories, Inc. (Prometheus), is the sole and exclusive licensee of the ’623 and ’302 patents. It sells diagnostic tests that embody the processes the patents describe. For some time petitioners, Mayo Clinic Rochester and Mayo Collaborative Services (collectively Mayo), bought and used those tests. But in 2004 Mayo announced that it intended to begin using and selling its own test — a test using somewhat higher metabolite levels to determine toxicity (450 pmol per 8xl08 for 6-TG and 5,700 pmol per 8x108 for 6-MMP). Prometheus then brought this action claiming patent infringement.
The District Court found that Mayo’s test infringed claim 7 of the ’623 patent. App. to Pet. for Cert. 110a-115a. In interpreting the claim, the court accepted Prometheus’ view that the toxicity-risk-level numbers in Mayo’s test and the claim were too similar to render the tests significantly different. The number Mayo used (450) was too close to the number the claim used (400) to matter given appropriate margins of error. Id., at 98a-107a. The District Court also accepted Prometheus’ view that a doctor using Mayo’s test could violate the patent even if he did not actually alter his treatment decision in the light of the test. In doing so, the court construed the claim’s language, “indicates a need to decrease” (or “to increase”), as not limited to instances in which the doctor actually decreases (or increases) the dosage level where the test results suggest that such an adjustment is advisable. Id., at 107a-109a; see also Brief for Respondent i (describing claimed processes as methods “for improving... treatment... by using individualized metabolite measurements to inform the calibration of... dosages of... thiopurines” (emphasis added)).
Nonetheless the District Court ultimately granted summary judgment in Mayo’s favor. The court reasoned that the patents effectively claim natural laws or natural phenomena — namely, the correlations between thiopurine metabolite levels and the toxicity and efficacy of thiopurine drug dosages — and so are not patentable. App. to Pet. for Cert. 50a-83a.
On appeal, the Federal Circuit reversed. It pointed out that in addition to these natural correlations, the claimed processes specify the steps of (1) “administering a [thiopu-rine] drug” to a patient, and (2) “determining the [resulting metabolite] level.” These steps, it explained, involve the transformation of the human body or of blood taken from the body. Thus, the patents satisfied the Circuit’s “machine or transformation test,” which the court thought sufficient to “confine the patent monopoly within rather definite bounds,” thereby bringing the claims into compliance with § 101. Prometheus Labs., Inc. v. Mayo Collaborative Services, 581 F. 3d 1336, 1345, 1346-1347 (2009) (internal quotation marks omitted).
Mayo filed a petition for certiorari. We granted the petition, vacated the judgment, and remanded the case for reconsideration in light of Bilski, 561 U. S. 593, which clarified that the “machine-or-transformation test” is not a definitive test of patent eligibility, but only an important and useful clue, id., at 603-604. On remand the Federal Circuit reaffirmed its earlier conclusion. It thought that the “machine- or-transformation test,” understood merely as an important and useful clue, nonetheless led to the “clear and compelling conclusion... that the... claims... do not encompass laws of nature or preempt natural correlations.” 628 F. 3d 1347, 1355 (2010). Mayo again filed a petition for certiorari, which we granted.
II
Prometheus’ patents set forth laws of nature — namely, relationships between concentrations of certain metabolites in the blood and the likelihood that a dosage of a thiopurine drug will prove ineffective or cause harm. Claim 1, for example, states that if the levels of 6-TG in the blood (of a patient who has taken a dose of a thiopurine drug) exceed about 400 pmol per 8x108 red blood cells, then the administered dose is likely to produce toxic side effects. While it takes a human action (the administration of a thiopurine drug) to trigger a manifestation of this relation in a particular person, the relation itself exists in principle apart from any human action. The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body — entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.
The question before us is whether the claims do significantly more than simply describe these natural relations. To put the matter more precisely, do the patent claims add enough to their statements of the correlations to allow the processes they describe to qualify as patent-eligible processes that apply natural laws? We believe that the answer to this question is no.
A
If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself. A patent, for example, could not simply recite a law of nature and then add the instruction “apply the law.” Einstein, we assume, could not have patented his famous law by claiming a process consisting of simply telling linear accelerator operators to refer to the law to determine how much energy an amount of mass has produced (or vice versa). Nor could Archimedes have secured a patent for his famous principle of flotation by claiming a process consisting of simply telling boat builders to refer to that principle in order to determine whether an object will float.
What else is there in the claims before us? The process that each claim recites tells doctors interested in the subject about the correlations that the researchers discovered. In doing so, it recites an “administering” step, a “determining” step, and a “wherein” step. These additional steps are not themselves natural laws but neither are they sufficient to transform the nature of the claim.
First, the “administering” step simply refers to the relevant audience, namely, doctors who treat patients with certain diseases with thiopurine drugs. That audience is a preexisting audience; doctors used thiopurine drugs to treat patients suffering from autoimmune disorders long before anyone asserted these claims. In any event, the “prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.’” Bilski, supra, at 610-611 (quoting Diehr, 450 U. S., at 191-192).
Second, the “wherein” clauses simply tell a doctor about the relevant natural laws, at most adding a suggestion that he should take those laws into account when treating his patient. That is to say, these clauses tell the relevant audience about the laws while trusting them to use those laws appropriately where they are relevant to their decision-making (rather like Einstein telling linear accelerator operators about his basic law and then trusting them to use it where relevant).
Third, the “determining” step tells the doctor to determine the level of the relevant metabolites in the blood, through whatever process the doctor or the laboratory wishes to use. As the patents state, methods for determining metabolite levels were well known in the art. ’628 patent, col. 9,11. 12-65, 2 Ápp. 11. Indeed, scientists routinely measured metabolites as part of their investigations into the relationships between metabolite levels and efficacy and toxicity of thiopurine compounds. ’623 patent, col. 8,11. 37-40, id., at 10. Thus, this step tells doctors to engage in well-understood, routine, conventional activity previously engaged in by scientists who work in the field. Purely “conventional or obvious” “[pre]-solution activity” is normally not sufficient to transform an unpatentable law of nature into a patent-eligible application of such a law. Flook, 437 U. S., at 590; see also Bilski, 561 U. S., at 610-611 (“[T]he prohibition against patenting abstract ideas ‘cannot be circumvented by’... adding ‘insignificant postsolution activity’” (quoting Diehr, 450 U. S., at 191-192)).
Fourth, to consider the three steps as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately. See id., at 188 (“[A] new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made”). Anyone who wants to make use of these laws must first administer a thiopurine drug and measure the resulting metabolite concentrations, and so the combination amounts to nothing significantly more than an instruction to doctors to apply the applicable laws when treating their patients.
The upshot is that the three steps simply tell doctors to gather data from which they may draw an inference in light of the correlations. To put the matter more succinctly, the claims inform a relevant audience about certain laws of nature; any additional steps consist of well-understood, routine, conventional activity already engaged in by the scientific community; and those steps, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately. For these reasons we believe that the steps are not sufficient to transform unpatentable natural correlations into patentable applications of those regularities.
pq
r-⅜
A more detailed consideration of the controlling precedents reinforces our conclusion. The cases most directly on point are Diehr and Flook, two cases in which the Court reached opposite conclusions about the patent eligibility of processes that embodied the equivalent of natural laws. The Diehr process (held patent eligible) set forth a method for molding raw, uncured rubber into various cured, molded products. The process used a known mathematical equation, the Arrhenius equation, to determine when (depending upon the temperature inside the mold, the time the rubber had been in the mold, and the thickness of the rubber) to open the press. It consisted in effect of the steps of: (1) continuously monitoring the temperature on the inside of the mold, (2) feeding the resulting numbers into a computer, which would use the Arrhenius equation to continuously recalculate the mold-opening time, and (3) configuring the computer so that at the appropriate moment it would signal “a device” to open the press. Diehr, 450 U. S., at 177-179.
The Court pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole. Those steps included “installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly recalculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time.” Id., at 187. It nowhere suggested that all these steps, or at least the combination of those steps, were in context obvious, already in use, or purely conventional. And so the patentees did not “seek to pre-empt the use of [the] equation,” but sought “only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process.” Ibid. These other steps apparently added to the formula something that in terms of patent law’s objectives had significance — they transformed the process into an inventive application of the formula.
The process in Flook (held not patentable) provided a method for adjusting “alarm limits” in the catalytic conversion of hydrocarbons. Certain operating conditions (such as temperature, pressure, and flow rates), which are continuously monitored during the conversion process, signal inefficiency or danger when they exceed certain “alarm limits.” The claimed process amounted to an improved system for updating those alarm limits through the steps of: (1) measuring the current level of the variable, e. g., the temperature; (2) using an apparently novel mathematical algorithm to calculate the current alarm limits; and (3) adjusting the system to reflect the new alarm-limit values. 437 U. S., at 585-587.
The Court, as in Diehr, pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it characterized the claimed process as doing nothing other than “providing] a[n unpatentable] formula for computing an updated alarm limit.” Flook, supra, at 586. Unlike the process in Diehr, it did not “explain how the variables used in the formula were to be selected, nor did the [claim] contain any disclosure relating to chemical processes at work or the means of setting off an alarm or adjusting the alarm limit.” Diehr, supra, at 192, n. 14; see also Flook, 437 U. S., at 586. And so the other steps in the process did not limit the claim to a particular application. Moreover, “[t]he chemical processes involved in catalytic conversion of hydrocarbons[,]... the practice of monitoring the chemical process variables, the use of alarm limits to trigger alarms, • the notion that alarm limit values must be recomputed and readjusted, and the use of computers for ‘automatic monitoring-alarming’” were all “well known,”, to the point where, putting the formula to the side, there was no “inventive concept” in the claimed application of the formula. Id., at 594. “[P]ost-solution activity” that is purely “conventional or obvious,” the Court wrote, “can[not] transform an unpatentable principle into a patentable process.” Id., at 589, 590.
The claim before us presents a case for patentability that is weaker than the (patent-eligible) claim in Diehr and no stronger than the (unpatentable) claim in Flook. Beyond picking out the relevant audience, namely, those who administer doses of thiopurine drugs, the claim simply, tells doctors to: (1) measure (somehow) the current level of the relevant metabolite, (2) use particular (unpatentable) laws of nature (which the claim sets forth) to calculate the current toxicity/ inefficacy limits, and (3) reconsider the drug dosage in light of the law. These instructions add nothing specific to the laws of nature other than what is well-understood, routine, conventional activity, previously engaged in by those in the field. And since they are steps that must be taken in order to apply the laws in question, the effect is simply to tell doctors to apply the law somehow when treating their patients. The process in Diehr was not so characterized; that in Flook was characterized in roughly this way.
2
Other cases offer further support for the view that simply appending conventional steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable. This Court has previously discussed in detail an English case, Neilson, which involved a patent claim that posed a legal problem very similar to the problem now before us. The patent applicant there asserted a claim
' “for the improved application of air to produce heat in fires, forges, and furnaces, where a blowing apparatus is required. [The invention] was to be applied as follows: The blast or current of air produced by the blowing apparatus was to be passed from it into an air-vessel or receptacle made sufficiently strong to endure the blast; and through or from that vessel or receptacle by means of a tube, pipe, or aperture into the fire, the receptacle be kept artificially heated to a considerable temperature by heat externally applied.” Morse, 15 How., at 114-115.
The English court concluded that the claimed process did more than simply instruct users to use the principle that hot air promotes ignition better than cold air, since it explained how the principle could be implemented in an inventive way. Baron Parke wrote (for the court):
“It is very difficult to distinguish [Neilson’s claim] from the specification of a patent for a principle, and this at first created in the minds of some of the court much difficulty; but after full consideration, we think that the plaintiff does not merely claim a principle, but a machine embodying a principle, and a very valuable one. We think the case must be considered as if the principle being well known, the plaintiff had first invented a mode of applying it by a mechanical apparatus to furnaces; and his invention then consists in this — by interposing a receptacle for heated air between the blowing apparatus and the furnace. In this receptacle he directs the air to be heated by the application of heat externally to the receptacle, and thus he accomplishes the object of applying the blast, which was before of cold air, in a heated state to the furnace.” Neilson v. Harford, Webster’s Patent Cases, at 371.
Thus, the claimed process included not only a law of nature but also several unconventional steps (such as inserting the receptacle, applying heat to the receptacle externally, and blowing the air into the furnace) that confined the claims to a particular, useful application of the principle.
In Bilski the Court considered claims covering a process for hedging risks of price changes by, for example, contracting to purchase commodities from sellers at a fixed price, reflecting the desire of sellers to hedge against a drop in prices, while selling commodities to consumers at a fixed price, reflecting the desire of consumers to hedge against a price increase. One claim described the process; another reduced the process to a mathematical formula. 561 U. S., at 599. The Court held that the described “concept of hedging” was “an unpatentable abstract idea.” Id., at 611. The fact that some of the claims limited hedging to use in commodities and energy markets and specified that “well-known random analysis techniques [could be used] to help establish some of the inputs into the equation” did not undermine this conclusion, for “Flook established that limiting an abstract idea to one field of use or adding token postsolution components did not make the concept patentable.” Id., at 612.
Finally, in Benson the Court considered the patentability of a mathematical process for converting binary-coded decimal numerals into pure binary numbers on a general purpose digital computer. The claims “purported to cover any use of the claimed method in a general-purpose digital computer of any type.” 409 U. S., at 64, 65. The Court recognized that “ ‘a novel and useful structure created with the' aid of knowledge of scientific truth’ ” might be patentable. Id., at 67 (quoting Mackay Radio, 306 U. S., at 94). But it held that simply implementing a mathematical principle on a physical machine, namely, a computer, was not a patentable application of that principle. For the mathematical formula had “no substantial practical application except in connection with a digital computer.” Benson, supra, at 71. Hence the claim (like the claims before us) was overly broad; it did not differ significantly from a claim that just said “apply the algorithm.”
3
The Court has repeatedly emphasized this last mentioned concern, a concern that patent law not inhibit further discovery by improperly tying up the future use of laws of nature. Thus, in Morse the Court set aside as unpatentable Samuel Morse’s general claim for “ ‘the use of the motive power of the electric or galvanic current... however developed, for making or printing intelligible characters, letters, or signs, at any distances,’ ” 15 How., at 86 (history of the case). The Court explained:
“For aught that we now know some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff’s specification. His invention may be less complicated — less liable to get out of order — less expensive in construction, and in its operation. But yet if it is covered by this patent the inventor could not use it, nor the public have the benefit of it without the permission of this patentee.” Id., at 113.
Similarly, in Benson the Court said that the. claims before it were “so abstract and sweeping as to cover both known and unknown uses of the [mathematical formula].” 409 U. S., at 67, 68. In Bilski the Court pointed out that to allow “petitioners to patent risk hedging would pre-empt use of this approach in all fields.” 561 U. S., at 612. And in Flook the Court expressed concern that the claimed process was simply “a formula for computing an updated alarm limit,” which might “cover a broad range of potential uses.” 437 U. S., at 586.
These statements reflect the fact that, even though rewarding with patents those who discover new laws of nature and the like might well encourage their discovery, those laws and principles, considered generally, are “the basic tools of scientific and technological work.” Benson, supra, at 67. And so there is a danger that the grant of patents that tie up their use will inhibit future innovation premised upon them, a danger that becomes acute when a patented process amounts to no more than an instruction to “apply the natural law,” or otherwise forecloses more future invention than the underlying discovery
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BILLMAN v. KROGER CO.
No. 10156.
United States Court of Appeals Seventh Circuit.
Nov. 10, 1950.
James J. Stewart, James L. Murray and II. William Irwin, and Murray, Man-non, Fairchild & Stewart, all of Indianapolis, Inch, for appellant.
Harry L. Gause, Erie A. Kightlinger, and Armstrong & Gause, all of Indianapolis, Ind., for appellee.
Before KERNER, FINNEGAN, and BINDLEY, Circuit Judges.
KERNER, Circuit Judge.
This appeal is from a judgment for defendant entered on a verdict of a jury in a suit to recover for personal injuries suffered in a collision between an automobile and a parked truck.
Plaintiff bases his asserted right to reversal of the judgment and a new trial on the prejudicial conduct on the part of the trial judge who, he asserts, exhibited hostility to him and partiality to the defendant throughout the entire proceedings in the following respects: Conducting hostile cross-examination of him and his witnesses; asking defense witnesses leading and suggestive questions; volunteering statements in evidence on behalf of defendant, some of which were inaccurate and irrelevant; making prejudicial remarks to his counsel in the presence of the jury; commenting, arguing and expressing opinions on controversial questions of fact; coercing or influencing the jury by commenting upon their numerical division in connection with their deliberations; and coercing or influencing the jury by hastening their consideration by evidencing surprise and impatience at their failure to promptly arrive at a verdi-ct and by threatening to lock them up.
A study of the record discloses that many of plaintiff’s objections to the conduct of the trial are well grounded and that the practical effect of the court’s conduct was to direct a verdict in favor of defendant. For that reason we have examined the record with a view to ascertaining whether the court should have granted defendant’s motion for a directed verdict filed at the close of plaintiff’s evidence.
It is clear that substantial questions of fact were raised relating to defendant’s negligence. There was conflict in the evidence as to whether the driver of the truck who parked it on the highway while he went for help when a rear tire blew out could have safely driven it a short distance farther to a place where there was evidence that he could have pulled it off the highway and onto a firm shoulder, whether he switched the various truck lights on before he left it, and as to the placing of the flares. However, from our study of the record we are convinced that the testimony of plaintiff himself disclosed that his own negligence was the proximate cause of the collision which caused his injuries. That being the case, the matter of defendant’s negligence, which is in dispute, becomes immaterial.
Plaintiff testified that the accident occurred on a highway about two miles south of Shelbyville, Indiana, at 5 :30 o’clock on the evening of January 12, 1948. It was dark and there was a slight fog, hut visibility was good. Plaintiff had his lights on and thought he could see about 350 feet ahead with them. As he rounded a curve about four-tenths of a mile from the scene of the accident he saw three lighted flares which he stated were directly in line in the middle of the highway. He knew the meaning of a flare in the highway. He testified that to him it meant “to have my car under control because there was something dangerous ahead,” “I knew there was something wrong.” He then reduced his speed from a little less than 50 miles an hour, and was driving about 30 or 35 miles an hour when he came up to the first flare. Although the road was straight for the half-mile or so from the ■ point where he first saw the flares up to the parked trailer and there was nothing to obstruct his view for that distance, it was not until he was almost up to the first flare that he saw that there was a parked trailer-truck on the highway ahead of him. He put on his brakes immediately but was unable to stop in time to avoid running into it. He thought the first flare was 'from 40 to 60 feet back of the truck. He stated that there were no visible lights on the backend of the trailer and that it blended into the highway. He turned to the right in order to avoid running over the flares and struck the right rear of the trailer with the left front of his car, thus causing the injuries to himself for which the action was brought.
The two significant facts which emerge from this testimony are: (1) Plaintiff saw lighted flares ahead for a distance of at least four-tenths of a mile, and knew there was something wrong ahead; (2) he continued to drive his car at a speed of at least 30 and more likely 35 miles an hour until he reached the point where he could identify the obstruction against which the flares were intended to warn him.
Subsections (a) and (d) of the Indiana statute relating to speed regulations, § 47-2004, Burns’ Indiana Statutes Annotated 1933, 1940 Replacement, provide:
“No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so restricted as may be necessary to avoid colliding with any * * * other conveyance on * * * the highway in compliance with legal requirements and with the duty of all persons to use due care. * * *
“The driver of every vehicle shall, consistent with the requirements in subsection (a), drive at an appropriate reduced speed when * * * special hazards exist with respect to * * * other traffic or by reason of weather or highway conditions.”
In Opple v. Ray, 208 Ind. 450, 459, 195 N.E. 81, 84, the court criticized the “hard-and-fast rule” theretofore stated in a number of decisions, “that one who operates a motorcar at night must equip his car with such lights, and proceed at such speed, and observe the way with such care, that he will see any dangerous obstruction in the highway, and that he must stop before collision and injury to himself under penalty of being chargeable with negligence contributory to his own injury,” as basically unsound. In its place it stated 208 Ind. at p. 461, 195 N.E. at page 85 a rule which furnishes an execellent guide as to the measure of care required to avoid a charge of negligence, that “one who drives at night at a speed which will permit him to observe ordinary signals of danger and obstruction, which would ordinarily and naturally be seen by a reasonably prudent person in time to stop without injury, cannot rationally be charged with negligence contributing to a collision because he failed to see and avoid a collision with an object which a reasonably prudent person would not anticipate or expect to find in his path. And an automobile parked in the highway without lights must be considered such an object.” And in Cushman Motor Delivery Co. v. McCabe, 219 Ind. 156, 173, 36 N.E.2d 769, 775, per Judge Swaim, the court stated, “A red light is the ordinary signal of danger to the motorist — a signal which all recognize and understand. A burning flare has also come to mean that there is some obstruction ahead.”
Applying Indiana statute and case law to the facts disclosed by plaintiff’s own testimony, we are convinced that he had ample warning from the flares that there was some special hazard ahead, some object which would not ordinarily be there, and that, being thus put on notice of such hazard, it became his duty to proceed at such a reduced speed as would enable him to stop if necessary when he reached the first flare and ascertain what the danger was and whether or not he could proceed with safety.
Plaintiff’s own testimony spelled out the defense of contributory negligence pleaded by defendant, and barred his right to recover for defendant’s negligence, if any. In this situation a verdict for defendant should have been directed, hence it is unnecessary for us to discuss whether the court’s conduct of the trial was unfair and prejudicial and constituted reversible error. Cf. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321; United States v. Lee, 8 Cir., 107 F.2d 522, 528; American Motorist Ins. Co. v. Napoli, 5 Cir., 166 F.2d 24, 27; Martucci v. Brooklyn Children’s Society, 2 Cir., 140 F.2d 732, 734.
The judgment of the District Court is affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_certreason
|
L
|
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.
Marisa N. PAVAN, et al.
v.
Nathaniel SMITH.
No. 16-992.
Supreme Court of the United States
June 26, 2017.
Shannon Minter, Christopher Stoll, Amy Whelan, National Center for Lesbian Rights, San Francisco, CA, Cheryl Maples, Heber Springs, Douglas Hallward-Driemeier, Molly Gachignard, Ropes & Gray LLP, Washington, DC, Christopher Thomas Brown, Joshua Goldstein, Daniel Swartz, Ropes & Gray LLP, Boston, MA, for Petitioners.
Leslie Rutledge, Arkansas Attorney General, Lee Rudofsky, Arkansas Solicitor General, Nicholas J. Bronni, Arkansas Deputy Solicitor General, Colin R. Jorgensen, Senior Assistant Attorney General, Office of the Arkansas Attorney General, Little Rock, AR, for the Respondent.
PER CURIAM.
As this Court explained in Obergefell v. Hodges, 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), the Constitution entitles same-sex couples to civil marriage "on the same terms and conditions as opposite-sex couples." Id., at ----, 135 S.Ct., at 2605. In the decision below, the Arkansas Supreme Court considered the effect of that holding on the State's rules governing the issuance of birth certificates. When a married woman gives birth in Arkansas, state law generally requires the name of the mother's male spouse to appear on the child's birth certificate-regardless of his biological relationship to the child. According to the court below, however, Arkansas need not extend that rule to similarly situated same-sex couples: The State need not, in other words, issue birth certificates including the female spouses of women who give birth in the State. Because that differential treatment infringes Obergefell 's commitment to provide same-sex couples "the constellation of benefits that the States have linked to marriage," id., at ----, 135 S.Ct., at 2601, we reverse the state court's judgment.
The petitioners here are two married same-sex couples who conceived children through anonymous sperm donation. Leigh and Jana Jacobs were married in Iowa in 2010, and Terrah and Marisa Pavan were married in New Hampshire in 2011. Leigh and Terrah each gave birth to a child in Arkansas in 2015. When it came time to secure birth certificates for the newborns, each couple filled out paperwork listing both spouses as parents-Leigh and Jana in one case, Terrah and Marisa in the other. Both times, however, the Arkansas Department of Health issued certificates bearing only the birth mother's name.
The department's decision rested on a provision of Arkansas law, Ark.Code § 20-18-401 (2014), that specifies which individuals will appear as parents on a child's state-issued birth certificate. "For the purposes of birth registration," that statute says, "the mother is deemed to be the woman who gives birth to the child." § 20-18-401(e). And "[i]f the mother was married at the time of either conception or birth," the statute instructs that "the name of [her] husband shall be entered on the certificate as the father of the child." § 20-18-401(f)(1). There are some limited exceptions to the latter rule-for example, another man may appear on the birth certificate if the "mother" and "husband" and "putative father" all file affidavits vouching for the putative father's paternity. Ibid. But as all parties agree, the requirement that a married woman's husband appear on her child's birth certificate applies in cases where the couple conceived by means of artificial insemination with the help of an anonymous sperm donor. See Pet. for Cert. 4; Brief in Opposition 3-4; see also Ark.Code § 9-10-201(a) (2015) ("Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman's husband if the husband consents in writing to the artificial insemination").
The Jacobses and Pavans brought this suit in Arkansas state court against the director of the Arkansas Department of Health-seeking, among other things, a declaration that the State's birth-certificate law violates the Constitution. The trial court agreed, holding that the relevant portions of § 20-18-401 are inconsistent with Obergefell because they "categorically prohibi[t] every same-sex married couple ... from enjoying the same spousal benefits which are available to every opposite-sex married couple." App. to Pet. for Cert. 59a. But a divided Arkansas Supreme Court reversed that judgment, concluding that the statute "pass[es] constitutional muster." 2016 Ark. 437, 505 S.W.3d 169, 177. In that court's view, "the statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife," and so it "does not run afoul of Obergefell ." Id., at 178. Two justices dissented from that view, maintaining that under Obergefell "a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple." 505 S.W.3d, at 184 (Brill, C.J., concurring in part and dissenting in part); accord, id., at 190 (Danielson, J., dissenting).
The Arkansas Supreme Court's decision, we conclude, denied married same-sex couples access to the "constellation of benefits that the Stat [e] ha[s] linked to marriage." Obergefell, 576 U.S., at ----, 135 S.Ct., at 2601. As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will-indeed, must -list the name of her male spouse on the child's birth certificate. See § 20-18-401(f)(1) ; see also § 9-10-201 ; supra, at 2077. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman's female spouse from her child's birth certificate. See 505 S.W.3d, at 177-178. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child's birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. See Pet. for Cert. 5-7 (listing situations in which a parent might be required to present a child's birth certificate).
Obergefell proscribes such disparate treatment. As we explained there, a State may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." 576 U.S., at ----, 135 S.Ct., at 2605. Indeed, in listing those terms and conditions-the "rights, benefits, and responsibilities" to which same-sex couples, no less than opposite-sex couples, must have access-we expressly identified "birth and death certificates." Id., at ----, 135 S.Ct., at 2601. That was no accident: Several of the plaintiffs in Obergefell challenged a State's refusal to recognize their same-sex spouses on their children's birth certificates. See DeBoer v. Snyder, 772 F.3d 388, 398-399 (C.A.6 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples. See 576 U.S., at ----, 135 S.Ct., at 2605. That holding applies with equal force to § 20-18-401.
Echoing the court below, the State defends its birth-certificate law on the ground that being named on a child's birth certificate is not a benefit that attends marriage. Instead, the State insists, a birth certificate is simply a device for recording biological parentage-regardless of whether the child's parents are married. But Arkansas law makes birth certificates about more than just genetics. As already discussed, when an opposite-sex couple conceives a child by way of anonymous sperm donation-just as the petitioners did here-state law requires the placement of the birth mother's husband on the child's birth certificate. See supra, at 2077. And that is so even though (as the State concedes) the husband "is definitively not the biological father" in those circumstances. Brief in Opposition 4. Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell , deny married same-sex couples that recognition.
The petition for a writ of certiorari and the pending motions for leave to file briefs as amici curiae are granted. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice GORSUCH, with whom Justice THOMAS and Justice ALITO join, dissenting.
Summary reversal is usually reserved for cases where "the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error." Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting). Respectfully, I don't believe this case meets that standard.
To be sure, Obergefell addressed the question whether a State must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question whether § 20-18-401 of the Arkansas Code, or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child's birth certificate. Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell -like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell , the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution. To the contrary, to the extent they speak to the question at all, this Court's precedents suggest just the opposite conclusion. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 124-125, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) ; Tuan Anh Nguyen v. INS, 533 U.S. 53, 73, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). Neither does anything in today's opinion purport to identify any constitutional problem with a biology based birth registration regime. So whatever else we might do with this case, summary reversal would not exactly seem the obvious course.
What, then, is at work here? If there isn't a problem with a biology based birth registration regime, perhaps the concern lies in this particular regime's exceptions. For it turns out that Arkansas's general rule of registration based on biology does admit of certain more specific exceptions. Most importantly for our purposes, the State acknowledges that § 9-10-201 of the Arkansas Code controls how birth certificates are completed in cases of artificial insemination like the one before us. The State acknowledges, too, that this provision, written some time ago, indicates that the mother's husband generally shall be treated as the father-and in this way seemingly anticipates only opposite-sex marital unions.
But if the artificial insemination statute is the concern, it's still hard to see how summary reversal should follow for at least a few reasons. First, petitioners didn't actually challenge § 9-10-201 in their lawsuit. Instead, petitioners sought and the trial court granted relief eliminating the State's authority under § 20-18-401 to enforce a birth registration regime generally based on biology. On appeal, the state supreme court simply held that this overbroad remedy wasn't commanded by Obergefell or the Constitution. And, again, nothing in today's opinion for the Court identifies anything wrong, let alone clearly wrong, in that conclusion. Second, though petitioners' lawsuit didn't challenge § 9-10-201, the State has repeatedly conceded that the benefits afforded nonbiological parents under § 9-10-201 must be afforded equally to both same-sex and opposite-sex couples. So that in this particular case and all others of its kind, the State agrees, the female spouse of the birth mother must be listed on birth certificates too. Third, further proof still of the state of the law in Arkansas today is the fact that, when it comes to adoption (a situation not present in this case but another one in which Arkansas departs from biology based registration), the State tells us that adopting parents are eligible for placement on birth certificates without respect to sexual orientation.
Given all this, it seems far from clear what here warrants the strong medicine of summary reversal. Indeed, it is not even clear what the Court expects to happen on remand that hasn't happened already. The Court does not offer any remedial suggestion, and none leaps to mind. Perhaps the state supreme court could memorialize the State's concession on § 9-10-201, even though that law wasn't fairly challenged and such a chore is hardly the usual reward for seeking faithfully to apply, not evade, this Court's mandates.
I respectfully dissent.
As the petitioners point out, other factual scenarios (beyond those present in this case) similarly show that the State's birth certificates are about more than genetic parentage. For example, when an Arkansas child is adopted, the State places the child's original birth certificate under seal and issues a new birth certificate-unidentifiable as an amended version-listing the child's (nonbiological) adoptive parents. See Ark.Code §§ 20-18-406(a)(1), (b) (2014); Ark. Admin. Code 007.12.1-5.5(a) (Apr. 2016).
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:
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songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Appellee, v. Alfreda BARNES, Defendant, Appellant.
No. 88-1161.
United States Court of Appeals, First Circuit.
Heard April 5, 1989.
Decided Nov. 30, 1989.
Ellen K. Wade, by Appointment of the Court, with whom Avery & Friedman, Boston, Mass., was on brief, for defendant, appellant.
Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for the U.S.
Before CAMPBELL, Chief Judge, and BOWNES, Circuit Judge, and CAFFREY, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
CAFFREY, Senior District Judge.
The defendant Alfreda Barnes appeals her conviction in the District of Rhode Island for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count I) and for possession, as a convicted felon, of a firearm in violation of 18 U.S.C. § 922(g) (Count II). On appeal, Barnes challenges her conviction for Count I on three grounds. First, Barnes claims that there was insufficient evidence to support the jury’s finding that she constructively possessed the cocaine base found in her apartment. Second, Barnes argues that there was insufficient evidence to prove that the mixture of cocaine base weighed more than 50 grams as required by § 841(b)(l)(A)(iii). Third, Barnes contends that the term “cocaine base” as used in 21 U.S.C. § 841 (b)(1)(A)(iii) is unconstitutionally vague in violation of the fifth amendment. Finally, as to both Count I and Count II, Barnes challenges her convictions claiming that the district court erred in defining reasonable doubt in its jury instructions. After a thorough review of the trial record and the appellant’s arguments, we affirm the appellant’s convictions on both counts.
I.
The relevant facts for this appeal are those presented to the jury during the appellant’s three-day trial. The trial testimony centered on the seizure of 72.5 grams of “crack” cocaine and a semi-automatic rifle from an apartment at 212 Lenox Avenue in Providence, Rhode Island. According to the record, the jury heard the testimony of 12 witnesses and reviewed at least 14 exhibits. The trial evidence is summarized as follows.
At approximately 11:45 p.m. on June 29, 1987, seven officers of the Providence Police Department executed a search warrant for the second floor apartment at 212 Le-nox Avenue. Upon arriving at the address, Detective Sergeant Joseph Fusco found the appellant Alfreda Barnes in the driveway beside 212 Lenox Avenue. Fusco informed Barnes of the warrant and asked if he could enter the apartment, but Barnes refused to allow entry.
At this time, Fusco saw a young woman in the second floor window of the building. Fusco told the young woman he had a search warrant and asked to be let in, but he received no response. The police officers then forcibly entered both the front door to the building and the door to the second floor apartment.
The police found the second floor apartment empty. Upon entering, the police came to a living room which was partitioned into a double parlor area. Beyond the living room was the kitchen, and off the kitchen was a pantry area. There were to back, and one bedroom off the living room front. The police never searched the bedroom in front.
Detective Sergeant Thomas Oates and Fusco searched the larger rear bedroom. The room had a large mahogany water bed with storage drawers underneath. Beside the bed was a matching bureau, and, at the base of the bed, was a television with several shelves underneath. The room also had a hamper and a closet with female clothing in it.
The police seized several items from the larger rear bedroom. On the floor next to the bed, Fusco found a semi-automatic Sturm Ruger mini-14 rifle modified with a flash-suppressor and a loaded 20-round magazine. In the bureau, Fusco found another gun magazine filled with live ammunition and a box containing $588 in cash. In the hamper, Oates discovered a blue Baby Fresh tissue container with $5,948 in cash inside. With the money, there was also a slip of paper with the figure “$6,000” and other scribblings written on it. Oates also found certain paperwork on the shelves below the television. Among these papers were two food stamp cards: one had the name “A. Barnes” and the other had the name “G. Barnes.”
Under the television, Oates noticed a Mrs. Filbert’s margarine container wrapped with a rubber band. Inside, Oates found three rock-like objects: one the size of a baseball, the other two the size of golf balls. Oates seized these objects believing them to be “crack” cocaine.
After starting to search the larger rear bedroom. Fusco took the rifle into the kitchen where various items were being inventoried. At that time, Barnes was in custody and seated by the kitchen table. As Fusco entered the kitchen with the rifle, Barnes said: “That’s mine, you can’t take it, I bought it at D & B Guns.”
Detective Gail Zienowicz and Fusco searched the kitchen and pantry areas. Zienowicz found several hundred unused small plastic vials inside a clothes dryer in the kitchen. Zienowicz seized the vials believing them to be “crack vials” used for distributing “crack” cocaine. Fusco also found and seized two triple beam scales in the pantry area.
During the search, the police assembled three individuals in the kitchen: Barnes who was in the driveway, the young woman who Fusco recognized as the person in the window, and a small infant. Barnes was arrested and taken into custody by the police. The police did not identify the young woman or the infant.
At trial, Lulu Barnes, the appellant Alfreda Barnes’s mother who lived on the first floor and owned the building, testified as the sole defense witness. Lulu said that Alfreda had lived in the second floor apartment for nine years. Alfreda had paid rent of $870 a month for several years and was on welfare with “section 8” housing support. Lulu also said the phone service was subscribed in Alfreda’s name.
Lulu Barnes testified that Alfreda lived in the second-floor apartment with her .infant child, not named in the record, and her two older children Gina, 20, and Marvin, 18. Marvin was a student at the University of Rhode Island and did not stay at the apartment regularly. The infant and Gina were staying at the apartment at the time.
Lulu Barnes also testified that Gina, not Alfreda, slept in the larger rear bedroom where the rifle and cocaine base were found. Lulu said that Alfreda slept with the infant in the smaller front bedroom off the living room. This testimony, however, was not unequivocal. On cross-examination, Lulu admitted that she had first said Gina lived in the smaller front bedroom, and then quickly corrected herself.
Finally, concerning the substance seized, a Drug Enforcement Administration forensic chemist, Andrea Michaels, testified at trial that she analyzed the three chunks found in the apartment. First, she weighed the three chunks and determined their weight to be 72.5 grams. Next, she screened each chunk with a common chemical color test and found each to contain some amount of cocaine. Then, she ground the chunks into a uniform powder and performed infra-red spectrography and gas chromatography tests on a one gram sample. Michaels said her test results showed the powder to contain 97 percent pure cocaine base. In terms of her chemistry training, Michaels explained that cocaine base differs from cocaine hydrochloride in its molecular structure. Michaels said that cocaine base is commonly called “crack” cocaine which is generally smoked.
II.
The first issue presented by this appeal is whether there was sufficient evidence to support the jury finding that the appellant Barnes constructively possessed the cocaine base found in the larger rear bedroom. Barnes argues that the only direct testimony offered at trial showed that her daughter Gina lived in the larger rear bedroom, and thus Barnes could not have constructively possessed the drugs found in the rear bedroom. Further, Barnes contends that the drugs and drug paraphernalia seized in other areas of the apartment were not in plain view, and thus she had no knowledge or control over these items. In light of the full record and the applicable law, these arguments are not persuasive.
In reviewing this issue, the court must decide whether “after viewing the evidence in the light most favorable to the prosecution, 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) (emphasis in original). See also United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989); United States v. Torres Lopez, 851 F.2d 520, 527 (1st Cir.1988), cert. denied, - U.S.-, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989). In considering this question, the court shall draw all reasonable inferences from direct and circumstantial evidence in favor of the government. United States v. Lochan, 674 F.2d 960, 965-66 (1st Cir.1982). Furthermore, given this circuit’s adherence to the “waiver rule” concerning mid-trial motions for acquittal, the court shall consider all the evidence presented at trial both from the government and the defendant. United States v. Notarantonio, 758 F.2d 777, 788 (1st Cir.1985). Nevertheless, the court is mindful that the burden remains on the government to prove every element of the offense beyond a reasonable doubt. Lochan, 674 F.2d at 965-66.
Pursuant to 21 U.S.C. § 841(a), the government was required to prove that Barnes knowingly possessed the cocaine base found in the apartment at 212 Lenox Avenue. The government need not prove actual possession; constructive possession is sufficient. See United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988); United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988); United States v. Carrasco, 830 F.2d 41, 45 (5th Cir.1987). To show constructive possession, the government must prove that Barnes had dominion and control over area where the contraband was found. See United States v. Morales, 868 F.2d 1562, 1573 (11th Cir.1989); Matra, 841 F.2d at 840. Constructive possession may be shown by direct or circumstantial evidence, but mere association or mere presence with one who possessed contraband is not enough. See United States v. Castillo, 844 F.2d 1379 (9th Cir.1988); Carrasco, 830 F.2d at 45. See also United States v. Mehtala, 578 F.2d 6, 9-10 (1st Cir.1978). Finally, knowledge of possession may similarly be inferred by demonstrating dominion and control over the area where contraband is found. Lochan, 674 F.2d at 966.
To begin our analysis, we note that the appellant misconstrues the law concerning constructive possession on two points. First, Barnes argues in her brief that she “did not have exclusive access to the apartment,” and further suggests that the government must show Barnes exclusively occupied the larger bedroom to satisfy its burden. While the government may prove its case in this manner, constructive possession may be proven in situations of joint occupancy and it need not be exclusive. See Calle-Cardenas, 837 F.2d at 32 (defendant found in apartment with two other men similarly clothed had dominion and control over apartment); United States v. Poole, 878 F.2d 1389, 1392 (11th Cir.1989) (defendant living in apartment with sister, three adolescent children, and a male friend had dominion and control over apartment). Second, the appellant suggests that the government must prove her dominion and control over the cocaine base itself. Again the government may prove its case in that way, but the government may also satisfy its burden of proof by showing dominion and control over the area where the contraband was found. See Morales, 868 F.2d at 1573 (defendant leasing apartment had dominion and control over drugs found there); Lochan, 674 F.2d at 966 (defendant driving vehicle had dominion and control over hashish found behind back seat).
Thus, the issue reduces itself to whether the appellant Barnes, either jointly or exclusively, had dominion and control over the area where the cocaine base was found. With multiple occupants in the apartment and Lulu Barnes’s testimony, the evidence as presented to the jury created a question of fact as to who had dominion and control over the larger rear bedroom. On appeal, however, the evidence presented at trial creates no question of law concerning whether the jury had a rational basis for its verdict.
The government presented substantial circumstantial evidence that Barnes had dominion and control over the larger rear bedroom. The police found a loaded rifle, which admittedly belonged to Barnes, on the floor in the larger rear bedroom and seized a loaded magazine for the gun from the bureau in the same room. The police also found Barnes’s food stamp identification card in the bedroom with her name on it. In addition, the bedroom closet contained women’s clothing.
Added to this circumstantial evidence, certain reasonable inferences could be drawn from these facts. While Barnes argues that her daughter lived in the larger rear bedroom, it is unlikely that Barnes would leave her loaded rifle on the floor of her daughter’s room or store ammunition for the rifle in her daughter’s bureau. Moreover, the size and furnishings of the larger rear bedroom, as well as its proximity to the infant’s room, are consistent with the occupant being the head-of-household with a young child.
In addition to the larger rear bedroom, Barnes clearly had dominion and control over the entire apartment. Barnes had leased the apartment for nine years and the phone was subscribed in her name. Barnes, as the mother of all the regular occupants, was the head of the family in the apartment. Further, Barnes, as a welfare recipient with three dependents, was also the head-of-the household.
Added to this evidence of dominion and control, the government offered further circumstantial evidence suggesting Barnes had knowledge of a large scale drug operation at work in the apartment. The police seized several hundred unused “crack” vials from the clothes dryer in the kitchen. In the pantry, the police found two triple-beam scales commonly used in drug operations. The police discovered over $6,000 cash in an apartment leased by a welfare recipient. Further, the police seized more than 70 grams of “crack” cocaine in close proximity to a loaded, semi-automatic rifle in the apartment.
In response, Barnes mounts several arguments. First, she argues that the testimony of Lulu Barnes was uncontroverted, and Lulu told the jury that Gina, not Alfreda, lived in the larger rear bedroom. But clearly, the fact that Lulu’s testimony was initially ambiguous, as admitted on cross-examination, creates a question of credibility for the jury. Thus, this testimony presented the jury with the task of weighing the credibility of a witness against the reasonable inferences of the government’s circumstantial case. This task was properly before the jury, and, on review, there appears to be ample evidence to support a verdict in favor of either the government or Barnes.
Second, Barnes contends that her identification card was found with her daughter Gina’s card, thus showing a potential conflict in the circumstantial evidence presented by the government. But this response, merely frames the issues placed before the jury, and it does not negate the government’s theory of dominion and control. On appeal, we cannot say that the jury had no rational basis for their verdict.
Third, Barnes argues that most of the circumstantial evidence was not in plain view, and therefore Barnes may not have had knowledge of its existence despite living in the apartment. But clearly the rifle, found beside the bed, and the triple beam scales, found in the pantry, were in plain view. Moreover, it may be arguable that the vials found in the clothes dryer and the cocaine base found in the margarine container were sufficiently in common areas to impute knowledge to the tenant and head-of-household living in the apartment. Nonetheless, we need not answer these specific factual questions because Barnes’s arguments do no more than raise issues for consideration by a jury, and, so long as the jury had a rational basis for its conclusions, we must affirm their verdict.
In sum, we find that on a thorough review of all the circumstantial evidence and the reasonable inferences drawn from that evidence, there is sufficient evidence to support the jury verdict.
III.
The next issue presented by this appeal is whether the government presented sufficient evidence to prove the cocaine base mixture weighed more than 50 grams as required by 21 U.S.C. § 841(b)(l)(A)(iii). The appellant Barnes argues that the government failed to test separately each chunk of cocaine found in the apartment, and therefore, it is possible that one of the three chunks did not contain any cocaine base. Further, if that chunk without cocaine base weighed more than 22.5 grams, the court could not find that at least 50 grams of the 72.5 grams seized contained cocaine base. These arguments, however, fail to consider the express language of 21 U.S.C. § 841(b) and the purity of the cocaine seized.
This issue focuses on the mandatory penalty provisions of 21 U.S.C. § 841(b). If a person knowingly possesses a controlled substance with intent to distribute, such person shall serve a mandatory term of imprisonment depending on the quantity and type of controlled substance. 21 U.S.C. § 841(b). Under subsection (b)(l)(A)(iii), a mandatory 10-year sentence shall apply to violations involving “50 grams or more of a mixture of substance described in clause (ii) which contains cocaine base.” Clause (ii) describes various forms of coca leaves, cocaine, and its derivatives. 21 U.S.C. § 841(b)(l)(A)(ii).
In this case, the DEA chemist testified that all three chunks together weighed 72.5 grams. The chemist also testified that each chunk contained some cocaine and, after being ground into a uniform mixture, the chunks in fact contained cocaine base. Further, the chemist testified that the mixture was 97 percent pure cocaine base.
This evidence is clearly sufficient to satisfy the penalty provisions of section 841(b)(1)(A). The express statute does not require the violation to involve 50 grams of cocaine base; rather it applies to “50 grams of a mixture or substance [of cocaine] which contains cocaine base.” Thus, where the sample weighs 72.5 grams and the mixture contains 97 percent pure cocaine base, the evidence is clearly sufficient for the court to find the contraband seized satisfied the penalty provisions of section 841(b)(l)(A)(iii).
IV.
The next issue presented by this appeal is whether the term “cocaine base” as used in 21 U.S.C. § 841(b)(l)(A)(iii) is so vague as to violate the due process clause of the fifth amendment. The appellant Barnes points out that the term “cocaine base” was included in the statute without any definition. Further, Barnes claims the word “base” appears with several definitions in any traditional dictionary, and consequently, the term “cocaine base” may be subject to any number of possible interpretations creating a vagueness problem. We, however, disagree.
The court recognizes the well-established principle that due process requires a penal statute to “define [a] criminal offense with sufficient definiteness that ordinary people understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This “void for vagueness” doctrine, however, does not mean a statute is unconstitutionally vague where “Congress might, without difficulty, have chosen ‘clearer and more precise language’ equally capable of achieving the end which it sought.” United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 321, 46 L.Ed.2d 228 (1975) (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947)). Finally, where the first amendment is not implicated, a “void for vagueness” challenge must be unconstitutional as applied to the defendant and “must be examined in light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975).
To begin our analysis, the term “cocaine base” clearly defines a substance differing from other forms of cocaine. The DEA chemist at trial testified that “cocaine base” was chemically distinguishable from “cocaine hydrochloride.” Cocaine hydrochloride is water soluble, formed in crystals or flakes, and generally snorted by users. Cocaine base is not water soluble, concentrated in a hard rock-like form, and generally smoked. This testimony is consistent with the sources reviewed by this court. See M. Ellenhorn & D. Barcelona, Medical Toxicology: Diagnosis and Treatment of Human Poisoning 645-48 (1988); 3 Court Room Toxicology (MB) Coca 1-2 (1987) (eds. Houts, Baselt, Cravey); Blakiston’s Gould Medical Dictionary 290 (5th ed. 1979). See also United States v. Brown, 859 F.2d 974, 975-76 (D.C.Cir.1988).
Further, in this case, there is no question that the possession of the substance in question is specifically what Congress intended to punish. The chunks seized were the form of cocaine known as “crack,” which was a primary target of the Narcotics Penalties and Enforcement Act of 1986. See 132 Cong.Rec. S11973 (Aug. 15, 1986) (statement of Sen. D’Amato); 132 Cong.Rec. S14270 (Sept. 30, 1986) (statement of Sen. DeConcini); H.R.Rep. No. 845, 99th Cong., 2d Sess. at 11-12, 17 (1986). The substance at issue is not some new form or derivative of cocaine which was not originally contemplated by Congress. Thus, as applied to the facts of this case, the term “cocaine base” clearly does not violate the defendant’s due process rights.
For all these reasons, the appellant fails to show any “void for vagueness” problem with the term “cocaine base” in 21 U.S.C. § 841(b)(l)(A)(iii).
V.
The final issue raised in this appeal is whether the jury instructions concerning reasonable doubt unconstitutionally lowered the government’s burden of proof. The challenged portion of the district court’s charge is as follows:
Reasonable doubt by definition means a doubt founded upon reason not conjec- or which some reason as opposed to conjecture or speculation can be assigned in your minds. I remind you again that the burden is on the government. It is not a doubt suggested by the ingenuity of counsel and unwarranted by the testimony; nor a doubt borne of merciful inclination to permit the accused to escape conviction; nor a doubt prompted by sympathy for those connected with the defendant.
The appellant Barnes argues that the district court’s negative definition of reasonable doubt impermissibly undermined the burden of proof placed on the government. Particularly, the appellant objects to the definition “not a doubt suggested by the ingenuity of counsel.” Relying on our recent decision in United States v. Glantz, we find the appellant’s arguments unpersuasive.
In Glantz, this court considered nearly identical objections to the same instructions from the same district court. 847 F.2d 1, 11-12 (1st Cir.1988). The Glantz opinion expressly disapproved of the “ingenuity of counsel” language, but found that, in light of other extensive and correct definitions of reasonable doubt, the jury instructions taken as a whole caused no constitutional error. 847 F.2d at 11. See United States v. Glenn, 828 F.2d 855, 861 (1st Cir.1987). We note that here, as in Glantz, the trial record is replete with numerous correct definitions of reasonable doubt. These definitions were given several times throughout the trial and in the jury instructions. In light of these definitions, we do not believe the jury could have been misled and thus find no constitutional error.
For all the reasons stated above, we affirm the appellant’s convictions on both counts.
. Honorable Francis J. Boyle, Chief Judge for the District of Rhode Island presiding.
. At trial, three of the seven officers testified for the government: Detective Sergeant Joseph Fus-co, Detective Sergeant Thomas Oates, and Detective Gail Zienowicz.
. As noted in the appellee's brief, this equivocation was not recorded initially by the court reporter on direct examination. Trial Transcript, Vol. Ill, p. 307. On cross examination, however, Lulu Barnes admitted that she changed her first response:
Q Let me just ask you this question, Miss Barnes, isn’t it a fact that about 20 minutes ago when Mr. O’Brien first asked you who was in that bedroom, whose bedroom that was, you said it was Gina’s?
A I always make, you can make a mistake, it’s not Gina’s.
Q But you did say that?
A I said it but it’s not Gina's. It's Alfreda’s bedroom.
Trial Transcript, Vol. Ill, p. 323.
This fact is further corroborated by observations made by the judge during post-trial motions: "One bit of evidence that's been overlooked by everybody seems to me is the defendant’s mother’s testimony in which she was asked the question as to whose bedroom was the one closest to the front door. As I recall that testimony her response was to the effect that that was Gina’s bedroom. Then she changed it. It became Alfreda’s bedroom.” Trial Transcript, Vol. IV, p. 26.
. Where the defendant makes a motion for acquittal at the close of the government’s case and then again at the close of the defendant’s case, this court deems the mid-trial motion as waived by the defendant. Notarantonio, 758 F.2d at 788; Colella v. United States, 360 F.2d 792, 802 (1st Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). The law of this circuit requires this court to examine all the evidence submitted at trial. Notarantonio, 758 F.2d at 788. In this case, applying the "waiver rule,” we shall consider the testimony of the defense’s sole witness, the defendant's mother Lulu Barnes, in evaluating the sufficiency of evidence for the jury verdict.
. As further support, we note that this decision is consistent with this court’s recent decision in United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988). In Calle-Cardenas, the defendant was found in the living room of an apartment along with two other individuals. Certain drugs were found on a table in front of the defendant along with the defendant’s identification card. On review of the evidence, the court found that there was sufficient evidence to prove constructive possession by the defendant.
. It is important to note that the court, not the jury, determines the quantity and type of controlled substance appropriate under 21 U.S.C. § 841(b). See United States v. Gohagen, 886 F.2d 1041 (8th Cir.1989); United States v. Padilla, 869 F.2d 372, 381 (8th Cir.), cert. denied, - U.S. -, 109 S.Ct. 3223, 106 L.Ed.2d 572 (1989). Section 841(b) describes the penalty provisions for violations of section 841(a), in this case possession of a controlled substance with intent to distribute. Therefore, as a penalty provision, the district court judge determines the facts at the sentencing, and, on appeal, we review the court's factual findings, not the jury’s verdict.
In this case, the district court judge properly made a finding during the sentencing as to the quantity and type of the cocaine. See Padilla, 869 F.2d at 381 (conviction vacated and remanded for resentencing where district court had not made findings of fact as to the quantity and type of cocaine). At the sentencing hearing, the court stated: “I’m satisfied that the particular quantity of cocaine base as required by the statute has been proven by the government beyond a reasonable doubt. I am satisfied that the nature of the substance was cocaine base, if those findings of fact have to be made at this point in time.” Trial Transcript, Vol. IV, p. 52.
As a final concern, we note that the judge in this case instructed the jury that it must find the defendant possessed “a detectable amount of cocaine base” and "the amount is more than 50 grams” to return a guilty verdict. Trial Transcript, Vol. Ill, pp. 391-92. In fact, questions as to whether the mixture found was cocaine base and its specific weight were factual findings for the judge at sentencing. The jury need only have found that the three chunks seized contained some mixture of cocaine as defined in schedule II. See 21 U.S.C. § 812. This instruction, however, was not harmful or prejudicial since it created a greater burden for the government, not for the defendant. Cf. Padilla, 869 F.2d at 381 n. 5 (court found no prejudice to defendant where indictment improperly cited penalty provisions of 21 U.S.C. § 841(b) as part of substantive elements of the offense).
. At the outset, we note that the use of the term "cocaine base” in this statute does not present a question of giving adequate notice to possible defendants. The challenged term appears in the penalty provisions of 21 U.S.C. § 841(b). As such, the term "cocaine base” is only relevant to enhanced penalties facing a defendant, and Congress added these penalties without altering the substantive elements of 21 U.S.C. § 841(a). See Anti-Drug Abuse Act of 1986, P.L. No. 99-570, 100 Stat. 3207, 3207-2 (1986) (codified as amended at 21 U.S.C. § 841(b)). Thus, Congress did not criminalize any conduct which was not already illegal, and there is no problem of giving adequate notice of enhanced penalties to possible defendants. See United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988).
In our case, we shall assume that the appellant is challenging the possible vagueness problems in enforcing the term. See Kolender, 461 U.S. at 358, 103 S.Ct. at 1858 (“the more important aspect of the vagueness doctrine ‘is not the actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimum guidelines to govern law enforcement’ ” (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974)). Therefore, in our analysis, we shall focus on problem of vagueness in administering and enforcing the statute rather than in giving adequate notice to the defendant.
. The Narcotics Penalties and Enforcement Act of 1986 was passed as subtitle A of title I of the Anti-Drug Abuse Act of 1986. See Anti-Drug Abuse Act of 1986, P.L. No. 99-570, 100 Stat. 3207, 3207-2 (1986) (codified as amended at 21 U.S.C. § 841(b)).
. We also note that three circuit courts of appeals have faced similar constitutional challenges to the same language in the same statute, and all have found that the term “cocaine base” does not create a due process violation. See United States v. Brown, 859 F.2d 974, 975-76 (D.C.Cir.1988); United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.1989).
.In reviewing the Glantz and Glenn opinions, we reiterate our disapproval of reasonable doubt defined as "not a doubt suggested by the ingenuity of counsel.” Such a definition "provides an incorrect inference” since “all defenses rely to a great extent on the ingenuity of counsel.” Glantz, 847 F.2d at 11. Further, “[i]f these words stood alone, they could conceivably misdirect the jury’s attention away from the logical force of the doubt and toward its source, leading it to discount reasonable doubts created by defense counsel." Glenn, 828 F.2d at 861 (reviewing similar “ingenuity of counsel” language).
We further note our disapproval of the other language used in the final sentence of the quoted instruction. That too is confusing and incorrect.
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
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
Todd PATTERSON, a Minor suing by his father, Edgar PATTERSON v. FEDERAL BUREAU OF INVESTIGATION, John Doe, an unknown employee of the United States Government and John Doe Agency, an unknown agency of the United States Government. Appeal of Todd PATTERSON in Nos. 89-5342 and 89-5781.
Nos. 89-5342, 89-5781.
United States Court of Appeals, Third Circuit.
Argued Nov. 9, 1989.
Decided Jan. 8, 1990.
Rehearing and Rehearing In Banc Denied Feb. 7, 1990.
Frank Askin (argued), Rutgers Constitutional Law, Newark, N.J., for appellant.
Susan C. Cassell, U.S. Attorney’s Office, Newark, N.J., for all appellees.
Douglas Letter (argued), Robert E. Kopp, Dept, of Justice, Civil Div., Washington, D.C., for F.B.I.
Before MANSMANN and GREENBERG, Circuit Judges, and GAWTHROP, District Judge.
Honorable Robert S. Gawthrop, III, of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
These appeals were born of the ambitious efforts of a sixth grade elementary school student who, in the lawful exercise of his constitutional rights, caused himself to be the subject of an investigation by the Federal Bureau of Investigation (“FBI”). The appeals constitute yet another illustration of the competing need for disclosure of information by government agencies and the need to prevent injury to the national security.
Todd Patterson (“Todd”) appeals from the district court’s orders granting summary judgment to the FBI and denying his post-trial motion filed pursuant to Federal Rule of Civil Procedure 60(b). We hold that the information Todd seeks from the federal agency was properly exempt from disclosure. Therefore, we will affirm the judgment of the district court.
I.
In 1983, Todd, then a sixth grade elementary school student, embarked on a precocious endeavor to write an encyclopedia of the world as part of a school project. Deciding that his school’s resources were inadequate, Todd wrote to 169 countries requesting information. Significantly, Todd enclosed much of this correspondence in envelopes bearing the return address of Laboratory Disposable Products, a business Todd’s parents operated from their home.
The flood of international correspondence engendered by the project attracted the attention of the FBI by means and methods undisclosed by the FBI. In late 1983, an FBI agent appeared unannounced at Todd’s home. The agent spoke to Todd’s parents concerning Todd’s activities and was shown the correspondence received in response to Todd’s requests. Soon after the visit, Todd contacted the FBI agent and spoke with him regarding the school project and the information requests to other countries.
As a result of the school project and the visit by the FBI agent, the FBI came to maintain a file on Todd. The file contained a directive for the FBI’s Newark Division to conduct an appropriate investigation of Laboratory Disposable Products in accordance with Attorney General Guidelines. Also included in the file is a memorandum, prepared on or about February 23, 1984, that changed the subject heading from “Laboratory Disposable Products” to “Todd Patterson.” The memorandum contains a description of Todd’s project and states “Newark indices as well as local criminal checks negative on subject” and “[i]n view of the above, Newark contemplates no further investigation in this matter.” 705 F.Supp. 1033, 1037 (D.N.J.1989).
The FBI maintains that it conducted no further investigation after 1983. However, a document released by the FBI dated December 5, 1985, along with five attachments not released, demonstrate that as of that date some entity of the United States Government continued to monitor Todd’s activities. Todd insists that surveillance remained in effect because he continued to receive pieces of mail in damaged condition. In addition, Todd and his parents report hearing strange background noises on their telephones since 1983.
In April, 1987, Todd requested, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982), access to records the F.B.I. in Washington, D.C. might be maintaining on him. Todd was informed that the information he requested was exempt from disclosure under 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552a(j)(2). Todd appealed the denial of his FOIA request to the Department of Justice, Office of Information and Privacy, where the determination was upheld. Thereafter, Todd filed a second FOIA request, this time directed to the FBI’s Newark field Office.
In May 1988, Todd initiated a civil suit against defendants FBI, John Doe (an unknown employee of the United States Government), and John Doe Agency (an unknown agency of the United States Government). Todd sought injunctive relief, damages, and disclosure of the requested documents. The complaint presented three distinct causes of action: (1) failure to comply with FOIA; (2) violations of the Privacy Act; and (3) violations of Todd’s First and Fourth Amendment rights and of 18 U.S.C. § 1702 and 19 U.S.C. § 482, statutes relating to the U.S. Mail.
The FBI responded initially to the complaint by offering to expunge Todd’s name from its records. The offer was never accepted. Thereafter, the FBI filed a motion for summary judgment on the first and second causes of action, reasserting that the requested information was exempt from disclosure. As to the third cause of action, the FBI moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). Following oral argument on the motion and in camera review of the withheld documents, the district court granted summary judgment to the FBI on February 7, 1989, on all three causes of action. 705 F.Supp. 1033 (D.N.J. 1989). Todd thereafter filed a motion, pursuant to Fed.R.Civ.P. 60(b), to vacate the judgment or in the alternative to supplement the record which was denied by the district court on August 18, 1989. We have jurisdiction to review the grant of a motion for summary judgment and the denial of a Rule 60(b) motion pursuant to 28 U.S.C. § 1291.
II.
A.
Todd challenges the procedures employed by the district court in its adjudication of the alleged FOIA violation. In particular, Todd contends that the record does not justify the district court’s use of an in camera affidavit and its further in camera examination of withheld documents.
In Lame v. United States Dept. of Justice, 654 F.2d 917, 922 (3d Cir.1981), we expressly authorized the use of in camera affidavits and submissions. We noted that in the ordinary case, “a Vaughn index correlating justifications for non-disclosure with the particular portions of the documents requested will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court.” Lame, at 922.
However, there are cases, albeit unusual, where the preparation of a detailed Vaughn index would require an agency to disclose the very information that it seeks to withhold. Under these circumstances, we require an agency to submit a public affidavit setting forth, in as detailed terms as possible, the basis for the claimed exemption. Lame, 654 F.2d at 921. The district court must strive to make the public record as complete as possible, soliciting as much information as can be willingly released by the agency. If, however, “the agency is unable to articulate publicly the specific disclosure it fears and the specific harm that would ensue, then in camera inspection of a more detailed affidavit must be resorted to.” See Ferri v. Bell, 645 F.2d 1213, 1224 (3d Cir.1981), opinion modified, 671 F.2d 769 (3d Cir.1982); Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1013 (D.C.Cir.1976). Moreover, to the extent that any public affidavits may appear sufficiently descriptive, it may nonetheless be necessary for the district court to examine the withheld documents in camera to determine whether the agency properly characterized the information as exempt. 5 U.S.C. § 552(a)(4)(B); Lame, 654 F.2d at 921; Ferri, 645 F.2d at 1222; see also Phillippi, 546 F.2d at 1012 (FOIA clearly contemplates that courts will resolve fundamental issues in contested cases on the basis of in camera examination of relevant documents).
We believe the procedural events in the case sub judice are in accord with those procedures outlined above. In seeking discovery from the FBI, Todd propounded interrogatories questioning, inter alia, the internal investigatory procedures of the FBI and the identities of the persons and agencies assigned to Todd’s case. The FBI provided answers to a few of the interrogatories, however, in most instances it claimed exemption from disclosure under the states military secrets privilege and 5 U.S.C. § 552(b)(1) and § 552(b)(7)(C) of the FOIA. In support of its claim of privilege, the FBI submitted the public affidavits of Special Agents Lieberman, Thomas, and Thorton. The purpose of the Thomas affidavit was to provide the district court with a Vaughn index for the records requested by Todd and withheld by the FBI. Lieberman’s affidavit describes the withheld documents and sets forth justifications for those withholdings under the FOIA. Lastly, the Thorton affidavit states that the Patterson premises had never been the subject of electronic surveillance and the FBI was innocent of opening or intercepting any mail directed to the Pattersons.
Ostensibly, the district court found that these affidavits constituted sufficient proof of the privileged nature of the withheld information, for it was not until after oral argument on the FBI’s motion for summary judgment that in camera inspection was ordered. Indeed, the district court’s order directing the ex parte review indicated the following:
because certain issues were raised in oral argument that were not adequately addressed in the supporting papers, I have concluded that in camera inspection of certain withheld documents is required in order for this Court to assure itself that the FBI has acted in good faith with regard to its investigation of Todd Patterson, that the FBI complied with all relevant government regulations, and that the FBI engaged in no illegal conduct.
This in camera review was necessary with respect to only two documents.
The FBI complied with the order by submitting all of the unredacted documents at issue as well as the declaration of James Geer, the FBI Assistant Director in charge of the Intelligence Division. Geer’s declaration was provided as “an explanatory affidavit that goes into more detail than the public affidavits.” The FBI also filed publicly the Declaration and Claim of Privilege of Attorney General Thornburgh so as to assert formally the state secrets privilege.
Thus, the public record consisted of certain redacted documents initially released by the FBI, a few answers to interrogatories, and four affidavits. Not surprisingly, these materials did not allay Todd’s interest in the FBI’s files. Under the circumstances, however, we believe the public submissions represent a good faith effort by the FBI to provide as much access to the information as possible. We can appreciate Todd’s objections to the anomalous situation of having to defend against a motion for summary judgment without being privy to the very documents necessary for such a defense. The Court of Appeals for the D.C. Circuit, which has considered a significant number of FOIA cases, has commented on how this “lack of knowledge by the party seeing [sic] disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn, 484 F.2d at 824. However, the remedy for the unfairness is an in camera examination by the trial court of the withheld documents and any supporting or explanatory affidavits. Inasmuch as the record was made as complete as possible in this instance, we hold that the proper predicates for accepting records and affidavits in camera were satisfied in this case.
Irrespective of the district court’s in camera review, Todd argues that summary judgment should not have been granted because the FBI failed to sustain its burden to show the sensitive nature of its withheld documents. In reviewing the grant of summary judgment in proceedings seeking disclosure of records under the FOIA, this court’s scope of review is twofold: we must determine whether the district court had an adequate factual basis for its decision and whether its conclusion was clearly erroneous. Cuccaro v. Secretary of Labor, 770 F.2d 355 (3d Cir.1985); Lame v. United States Dept. of Justice, 767 F.2d 66 (3d Cir.1985).
The FBI invoked two exemptions in support of its denial of Todd’s FOIA request. The first exemption provides that documents which are “specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy,” are exempt from disclosure. 5 U.S.C. § 552(b)(l)(1982). In support of its position, the FBI submitted the Thomas affidavit which identifies the relevant Executive Order in this case as being the Executive Order on National Security Information, No. 12356, 3 C.F.R. 166 (1983). Reviewing the Thomas affidavit in conjunction with Executive Order 12356, the district court found, and we agree, that the FBI adhered to the procedural requirements of the Executive Order when the withheld FOIA material was classified.
Next, the affidavit indicates that the documents sought by Todd contain information made eligible for classification by § 1.3(a)(4) of the Executive Order. Particularly, § 1.3(a)(4) provides that information shall be considered for classification if it concerns “intelligence activities (including special activities), or intelligence sources or methods.” 3 C.F.R. 169. This section must be read in conjunction with § 1.3(b):
Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when an original classification authority also determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
Id.
The remainder of the affidavit includes Thomas’ description of the documents, the location of the classified portions, and his assertions that the material satisfies the classification criteria of § 1.3(a)(4) and ultimately presents a threat to the national security. The district court found Thomas’ assertions deficient in only two respects. The district court found his references to Documents No. 4 and 5 to be unduly vague and repetitive. Upon in camera inspection of the material, however, the court was convinced that release of the withheld material reasonably could be expected to cause damage to the national security.
We conducted our own in camera review of the documents and accompanying Geer affidavit, mindful that when dealing with documents to which § 552(b)(1) applies courts are expected to accord “substantial weight” to the agency’s affidavit. See American Friends Serv. Com. v. Department of Defense, 831 F.2d 441, 444 (3d Cir.1987); see also S.Conf.Rep. No. 1200, 93d Cong. 2d Sess. 12 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 6267, 6290. We find that the district court’s decision has an adequate factual basis and even on a plenary review we agree with it.
The second exemption invoked by the FBI was § 552(b)(7)(C), which exempts from disclosure:
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ...
(C) constitute an unwarranted invasion of personal privacy ...
5 U.S.C. § 552(b)(7)(C).
In considering this claim, the district court was required to engage in a de novo balancing test: “weighing the public benefit which would result from the disclosure against the privacy interest and the extent to which it is invaded.” Cuccaro, 770 F.2d at 359. In view of its finding that the FBI had not participated in any illegal conduct, the district court concluded that only a negligible benefit would inure to the public by releasing the names of FBI personnel. As a result of our independent examination of the documents, we find that the district court’s conclusion is correct.
Todd also maintains that the blanket exemption from release of the requested documents and the Geer affidavit was over-broad, and that all segregable, non-sensitive portions of the withheld documents should have been released. Our rule in this circuit is that, in response to a FOIA request, “[a]ny reasonably segregable, nonexempt portion of a record is to be made available to the person requesting that record.” Lame, 654 F.2d at 921. In this case, the FBI did release certain papers in which extensive redaction was necessary. Those documents completely withheld were simply inappropriate for partial redaction, except in one instance. The Geer affidavit contains some non-classified portions which could have been disclosed. Responding to questions propounded by this court at oral argument, the FBI admitted that the entire Geer affidavit need not have been withheld. However, the FBI explained that the non-classified parts of that document were available to Todd and disclosure would be made upon request. We are not convinced that earlier disclosure of these non-classified parts would have affected the outcome of the case. Future disclosure will at least assuage some of Todd’s curiosity.
B.
Todd argues that the FBI violated his rights under the Privacy Act, 5 U.S.C. § 552a(e)(7) by collecting information about his protected correspondence with foreign governments and by maintaining records of his protected activity in permanent, retrievable files indexed to his name. The FBI counters with the assertion that under § 552a(e)(7) of the Act the requested records are exempt from disclosure. Concluding that the records were entitled to exemption, the district court granted the FBI summary judgment on the second cause of action of Todd’s complaint.
Our scope of review of the district court’s determination with respect to disclosure under the Privacy Act on summary judgment is the same as that utilized initially by the district court. We must decide whether there exists a genuine issue as to any material fact in dispute, assuming resolution of any disputed fact in favor of the party opposing the motion, and determine whether the moving party is entitled to judgment as a matter of law. Cuccaro, 770 F.2d at 357.
Initially, and as a question of first impression in this circuit, we must interpret the meaning of a portion of § 552a(e)(7). Section 552a(e)(7) prohibits federal agencies from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7) (emphasis added). The precise meaning of the emphasized portion is not defined by the statute itself. The district court compared the decisions of other circuits which have interpreted this particular section and adopted a rule requiring agencies “to demonstrate that any and all records maintained on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency, and that there exists a sufficient basis for the maintenance of such records.” 705 F.Supp. at 1043 (emphasis in original). It is this definition that the parties now dispute. Todd argues that agencies should be made to show a “substantial relationship” between the records and the government activity. He insists that a “relevancy” standard acts to dilute his First Amendment rights.
Congress’s intent, as revealed in the statute’s legislative history, is for § 552a(e)(7) to prevent “collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future.” S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6916, 6971. The history also instructs:
that the kind of information about individuals which an agency seeks to gather or solicit, and the criteria for programs to investigate individuals will be judged by an official at the highest policy making level to be relevant and necessary to a statutory purpose of the agency.
1974 U.S.Code Cong. & Admin.News 6916, 6960 (emphasis added).
Only four courts of appeals have expressed an opinion as to the standard warranted when evaluating a claim under § 552a(e)(7). The Court of Appeals for the Fourth Circuit has held that Section (e)(7) is violated “to the extent that the [agency] has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce ...” Clarkson v. I.R.S., 678 F.2d 1368, 1375 (11th Cir.1982), cert. denied, 481 U.S. 1031, 107 S.Ct. 1961, 95 L.Ed.2d 533 (1987). A case-by-case analysis of whether an agency’s actions were pertinent to authorized law enforcement activity was adopted by the court in MacPherson v. I.R.S., 803 F.2d 479 (9th Cir. 1986). Section (e)(7) was interpreted by the Sixth Circuit as allowing “investigation with respect to the exercise of first amendment rights if such investigation is relevant to an authorized criminal investigation or to an authorized intelligence or administrative one.” Jabara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983) (emphasis added). The Jabara standard was adopted in Nagel v. U.S. Dept. of Health, Education and Welfare, 725 F.2d 1438, 1441 n. 3 (D.C.Cir.1984).
In our view, a relevancy standard is more consistent with Congress’s intent and will prove to be a more manageable standard than employing one based on ad-hoc review. The weight of authority supports a rule requiring a federal agency to establish some nexus between its files and classified activities. A burden as heavy as that suggested by Todd has never been imposed. We, therefore, hold that a federal agency defending its maintenance of records under Section (e)(7) must demonstrate that its records on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency. Thus, the district court’s interpretation of the section was legally correct.
Applying this standard to the FBI’s records, especially the Geer affidavit, we are persuaded, as was the district court, that the records maintained by the FBI on Todd’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the FBI. Continued maintenance of such records also will not violate any provision of the Privacy Act. Accordingly, with no issue of material fact to resolve, the district court properly entered summary judgment.
C.
The FBI filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) as to Todd’s third cause of action, arguing that in actions instituted in federal court under federal law, courts have eliminated fictitious defendants by motion. In his motion in opposition to the summary judgment motion, Todd maintained that pleading fictitious defendants was allowable until such time as the real parties in interest, who could only be identified through further discovery, could be substituted. The district court found, as a matter of fact, that the FBI and any FBI or other government employees involved in activities concerning Todd had acted in accord with all applicable statutory, regulatory, and administrative guidelines. Further, the district court held that the FBI had properly invoked the state secrets privilege in defense to Todd’s interrogatories. Because these findings were made by considering matters outside the pleadings, i.e., documents submitted for in camera review, the district court converted the motion to dismiss into one for summary judgment, as is authorized for Rule 12(b)(6) motions, and entered judgment in favor of the FBI. Todd contends that in treating the Rule 12(b)(2) motion as one for summary judgment, the district court denied him the opportunity to properly defend his position on the merits. The FBI concedes procedural error but insists that it is “plainly harmless.”
We have had occasion to consider the procedural distinction between a Rule 12(b)(6) motion and a Rule 12(b)(2) motion. In Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir.1984), we explained the mechanics of a Rule 12(b)(2) motion as follows:
A Rule 12(b)(2) motion, such as the motion made by the defendants here, is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies. Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Contrary to the dissent’s suggestion, therefore, at no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant’s Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. See International Ass’n of Machinists & Aerospace Workers v. Northwest Airlines, 673 F.2d 700 (3d Cir.1982). Once the motion is made, plaintiff must respond with actual proofs, not mere allegations.
Time Share Vacation Club, 735 F.2d at 67 n. 9.
In support of its motion, the FBI submitted the Thorton, Thomas and Lieberman affidavits and its answers to interrogatories. Following oral argument on the motion, the FBI produced the Geer affidavit and the total collection of withheld documents. These materials, they contended, clearly evidenced the nonparticipation of the FBI in any mail cover activity. To the extent that the materials revealed the identities of another agency or agencies whose operations concerned Todd’s mailings, the FBI asserted the state secrets privilege to prevent disclosure. Todd’s case consisted of the affidavits of himself and his mother asserting that he had received damaged mail.
A careful reading of the district court’s opinion suggests that the court by implication decided that an action could at least be initiated against a John Doe defendant. Such a determination, however, begs the question whether Todd could receive any further meaningful discovery, so as to ultimately identify the real parties in interest, in light of the FBI’s assertion of the state secrets privilege. Finding that “a ‘reasonable danger’ that harm to the national interest will ensue if defendants are forced to comply with plaintiff’s discovery requests,” the district court held that the state secrets privilege had been properly invoked. 705 F.Supp. 1046. The district court then reasoned that if the record contained no evidence of abuse by the FBI, and the privilege applied to other information known to the FBI, then the case presented no issue of material fact and should be dismissed accordingly.
A Rule 12(b)(2) motion cannot be treated as one for summary judgment. There are situations, however, where “the question of the district court’s jurisdiction [is] entwined with the ultimate question on the merits.” International Ass’n of Machinists v. Northwest Airlines, 673 F.2d 700, 710 (3d Cir.1982). In such circumstances, it may be necessary for the district court “to proceed to a decision which impacts on the merits.” Id.; see also Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947) (district court had jurisdiction to determine its jurisdiction by proceeding to a decision on the merits).
The facts of this case present this type of complicated review. At the time the Rule 12(b)(2) motion was filed, Todd had already received certain redacted papers, three affidavits and answers to interrogatories. After in camera review of the withheld documents, the district court concluded that Todd could not secure any further discovery. The John Doe defendants would thus remain unknown. Since the suit could not be maintained against a fictitious party, the district lacked in personam jurisdiction.
We find it insignificant that the district court treated the Rule 12(b)(2) motion as one for summary judgment and dismissed the cause of action for lack of a genuine issue of material fact. Such a finding is beyond the initial and necessary inquiry of whether in personam jurisdiction actually lies. The FBI’s evidence, both public and in camera materials, convinces us that (1) the FBI is not one of the John Doe defendants, and (2) the FBI is shielded from further disclosure by the state secrets privilege. Todd thus failed to sustain his burden of proof in establishing in personam jurisdiction. Accordingly, the cause of action was properly dismissed.
D.
An order denying a motion for relief from judgment pursuant to Fed.R.Civ.P. 60 is reviewed for abuse of discretion. Lasky v. Continental Products Corp., 804 F.2d 250 (3d Cir.1986). In view of the facts of this case, we find no evidence that the district court abused its discretion in denying Todd’s Rule 60(b) motion.
III.
For the foregoing reasons, we will affirm the judgment of the district court in both appeals.
. The appeals, filed separately from each order, were consolidated for disposition by order of the Clerk.
. The parties dispute the actual number of files. It is clear from the record that at least one file was created. Todd, however, insists that at least six files exist. This was also the district court’s conclusion.
. Todd subsequently received an invitation from the Soviet Mission in New York to visit their facility, which he did after voluntarily contacting the FBI. He was requested to and did contact the FBI following his visit.
. FOIA requests made to the FBI are limited to files maintained at either the FBI headquarters or the individual field office where the request is made. Appellee's brief at 27.
. The FBI indicated at oral argument that the offer remained open. Todd's position, voiced by his attorney, was that he was unwilling to accept the offer without first reviewing the documents.
. Because it had considered matters outside the pleading, the district court considered the motion to dismiss the third cause of action as one for summary judgment. See infra part II.C.
. A Vaughn index is an affidavit which supplies an index of withheld documents and details the agency’s justification for claiming exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
. The state secrets privilege was first recognized in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). As explained by the Court,
[i]t may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.
345 U.S. at 10, 73 S.Ct. at 533.
. We note that notwithstanding this imbalance between the parties, the D.C. Circuit, as well as other circuits, have allowed the use of in camera affidavits in national security cases. See e.g., Molerio v. F.B.I., 749 F.2d 815 (D.C.Cir. 1984); Fitzgerald v. Penthouse Intern., Ltd., 776 F.2d 1236 (4th Cir.1985); Jahara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983); and Hayden v. N.S.A., 608 F.2d 1381 (D.C.Cir. 1979).
. On the basis of our in camera review of the documents we have no hesitation in stating that there is nothing derogatory in them regarding Todd or any member of his family.
. The district court denied Todd's request to have his attorney present at the in camera proceedings. Although Todd alleges error on appeal, we find that the issue merits no further discussion.
. The FBI’s counter-argument in the district court was that its central record system is exempt under § 552a(j)(2). The district court rejected this contention, finding that the FBI had failed to show that its records on Todd were compiled specifically for purposes of a criminal investigation. This particular argument has been abandoned by the FBI on appeal.
. We can affirm, if the result reached by the district court is correct, even though our reasoning differs from that of the district court. See Tunnell v. Wiley, 514 F.2d 971, 975 n. 4 (3d Cir.1975).
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_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Peter M. ROBERTS, Plaintiff-Appellee, v. SEARS, ROEBUCK & CO., Defendant-Appellant.
No. 82-1886.
United States Court of Appeals, Seventh Circuit.
Argued March 30, 1983.
Decided Dec. 21, 1983.
Rehearings Denied Feb. 22, 1984.
James G. Hunter, Jr., Latham, Watkins, Hedlund, Hunter & Lynch, Chicago, Ill., for defendant-appellant.
Louis G. Davidson, John B. Davidson, Sidney Neuman, Harry J. Roper, Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, and BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, and COFFEY, Circuit Judges.
Judge Pell and Judge Flaum did not participate in the consideration of this case.
HARLINGTON WOOD, Jr., Circuit Judge.
After years of interesting struggles with patent issues under the tutelage of the distinguished patent bar in this Circuit, this court, by reason of the Federal Courts Improvement Act of 1982, soon must leave these appellate issues to the experts of the United States Court of Appeals for the Federal Circuit. Our view of patent matters therefore will be of little future consequence; nevertheless, we hope to leave.the field in good standing.
In a jury trial in the district court, plaintiff Roberts’ patent was found to be valid and infringed; judgment was entered in his favor in an amount in excess of eight million dollars. On appeal, the original panel, in a concise opinion authored by Judge Posner, concluded the patent was invalid as obvious, reversed the district court, and directed that the case be dismissed. This court determined that the case required en banc consideration. A majority now reaches a conclusion at variance with that of the original panel. At issue is the oftentimes confused role of the jury in a patent infringement action in which the invalidity of the patent in suit is raised as an affirmative defense.
I
Those of us who have experimented, not always successfully, with the “do-it-yourself” approach to car or bicycle repairs may have had occasion to use a conventional socket wrench. When we were able to tell the nut from the bolt, wished to remove the former, and had located the socket of the correct size, the problem became how to remove the socket then attached to the wrench. After pulling, prying, muttering, and more pulling, the two-handed operation was completed. Plaintiff Peter Roberts, having personally experienced such frustration, addressed himself to that problem; in 1963, he designed and constructed a prototype socket wrench with a quick-release feature that permitted its user to facilely change sockets with one hand without the customary pulling, prying, and muttering. Roberts filed an application for a United States patent on the wrench in April, 1964, which was rejected in March, 1965. He then extensively amended his application and presented a single claim upon which a patent formally was issued on September 28, 1965.
Defendant Sears, the assignee of all rights to Roberts’ patent, mounted an advertising campaign which explained, in layman’s terms, the principal advantage of Roberts’ claimed invention: “Push-button ratchet wrench releases without a fight. Ever tried to separate a socket from an ordinary ratchet wrench when your hands were greasy? Forget it. You just press a button on Sears new Craftsman wrench. They separate easily — no yanking.” Roberts’ quick-release wrench was an enormous commercial success.
In 1969, Roberts sued Sears alleging, inter alia, that he was fraudulently induced to assign his rights to the invention to Sears. The jury awarded Roberts one million dollars in damages. This court affirmed the district court’s judgment against Sears and its decision not to alter Roberts’ monetary award, but reversed the district court’s determination that it lacked authority to order rescission of the agreement assigning Roberts’ rights to Sears. Roberts v. Sears, Roebuck & Co., 573 F.2d 976, 986 (7th Cir.1978) (Sears I).
Following the remand, Sears prepared, executed, and tendered to Roberts, through the district court, reassignment of any and all rights in the patent obtained pursuant to the June 15,1965, agreement, the sole equitable relief anticipated by this court in Sears I. The district court, however, further ordered the entire case reopened for an accounting of Sears’ “unjust enrichment” from June 15, 1965. On appeal, this court held that because Roberts had elected to submit his damage claim to a jury, he was precluded from pursuing the equitable remedy of restitution for “unjust enrichment.” Roberts v. Sears, Roebuck & Co., 617 F.2d 460, 465 (7th Cir.1980).
This court further held that Sears was the lawful owner of all patent rights from June 15, 1965, to January 20, 1977, when Roberts, through reassignment, became the lawful owner of all patent rights. We stated that Roberts would be entitled to sue only for infringement occurring after January 20, 1977. Although Sears was precluded from challenging the validity of the patent in the first trial, we made clear that Sears could do so if sued by Roberts for post-January 20, 1977, infringement. Id.
And it came to pass. Roberts instituted an infringement suit against Sears, which defended on the ground that the patent was invalid as both anticipated and obvious. Roberts demanded a jury trial, which was bifurcated at Sears’ request. Following a five-day trial on the issues of infringement, willful infringement, and validity, the jury was instructed on the relevant substantive law and given five “special verdict” forms to be answered “yes” or “no” pursuant to Fed.R.Civ.P. 49. They read as follows:
(1) We, the jury, find that the defendant willfully infringed the Roberts patent by selling the Roberts type wrenches after January 1977.
(2) We, the jury, find that the Orszulak or Z type design which defendant started to sell in 1980 infringes the Roberts patent in suit.
(3) We, the jury, find that the defendant willfully infringed the Roberts patent by selling the Orszulak or Z type wrenches after January 1977.
(4) We, the jury, find the Roberts patent is new and not anticipated by the Carpenter patent or the Gonzalez patent.
(5) We, the jury, find that the subject matter of the Roberts patent considered as a whole was not obvious to one of ordinary skill in the art in the years 1963-64.
All but special verdict number three were answered affirmatively by the jury. Number three is not now an issue. A two-day trial on the issue of damages followed, resulting in a jury award for Roberts of five million dollars.
The district court composed no findings of its own. Instead, on Roberts’ motion, the district court entered an order adopting as its findings the affirmatively answered special verdicts rendered by the jury finding the Roberts patent not to have been anticipated or obvious, and to have been infringed. The district court concluded that the Roberts patent “is good and valid in law.” The damage award for willful infringement of the Roberts patent by sale of the Roberts-type wrench was increased by a factor of two, bringing the total award to $8,190,254. The district court permanently enjoined Sears from making, using, or selling the infringing wrenches through September 28, 1982, the Roberts patent expiration date. Sears’ motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied.
Sears appealed, contending, inter alia, the Roberts patent was invalid because its claim was anticipated by, and further would have been obvious in light of, prior art references not before the patent examiner. Sears also claimed the district court erred in submitting to the jury the “legal questions” of obviousness and anticipation. The three-judge panel of this court reversed the district court’s judgment based on the jury verdict, reached its own contrary conclusion that the patent was invalid for obviousness, and directed that the complaint be dismissed. Roberts v. Sears, Roebuck & Co., 697 F.2d 796 (7th Cir.1983). Roberts’ petition for rehearing with suggestion for rehearing en banc was granted, and the panel decision was vacated by order dated March 14, 1983.
We find it necessary to address only one issue: whether the jury instructions and procedure utilized mandate reversal of the judgment and remand for a new trial. We premise our discussion of this issue with a review of relevant patent principles.
II
Article I, § 8, cl. 8 of the Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries.” In the exercise of this power, Congress enacted the Patent Act of 1952 (the Act), 35 U.S.C. § 1 et seq. The Act sets forth three criteria of patentability: novelty, utility, and nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966). In a patent infringement suit, the defendant may challenge successfully the validity of the plaintiff’s patent or any claim thereof by proving that any one of these three conditions of patentability was not satisfied; if the patent is proved invalid, the infringement issue is not reached. Moore v. Wesbar Corp., 701 F.2d 1247 (7th Cir.1983); Swofford v. B & W, Inc., 395 F.2d 362, 364 (5th Cir.1968). Sears, conceding the utility of the Roberts quick-release mechanism, claims it is undeserving of patent protection because it fails to satisfy the statutory conditions of novelty, the anticipation feature of which is at issue in this case, and nonobviousness.
Sears contends that the trial court erred in submitting to the jury the two issues of anticipation, which negates novelty, and obviousness; Sears further argues that requiring the jury to determine these issues necessarily required it to interpret the claim in Roberts’ patent, a function that is, with limited exceptions, for the trial court. We premise our discussion of these claims of error by recognizing that to the trial judge presented with an infrequent demand for a jury trial in a patent infringement case falls the most difficult task of determining which of the plurality of issues subsidiary to the ultimate determination of patent validity are subject to jury determination.
The indiscriminate use of inconclusive labels has engendered a great deal of confusion in the field of patent law. The lack of uniform decision and reasoning in circuit codrt opinions leaves the researcher of the issue whether the standards governing the determination of patentability present legal or factual issues with no definitive answer. Chief Judge Hastings, in recognition of this Circuit’s contribution to the disorder, stated in a separate opinion in Armour & Co. v. Wilson & Co., 274 F.2d 143, 155 (7th Cir. 1960):
We have come to speak of questions of “facts,” “primary facts,” “subsidiary facts,” “evidentiary facts,” “ultimate facts,” “physical facts,” “documentary facts,” “oral evidence,” “inferences,” “reasonable inferences,” “findings of fact,” “conclusions,” “conclusions of law,” “questions of fact,” “questions of law,” “mixed questions of law and fact,” “correct criteria of law,” and so on ad infinitum. The simple answer is that we are all too frequently dealing in semantics, and our choice of words does not always reflect the magic we would prefer to ascribe to them.
We enter this labyrinth of conflicting ease law with one basic guidepost — the Patent Act itself as interpreted by the Supreme Court. In Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court pronounced the ultimate question of patent validity a question of law; the determination of patentable invention requires the courts “to give effect to the constitutional standard by appropriate application, in each case, of the statutory scheme of the Congress.” Id. at 6, 86 S.Ct. at 688. The determination requires an exercise in statutory construction, which, as the Supreme Court recognized, is statutory application in practice; the development of the factual content to which the statutory standard is to be applied is within the province of the fact-finder.
To be patentable, a device must be new, useful, and properly classified as invention. The issue of patentability, then, involves several inquiries: what constitutes the prior art and what does it disclose in scope and content; are there differences between the prior art and the claimed invention which render the latter an improvement on the former; and would the improvement have been obvious to one of ordinary skill in the pertinent art at the time the invention was made. Armour & Co. v. Wilson & Co., 274 F.2d at 156.
The first two inquiries determine novelty under § 102; in simple terms, there must be a difference between each prior art reference and the device sought to be patented for the latter to be. deemed “new.” Only if such differences exist does § 103 require a determination whether 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 of invention to one of ordinary skill in the art. Nonobviousness, then, distinguishes those useful innovations that are capable of sustaining a patent from those that are not. Graham v. John Deere Co., 383 U.S. at 3-4, 11, 86 S.Ct. at 686, 690.
We turn first to a more detailed discussion of novelty. A device is “new” if its essence has not been disclosed in a prior art device. Section 102(a), (e), and (g) provide, in distilled form, that a device lacks novelty if it has been anticipated by a prior patent or publication in this or a foreign country or by prior use, knowledge, or invention in this country. This court has stated that anticipation is strictly a technical defense; “[ujnless all of the same elements [of the patented device] are found [in a single prior art device] in exactly the same situation and united in the same way to perform an identical function,” the former is not anticipated by the latter. Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1182-83 (7th Cir.1971). We also have stated, however, that “[w]hen the only features distinguishing the purported invention from a prior art product are insubstantial, the earlier may properly be said to anticipate the later product.” Shelco, Inc. v. Dow Chemical Co., 466 F.2d 613, 614-15 (7th Cir.), cert. denied, 409 U.S. 876, 93 S.Ct. 125, 34 L.Ed.2d 129 (1972). Thus, in this Circuit, the test has been one of substantial identity; “[i]t is sufficient if the general aspects are the same and the difference in minor matters is only such as would suggest itself to one of ordinary skill in the art.” Amphenol Corp. v. General Time Corp., 397 F.2d 431, 438 (7th Cir.1968). See also Popeil Brothers, Inc. v. Schick Electric, Inc., 494 F.2d 162, 164 (7th Cir.1974); Deep Welding, Inc. v. Sciaky Brothers, Inc., 417 F.2d 1227, 1234 (7th Cir.1969).
Substantial identity is determined by reference to the language of the patent claims, which define the ambit of the claimed invention. Thus, the determination whether a patented device has been anticipated by a prior art reference requires a two-step analysis: (1) the identity of the patented device, as well as its scope, must be determined by the claims submitted to and allowed by the Patent Office; and (2) the patented device, as so defined, must be compared with each prior art reference.
Construction of the patent claims is a question of law, Super Products Corp. v. D P Way Corp., 546 F.2d 748, 756 (7th Cir.1976), and thus ultimately the responsibility of the trial judge in a patent infringement case tried to a jury. If, however, extrinsic evidence is needed to explain a term of art in a patent claim, the meaning of which is disputed, a narrow factual issue for jury determination is presented. Id.
The issue whether a prior art reference and the patented device are substantially identical may be treated as a question of pure construction in a case in which no substantial disputes of fact are presented and the clarity of the patent documents is such that the court can determine from mere comparison of the descriptions contained therein whether the devices at issue are substantially identical. However,where material factual disputes exist as to the scope and content of the prior art and the differences between each prior art reference and the patented device, as identified by the trial court, issues for jury determination, if a jury is to be the fact-finder, are presented. This is not to say that the trial court does not maintain ultimate control over the issue of anticipation. To hold otherwise would be to vitiate the Supreme Court’s determination that patent validity ultimately is a question of law. Novelty, like utility and nonobviousness, is a condition precedent to patentability. In any given case, lack of novelty may be the ultimate determinant of patent validity; as such, the issue must be deemed to be within the province of the court.
Assuming differences between the patented device and each prior art reference preclude a finding of anticipation, under the broader obviousness test, the disclosures of the prior art references may negative invention because in their light the patented device would have been obvious at the time the ’ invention was made to a person having ordinary skill in the pertinent art.
Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), established the exclusive means by which to measure nonobviousness under section 103. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963, 972 (7th Cir.1979). In reviewing a trial court’s application of the Graham standard, we are mindful of the Court’s admonition that “strict observance of the requirements laid down here will result in that uniformity arid definiteness which Congress called for in the 1952 Act.” Graham v. John Deere Co., 383 U.S. at 18, 86 S.Ct. at 694.
While the ultimate question of patent validity is one of law,... the § 103 condition... lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the pri- or 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 unresolved needs, failures 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 relevance.
Id. at 17-18, 86 S.Ct. at 693-694 (emphasis added).
One can readily see that the factual inquiries necessary to the determination of anticipation (i.e., the scope and content of the prior art and differences between each prior art reference and the claims of the patent in suit) also compose part of the tripartite factual inquiry upon which the determination of obviousness must rest. The anticipation inquiry, itself largely factual in nature, Hughes Tool Co. v. Ingersoll-Rand Co., 437 F.2d 1106, 1108 (5th Cir.), cert. denied, 403 U.S. 918, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971), is subsumed within the obviousness inquiry. Under the obviousness test, however, an additional factual inquiry is to be made: the level of ordinary skill in the pertinent art must be determined.
Several crucial concepts, as expounded upon in Graham and its progeny, are embodied in the section 103 standard.
The nature of the problem confronting the would-be inventor defines the relevant prior art. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d at 975. Pertinent art has been defined as that art to which one can reasonably be expected to look for a solution to the problem that the patented device attempts to solve. Morpul, Inc. v. Crescent Hosiery Mills, 265 F.Supp. 279, 303 (E.D.Tenn.1967). Inquiry into the level of ordinary skill in the pertinent art is necessary because a patentable invention must evidence more ingenuity and skill than that possessed by an ordinary mechanic acquainted with the business. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d at 975.
Obviousness is measured not by determining what would have been obvious to actual artisans, but by considering whether a hypothetical person, possessing reasonable skills in the pertinent art and knowledge of all prior art, would have found the same solution when addressing himself to the same problem. Id. Invalidity should not be found on the theory that if a development is obvious to the court, it must have been obvious to a person having ordinary skill in the art. Buzzelli v. Minnesota Mining & Manufacturing Co., 480 F.2d 541, 542-43 (6th Cir.1973). Judge Learned Hand put it this way:
To judge on our own that this or that new assemblage of old factors was, or was not, “obvious” is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it.
Reiner v. I. Leon Co., 285 F.2d 501, 504 (2d Cir.1960), cert. denied, 366 U.S. 929, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961).
It also should be borne in mind that obviousness can only be determined by reference to the precise facts presented; intuitive analysis distorted by the invention’s simplicity and retrospective self-evidence must be avoided. Simplicity is not to be equated with obviousness. Skee-Trainer, Inc. v. Garelick Manufacturing Co., 361 F.2d 895, 899 (8th Cir.1966). Experience has shown that some of the most simple advances have been the most nonobvious. Van Veen v. United States, 151 U.S.P.Q. 506 (Ct.C1.1966). Patentability does not depend upon an astonishing breakthrough or creation of a new technology. Sauer Machine v. Corrugated Finishing Products, Inc., 642 F.2d 203, 206 (7th Cir.1981). In addition, a court must be careful not to declare an innovation obvious because it has become obvious through hindsight.” Id. “ ‘Obvious to try’ is not the same as ‘obviousness.’ ” Novo Industri A/S v. Travenol Laboratories, Inc., 677 F.2d 1202, 1208 (7th Cir.1982), quoting In re Goodwin, 576 F.2d 375, 377 (C.C.P.A.1978), aff’d, 599 F.2d 1061 (C.C.P.A.1979).
Nor is the focus on the manner in which the invention was achieved or on the quality of the mind behind it. “[I]t is immaterial whether ‘the invention resulted from long toil and experimentation or from a flash of genius.’ ” Graham v. John Deere Co., 383 U.S. at 16 n. 8, 86 S.Ct. at 693 n. 8, quoting section 103 Reviser’s Note.
Although prior to 1966 courts often dealt with obviousness as a question of fact, Graham established patent validity, of which nonobviousness is the ultimate determinant, as a question of law. This court consistently has viewed obviousness as a question of law, but that legal determination must rest upon the tripartite factual inquiry set forth in Graham. See, eg., Dickey-john Corp. v. International Tapetronics Corp., 710 F.2d 329 (7th Cir.1983); Dual Manufacturing & Engineering, Inc. v. Burris Industries, 619 F.2d 660 (7th Cir.) (en banc), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980). With the Graham -mandated factual determinations in hand, the court must draw the inferences that the findings reasonably induce, and reach the ultimate legal question whether 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 pertinent art and knowledge of all prior art. 35 U.S.C. § 103; Sakraida v. Ag Pro, Inc., 425 U.S. at 280, 96 S.Ct. at 1536; Moore v. Wesbar Corp., 701 F.2d at 1250.
Graham, in setting forth the analytical steps to be taken in determining obviousness, necessarily clarified the respective functions of judge and jury, as well as the scope of appellate review: disputes as to the Graham subsidiary facts are within the province of the jury; however, responsibility for the ultimate determination of obviousness lies with the trial judge, who must determine whether the facts as found by the jury -fall within the legislative standard.
An appellate court does not sit to adjudicate de novo the factual issues underlying the determination of obviousness. When made in a bench trial, the Graham factual determinations are reviewed under the clearly erroneous standard of Rule 52(a), Federal Rules of Civil Procedure. When these factual determinations have been made by a jury, our review is limited, assuming the instructions are not an issue, to ascertaining whether the denial of a motion for a new trial or a motion for a judgment notwithstanding the verdict was an abuse of discretion. An appellate court’s independent review of the trial judge’s conclusion of law is predicated upon the factual determinations made in the district court. See generally 2 D. Chisum, Patents § 5.04[3] n. 32 (1983).
Before turning to an examination of how decisional responsibilities were allocated between judge and jury in this case, we must determine whether there was a total absence of subsidiary factual disputes that would have required the trial judge to dispose of the entire case as a matter of law. Dual Manufacturing & Engineering, Inc. v. Burris Industries, 619 F.2d at 663.
Ill
Shown below in Figure 1 is a conventional socket wrench. It consists of a handle (3) and a detachable socket (2). The pushbutton (1) on the head of the wrench corresponds with the pushbutton (also 1) on Roberts’ quick-release mechanism shown below in Figure 2. Dr. Youngdahl, Roberts’ expert witness, explained the structure and operation of the Roberts quick-release mechanism. The principal object of Roberts’ device was to provide a means for releasing a socket from a conventional wrench and engaging another in a one-handed operation. Although the Roberts quick-release mechanism retains the ball-type detent (4) utilized in the conventional wrench, in place of a spring directly behind the ball, Roberts uses a springloaded pin (5) that moves in the center of the stud (6). The pin contains a specially-shaped camming recess (7). “Selective alignment,” a key feature of the Roberts device, refers to the' type of ball and pin positioning that results from the “camming action” between the sloped recess of the pin and the curved surface of the ball. In the socket retaining position, small longitudinal movements of the pin result in changes of position of the ball with respect to the pin; the ball and pin can assume one of an infinite number of positions relative to one another depending upon the depth of the socket dimple. The ball will be cammed outward only as far as is necessary to engage the socket dimple. This “selective alignment” feature is claimed to offer unique advantages: it results in a smooth, reliable quick-release operation; it allows use of sockets with various dimple depths; it automatically compensates for socket wear; it prevents “hang up” of the ball detent; and it allows for one-handed operation in both removing and replacing sockets. To release the socket, the pushbutton (1) is depressed, moving the pin to the position where the ball can begin to move along the sloped recess of the pin. Once the ball is in the recess, the socket can fall of its own weight. With the pushbutton still depressed, a new socket may be slipped on and securely retained by releasing the pushbutton, all in a one-handed operation. It is obviously easier to use the wrench than it is to understand what makes it easier to use.
Sears’ expert witness, Smyers, testified that nothing in Roberts’ claim denominates his device as a quick-release mechanism; he further testified that Roberts’ claim does not specify a particularly-shaped recess.
The trial transcript discloses numerous factual disputes as to the structures, operations, and functions of, and the differences between, the prior art and the patent in suit.
Dr. Youngdahl testified that the Carpenter device, a locking device for a socket wrench patented in 1928 (U.S. Patent No. 1,660,989) was not a quick-release mechanism, but was designed to effect a positive lock of the socket on the wrench through the use of a spring arm. He further testified to the Carpenter structure and operation as follows: Carpenter’s essential element, the spring arm upon which the ball usually rests, was designed to prevent the ball from moving into and becoming stuck in the recess, thereby inadvertently allowing unlocking of the socket. Although Carpenter contains a long, narrow, triangularly-shaped slot, its purpose is to receive the spring arm; to release the lock, the user pushes the button inward to place the recess under the ball; the ball, however, does not move into the recess because the spring arm continues to bear it outward. Therefore, it is claimed the socket must be removed forcefully; it will not fall of its own weight. Insofar as the Carpenter device discloses a pushbutton, pressing it merely unlocks the socket but does not effect release or removal of the socket from the wrench.
Youngdahl further testified that if the spring arm is removed, a “camming action” between the inclined surface of the recess and the ball may or may not force the ball toward the locking position; it “may cam” or it “may jam”; in Youngdahl’s opinion, the Carpenter geometry cannot provide for selective alignment. On cross-examination, Youngdahl, asked to assume that the Carpenter device contained a very weak spring arm, agreed that the force generated by the “camming action” might overcome the spring force and allow the ball to move into the recess, thereby effecting release of the socket. He further stated, however, that a weak spring arm will not éffect the locking of the socket on the wrench, the primary goal of the Carpenter device.
Smyers contrarily testified that Carpenter was a quick-release wrench. Although Smyers conceded that the text of the Carpenter patent did not so specify, he stated that he believed the spring arm was an optional feature. Smyers testified that when the pushbutton is depressed, the recess in the Carpenter device will be aligned with the ball. The weight of the socket will force the ball into the recess, releasing the socket. He further testified that a camming action between the slightly slanted sides of the recess and the ball will force the ball to its locking position.
Youngdahl’s testimony on the Gonzalez device, a ball socket attachment for impact tools and socket wrenches patented in 1965 (U.S. Patent No. 3,172,675), may be summarized as follows: Gonzalez was designed to effect a positive lock of the socket on the wrench under the adverse conditions encountered with impact tools; the flat surface of the flange, with which the ball is normally engaged, “holds the ball out positively”; therefore, as planned, small longitudinal movements of the pin do not result in a change of position of the ball. Youngdahl stated that Gonzalez designed his device so that there would be a sharp discontinuity between the pin and flange, giving rise to the flat edge which supports the ball. When the pushbutton is depressed to release the socket, the ball drops into a space behind the flange. In Youngdahl’s opinion, the open space behind the flange in Gonzalez performs only one function — receiving the ball in the socket removing position; it will not invariably perform the function of camming the ball outward into the socket retaining position, as Roberts’ recess will. In order to perform the dual function that Roberts’ recess does, a sloping face must be cut in the flange, and the space behind the flange enlarged. It was Youngdahl’s further opinion that realistic limitations on the size of a socket wrench would preclude the necessary enlargement of this space.
Smyers, however, was of the opinion that the space behind the flange in Gonzalez will receive the ball and allow the socket to fall of its own weight or be manually removed. It was his further opinion that
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:
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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.
J. C. PENNEY CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. Retail Clerks International Association Local 253, AFL-CIO, Intervenor.
No. 17730.
United States Court of Appeals Sixth Circuit.
April 15, 1968.
John C. Egbert, Jr., Cincinnati, Ohio, James R. Adams, Cincinnati, Ohio, on brief; Frost & Jacobs, Cincinnati, Ohio, of counsel, for petitioner.
Allen D. Eisenberg, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., Marsha Swiss, Attorneys, N. L. R. B., Washington, D. C., on brief, for respondent.
Before PHILLIPS, CELEBREZZE and PECK, Circuit Judges.
ORDER.
This case is before the Court upon the petition of J. C. Penney Co., Inc., to review an order of the National Labor Relations Board and upon the cross-petition of the Board to enforce the order. The decision and order of the Board are reported at 162 N.L.R.B. No. 144. The intervenor has filed a brief urging enforcement.
The Court holds that the findings of fact of the Board are supported by substantial evidence on the record considered as a whole.
It is ordered that the order of the Board be and hereby is enforced.
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_caseorigin
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117
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
SUPREME COURT OF VIRGINIA et al. v. FRIEDMAN
No. 87-399.
Argued March 21, 1988
Decided June 20, 1988
Kennedy, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 70.
Gregory E. Lucyk, Assistant Attorney General of Virginia, argued the cause for appellants. With him on the briefs were Mary Sue Terry, Attorney General, Gail Starling Marshall, Deputy Attorney General, and William H. Hauser, Senior Assistant Attorney General.
Cornish F. Hitchcock argued the cause for appellee. With him on the brief were Alan B. Morrison' and John J. McLaughlin.
A brief of amici curiae urging reversal was filed for the State of Wyoming et al. by Joseph B. Meyer, Attorney General, and Mary B. Guthrie, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Neil F. Hartigan of Illinois, Thomas J. Miller of Iowa, and Anthony J. Celebrezze, Jr., of Ohio.
Briefs of amici curiae urging affirmance were filed for the American Corporate Counsel Association by Lawrence A. Salibra II; and for the New York State Bar Association by Maryann Saccomando Freedman, Monroe H. Freedman, and Ronald J. Levine.
Justice Kennedy
delivered the opinion of the Court.
Qualified lawyers admitted to practice in other States may be admitted to the Virginia Bar “on motion,” that is, without taking the bar examination which Virginia otherwise requires. The State conditions such admission on a showing, among other matters, that the applicant is a permanent resident of Virginia. The question for decision is whether this residency requirement violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2, cl. 1. We hold that it does.
I
Myrna E. Friedman was admitted to the Illinois Bar by examination in 1977 and to the District of Columbia Bar by reciprocity in 1980. From 1977 to 1981, she was employed by the Department of the Navy in Arlington, Virginia, as a civilian attorney, and from 1982 until 1986, she was an attorr ney in private practice in Washington, D. C. In January 1986, she became associate general counsel for ERC International, Inc., a Delaware corporation. Friedman practices and maintains her offices at the company’s principal place of business in Vienna, Virginia. Her duties at ERC International include drafting contracts and advising her employer and its subsidiaries on matters of Virginia law.
From 1977 to early 1986, Friedman lived in Virginia. In February 1986, however, she married and moved to her husband’s home in Cheverly, Maryland. In June 1986, Friedman applied for admission to the Virginia Bar on motion.
The applicable rule, promulgated by the Supreme Court of Virginia pursuant to statute, is Rule 1A:1. The Rule permits admission on motion of attorneys who are licensed to practice in another jurisdiction, provided the other jurisdiction admits Virginia attorneys without examination. The applicant must have been licensed for at least five years and the Virginia Supreme Court must determine that the applicant:
“(a) Is a proper person to practice law.
“(b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination.
“(c) Has become a permanent resident of the Commonwealth.
“(d) Intends to practice full time as a member of the Virginia bar.”
In a letter accompanying her application, Friedman alerted the Clerk of the Virginia Supreme Court to her change of residence, but argued that her application should nevertheless be granted. Friedman gave assurance that she would be engaged full-time in the practice of law in Virginia, that she would be available for service of process and court appearances, and that she would keep informed of local rules. She also asserted that “there appears to be no reason to discriminate against my petition as a nonresident for admission to the Bar on motion,” that her circumstances fit within the purview of this Court’s decision in Supreme Court of New Hampshire v. Piper, 470 U. S. 274 (1985), and that accordingly she was entitled to admission under the Privileges and Immunities Clause of the Constitution, Art. IV, §2, cl. 1. See App. 34-35.
The Clerk wrote Friedman that her request had been denied. He explained that because Friedman was no longer a permanent resident of the Commonwealth of Virginia, she was not eligible for admission to the Virginia Bar pursuant to Rule 1A:1. He added that the court had concluded that our decision in Piper, which invalidated a residency requirement imposed on lawyers who had passed a State’s bar examination, was “not applicable” to the “discretionary requirement in Rule 1A:1 of residence as a condition of admission by reciprocity.” App. 51-52.
Friedman then commenced this action, against the Supreme Court of Virginia and its Clerk, in the United States District Court for the Eastern District of Virginia. She alleged that the residency requirement of Rule 1A:1 violated the Privileges and Immunities Clause. The District Court entered summary judgment in Friedman’s favor, holding that the requirement of residency for admission without examination violates the Clause.
The Court of Appeals for the Fourth Circuit unanimously affirmed. 822 F. 2d 423 (1987). The court first rejected appellants’ threshold contention that the Privileges and Immunities Clause was not implicated by the residency requirement of Rule 1A:1 because the Rule did not absolutely prohibit the practice of law in Virginia by nonresidents. Id., at 427-428. Turning to the justifications offered for the Rule, the court rejected, as foreclosed by Piper, the theory that the different treatment accorded to nonresidents could be justified by the State’s interest in enhancing the quality of legal practitioners. The court was also unpersuaded by appellant’s contention that the residency requirement promoted compliance with the Rule’s full-time practice requirement, an argument the court characterized as an unsupported assertion that “residents are more likely to honor their commitments to practice full-time in Virginia than are nonresidents.” Id., at 429. Thus, the court concluded that there was no substantial reason for the Rule’s discrimination against nonresidents, and that the discrimination did not bear a substantial relation to the objectives proffered by appellants.
The Supreme Court of Virginia and its Clerk filed a timely notice of appeal. We noted probable jurisdiction, 484 U. S. 923 (1987), and we now affirm.
I — I 1 — 4
Article IV, §2, cl. 1, of the Constitution provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The provision was designed “to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.” Paul v. Virginia, 8 Wall. 168, 180 (1869). See also Toomer v. Witsell, 334 U. S. 385, 395 (1948) (the Privileges and Immunities Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy”). The Clause “thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment.” Austin v. New Hampshire, 420 U. S. 656, 660 (1975).
While the Privileges and Immunities Clause cites the term “Citizens,” for analytic purposes citizenship and residency are essentially interchangeable. See United Building & Construction Trades Council v. Mayor and Council of Camden, 465 U. S. 208, 216 (1984). When examining claims that a citizenship or residency classification offends privileges and immunities protections, we undertake a two-step inquiry. First, the activity in question must be “ ‘sufficiently basic to the livelihood of the Nation’ ... as to fall within the purview of the Privileges and Immunities Clause . . . .” Id., at 221-222, quoting Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 388 (1978). For it is “‘[ojnly with respect to those “privileges” and “immunities” bearing on the vitality of the Nation as a single entity’ that a State must accord residents and nonresidents equal treatment.” Supreme Court of New Hampshire v. Piper, 470 U. S., at 279, quoting Baldwin, supra, at 383. Second, if the challenged restriction deprives nonresidents of a protected privilege, we will invalidate it only if we conclude that the restriction is not closely related to the advancement of a substantial state interest. Piper, supra, at 284. Appellants assert that the residency requirement offends neither part of this test. We disagree.
A
Appellants concede, as they must, that our decision in Piper establishes that a nonresident who takes and passes an examination prescribed by the State, and who otherwise is qualified for the practice of law, has an interest in practicing law that is protected by the Privileges and Immunities Clause. Appellants contend, however, that the discretionary admission provided for by Rule 1A:1 is not a privilege protected by the Clause for two reasons. First, appellants argue that the bar examination “serves as an adequate, alternative means of gaining admission to the bar. ” Brief for Appellants 20. In appellants’ view, “[s]o long as any applicant may gain admission to a State’s bar, without regard to residence, by passing the bar examination,” id., at 21, the State cannot be said to have discriminated against nonresidents “as a matter of fundamental concern.” Id., at 19. Second, appellants argue that the right to admission on motion is not within the purview of the Clause because, without offense to the Constitution, the State could require all bar applicants to pass an examination. Neither argument is persuasive.
We cannot accept appellants’ first theory because it is quite inconsistent with our precedents. We reaffirmed in Piper the well-settled principle that “‘one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.’” Piper, supra, at 280, quoting Toomer v. Witsell, supra, at 396. See also United Building & Construction Trades Council, supra, at 219 (“Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause”). After reviewing our precedents, we explicitly held that the practice of law, like other occupations considered in those cases, is sufficiently basic to the national economy to be deemed a privilege protected by the Clause. See Piper, supra, at 280-281. The clear import of Piper is that the Clause is implicated whenever, as is the case here, a State does not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents.
Nothing in our precedents, moreover, supports the contention that the Privileges and Immunities Clause does not reach a State’s discrimination against nonresidents when such discrimination does not result in their total exclusion from the State. In Ward v. Maryland, 12 Wall. 418 (1871), for example, the Court invalidated a statute under which residents paid an annual fee of $12 to $150 for a license to trade foreign goods, while nonresidents were required to pay $300. Similarly, in Toomer, supra, the Court held that nonresident fishermen could not be required to pay a license fee 100 times the fee charged to residents. In Hicklin v. Orbeck, 437 U. S. 518 (1978), the Court invalidated a statute requiring that residents be hired in preference to nonresidents for all positions related to the development of the State’s oil and gas resources. Indeed, as the Court of Appeals correctly noted, the New Hampshire rule struck down in Piper did not result in the total exclusion of nonresidents from the practice of law in that State. 822 F. 2d, at 427 (citing Piper, supra, at 277, n. 2).
Further, we find appellants’ second theory — that Virginia could constitutionally require that all applicants to its bar take and pass an examination — quite irrelevant to the question whether the Clause is applicable in the circumstances of this case. A State’s abstract authority to require from resident and nonresident alike that which it has chosen to demand from the nonresident alone has never been held to shield the discriminatory distinction from the reach of the Privileges and Immunities Clause. Thus, the applicability of the Clause to the present case no more turns on the legality vel non of an examination requirement than it turned on the inherent reasonableness of the fees charged to nonresidents in Toomer and Ward. The issue instead is whether the State has burdened the right to practice law, a privilege protected by the Privileges and Immunities Clause, by discriminating among otherwise equally qualified applicants solely on the basis of citizenship or residency. We conclude it has.
B
Our conclusion that the residence requirement burdens a privilege protected by the Privileges and Immunities Clause does not conclude the matter, of course; for we repeatedly have recognized that the Clause, like other constitutional provisions, is not an absolute. See, e. g., Piper, supra, at 284; United Building & Construction Trades Council, 465 U. S., at 222; Toomer, 334 U. S., at 396. The Clause does not preclude disparity in treatment where substantial reasons exist for the discrimination and the degree of discrimination bears a close relation to such reasons. See United Building & Construction Trades Council, supra, at 222. In deciding whether the degree of discrimination bears a sufficiently close relation to the reasons proffered by the State, the Court has considered whether, within the full panoply of legislative choices otherwise available to the State, there exist alternative means of furthering the State’s purpose without implicating constitutional concerns. See Piper, supra, at 284.
Appellants offer two principal justifications for the Rule’s requirement that applicants seeking admission on motion reside within the Commonwealth of Virginia. First, they contend that the residence requirement assures, in tandem with the full-time practice requirement, that attorneys admitted on motion will have the same commitment to service and familiarity with Virginia law that is possessed by applicants securing admission upon examination. Attorneys admitted on motion, appellants argue, have “no personal investment” in the jurisdiction; consequently, they “are entitled to no presumption that they will willingly and actively participate in bar activities and obligations, or fulfill their public service responsibilities to the State’s client community.” Brief for Appellants 26-27. Second, appellants argue that the residency requirement facilitates enforcement of the full-time practice requirement of Rule 1A:1. We find each of these justifications insufficient to meet the State’s burden of showing that the discrimination is warranted by a substantial state objective and closely drawn to its achievement.
We acknowledge that a bar examination is one method of assuring that the admitted attorney has a stake in his or her professional licensure and a concomitant interest in the integrity and standards of the bar. A bar examination, as we know judicially and from our own experience, is not a casual or lighthearted exercise. The question, however, is whether lawyers who are admitted in other States and seek admission in Virginia are less likely to respect the bar and further its interests solely because they are nonresidents. We cannot say this is the case. While Pvper relied on an examination requirement as an indicium of the nonresident’s commitment to the bar and to the State’s legal profession, see Piper, 470 U. S., at 285, it does not follow that when the State waives the examination it may make a distinction between residents and nonresidents.
Friedman’s case proves the point. She earns her living working as an attorney in Virginia, and it is of scant relevance that her residence is located in the neighboring State of Maryland. It is indisputable that she has a substantial stake in the practice of law in Virginia. Indeed, despite appellants’ suggestion at oral argument that Friedman’s case is “atypical,” Tr. of Oral Arg. 51, the same will likely be true of all nonresident attorneys who are admitted on motion to the Virginia Bar, in light of the State’s requirement that attorneys so admitted show their intention to maintain an office and a regular practice in the State. See Application of Brown, 213 Va. 282, 286, n. 3, 191 S. E. 2d 812, 815, n. 3 (1972) (interpreting full-time practice requirement of Rule 1A:1). This requirement goes a long way toward ensuring that such attorneys will have an interest in the practice of law in Virginia that is at least comparable to the interest we ascribed in Piper to applicants admitted upon examination. Accordingly, we see no reason to assume that nonresident attorneys who, like Friedman, seek admission to the Virginia bar on motion will lack adequate incentives to remain abreast of changes in the law or to fulfill their civic duties.
Further, to the extent that the State is justifiably concerned with ensuring that its attorneys keep abreast of legal developments, it can protect these interests through other equally or more effective means that do not themselves infringe constitutional protections. While this Court is not well positioned to dictate specific legislative choices to the State, it is sufficient to note that such alternatives exist and that the State, in the exercise of its legislative prerogatives, is free to implement them. The Supreme Court of Virginia could, for example, require mandatory attendance at periodic continuing legal education courses. See Piper, supra, at 285, n. 19. The same is true with respect to the State’s interest that the nonresident bar member does his or her share of volunteer and pro bono work. A “nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work.” Piper, supra, at 287 (footnote omitted).
We also reject appellants’ attempt to justify the residency restriction as a necessary aid to the enforcement of the full-time practice requirement of Rule 1A:1. Virginia already requires, pursuant to the full-time practice restriction of Rule 1A:1, that attorneys admitted on motion maintain an office for the practice of law in Virginia. As the Court of Appeals noted, the requirement that applicants maintain an office in Virginia facilitates compliance with the full-time practice requirement in nearly the identical manner that the residency restriction does, rendering the latter restriction largely redundant. 822 F. 2d, at 429. The office requirement furnishes an alternative to the residency requirement that is not only less restrictive, but also is fully adequate to protect whatever interest the State might have in the full-time practice restriction.
Ill
We hold that Virginia’s residency requirement for admission to the State’s bar without examination violates the Privileges and Immunities Clause. The nonresident’s interest in practicing law on terms of substantial equality with those enjoyed by residents is a privilege protected by the Clause. A State may not discriminate against nonresidents unless it shows that such discrimination bears a close relation to the achievement of substantial state objectives. Virginia has failed to make this showing. Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
The District Court did not address Friedman’s claims that the residency requirement of Rule 1A:1 also violates the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals did not pass on these contentions either, and our resolution of Friedman’s claim that the residency requirement violates the Privileges and Immunities Clause makes it unnecessary for us to reach them.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Bryce BEATTIE, Plaintiff, Appellant, v. Frances W. ROBERTS et al., Defendants, Appellees.
No. 7695.
United States Court of Appeals, First Circuit.
Jan. 6, 1971.
Charles P. Barnes II, Portland, Me., with whom James R. Flaker and Linnell, Perkins, Thompson, Hinckley & Thaxter, Portland, Me., were on brief, for plaintiff, appellant.
Barnett I. Shur, Portland, Me., with whom Wilson, Steinfeld, Mui’rell & Lane, Henry Steinfeld, Charles A. Lane, Bernstein, Shur, Sawyer & Nelson, Gregory A. Tselikis, and George M. Shur, Portland, Me., were on brief, for defendants, appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
This case concerns the procedural rights of tenured public school teachers whose employment contracts are not renewed. Plaintiff, a tenured teacher, taught for five years in the Windham, Maine, school system. On November 18, 1969, the Superintending School Committee voted not to renew his contract. The Superintendent of Schools notified plaintiff of the Committee’s decision in a letter dated December 13. Plaintiff requested a list of reasons for the Committee’s action and a hearing before the Committee. In a letter dated December 31, the Superintendent responded, setting a hearing date for January 21, 1970, and the Committee’s counsel furnished a list of reasons on January 14.
On January 21 the Committee met in executive session for the purpose of conducting the requested hearing. Both the Committee and plaintiff were represented by counsel; witnesses were present; and a stenographer recorded the proceedings. Plaintiff’s counsel raised several procedural objections. He protested because the hearing was not public, because the witnesses were sequestered, and because he was denied permission to cross-examine members of the Committee. The Committee refused to sustain any of these objections, and plaintiff declined to participate further in the proceedings. The merits of the list of reasons were never reached; the Committee’s initial decision hot to reemploy plaintiff remained in effect. Plaintiff brings this action, under 42 U.S.C. § 1983, against the Superintendent and the members of the School Committee alleging that he was denied due process. Summary judgment was entered by the district court after a finding that the Committee had afforded plaintiff procedural due process and that plaintiff had failed to exhaust his administrative remedies. From that decision, plaintiff appeals.
Initially, we are confronted with the question of exhaustion of administrative remedies: can plaintiff bring this action, having refused to participate in the January 21 hearing? This court has recently indicated that plaintiffs who bring § 1983 actions must normally exhaust available administrative remedies. Dunham v. Crosby, 435 F.2d 1177, n. 2 (1st Cir. 1970); Drown v. Portsmouth School District, 435 F.2d 1182, n. 10 (1st Cir. 1970). We require exhaustion, in part, because we hesitate to hold members of school committees liable for tentative dismissal decisions when they are denied the opportunity to view the issue in the light of the facts and argument which the affected teachers might introduce in a formal hearing. Plaintiff argues, however, that the procedure followed by the Committee in considering his case was not the procedure required by state statute. Having recently held that § 1983 defendants who short circuit a plaintiff’s statutory procedural rights cannot assert the defense of failure to exhaust administrative remedies, Dunham v. Crosby, supra, we must consider plaintiff’s statutory argument.
A tenured teacher’s procedural rights are set forth in 20 Me.Rev.Stat. Ann. § 161(5):
“After a probationary period of 3 years, any teacher, who receives notice in accordance with this section [i. e., at least 6 months before the terminal date of the contract] that his contract is not going to be renewed, may during the 15 days following such notification request a hearing with the school committee or governing board. He may request reasons. The hearing shall be private except by mutual consent and except that either or both parties may be represented by counsel. Such hearing must be granted within 30 days of the receipt of the teacher’s request.”
Plaintiff presently asserts that the Committee violated this procedure in two ways. First, he reads the statute to require the Superintendent to notify a teacher before he recommends to the Committee that the teacher’s contract not be renewed. According to plaintiff’s theory, the teacher would then be afforded the opportunity to request the Superintendent’s reasons for so recommending and a hearing before the entire Committee. If he requested such a hearing, the Committee would initially consider the issue of his non-renewal at the date of the hearing; presumably it would be improper for the Committee to consider dismissing a teacher even preliminarily if the teacher were not present.
We see no basis in the above statute for plaintiff’s interpretation. Under the statute, a teacher is entitled to notice “that his contract is not going to be renewed * * * ”, not notice that the Superintendent has recommended non-renewal. The language contemplates action by the entire Committee before the teacher . is notified. Moreover, plaintiff’s interpretation assumes that there is no occasion for the Committee itself to initiate a dismissal, yet the Committee is expressly granted the power to initiate a dismissal under the Maine statute. 20 Me.Rev.Stat.Ann. § 473(4).
Plaintiff says, secondly, that he was not given an adequate statement of the Committee’s reasons as required by the statute. He protests that the list of reasons came from the Committee’s attorney and not from the Committee. Plaintiff’s claim that the Committee must furnish its reasons before it holds a hearing is inconsistent with the interpretation of the statute urged in his first argument. The Committee could not furnish its reasons before the hearing unless it had previously considered the matter. The statute says only that the teacher has the right to “reasons”, but we assume the requirement is designed primarily to assist the teacher in preparing for the hearing before the Committee. In this case, the Committee’s attorney submitted to plaintiff a detailed list of 17 incidents which underlay the Committee’s November 18 action. The same attorney instructed the members of the Committee at the January 21 hearing that they were to consider only those reasons on the list. Plaintiff was clearly put on notice of the charges against him. Although the Committee preferred to characterize the list as a list of unproven charges rather than reasons, that fact did not prejudice plaintiff in any way; indeed, regarding the list as charges to be proven instead of reasons to be rebutted may have eased plaintiff’s burden of proof and should have eased his mind of the matter initially discussed, namely, that the Committee had prejudged its case.
Nor are we able to attach material significance to the fact that two of the events included in the list of reasons occurred after the November 18 meeting when the Committee voted to dismiss plaintiff. We see no reason why the Committee should have ignored incidents occurring after November 18 as long as plaintiff was put on notice before the January 21 hearing of all such events the Committee would consider. The Committee could have considered those incidents, after November 18, which indicated a continuing course of improper conduct.
In fact, the Committee may have afforded plaintiff more procedural protection than he was entitled to under the statute. For example, a stenographic record of the January 21 hearing was kept. Under these circumstances, we see no justification for plaintiff's refusal to follow the proceedings through to the end.
Alternatively, plaintiff claims that the procedure was constitutionally objectionable. He argues that due process requires a completely neutral decision-maker at the hearing and that the Committee, having already made an initial decision not to renew plaintiff’s contract, was not impartial. This contention is raised for the first time on appeal. At no point before or during the aborted hearing before the Committee did plaintiff suggest that it was constitutionally incompetent. His sole efforts were to achieve a public hearing, the non-sequestration of witnesses, and cross-examination ■ of Committee members. The complaint similarly addressed alleged procedural deficiencies, not only excluding any complaint as to the incompetence of the Committee, but, as in the instance of charging its refusal to conduct a public hearing, at least in substantial part inconsistent with any claim of incompeteney. Of even greater pertinence is the fact that at no point does the record show that this matter was argued or even alluded to before the district court. After full oral argument was had and after the court read the transcript of the Committee hearing, the court accompanied its bench ruling on defendants’ motion to dismiss with a summary of plaintiff’s contentions — the three we have noted above — and the applicable law. On concluding, the court inquired of counsel if there were any misstatements. Plaintiff’s counsel then called the court’s attention to its omission of a fourth contention: that the Committee had refused to state whether it adopted any or all of the reasons contained in the January 14 letter of the Committee’s counsel. The court responded and the hearing concluded.
Notwithstanding the obvious inappropriateness of considering an issue neither pleaded nor argued below, which was never called to the district court’s attention, see, e. g., Hap Corp. v. Heyman Mfg. Co., 361 F.2d 329, 331 n. 3 (1st Cir. 1966), we might on rare occasion consider it if the facts pleaded, proved, or sworn to clearly pointed to a blatant and clear deprivation of constitutional rights. This, however, is not such a ease. Such law as exists on the constitutional requirement and definition of an “impartial tribunal” in cases of teacher dismissals is varied and murky. The policy implications are vast.
We have recently recognized that a determination of what procedures afford dismissed teachers due process requires a complex balancing of interests. Drown v. Portsmouth School District, 435 F.2d 1182 (1st Cir. 1970). In Drown we considered the dismissal of a nontenured teacher, but we have not yet confronted a case involving a tenured teacher. There is some authority for plaintiff’s proposition, Pickering v. Board of Education, 391 U.S. 563, 578 n. 2, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (dictum), but we note that no court has required a school system to create the procedure plaintiff seeks.
We see serious problems with this procedure because it would either prevent a Committee from initiating a dismissal or permit it to initiate a dismissal but then require another body of neutral outsiders to review personnel decisions that are properly the responsibility of the Committee. See Drown, supra at 1187. A requirement that the Superintendent serve as prosecutor and bring a proposed dismissal before the Committee for the first time in an adversary proceeding is inconsistent with the Maine statute authorizing the Committee to initiate dismissals. 20 Me.Rev.Stat.Ann. § 473(4). There would still be no guarantee that the Committee would not already have learned of the case in carrying out its duties. The separation of function might well be only facial and insubstantial. There would also be a greater chance of an unwise initial decision to dismiss because only one man, as opposed to the entire School Committee, would have been involved. If we required the state or municipalities to create neutral bodies to which the Committee’s decision to dismiss could be appealed, we would be engrafting into educational administration an appellate layer of enormous complexity, and might well exceed the boundaries of our judicial authority and trespass into legislative territory.
Furthermore, plaintiff’s dual failures to exhaust his administrative remedies and to present the issue to the district court have foreclosed any analysis of the workings of the present Maine procedures, an exploration we would deem essential to any sensible balancing of the interests of tenured teachers and school committees.
Affirmed.
There is, however, some case law to the effect that due process requires an impartial tribunal. E. g., Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir. 1970) ; Wasson v. Trowbridge, 382 F.2d 807, 813 (2d Cir. 1967) ; Esteban v. Central Missouri State College, 277 F.Supp. 649, 651 (W.D.Mo.1967). Some of these cases concern the expulsion of college students for disciplinary reasons where the interests to be balanced are different — perhaps materially different — from this case. E. g., Wasson, supra; Esteban, supra. On the other hand, some cases concerning the procedural rights of dismissed teachers are silent on the nature of the tribunal. E. g., Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wisc. 1970) ; Lucia v. Duggan, 303 F.Supp. 112 (D.Mass.1969) (both cited with approval by plaintiff). In none of these cases is there any discussion of what is meant by an “impartial tribunal”. Must an impartial tribunal have had no previous contact with the case, as plaintiff urges, or is a tribunal impartial if none of its members are personally interested in the outcome, of. Pangburn v. C.A.B., 311 F.2d 349, 356-358 (1st Cir. 1962)? See generally Wright, The Constitution on the Campus, 22 Vanderbilt L.Rev. 1027, 1080-81 (1969).
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
William H. HAGGARD, Petitioner-Appellant, v. STATE OF TENNESSEE and Honorable Joseph D. Duncan, Judge, Knox County Criminal Court, Knoxville, Tennessee, Respondents-Appellees.
No. 19487.
United States Court of Appeals Sixth Circuit.
Feb. 10, 1970.
William H. Haggard, pro se.
Elmer D. Davies, Jr., Asst. Atty. Gen., State of Tenn., Nashville, Tenn., on brief, for appellees, David M. Pack, Atty. Gen., and Reporter, State of Tenn., of counsel.
Before WEICK, Circuit Judge, and McALLISTER and O’SULLIVAN, Senior Circuit Judges.
WEICK, Circuit Judge.
Appellant, an inmate of the Tennessee State Penitentiary in Nashville, Tennessee, appeals from an order entered by the District Court denying his petition for a writ of mandamus. The petition sought an order of the District Court commanding a state criminal court judge to furnish him with copies of “court records, legal documents, etc.” pertaining to one of his convictions which formed the basis for his conviction as an habitual criminal.
In 1951, appellant was convicted in the Criminal Court of Knox County, Tennessee, of the crime of burglary, and of being an habitual criminal. He was sentenced to life imprisonment. The Supreme Court of Tennessee affirmed his conviction and sentence.
Appellant asserts that one of the three prior state court convictions used to enhance his punishment is void because he was an indigent and did not have the assistance of counsel. He relies on Bur-gett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Appellant’s contention is that he needs the state court records to enable him to prepare a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
The writ of mandamus as such has been abolished by Rule 81(b), Fed.R.Civ.P. However, under 28 U.S.C. § 1651 (All Writs Statute) federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions, including writs in the nature of mandamus. Findley v. Chandler, 377 F.2d 548 (9th Cir.1967); Booker v. Arkansas, 380 F.2d 240 (8th Cir.1967); Youngblood v. United States, 141 F.2d 912 (6th Cir.1944); Newark Morning Ledger Co. v. Republican Co., 188 F.Supp. 813 (D.Mass.1960). See 7 Moore’s Federal Practice § 81.07.
Such relief may be granted only in instances where, before adoption of Rule 81(b), the remedy of mandamus would have been available. Petrowski v. Nutt, 161 F.2d 938 (9th Cir.1947), cert. denied, 333 U.S. 842, 68 S.Ct. 659, 92 L.Ed. 1126 (1948); Newark Morning Ledger Co. v. Republican Co., supra; Deglau v. Franke, 184 F.Supp. 225 (D.R.I.1960).
It is settled that a federal court has no general jurisdiction to issue writs of mandamus where that is the only relief sought. In the absence of special statutory authority it can issue writs of mandamus only as ancillary to and in aid of jurisdiction otherwise vested in it. Hertz v. Record Publishing Co., 219 F.2d 397 (3d Cir.1955), cert. denied, 349 U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1247 (1955).
In any event, federal courts have no authority to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties. Clark v. Washington, 366 F.2d 678 (9th Cir.1966); Campbell v. Washington State Bar Ass’n, 263 F.Supp. 991 (W.D. Wash.1967).
If we treat this action for mandamus as one for habeas corpus, Ray-born v. Jones, 282 F.2d 410 (6th Cir. 1960), we are met with the statutory condition that a person in custody pursuant to a judgment of a state court must first exhaust the remedies available to him in the courts of the state before resorting to the federal courts for relief. 28 U.S.C. § 2254.
In appellant’s petition for a writ of mandamus he admits that he has presently pending in an appellate court in Tennessee a petition for post-conviction relief. It involves the same issue presented here, i. e., that one of his prior convictions which formed the basis for his conviction as an habitual criminal, is void. In that action the court records, which he seeks here, were available to him under the provisions of Section 40-3813 of the Tennessee Code.
Until appellant has exhausted his state remedies, the federal courts are without authority to grant relief to him in a habeas corpus proceeding. Rayborn v. Jones, supra.
The judgment of the District Court denying the petition for a writ of mandamus is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION, Defendant-Appellant, v. STANDARD SHIPBUILDING CORPORATION, Albert Conway, William A. Young, and Alfred A. Stein, as Receivers of the Property of Defendant Standard Shipbuilding Corporation, Defendants-Appellees, and Shooters Island Shipyard Company, Complainant-Appellee.
(Circuit Court of Appeals, Third Circuit.
February 27, 1925.
Rehearing Denied April 7, 1925.)
No. 3201.
Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.
Walter G. Winne, U. S. Atty., of Hackensack, N. J. (Chauncey G. Parker and John, M. Emery, both of Newark, N. J., of counsel), for appellant.
William St. John Tozer and White & Case, all of New York City (Joseph M. Hartfield andl Jeremiah M. Evarts, both of New York City, of counsel), for Shooters Island Co.
Conover English, of Newark, N. J., for Standard Co.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
, The main question in this case concerns the priority of liens of two mortgages given by the Standard Shipbuilding Corporation, — one to Shooters Island Shipyard Company covering after-acquired property and the other to the United States Shipping Board Emergency Fleet Corporation covering the same property. This question is one of law and its solution depends on other questions of law, — whether the mortgage to the Shipping Board, the second in point of time, is a purchase money mortgage or is based on an equitable lien. These questions in turn rest on questions of fact to be decided according as the evidence proves or does not prove that certain large advances of money made by the Fleet Corporation to the Standard Shipbuilding Corporation in the early period of the war were made under an agreement between them that the advances should be secured by a first mortgage and, that pursuant to this agreement negotiations were continuously conducted until finally the mortgage in question was given the Shipping Board for that purpose. The District Court found for the Shipping Board and awarded priority of lien to its mortgage. On appeal this court thought differently and, on an opinion reported in 293 F. 706, was about to issue its mandate reversing the decree below when the Shipping Board appeared and represented that it had newly discovered evidence which, if heard, would compel a "different judgment. Hesitatingly this court remanded the case for further proofs. On the remission the newly-acquired evidence was taken. The learned trial judge was of opinion that it did not alter the judgment of this court and entered a decree accordingly. The ease is here on the Shipping Board’s appeal. We shall not review the testimony, nor shall we do .more than say that the new evidence, supplementing the old, fills several gaps which theretofore existed in the record and, quite contrary to what was expected, ■ fortifies the previous judgment of this court by establishing that the mortgage was not given the Shipping Board in pursuance of an agreement to secure the original money advances but to secure further advances with which to finish uncompleted work. The decree below is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Appellee, v. David Henry HOLMES, Appellant.
No. 352, Docket 32788.
United States Court of Appeals Second Circuit.
Argued Dec. 10, 1969.
Decided Jan. 12, 1970.
Stewart H. Jones, U. S. Atty., Hartford, Conn., for appellee.
Karl Fleischmann, Hartford, Conn. (Satter & Fleischmann, Hartford, Conn., on the brief), for appellant.
Before MOORE and KAUFMAN, Circuit Judges, and RYAN, District Judge.
Of the District of Montana, sitting by designation.
IRVING R. KAUFMAN, Circuit Judge:
The question before us on this appeal is whether a Selective Service registrant who orally asserts conscientious objections to military service at the induction station is entitled to have this claim considered and evaluated by the Selective Service System.
David Holmes registered with Selective Service Local Board No. 1 in Hartford, Connecticut on October 5, 1961. For the next several years, while an undergraduate at Trinity College in Hartford and a graduate student at Trinity and the University of Michigan, he had a student deferment (class II-S). On October 10, 1967, shortly after Holmes had notified his local board that he was no longer a student at the University of Michigan, he was placed in class I-A. Two months later he accepted a position as an assistant instructor in history at Eastern Connecticut State College. On this ground, he requested, and was granted, an occupational deferment (class II-A). This deferment expired April 1, 1968, but Holmes was assured by the board that he would be allowed to complete the spring semester. Since he planned to continue teaching after the end of this semester, Holmes considered this assurance inadequate and, shortly after April 1, he began to devote considerable effort to securing another occupational deferment. These efforts were not to cease until the following December 3, the date on which he was ultimately required to report for induction. During the first part of this period, the summer of 1968, Holmes’s teaching plans for September 1968 were in flux. In the end, he decided to remain at Eastern Connecticut State College where he secured a position as a part-time instructor teaching two history courses in the evening session/ The local board determined that this position did not merit an occupational deferment, and, on October 10, the state Appeal Board affirmed this decision. In early November Holmes twice requested his board to reopen his classification, first on the ground that he was teaching three rather than two courses and, second, because he would become a full-time teacher in the second semester. The board denied both requests and, on November 15, ordered him to report for induction on December 3, 1968. Immediately after the issuance of this induction order, the President of the College requested that Holmes’s induction be postponed until the end of the academic year, June 1969, but the request was denied on November 27. Two days after this denial, the College President again attempted to have Holmes’s induction deferred, this time for a shorter period expiring February 1, 1969.
As required by the induction order, Holmes reported to the induction station on the morning of December 3. At that time he was without knowledge of any action state Selective Service headquarters had taken upon the President’s second request. He brought this matter to the attention of a Lt. Lukoff, an officer at the induction station, who, after telephoning state headquarters, advised Holmes that the request had been de- ' nied.
During his processing at the induction station, Holmes declined to sign a form oath swearing to comply with the requirements for serving on active duty and fulfilling subsequent reserve commitments. When asked by the processing officer why he was following this course of action, Holmes responded that he intended to refuse induction “on grounds of conscience.” Lt. Lukoff was then notified of this intent, but precisely what transpired in the resulting conversations between Lukoff and Holmes is somewhat murky.
Holmes testified he clearly informed Lukoff that his. refusal to submit to induction was based “on grounds of conscience” but that he was not given an opportunity to reduce his views to writing ; Lukoff testified that, although Holmes might have employed the word “conscience,” he recalled Holmes expressing only generalized statements of moral opposition and disillusionment with the system. Lukoff also stated that although his recollection was somewhat hazy, he assumed Holmes had been asked whether he wished to make a written or oral statement, an opportunity customarily given to all who had expressed an intention to refuse induction.
It is undisputed that Holmes was given three opportunities to take the oath of induction and that each time he refused to do so. Thereafter, the induction station notified the local board merely that Holmes had been found fully acceptable and had refused induction. The local board thereupon reported Holmes to the United States Attorney as a delinquent. Accordingly, there was no consideration within the Selective Service System of the claim for conscientious objector status which Holmes insisted he had made at the induction station.
On December 20, 1968 Holmes was indicted on charges of refusing to submit to induction. Three months after indictment and one week before his trial, he notified his local board for the first time that he was a conscientious objector and that he had presented this claim at the induction station. His conviction on the charges set forth in the indictment followed a trial before Judge Blumenfeld, sitting without a jury. It rested on the district judge’s conclusions that a Selective Service registrant must lodge a written request for reclassification if he wishes his local board to take any action and that an oral request will avail him nothing, even if meritorious.
In view of this disposition, the sole question before us on this appeal is whether a claim for classification as a conscientious objector presented orally at the induction station merits consideration and evaluation by the Selective Service System. Although we have not previously been presented with this precise pattern of facts, we do not write on a tabula rasa. We have already held that despite the inconvenience occasioned by the reopening of a registrant’s classification after he has been called for induction, a registrant whose conscientious objections crystallize only after the issurance of an induction order and who presents his request for classification as a conscientious objector at the earliest possible time, is entitled to have his classification reopened and considered anew. United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967). Moreover, we have decided that it matters not that a registrant mistakenly presented his request to the officials at the induction station rather than to the local board. “[A] legally untutored registrant should [not] be penalized for his failure to distinguish between * * * two agencies,” which form, part of a single continuing process. United States v. Stafford, 389 F.2d 215 (2d Cir. 1968). Stafford requires us therefore to view Holmes's statement at the induction station as having been addressed to an appropriate body.
The sole distinction we can perceive between the instant case and Stafford is that Stafford presented his claim in writing while Holmes allegedly made his orally. The district court, however, considered this distinction crucial, basing its decision on the requirements of the Selective Service regulation governing the reopening of classifications, 32 C.F.R. § 1625.2. This regulation states that “[t]he local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant” or (b) “upon its own motion if such action is based upon facts not considered when the registrant was classified,” and if such facts have been brought to the attention of a member of the board, reduced to writing, and placed in the registrant’s file. See 32 C.F.R. § 1623.1(b). We read this regulation to provide that a local board may not reopen a registrant’s classification solely on the basis of his oral statements. We do not read it, however, as authorization to totally ignore a registrant’s oral statements. In reaching the conclusion that a local board or induction personnel may not totally ignore oral requests for reclassification, we are mindful of the Supreme Court’s admonition that “[Registrants are not to be treated as though they were engaged in formal litigation assisted by counsel.” Simmons v. United States, 348 U.S. 397, 404 n. 5, 75 S.Ct. 397, 401, 99 L.Ed. 453 (1955). This caveat has particular vitality in conscientious objector cases. For example, in our decisions in Gearey and Stafford we gave recognition to this maxim by instructing that the Selective Service regulation which provides that only in extraordinary circumstances shall a registrant’s classification be reopened after issuance of an induction order, see, 32 C.F.R. § 1625.2, should not be applied to foreclose all conscientious objector claims presented after an induction order is issued. The rationale for these decisions was that imminence of induction could cause previously inchoate feelings suddenly to crystallize into firm and sincere conscientious objections to military service.
The facts before us indicate that Holmes might well have gone to the induction station with the belief that his induction would be deferred because of the request of the President of Eastern Connecticut State College. He was not faced with the realization that he was about to be inducted until he learned of the denial of the President’s request from Lt. Lukoff — some time after he arrived at the induction station. In the light of our decisions in Gearey and Stafford, it would be somewhat anomalous for us, considering the facts before us, to require a registrant on all occasions either to prepare a formal written statement of his views in advance of his induction date or to forfeit his claim of conscientious objector status.
Accordingly, we hold that if Holmes did make an oral claim at the induction station for classification as a conscientious objector, the officers at the station should have brought this claim to the attention of the local board. See United States v. Stafford, 389 F.2d 215, 219 (2d Cir. 1968). In any event, it would have been quite simple to have explained to Holmes the necessity for a full written statement and then to have given him an opportunity to make it or to have reduced to writing in his behalf —on a form readily available — the oral statement he wished to make. Since, as we have stated, local boards are already required to take cognizance of late-maturing conscientious objector claims, see United States v. Stafford, supra, and in light of Lt. Lukoff’s testimony that it is already the policy of induction stations to afford an opportunity to make a written or oral statement to all prospective inductees who signify an intent to refuse induction, we see little merit to the argument that this decision will place extraordinary burdens on the Selective Service System.
Because the district court failed to resolve the conflicting versions of the exchanges between Holmes and Lukoff, we are in no position to determine whether Holmes did in fact present an oral claim for conscientious objector status. We remand, therefore, for the district court to determine whether Lt. Lukoff, or any other officer at the induction station, could reasonably have been expected to construe Holmes’s statements as expressions of conscientious objections to military service.
Even if any one of the officers could have been expected to have interpreted the statements as a request for classification as a conscientious objector, we see no reason to dismiss the indictment. United States v. Gearey, supra. In that event, the district judge should require the local board to determine at what point Holmes’s alleged convictions matured and, if they matured after issuance of the induction order, whether he is entitled to classification as a conscientious objector. If the board should find either that Holmes’s beliefs crystallized prior to issuance of the induction order or that his beliefs are not sincere and in conformity with the statutory standards, and if the district court should determine that this finding is supported by the necessary basis in fact, his conviction may stand. United .States v. Gearey, supra,; United States v. Stafford, supra. Only if the district court finds that Holmes made a claim for conscientious objector status prior to refusing induction and if the board decides both that his convictions matured after the issuance of the induction order and that their content and the sincerity with which they are held entitles Holmes to classification as a conscientious objector must the indictment be dismissed.
Remanded for proceedings in accordance with this opinion.
. This uncertainty stems irom the failure of the district court to resolve conflicts in the testimony. The court considered this unnecessary because under its view of the law, Holmes could not prevail even if all of his testimony were accepted.
. His conscientious objection was set forth in a letter to his local board. The able district judge quite properly gave no weight to this letter. Events which occur after a refusal to submit to induction are generally not relevant to whether there was a duty to submit. Palmer v. United States, 401 F.2d 226 (9th Cir. 1968).
. The means by which these new facts are generally reduced to writing is Selective Service Form 119 (Report of Oral Information). Whenever a member or employee of a Selective Service Board receives oral information from the registrant or some other individual as a result of a personal visit or telephone call, he notes the substance of this information on Form 119. The information may then be considered by the board in determing the registrant’s classification.
. For a description of the form which could be utilized by the officials at the induction station, see note 3 supra.
. As we stated in Gearey, the only objection to this disposition is the argument that, if his conscientious objector claim had been considered and rejected on the merits by his local board, Holmes might have submitted to induction. However, Holmes, as did Gearey, testified that under no circumstances could he or would he be inducted into the armed services.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
HOWARD v. SWAGART et al.
No. 9409.
United States Court of Appeals District of Columbia.
Argued March 12, 3947.
Decided May 5, 1947.
Mr. Earl H. Davis and Mr. A. Arvin. Lynn, both of Washington, D. C., with whom Mr. Martin Mendelsohn, of Washington, D. G, was on the brief, for appellant.
Mr. Austin F. Canfield, of Washington, D. G, with whom Mr. Julian H. Reis, of Washington, D. G, was on the brief, for appellees.
Before GRONER, Chief Justice, and EDGERTON and CLARK, Associate Justices.
CLARK, Associate Justice.
This is an appeal from the action of the District Court of the United States for the District of Columbia entering judgment for appellees, defendants below, and setting aside a verdict of the jury in favor of appellant, plaintiff below, in accordance with Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Appellant was injured when she was struck by an automobile driven by Elbert W. Cherry, who was neither its owner nor its authorized user. It is necessary to record a detailed account of the facts leading up to Cherry’s securing possession of the car in order to present a complete picture of the case essential to a proper disposition of the appeal, and in order to portray deadly the legal relationship of the several parties involved.
In the afternoon of Thursday, December 7, 1944, Lawrence A. Baker, the owner of a certain maroon Lincoln Zephyr sedan, parked his automobile at the S & H Parking Center located in the 1500 block of Eye Street, Northwest. He had a monthly storage contract with the garage which gave him the privilege of taking his car in and out as he wished, in contrast to the daily customer who paid a per diem rate and was given a claim check on each occasion his car was parked. On this particular instance, Baker instructed the garage employee present to close the car windows because he was going away for a day or two. As required by the garage, he left the key in the ignition switch, but took all other keys.
Customers of the Parking Center, daily and monthly, are not permitted to park the car themselves, but simply drive into the garage through its single entrance, leaving the car for one of the garage’s employees, referred to as hustlers or parking attendants, to park in the place assigned to it on one of the various floors. When a customer calls for his car, he is required to wait on the ground floor until a hustler brings the car down to the garage’s single exit. Both the entrance and the exit are on Eye Street, the entrance at the east end of the garage and the exit at the west end. The garage manager’s office is beside the entrance and the cashier’s office is beside the exit.
During the period here involved, the garage was operated on a 24 hour basis. Between 8:00 o’clock a. m. and 6:00 o’clock p. m., it was in charge of Mr. Wine, the day manager. Mr. Smith, the night manager, was in control the remaining hours. Wine generally had seven or eight employees on duty with him, including parking attendants and car washers. One such car washer was Elbert W. Cherry. Before going off duty, Wine would have the cars belonging to daily customers brought down from the upper floors to the first floor to facilitate the work of the night crew. The monthly cars, which had designated places mostly on the fourth and fifth floors, were brought down only when the owners came for them. Smith had only two employees stay with him part time, a parking attendant named Wyatt Clinton, who came on duty shortly after 5:00 o’clock p. m., and remained until 10 o’clock p. m., and a cashier, who also remained on duty until 10 :00 o’clock p. m.
Clinton, who had been employed by the Parking Center for approximately two months prior to December 7, 1944, worked for the War Department during the day and performed his part time duties at the garage during the evening. Cherry had been employed by the garage two or three weeks before December 7, 1944. He had been sent there by the United States Employment service. At the time he was interviewed for the position by Wine, who at that time was in charge of hiring, firing and supervising employees at the garage, he had with him the standard referral card required by government regulations issued under the Presidential Proclamation governing employment stabilization. He was employed as a day time car washer with the understanding that he would sometimes be called upon to work overtime either to wash cars or to act as a parking attendant. Wine testified that at the time Cherry was hired they accepted all employees referred to them by the United States Employment Service without making any independent investigation as to their background and no independent investigation was made concerning Cherry. He further testified that if he had known of Cherry’s past criminal record he would not have accepted him as an employee.
On the evening of December 7, 1944, Cherry was asked to work overtime washing cars. The wash rack was located on the second floor directly to the rear of the garage exit. During the course of the evening, Smith, the night manager, saw the Baker car near the wash rack. Cherry testified that while he did not see the car there, he heard Smith upbraid Clinton for bringing the car down from its usual spot on the fourth floor, and order him to return it to its proper place. Smith testified that he never followed up to see if his order was carried out.
On this same evening, Cherry and Clinton finished work at 10:00 o’clock p. m., and checked out together. Cherry met his wife and baby who were waiting for him outside the garage and Clinton offered to drive them home. Cherry expressed some doubt as to Clinton’s having a car but Clinton assured him that he had one parked at 16th and Eye Streets. They walked to that intersection where a maroon Lincoln Zephyr sedan was parked. Clinton informed Cherry that he had purchased it from his winnings in the numbers game. The pair took Cherry’s wife and baby home and then returned to Clinton’s home where they had a few drinks after which Cherry walked to his home.
The next morning, Friday December 8, 1944, Cherry, while walking to his work, passed Clinton’s home where the latter was sitting on the steps. The car was parked nearby. Cherry asked Clinton to lend him the car and Clinton agreed. Cherry did not take the car then, but proceeded on to work where he was told by Wine that there was no work for him that day and that he could check out. He then returned for the car, picked up two girls on Ninth Street and while he was driving them about struck appellant with resulting injury. After taking appellant to the hospital, Cherry called Clinton and it was then, according to his testimony, that he first found out the car had been stolen by Clinton.
Appellant named as defendants in her action the present appellees, Swagart and Hartig, who own and operate the S & H Parking Center, and Baker, the owner of the car. The court directed a verdict in favor of Baker at the close of appellant’s evidence and no appeal has been taken as to him. Appellees moved for a directed verdict after appellant’s opening statement, at the close of appellant’s evidence and at the conclusion of all the evidence. These motions were all denied. The jury returned a verdict for appellant for $7,500.00 and judgment was entered thereon. Ap-pellees moved for judgment notwithstanding the verdict and in the alternative, for a new trial. The court overruled the latter motion while granting the motion for judgment notwithstanding the verdict, and ordered that judgment be entered in favor of appellees. This appeal followed.
Giving full effect to the principles established by decisions of the Supreme Court and of this court for reviewing the action of the trial court in granting appellees’ motion for judgment non obstante vere-dicto, we proceed to a determination of whether, as a matter of law, the evidence presented by appellant failed to make a case and, therefore, a verdict in appellees’ favor should have been directed.
Appellant’s position is that under the evidence the jury was warranted in finding that appellees were negligent in three respects, first, in failing to remove the ignition key from the Baker car; second in employing Elbert W. Cherry without investigating him; and third, in failing to provide and maintain adequate supervision and control over the cars left in their custody and control. Appellant further asserts that the jury was warranted in finding that appellees’ negligence in any or all of the above respects proximately resulted in the removal of the Baker car from the premises and the injury to appellant.
Appellant relies on two decisions of this court to support her right to .recover against appellees in this action. In the first of these cases, Ross v. Hartman, we held that an owner of a vehicle was liable to a plaintiff who was injured when struck by the vehicle driven by an intermeddler who wrongfully drove it from a public alley where it had been left by the owner’s agent, unattended, with the key in the ignition switch, in violation of a traffic regulation. In the second of these cases, Schaff v. Claxton, we extended this liability to the owner of a vehicle where his employee left the vehicle unlocked with the key in the ignition in a private parking space beside a restaurant not a “ ‘public space’ within the meaning of the ordinance” requiring vehicles to be locked, and a third party in attempting to move the vehicle injured the plaintiff.
We do not think there is any justification to extend the holdings of these decisions to the circumstances of the case at bar. While such an application is ¿'pssible, it is not practicable or justifiable, and would necessitate, and result in, a strained construction of the legal concepts pertaining to negligence and proximate cause. Dealing with the causation aspect first, this court has defined the proximate cause of an injury to be “that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.” S. S. Kresge Co. v. Kenny. The effect of our decisions in the Ross and Schaff cases was that a wilful, malicious and criminal act of an intermeddler was not an “efficient intervening cause” in the circumstances there presented where the action was between the injured party and the owner of the car, and where the owner was held responsible. We are urged, assuming for the moment negligence on the part of appellees, to extend that legal responsibility to a situation where there is added a subsequent intervening cause coming into existence nearly twelve hours after the criminal act which constituted the original intervening cause, and involving not the owner of the vehicle, but his bailee. We feel constrained to oppose such an extension to the law of liability. It cannot fairly be said that this court meant, by the Ross and Schaff decisions, to impose liability on the owner, or here the bailee, of an unlocked car for the negligent action of every person, other than the thief, driving it subsequent to the theft. In the case at bar, the injury to appellant, coming as it did after the car had remained at rest for nearly twelve hours after the original intervening cause and had been set in motion only by a subsequent intervening cause, cannot be held to be the “natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee & St. Paul R. Co. v. Kellogg. There was in this case not a scintilla of evidence to indicate a “succession of events so connected as to make an entire whole, without any new intervening cause.” Munsey v. Webb. We hold that the circumstances existing here are outside the realm of those from which a jury could reasonably find that the negligence of appellees was the proximate cause of appellant’s injury, and the trial court was correct, having submitted the cause to the jury, in setting aside a verdict in appellant’s favor and entering judgment for ap-pellees.
In this disposition of the case, it is not necessary for us to discuss the three acts which appellant contends constituted negligent action on the part of appellees, but because of the character of the proceedings in the trial below resulting in the setting aside of a jury verdict, and the views expressed by the trial court concerning this aspect of the case, we think it desirable to record our own views on the matter. The trial court stated in his opinion : “My holding is that there isn’t enough evidence in this case to which can be applied the law that would justify holding these garage defendants responsible for the subsequent traffic accident and injury to the plaintiff.” With this we agree. Turning to the specific acts alleged we hold that, in this jurisdiction, leaving a car unlocked in a private parking-lot garage does not constitute negligence. It is common knowledge that the standard custom and practice of private parking-lot garages is to require the leaving of the key in the ignition switch of cars parked on the premises. This is not only for the convenience of the garage attendants in moving the car about to allow the parking and removal of other cars, but for the convenience of the car owner in having the car delivered to him as soon as called for, and for the further protection of the car owner in having his vehicle easily removable by the garage attendants in case of fire or other emergency. Appellant has not offered evidence tending to establish a duty in appellees to exercise a higher degree of care than is required of others in this business. This action is not negligence.
Neither do we think that hiring Cherry as a car washer and part time parking attendant without an independent investigation as to his reliability constitutes negligent action in view of the fact that he was taken upon the recommendation of the United States Employment Service. But to carry this point a step further, in alleging this negligence, appellant ignores her own evidence, presented through her witness, Cherry, that it was Clinton, not Cherry, who stole the car. And there was no evidence offered to show otherwise. Appellant did not make Cherry a party defendant in this action, although he was the driver of the car at the time of the accident, but utilized him as a principal witness on whose testimony she heavily relied for support of her claim against appellees. She did not call him as an unwilling or hostile witness under Rule 43, Federal Rules of Civil Procedure, and the record does not indicate that he was so treated. Now, on 'appeal, rather than vouching for his credibility as she is required to do, appellant attempts to discredit the testimony of her own witness that Clinton stole the car, and shape it into an unwarranted conclusion on the part of the jury that Cherry alone took the car, or assisted Clinton in so doing, thus giving support to her allegation that it was negligence on the part of appellees to hire Cherry without an independent investigation of his past. We think appellant failed to support her contention in this respect.
We further are of the opinion that appellant failed to offer sufficient evidence to support her claim that appellees were negligent in failing to provide and maintain adequate supervision and control over the cars left in their custody. Her evidence established that the Baker car was stolen by Clinton sometime before 10:00 o’clock p. m., when Cherry and Clinton left the garage together and proceeded to 16th and Eye Streets where the car was parked. The car was seen in the vicinity of the wash-rack at the garage at approximately 8:30 o’clock p. m. The evidence further established that during these hours, up to 10:00 o’clock p. m., there were on duty at the garage the night manager, Smith, a parking attendant, and a cashier, who was stationed in an office at the garage’s single exit. Appellant cannot overcome her lack of proof on this allegation by asserting, as she does, that there was no evidence offered to show whether or not the cashier was on duty on the night in question. Obviously, the fact that the Baker car was stolen from the garage alone does not constitute' evidence of lack of control or supervision, and appellant has failed in all other respects to show such.
' Thus, it is our view that as a matter of law appellant failed to present evidence of negligence sufficient to make out a case to go to the jury and a directed verdict in appellees’ favor was warranted. It was accordingly not error for the court, having submitted the cause to the jury, to set aside the resulting verdict in behalf of appellant and enter judgment for appellees notwithstanding the verdict.
Affirmed.
It ivas brought out in the evidence that in September, 1944, Cherry was convicted of embezzlement, given a sentence of from six to eight months and put on probation.
The only testimony as to the events happening between this time and the time of the accident was offered by Cherry who appeared as a witness for appellant. Clinton died before the trial.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 143 F.2d 142; Simmonds v. Capital Transit Co., 79 U.S.App.D.C. 371, 147 F.2d 570.
78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, certiorari denied 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080.
79 U.S.App.D.C. 207, 144 F.2d 532.
66 App.D.C. 274, 86 F.2d 651.
94 U.S. 469, 24 L.Ed. 256.
37 App.D.C. 185, affirmed 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162.
Accordingly, we need not here decide whether the duty, recognized by this court in Medes v. Hornback, 56 App.D.C. 13, 6 F.2d 711, 712, “of one operating a garage in which automobiles are kept in storage for pay to exercise ordinary care by the employment of trustworthy servants” should be extended beyond the bail- or-bailee relationship to the benefit of a third party who is a stranger to the transaction.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_respondent
|
006
|
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.
GOMEZ et al. v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA et al.
No. A-767.
Decided April 21, 1992
Per Curiam.
Robert Alton Harris brought a 42 U. S. C. § 1983 action claiming that execution by lethal gas is cruel and unusual in violation of the Eighth Amendment. This action is an obvious attempt to avoid the application of McCleskey v. Zant, 499 U. S. 467 (1991), to bar this successive claim for relief. Harris has now filed four prior federal habeas petitions. He has made no convincing showing of cause for his failure to raise this claim in his prior petitions.
Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or as a § 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State’s strong interest in proceeding with its judgment and Harris’ obvious attempt at manipulation. See In re Blodgett, 502 U. S. 236 (1992); Delo v. Stokes, 495 U. S. 320, 322 (1990) (Kennedy, J., concurring). This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.
The application to vacate the stay of execution of death is granted, and it is ordered that the orders staying the execution of Robert Alton Harris entered by the United States Court of Appeals for the Ninth Circuit in No. 92-70237 on April 20, 1992, are vacated.
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_counsel1
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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.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES v. DANG MEW WAN LUM.
No. 8346.
Circuit Court of Appeals, Ninth Circuit.
Feb. 8, 1937.
Ingram M. Stainback, U. S. Atty., J.. Frank McLaughlin, Asst. U. S. Atty., and' Ernest J. Hover, U. S. Department of Labor, Immigration, and Naturalization Service, all of Honolulu, T. IT., and H. IT. McPike, U. S. Atty., of San Francisco, Cal.
Before WILBUR and GARRECHT, Circuit Judges, and NETERER, District Judge.
NETERER, District Judge.
The appellant seeks reversal of the order of naturalization and cancellation of naturalization certificate of appellee.
No brief is filed by the appellee, nor does any one appear on her behalf. It is stated in appellant’s brief that appellee has not employed counsel, although advised to do so.
The petition for naturalization is sufficient, and among other things shows that appellee was born in Honolulu, Hawaii, May 29, 1894, and is of the Chinese race and is married to Lum Chew Hung. She was married May 2, 1910, at Dai Char, Chungshan, China. Her husband was born at Dai Char, Chungshan, China, February 3, 1886. Appellant entered Honolulu, United States, for permanent residence. She has no children. She departed for China from Hawaii May 16, 1907, steamship Siberia. Her last foreign residence was Macao, Chungshan, China. She came to the United States of America from Hongkong, China, and made lawful entry in the United States at ITonolulu, under the name of Dang Mew Wan Lum on October 19, 1934 on the steamship President Hoover. She qualified for citizenship on belief in organized government, disbelief in polygamy or in the practice thereof, and intention to become a citizen of the United States and the renunciation of all foreign allegiance and particularly with China; is able to speak the English language and had filed no former petition.
Motion was made to dismiss the petition for the reason that appellant, being of the Chinese race, is ineligible to naturalization unless she is entitled to admission under section 4 (a), Act of March 3, 1931 (8 U.S.C.A. § 369a).
Having departed from the United States in 1907 and married a Chinese in China May 2, 1910, which marriage endures, and not returning to the Territory of Hawaii and the United States until October 19, 1934, she is not within the amendment of July 2, 1932 (8 U.S.C.A. § 368b).
The Provisional Government obtained in the Hawaiian Islands from January 17, 1893, to July 4, 1894. She was at birth a citizen of the Provisional Government of the Hawaiian Islands. The Republic of ITawaii began July 4, 1894, and continued to August 12, 1898. By article 17 of the Constitution of the Republic of Hawaii she became a citizen of said republic at its inception and so remained during its life (to August 12, 1898). By the Organic Act of April 30, 1900, c. 339, § 4 (31 Stat. 141, 8 U.S.C.A. § 4), she, together with all other citizens of said republic, were naturalized as citizens of the United States, but when she married an alien ineligible to citizenship in 1910 she lost her citizenship.
The Act of March 2, 1907, c. 2534, § 3 (34 Stat. 1228), provides: “Any American woman who marries a foreigner shall take the nationality of her husband.” The Act of Sept. 22, 1922, c. 411 § 7, 42 Stat. 1022, 8 U.S.C.A. § 9 repealing section 3, Act of March 2, 1907, provides that “Such repeal shall not restore citizenship lost under such section.”
The Act of July 3, 1930, c. 835, § 2(a) (46 Stat. 854, 8 U.S.C.A. § 369), provides that a woman having lost her citizenship by marrying an alien eligible to citizenship, if she did not expiate herself by some affirmative act, may be naturalized. The Act of March 3, 1931, c. 442, § 4(a) (46 Stat. 1511, 8 U.S.C.A. § 369a), provides that any woman having lost her citizenship before March 3, 1931, by residence abroad after marriage or by marriage to an alien ineligible to citizenship if she has not acquired other nationality by her affirmative acts, may be naturalized. This section also makes eligible to citizenship a woman who was at birth a citizen of the United States of whatever race. Appellant was not at birth a citizen of the United States. And the further provision (8 U.S.C.A. § 368b) that a woman born in Hawaii prior to June 14, 1900, shall, if residing in the United States on July 2, 1932, be considered a citizen of the United States at birth does not qualify appellant, as she was not residing in the United States on said date.
This act created a right, upon a fixed status, but petitioner is not within the status, since she was not a citizen of the United States at birth, nor was she a resident of the United States July 2, 1932. The high privilege of citizenship is within the exclusive power of Congress to confer, Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, and the court must strictly construe the acts granting the privilege, U. S. v. Manzi, 276 U.S. 463-467, 48 S.Ct. 328, 329, 72 L.Ed. 654. See, also, In re McIntosh (D.C.) 12 F.Supp. 177.
The order is reversed and the trial court directed to dismiss the petition and enter an order canceling and recalling the certificate of naturalization issued:
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_circuit
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Richard John FREITAS, Sr., Appellant, v. Warden Calvin AUGER; Deputy Director for Institutions Paul Grossheim; Director of Dept. of Corrections Hal Farrier; Correctional Security Manager G.A. Winders; and Adjustment Committee Members Barrens, Bermeyer and Thomas, Appellees.
No. 87-1597.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 1, 1987.
Decided Jan. 26, 1988.
Rehearing Denied March 7, 1988.
Philip Mears, Iowa City, Iowa, (appointed), for appellant.
Layne M. Lindebak, Des Moines, Iowa, for appellees.
Before HEANEY, BOWMAN and WOLLMAN, Circuit Judges.
HEANEY, Circuit Judge.
A prison disciplinary committee at the Iowa State Men’s Reformatory punished Richard J. Freitas for allegedly conspiring with other inmates in planning an escape. Freitas brought an action before a magistrate under 42 U.S.C. § 1983 against various prison and state officials, contending that they had violated his constitutional rights. After a hearing, the magistrate held against Freitas. We affirm.
I. FACTS
Freitas is a prisoner at the Iowa State Men’s Reformatory in Anamosa, Iowa. Gary A. Winders, the Correctional Security Officer placed Freitas in administrative segregation on October 28, 1985. On October 29, Winders told Freitas he was under investigation for conspiring to escape from the Reformatory. Freitas admitted that two other inmates had discussed with him a plan to escape through the “hobbycraft” area of the Reformatory. Freitas, however, denied that he either initiated or furthered these conversations. The State concedes that Freitas did nothing more than participate in these conversations.
On October 31, 1985, Freitas and Winders talked again. Freitas revealed more about the conversations but again denied any involvement in the escape plan. Frei-tas consented to a polygraph examination on certain issues.
On November 5,1985, a polygraph examination was administered. The examiner asked Freitas whether he intended to escape through the hobbycraft area, whether he would kill a guard to further an escape, whether he knew of another prisoner who would kill a guard to further an escape, and whether he knew of any hacksaw blades which might have been smuggled into the reformatory to further an escape. The examiner told Freitas and Winders that Freitas had truthfully answered “no” to each question. He also said that Freitas had no “deliberate conscious plan” to escape through the hobbycraft area.
On November 8, Freitas was charged with a major disciplinary violation of conspiring to escape. Under the Reformatory rules, an inmate can act in complicity to escape “if, with the intent that an offense be committed, [he] commands, induces, procures, or aids another to commit it.” At a hearing on November 12 before the Adjustment Committee (consisting of appellees Brimeyer, Behrends, and Thomas), Freitas denied the charges. Winders offered a memorandum concerning the polygraph results and two confidential statements of informants.
Based on this evidence, the Committee found Freitas guilty of conspiring to escape. The Committee punished Freitas with ten days in solitary confinement and a minimum of thirty days in administrative segregation. He also was removed from the honor roll and lost forty-five days of good time.
On appeal, the warden, Calvin Auger, determined that a new hearing was necessary for submission of the typed results of the polygraph examination. Because of a lengthy delay in the preparation of the typed results — Freitas was in administrative segregation during this time — Freitas decided to proceed with the hearing without the typed results. At the hearing on December 24, 1985, Freitas told the Committee in some detail about the conversations with the other inmates. He reiterated that he had in no way furthered these conversations or conspired to escape.
Winders explained, not under oath, the polygraph results. The Committee concluded that, while Freitas had answered the questions truthfully, the questions did not address whether Freitas acted in complicity with others in planning an escape.
The Committee again found Freitas guilty of the charge and imposed the same punishment as before. The Committee stated that it relied on the confidential information, the fact that Freitas admitted to having the discussions about the escape, and that he admitted to Winders that he would “leave in a minute” if he had the opportunity to escape.
On internal appeal, Warden Auger upheld the decision but reduced the penalty. Paul W. Grossheim, Deputy Director for Institutions of the Department of Corrections, denied the appeal of that decision.
II. ANALYSIS
The fourteenth amendment to the Constitution forbids the State of Iowa from depriving Freitas of his right to liberty, except by due process of law. The deprivation in this case is the punishment imposed by the Committee: the loss of good time, the solitary confinement, administrative segregation, and the removal from the hon- or roll. Because Freitas is a prisoner, however, less procedural due process may be required because of security concerns in penal institutions. See Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974).
Before analyzing Freitas’ constitutional claims, we state that the only tenable ground for the disciplinary action against Freitas is that Freitas assisted, induced, or encouraged others to escape. There is no evidence that Freitas himself intended to escape. Nor can Freitas be disciplined for simply participating in discussions about escape. Clearly, Freitas must have had the intent to further an escape in some manner.
A. Notice
Due process requires prison officials to inform a resident of charges to be brought against him or her and the evidence relied on in bringing those charges. See id. at 563-64, 94 S.Ct. at 2978-79. The adequacy of the notice hinges on whether it allows the inmate to “marshal the facts" and prepare a defense. Id. at 564, 94 S.Ct. at 2978.
The notice in this case stated that Freitas had violated reformatory rules 5, 27 and 41. It also specifically stated:
Conspiring with others to escape: During the last 60 days, Freitas has talked with other inmates in the institution about planning an escape through the hobbycraft/school building. Freitas has informed myself [sic] that even though he was talking with these people, that he was not actually planning on escaping through the hobbycraft area.
In an effort to maintain the peace and tranquility of the institution, confidential names have been left out of this disciplinary report.
Freitas contends that this notice was constitutionally inadequate because it did not specify the dates of the alleged conversations, where they took place, their content or who participated in them. We do not find these omissions to violate the Constitution. The district court did not err in deciding that prison officials were justified in withholding information about confidential informants because of the risk of revealing their identities. Further information, either about the identity of the informants or the substance of what the informants said, may have endangered the informants. See Dawson v. Smith, 719 F.2d 896 (7th Cir.1983), cert. denied, 466 U.S. 929, 104 S.Ct. 1714, 8 L.Ed.2d 186 (1984). Cf. Muhammad v. Butler, 655 F.Supp. 1470, 1472 (D.N.J.1987) (officials’ withholding of confidential information violated due process because prisoner clearly knew identity of confidential informant).
In addition, Freitas admitted to having the three conversations in question. It does not matter that he may have mistakenly assumed that the prison officials were withholding additional evidence to be used against him. The only information withheld concerned the confidential informants. The decision of the Committee ultimately relied solely on the content of those conversations revealed by Freitas, either to the Committee or to Winders, and the confidential reports. The notice informed Freitas that this was the evidence on which the Committee would rely. It therefore was constitutionally adequate.
B. Adequacy of Committee’s Findings and Reasons
The Constitution requires that a written statement be drafted contemporaneously with the disciplinary action which informs an inmate of the evidence and reasons relied upon by the factfinders in reaching their decision. See Brown v. Frey, 807 F.2d 1407, 1411-12 (8th Cir.1986). Freitas contends that the factual findings of and the reasons given by the Committee were inadequate.
In reaching its decision, the Committee relied on Freitas’ admission to having had conversations about escaping on three separate occasions, on Freitas’ indication he would “leave in a minute,” if given the opportunity, and on confidential statements of informants. The Committee explicitly noted that it did not rely on the polygraph results in reaching its decision.
While these findings and reasons may not be extensive, the record does not indicate that the Committee relied on any other findings or reasons in reaching its decision. In addition, the Committee explicitly noted both its reliance on confidential information and that this information had been deleted for security reasons. See Rinehart v. Brewer, 483 F.Supp. 165, 170 (S.D.Ia.1980) (Confidential information may be omitted from written decision if decision “on its face indicates that the information has been deleted, and if a brief written summary of the confidential information is prepared.”). We therefore find the statement of the Committee’s findings and reasons is constitutionally adequate.
C. Reliability
Freitas argues that additional due process protections should be afforded in cases involving confidential informants. He suggests that the district court should confirm the reliability of the informants in some manner. The appellees on the other hand argue that due process does not require the district court to review the reliability of an informant.
We agree with Freitas that a determination of the reliability of confidential informants must be made. Due process requires that there be some evidence supporting the disciplinary determination. See Superintendent v. Hill, 472 U.S. 445, 454-56, 105 S.Ct. 2768, 2773-75, 86 L.Ed.2d 356 (1985). A bald assertion by an unidentified person, without more, cannot constitute some evidence of guilt. In addition, checking reliability will “help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens.” Id. at 455, 105 S.Ct. at 2774. The district court’s review of confidential information, in camera, provides such a check. See McCollum v. Williford, 793 F.2d 903, 906 (7th Cir.1986). The appellees give no reasons why this requirement would be burdensome, and we can think of none. We therefore hold that the magistrate did not err in requiring a determination of the confidential informants’ reliability.
The prison officials contend that, even if reliability must be established, the magistrate properly did so here. We agree. After an in camera review, the magistrate found that the record contained sufficient indications of reliability of the informants. He noted that the statements of the two informants contained some factual background, were consistent with each other, and at least one of them was against the informant’s penal interest.
We have examined the confidential statements carefully. We note that they are largely conclusory and barely legible. Although they indicate that Freitas may have counselled some prisoners with respect to the escape, the statements are lacking in detail. Were we making the initial decision, we would be inclined to hold that the statements were inadequate. We cannot say, however, that the magistrate erred in finding sufficient indicia of reliability in the statements.
D. Sufficiency of the Evidence
Freitas claims the evidence is insufficient to support the Committee’s finding of guilt. Although this is a close question, we find that there is sufficient evidence, i.e., some evidence,, supporting the Committee’s finding that Freitas had conspired to assist others in planning an escape from the reformatory.
We reiterate that Freitas was not and could not have been disciplined simply for talking about an escape. There is, however, some evidence showing that an escape was being planned and that Freitas had encouraged the furtherance of this plan or assisted in its preparation, although he was not going to participate in it.
Freitas had conversations with a number of inmates about an escape through the hobbycraft area. Freitas indicated in his statements to Winders that he would have nothing to do with these plots, and yet it appears that Freitas had a fair degree of knowledge of them. In addition, Freitas indicated on occasion that he would himself escape if given a good opportunity because of his fifty year sentence. This alone would not constitute some evidence. When this evidence is combined with the statements of the confidential informants which directly implicate Freitas for assisting in the plans, however, there is some evidence, and some evidence is sufficient under existing law.
III. CONCLUSION
The notice of the charges to be brought against Freitas and the explanation of the ruling by the Committee do not violate due process. The evidence showing the reliability of the confidential informants was scant but sufficient to satisfy due process. In addition, because the statements of the confidential informants directly implicated Freitas, there was some evidence that Frei-tas assisted or furthered the planning of an escape. We therefore affirm the district court’s denial of relief under 42 U.S.C. § 1983.
. This matter was submitted to Magistrate James D. Hodges by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Appeal of the final judgment of the magistrate to this Court is premised on section 636(c)(3).
. The names Brimeyer and Behrends are also spelled Bermeyer and Barrens in the record.
. The memorandum stated that the following questions were asked of Freitas:
1. Within the past two months, have you seen any hacksaw blades not in control of staff?
2. Within the past two months, were you the one who had any hacksaw blades which were not in control of staff?
3. Within the past two months, other than Roberts has any inmate told you he had access to hacksaw blades?
4. Have you ever seriously said that you would kill a staff member to affect [sic] an escape?
5. Have you ever heard another inmate, besides [Moegenburg] say he would kill a staff member to escape?
6. In order to escape did you tell anyone that you would kill a staff member?
7. Did you intend to escape out of the hobbycraft window?
Freitas answered “no” to each question. The examiner stated that he thought Freitas answered these questions truthfully.
.The results were eventually typed on February 18, 1986. They show that Winders had accurately reported the content of the polygraph examination to the Committee, except apparently for one question. As the magistrate points out, Winders’ memorandum states that Freitas answered "no” to the question: “Did you intend to escape out of the hobbycraft window?” The typed results of February 18 contain no such question. This discrepancy certainly did not prejudice Freitas since its inclusion in Winders’ memorandum only could have confirmed that Freitas did not himself plan to escape.
. Rule 41, the rule on complicity, states in full that:
A resident commits an offense under this subsection when the resident has complicity in or attempts to do any of the above offenses and shall be treated as though the resident personally committed the offense.
The definition of complicity states that:
A resident shall be responsible for the action of another if, with the intent that an offense be committed, the resident commands, induces, procures, or aids another to commit it.
. The disciplinary decision of December 24, 1985, is the decision in issue in this case, since it superseded the November 12, 1985 decision. Stadtmueller replaced Thomas on the subcommittee which rendered the December 24 decision. Because Thomas did not participate in the decision in issue, he should be dismissed from the suit.
. Freitas also contends that his counsel or he should have access to the confidential reports. He argues that he no longer poses a threat to the informants because, as he learned from the prison officials pleadings, two of the informants were no longer at the Iowa Men’s Reformatory. As the prison officials point out, however, these informants might someday be in the same facility as Freitas because of retransfers. While this may be speculation, it still is a very real concern in this case. Cf. Muhammad, 655 F.Supp. at 1472 (where prisoner should have been given access to confidential information because he already knew the identity of informant).
. Hill states that the some evidence standard does not require an "independent assessment of the credibility of witnesses.” Id. at 455, 105 S.Ct. at 2774. We believe consideration of the reliability of confidential informants to be a different matter. As the Third Circuit Court of Appeals stated in Helms v. Hewitt, 655 F.2d 487 (3d Cir.1981), rev'd on other grounds, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), "[a] determination of guilt [based on the report of a confidential informant] with no primary evidence of guilt in the form of witness statements, oral or written, or any form of corroborative evidence, amounts to a determination on the blind acceptance of the prison officer’s statement." Id. at 502.
.In McCollum the Seventh Circuit has named four ways in which the reliability of an informant may be established:
(1) the oath of the investigating officer as to the truth of his report containing confidential information and his appearance before the disciplinary committee ..., (2) corroborating testimony ..., (3) a statement on the record by the chairman of the disciplinary committee that, "he had firsthand knowledge of the sources of information and considered them reliable on the basis of ‘their past record of reliability,’ ” or (4) in camera review of material documenting the investigator’s assessment of the credibility of the confidential informant.
793 F.2d at 906 (citations omitted). We agree with the district court that these methods are not necessarily exclusive nor is any one of them necessarily sufficient to determine reliability. Cf. Rinehart, 483 F.Supp. at 170 (requiring written summary of confidential information relied on by prison disciplinary committee).
. As the Court of Appeals in McCollum stated, in camera review of the reliability of a confidential report determines:
(1)whether providing the inmate with "more specific factual information ... would seriously risk exposing the confidential informant's identity;” (2) whether the confidential report, "contains ... sufficient additional information to bolster the reliability of the [confidential] information;” or (3) whether the disciplinary committee “adopt[ed] the credibility determination made by the prison investigator.”
793 F.2d at 906 (quoting Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986)) (citations omitted and bracketed portions in original).
. To ensure the proper establishment of reliability of confidential informants, prison officials should follow the directions of the district court in Rinehart. In Rinehart, the district court stated that a written summary of confidential information should include:
(1) A brief written summary of all the confidential information, both oral and written, available to the disciplinary committee which pertains to the alleged incident under consideration:
(2) A statement setting forth the identity of the informants either by name or by his relationship to the penitentiary;
(3) A statement indicating what confidential information was relied upon by the disciplinary committee in reaching its decision;
(4) A statement indicating why the disciplinary committee believes the confidential information relied upon to be credible, whether any corroboration of such information is available, and if ... available, what the corroborating information is; and
(5) A statement indicating why the disciplinary committee believes the confidential information should in fact be kept confidential.
483 F.Supp. at 170.
.Freitas also argues that the substantial evidence test should be applied in prisoner disciplinary cases where confidential informants are involved. We disagree. We believe that rectifying any prejudice to a prisoner resulting from the presence of confidential information requires establishing the reliability of the informant, not the alteration of the standard of review. By altering the standard of review, we would affect the review of all the evidence, not just the confidential information. This is contrary to the Supreme Court’s directions in Hill, 472 U.S. at 455, 105 S.Ct. at 2774.
. Freitas also raises two issues which were not raised below. He intimates that he should be allowed to take a polygraph examination which addresses the question of whether he participated in planning or furthering an escape. We hold that Freitas was not entitled to a polygraph examination on this issue. We also hold that Freitas was not entitled to a lawyer or an aide to present his case to the Committee. In Wolff, the Supreme Court stated that a prisoner may be entitled to an attorney or aide in prison disciplinary proceedings if, for example, the issues in the case are complex or the prisoner is illiterate. 418 U.S. at 570, 94 S.Ct. at 2981. The issues in this case are not complex, and Freitas’ written work in the record demonstrates that he clearly grasped them.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_district
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America ex rel. Theodore GEISLER, Appellant, v. Gilbert A. WALTERS, Superintendent, Western Correctional Institution, Pittsburgh, Pennsylvania.
No. 74-1345.
United States Court of Appeals, Third Circuit.
Final Submission Dec. 16, 1974.
Decided Feb. 5, 1975.
Joseph N. Bongiovanni, III, Speese & Kephart, Philadelphia, Pa., for appellant.
John J. Hickton, Dist. Atty. of Allegheny County, John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, Pa., for appellee.
Before BIGGS, ADAMS and GARTH, Circuit Judges.
OPINION OF THE COURT
BIGGS, Circuit Judge.
This is an appeal from the district court’s dismissal without a hearing of the relator-appellant’s, Geisler’s, application for habeas corpus. The district court ruled that Geisler had failed to exhaust his state remedies. The instant appeal followed. Its disposition requires our examination of the complicated history of Geisler’s various motions and petitions and a determination of whether he has either exhausted his state remedies or been victimized by circumstances rendering those remedies ineffective. 28 U.S.C. § 2254(b).
I. FACTUAL BACKGROUND
Geisler was tried by a jury on October 19, 1962 for armed robbery and violation of the Uniform Firearms Act. His trial was conducted by Judge Robert Morris of the Pennsylvania Court of Common Pleas. Geisler was found guilty on both counts, and his counsel filed a motion for a new trial but subsequently withdrew it. On February 15, 1963, Geisler was sentenced to a term of 1Lh to 15 years. At a hearing on March 3, 1963, his counsel requested leave to argue the original motion for a new trial. Leave was denied.
In 1964, Geisler filed a petition for habeas corpus in the state court. Judge Morris dismissed that petition without a hearing on October 6, 1964 because it raised issues which he deemed were not properly before him in a habeas corpus proceeding. On appeal, the Pennsylvania Superior Court affirmed per curiam. Commonwealth ex rel. Geisler v. Maroney, 205 Pa. Super. 739, 209 A.2d 437 (1965). The Pennsylvania Supreme Court denied allocatur on August 30, 1965.
Geisler then filed a pro se petition pursuant to the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., on October 23, 1967. On March 7, 1968 Judge Morris conducted a hearing on the petition, having appointed the Allegheny County Public Defender as counsel for Geisler. The issue was stated to be whether Geisler had been deprived of his right to appeal. On March 4, 1969, Judge Morris filed an opinion and order dismissing the PCHA petition but permitting Geisler to file a motion for a new trial nunc pro tunc. The Public Defender again served as counsel for Geisler. On June 27, 1969, Geisler filed pro se a motion for a new trial, as follows: (1) he was denied effective assistance of counsel; (2) the identification was so impermissibly suggestive as to be constitutionally infirm; (3) the trial court erred in permitting introduction into evidence of the appellant’s prior record of convictions under the Uniform Firearms Act; (4) the admission of prejudicial and unrelated evidence was improper; (5) his arrest was without probable cause; (6) the Assistant District Attorney engaged in prosecutorial misconduct; (7) the trial judge’s charge to the jury denied Geisler a fair trial; and (8) the jury’s double verdict resulted in double jeopardy to the appellant.
On December 17, 1969, six months after the motion for new trial was filed, a court consisting of Judge Morris and Judge Samuel J. Feigus heard oral argument on the motion and took it under advisement. On April 27, 1970, ten months after Geisler filed his motion of June 27, 1969 for a new trial, and again on July 16, 1970, thirteen months after the filing of his motion for a new trial on June 27, 1969, Geisler filed petitions for disposition of his motion for a new trial. These petitions were identical, the second having been filed because the first did not reach the clerk’s office. In substance, they were a procedural request that Judge Morris act immediately on the motion for a new trial and not a substantive enumeration of Geisler’s claims. While appellant specifically elaborated upon several contentions, including denial of effective assistance of counsel and prejudice arising from introduction into evidence of appellant’s prior record, the petition also referred to appellant’s motion for a new trial and the oral argument on that motion.
On September 11, 1970, fifteen months after Geisler had filed his motion for a new trial, Judge Morris filed the following opinion and order:
“This matter is before the Court on a Petition which the Defendant describes as a ‘Petition for Disposition and Remedy as a Matter of Law, a New ■ Trial.’
“Upon a careful review of the Petition in the light of the petitions heretofore filed, hearing held, Orders made by this Court as well as the Superior Court, we can see nothing in the Petition of a meritorious nature.
“On March 4, 1969, this Court filed its Opinion and Order granting to the Defendant the right to file a motion for new trial, nunc pro tunc. This Order was made as a result of a Post Conviction Petition filed by the Defendant alleging previously that he had been improperly denied his right of appeal. After hearing and testimony taken the Order granting him the right to appeal was made. For reasons known only to the defendant, no action was taken by the defendant to perfect such appeal. We refer to our Opinion and Order of March 4, 1969, wherein we review the case from its inception. We see no merit to Defendant’s allegations. Accordingly, we make the following ORDER. AND NOW, September 11, 1970, for the reasons stated above the prayer of the Petition is denied and the Petition is dismissed” (emphasis added).
The foregoing opinion of the learned Pennsylvania trial judge is not entirely clear, but his order is clear enough for he states that “the prayer of the Petition is denied and the Petition is dismissed.” It would appear to us that, whatever may have been in the mind of Judge Morris, the order of September 11, 1970 was an appealable final order.
Geisler appealed this decision to the Pennsylvania Superior Court, which granted him leave to file a brief pro se in addition to the brief which the Public Defender filed in his behalf. The Public Defender’s brief dealt only with the identification issue. Geisler’s pro se brief raised all the issues which had been contained in the motion for a new trial. It argued as well that appellant had been denied a fair trial and effective assistance of counsel at all proceedings subsequent to trial. On June 30, 1971, the Superior Court affirmed the judgment of sentence per curiam. Commonwealth v. Geisler, 218 Pa. Super. 911, 279 A.2d 198 (1971). Both appellant and the Public Defender then petitioned for allocatur to the Supreme Court of Pennsylvania. Geisler’s petition contained all eight issues raised in the motion for a new trial. Those petitions were denied per curiam on January 14, 1972.
Geisler then turned to the federal courts for relief and filed a petition for habeas corpus on March 20, 1972 in the United States District Court for the Western District of Pennsylvania. The Honorable Joseph Weis, then a district court judge, conducted a hearing on August 28, 1972 to determine whether an evidentiary hearing should be held on the petition. Judge Weis concluded that the exhaustion requirement had not been met. Possibly confusion arose from the fact that Geisler filed two petitions for disposition of his motion for a new trial. The learned district judge apparently took the view that Geisler’s motion for a new trial had not been disposed of on the merits by Judge Morris and that the Court of Common Pleas had disposed only of the petitions asking disposition of his motion for a new trial. Regardless of the basis for this decision, Judge Weis, having concluded that Judge Morris’ order and opinion of September 11, 1970 were not a disposition of Geisler’s motion for a new trial, advised President Judge Ellenbogen of the Allegheny County Court of Common Pleas of this discovery by letter on August 30, 1972 and requested that his court formally dispose of the motion. On October 24, 1972 Judge Morris formally denied the appellant’s motion for a new trial. On October 26, 1972, Judge Weis dismissed Geisler’s federal habeas corpus petition for failure to exhaust state remedies. The United States District Court denied appellant’s motion for reconsideration, and this court denied a certificate of probable cause on March 1, 1973 (C.A. Misc. Rec. No. 72-8114). We cannot agree with Judge Weis’ conclusion that Judge Morris’ decision and order of September 11, 1970 were not a sufficient disposition of Geisler’s claims for the purpose of exhaustion of state remedies.
It should be observed that three years and four months passed before the post trial motion was “formally” disposed of by the Court of Common Pleas, viz., the period from June 27, 1969 to October 24, 1972. Nor perhaps would disposition have been made even on this late date had it not been for the letter of Judge Weis to Judge Ellenbogen.
Geisler next moved to appeal Judge Morris’ order of October 24, 1972 in the Pennsylvania Superior Court. In a per curiam affirmance of that judgment the Superior Court on September 19, 1973 denied appellant’s application for the third time. Commonwealth v. Geisler, 226 Pa.Super. 722, 309 A.2d 817 (1973).
Then occurred whát we deem to be a curious circumstance. In the first federal habeas corpus proceeding, that of March 20, 1972, a United States Magistrate appointed as counsel for Geisler a member of the bar of Allegheny County. Counsel continued to advise appellant after the case returned to the state tribunals and, when the Superior Court rejected Geisler’s appeal on September 19, 1973, wrote Geisler that he had exhausted his state remedies and that he could now file his “Federal Court Petition for Writ of Habeas Corpus”. The substance of the letter is set out in the footnote. At this point, Geisler, as would be expected, apparently abandoned the thought of any appeal to the Supreme Court of Pennsylvania. In view of the great vigor with which Geisler sought relief from his judgments of conviction, we think he would have applied for allocatur, probably pro se, and if allocatur had been denied, there could be no question but that he would have exhausted his state remedies. Geisler foreclosed himself from this course, however, probably because of the advice of counsel.
Geisler then filed a second petition for federal habeas corpus and this was referred to Judge Snyder, who rejected it on the ground that Geisler had not exhausted his state remedies. It is this denial of habeas corpus which is before us on this appeal.
II. THE LAW AND THE DISPOSITION OF THIS CASE
(A)(1) Geisler has exhausted his state remedies. He filed a petition for state habeas corpus. This was refused. On appeal to the Superior Court the judgment was affirmed and allocatur was denied by the Supreme Court. He also filed a petition under the PCHA and Judge Morris, while on the record denying the relief sought, nonetheless granted it in substance by giving Geisler leave to file a motion for a new trial nunc pro tunc. In our view it is not necessary that he again make use of the provisions of the PCHA or raise these same issues again on collateral attack. “[T]he Supreme Court made clear in Brown v. Allen that the exhaustion doctrine is not intended to give the states more than one full chance.” Developments in the Law — Federal Habeas Corpus, 83 Harv. L.Rev. 1038 at 1096 (1970) (footnote omitted).
We cannot agree with our Brother Weis or with Judge Snyder that Judge Morris’ order of September 11, 1970, the affirmance of that judgment by the Superior Court, and the denial of allocatur by the state Supreme Court did not exhaust Geisler’s state remedies. As we have stated earlier, Geisler’s pro se motion for a new trial and his appeals’ briefs embraced identical issues. They likewise included all issues raised previously in the state habeas corpus proceedings and all issues, save that of denial of the right to appeal, raised in the PCHA proceeding. More importantly, those same issues have been raised in both federal habeas corpus petitions. Geisler’s petitions and briefs are inartistic and do not fit exactly or with clockwork precision into the Pennsylvania state court procedures, but since he was acting pro se, they were sufficiently adapted to their purpose to put the Superior Court and Supreme Court of Pennsylvania on notice as to the issues raised and the relief sought. See United States ex rel. Turner v. Rundle, supra; United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970).
We deem it imperative to note that the exhaustion doctrine does not require that the state courts have actually ruled on the merits of the claims, but merely that they have had those contentions presented to them. See Brown v. Allen, supra, 344 U.S. at 448-449, note 3, 73 S.Ct. 397; United States ex rel. Turner v. Rundle, supra, 438 F.2d at 845; Ralls v. Manson, 375 F.Supp. 1271 (D.Conn.1974). In this regard, the decision as to whether exhaustion has occurred should be based on the record and pleading before the state courts not the length of their opinions. United States v. Pate, 240 F.Supp. 696, 704 (N.D.Ill.1965). See also Sokol, Federal Habeas Corpus, § 22.2 (2d ed. 1969). While the case before us is most certainly sui gen eris, we emphasize that “[i]t is the legal issues that are to be exhausted, not the petitioner.” Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw.1973).
(2) If we assume that our Brother Weis’ position is correct as to the “formal” disposition of Geisler’s motion for a new trial, we are confronted with a further dilemma. The motion for a new trial was filed on June 27, 1969 and was not “formally” disposed of by Judge Morris until October 24, 1972, a period of three years and four months. We hesitate to repeat the ancient statement that justice delayed is justice denied, but there can be no doubt that such an inordinate delay is an adequate basis for federal habeas corpus relief even though state remedies have not been exhausted. See, e. g., United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir. 1973); Tramel v. Idaho, 459 F.2d 57, 58 (10th Cir. 1972); Ralls v. Manson, supra, 375 F.Supp. at 1282; Phillips v. Tollett, 330 F.Supp. 776, 778 (E.D.Tenn.1971).
(B) As we have pointed out, counsel appointed for Geisler at the time of the first federal habeas corpus proceeding by the United States Magistrate was unaware of what constituted exhaustion of state remedies and expressly informed Geisler that he did not need to apply for allocatur to the Supreme Court of Pennsylvania after the Superior Court had affirmed the decision of the Court of Common Pleas of Allegheny County. This court has taken the position that effective representation is to be judged by a standard of normal and reasonable competency as suggested in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See the cases cited in Case Note, 43 Fordham L.Rev. 310 at 313-315 (1974).
Assuming, however, that the position taken by the learned district judges, i. e., to the effect that Judge Morris’ order of September 11, 1970 was insufficient, we conclude that Geisler is entitled to have his petition heard because of the provisions of 28 U.S.C. § 2254(b), which state that habeas is available if there exists “circumstances rendering [State corrective] process ineffective »
III. CUSTODY FOR THE PURPOSE OF FEDERAL HABEAS CORPUS
One point remains for disposition, but as we read the Government’s position, it is not really contested. The record indicates that appellant is presently on “furlough” from the State Correctional Institution at Pittsburgh. The restraints upon Geisler’s freedom, however, constitute “custody” within the terms of 28 U.S.C. §§ 2241(c), 2254(a) for the purposes of federal habeas corpus jurisdiction.
IV. CONCLUSION
The judgment will be reversed and the case remanded. All issues save that of exhaustion of state remedies remain open for disposition by the district court.
. Geisler had been indicted at No. 3 October Sessions, 1962 in the Criminal Courts of Allegheny County on counts of armed robbery (formerly, 18 P.S. § 4705; now, 18 C.P.S. §§ 3701 and 6103) and receiving stolen goods (formerly, 18 P.S. § 4817; now, 18 C.P.S. § 3925). Geisler was also indicted at No. 14 October Sessions, 1962 on a count of violation of that portion of the Uniform Firearms Act which prohibits former convicts from owning or possessing firearms (formerly, 18 P.S. § 4628(d); now, 18 C.P.S. § 6105). He and his co-defendant Wilbert Kastle were tried and convicted solely on the armed robbery and firearms violation counts.
. The issues raised by this habeas corpus petition were as follows: (1) ineffective assistanee of counsel; (2) trial court erred in permitting evidence as to prior convictions; (3) prejudicial and unrelated evidence; (4) arrest without probable cause; (5) trial judge’s instructions denied fair trial; and (6) prosecutorial misconduct.
Judge Morris’ order was as follows:
“And Now, October 6, 1964, the within petition for writ of habeas corpus is ordered filed, filing fee to be paid by Allegheny County. Inasmuch as the petition sets forth no complaints which can properly be considered under a petition for writ of habeas corpus, the petition is hereby dismissed.”
. The issues raised by the Pennsylvania Post Conviction Hearing Act petition were as follows: (1) ineffective assistance of counsel; (2) introduction into evidence of prejudicial and unrelated evidence; (3) identification; (4) arrest without probable cause; (5) denial of right to appeal; (6) use of prior criminal record; (7) prosecutorial misconduct; and (8) trial judge’s jury charge was erroneous.
Judge Morris’ order of March 4, 1969 stated in part:
“[T]he Defendant-Petitioner is hereby granted the right to file a Motion for a New Trial, nunc pro tunc.”
. Copies of the briefs and petitions filed in these appeals to the Superior and Supreme Courts of Pennsylvania were not in the record before us, a record which, as is too frequently the case in habeas corpus proceedings, is woefully lacking in this and other respects. However, copies of the briefs and petitions to these courts in the aforementioned appeals have been procured, and this court will order them to be included in and made part of the record before us so that the Reviewing Court may have a full and proper record before it. We, of course, take judicial notice of these documents, as the United States District Court could have done. See Doe v. Wohlgemuth, 505 F.2d 186 (3d Cir. 1974), note 5 at 188, citing inter alia, Funk v. Commissioner of Internal Revenue, 163 F.2d 796 (3d Cir. 1947), and Zahn v. Transamerica Corporation, 162 F.2d 36 (3d Cir. 1947). Cf. Rule 44(b), F.R.Civ.Proc., and Rule 10(e), F.R.App.Proc., 28 U.S.C.
. Geisler’s prolix petition consists of 26 typewritten pages, with numerous appendices. This petition asserts ten “grounds” for relief. These grounds when boiled down to their essence, and giving to Geisler’s pleading every advantage to be granted a pro se petition under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), present the same bases for relief, and none other, as were asserted in Geisler’s motion for new trial and in the aforementioned appeals’ briefs and petitions filed with the Pennsylvania Superior and Supreme Courts after Judge Morris’ order of September 11, 1970.
. On this appeal, appellant again raised the eight issues enumerated, supra. In addition, he contended that the three and a half year delay in ruling on his motion for new trial was a deprivation of due process and equal protection of the laws. The briefs filed in this appeal are not in the record before us. We have, however, gleaned the foregoing from the brief which appellee filed with us, and under these circumstances we treat this uncontradicted statement as an admission.
. Appellant alleges, and we find it noteworthy, that on March 27, 1973 during the pend-ency of this appeal before the Superior Court, the Commonwealth filed a “Petition to Dismiss Due to Prior Appellate Review of Issues.” In effect, such a petition is an admission that the Superior Court’s decision of June 30, 1971 was an adequate review of the contentions raised in Geisler’s post-trial motion. The issue of whether appellant has exhausted his state remedies would, then, turn solely on the content of the allocatur petitions rejected by the Pennsylvania Supreme Court on January 14, 1972.
. Please find enclosed the opinion of the Superior Court affirming your judgment of sentence. I now suggest that if you carry this matter further, that you can file your Federal Court Petition for Writ of Habeas Corpus as you have now exhausted the state remedies." (Emphasis added.)
. The “Issues and Grounds" presented in this petition are substantially the same as those which were before the United States District Court in Geisler’s first petition for federal habeas corpus, save two which were added, as follows:
“The district court executed fundamental error in sending petitioner back through the courts of the State, by letter and suggestive belief that the State court would remedy the flagrant abuses of a totality tainted trial, judgment and appeal, without competent counsel, which, subjected him to: a three-year delayed opinion from without jurisdiction and without trial record, on one paragraph opinion and repeat issues on appeal and affirmed on appeal on the previously affirmed appeal.”
“Where petitioner has proceeded to the only appellate court wherein his legal and rightful appeal is mandated, has he not exhausted state remedies? And/or is graceful allowance of appeal to the Supreme Court mandatory?”
We need not concern ourselves with these two claims in respect to any issue of exhaustion of remedies since their contents cannot be considered in an on-the-merits adjudication of appellant’s petition. In fact, they consist of incoherent legal jargon.
For purposes of identification and clarity, we state that the first federal petition for habeas corpus is numbered Civil No. 72-234 and the second federal petition for habeas corpus is numbered Civil No. 73-1034.
. Brown v. Allen, 344 U.S. 443 at 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953); United States ex rel. Schultz v. Brierley, 449 F.2d 1286, 1287 (3d Cir. 1971); Osborn v. Russell, 434 F.2d 650, 651 (3d Cir. 1970).
. A denial of allocatur, as here, or a similar refusal to entertain an appeal constitutes a sufficient presentation for purposes of exhaustion. United States ex rel. Turner v. Rundle, 438 F.2d 839, 845 (3d Cir. 1971) (denial of allocatur by the Pennsylvania Supreme Court).
. Ralls v. Manson, supra, 375 F.Supp. at 1282: “The three and one-half year period during which the direct appeal in the instant case has been pending, although somewhat longer than the average, is by no means unique among Connecticut cases. Nevertheless, this delay in adjudicating the petitioner’s rights is clearly inordinate and excessive: it certainly offends the ‘limits to the sacrifices men must make upon the altar of comity.’ United States ex rel. Lusterino v. Dros [D.C.N.Y.], supra, 260 F.Supp. [13] at 16. As the United States Supreme Court declared in Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963), ‘Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceedings.’ Cf. Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936, 940-941 (4th Cir. 1964).” The Supreme Court of Delaware in Erb v. Delaware, 332 A.2d 137 (1974) expresses a strong view in respect to delayed juridical actions. The Court said this in respect to delays of counsel:
“The Court docket . . . chronicles appalling and unnecessary delay in prosecution of the appeals resulting from a lack of coordination between trial counsel and the Public Defender and the failure of both of them to meet their responsibilities as counsel of record. Trial counsel did not order a transcript of testimony nor provide the Public Defender with pertinent information as to errors of law on which the appeals are based, and the Public Defender did not meet his responsibility to prosecute the appeals with diligence. The delay of some thirteen months without a transcript, without an order for transcript and without a meaningful brief is simply unconscionable.” (footnote omitted).
. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). See also Sokol, supra, at § 6.1.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_respondent
|
029
|
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.
CALIFORNIA v. BEHELER
No. 82-1666.
Decided July 6, 1983
Per Curiam.
The question presented in this petition for certiorari is whether Miranda warnings are required if the suspect is not placed under arrest, voluntarily comes to the police station, and is allowed to leave unhindered by police after a brief interview. Because this question has already been settled clearly by past decisions of this Court, we reverse a decision of the California Court of Appeal holding that Miranda warnings are required in these circumstances.
H
The respondent, Jerry Beheler, and several acquaintances, attempted to steal a quantity of hashish from Peggy Dean, who was selling the drug in the parking lot of a liquor store. Dean was killed by Beheler’s companion and stepbrother, Danny Wilbanks, when she refused to relinquish her hashish. Shortly thereafter, Beheler called the police, who arrived almost immediately. See Brief in Opposition 3. He told the police that Wilbanks had killed the victim, and that other companions had hidden the gun in the Behelers’ backyard. Beheler gave consent to search the yard and the gun was found. Later that evening, Beheler voluntarily agreed to accompany police to the station house, although the police specifically told Beheler that he was not under arrest.
At the station house, Beheler agreed to talk to police about the murder, although the police did not advise Beheler of the rights provided him under Miranda v. Arizona, 384 U. S. 436 (1966). The interview lasted less than 30 minutes. After being told that his statement would be evaluated by the District Attorney, Beheler was permitted to return to his home. Five days later, Beheler was arrested in connection with the Dean murder. After he was fully advised of his Miranda rights, he waived those rights and gave a second, taped confession during which he admitted that his earlier interview with the police had been given voluntarily. The trial court found that it was not necessary for police to advise Beheler of his Miranda rights prior to the first interview, and Beheler’s statements at both interviews were admitted into evidence.
The California Court of Appeal reversed Beheler’s conviction for aiding and abetting first-degree murder, holding that the first interview with police constituted custodial interrogation, which activated the need for Miranda warnings. The court focused on the fact that the interview took place in the station house, that before the station house interview the police had already identified Beheler as a suspect in the case because Beheler had discussed the murder with police earlier, and that the interview was designed to produce incriminating responses. Although the indicia of arrest were not present, the balancing of the other factors led the court to conclude that the State “has not met its burden of establishing that [Beheler] was not in custody” during the first interview. App. to Pet. for Cert. 36.
We held in Miranda that “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U. S., at 444 (footnote omitted). It is beyond doubt that Beheler was neither taken into custody nor significantly deprived of his freedom of action. Indeed, Beheler’s freedom was not restricted in any way whatsoever.
In Oregon v. Mathiason, 429 U. S. 492 (1977), which involved a factual context remarkably similar to the present case, we held that the suspect was not “in custody” within the meaning of Miranda. The police initiated contact with Mathiason, who agreed to come to the patrol office. There, the police conducted an interview after informing Mathiason that they suspected him of committing a burglary, and that the truthfulness of any statement that he made would be evaluated by the District Attorney or a judge. The officer also falsely informed Mathiason that his fingerprints were found at the scene of the crime. Mathiason then admitted to his participation in the burglary. The officer advised Mathiason of his Miranda rights, and took a taped confession, but released him pending the District Attorney’s decision to bring formal charges. The interview lasted for 30 minutes.
In summarily reversing the Oregon Supreme Court decision that Mathiason was in custody for purposes of receiving Miranda protection, we stated: “Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’” 429 U. S., at 495. The police are required to give Miranda warnings only “where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” 429 U. S., at 495. Our holding relied on the very practical recognition that “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” Ibid.
The court below believed incorrectly that Mathiason could be distinguished from the present case because Mathiason was not questioned by police until some 25 days after the burglary. In the present case, Beheler was interviewed shortly after the crime was committed, had been drinking earlier in the day, and was emotionally distraught. See App. to Pet. for Cert. 24-25. In addition, the court observed that the police had a great deal more information about Beheler before their interview than did the police in Mathiason, and that Mathiason was a parolee who knew that “it was incumbent upon him to cooperate with police.” App. to Pet. for Cert. 25. Finally, the court noted that our decision in Mathiason did not preclude a consideration of the “totality of circumstances” in determining whether a suspect is “in custody.”
Although the circumstances of each case must certainly influence a determination of whether a suspect is “in custody” for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest. Mathiason, supra, at 495. In the present case, the “totality of circumstances” on which the court focused primarily were that the interview took place in a station house, and that Beheler was a suspect because he had spoken to police earlier. But we have explicitly recognized that Miranda warnings are not required “simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. ” 429 U. S., at 495. That the police knew more about Beheler before his interview than they did about Mathiason before his is irrelevant, see n. 2, supra, especially because it was Beheler himself who had initiated the earlier communication with police. Moreover, the length of time that elapsed between the commission of the crime and the police interview has no relevance to the inquiry.
I — I I — i HH
Accordingly, the motion of respondent for leave to proceed informa pawperis and the petition for writ of certiorari are granted, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Beheler suggests that the decision below rested upon adequate and independent state grounds in that the court applied state “in custody” standards. See Brief in Opposition 9, n. 5. It is clear from the face of the opinion, however, that the opinion below rested exclusively on the court’s “decision on the Miranda issue.” App. to Pet. for Cert. 37. Although the court relied in part on People v. Herdan, 42 Cal. App. 3d 300, 116 Cal. Rptr. 641 (1974), that decision applies Miranda.
Our holding in Mathiason reflected our earlier decision in Beckwith v. United States, 425 U. S. 341 (1976), in which we rejected the notion that the “in custody” requirement was satisfied merely because the police interviewed a person who was the “focus” of a criminal investigation. We made clear that “Miranda implicitly defined ‘focus’... as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Id., at 347 (quoting Miranda, 384 U. S., at 444).
Beheler offers a number of arguments in opposition to the State’s petition for certiorari. The thrust of these arguments is that even though he voluntarily engaged in the interview with police, his participation was “coerced” because he was unaware of the consequences of his participation. Beheler cites no authority to support his contention that his lack of awareness transformed the situation into a custodial one. In addition, Beheler argues that it would be unjust to uphold his conviction because the trigger-man was convicted only of voluntary manslaughter. We do not find Beheler’s argument to be persuasive. See Standefer v. United States, 447 U. S. 10 (1980).
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_r_natpr
|
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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MYERS v. MYERS et al.
(Court of Appeals of District of Columbia.
Submitted February 10, 1925.
Decided March 2, 1925.)
No. 4160.
I. Divorce <§=222—Allowance of wife’s attorney’s fees by supplemental decree after granting, of divorce to husband held proper.
: ■ Where court, on granting husband divorce on grounds of adultery, and holding similar charges by wife unfounded, reserved for further consideration matter of defendant wife’s 'aftorüe^’s' feesi. ftcid,-under Code, § 975, court did not lose authority to allow attorney’s fees by supplemental decree, nor was such allowance irregular, because husband had prevailed, or because wife’s defense on issue of adultery necessarily served as defense of corespondent named by husband, who was represented by same attorney.
2. Divorce <§=189—Court may not impose on corespondent named by husband payment of counsel fees for wife as party to case.
In husband’s divorce action on ground of adultery, court may not impose on corespondent named payment of counsel fees for defendant wife as party to case.
Appeal from the Supreme Court of the District of Columbia.
Suit for divorce on ground of adultery by Samuel N. Myers against Victoria Myers, with Cecil D. Alley as corespondent, wherein the wife by cross-bill sought divorce on same ground. The court on final decree granted the husband a divorce on the ground charged, and held the wife’s charges against the husband wholly unsustained by evidence, but reserved matter of wife’s attorney’s fees for further consideration, and by supplemental decree fixed amount thereof, from which decree plaintiff appeals.
Affirmed.
F. E. Elder, of Washington, D. C., for appellant.
R. E.. J. Whalen, of Washington, D. C., for appellees.
Before MARTIN, Chief . Justice, amp. ROBB and VAN ORSDEL, Associate Justices.
MARTIN, Chief Justice.
In the lower court Samuel N. Myers filed a petition for a divorce from his wife, Victoria Myers, upon the ground of adultery, naming Cecil D. Alley as corespondent. The wife answered, denying the charge, and by way of cross-bill charged her husband with adultery, praying for a divorce from him upon that ground. The .husband answered the- cross-bill with a denial, and the several corespondents filed similar denials. The trial court heard the testimony and granted an absolute divorce to the husband upon the ground charged in the petition, at the same time holding that the charges of the wife against her husband were wholly unsustained by the evidence.
When the cross-bill was filed, the wife presented a motion praying the court to require her husband to pay her alimony pendente lite, and also a reasonable sum for suit money, including counsel fees. The record does not directly disclose what disposition.: was made of this motion, but apparently the demand for alimony pendente lite was denied, and the determination of suit money and counsel fees was taken under advisement. The final decree contains the following statement, to wit, “It is further ordered that the matter of fees of Robert E. J. Whalen, attorney of record for the defendant in this case, together with costs, shall be in abeyance pending further consideration by the court.” Afterwards the court entered a supplemental decree, reciting the fact that theretofore the question of making proper allowance for counsel foes to the attorney of the defendant, and for expenses incident to the trial of the case, had been reserved for further consideration, and now ordering that the plaintiff should pay to the attorney of record for the defendant the sum of $500 as fees for services rendei'ed in behalf of the defendant, Victoria P. Myers, and in addition should pay the sum of $265.26 to cover the expenses incidont to her defense. The plaintiff appealed from that decree.
We find no error in the action of the lower court. Under section 975, D. C. Code, the court was authorized to require the husband to pay suit money to the wife, including counsel fees, to enable her to conduct her caso. The court did not lose that authority when it seasonably took the matter under advisement, for the cause was still pending when the supplemental decree was entered. Nor was the allowance irregular because of the fact that the husband had prevailed at the trial of the issue. The wife was entitled to present her case, and the court may compel a husband to pay counsel fees for the wife, while refusing because of her misconduct to compel the payment of alimony. Scott v. Scott, 8 Pa. Dist. R. 548; Pratz v. Pratz, 11 Pa. Co. Ct. Rep. 252; Miller v. Miller, 19 Phila. Rep. 329. The procedure adopted in the present ease was within the discretion of the court. Neither was the court’s authority affected by the fact that the wife’s defense upon the issue of adultery necessarily served as a defense of the corespondent, and that the same attorney represented both at the trial. The allowance was specifically made to the attorney because of services rendered to the wife only, and the court was able to make a proper estimate of the value of such services. There is nothing in the record to suggest a mistake, much less an abuse of discretion, upon the part of the lower court in its determination of the amount of the allowance.
It may he added that, by analogy with Eichelhorger v. Symons, 288 F. 654, 53 App. D. C. 116, the court was not entitled to impose upon the corespondent the payment of counsel fees for the wife as a party in the case.
The decree is affirmed, with costs.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_respond1_2_3
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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 organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO et al., Plaintiffs-Appellees, v. John H. NORBERG, Defendant-Appellant.
No. 79-1660.
United States Court of Appeals, First Circuit.
Argued May 5, 1980.
Decided Sept. 17, 1980.
William G. Brody, Asst. Atty. Gen., Providence, R. I., with whom Dennis J. Roberts, II, Atty. Gen., and John S. Foley, Sp. Asst. Atty. Gen., Providence, R. I., were on brief, for defendant-appellant.
Lynette Labinger, Providence, R. I., with whom Julius C. Michaelson and Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., were on brief, for plaintiffs-appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
The principal question presented by this appeal is whether the district court properly concluded that a Rhode Island statute granting a state income tax deduction for tuition, textbook and transportation expenses incurred in sending dependents to primary and secondary schools in New England contravenes the Establishment Clause of the first amendment. Although judicial responses to the complexities of modern society have transformed the once “high and impregnable” wall erected between church and state by the first amendment, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), into a “blurred, indistinct and variable barrier,” Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971), we agree with the district court’s conclusion that, if allowed to stand, the statute would form an unconstitutional bridge between church and state.
In May of 1979, Rhode Island Governor Garrahy signed an amendment to the Rhode Island income tax statute allowing as a deduction from gross income amounts paid to others for tuition, transportation and textbooks in sending dependents to public and private schools in New England. R.I.Gen.Law § 44-30-12(c)(2). The deduction was limited to five hundred dollars for each dependent enrolled in kindergarten or grades one through six and seven hundred dollars for each dependent enrolled in grades seven through twelve. The term “textbooks” included only secular instructional material and equipment. Id.
In August of 1979, a coalition of individuals and labor and civic organizations brought suit pursuant to 42 U.S.C. § 1983 alleging violation of the first amendment, as applied to the states by the fourteenth amendment, challenging the constitutionality of the statute and seeking injunctive relief against its enforcement by John H. Norberg, Tax Administrator of the State of Rhode Island. A temporary restraining order issued pending a hearing on the merits. After the hearing, the district court found the statute violative of the Establishment Clause of the first amendment and enjoined its enforcement. Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. 1364 (D.R.I.1979).
The State contends, on appeal, that the district court erred in concluding that (1) the tuition deduction had the primary effect of advancing religion; (2) the textbook and instructional materials and equipment deduction would have necessitated surveillance of the choice and use of materials selected, resulting in excessive government entanglement with religion; and (3) the transportation deduction could not be severed from the unconstitutional portions of the statute. We discuss these issues seriatim.
The Tuition Deduction
The State challenges the district court’s conclusion that the primary effect of the tuition deduction was to advance religion on two grounds. First, the State argues that the court erred in assuming that the receipt of a tax benefit by parents whose children attend sectarian schools would result in receipt of a benefit by religious schools themselves. Second, the State contends that the court erred in applying Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), to this case, asserting instead that the case is controlled by Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).
In regard to the first argument, we observe that the district court found “that the primary effect of the tuition tax deduction is the advancement of religion,” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1371 (emphasis added), not religious institutions, as implied by the State. There is no requirement in this case that the plaintiffs prove that religious schools are directly benefited by the tuition deduction. It is sufficient that the plaintiffs show that a primary effect of the tuition deduction is to confer a special benefit on the parents who choose to send their children to sectarian institutions. The law carries the rest of the plaintiffs’ burden, assuming, as a matter of common sense and experience, that conferral of a benefit for the performance of a religious act will make people more likely to continue to perform the act or to begin to perform it if they are not already doing so. The Supreme Court has stated in declaring tuition reimbursement grants for attendance at sectarian schools unconstitutional:
[I]f the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions.
Committee for Public Education v. Nyquist, 413 U.S. at 786, 93 S.Ct. at 2972. The Court made clear that conferral of similar benefits by tax device is equally unconstitutional, regardless of whether the dollars not paid in taxes ever reach the religious institution:
In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition grant allowed under § 2. The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State.
Id. at 790-91, 93 S.Ct. at 1274. By encouraging parents to send their dependents to religious institutions, the tax benefits aid the institutions themselves:
Special tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court. To the contrary, insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.
Id. at 793, 93 S.Ct. at 2975-2976.
Since the statute is facially neutral and does not speak in terms of sectarian schools, the more important question is whether the district court properly concluded that the tuition deduction had the primary effect of conferring a tax benefit on parents who send their children to sectarian schools. After reviewing the facts found by the district court, undisputed here by the State, and analyzing the facts which may properly be inferred as flowing from the Rhode Island income tax statute, we find the district court’s conclusion to be sound.
The Rhode Island income tax system, like that of some other states, piggybacks on the federal income tax system. Rhode Island taxpayers may determine their state income tax liability in either of two ways. The first method simply sets the State tax at nineteen percent of the taxpayer’s federal income tax. R.I.Gen.Law § 44-30-2(a). The second method requires reference to tax tables prepared by the State Tax Administrator. R.I.Gen.Law § 44-30-3. Use of the tax tables requires determination of the taxpayer’s “Rhode Island income,” R.I. Gen.Law § 44-30-12(a), a term describing the taxpayer’s federal adjusted gross income further adjusted by additions and deductions provided by Rhode Island law, including those at issue here. The tax tables are designed to produce a tax of not more than five dollars less, if no Rhode Island deductions are taken, than would be produced by application of the nineteen percent Rhode Island tax rate to the taxpayer’s federal income tax. The main purpose of the tax tables, however, is to allow the taking of Rhode Island deductions. Accordingly, we may infer that a person would benefit from the tuition tax deduction if the person (1) owed a federal income tax, and (2) sent one or more dependents to a qualifying primary or secondary school in New England, and (3) paid money to others for the tuition of any dependents attending qualifying schools. For practical purposes, the amount of tax benefit received by particular taxpayers would depend upon the amount of the deduction and their federal income tax bracket. In some cases, if the deduction were large enough, the taxpayer would move into a lower federal tax bracket for purposes of computing Rhode Island’s tax. The Rhode Island Budget Office estimated at the time of enactment of the statute that eligible taxpayers would receive an average tax benefit of thirty-three dollars from the deduction.
The facts found by the district court show the true color of the tuition deduction. The court found that, of the 29,387 students attending> nonpublic and tuition funded public schools in Rhode Island in 1979, ninety-four percent (27,397) attended sectarian schools. Although the district court received no evidence concerning the number of religious affiliation of students attending schools outside Rhode Island whose parents would be eligible for the Rhode Island income tax deduction, there was uncontradicted evidence that seventy — nine percent of the students enrolled in nonpublic schools in New England attend sectarian schools. From these facts, it drew the reasonable inference that “the overwhelming majority of parents eligible for the challenged tuition deduction send their children to sectarian schools.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1366. To that inference we add our conclusion that, because of the method of operation of the Rhode Island income tax statute, the tuition tax deduction would produce a tax benefit for any parent who owes a federal income tax. Given our knowledge of the broad impact of the federal income tax and since the class of parents is so large as to be very similar to the general class of federal taxpayers, we think it proper to conclude that the Rhode Island tuition deduction would confer a tax benefit along nearly solid sectarian lines. Cf. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316, 1321 (D.Minn.1978) (a nearly identical statute found to confer no tax benefit unless it moved the taxpayer into a lower tax bracket).
In discussing the State’s first argument, we have also presaged our response to the State’s contention that this case is controlled by Walz, rather than by Nyquist. We address the issue in full, however, because the State has vigorously attempted at each stage of this litigation to squeeze the tuition deduction beneath the protective umbrella of Walz.
In Walz v. Tax Commission, the Supreme Court upheld a New York City property tax exemption for places of religious worship as part of a broad category of exemptions for religious, charitable, and educational institutions. 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697. The Court reasoned that, since places of worship were exempted from property taxation only as part of a broader class of properties owned by not-for-profit institutions, the exemption created only a minimal and remote involvement between church and state. Id. at 674-76, 90 S.Ct. at 1414—15, 25 L.Ed.2d 697. The Court also noted that exemption from taxation created less governmental involvement with religion than would taxation, and that exemption perpetuated a long established relationship between church and state in the United States. Id. at 676-80, 90 S.Ct. at 1415-17, 25 L.Ed.2d 697. Walz has been used for the premise, which the State relies on here, that an exemption which results in a sectarian benefit is more likely to pass constitutional muster than the direct grant of an equivalent benefit. Relying in part on this incorrect premise and in part on the equally flawed theory that conferral of benefits on the parents of sectarian students is constitutionally distinct from conferral of the same benefit on religious institutions, supporters of religious education have attempted in recent years to use a variety of tax devices to reduce the cost of religious education. In addition to the statute at issue here, these devices have included: income tax credits for the educational costs of students enrolled in nonpublic primary and secondary schools, Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d 344 (Minn. 1974), cert. denied, 421 U.S. 988, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975); income tax credits for expenses incurred by any parent, in excess of expenses incurred by parents generally, in sending dependents to a nonpublic primary or secondary school, Kosydar v. Wolman, 353 F.Supp. 744 (S.D.Ohio 1972), aff’d sub nom. Grit v. Wolman, 413 U.S. 901, 93 S.Ct. 3062, 37 L.Ed.2d 1021 (1973); an income tax deduction of $1,000 per dependent attending a nonpublic primary or secondary school. Public Funds for Public Schools v. Byrne, 444 F.Supp. 1228 (D.N.J. 1978), aff’d, 590 F.2d 514 (3d Cir. 1979); an income tax deduction of up to $700 per dependent for expenses incurred in attending a public or private primary or secondary school, Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (D.Minn.1978); and an income tax deduction for each dependent attending a nonpublic primary or secondary school, with eligibility for the deduction starting at an income of $5,000 and with the amount of the deduction decreasing as the taxpayer’s income increased, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. Except for the one in Roemer, all of these devices have been found to contravene the Establishment Clause.
The pivotal factor in determining the constitutionality of tax devices affecting religious institutions or religious education has been the breadth of the affected class. In Walz, places of worship were only part of a broader class of nonprofit institutions. In all but one of the cases holding tax credits or deductions for educational expenses unconstitutional, the courts have found that most of the qualifying schools were sectarian. Committee for Public Education v. Nyquist, supra (85% of eligible schools sectarian); Public Funds for Public Schools v. Byrne, supra (95% of eligible schools sectarian); Kosydar v. Wolman, supra (98% of eligible schools sectarian).
In the only ease in which a tax deduction for educational expenses has been upheld, the exact nature of the benefited class never became known because the parties stipulated that “some” students whose parents were eligible for the tax benefit attended sectarian schools. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. at 1318-19 n.2. The benefited class in Roemer included, at least on the face of the statute, the parents of both public and private school students. Id. Without evidence that more than “some” of the affected students attended sectarian schools, the deduction remained safely beneath the “minimal and remote involvement” umbrella of Walz. Thus, despite the near identity of the statutes in this case and in Roemer, the district court’s finding here that the overwhelming majority of the parents eligible for the tuition deduction send their children to sectarian schools denies the tuition deduction the protection of Walz and places it, as the district court found, within the proscription of Nyquist. Absent a class having primarily secular characteristics, as found in Walz and presumed to exist in Roemer, it cannot be said that the advantages flowing from the statute to the parents of sectarian school students will be incidental to secular ends and effects, Public Funds for Public Schools v. Byrne, 590 F.2d 514, 518-19 (3d Cir. 1979), or that conferral of the benefit will not, as the district court cautioned, “greatly increase the risk of religious rancor.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1367; see also Abington School District v. Schempp, 374 U.S. 203, 259, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring).
The Textbook Deduction
Finding the textbook and instructional materials deduction “constitutionally distinct” from the textbook loan programs upheld by the Supreme Court, e. g., Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), the district court ruled the deduction unconstitutional because of its “potential for excessive entanglement between church and state.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1372. The court reasoned that the State would be obligated to ascertain that deductions were not taken for sectarian books and instructional materials and that instructional equipment was not used for sectarian purposes. The minimum surveillance required to fulfill these obligations, the court concluded, would result in excessive entanglement between church and state. On appeal, the State contends that the deduction would be taken by the parents, not by the religious institution, and that any entanglement will be between the state and the parent. The State also argues that, if the instructional materials start “as secular, nonideological and neutral, they will not change in use.” Meek v. Pittenger, 374 F.Supp. 639, 660 (E.D.Pa.1974).
Our analysis compels rejection of both arguments. We start with the premise that the State could not permit deductions to be taken for sectarian books or instructional materials, see Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), or for instructional equipment that is used for sectarian purposes, see Wolman v. Walter, supra. Compare Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973) (reimbursement to religious schools of the cost of state mandated programs held unconstitutional because of the absence of an audit procedure to guarantee secular use of funds), with committee for Public Education v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980) (successor statute, with audit procedure, upheld). We note that there is already on the books a Rhode Island statute requiring local school committees to loan science, mathematics, modern language and other approved secular textbooks to all Rhode Island schoolchildren. This, without more, gives the deduction a sectarian hue. The State’s premise, that if instructional materials are nonideological and neutral to start with they will not change in use, does not apply where the source of the materials is sectarian.
Any surveillance effort will, of course, begin with the parents who take the deductions. We think it highly unlikely, however, especially in the case of textbooks and instructional materials, that the choice of materials will be made by the parent. If only to ensure that students study proper materials and are evaluated fairly, schools will be forced to provide some guidance on the purchase of educational materials. Thus, if a dispute arises as to the religious nature of a text or instructional materials, the dispute will eventually have to be resolved between the State and the affected religious institution. If the State disallows the deduction, the question is appealable to state court, and the State will be asked to define an article of faith as a matter of law. This is precisely the kind of affirmative entanglement of church and state the first amendment prohibits. Moreover, there is also present, at least, the seeds of conflict between parents and the state as to matters of religious faith. If the State contends a written document or other material is religious in nature, a parent may deny its relation to his faith so as to remain eligible for the tax deduction. The potential for' encouragement of the denial of faith, to facilitate its practice, is a perversion of the concepts of religious liberty the first amendment embodies and protects. See Abington School District v. Schompp, 374 U.S. at 259, 83 S.Ct. at 1591.
The difficulty with this provision is not that the secular nature of the textbooks and instructional material for which deductions might be taken could not be guaranteed; it is that the involvement of church and state necessary to guarantee that result would excessively entangle church and state. See generally Surinach v. Pesquera de Busquets, 604 F.2d 73 (1st Cir. 1979). The district court correctly distinguished this case from those in which the state determines in advance of the purchase the secular nature of texts and instructional materials. We agree that continuing surveillance would be necessary to ensure that equipment which can be used for both secular and sectarian purposes, such as tape recorders and projectors, are used only for secular purposes.
The Transportation Deduction
We find no error in the district court’s conclusion that, because the transportation deduction was a minor part of the challenged statute, it could not be severed from the unconstitutional portions of the statute.
The general savings or separability clause of the Rhode Island Income Tax Act, R.I.Gen.Law § 44-30-96, was enacted prior to the adoption of the deductions at issue here. While there is a presumption of separability where such a clause exists, Sutherland on Statutory Construction § 44.09 at 351 (4th ed.), the determining factor is whether the legislature would have enacted the transportation deduction independently of the tuition and textbook deductions. See Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). This necessitates divining the legislative intent of a legislative body that keeps no record of floor debate and chose not to include a separability clause in the challenged act. The legislature could have enacted the deductions in separate sections of the same act; it chose instead to include them in the same sentence. All three deductions have the same purpose as evidenced both by their design and their effect. Moreover, as the district court found, the fiscal note to the act and the fact that the State already requires local school committees to provide free transportation to all primary and secondary students in Rhode Island indicate that the transportation deduction was perceived by the legislature as a small part of the entire bill. In effect, the only persons likely to use this deduction would have been those whose dependents attended school outside Rhode Island. Considering all these factors, we think the district court was correct in inferring an intent to allow the transportation deduction to ride with the rest of the statute. See Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217; see also Sloan v. Lemon, 413 U.S. 825, 833-34, 93 S.Ct. 2982, 2987, 37 L.Ed.2d 939 (1973).
Affirmed.
. R.I.Gen.Law § 44-30-1 et seq.
. R.I.Gen.Law § 44-30-12(c)(2) provides:
(c) Modifications Reducing Federal Adjusted Gross Income.-There shall be subtracted from federal adjusted gross income ...
(2) amounts paid to others, not to exceed five hundred ($500) dollars for each dependent in kindergarten through sixth grade and seven hundred ($700) dollars for each dependent in grades seven through twelve inclusive, for tuition, textbooks, and transportation of each dependent attending an elementary or secondary school situated in Rhode Island, Massachusetts, Connecticut, Vermont, New Hampshire, or Maine, wherein a resident of this state may legally fulfill the state’s compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964. As used in this section, “textbooks” shall mean and include books and other instructional materials and equipment used in elementary and secondary schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines, or worship, the purpose of which is to inculcate such tenets, doctrines or worship.
. For the 1978-79 school year, the average annual tuition nationwide in Catholic schools was $250 in primary schools and $700 in secondary schools. Comeback in Catholic Schools, U. S. News & World Rep., Mar. 20, 1978, at 54 quoted in Note, Government Neutrality and Separation of Church and State: Tuition Tax Credits, 92 Harv.L.Rev. 696, 701 n.30 (1979).
. The first amendment provides in relevant part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof!.]
. Only expenses incurred in sending dependents to nonprofit institutions which satisfy Rhode Island’s compulsory attendant laws, and which comply with the antidiscrimination provisions of the Civil Rights Act of 1964, qualify for the deduction. R.I.Gen.Law § 44-30-12(c)(2).
. For example, the Joneses, a family of four persons, has a federal adjusted gross income of $12,000. Using their standard personal exemptions, their federal taxable income is $8,000 and their tax is $702 (1979 Tax Rate Schedule). Their Rhode Island income tax would be $133.38 (.19 X $702). If the Jones family sends both children to a qualifying secondary school and incurs $700 in expenses for each, the deduction of $1,400 would reduce their Rhode Island income to $6,600. Since the Rhode Island tax tables are calculated to produce a tax of not more than five dollars less than would be produced by application of the nineteen percent rate of tax to the taxpayer’s federal income tax, the Jones’ savings flow, in effect, from operation of the changes of brackets and rates in the federal tax system. Thus, not only is their taxable income reduced by $1,400, but their effective marginal federal tax rate is reduced from 18% to 16% (1979 Tax Rate Schedule). Their Rhode Island tax would be $89.30 (.19 X $470), a saving of approximately forty-four dollars.
. See Abington School District v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963) (Douglas, J., concurring); “What may not be done directly may not be done indirectly lest the Establishment Clause become a mockery.”
. In Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d 344 (Minn. 1974), cert. denied, 421 U.S. 988, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975), the court found no facts relating to the composition of the affected class. Instead, the court interpreted the primary effects test of Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), to be, in fact, an “any effects” test. Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d at 353. This application of strict neutrality theory resulted in a finding of unconstitutionality. See generally L. Tribe, American Constitutional Law § 14-4 at 821 (1978). A subsequent attempt by the same plaintiffs to rely on the same theory in challenging another portion of the same statute in federal court failed for lack of a showing of primary effect. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (D.Minn.1978).
. R.I.Gen.Law § 16-23-2.
. A fiscal note is the legislature’s estimate of the cost of implementing the bill and is part of the legislation.
. R.I.Gen.Law § 16-21-1 et seq.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
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songer_trialpro
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
GAY GAMES, INC., v. SMITH.
No. 8068.
Circuit Court of Appeals, Seventh Circuit.
Jan. 28, 1943.
Rehearing Denied Feb. 20, 1943.
Walter E. Barton, of Washington, D. C. (George G. Rinier, of Indianapolis, Ind., of counsel), for appellant.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, John E. Garvey, and J. Louis Monarch, Sp. Assts. to the Atty. Gen., and B. Howard Caughran, United States Atty.,-of Indianapolis, Ind., for appellee.
Before EVANS, KERNER, and MIN-TON, Circuit Judges.
EVANS, Circuit Judge.
To recover a refund of manufacturer’s excise tax of $52,779.45, and interest, paid by plaintiff, from February 1, 1936, to July 31, 1938, to the defendant, this suit was brought. Trial was before a master, and later before the District Court, both of whom found for the defendant.
In the final analysis, the controversy narrows itself to a single issue, to-wit: Did plaintiff include the taxes it admittedly paid to the defendant, in the price of the article it sold to its customers? A better statement of the specific question upon which the foregoing issue turns, is this: Does the evidence support the finding of the District Court that plaintiff failed to establish the necessary fact that it did not include the taxes in its cost price to its customers ?
That plaintiff paid the taxes, assessed under Section 609 of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 612, is admitted. TKe amount thus paid is not in dispute. The nonapplicability of the tax to plaintiff’s product is not here questioned. Plaintiff’s right to recover under Sec. 3443 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code § 3443 is, by the undisputed evidence, confined to one issue — sufficiency of plaintiff’s proof that it did not include the tax in the price of the article when it sold the same to its customers.
The credit and refund section pertinent to this controversy reads: “No overpayment of tax under this chapter shall be credited or refunded * * * unless the person who paid the tax establishes * * * that he has not included the tax in the price of the article with respect to which it was imposed, or collected the amount of tax from the vendee. * * * ”
Plaintiff argues that its proof affirmatively and conclusively shows that it did not include the taxes in its sales price when selling its product. It also contends that the master, who tried the issues and saw the witnesses, made specific findings which now make any other conclusion impossible. It finally contends that the court necessarily avoided or refused to follow these specific findings, or, in effect, rejected them in its more general findings and conclusions, which can not be reconciled with the master’s specific findings. This was contrary to Rule 53(e) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
In weighing this contention and examining the findings of both the master and the court, it is noticeable that the findings of the master are much more voluminous and detailed than those of the court. It was the practice of Master Ward to state in detail the evidence on which fact issues were based and then give his reasons for the findings he made. He also divided ultimate fact findings into evidentiary findings upon which his ultimate findings of fact depended. Such a practice is at times highly advantageous and helpful. The trial court, however, is not required to pursue the same order or go into the same detail in its findings. The Rules of Civil Procedure (Rule 52) do not require the court to do more than to cover the ultimate fact issues. This, Judge Baltzell did. His findings are complete, although they are only one-fourth the length of the document called findings of the master, but which include, as before stated, a statement and discussion of the evidence.
While plaintiff presented evidence of its sales before and after it ceased billing the tax as a separate item, and charts of its transactions from which it rather persuasively argues that it did not include the taxes in its sales price, this evidence does not conclusively tell the whole story. Defendant presents equally persuasive testimony showing plaintiff’s price lists of April, 1935, and November, 1935. It was between these two dates that plaintiff changed its policy from one of treating the tax as a separate item and one “for the convenience of our customers in computing prices on orders” which did not set forth the excise tax separately. These price lists on certain cards (plaintiff’s business was making and selling baseball tally cards, tip cards, and jackpot tip cards, etc.) are here stated, taking two illustrations.
April, 1935 — 1 card 50^ — 6 cards $2.75— 1 dozen cards $5.
On Nov. 20th, 1935, when the change in its practice in re excise tax went into effect, the same cards were listed:
1 card 55‡ — 6 cards $3.00 — 12 cards $5.-50.
“Football 29 tally cards” were quoted in the April 1, 1935 price list, to which 10% tax was to be added, as follows:
$1.25 per dozen — $6. per six dozen — $11 per gross.
On November 20, 1935, when the price list' relieving the purchaser from paying any tax, was quoted, the prices were raised as follows:
$1.35 per dozen — $6.60 per six dozen— $12 per gross. .
This evidence strongly supports the court’s finding. It makes impossible a holding by us that the proof conclusively established that plaintiff did not include the tax in the price at which the article was sold.
Left only for consideration is plaintiff’s contention that the master’s specific fact findings support its position, and the court was required to accept them. Our construction of the findings leaves no dispute or conflict between them. In other words, we reject plaintiff’s construction, and the effect, of the master’s specific findings referred to by plaintiff.
The judgment is affirmed.
The master’s general findings and conclusions were against the plaintiff, but appellant argues that these findings were inconsistent with the master’s more specific findings on evidentiary but determinative issues.
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_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Theodore H. CASE, Individually and as Co-Executor of the Estate of Natalie C. Case, Deceased, Hart B. Morrison and Margaret M. Morrison, Plaintiffs-Ap-pellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
Nos. 78-3330 to 78-3333.
United States Court of Appeals, Sixth Circuit.
Argued June 18, 1980.
Decided Oct. 30, 1980.
Rehearing Denied Dec. 5, 1980.
James R. Williams, U. S. Atty., James C. Lynch, Asst. U. S. Atty., Cleveland, Ohio, David J. Curtin, M. Carr Ferguson, Gilbert Andrews, Mike Paup, Gilbert S. Rothen-berg, Tax Div., Appellate Section Dept, of Justice, Washington, D. C., for defendant-appellant, cross-appellee.
Paul A. Weick, Weick & Gibson Co., L. P. A., Cuyahoga Falls, Ohio, for plaintiffs-ap-pellees, cross-appellants in Nos. 78-3330 and 78-3331.
John Kennedy Lynch, Cleveland, Ohio, for plaintiffs-appellees, cross-appellants in Nos. 78-3332 and 78-3333.
Before ENGEL, KEITH, and BOYCE F. MARTIN, Jr., Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
This controversy involves two taxpayers’ suits for refunds of federal income tax paid for the year 1970. Both the United States and the taxpayers have brought appeals from the judgment of the District Court.
We must determine whether gains realized from the disposition of certain real estate should be characterized as long-term capital gain, short-term capital gain, or ordinary income.
I. The Facts
On June 1, 1969, taxpayers Morrison and Case formed a partnership. Their purpose was the acquisition of real estate near Geneva, Ohio, in an area adjacent to Lake Erie and Geneva State Park. Long-range plans included transfer of the properties purchased to a corporation, which the taxpayers would form to develop and sell residential units and a recreational complex. An alternate possibility was resale of the properties in bulk to another, larger developer. Taxpayer Morrison had many years experience marketing real estate in Ohio; taxpayer Case was president of the local telephone company and well-qualified to handle arrangements for bringing utilities to the proposed project.
The partnership’s first purchase was a 3.8 acre tract located on the shore of Lake Erie near the Geneva State Park boundary. “The Behner property” contained about a dozen summer cottages. By declaration of trust dated June 27, 1969 and a warranty deed of June 30, 1969, Herbert and Nona Behner conveyed the property to the Northeastern Ohio National Bank as trustee for beneficiaries Morrison and Case and their wives. The price was $72,800, which the conveyors received from the bank.
The second acquisition was the “Johnson property,” an 8.2 acre tract containing several cottages and a few permanent homes. It was located west of the Behner property. On February 16, 1970, Morrison and Case contracted to purchase the property from George and Catherine Johnson for a price of $150,000. The taxpayers made a $2,000 down payment and agreed to pay an additional $18,000 on or before July 15, 1970. The balance of $130,000 was due on or before January 15, 1971. The contract provided 1) that title would not be transferred until the purchase price was paid in full; 2) that the taxpayers would obtain possession sixty days after the transfer of title; 3) that in lieu of interest on the deferred payments, the Johnsons would receive all rents and profits from the property until passage of title; and 4) that taxes, assessments and insurance would be prorated between the parties as of the date of transfer.
On March 15, 1970, the taxpayers acquired a third tract from Jack and Inez Nightwine. The Nightwine property adjoined the Johnson property and also contained summer cottages. The partnership obtained, for $64,456.95, the Nightwines’ rights under a 1969 purchase contract. Toward that sum, the taxpayers paid $500 on July 20, 1970 and $15,500 on October 15, 1970. They received immediate possession and assumed responsibility for all taxes and assessments.
Morrison, acting individually, contracted to purchase a fourth parcel of land on January 15, 1970. The 162-acre tract had been owned since 1965 by the “B’tawn Beach Club” partnership, consisting of taxpayer Case and his three brothers. Case did not participate in Morrison’s purchase of the B’tawn property, apparently because he wished to avoid a conflict of interest.
The B’tawn contract provided for a total price of $425,000, to be allocated among a $10,000 down payment, a payment of $290,-000 due on or before December 1, 1970 and a final payment of $125,000 to be made on or before December 31, 1970. Morrison did not, however, adhere to these terms. Instead, upon execution of the contract, he gave the B’tawn partnership a promissory note for $10,000; he did not make payment on the note until November 23, 1970. The B’tawn contract provisions governing deferred passage of title and possession were very similar to those contained in the Johnson contract.
The record indicates that the taxpayers attempted to acquire other property contiguous with the four tracts described above. Mr. Case testified, “you can’t sell to some development company in New York and Chicago and have little spots here and little spots there that are missing.” At the same time, however, the taxpayers explored the possibility of developing the property themselves; tentative plans called for the formation of a corporation to be financed by outside investors. Toward this end, they engaged an artist to prepare preliminary sketches of the proposed “Shoreland Acres,” consulted an engineer, and opened negotiations with utility companies for the provision of services to the project.
On September 22, 1970, the State of Ohio announced that the United States Department of the Interior had approved expenditures of up to $1.5 million for the expansion of nearby Geneva State Park. Shortly thereafter, the taxpayers received notice of the State’s intention to acquire the Behner, Johnson, Nightwine, and B’tawn tracts. We outline, briefly, the transactions which followed this notice of condemnation.
On November 27, 1970, the taxpayers instructed the Northeastern Ohio National Bank, as trustee, to grant the State of Ohio a thirty-day option to purchase the Behner property for $175,000. The State exercised this option and on December 7, 1970, the bank transferred title to the State. On December 29, 1970, the State issued a warrant to the bank in the amount of $175,000. The bank discharged the deed of trust on the property and paid the remainder of the $175,000 to the taxpayers.
On November 27, 1970, the taxpayers granted the State a similar option to purchase the Johnson property for $334,000. The State exercised this option on the date it was granted. On December 7, 1970, the Johnsons deeded the property to the taxpayers, who, in turn, transferred title to the State on December 11, 1970. Upon receipt of $334,000 from the State, the taxpayers paid the Johnsons the approximately $110,-000 still owning on the original purchase agreement.
Also on November 27,1970, the taxpayers granted the State an option to purchase the Nightwine property for $139,000. This sale was completed on December 11, 1970, whereupon the taxpayers paid the Night-wines the remaining balance due of $48,-457.
Morrison handled the sale of the B’tawn property in a somewhat different fashion. On December 4, 1970, the B’tawn Beach Club partnership conveyed title of the property to Howard Nazor as trustee for Morrison. Nazor was instructed not to convey title to Morrison until the latter paid the balance of $415,000 due on the original $425,000 price. The deed of trust was recorded December 11, 1970. On December 16, 1970, Nazor, as trustee for Morrison, granted an option to the State to purchase the B’tawn tract for $565,000. On December 17, before the B’tawn Beach Club partnership had received further payment from Morrison, Nazor conveyed both legal and equitable title to the state of Ohio. On December 29, 1970, the State issued a warrant for $565,000 to Nazor, who proceeded to pay the B’tawn Beach Club partnership the balance due on the original contract. He then distributed the remainder to Morrison.
The following chart summarizes the important points in the taxpayers’ real estate transactions:
II. The Controversy
In their respective income tax returns for 1970, Morrison and Case reported the gains realized from the sales of their properties as long-term capital gains. In the course of an audit, the Internal Revenue Service decided that the gains should have been reported as ordinary income. Accordingly, the Service assessed tax deficiencies against Morrison in the amount of $93,094.62 plus interest, and against Case in the amount of $53,080.56 plus interest. Each taxpayer paid his deficiency in full and filed a timely claim for refund. The Service denied both claims and Morrison and Case initiated separate actions in District Court.
Before the two suits were consolidated the United States filed a motion for partial summary judgment against Morrison. It contended that he had held, for tax purposes, the Johnson and B’tawn properties for less than six months; even if he were entitled to report his gains on the sale of these tracts as capital gains, those gains would be taxable on a short-term rather than a long-term basis. In support of its motion, the United States pointed out that Morrison’s tax liability under a short-term capital gain theory would be identical to his liability if the gains were characterized as ordinary income.
The District Court concluded that Morrison had, in fact, held the Johnson property for less than six months; to that extent, it granted the government’s motion for summary judgment. Morrison v. United States, 449 F.Supp. 654 (N.D.Ohio 1977). The Court declined to rule on the appropriate treatment of Morrison’s gain from the sale of the B’tawn property until it heard further evidence.
After trial, for which Morrison’s and Case’s suits were consolidated, the District Court ruled that the taxpayers’ sales of all four tracts generated capital gain and not ordinary income. Morrison v. United States, 449 F.Supp. 663 (N.D.Ohio 1977). The Court’s reasoning can be summarized as follows: on September 22, 1970, when Morrison and Case received formal notice of the state’s intention to acquire their properties, the taxpayers held their real estate for sale in the ordinary course of business; at the time of the actual sales to the state, however, the taxpayers held the properties for investment purposes and therefore realized gain on the disposition of capital assets.
In its discussion of the six-month holding period required for long-term capital gain taxation, the Court ruled that Case’s gain on the sale of the Johnson tract and Morrison’s gain on the sale of the B’tawn property failed to qualify as “long-term” and were, therefore, subject to “short-term” tax treatment. According to the Court, the taxpayers neither assumed the burdens nor enjoyed the benefits of ownership of these two properties until they actually obtained title to them. As noted above, this event did not take place until a few days before title was conveyed to the State.
The government did not contest that the taxpayers had held the Behner and Night-wine tracts for more than six months. Accordingly, the Court found that the gain realized on the sale of these properties was long-term capital gain and that the taxpayers were entitled to a partial refund.
We believe that the District Court achieved the correct result insofar as it determined the amount of tax Morrison and Case ultimately had to pay. However, we have profound misgivings about the rationale underlying the decision below.
III. The Issue on Appeal
On appeal, the government contends that the taxpayers held their properties “for sale to customers in the ordinary course of business.” If this position is correct, the taxpayers should have reported their gain from the disposition of the properties as ordinary income.
Section 1202 of the Internal Revenue Code (26 U.S.C.) provides preferential tax treatment for long-term capital gain. During the tax year 1970, Section 1222(3) defined long-term capital gain as gain derived from the sale of a “capital asset” held for more than six months. Section 1221(1) offers a negative definition of “capital asset”: it is property which does not fall within certain enumerated categories, among them “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade of business.”
The taxpayers, of course, maintain that none of the exceptions set out in Section 1221(1)- apply to the four tracts of real estate described earlier. If they are correct, then their properties were, by definition, capital assets. Furthermore, argue the taxpayers, for purposes of federal taxation, they “held” all four properties for more than six months and were therefore entitled to report their gains as long-term capital gains.
In our review, we adhere to the rule that the preferential capital gains provisions in the tax code are to be narrowly construed. Corn Products v. Commissioner, 350 U.S. 46, 52, 76 S.Ct. 20, 24, 100 L.Ed. 29 (1955); Omer v. United States, 329 F.2d 393, 395 (6th Cir. 1964). In consequence, the taxpayers must overcome a heavy burden of proof in order to prevail.
IV. The Standard of Judicial Review
The government contends that we need not confine ourselves to a “clearly erroneous” standard of review in this case. In support of its position, it cites Third, Fourth, and Fifth Circuit decisions which indicate that the determination of whether the taxpayers held their properties “for sale in the ordinary course of business” is one of law, or “ultimate fact.” Jersey Land and Development Corp. v. United States, 539 F.2d 311, 315 (3rd Cir. 1976); Turner v. Commissioner, 540 F.2d 1249, 1252 (4th Cir. 1976); Biedenharn Realty Co. v. United States, 526 F.2d 409, 416 (5th Cir. 1976). This characterization of the issue, in effect, permits an appellate court to re-examine the evidence without giving customary deference to the original findings of the trial court.
The authorities cited by the government are undoubtedly well-reasoned; however, we are resolved to adhere to the principles expressed in Philhall v. United States, 546 F.2d 210, 214 (6th Cir. 1976), and, most recently, in Gartrell v. United States, 619 F.2d 1150 (6th Cir. 1980). We held in those cases that the determination of whether property is held “primarily for sale” depends entirely upon judicial ascertainment of the taxpayer’s intent. It is, therefore, an ordinary issue of fact, subject to reversal on appeal only if we believe the District Court’s findings were “clearly erroneous.”
V. Review of Authorities
The District Court found: 1) that the taxpayers held their properties primarily for sale to customers in the ordinary course of business; 2) that the threat of condemnation changed this purpose; but 3) that the taxpayers held the Johnson and B’tawn tracts for an insufficient period of time to qualify for long-term capital gains treatment.
The taxpayers maintain: 1) that there was no evidence to support the District Court’s first finding; 2) that the threat of condemnation confirmed the “capital” nature of their gains from sale of the properties; and 3) that they held the Johnson and B’tawn tracts for more than six months. They offer several arguments in support of the third assertion: first, that Ohio law of equitable conversion substantiates their claim to a sufficient holding period; second, that they obtained the “benefits and burdens of ownership” more than six months prior to the state’s purchases; and third, that the purchase contracts gave them “options” within the meaning of Section 1234(a) of the Code.
A. The purpose for which the taxpayers held their properties.
In Matthews v. Commissioner, 315 F.2d 101, 107 (6th Cir. 1963), we enumerated eight factors to consider .in deciding whether property is held “primarily for sale.” They are: 1) the purpose for which the property was acquired; 2) the purpose for which the property was held; 3) the extent of improvements made to the property; 4) the frequency, number, and continuity of sales; 5) the nature and substantiality of the transactions; 6) the nature and extent of the taxpayer’s dealings in similar property; 7) the extent of advertising to promote sales; and 8) whether or not the property was listed for sale either directly or through brokers. See also Broughton v. Commissioner, 333 F.2d 492, 495 (6th Cir. 1964); Gartrell v. United States, supra at 1155-56.
In this case, the taxpayers testified that they acquired the properties in order to “hold ... and develop” them. As we have already noted, they hoped to transfer the properties to a corporation, to be financed and fifty percent owned by two outside investors. The government, in its argument, emphasizes repeatedly that this plan to transfer the real estate to a corporation at costs negates any investment motive on the taxpayers’ part. This interpretation ignores that aspect of the proposed transfer which represents, quite simply, sound tax planning. Transfer of the properties at cost instead of at an appreciated figure would have the effect of postponing recognition of a taxable gain. That the taxpayers intended to use this legitimate means of avoiding an imminent tax scarcely obviates the possibility that they did, in fact, regard their properties as an investment.
Furthermore, the taxpayers did not make improvements to any of the properties; they merely maintained them in their existing condition. The properties were neither advertised nor listed for sale, and no sales in fact occurred until the state issued its condemnation notices.
The District Court was impressed with Morrison’s considerable experience in marketing Ohio real estate; it apparently inferred from his background that he was holding these particular properties primarily for sale. The government introduced no evidence whatsoever to support such a finding-a significant omission, since the Code specifically contemplates that dealers may segregate certain transactions in property similar to their stock in trade in order to qualify for capital gains tax treatment. 26 U.S.C. § 1236(a). Buono v. Commissioner, 74 T.C. No. 15, 1980 Tax Ct.Rep., Dec. 36,-925; Boykin v. Commissioner, 344 F.2d 889, 894 n. 8 (5th Cir. 1975).
In light of tne foregoing observations, we are constrained to hold that there was insufficient evidence to support the District Court’s conclusion that the taxpayers’ properties were held “primarily for sale.” Cf. Appeal of Bush, 610 F.2d 426 (6th Cir. 1979).
B. The effect of the threat of condemnation.
The District Court found that the taxpayers changed their purpose in holding the properties; under threat of condemnation, they became investors holding capital assets. The .Court based its decision on Ridgewood Land Co., Inc. v. Commissioner, 477 F.2d 135 (5th Cir. 1973); Commissioner v. Tri-S Corp., 400 F.2d 862 (10th Cir. 1968); and a Tax Court case, later reversed as Juleo, Inc. v. Commissioner, 483 F.2d 47 (3rd Cir. 1973).
Our reversal of the District Court’s ruling that the taxpayers initially held their property “primarily for sale” eliminates the need to consider the effect of the condemnation notice on these particular litigants. In view of the approach taken below, however, we wish to clarify our position on the legal issue lest this case engender confusion in future cases before the courts of this Circuit.
We agree with the Third Circuit’s rationale for reversing the Tax Court in Juleo, Inc., supra; as a corollary, we reject the suggestion that, for federal tax purposes, mere receipt of a condemnation notice automatically transforms property held “primarily for sale” into investment property. As the government notes in its brief, any property owner who receives a notice of condemnation presumably abandons whatever plans he originally entertained in favor of a new, albeit temporary, reason for holding the condemned property. Common sense application of established tax principles mitigates against giving this circumstance conclusive effect. Except as specifically provided by statute, cf. 26 U.S.C. § 1033, we decline to determine the tax consequences of a sale solely on the strength of a finding that the sale was involuntary.
Ordinarily, the characterization of an asset as “capital” or “non-capital” requires an analysis of several factors; the preceding section of this opinion illustrates just such an exercise. The addition of a condemnation notice to this calculus merely injects one more element to be considered; it does not eliminate the calculus altogether.
C. Whether the taxpayers held the B’tawn and Johnson properties for the six-month period prerequisite to preferential long-term capital gain treatment.
On appeal, the taxpayers argue that the District Court erred in concluding that gains realized on the sale of the B’tawn and Johnson properties were ineligible for taxation at the long-term capital gain rate.
They argue, first, that Ohio law of equitable conversion substantiates their claim to a sufficient holding period. Generally speaking, “State law determines what property rights and interests a taxpayer has, but federal law determines the consequences of such rights and interests for tax purposes.” Coin am v. Commissioner, 263 F.2d 119 (5th Cir. 1959).
The state law argument can be summarized as follows: in Ohio, the principle of equitable conversion invested the taxpayers with an equitable interest in the two properties. We are asked to treat this equitable interest as a capital asset which, when sold, yielded capital gains. The taxpayers assert that they obtained this equitable interest at the time they signed the purchase contracts for the two tracts, more than six months prior to disposition of the properties.
This argument is undoubtedly ingenious; however, Ohio case law does not support its application to the present facts. We quote from Sanford v. Breidenbach, 111 Ohio App. 474, 173 N.E.2d 702 (1960): “Equitable conversion does become effective in those cases in which the vendor has fulfilled all conditions and is entitled to enforce specific performance, and the parties, by their contract, intend that title shall pass upon the signing of the contract of purchase.” (Emphasis added.)
The B’tawn and Johnson contracts, described in Part I of this opinion, clearly intended no such result; on the contrary, the sellers specifically reserved title to the property until they received payment in full. Since payment took place only days before disposition of the properties, the taxpayers’ reliance on the principle of equitable conversion is misplaced.
In the alternative, the taxpayers advance the “practical” test announced by this Court in Commissioner v. Baertschi, 412 F.2d 494 (6th Cir. 1969); and Dettmers v. Commissioner, 430 F.2d 1019 (6th Cir. 1970). In those cases we held that “ownership of real property is acquired either upon delivery ... of the deed or upon transfer of the benefits and burdens of ownership, whichever occurs first.” Dettmers, supra at 1023. The taxpayers point to the fact that they maintained the properties and, in the case of the Johnson tract, applied rental income to offset the interest owed the Johnsons; from this, they ask us to infer “benefits and burdens of ownership” of a character sufficient to sustain a favorable ruling. Again, however, the purchase contracts are clear. Virtually all the “benefits and burdens of ownership” remained in the vendors until the purchase price was fully paid.
Finally, the taxpayers contend that the purchase contracts created options to buy. 26 U.S.C. § 1234(a) accords gains or losses from “privileges ■ or options to buy” the same tax treatment as the property subject to those options. Inasmuch as the properties themselves would have been capital assets in the taxpayers hands, they urge us to treat these “options” as we would treat the underlying properties. The “options” the taxpayers claim to possess would, of course, date back to the signing of the purchase contracts.
Our review of the meaning of an “option” for purposes of Section 1234 convinces us that the taxpayers did not, in fact, possess “options” within the meaning of the statute. What they did possess were bilateral contract rights, to which Section 1234 does not, by its terms, apply. In a scholarly analysis of this issue, the Court of Claims examined the language, legislative history, and Revenue Rulings pertinent to Section 1234; it concluded that an “option” is, for purposes of the statute, a very narrow concept. United States Freight Co. v. United States, 422 F.2d 887, 894-5, 190 Ct.Cl. 725 (1970). We agree, and affirm the District Court’s decision against the taxpayers’ claim to a six-month holding period.
VI. Conclusion
As we have already noted, this opinion modifies the rationale but not the actual result of the trial court’s decision. The District Court’s order directing the government to issue the taxpayers a partial refund of federal income taxes, is therefore, affirmed.
. The District Court’s approach is logically inconsistent with the treatment the tax laws accord judicially enforceable payments in general, and condemnation proceeds in particular. Thus, amounts received in settlement of a claim for lost profits are taxable as the profits would have been taxed, as ordinary income. Raytheon Production Corp. v. Commissioner, 144 F.2d 110 (1st Cir.), cert. denied, 323 U.S. 779, 65 S.Ct. 192, 89 L.Ed. 622 (1944). If the claim is for damage to a capital asset, the amount received in settlement is treated as a return of capital, taxable at capital gain rates if the recovery exceeds the asset’s basis. Farmers & Merchants Bank v. Commissioner, 59 F.2d 912 (6th Cir. 1932).
With respect to condemnation proceeds, the Code envisions the possibility of ordinary income treatment of gain realized on condemnation of inventory. Section 1231(a) provides in part for capital gain treatment of gains recognized upon condemnation of “property used in the trade or business.” Section 1231(b)(1)(B), which defines such property, however, provides as well that real estate which is held primarily for sale cannot qualify for capital gain under Section 1231.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
In re SMITH. MILLER v. EHRLICH.
Circuit Court of Appeals, Second Circuit.
December 2, 1929.
No. 171.
George M. Glassgold, of New York City (Arthur Miller, of New York City, of counsel), for appellant.
Abraham J. Halprin, of New York City (Irving Barry, of Brooklyn. N. Y., of counsel), for appellee.
Before MANTON, AUGUSTUS N HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The bankrupt, Isaac Smith, was the sole stockholder of the Israh Building Corporation. At the time the petition in bankruptcy was filed, the corporation owned certain real property in New York City, which was sold shortly after Smith’s bankruptcy. The net proceeds of sale, amounting to $1,676.07, were turned over to the trustee in bankruptcy upon the theory that these moneys were general assets of the insolvent estate, because the bankrupt was the equitable owner of all the property of the corporation. Prior to the bankruptcy the claimant, Miller, drew plans for a building to be erected on the property belonging to the corporation and filed them 'with the building department of the city of New York. These plans were rejected, whereupon he drew another set of plans, which were filed thereafter. The plans were ordered by Smith, who was at the time the president of the corporation. Miller filed the usual architect’s affidavit with the building department, in which he made application on “behalf of Isaac Smith, owner, *. * * for the approval of such * * * plans.” This affidavit was accompanied by an application signed by Smith himself, in which he swore that he was the owner of the premises on which the building was to be erected. Miller testified that he was informed by Smith that the latter was the president of the corporation and that the corporation owned the property.
After the bankruptcy occurred, Miller filed no proof of claim against the bankrupt estate and took no steps to obtain his pay (except by filing a mechanic’s lien just before the sale of the land) until about a year afterwards, when he sued the corporation in the Municipal Court and obtained a judgment by default for $1,135 for his alleged services to the latter. Execution was issued to a city marshal and returned unsatisfied. Thereupon Miller petitioned the bankruptcy court for payment of this judgment to the marshal out of the proceeds of sale of corporate property in the hands of the trustee.
The referee held that Miller’s claim, against the corporation was an afterthought that he contracted solely with Smith, and never looked to the corporation until he found the former was insolvent and could not pay him. He accordingly dismissed the claim, and the District Judge affirmed the order of the referee.
It is manifest that the court below proceeded upon a wrong theory. It could not question the validity of the judgment obtained by Miller against the Israh Building Corporation. If the trustee wished to avoid the effeet of that judgment, he doubtless might as sole stockholder set machinery in motion to require the corporation to apply to the state court to open its default, and thus attempt to defeat Miller’s claim. He took no such step, but relied on testimony which he thought indicated that Miller contracted only with Isaac Smith as an individual. As long as the judgment stood, it conclusively established Miller’s claim against the corporation, and all evidence that he did not contract with it was incompetent. In re Howard (C. C. A.) 135 F. 721.
Thus we have a ease where corporate funds were turned over to the trustee in bankruptcy as sole owner of the corporate stock, though the indebtedness of the corporation to Miller was outstanding and unsatisfied. Such a transfer, even though made to a trustee, who did not know of Miller’s claim, was, under familiar principles, void against creditors of the corporation. It is manifest that the proceeds of corporate property cannot”be treated as assets of the bankrupt estate to the prejudice of Miller. It makes no difference whether a corpora^ tion having no creditors might distribute its property to its sole stockholder. At least to the extent of Miller’s judgment the property under consideration here was subject to the payment of his claim. Consequently the trustee cannot distribute the proceeds of the Israh Building Corporation among the creditors of the bankrupt estate, or use them for general expenses, except so far as they may exceed the amount of corporate creditors. This being so, the question remains as to the proper disposition of the funds in the hands of the trustee in bankruptcy.
Under section 679 of the Civil Practice Act of the state of New York an execution creditor subjects the goods and chattels of his judgment debtor to levy by virtue of the execution from the time of its delivery to the proper officer to be executed. Home Bank v. Brewster & Co., 15 App. Div. 338, 44 N. Y. S. 54. , But such an inchoate lien is only imposed upon tangibles, and not upon ehoses in action. McNeeley v. Welz, 166 N. Y. 124, 59 N. E. 697. Accordingly the mere issuance of the execution imposed no lien on behalf of Miller upon the moneys standing to the credit of the trustee in bankruptcy. Some further suit or proceeding in aid of the execution was necessary under the New York statutes to reach and apply these assets.
Section 792 of the New York Civil Practice Act empowers the judge of the state court, who has granted an order for examination in supplementary proceedings, to make an order upon such notice as he deems best, or, without notice, “permitting” the person indebted to the judgment debtor to pay to a sheriff designated in the order a sum on account of the alleged indebtedness not exceeding the sum which will satisfy the execution. An order for examination in supplementary proceedings was apparently made by the state court after the return of Miller’s execution unsatisfied. The further steps to be taken would not seem to be difficult in such a situation.
While it is necessary for the bankruptcy court, as well as the state court, to authorize the payment before it can be actually made under section 792, supra, yet if the state court order is obtained, and the execution is thus extended to the proceeds of sale of the corporate real estate, except for the bar caused by the possession of the fund by the bankruptcy court, that bar should be at once removed. The transfer of corporate funds from the corporation to the trustee in bankruptcy, which confessedly was without consideration, may properly be treated as constituting a debt from the trustee to the judgment debtor corporation, so as to subject it to levy under section 792 with the consent of the bankruptcy court.
Another less simple method of reaching the proceeds in the hands of the trustee would be through a receiver of the corporation appointed in an action in the state court for a sequestration of its property brought under section 100 et seq. of the General Corporation Law of New York (Consol. Laws, c. 23). This way would seem to be unnecessarily cumbersome, unless there are creditors of the corporation other than Miller who ought to share in its assets.
If it is shown to the District Court that there are no creditors of the corporation, other than Miller, perhaps a simpler procedure would be an order of the District Court, made on the consent of the trustee and the corporation, for the payment by the trustee to the city marshal of the amount of Miller’s judgment.
The trustee in bankruptcy should be directed to hold the proceeds of sale of the corporate real estate which are' in his hands pending a further application by Miller, or by a receiver of the Israh Building Corporation in sequestration, for distribution of the same. The time within which such application shall be made should be fixed by the United States District Court in bankruptcy.
Accordingly the petition of Miller is dismissed, without prejudice to a further application by Miller, or a receiver in sequestration, to reach and apply the proceeds of sale of the Israh Building Corporation which are in the hands of the trustee.
The order, as modified in accordance with the views expressed in this opinion, is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
|
songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
ALEXANDER SMITH & SONS CARPET CO. v. HERRICK et al.
No. 454.
Circuit Court of Appeals, Second Circuit.
July 13, 1936.
Burlingame, Nourse & Pettit, of New York City, and William J. Wallin, of Yonkers, N. Y. (Arthur E. Pettit, of New York City, of counsel), for appellant.
Charles Fahy, Gen. Counsel, National Labor Relations Board, and Robert B. Watts, Associate Gen. Counsel, both of Washington, D. C., and Robert S. Erdahl, for appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
Appellant is a carpet manufacturer with its sole manufacturing plant in Yonkers, N. Y., to which raw materials are shipped from outside New York State and from which appellant ships some finished products to customers outside New York State. The prayer in this suit is that appellees be enjoined from enforcement of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.) against the plaintiff, and from the further prosecution of, or the holding of hearings on, a complaint charging plaintiff with engaging in unfair labor practices affecting commerce within section 8 (1-3) of the act (29 U.S.C.A. § 158 (1-3) by discharging employees for union activity and by coercing employees in their selection of representatives for collective bargaining. Some of the employees are on strike. For the reasons stated in E. I. Du Pont De Nemours & Co. v. Boland (C.C.A.) 85 F.(2d) 12, decided this day, the appellant has not shown that any irreparable injury will be suffered if this injunction is denied, and under the provisions of the National Labor Relations Act, it has an adequate, complete, and exclusive remedy at law on a petition to the proper court for a subpoena, or for the enforcement or review of any order the board may enter.
Decree affirmed.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
NATIONAL LABOR RELATIONS BOARD v. LUXURAY, Inc.
No. 10.
Circuit Court of Appeals, Second Circuit
Nov. 3, 1941.
Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Bernard R. Bralove and Bertram Edises, all of Washington, D. C., for petitioner National Labor Relations Board.
Philip Jones, of New York City (John N. Platoff, of Union City, N. J., of counsel), for respondent Luxuray, Inc.
Before L. PIAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The respondent is a New York corporation engaged in the business of manufacturing wearing apparel. The National Labor Relations Board has filed a petition to’ enforce an order (1) requiring the corporation to desist from unfair labor practices, consisting of threats and anti-union statements calculated to persuade its employees not to join or assist International Ladies’ Garment Workers’ Union and to interfere with, restrain and coerce them in their right to self-organization and to bargain collectively through representatives of their own choosing; (2) requiring the corporation to offer Ethel Weller immediate reinstatement to her former position in the appliqué department or to a substantially equivalent position without prejudice to her seniority and to make her whole for any loss of pay since February 4, 1938, by reason of discrimination in regard to hire and tenure.
The Board found upon substantial evidence that in April 1937 the union began to organize the respondent’s employes. In a speech to them in December 1937 Rogosin, the president, gave reasons why it woftld not be to their advantage to join the union. In the course of his remarks he said about C. I. O. union leaders:
“ * * * They promised you increases in salaries, steady work, and vacations, and all they accomplished was that you have no work at all.
“ * * * I have been molested and annoyed by union conferences and adjustments, which have taken too much of my time, preventing me from planning to secure enough work to keep you employed as in the past. * * *
“It does not seem to me that Mr. Green, of the A. F. of L., or Mr. Lewis, of the C. I. O., are very seriously concerned over what they can do for you. It seems that their only interest is to obtain you as members and have the income of your dues for what it may do for themselves. You can readily see this, when they attack companies like ours, which have been paying better wages then the majority of competitive manufacturers, and you realize that we sell our goods in competition with manufacturers in New Jersey, Pennsylvania, North Carolina, South Carolina, and elsewhere. There were a number of manufacturers in our industry in Pennsylvania and in the South, paying considerably lower wages than we were, whom the union did not bother at all or attempt to bother, and they, in turn, having a lower cost of production and the mind of their management at ease, have gotten the business that rightfully should have been ours.
* ❖ * -\i * *
“My advice to you is that it is not to your interest to join the union and pay-dues. All you will accomplish will be that you will give to the union a portion of what we are able to give you. My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not. * * * ”
Shott, a Field Examiner of the National Labor Relations Board, gave testimony as to the attitude of Rogosin towards unions. He testified that when he took up with Rogosin the complaint of the Board about the discharge of Ethel Weller, Rogosin said: “She is working for the union, and I have no place in my organization for any one receiving wages as a union organizer * * * I want the Labor Board to understand that she is discharged * * * I am going to run my own business and I am not going to permit the Labor Board to run my business * *
It seems clear from the various utterances of Rogosin that there was proof that the respondent had a fixed hostility towards the activities of its employes in organizing a union in its plant and in selecting International Ladies’ Garment Workers’ Union as their representative. There plainly was substantial evidence of acts of interference, restraint and coercion on the part of the employer such as are proscribed by Section 8(1) of the Act, 29 U.S.C.A. § 158(1).
It is argued on behalf of the respondent that portions of Rogosin’s speech to the employes contained expressions sympathetic with labor unions. He did allude to the fact that Beaunit Mills, a corporation owning all the stock of respondent and of which he was president, had appointed T. W. O., a C. I. O. affiliate, bargaining agent for its employes at the Beaunit Mills Plant at Cohoes, New York, and had entered into a contract with T. W. O. regulating labor relations. But it is to be noticed that there is no proof that this contract had the sanction of the Cohoes employes or that they had selected it to represent them. It was open to the Board to regard the contract between Beaunit and T. W. O. as having no bearing on the situation here for at best it was an agreement covering workers who were not part of the group to which respondent’s employes belonged or with which the latter were appropriately combined as a bargaining unit. Rogosin’s speech as a whole and his subsequent talk with Shott amply supported the finding of the Board that the respondent had violated the rights guaranteed to its employes under Section 7 of the Act, 29 U.S.C.A. § 157, and had been guilty of acts of interference prohibited by Section 8(1).
It is further contended by the respondent that Rogosin acted lawfully in warning the employes against unions because of his right to freedom of speech guaranteed by the • Constitution. But freedom of speech does not extend to interested appeals by an employer to induce his men not to exercise the right of collective bargaining and not to become members of a labor union. National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U.S. 272, 274, 58 S.Ct. 577, 82 L.Ed. 838; National Labor Relations Board v. Federbush Co., 2 Cir., 121 F.2d 954, 957; National Labor Relations Board v. American Mfg. Co., 2 Cir., 106 F.2d 61, affirmed 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988. When Rogosin said to his employes: “My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not, * * * ” his action went beyond mere friendly advice. In view of his power to discharge the employes they might fairly suppose not only that it was not to their interest to become members of the union but that they might suffer from such an association. National Labor Relations Board v. A. S. Abell Co., 4 Cir., 97 F.2d 951, 956.
The mandatory provisions of the order directing the reinstatement of Ethel Weller with back pay are vigorously assailed by the respondent, but we feel no doubt that they find substantial justification in the record.
Mrs. Weller had acted as a fore-lady in a department of the Fort Plain Plant and was an employee of acknowledged competence. It is said that when the work of the company slowed down and many in her department were laid off she was excused for this reason. But she was never offered reinstatement, while other employes of inferior status were restored, and Rogosin told Shott, when the latter complained of this, that she was “discharged” and that he had no place in his “organization for anyone receiving wages as a union organizer.” She had been a member of the union for about nine months before she was laid off, had been conspicuously active in the union organization and had had weekly meetings held for that purpose at her house. The fact that other members of the union had been retained as employes, when Ethel Weller was laid off and that she had been kept in employment for many months after her membership in the union was known is said to show conclusively that there was no discrimination against her. But her leadership in union activities, the use of her house for the weeks immediately preceding her discharge for union activities, the persistence of the respondent in refusing reinstatement to her while juniors in service were being taken back justify the inference of discrimination drawn by the Board. Indeed such an inference is fully warranted by Rogosin’s statement to Shott which we have quoted, had there been little or nothing else on which to base the finding.
The belated contention that the Examiner showed bias and did not give a fair hearing is wholly unfounded. Iiis report contained some mistakes and his finding that an employee, Clara Gramps, was discharged because of union activities was reversed by the Board. Nevertheless, the fact that he acted with propriety and afforded the respondent a fair hearing is evident from the remarks of the latter’s counsel who said at the close of the hearing: “I thank the Examiner for your kindness and consideration and your efforts toward impartiality.”
For the foregoing reasons we hold that the petition of the Board for enforcement of its order should be granted with the conceded modification of Paragraph 2 (b) thereof, so far as it requires the payment over of moneys received for work performed on Federal, State, County, Municipal and other work relief projects. See Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6.
Petition granted as modified.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
ZUNI PUBLIC SCHOOL DISTRICT NO. 89 et al. v. DEPARTMENT OF EDUCATION et al.
No. 05-1508.
Argued January 10, 2007
Decided April 17, 2007
Breyer, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Auto, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 104. Kennedy, J., filed a concurring opinion, in which Auto, J., joined, post, p. 107. Scaua, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined, and in which Souter, J., joined as to Part I, post, p. 108. Souter, J., filed a dissenting opinion, post, p. 123.
Ronald J. VanAmberg argued the cause for petitioners. With him on the briefs were C. Bryant Rogers and George W. Kozeliski.
Sri Srinivasan argued the cause for the federal respondent. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Peter R. Maier, Kent D. Talbert, and Stephen H. Freid.
Leigh M. Manasevit, Special Assistant Attorney General of New Mexico, argued the cause for the state respondent. With him on the brief was Willie R. Brown
Briefs of amici curiae were filed for the State of Alaska by Craig J. Tillery, Acting Attorney General, and Kathleen Strasbaugh, Assistant Attorney General; and for New Mexico Public School Districts by Thomas C Bird.
Justice Breyer
delivered the opinion of the Court.
A federal statute sets forth a method that the Secretary of Education is to use when determining whether a State’s public school funding program “equalizes expenditures” throughout the State. The statute instructs the Secretary to calculate the disparity in per-pupil expenditures among local school districts in the State. But, when doing so, the Secretary is to “disregard” school districts “with per-pupil expenditures... above the. 95th percentile or below the 5th percentile of such expenditures...in the State.” 20 U. S. C. § 7709(b)(2)(B)(i) (emphasis added).
The question before us is whether the emphasized statutory language permits the Secretary to identify the school districts that should be “disregardfed]” by looking to the number of the district’s pupils as well as to the size of the district’s expenditures per pupil. We conclude that it does.
I
A
The federal Impact Aid Act, 108 Stat. 3749, as amended, 20 U. S. C. § 7701 et seq., provides financial assistance to local school districts whose ability to finance public school education is adversely affected by a federal presence. Federal aid is available to districts, for example, where a significant amount of federal land is exempt from local property taxes, or where the federal presence is responsible for an increase in school-age children (say, of armed forces personnel) whom local schools must educate. See § 7701 (2000 ed. and Supp. IV). The statute typically prohibits a State from offsetting this federal aid by reducing its own state aid to the local district. If applied without exceptions, however, this prohibition might unreasonably interfere with a state program that seeks to equalize per-pupil expenditures throughout the State, for instance, by preventing the state program from taking account of a significant source of federal funding that some local school districts receive. The statute consequently contains an exception that permits a State to compensate for federal impact aid where “the Secretary [of Education] determine^] and certifies... that the State has in effect a program of State aid that equalizes expenditures for free public education among local [school districts] in the State.” § 7709(b)(1) (2000 ed., Supp. IV) (emphasis added).
The statute sets out a formula that the Secretary of Education must use to determine whether a state aid program satisfies the federal “equalization]” requirement. The formula instructs the Secretary to compare the local school district with the greatest per-pupil expenditures to the school district with the smallest per-pupil expenditures to see whether the former exceeds the latter by more than 25 percent. So long as it does not, the state aid program qualifies as a program that “equalizes expenditures.” More specifically the statute provides that “a program of state aid” qualifies, i. e., it “equalizes expenditures” among local school districts if,
“in the second fiscal year preceding the fiscal year for which the determination is made, the amount of per-pupil expenditures made by [the local school district] with the highest such per-pupil expenditures... did not exceed the amount of such per-pupil expenditures made by [the local school district] with the lowest such expenditures... by more than 25 percent.” § 7709(b)(2)(A) (2000 ed.).
The statutory provision goes on to set forth what we shall call the “disregard” instruction. It states that, when “making” this “determination,” the “Secretary shall... disregard [school districts] with per-pupil expenditures... above the 95th percentile or below the 5th percentile of such expenditures.” § 7709(b)(2)(B)(i) (emphasis added). It adds that the Secretary shall further
“take into account the extent to which [the state program reflects the special additional costs that some school districts must bear when they are] geographically isolated [or when they provide education for] particular types of students, such as children with disabilities.” § 7709(b)(2)(B)(ii).
B
This case requires us to decide whether the Secretary’s present calculation method is consistent with the federal statute’s “disregard” instruction. The method at issue is contained in a set of regulations that the Secretary first promulgated 30 years ago. Those regulations essentially state the following:
When determining whether a state aid program “equalizes expenditures” (thereby permitting the State to reduce its own local funding on account of federal impact aid), the Secretary will first create a list of school districts ranked in order of per-pupil expenditure. The Secretary will then identify the relevant percentile cutoff point on that list on the basis of a specific (95th or 5th) percentile of student population — essentially identifying those districts whose students account for the 5 percent of the State’s total student population that lies at both the high and low ends of the spending distribution. Finally the Secretary will compare the highest spending and lowest spending school districts of those that remain to see whether they satisfy the statute’s requirement that the disparity between them not exceed 25 percent.
The regulations set forth this calculation method as follows:
“ [D]eterminations of disparity in current expenditures... per-pupil are made by—
“(i) Ranking all [of the State’s school districts] on the basis of current expenditures... per pupil [in the relevant statutorily determined year];
“(ii) Identifying those [school districts] that fall at the 95th and 5th percentiles of the total number of pupils in attendance [at all the State’s school districts taken together]; and
“(iii) Subtracting the lower current expenditure... per pupil figure from the higher for those [school districts] identified in paragraph (ii) and dividing the difference by the lower figure.” 34 CFR pt. 222, subpt. K, App., ¶ 1 (2006).
The regulations also provide an illustration of how to perform the calculation:
“In State X, after ranking all [school districts] in order of the expenditures per pupil for the [statutorily determined] fiscal year in question, it is ascertained by counting the number of pupils in attendance in those [school districts] in ascending order of expenditure that the 5th percentile of student population is reached at [school district A] with a per pupil expenditure of $820, and that the 95th percentile of student population is reached at [school district B] with a per pupil expenditure of $1,000. The percentage disparity between the 95th percentile and the 5th percentile [school districts] is 22 percent ($1000 - $820 = $180/$820).” Ibid.
Because 22 percent is less than the statutory “25 percent” requirement, the state program in the example qualifies as a program that “equalizes expenditures.”
c
This case concerns the Department of Education’s application of the Secretary’s regulations to New Mexico’s local district aid program in respect to fiscal year 2000. As the regulations require, Department officials listed each of New Mexico’s 89 local school districts in order of per-pupil spending for fiscal year 1998. (The calculation in New Mexico’s case was performed, as the statute allows, on the basis of per-pupil revenues, rather than per-pupil expenditures. See 20 U. S. C. § 7709(b)(2)(A). See also Appendix B, infra. For ease of reference we nevertheless refer, in respect to New Mexico’s figures and throughout the opinion, only to “per-pupil expenditures.”) After ranking the districts, Department officials excluded 17 school districts at the top of the list because those districts contained (cumulatively) less than 5 percent of the student population; for the same reason, they excluded an additional 6 school districts at the bottom of the list.
The remaining 66 districts accounted for approximately 90 percent of the State’s student population. Of those, the highest ranked district spent $3,259 per student; the lowest ranked district spent $2,848 per student. The difference, $411, was less than 25 percent of the lowest per-pupil figure, namely, $2,848. Hence, the officials found that New Mexico’s local aid program qualifies as a program that “equalizes expenditures.” New Mexico was therefore free to offset federal impact aid to individual districts by reducing state aid to those districts.
Two of New Mexico’s public school districts, Zuni Public School District and Gallup-McKinley County Public School District (whom we shall collectively call Zuni), sought further agency review of these findings. Zuni conceded that the Department’s calculations were correct in terms of the Department’s own regulations. Zuni argued, however, that the regulations themselves are inconsistent with the authorizing statute. That statute, in its view, requires the Department to calculate the 95th and 5th percentile cutoffs solely on the basis of the number of school districts (ranked by their per-pupil expenditures), without any consideration of the number of pupils in those districts. If calculated as Zuni urges, only 10 districts (accounting for less than 2 percent of all students) would have been identified as the outliers that the statute instructs the Secretary to disregard. The difference, as a result, between the highest and lowest per-pupil expenditures of the remaining districts (26.9 percent) would exceed 25 percent. Consequently, the statute would forbid New Mexico to take account of federal impaet aid as it decides how to equalize school funding across the State. See N. M. Stat. Ann. § 22-8-1 et seq. (2006).
A Department of Education Administrative Law Judge rejected Zuni’s challenge to the regulations. The Secretary of Education did the same. Zuni sought review of the Secretary’s decision in the Court of Appeals for the Tenth Circuit. 393 F. 3d 1158 (2004). Initially, a Tenth Circuit panel affirmed the Secretary’s determination by a split vote (2 to 1). Subsequently, the full Court of Appeals vacated the panel’s decision and heard the matter en banc. The 12-member en banc court affirmed the Secretary but by an evenly divided court (6 to 6). 437 F. 3d 1289 (2006) (per curiam). Zuni sought certiorari. We agreed to decide the matter.
II
A
Zuni’s strongest argument rests upon the literal language of the statute. Zuni concedes, as it must, that if the language of the statute is open or ambiguous — that is, if Congress left a “gap” for the agency to fill — then we must uphold the Secretary’s interpretation as long as it is reasonable. See Chevron U. S. A Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). See also Christensen v. Harris County, 529 U. S. 576, 589, n. (Scalia, J., concurring in part and concurring in judgment). For purposes of exposition, we depart from a normal order of discussion, namely, an order that first considers Zuni’s statutory language argument. See Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002). Instead, because of the technical nature of the language in question, we shall first examine the provision’s background and basic purposes. That discussion will illuminate our subsequent analysis in Part II-B, infra. It will also reveal why Zuni concentrates its argument upon language alone.
Considerations other than language provide us with unusually strong indications that Congress intended to leave the Secretary free to use the calculation method before us and that the Secretary’s chosen method is a reasonable one. For one thing, the matter at issue — i. e., the calculation method for determining whether a state aid program “equalizes expenditures” — is the kind of highly technical, specialized interstitial matter that Congress often does not decide itself, but delegates to specialized agencies to decide. See United States v. Mead Corp., 533 U. S. 218, 234 (2001); cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); Christensen, supra, at 589, n. (opinion of Scalia, J.).
For another thing, the history of the statute strongly supports the Secretary. Congress first enacted an impact aid “equalization” exception in 1974. The exception originally provided that the “ter[m]... ‘equalizing] expenditures’... shall be defined by the [Secretary].” 20 U. S. C. § 240(d)(2)(B) (1970 ed., Supp. IV). Soon thereafter, in 1976, the Secretary promulgated the regulation here at issue defining the term “equalizing expenditures” in the manner now before us. See Part I-B, supra. As far as we can tell, no Member of Congress has ever criticized the method the 1976 regulation sets forth nor suggested at any time that it be revised or reconsidered.
The present statutory language originated in draft legislation that the Secretary himself sent to Congress in 1994. With one minor change (irrelevant to the present calculation controversy), Congress adopted that language without comment or clarification. No one at the time — no Member of Congress, no Department of Education official, no school district or State — expressed the view that this statutory language (which, after all, was supplied by the Secretary) was intended to require, or did require, the Secretary to change the Department’s system of calculation, a system that the Department and school districts across the Nation had followed for nearly 20 years, without (as far as we are told) any adverse effect.
Finally, viewed in terms of the purpose of the statute’s disregard instruction, the Secretary’s calculation method is reasonable, while the reasonableness of a method based upon the number of districts alone (Zuni’s proposed method) is more doubtful. When the Secretary (then Commissioner) of Education considered the matter in 1976, he explained why that is so.
Initially the Secretary pointed out that the “exclusion of the upper and bottom 5 percentile school districts is based upon the accepted principle of statistical evaluation that such percentiles usually represent unique or noneharacteristic situations.” 41 Fed. Reg. 26320 (1976) (emphasis added). That purpose, a purpose to exclude statistical outliers, is evident in the language of the present statute. The provision uses the technical term “percentile”; it refers to cutoff numbers (“95th” and “5th”) often associated with scientific calculations; and it directly precedes another statutory provision that tells the Secretary to account for those districts, from among the middle 5th to 95th percentile districts, that remain “noncharacteristic” in respect to geography or the presence of special students (such as disabled students). See 20 U. S. C. §§7709(b)(2)(B)(iMii) (2000 ed.).
The Secretary added that under the regulation’s calculation system the “percentiles” would be “determined on the basis of numbers of pupils and not on the basis of numbers of districts.” 41 Fed. Reg. 26324. He said that to base “an exclusion on numbers of districts” alone “would act to apply the disparity standard in an unfair and inconsistent manner among States.” Ibid. He then elaborated upon his concerns:
“The purpose of the exclusion is to eliminate those anomalous characteristics of a distribution of expenditures. In States with a small number of large districts, an exclusion based on percentage of school districts might exclude from the measure of disparity a substantial percentage of the pupil population in those States. Conversely, in States with large numbers of small districts, such an approach might exclude only an insignificant fraction of the pupil population and would not exclude anomalous characteristics.” Ibid.
To understand the Secretary’s first problem, consider an exaggerated example, say, a State with 80 school districts of unequal size. Suppose 8 of the districts include urban areas and together account for 70 percent of the State’s students, while the remaining 72 districts include primarily rural areas and together account for 30 percent of the State’s students. If the State’s greatest funding disparities are among the 8 urban districts, Zuni’s calculation method (which looks only at the number of districts and ignores their size) would require the Secretary to disregard the system’s 8 largest districts (i. e., 10 percent of the number 80) even though those 8 districts (because they together contain 70 percent of the State’s pupils) are typical of, indeed characterize, the State’s public school system. It would require the Secretary instead to measure the system’s expenditure equality by looking only to noncharacteristic districts that are not representative of the system as a whole, indeed districts accounting for only 30 percent of the State’s pupils. Thus, according to Zuni’s method, the Secretary would have to certify a state aid program as one that “equalizes expenditures” even if there were gross disparities in per-pupil expenditures among urban districts accounting for 70 percent of the State’s students. By way of contrast, the Secretary’s method, by taking into account a district’s size as well as its expenditures, would avoid a calculation that would produce results so contrary to the statute’s objective.
To understand the Secretary’s second problem consider this very case. New Mexico’s 89 school districts vary significantly in respect to the number of pupils each contains. Zuni’s calculation system nonetheless forbids the Secretary to discount more than 10 districts — 10 percent of the total number of districts (rounded up). But these districts taken together account for only 1.8 percent of the State’s pupils. To eliminate only those districts, instead of eliminating districts that together account for 10 percent of the State’s pupils, risks resting the “disregard” calculation upon a few particularly extreme noncharacteristic districts, yet again contrary to the statute’s intent.
Thus, the history and purpose of the disregard instruction indicate that the Secretary’s calculation formula is a reasonable method that carries out Congress’ likely intent in enacting the statutory provision before us.
B
But what of the provision’s literal language? The matter is important, for normally neither the legislative history nor the reasonableness of the Secretary’s method would be determinative if the plain language of the statute unambiguously indicated that Congress sought to foreclose the Secretary’s interpretation. And Zuni argues that the Secretary’s formula could not possibly effectuate Congress’ intent since the statute’s language literally forbids the Secretary to use such a method. Under this Court’s precedents, if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis. See Chevron, 467 U. S., at 842-843. A customs statute that imposes a tariff on “clothing” does not impose a tariff on automobiles, no matter how strong the policy arguments for treating the two kinds of goods alike. But we disagree with Zuni’s conclusion, for we believe that the Secretary’s method falls within the scope of the statute’s plain language.
That language says that, when the Secretary compares (for a specified fiscal year) “the amount of per-pupil expenditures made by” (1) the highest-per-pupil-expenditure district and (2) the lowest-per-pupil-expenditure district, “the Secretary shall... disregard” local school districts “with per-pupil expenditures... above the 95th percentile or below the 5th percentile of such expenditures in the State.” 20 U. S. C. §§ 7709(b)(2)(A), (B)(i). The word “such” refers to “per-pupil expenditures” (or more precisely to “per-pupil expenditures” in the test year specified by the statute). The question then is whether the phrase “above the 95th percentile... of... [per pupil] expenditures” permits the Secretary to calculate percentiles by (1) ranking local districts, (2) noting the student population of each district, and (3) determining the cutoff point on the basis of districts containing 95 percent (or 5 percent) of the State’s students.
Our answer is that this phrase, taken with absolute literalness, limits the Secretary to calculation methods that involve “per-pupil expenditures.” But it does not tell the Secretary which of several different possible methods the Department must use. Nor does it rule out the present formula, which distributes districts in accordance with per-pupil expenditures, while essentially weighting each district to reflect the number of pupils it contains.
Because the statute uses technical language (e. g., “percentile”) and seeks a technical purpose (eliminating uncharacteristic, or outlier, districts), we have examined dictionary definitions of the term “percentile.” See 41 Fed. Reg. 26320 (Congress intended measurements based upon an “accepted principle of statistical evaluation” (emphasis added)). Those definitions make clear that “percentile” refers to a division of a distribution of some population into 100 parts. Thus, Webster’s Third New International Dictionary 1675 (1961) (Webster’s Third) defines “percentile” as “the value of the statistical variable that marks the boundary between any two consecutive intervals in a distribution of 100 intervals each containing one percent of the total population.” A standard economics dictionary gives a similar definition for “percentiles”:
“The values separating hundredth parts of a distribution, arranged in order of size. The 99th percentile of the income distribution, for example, is the income level such that only one per cent of the population have larger incomes.” J. Black, A Dictionary of Economics 348-349 (2d ed. 2002).
A dictionary of mathematics states: “The n-th percentile is the value Xniiw such that n per cent of the population is less than or equal to XnJioo” It adds that “[t]he terms can be modified, though not always very satisfactorily, to be applicable to a discrete random variable or to a large sample ranked in ascending order.” C. Clapham & J. Nicholson, The Concise Oxford Dictionary of Mathematics 378-379 (3d ed. 2005) (emphasis deleted). The American Heritage Science Dictionary 468 (2005) explains that a percentile is “[a]ny of the 100 equal parts into which the range of the values of a set of data can be divided in order to show the distribution of those values.” And Merriam-Webster’s Medical Desk Dictionary 612 (2002) describes percentile as “a value on a scale of one hundred that indicates the percent of a distribution that is equal to or below it.”
These definitions, mainstream and technical, all indicate that, in order to identify the relevant percentile cutoffs, the Secretary must construct a distribution of values. That distribution will consist of a “population” ranked according to a characteristic. That characteristic takes on a “value” for each member of the relevant population. The statute’s instruction to identify the 95th and 5th “percentile of such expenditures” makes clear that the relevant characteristic for ranking purposes is per-pupil expenditure during a particular year. But the statute does not specify precisely what population is to be “distributed” (i. e., ranked according to the population’s corresponding values for the relevant characteristic). Nor does it set forth various details as to how precisely the distribution is to be constructed (as long as it is ranked according to the specified characteristic).
But why is Congress’ silence in respect to these matters significant? Are there several different populations, relevant here, that one might rank according to “per-pupil expenditures” (and thereby determine in several different ways a cutoff point such that “n percent of [that] population” falls, say, below the percentile cutoff)? We are not experts in statistics, but a statistician is not needed to see what the dictionary does not say. No dictionary definition we have found suggests that there is any single logical, mathematical, or statistical link between, on the one hand, the characterizing data (used for ranking purposes) and, on the other hand, the nature of the relevant population or how that population might be weighted for purposes of determining a percentile cutoff.
Here, the Secretary has distributed districts, ranked them according to per-pupil expenditure, but compared only those that account for 90 percent of the State’s pupils. Thus, the Secretary has used — as her predecessors had done for a quarter century before her — the State’s students as the relevant population for calculating the specified percentiles. Another Secretary might have distributed districts, ranked them by per-pupil expenditure, and made no reference to the number of pupils (a method that satisfies the statute’s language but threatens the problems the Secretary long ago identified, see 41 Fed. Reg. 26324; supra, at 91-93). A third Secretary might have distributed districts, ranked them by per-pupil expenditure, but compared only those that account for 90 percent of total pupil expenditures in the State. A fourth Secretary might have distributed districts, ranked them by per-pupil expenditure, but calculated the 95th and 5th percentile cutoffs using the per-pupil expenditures of all the individual schools in the State. See 41 Fed. Reg. 26324 (considering this system of calculation). A fifth Secretary might have distributed districts, ranked them by per-pupil expenditure, but accounted in his disparity calculation for the sometimes significant differences in per-pupil spending at different grade levels. See 34 CFR § 222.162(b)(1) (2006) (authorizing such a system); id., pt. 222, subpt. K, App. See also Appendix B, infra.
Each of these methods amounts to a different way of determining which districts fall between the 5th and 95th “percentile of per-pupil expenditures.” For purposes of that calculation, they each adopt different populations — students, districts, schools, and grade levels. Yet, linguistically speaking, one may attribute the characteristic of per-pupil expenditure to each member of any such population (though the values of that characteristic may be more or less readily available depending on the chosen population, see 41 Fed. Reg. 26324). Hence, the statute’s literal language covers any or all of these methods. That language alone does not tell us (or the Secretary of Education), however, which method to use.
Justice Scalia’s claim that this interpretation “defies any semblance of normal English” depends upon its own definition of the word “per.” That word, according to the dissent, “connotes... a single average figure assigned to a unit the composite members of which are individual pupils.” Post, at 113 (emphasis deleted). In fact, the word “per” simply means “[f]or each” or “for every.” Black’s Law Dictionary 1171 (8th ed. 1999); see Webster’s Third 1674. Thus, nothing in the English language prohibits the Secretary from considering expenditures for each individual pupil in a district when instructed to look at a district’s “per-pupil expenditures.” The remainder of the dissent’s argument, colorful language to the side, rests upon a reading of the statutory language that ignores its basic purpose and history.
We find additional evidence for our understanding of the language in the fact that Congress, in other statutes, has clarified the matter here at issue thereby avoiding comparable ambiguity. For example, in a different education-related statute, Congress refers to “the school at the 20th percentile in the State, based on enrollment, among all schools ranked by the percentage of students at the proficient level.” 20 U.S.C. §6311(b)(2)(E)(ii) (2000 ed., Supp. IV) (emphasis added). In another statute fixing charges for physicians services, Congress specified that the maximum charge “shall be the 50th percentile of the customary charges for the service (weighted by the frequency of the service) performed by nonparticipating physicians in the locality during the [prior] 12-month period.” 42 U. S. C. § 1395u(j)(l)(C)(v) (2000 ed.) (emphasis added). In these statutes Congress indicated with greater specificity how a percentile should be determined by stating precisely not only which data values are of interest, but also (in the first) the population that is to be distributed and (in the second) the weightings needed to make the calculation meaningful and to avoid counterproductive results. In the statute at issue here, however, Congress used more general language (drafted by the Secretary himself), which leaves the Secretary with the authority to resolve such subsidiary matters at the administrative level.
We also find support for our view of the language in the more general circumstance that statutory “[a]mbiguity is a creature not [just] of definitional possibilities but [also] of statutory context.” Brown v. Gardner, 513 U. S. 115, 118 (1994). See also FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132-133 (2000) (“[mjeaning — or ambiguity — of certain words or phrases may only become evident when placed in context” (emphasis added)). That may be so even if statutory language is highly technical. After all, the scope of what seems a precise technical chess instruction, such as “you must place the queen next to the king,” varies with context, depending, for example, upon whether the instructor is telling a beginner how to set up the board or telling an advanced player how to checkmate an opponent. The dietionary acknowledges that, when interpreting technical statistical language, the purpose of the exercise matters, for it says that “quantile,” “percentile,” “quartile,” and “decile” are “terms [that] can be modified, though not always very satisfactorily, to be applicable to... a large sample ranked in ascending order.” Oxford Dictionary of Mathematics, at 378-379.
Thus, an instruction to “identify schools with average scholastic aptitude test scores below the 5th percentile of such scores” may vary as to the population to be distributed, depending upon whether the context is one of providing additional counseling and support to students at low-performing schools (in which ease the relevant population would likely consist of students), or one of identifying unsuccessful learning protocols at low-performing schools (in which case the appropriate population may well be the schools themselves). Context here tells us that the instruction to identify school districts with “per-pupil expenditures” above the 95th percentile “of such expenditures” is similarly ambiguous, because both students and school districts are of concern to the statute. Accordingly, the disregard instruction can include within its scope the distribution of a ranked population that consists of pupils (or of school districts weighted by pupils) and not just a ranked distribution of unweighted school districts alone.
Finally, we draw reassurance from the fact that no group of statisticians, nor any individual statistician, has told us directly in briefs, or indirectly through citation, that the language before us cannot be read as we have read it. This circumstance is significant, for the statutory language is technical, and we are not statisticians. And the views of experts (or their absence) might help us understand (though not control our determination of) what Congress had in mind.
The upshot is that the language of the statute is broad enough to permit the Secretary’s reading. That fact requires us to look beyond the language to determine whether the Secretary’s interpretation is a reasonable, hence permissible, implementation of the statute. See Chevron, 467 U. S., at 842-843. For the reasons set forth in Part II-A, supra, we conclude that the Secretary’s reading is a reasonable reading. We consequently find the Secretary’s method of calculation lawful.
The judgment of the Tenth Circuit is affirmed.
It is so ordered.
APPENDIXES TO OPINION OF THE COURT
A
We set out the relevant statutory provisions and accompanying regulations in full. The reader will note that in the text of our opinion, for purposes of exposition, we use the term “local school districts” where the statute refers to “local educational agencies.” We also disregard the statute’s frequent references to local “revenues” because those references do not raise any additional considerations germane to this case.
Impact Aid Program, 20 U. S. C. § 7709 (2000 ed. and Supp. IV) (state consideration of payments in providing state aid):
“(a) General prohibition
“Except as provided in subsection (b) of this section, a State may not—
“(1) consider payments under this subchapter in determining for any fiscal year—
“(A) the eligibility of a local educational agency for State aid for free public education; or
“(B) the amount of such aid; or
“(2) make such aid available to local educational agencies in a manner that results in less State aid to any local educational agency that is eligible for such payment than such agency would receive if such agency were not so eligible.
“(b) State equalization plans
“(1) In general
“A State may reduce State aid to a local educational agency that receives a payment under section 7702 or 7703(b) of this title (except the amount calculated in excess of 1.0 under section 7703(a)(2)(B) of this title and, with respect to a local educational agency that receives a payment under section 7703(b)(2) of this title, the amount in excess of the amount that the agency would receive if the agency were deemed to be an agency eligible to receive a payment under section 7703(b)(1) of this title and not section 7703(b)(2) of this title) for any fiscal year if the Secretary determines, and certifies under subsection (c)(3)(A) of this section, that the State has in effect a program of State aid that equalizes expenditures for free public education among local educational agencies in the State.
“(2) Computation
“(A) In general
“For purposes of paragraph (1), a program of State aid equalizes expenditures among local educational agencies if, in the second fiscal year preceding the fiscal year for which the determination is made, the amount of per-pupil expenditures made by, or per-pupil revenues available to, the local educational agency in the State with the highest such per-pupil expenditures or revenues did not exceed the amount of such per-pupil expenditures made by, or per-pupil revenues available to, the local educational agency in the State with the lowest such expenditures or revenues by more than 25 percent. “(B) Other factors
“In making a determination under this subsection, the Secretary shall—
“(i) disregard local educational agencies with per-pupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or revenues in the State; and “(ii) take into account the extent to which a program of State aid reflects the additional cost of providing free public education in particular types of local educational agencies, such as those that are geographically isolated, or to particular types of students, such as children with disabilities.”
B
34 CFR §222.162 (2006) (What disparity standard must a State meet in order to be certified, and how are disparities in current expenditures or revenues per pupil measured?):
“(a) Percentage disparity limitation. The Secretary considers that a State aid program equalizes expenditures if the disparity in the amount of current expenditures or revenues per pupil for free public education among LEAs in the State is no more than 25 percent. In determining the disparity
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_casesourcestate
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38
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
UNDERWRITERS NATIONAL ASSURANCE CO. v. NORTH CAROLINA LIFE & ACCIDENT & HEALTH INSURANCE GUARANTY ASSN. et al.
No. 80-1496.
Argued November 9, 1981
Decided March 24, 1982
Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Blackmun, Rehnquist, and O’Connor, JJ., joined. White, J., filed an opinion concurring in the judgment, in which Powell and Stevens, JJ., joined, post, p. 716.
Theodore R. Boehm argued the cause for petitioner. With him on the briefs was Charles T. Richardson.
William S. Patterson argued the cause for respondents. With him on the brief were Rufus L. Edmisten, Attorney General of North Carolina, Richard L. Griffin, Assistant Attorney General, Charles D. Case, and Eugene Gressman.
Justice Marshall
delivered the opinion of the Court.
In this case, the North Carolina Court of Appeals held that an Indiana court was without jurisdiction to adjudicate the rights of various parties in a $100,000 deposit held in trust by certain. North Carolina officials. Because it found that the Indiana court did not have jurisdiction, the North Carolina court refused to recognize the Indiana court’s prior ruling that all claims to the deposit were compromised, settled, and dismissed by the final order entered by that court during a rehabilitation proceeding. We granted certiorari to decide whether, by refusing to treat the prior Indiana court judgment as res judicata, the North Carolina court has violated the Full Faith and Credit Clause of the Constitution and its implementing federal statute. 451 U. S. 982 (1981). For the reasons stated below, we reverse the decision of the North Carolina Court of Appeals.
I
Petitioner Underwriters National Assurance Co. (Underwriters) is an Indiana stock insurance corporation specializing in life and disability insurance for certain high-income professional groups. In 1973 Underwriters was licensed to do business in 45 States, including North Carolina, and was administering over 50,000 policies. To qualify to do business in North Carolina, Underwriters was required to join respondent North Carolina Life and Accident and Health Insurance Guaranty Association (North Carolina Association), a state-created association of all foreign and domestic insurance companies operating in North Carolina. See Life and Accident and Health Insurance Guaranty Association Act, N. C. Gen. Stat. §58-155.65 et seq. (1975) (Guaranty Act). Under the terms of the Guaranty Act, the North Carolina Association is ultimately responsible for fulfilling the policy obligations of any member that becomes insolvent or otherwise fails to honor its obligations to North Carolina policyholders. N. C. Gen. Stat. §58-155.72(4) (Supp. 1981).
In June 1973, after determining that Underwriters’ financial condition was questionable, the North Carolina Commissioner of Insurance informed Underwriters that it must post a $100,000 deposit “for the sole benefit of North Carolina policyholders,” to continue to do business in that State. Shortly thereafter, Underwriters deposited with the State a $100,000 bond registered to the “Treasurer of the State of North Carolina in trust for the Underwriters National Assur-anee Company and the State of North Carolina as their respective interests may appear under Article 20, Chapter 58-188.5 of the North Carolina General Statutes.” See N. C. Gen. Stat. § 58-182 et seq. (1975) (Deposit Act).
The North Carolina Commissioner’s fears about Underwriters’ financial condition proved to be well founded. Approximately one year after Underwriters posted this bond, the Indiana Department of Insurance commenced rehabilitation proceedings against petitioner on the ground that its reserves were inadequate to meet its future policy obligations. By order dated August 5, 1974, the Superior Court for Marion County (Rehabilitation Court) appointed the Indiana Commissioner of Insurance as Rehabilitator and directed him to “take possession of the business and assets of Underwriters... and conduct the business thereof and appoint such personnel as may be necessary to rehabilitate Underwriters.” Notice of this action was sent to all state insurance commissioners, including respondent North Carolina Commissioner. The North Carolina Commissioner immediately informed the North Carolina Association that Underwriters was undergoing rehabilitation in Indiana, and that title to all assets of Underwriters had been transferred to the Indiana Rehabilitator.
Shortly after entering the order of rehabilitation, the Rehabilitation Court enjoined the commencement or prosecution of any suit against Underwriters or the Rehabilitator. This injunction stayed several policyholder actions that had been filed against Underwriters, and required that any person who desired to institute or to prosecute any such action join the Indiana rehabilitation proceeding. The plaintiffs in the stayed actions were subsequently given permission to intervene in the rehabilitation proceeding. In October 1975, the Rehabilitation Court certified a class consisting of all past and present policyholders, and appointed intervening plaintiffs from the stayed actions as class representatives.
The Rehabilitation Court sent notice of the rehabilitation proceeding to all policyholders, informing them that the class had been certified, and that all members not requesting exclusion would be bound by the judgment of the Rehabilitation Court. The notice concluded by stating that “[t]he entire court file” was available to any class member.
Over the next two and one-half years, the Rehabilitation Court supervised the efforts of the Rehabilitator and other interested parties to return Underwriters to a sound financial footing. After extensive negotiations between Underwriters, the class representatives, and other interested parties, the Rehabilitator submitted a Proposed Plan to the Rehabilitation Court in April 1976. In order to preserve the financial health of the company and to provide continuing coverage for policyholders, the Rehabilitator proposed that the Rehabilitation Court reform the policies to require increased premiums and reduced benefits. Of particular interest to this litigation, the Proposed Plan stated that Underwriters “[will have] no liability to any guaranty association which itself has obligations to [Underwriters’] policyowners.” Proposed Rehabilitation Plan, I(J), Exhibit Binder 79 (E. B.). Part X(C) of the Proposed Plan further provided:
“The guaranty associations in some states may have obligations to [Underwriters’] policyowners as a result of the [Underwriters] rehabilitation proceeding. Moreover, to the extent such guaranty associations do have obligations, there is a possibility that those guaranty associations may seek to recover from [Underwriters] sums paid to [Underwriters’] policyowners. The Rehabilitation Plan should resolve [Underwriters’] contingent liability to any guaranty association by determining that [Underwriters] has no further obligation or liability to any guaranty association.” Id., at 89 (emphasis added).
By direction of the Rehabilitation Court, the Rehabilitator mailed a copy of this Proposed Plan to all interested parties, including all state guaranty associations and insurance commissioners. The Rehabilitator subsequently sent to the guaranty associations notice of a hearing to consider various rehabilitation plans, including that of the Rehabilitator. This notice explicitly informed the guaranty associations that although eight associations, including the North Carolina Association, “may have obligations to... policyowners as a result of the [Underwriters] rehabilitation proceeding,” no association had either intervened in the proceeding, or made suggestions for changes in the Plan. The notice directed that if a guaranty association desired to present any information or contentions relevant to the rehabilitation of Underwriters, it must intervene in the proceeding and present its arguments at the June 9, 1976, hearing. Unless the associations either intervened, or stated in writing that they had no obligations to policyowners and that they waived all claims against Underwriters and the Rehabilitator, a summons would issue to bring the associations before the Rehabilitation Court. Id., at 59-61.
On June 8, 1976, these eight guaranty associations, including the North Carolina Association, intervened in the Indiana rehabilitation proceeding. In their motion to intervene, the guaranty associations stated that Part X(C) of the Proposed Plan was “unacceptable,” and that through negotiations, the associations and the Rehabilitator had agreed on a modification that would “protect the rights of the Guaranty Associations.” In relevant part, the guaranty associations proposed that Part X(C) be changed to read as follows:
“[Underwriters shall have] no further obligation or liability to any guaranty association other than the obligation to recognize as valid the assignment of the policyowner’s rights to the guaranty association and to treat the guaranty association as it would have treated the policy-owner; provided, however, if any guaranty association makes any payment to or on behalf of any policyowner which is not fully reimbursed pursuant to the foregoing provisions, that association shall receive from [Underwriters] each year until fully reimbursed a portion of [Underwriters’] statutory net gain from operations after dividends to policyowners, federal income taxes and the payments to be made under Part XI equal to the annual premium in force for basic coverage in the state of that association on August 5, 1974, divided by the total annual premiums in force for basic coverage of [Underwriters] on August 5, 1974.” Id., at 105 (emphasis added).
After a full hearing in which the North Carolina Association participated, the Rehabilitation Court tentatively approved the Proposed Plan, including the above modification. The court directed the Rehabilitator to send notice to all interested persons that on October 14, 1976, a final hearing would be held on the Plan and the settlement of all claims against Underwriters. The notice sent by the Rehabilitator to Underwriters, the North Carolina Commissioner of Insurance, and all other interested parties specified that “[t]he Proposed Rehabilitation Plan provides in part XIII that upon [its] final approval..., all claims against [Underwriters] by policyowners or others are compromised and dismissed.” At the request of the eight guaranty associations, the Rehabilitation Court subsequently approved a special mailing to policyholders in their respective States explaining that the guaranty associations were statutorily obligated under certain circumstances to continue to provide the benefits compromised by the Indiana court under the Rehabilitation Plan.
■ In November 1976, after holding final hearings in which the North Carolina Association participated, the Rehabilitation Court approved a Plan of Rehabilitation, which was, with respect to issues relevant here, identical to the Proposed Plan. In its order adopting this Plan, the Rehabilitation Court stated that it had “jurisdiction over the subject matter and over the parties, including... all [Underwriters] policyowners [and] state insurance guaranty associations.” App. 38. Further, the court specified that “[t]o the extent that any claim, objection or proposal which was or could have been presented in this rehabilitation proceeding is inconsistent with the Plan, that claim, objection or proposal is overruled and relief to that extent denied.” Id., at 40 (emphasis added). The court went on to state that “[tjhis Order is final as to all matters occurring prior to the date of this Order.” Finally, the Rehabilitation Court retained jurisdiction “to resolve all questions as to interpretation... of the Plan,” and “to modify... the Plan in any respect in the light of future developments.” Id., at 42. Notice of the court’s order adopting the final plan was sent to all interested parties, including all policyowners, state insurance commissioners, and the eight guaranty associations. No appeal was taken from this order, and Underwriters was released from rehabilitation in February 1977.
On June 8, 1977, Underwriters and the eight guaranty associations, including the North Carolina Association, invoked the Rehabilitation Court’s continuing jurisdiction to request that it approve a “Service Contract,” under which Underwriters would continue to service policyowners residing in these States at pre-rehabilitation levels in return for a fee paid by the associations. The Rehabilitation Court approved the proposed contract and directed that Underwriters and the associations execute this agreement “in substantially the form” presented to the court. Pursuant to this order, Underwriters and seven of the guaranty associations executed the Service Contract without incident. Before the North Carolina Association executed its Service Contract, however, it made an addition to the document previously presented to the court. Specifically referring to Underwriters’ $100,000 deposit in North Carolina for the first time since it had intervened in the rehabilitation proceeding 16 months before, the North Carolina Association added the following paragraph to the Service Contract approved by the court:
“It is expressly agreed, however, that the Guaranty Association and Underwriters explicitly reserve all their rights and remedies in connection with any deposits made by Underwriters with the Commissioner of Insurance of North Carolina, including deposits understood to total One Hundred Thousand Dollars ($100,000.00), which rights and remedies are governed by North Carolina law.” E. B. 34.
Underwriters signed the revised agreement, but it made clear in a cover letter accompanying the signed agreement its understanding that the above paragraph was intended only to preserve any future rights that the North Carolina Association may have in the $100,000 deposit. Any other interpretation of this paragraph, the letter concluded, would be unacceptable because the “Plan of Rehabilitation had the effect of shutting off rights that North Carolina citizens and/or the Guaranty Association might otherwise have had to the deposits” prior to rehabilitation. Id., at 35.
The North Carolina Association responded to this letter by filing suit against Underwriters, the North Carolina Commissioner of Insurance, and the State Treasurer, in the Superior Court of Wake County, N. C. The complaint prayed for a declaratory judgment that the North Carolina Association was entitled to use the $100,000 deposit to fulfill the pre-rehabilitation contractual obligations to North Carolina policyowners that had been compromised in the rehabilitation proceeding. The North Carolina Commissioner and Treasurer filed a cross-claim against Underwriters, also requesting that the deposit be liquidated for the benefit of the North Carolina Association and North Carolina policyholders. Underwriters answered, asserting that the Indiana judgment was res judicata as to any pre-rehabilitation claims against the deposit, and therefore was entitled to full faith and credit in the North Carolina courts.
Invoking the Rehabilitation Court’s continuing jurisdiction to resolve all questions involving the interpretation of the Plan, Underwriters filed a petition for instructions in July 1978. The Rehabilitation Court granted the petition, and sent notice to the North Carolina Association, the North Carolina Commissioner and Treasurer, and to all other parties to the rehabilitation proceeding. On September 22, 1978, the Rehabilitation Court held a hearing, at which both Underwriters and the North Carolina Association appeared and presented their respective full-faith-and-credit claims. In an opinion dated November 22, 1978, the Rehabilitation Court held that the 1976 Rehabilitation Plan “fully adjudicated and determined that the North Carolina deposit was an asset of... Underwriters, and any claim existing as of the date of adoption of the Plan... was compromised, settled and dismissed by the final Order and the Plan.” App. to Pet. for Cert. 38A. In reaching this conclusion, the Rehabilitation Court specifically noted that the North Carolina Association had never made any claim to the deposit, even though the $100,000 had been included, without objection, in the general assets of Underwriters listed in Part V of the Plan.'See n. 4, supra. The court went on to state that, although it probably had the power to enjoin the North Carolina Association from proceeding in North Carolina, it declined to do so because it believed that the North Carolina state court would recognize its judgment as binding.
After receiving the Rehabilitation Court’s ruling, Underwriters moved for summary judgment in the North Carolina state trial court, as did the respondents, the North Carolina Association and the North Carolina officials. The trial court entered summary judgment in favor of the respondents, reasoning that it was the only court with the “requisite subject matter jurisdiction to determine the rights of North Carolina policyholders in the special deposits made by [Underwriters] for their protection.” App. to Pet. for Cert. 25A. While noting that the Indiana court did not have in personam jurisdiction over the North Carolina officials or over the North Carolina policyholders, the court held that “[a]n appearance in the Indiana insolvency proceeding by any of the parties having an interest in the deposit... could not constitute a waiver of the Indiana Court’s lack of subject matter jurisdiction with regard to the deposit.” Ibid. As a result, the North Carolina trial court refused to honor the judgment of the Rehabilitation Court. The trial court directed the Commissioner of Insurance to liquidate the deposit to reimburse the North Carolina Association for satisfying the pre-rehabilitation claims of North Carolina policyholders.
On appeal, the North Carolina Court of Appeals affirmed, substantially for the reasons expressed by the trial court. 48 N. C. App. 508, 269 S. E. 2d 688 (1980). The Court of Appeals emphasized that the North Carolina Association sought to protect “statutory,” as opposed to “contractual,” rights; that title and rights to the $100,000 were vested by law in the State Commissioner and Treasurer, thus depriving the Rehabilitation Court of subject matter jurisdiction over the deposit; and that the Rehabilitation Court did not have in personam jurisdiction over these officials. Id., at 517, 269 S. E. 2d, at 694. The Court of Appeals concluded that the deposit could never be an asset of Underwriters, and that the Rehabilitation Court’s decision to the contrary was not entitled to full faith and credit. The North Carolina Supreme Court declined to grant discretionary review. 301 N. C. 527, 273 S. E. 2d 453 (1980).
I I — I
The concept of full faith and credit is central to our system of jurisprudence. Ours is a union of States, each having its own judicial system capable of adjudicating the rights and responsibilities of the parties brought before it. Given this structure, there is always a risk that two or more States will exercise their power over the same case or controversy, with the uncertainty, confusion, and delay that necessarily accompany relitigation of the same issue. See Sherrer v. Sherrer, 334 U. S. 343, 355 (1948); Riley v. New York Trust Co., 315 U. S. 343, 348-349 (1942). Recognizing that this risk of relitigation inheres in our federal system, the Framers provided that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” U. S. Const., Art. IV, §1. This Court has consistently recognized that, in order to fulfill this constitutional mandate, “the judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced.” Hampton v. McConnel, 3 Wheat. 234, 235 (1818) (Marshall, C. J.); Riley v. New York Trust Co., supra, at 353.
To be sure, the structure of our Nation as a union of States, each possessing equal sovereign powers, dictates some basic limitations on the full-faith-and-credit principles enumerated above. Chief among these limitations is the caveat, consistently recognized by this Court, that “a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits — had jurisdiction, that is, to render the judgment.” Durfee v. Duke, 375 U. S. 106, 110 (1963). Consequently, before a court is bound by the judgment rendered in another State, it may inquire into the jurisdictional basis of the foreign court’s decree. If that court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be given. See Nevada v. Hall, 440 U. S. 410, 421 (1979).
The North Carolina courts relied on this limitation in refusing to give full faith and credit to either the 1976 judgment or the 1978 judgment of the Rehabilitation Court. Respondents argue, and the North Carolina courts held, that the Rehabilitation Court was powerless to determine that the North Carolina deposit was an asset of Underwriters. Specifically, respondents contend that the Rehabilitation Court lacked both jurisdiction over the subject matter and jurisdiction over the relevant parties.
A
The North Carolina courts held that the Guaranty Act and the Deposit Act deprived the Rehabilitation Court of the subject matter jurisdiction to determine rights in the $100,000 deposit. Regardless of the validity of this holding as a matter of North Carolina law, it is not an appropriate ground for refusing to accord the Indiana judgments full faith and credit under the facts of this case. In relying on this ground, the courts below failed to recognize the limited scope of review one court may conduct to determine whether a foreign court had jurisdiction to render a challenged judgment.
This Court has long recognized that “[t]he principles of res judicata apply to questions of jurisdiction as well as to other issues.” American Surety Co. v. Baldwin, 287 U. S. 156, 166 (1932). See also Treinies v. Sunshine Mining Co., 308 U. S. 66, 78 (1939); Davis v. Davis, 305 U. S. 32 (1938). Any doubt about this proposition was definitively laid to rest in Durfee v. Duke, supra, at 111, where this Court held that “a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” The North Carolina courts, therefore, should have determined in the first instance whether the Rehabilitation Court fully and fairly considered the question of subject matter jurisdiction over the North Carolina deposit, with respect to pre-rehabilitation claims of the parties before it. If the matter was fully considered and finally determined in the rehabilitation proceedings, the judgment was entitled to full faith and credit in the North Carolina courts.
From our examination of the record, we have little difficulty concluding that the Rehabilitation Court fully and fairly considered whether it had subject matter jurisdiction to settle the pre-rehabilitation claims of the parties before it to the North Carolina deposit. As we noted earlier, in addition to being a state court of general jurisdiction, the Rehabilitation Court also has special duties with respect to the rehabilitation of insurance companies. See n. 1, supra. In its November 1976 order approving the Rehabilitation Plan, the Rehabilitation Court made it clear that it was asserting both subject matter jurisdiction over all pre-rehabilitation claims against Underwriters, including those of the guaranty associations, and personal jurisdiction over the North Carolina Association and Underwriters. See App. 39, 53. Furthermore, as our recitation of the events leading up to the Rehabilitation Court’s 1976 order indicates, that court was aware of potential claims that the North Carolina Association might assert against Underwriters. In order to ensure that all such claims were definitively resolved during the rehabilitation proceeding, the Rehabilitation Court notified the Association that it must either intervene in the rehabilitation proceeding to make objections to, or suggest changes in, the Proposed Plan of Rehabilitation, or specifically waive all such claims. See supra, at 698. Finally, the record indicates that, after the North Carolina Association intervened in the rehabilitation proceeding, it negotiated certain changes in Part X(C) of the Proposed Plan of Rehabilitation, concerning Underwriters’ liability to the guaranty associations for payments made to Underwriters’ policyowners. See supra, at 698-699.
The North Carolina Association relies on the failure of the Rehabilitation Court either to specify that it was extinguishing the Association’s right to use the $100,000 deposit to satisfy pre-rehabilitation obligations, or to address the argument that only North Carolina courts have subject matter jurisdiction to settle rights to the deposit. This reliance is misplaced. First, any doubts that the North Carolina Association may have had concerning the extent to which the Rehabilitation Court purported to exercise its jurisdiction over the Association’s rights to the deposit were definitively settled by that court’s 1978 ruling. Supra, at 702. After considering the arguments now advanced by the North Carolina Association, the Rehabilitation Court ruled that its 1976 order had “fully adjudicated and determined that the North Carolina deposit was an asset of... Underwriters, and any claim existing as of the date of adoption of the Plan against the deposit by the North Carolina Association... was compromised, settled and dismissed by the final Order and the Plan.” App. to Pet. for Cert. 38A.
Second, it is undisputed that the Rehabilitation Court had listed the North Carolina deposit as a general asset of Underwriters to be included in the Plan of Rehabilitation. By listing the deposit as a general asset, the Rehabilitation Court announced its intention to assert jurisdiction over pre-rehabilitation claims to the deposit. As an intervening party to the rehabilitation proceeding, the North Carolina Association was obliged to advance its argument that the Rehabilitation Court did not have the authority to settle pre-rehabilitation claims to the deposit when it was given the opportunity to do so. A party cannot escape the requirements of full faith and credit and res judicata by asserting its own failure to raise matters clearly within the scope of a prior proceeding. See Sherrer v. Sherrer, 334 U. S., at 352. The Indiana Rehabilitation Court gave the North Carolina Association sufficient notice that any pre-rehabilitation claim that it had against the North Carolina deposit, including its argument that the Rehabilitation Court was without jurisdiction to extinguish its claim to the deposit, had to be advanced in the rehabilitation proceeding. No such claim having been made, the Rehabilitation Court finally determined the issue when it approved the Plan, and ruled that all claims inconsistent with the Plan, which could have been presented in the rehabilitation proceeding, were “overruled and relief to that extent denied.” App. 40. The issue having been fully and fairly considered by the Indiana court, its final determination was entitled to full faith and credit in North Carolina.
B
Alternatively, respondents argue that the judgment of the Rehabilitation Court was not entitled to full faith and credit because that court lacked in personam jurisdiction over the North Carolina policyowners and the state officials. Although under different circumstances these questions might give us pause, it is clear that the Rehabilitation Court had personal jurisdiction over all parties necessary to its determination that the North Carolina Association could not satisfy pre-rehabilitation claims out of the North Carolina deposit.
Respondents argue that the Rehabilitation Court did not have jurisdiction over the policyowners because no policyowner actually appeared in the rehabilitation proceeding, and because the class representatives could not adequately represent the interests of policyowners in both deposit and nondeposit States. As a preliminary matter, we note that no North Carolina policyowner has complained about the Rehabilitation Plan, nor did any policyowner directly participate in either the North Carolina litigation or the proceedings before this Court. Furthermore, the North Carolina Association has not identified any interest in the North Carolina deposit that a policyowner might have, independent of the interests asserted here by the Association. The class representatives in the rehabilitation proceeding were instructed by the Rehabilitation Court to represent the interests of all past and present policyowners. See n. 20, supra. Although the North Carolina Association asserts that these representatives were inadequate, it never explains why the policyowners, as compared to the Association, would care whether the deposit was considered a general asset of Underwriters, unavailable for the Association’s use in satisfying pre-rehabilitation claims. North Carolina law requires the Association to provide North Carolina policyowners with pre-rehabilitation coverage even if it cannot use the deposit to finance this obligation. See N. C. Gen. Stat. §58-155.72(4) (Supp. 1981). Therefore, these policyowners have no current interest in whether the North Carolina Association is allowed to liquidate the $100,000 deposit. The North Carolina courts’ refusal to give the Indiana judgment full faith and credit, accordingly, cannot be supported by the alleged inadequate representation of this unidentified policyowner interest.
The argument that the Rehabilitation Court did not have jurisdiction over the North Carolina officials is more complex. The North Carolina Court of Appeals found that the Rehabilitation Court did not have jurisdiction over the trust property, or over the statutory trustees. Citing this Court’s decision in Hanson v. Denckla, 357 U. S. 235 (1958), respondents argue that absent jurisdiction over the trust corpus or the trustee, the Rehabilitation Court was powerless to adjudicate rights in the North Carolina deposit. Therefore, respondents argue, the judgment of the Rehabilitation Court is not entitled to full faith and credit, even as to parties admittedly subject to its jurisdiction.
Respondents’ reliance on Hanson v. Denckla, supra, is misplaced. In Hanson, this Court considered both a Florida judgment on direct review, and a Delaware judgment refusing to accord full faith and credit to the Florida judgment. Because the Florida judgment was before the Court on direct review, the Court was free to determine whether that court’s exercise of jurisdiction over the trust or the trustee was appropriate. This Court determined that the Florida courts were without jurisdiction over either the trust or the trustee who, under Florida law, was a necessary party to a suit to determine the validity of the trust. As a result, of course the Delaware courts were under no obligation to accord full faith and credit to a judgment rendered in a court without jurisdiction.
In this case, however, the Rehabilitation Court’s conclusion that it had jurisdiction to compromise the claims of the parties before it to the North Carolina deposit is not presented to this Court on direct review, and we express no opinion on the propriety of this conclusion. Although the Rehabilitation Court did not attempt to exercise jurisdiction over the North Carolina trustees, that court did purport to exercise jurisdiction over the trust corpus. The 1978 order specifies that the 1976 Rehabilitation Plan determined that the North Carolina deposit was an asset of Underwriters, subject to the jurisdiction of the Rehabilitation Court. This conclusion may well have been erroneous as a matter. of North Carolina law. See State ex rel. Ingram v. Reserve Insurance Co., 303 N. C. 623, 629, 281 S. E. 2d 16, 20 (1981). Erroneous or not, however, this jurisdictional issue was fully and fairly litigated and finally determined by the Rehabilitation Court. Under Durfee v. Duke, 375 U. S. 106 (1963), and its progeny, once the Rehabilitation Court determined that the North Carolina Association could not liquidate the deposit to settle pre-rehabilitation claims, the North Carolina courts were required to honor that determination, even though the Rehabilitation Court did'not assert personal jurisdiction over the trustees. See supra, at 706-707. It is beyond dispute that a court of competent jurisdiction can settle the claims of two competing parties to specific property even though a third party may claim an interest in the same res. See Morris v. Jones, 329 U. S. 545 (1947). The Rehabilitation Court held that the Rehabilitation Plan extinguished the claim that the North Carolina Association is now asserting, and the North Carolina courts erred in refusing to give that court’s judgment full faith and credit.
C
Respondents argue that requiring North Carolina to give full faith and credit to the Rehabilitation Court’s determination that the deposit was an asset of Underwriters, would negate that State’s comprehensive statutory scheme to ensure the protection of North Carolina policyowners. Respondents contend that the courts and commentators are virtually unanimous in their support of a State’s right to segregate assets of a foreign insurance company to be used for the sole benefit of that State’s policyowners. See 2 G. Couch, Insurance Law §22:96 (2d ed. 1959); 5 J. Joyce, Law of Insurance §3595 (2d ed. 1918). Cf. Blake v. McClung, 172 U. S. 239, 257 (1898). It would not be equitable, respondents conclude, to require North Carolina to honor such a clearly erroneous result. While these arguments may have merit as a matter of insurance law, the only forums in which respondents may challenge the Rehabilitation Court’s assertion of jurisdiction on these legal and equitable grounds are in Indiana. The North Carolina Association’s decision to assert these arguments in a separate proceeding in North Carolina has resulted in two state courts reaching mutually inconsistent judgments on the same issue. This is precisely the situation the Pull Faith and Credit Clause was designed to prevent. Because we find that North Carolina was obligated to give full faith and credit to the judgment of the Rehabilitation Court, we reverse the decision of the North Carolina Court of Appeals and remand for further proceedings not inconsistent with this opinion,
It is so ordered.
The Indiana Rehabilitation Court is a court of general jurisdiction. In addition, the Rehabilitation Court is authorized by statute to oversee the actions of the Rehabilitator in formulating a plan of rehabilitation, to enter injunctions to prevent interference with either the Rehabilitator or the rehabilitation proceeding, and to enter the final order of rehabilitation. See Ind. Code §27-1-4-1 et seq. (1976).
Three class actions and one individual lawsuit were stayed as a result of the Rehabilitation Court’s order. Schultz v. Underwriters National Assurance Co., Civ. Action No. 74 C 2550 (ND Ill.) (class action on behalf of all Illinois policyowners); Honeycutt v. Underwriters National Assurance Co., Civ. Action No. 482-74-A (ED Va.) (class action on behalf of all Virginia policyowners); Hall v. Underwriters National Assurance Co., Civ. Action No. 75-L-1589-NE (ND Ala.) (class action on behalf of all policyowners in Madison County, Ala.); Meyer v. Guarantee Reserve Life Ins. Co., Cause No. 786-532 (Super. Ct. of King County, Wash.). These lawsuits alleged, inter alia, that Underwriters had fraudulently misled policyowners as to the financial condition of the company.
The court certified the class under Indiana Trial Rule 23(B)(3). Indiana Trial Rules are identical to the Federal Rules of Civil Procedure with respect to class actions.
The court file included a document listing Underwriters' assets. The North Carolina Association concedes that this document included the $100,000 deposit as a general asset of Underwriters. Brief for Respondents 11-12.
Underwriters had underwritten a large block of “noncancelable” disability insurance policies. These policies not only were guaranteed to be renewable at the same premium regardless of experience, but also entitled the policyowner to a refund of 80% of the premiums paid if no disability claims were asserted in a 10-year period. The Proposed Plan eliminated the 80% refund, and converted the policies from “noncancelable” to “guaranteed renewable,” meaning that the policy was renewable at the policy-owner’s option, but the company could increase the premium.
The guaranty associations also requested that the court modify the plan in ways not relevant to the instant proceeding.
At the joint request of Underwriters and the associations, the Rehabilitation Court had approved the concept of a service contract prior to the adoption of the final Plan of Rehabilitation. Brief for Petitioner 11.
The North Carolina Association has appealed this ruling, but the Indiana Court of Appeals stayed consideration of its appeal pending this Court’s resolution of this case.
This construction is also compelled by 28 U. S. C. § 1738, the statutory codification of this constitutional guarantee. This provision requires that “Acts, records and judicial proceedings... shall have the same full faith and credit in every court within the United States... as they have by law or usage in the courts of such State... from which they are taken.”
This limitation flows directly from the principles underlying the Full Faith and Credit Clause. It is axiomatic that a judgment must be supported by a proper showing of jurisdiction over the subject matter and over the relevant parties. One State’s refusal to enforce a judgment rendered in another State when the judgment is void for lack of jurisdiction merely gives to that judgment the same “credit, validity, and effect” that it would receive in a court of the rendering State.
Respondents argue that because North Carolina courts have exclusive jurisdiction to determine rights in the deposit, they were not required to recognize the Indiana judgment. Even if we accept the argument that North Carolina courts have exclusive jurisdiction over the subject matter of this litigation, the rule of jurisdictional finality established in Durfee v. Duke, 375 U. S. 106 (1963), would still apply. See infra, at 706. Respondents attempt to analogize this claim of exclusive jurisdiction to the exclusive jurisdiction each State has to control the administration of real property within its borders. See Fall v. Eastin, 215 U. S. 1 (1909); Clarke v. Clarke, 178 U. S. 186 (1900). Respondents fail to recognize, however, that the Durfee Court explicitly refused to recognize an exception to the rule of jurisdictional finality for eases involving real property over which the State claims exclusive jurisdiction. 375 U. S., at 115.
Respondents argue that the North Carolina court’s determination of its own jurisdiction, as well as its determination that the Rehabilitation Court was without jurisdiction, is now entitled to this same limited scope of review. See Brief for Respondents 40. Although this argument would have force if Underwriters were collaterally attacking the North Carolina court’s decision on jurisdiction, see
Question: What is the state of the court whose decision the Supreme Court reviewed?
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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56
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
THE ENTERPRISE COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, W. P. Hobby, Beaumont Broadcasting Corporation, Intervenors.
No. 16099.
United States Court of Appeals District of Columbia Circuit.
Argued May 9, 1961.
Decided July 7, 1961.
Mr. Stanley S. Neustadt, Washington, D. C., with whom Mr. Leonard H. Marks, Washington, D. C., was on the brief, for appellant. Mr. Paul Dobin, Washington, D. C., also entered an appearance for appellant.
Mrs. Ruth Reel, Counsel, Federal Communications Commission, for appellee. Messrs. Max D. Paglin, Gen. Counsel, Federal Communications Commission, Daniel R. Ohlbaum, Asst. Gen. Counsel, Federal Communications Commission, and James T. Brennan, Jr., Counsel, Federal Communications Commission, were on the brief for appellee. Mr. Joel Rosenbloom, Counsel, Federal Communications Commission at the time the record was filed, also entered an appearance for appellee.
Mr. George S. Smith, Washington, D. C., with whom Mr. Edwin S. Nail, Washington, D. C., was on the brief, for intervenor, Beaumont Broadcasting Corp.
Messrs. William C. Koplovitz and William J. Dempsey, Washington, D. C., entered appearances for intervenor, W. P. Hobby.
Before Bazelon, Fahy and Danaher, Circuit Judges.
DANAHER, Circuit Judge.
Enterprise seeks review of the Commission’s order released November 7, 1960, reaffirming its earlier award of a construction permit to Beaumont Broadcasting Corporation for a television station to operate on Channel 6 in Beaumont, Texas. Details of the case in its present posture will succinctly be outlined.
The Commission’s decision of August 4, 1954, apprised the parties that Beaumont had prevailed after a comparative hearing among three applicants. Enterprise and KTRM petitioned for reconsideration, oral argument being set for December 21, 1954. On December 17, 1954, the Commission was advised of an agreement as a result of which KTRM withdrew its petition for reconsideration. Beaumont then borrowed $55,000 from one Hobby, who had been interested in KTRM, and paid that money to KTRM to reimburse it for the sums expended by it in connection with the preparation and presentation of its application for a television construction permit. This court required the Commission to reexamine the comparative qualifications of the remaining parties on a reopened record which was to take account of all such circumstances.
Thereafter the case again came here and was again remanded. The court deemed the record inadequate especially since there had been no sufficient showing as to the nature of the consideration. It was made clear that the court was interested basically in whether or not the payment contravened the public interest or constituted an abuse of the Commission’s processes. That the Commission was thus so apprised is apparent from its order remanding the case to its examiner for further hearing.
The hearing examiner and the Commission specifically found that KTRM’s fair and reasonable out-of-pocket expenses aggregated a sum not less than $55,-000; that the payment covered properly reimbursable expenses of KTRM; and that nothing in the transaction contravened the public interest or constituted an abuse of the Commission’s processes. We can not say that the findings and conelusions of the Commission are not supported by substantial evidence on the record as a whole. Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Under such circumstances, we are bound to affirm.
Affirmed.
. Various aspects of the arrangement were considered in Enterprise Company v. Federal Communications Com’n, 1955, 97 U.S.App.D.C. 374, 376, 377, 231 F.2d 708, 710, 711, certiorari denied 1956, 351 U.S. 920, 76 S.Ct. 711, 100 L.Ed. 1451.
. Id. 97 U.S.App.D.C. at page 380, 231 F.2d at page 713.
. Enterprise Co. v. F. C. C., 1959, 105 U.S.App.D.C. 119, 265 F.2d 103.
. Cf. § 5(a), 74 Stat. 892 (1960), amending 47 U.S.C.A. § 311, which provides the applicable standards.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_appel1_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 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.
J. S. GISSEL & COMPANY, as claimant of the TUG SAN PEDRO and the BARGES GISSEL 2001 and GISSEL 1302, Appellant, v. SIR WILLIAM REARDON SMITH & SONS, LTD., as owner of the MOTOR VESSEL BRADFORD CITY, Appellee. SIR WILLIAM REARDON SMITH & SONS, LTD., as owner of the Motor Vessel Bradford City, Appellant, v. J. S. GISSEL & COMPANY, as claimant of the tug San Pedro and the barges Gissel 2001 and Gissel 1302, Appellee.
No. 20528.
United States Court of Appeals Fifth Circuit.
March 3, 1964.
Rehearing Denied April 3, 1964.
Edward W. Watson, Eastham, Watson, Dale & Forney, Galveston, Tex., for appellant-appellee.
Harold R. DeMoss, Jr., Bracewell, Reynolds & Patterson, Houston, Tex., for Signal Oil & Gas Co.
Bryan F. Williams, Jr., Royston, Rayzor & Cook, Galveston, Tex., for Sir William Reardon Smith & Sons, Ltd.
Before HUTCHESON and BELL, Circuit Judges, and BREWSTER, District Judge.
PER CURIAM.
This is an appeal from a judgment in admiralty in a collision case on the Houston Ship Channel.
The district judge filed full findings of fact and conclusions of law, and entered judgment accordingly.
As is usual in cases of this kind, the appellant makes a great outcry against the findings. We are, however, convinced that this is much ado about nothing and that the decree should be affirmed on the ground that the findings are not shown to be clearly erroneous.
Affirmed.
. Smith & Sons Ltd., v. Tug San Pedro, D.C., 226 F.Supp. 879.
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_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
William Henry HIET, Appellant, v. UNITED STATES of America, Appellee.
No. 19747.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 21, 1966.
Decided Jan. 12, 1967.
Petition for Rehearing En Banc Denied March 9, 1967.
Mr. Richard J. Flynn, Washington, D. C. (appointed by this court), with whom Mr. David J. Boyd was on the brief, for appellant.
Mr. James A. Strazzella, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Danaher, Circuit Judge, and Bastían, Senior Circuit Judge.
DANAHER, Circuit Judge.
This appellant was convicted of unlawful possession on February 17, 1965 of some 16 packages which had been stolen from the United States mails in violation of 18 U.S.C. § 1708. He has here contended that the District Court erred in denying his motion to suppress certain mail bags and that he otherwise had not received a fair trial.
The Government offered evidence to show that about 12:50 A.M. on February 17, 1965, two Metropolitan police officers had stopped their police car at Fourth and F Streets, N. E. This appellant then owned and was operating an automobile which he drove through the stop light at approximately 30 miles per hour. Officer Ashbum turned on the police car’s red light and with siren sounding, commenced pursuit of Hiet’s car. Thereupon, Hiet halted his car briefly but renewed his flight, only to strike two parked cars after turning from Second Street into G Street. The Hiet ear continued into an alley where it presently collided with a fence. Hiet jumped from the car and continued his flight on foot. The opening of the door on the abandoned vehicle had caused the car’s dome light to come on. As Officer Emmart approached he readily saw two bags labeled “U. S. Mail.” In the right front seat of the car was one Raymond Cloud whom the officer placed under arrest.
Meanwhile, Officer Ashbum had apprehended Hiet. With Cloud in the back seat of the police cruiser, Officer Emmart drove around the block and joined Officer Ashburn who called for a police wagon. Hiet was placed inside as the two officers returned to Hiet’s car. Both doors were still open, the inside dome light was still lighted, and the officers saw the two mail bags, one on top of the other, just behind the driver’s seat. The bags were taken to a police precinct and were examined by Inspector Weaver of the Post Office Department who determined that the packages in the mail bags had been mailed and had been received by the postal authorities.
Although no pretrial motion for the suppression of the mailed items had been made, defense counsel at trial asked to reserve the right to object to the introduction of the evidence. In due course a motion to suppress was offered on the ground that the mail bags had been seized without the officers’ having procured a search warrant. The trial judge ruled that the seizure was valid.
When the officers approached the car they saw the mail bags in plain view, and the case accordingly, is totally unlike the circumstances shown in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); cf. Price v. United States, 121 U.S.App.D.C. 62, 348 F.2d 68, cert. denied, 382 U.S. 888, 86 S.Ct. 170, 15 L.Ed.2d 125 (1965). Since there was no search, Harris v. United States, 125 U.S.App.D.C. -, 370 F.2d 477 (en banc, 1966), a search warrant was unnecessary. The only question is whether or not the mail bags could be seized. Although it is possible that the mail bags could have been in appellant’s possession lawfully, the cir-cumstanees outlined above gave the officers probable cause to believe that a crime involving the mail bags had been, and was being, committed. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The trial judge so found. The officers could seize the mail bags as a fruit of the crime.
The appellant did not take the stand and no explanation was offered as to his possession of the mail bags. Cf. Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Dunlop v. United States, 165 U.S. 486, 502, 503, 17 S.Ct. 375, 41 L.Ed. 799 (1897).
The appellant has not substantiated his claim that the trial court abused its discretion by not granting a continuance. The judgment of the District Court is
Affirmed.
. The intoxicated Cloud informed police that Hiet had picked him up and was taking him home; he had no knowledge concerning the mail bags. What disposition was ultimately made of Cloud’s case does not appear on this record. The Government unsuccessfully attempted to locate him,, but Cloud did not appear at Hiet’s trial.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_lcdisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
FEDERAL COMMUNICATIONS COMMISSION v. PACIFICA FOUNDATION et al.
No. 77-528.
Argued April 18, 19, 1978
Decided July 3, 1978
Stevens, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I-III and IV-C, in which Burger, C. J'., and Rehnquist, J., joined, and in all but Parts IV-A and IV-B of which Blackmun and Powell, JJ., joined, and an opinion as to Parts IV-A and IV-B, in which Burger, C. J., and Rehnquist, J., joined.. Powell, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, J., joined, post, p. 755. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 762. Stewart, J., filed a dissenting opinion, in which Brennan, White, and Marshall, JJ., joined, post, p. 777.
Joseph A. Marino argued the cause for petitioner. With him on the briefs were Robert R. Bruce and Daniel M. Armstrong.
Harry M. Plotkin argued the cause for respondent Pacifica Foundation. With him on the brief were David Tillotson and Harry F. Cole. Louis F. Claiborne argued the cause for the United States, a respondent under this Court’s Rule 21 (4). With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Jerome M. Feit.
Briefs of amici curiae urging reversal were filed by Anthony H. Atlas for Morality in Media, Inc.; and by George E. Reed and Patrick F. Geary for the United States Catholic Conference.
Briefs of amici curiae urging affirmance were filed by J. Roger Wollen-berg, Timothy B. Dyk, James A. McKenna, Jr., Carl R. Ramey, Erwin G. Krasnow, Floyd Abrams, J. Laurent Scharff, Corydon B. Dunham, and Howard Monderer for the American Broadcasting Companies, Inc., et ah; by Henry R. Kaufman, Joel M. Gora, Charles Sims, and Bruce J. Ennis for the American Civil Liberties Union et al.; by Irwin Karp for the Authors League of America, Inc;'; by James Bouras, Barbara Scott, and Fritz E. Attaway for the Motion Picture Association of America, Inc.; and by Paul P. Selvin for the Writers Guild of America, West, Inc.
Charles M. Firestone filed a brief for the Committee for Open Media as amicus curiae.
Me. Justice Stevens
delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which The Chief Justice and Me. Justice Rehnquist joined (Parts IV-A and IY-B).
This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene.
A satiric humorist named George Carlin recorded a 12-minute monologue entitled “Filthy Words” before a live audience in a California theater. He began by referring to his thoughts about “the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience.
At about 2 o’clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the “Filthy Words” monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the “record’s being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control.”
The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society’s attitude toward language and that, immediately before its broadcast, listeners had been advised that it included “sensitive language which might be regarded as offensive to some.” Pacifica characterized George Carlin as “a significant social satirist” who “like Twain and Sahl before him, examines the language of ordinary people.... Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.” Pacifica stated that it was not aware of any other complaints about the broadcast.
On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica “could have been the subject of administrative sanctions.” 56 F. C. C. 2d 94, 99. The Commission did not impose formal sanctions, but it did state that the order would be “associated with the station’s license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress.”
In its memorandum opinion the Commission stated that it intended to “clarify the standards which will be utilized in considering” the growing number of complaints about indecent speech on the airwaves. Id., at 94. Advancing several reasons for treating broadcast speech differently from other forms of expression, the Commission found a power to regulate indecent broadcasting in two statutes: 18 U. S. C. § 1464 (1976 ed.), which forbids the use of “any obscene, indecent, or profane language by means of radio communications,” and 47 U. S. C. § 303 (g), which requires the Commission to “encourage the larger and more effective use of radio in the public interest.”
The Commission characterized the language used in the Carlin monologue as “patently offensive,” though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the “law generally speaks to channeling behavior more than actually prohibiting it.... [T]he concept of ‘indecent’ is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” 56 F. C. C. 2d, at 98.
Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they “were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon),” and that the prerecorded language, with these offensive words “repeated over and over,” was “deliberately broadcast.” Id., at 99. In summary, the Commission stated: “We therefore hold that the language as broadcast was indecent and prohibited by 18 U. S. C. [§] 1464.” Ibid.
After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that it “never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.” 59 F. C. C. 2d 892 (1976). The Commission noted that its “declaratory order was issued in a specific factual context,” and declined to comment on various hypothetical situations presented by the petition. Id., at 893. It relied on its “long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them.” Ibid.
The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. 181 U. S. App. D. C. 132, 556 F. 2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Communications Act. Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule and concluded that it was “overbroad.” 181 U. S. App. D. C., at 141, 556 F. 2d, at 18. Chief Judge Bazelon’s concurrence rested on the Constitution. He was persuaded that § 326’s prohibition against censorship is inapplicable to broadcasts forbidden by § 1464. However, he concluded that § 1464 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. 181 U. S. App. D. C., at 140-153, 556 F. 2d, at 24-30. Judge Leventhal, in dissent, stated that the only issue was whether the Commission could regulate the language “as broadcast.” Id., at 154, 556 F. 2d, at 31. Emphasizing the interest in protecting children, not only from exposure to indecent language, but also from exposure to the idea that such language has official approval, id., at 160, and n. 18, 556 F. 2d, at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent.
Having granted the Commission’s petition for certiorari, 434 U. S. 1008, we must decide: (1) whether the scope of judicial review encompasses more than the Commission’s determination that the monologue was indecent “as broadcast”; (2) whether the Commission’s order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution.
I
The general statements in the Commission’s memorandum opinion do not change the character of its order. Its action was an adjudication under 5 U. S. C. § 554 (e) (1976 ed.); it did not purport to engage in formal rulemaking or in the promulgation of any regulations. The order “was issued in a specific factual context”; questions concerning possible action in other contexts were expressly reserved for the future. The specific holding was carefully confined to the monologue “as broadcast.”
“This Court... reviews judgments, not statements in opinions.” Black v. Cutter Laboratories, 351 U. S. 292, 297. That admonition has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues. Rescue Army v. Municipal Court, 331 U. S. 549, 568-569. However appropriate it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions. See Herb v. Pitcairn, 324 U. S. 117, 126. Accordingly, the focus of our review must be on the Commission’s determination that the Carlin monologue was indecent as broadcast.
II
The relevant statutory questions are whether the Commission’s action is forbidden “censorship” within the meaning of 47 U. S. C. § 326 and whether speech that concededly is not obscene may be restricted as “indecent” under the authority of 18 U. S. C. § 1464 (1976 ed.). The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately.
Section 29 of the Radio Act of 1927 provided:
“Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.” 44 Stat. 1172.
The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.
During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to subject “broadcasting matter to scrutiny prior to its release,” but they concluded that the Commission’s “undoubted right” to take note of past program content when considering a licensee’s renewal application “is not censorship.”
Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction. Thus, for example, in his opinion in Anti-Defamation League of B’nai B’rith v. FCC, 131 U. S. App.. D. C. 146, 403 F. 2d 169 (1968), cert. denied, 394 U. S. 930, Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming. He explained:
“This would not be prohibited ‘censorship,’... any more than would the Commission’s considering on a license renewal application whether a broadcaster allowed ‘coarse, vulgar, suggestive, double-meaning’ programming ; programs containing such material are grounds for denial of a license renewal.” 131 U. S. App. D. C., at 150-151, n. 3, 403 F. 2d, at 173-174, n. 3.
See also Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F. 2d 994 (1966).
Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission’s power to regulate the broadcast of obscene, indecent, or profane language. A single section of the 1927 Act is the source of both the anticensorship provision and the Commission’s authority to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language.
There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted. In 1934, the anticensorship provision and the prohibition against indecent broadcasts were re-enacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Code was revised to include provisions that had previously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as § 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anticensorship provision. H. R. Rep. No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 162.
We conclude, therefore, that § 326 does not limit the Commission’s authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.
Ill
The only other statutory question presented by this case is whether the afternoon broadcast of the “Filthy Words” monologue was indecent within the meaning of § 1464. Even that question is narrowly confined by the arguments of the parties.
The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission’s definition of indecency, but does not dispute the Commission’s preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica’s claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal.
The plain language of the statute does not support Pacifica’s argument. The words “obscene, indecent, or profane” are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of “indecent” merely refers to noncon-formance with accepted standards of morality.
Pacifica argues, however, that this Court has construed the term “indecent” in related statutes to mean “obscene,” as that term was defined in Miller v. California, 413 U. S. 15. Pacifica relies most heavily on the construction this Court gave to 18 U. S. C. § 1461 in Hamling v. United States, 418 U. S. 87. See also United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 n. 7 (18 U. S. C. § 1462) (dicta). Hamling rejected a vagueness attack on § 1461, which forbids the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” material. In holding that the statute’s coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U. S. 478. In that case, Mr. Justice Harlan recognized that § 1461 contained a variety of words with many shades of meaning. Nonetheless, he thought that the phrase “obscene, lewd, lascivious, indecent, filthy or vile,” taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: “[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex.” 370 U. S., at 483. In Hamling the Court agreed with Mr. Justice Harlan that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute’s constitutionality.
The reasons supporting Hamling’s construction of § 1461 do not apply to § 1464. Although the history of the former revealed a primary concern with the prurient, the Commission has long interpreted § 1464 as encompassing more than the obscene. The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts. It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means.
Because neither our prior decisions nor the language or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica’s construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission’s conclusion that indecent language was used in this broadcast.
IV
Pacifica makes two constitutional attacks on the Commission’s order. First, it argues that the Commission’s construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica’s broadcast of the “Filthy Words” monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio.
A
The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was “issued in a specific factual context.” 59 F. C. C. 2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context — it cannot be adequately judged in the abstract.
The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. In that case the Court rejected an argument that the Commission’s regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters’ freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program content. Radio Television News Directors Assn. v. United States, 400 F. 2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated:
“We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U. S. 689, 694 (1948), but will deal with those problems if and when they arise.” 395 U. S., at 396-.
It is true that the Commission’s order may lead some broadcasters to censor themselves. At most, however, the Commission’s definition of indecency will -deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U. S. 350, 380-381. Young v. American Mini Theatres, Inc., 427 U. S. 50, 61. The danger 'dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is “strong medicine” to be applied “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U. S. 601, 613. We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech.
B
When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances. For if the government has any such power, this was an appropriate occasion for its exercise.
The words of the Carlin monologue are unquestionably “speech” within the meaning of the First Amendment. It is equally clear that the Commission’s objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution.
The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes’ statement for the Court in Schenck v. United States, 249 U. S. 47, 52:
“We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.... The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against-uttering words that may have all the effect of force.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Other distinctions based on content have been approved in the years since Schenck. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire, 315 U. S. 568. It may pay heed to the “ 'commonsense differences’ between commercial speech and other varieties.” Bates v. State Bar of Arizona, supra, at 381. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., 418 U. S. 323. Obscenity may be wholly prohibited. Miller v. California, 413 U. S. 15. And only two Terms ago wé refused to hold that a “statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment.” Young v. American Mini Theatres, Inc., supra, at 52.
The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U. S. 476. But the fact that society may find speech offensive is not a sufficient reason for - suppressingyit. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission’s characterization of the Carlin monologue as offensive could be traced to its political content — or even to the fact that it satirized contemporary attitudes about four-letter words— First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: “[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S., at 572.
Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, e. g., Hess v. Indiana, 414 U. S. 105. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. It is a characteristic of speech such as this that both its capacity to offend and its “social value,” to use Mr. Justice Murphy’s term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion’s lyric is another’s vulgarity. Cf. Cohen v. California, 403 U. S. 15, 25.
In this case it is undisputed that the content of Pacifica’s broadcast was “vulgar,” “offensive,” and “shocking.” Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission's action was constitutionally permissible.
C
We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502-503. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve “the public interest, convenience, and necessity.” Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367.
The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U. S. 728. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U. S. 629, that the government’s interest in the “well-being of its youth” and in supporting “parents’ claim to authority in their own household” justified the regulation of otherwise protected expression. Id., at 640 and 639. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission’s decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a “nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard.” Euclid v. Ambler Realty Co., 272 U. S. 365, 388. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.
The judgment of the Court of Appeals is reversed.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
The following is a verbatim transcript of “Filthy Words” prepared by the Federal Communications Commission.
Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, ['] cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead, (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, ['] cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn’t and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon, (laughter) And now the first thing that we noticed was that word fuck was really repeated in there because the word motherfucker is a compound word and it's another form of the word fuck, (laughter) You want to be a purist it doesn't really — it can’t be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word — the half sucker that’s merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty — dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock — three times. It’s in the Bible, cock in the Bible, (laughter) And the first time you heard about a cock-fight, remember — What? Huh? naw. It ain’t that, are you stupid? man. (laughter, clapping) It’s chickens, you know, (laughter) Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it’s not really okay. It’s still a rude, dirty, old kind of gushy word, (laughter) They don’t like that, but they say it, like, they say it like, a lady now in a middle-class home, you’ll hear most of the time she says it as an expletive, you know, it’s out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling)
Read it! (from audience)
Shit! (laughter) I won the Grammy, man, for the comedy album. Isn’t that groovy? (clapping, whistling) (murmur) That’s true. Thank you. Thank you man. Yeah, (murmur) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_habeas
|
A
|
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.
ENRIQUE RIVERA et al. v. UNITED STATES.
No. 2564.
Circuit Court of Appeals, First Circuit.
April 7, 1932.
Francis H. Dexter, of San Juan, Porto Rico (Benieio F. Sanchez, of San Juan, Porto Rico, on tho brief), for appellants.
Frank Martinez, U. S. Atty., of San Juan, Porto Rico (Frank Bianehi, Asst. U. S. Atty., of San Juan, Porto Rico, and A. Chesley York, Asst. U. S. Atty., of Boston, Mass., o-n the brief), for the United States.
Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.
MORRIS, District Judge.
This is an appeal brought by Faustino Enrique Rivera and Ramon Monchin from a judgment of the District Court of the United States for the District of Porto Rico, in favor of the United States, in a criminal prosecution for violation of section 37 of the Criminal Code of the United States (18 US CA § 88).
On June 25-, 1930', the grand jury for tho District of Porto Rico had presented to it by the acting United States attorney a form of an indictment containing three counts against the above-named defendants.
As to the first count, the grand jury returned “not a true bill.” To the second and third counts it returned “a true bill.”
Upon trial the petit jury returned a verdict of “not guilty” on the second count, and “guilty” on the third count.
Counts 1 and 2 are eliminated from our consideration. Count 3 is in the language following: “That on about the 18th day of April, 1930, and upon other dates to these grand jurors unknown, at Porto Rico, in the District of Porto Rico and within the jurisdiction of this Court, and in other places to these Grand Jurors unknown, Faustino Enrique Rivera (a) Fa and Ramon Arzón (a) Monchin, did unlawfully, willfully and knowingly conspire, combine, confederate and agree together, with eaeh other, and with divers other persons to these Grand Jurors unknown, to fraudulently and knowingly facilitate the transportation of certain merchandise which had been imported in the United States contrary to law and which the said defendants then and there well knew to have been imported into the United States contrary to law in that the duty on said merchandise as required by the Tariff Act of 1922 was not paid, which said merchandise consisted of 93 sacks of Holstein Pilsener Beer and the transportation of which said merchandise was facilitated as aforesaid in Brockway truck, license plate No. H-404, motor No. 4537. That in pursuance of said conspiracy, combination, confederation and agreement, and to effect the object thereof, the aforesaid track was loaded with the said merchandise, to wit, 93 sacks of Holstein Pilsener Beer, and the said truck was escorted by the defendants herein in a Dodge Victory Sedan automobile, license plate No. 9843, and the said defendants parked the said automobile across the road in front of the said truck and came out of the automobile with guns, and several other persons to the Grand Jurors unknown also came out of the truck, all armed with guns, and tried to prevent and prevented the search and seizure of the truck, and which said acts were done on or about April 18, 1930, at Porto Rico, in the district aforesaid and within the jurisdiction of this Court.”
To this indictment the defendant filed a demurrer in the following language:
“Now come the defendants through their undersigned attorney and demur to the third count of the indictment for the same is not sufficient in law and is defective, uncertain and insufficient in the following particulars:
“That the alleged conspiracy does not show facts sufficient to bring it within any statute of the United States.
“That there is no sufficient allegation of the object of the alleged conspiracy.
“There is no sufficient showing of unlawful means, or the commission of any overt act by these defendants. .
“That the attempted statement of facts seeking to show a connection of these defendants with an' alleged conspiracy are statements of conclusion of law.
“That said third count of the indictment is vague, indefinite and uncertain in failing to show:
“(a) When the alleged conspiracy was entered into, (b) What the alleged conspiracy consisted of. (e) Whether the alleged conspiracy was carried out. (d) When was the alleged conspiracy carried out? (e) What acts were carried out pursuant to said conspiracy, and which acts were commenced and consummated, (f) Whether said conspiracy is still in existence or has terminated.
“Wherefore the defendants pray that said third count of the indictment be quashed or for any other remedy that the court may deem proper and just.”
The demurrer was overruled by the District Judge. Following conviction, the defendants filed a motion in arrest of judgment covering the same grounds set forth in the demurrer. The motion was denied. Following this there was a motion for a new trial which was also denied. Refusal to grant a new trial is a matter within the discretion of the trial judge, and not a matter for consideration in this court. Di Carlo v. United States (C. C. A.) 6 F.(2d) 364, 369.
Eight assignments of errors are alleged as follows:
(1) That the court erred 'in not sustaining the demurrer to the third count of the indictment.
(2;) That the court erred in admitting Mr. Erkilla to testify that he received information that Faustino Enrique Rivera and Ramon Arzón were going to escort a contraband, over the objection of the defendants, for this evidence is hearsay evidence and inadmissible.
(3) That the District Court erred in not directing the jury to find the defendants not guilty at the close of the whole ease.
(4) That the District Court erred in entering the judgment against tho defendants upon tho verdict in this case.
(5) That the court erred in overruling and denying and in not granting the motion of said defendants in arrest of judgment. The third count of the indictment thereof fails to state an offense within section 37 of the Criminal Code of the United States.
(6) That the court erred in overruling and denying the motion of the defendants for a new trial.
(7) That the verdict of tho jury is not supported by any competent evidence in the record.
(8) And for other errors appearing in the record.
The indictment is drawn under section 37 of the Criminal Code (18 USCA § 88), which provides as follows: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.”
The object of tho conspiracy was to “’fraudulently and knowingly facilitate the transportation of ceitain merchandise which had been imported into the United States contrary to law,” which comes under the inhibition of 19 USCA § 497 (42 Stat. 982, § 593 (b), as follows: “If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates tho transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50’, or bo Imprisoned for any time not exceeding two years, or both. Whenever', on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless tho defendant shall explain tho possession to the satisfaction of the jury.”
It is apparent from a reading of section 37 of tho Criminal Code, and it has been repeatedly so held, that a conspiracy to commit a crime is a different offense than the crime that is the object of tho conspiracy. Williamson v. United States, 207 U. S. 425, 447, 28 S. Ct. 163, 52 L. Ed. 278; United States v. Rabinowich, 238 U. S. 78, 85, 35 S. Ct. 682, 59 L. Ed. 1211.
An indictment is sufficient that charges a statutory crime substantially in the words of the statute. Jelke v. United States (C. C. A.) 255 F. 264. A crime which is the object of the conspiracy need not be-described with the same particularity in the indictment for conspiracy as in an indictment for such crime itself. Ford v. United States (C. C. A.) 10 F.(2d) 339; Taylor v. United States (C. C. A.) 2 F.(2d) 444, 446; Rulovitch v. United States (C. C. A.) 286 F. 315; Anderson v. United States (C. C. A.) 260 F. 557.
It is not essential that it be consummated. United States v. Rabinowich, supra; Williamson v. United States, supra.
To satisfy tho conditions of the conspiracy statute, one or more of the conspirators must do some act to effect the object of the consi>iraey; that is, there-must be an overt act alleged. Jones v. United States (C. C. A.) 162 F. 417; United States v. Linton (D. C.) 223 F. 677.
Tho means by which the object of tho conspiracy is to be attained need not be set out in detail. Houston v. United States (C. C. A.) 217 F. 852, 857. It is sufficient if an iridietment contains a general description of tho means by which the object is to bo attained. Perrin v. United States (C. C. A.) 169 F. 17, 21; United States v. Benson (C. C. A.) 70 F. 591, 596.
Time and place of tho formation of the conspiracy is sufficiently charged in the recital of the offense or if set forth in the overt act. Rubio v. United States (C. C. A.) 22 F.(2d) 766; Fisher v. United States (C. C. A.) 2 F.(2d) 843.
The place of the conspiracy is immaterial provided an overt act is committed within the jurisdiction of the court. Hyde & Schneider v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136.
In general, an indictment must contain sufficient allegations to inform the accused of tho nature of tho offense and sufficiently apprise him of tho charges against him so that he may properly prepare his defense, and, if convicted, the judgment rendered will be a bar to another prosecution for the same, offense. Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606; Lund v. United States (C. C. A.) 19 F.(2d) 46.
In addition to the authorities already cited, Revised Statutes, § 1026 (title 18, USCA § 556) provides: “No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.”
Tested by the foregoing statute and the principles enunciated in the various citations of authorities covering the entire field of defendant’s objections, we find the indictment to be sufficient and the demurrer thereto properly overruled.
The defendants contend that, as the jury acquitted them under count 2 of the indictment, which alleged the substantive offense of facilitating the transportation of contraband liquor, the verdict of “guilty of conspiracy” to commit a like offense is inconsistent and an absurdity; and that the jury could not convict the defendants on the third count because they had acquitted them of the substantive offense charged in the second count.
The answer to this contention is that conspiracy to commit an offense and the substantive offense are two separate and distinet criminal acts (Williamson v. United States, supra), and it is not essential that the substantive offense be consummated.. The conspiracy is none the less punishable. It is also punishable though the intended crime be accomplished. Acquittal of the substantive offense is not res adjudicata in a trial for conspiracy to commit it. Coy v. United States (C. C. A.) 5 F.(2d) 309; Heike v. United States, 227 U. S. 131, 144, 33 S. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128.
In assignment number two, the defendants allege that the court erred in permitting the inspectors to testify to the confidential information on which they acted. Evidence of this character is admissible in hearings before the court on motions to suppress evidence claimed to have been secured without a search warrant and without probable cause. It is also admissible in trials before the court of motions to return property illegally seized. The eases cited in the government’s brief do not sustain the proposition that such evidence, which is clearly hearsay, is admissible before the jury upon the trial of the casa The following are the eases cited in the government’s brief: United States v. Blich (D. C.) 45 F.(2d) 627; Hawthorne v. United States (C. C. A.) 37 F.(2d) 316, 317; United States v. Gowen (C. C. A.) 40 F.(2d) 593; Ash v. United States (C. C. A.) 299 F. 277.
It is admissible for officers when testifying before the jury to testify that acting upon information they did certain things, but to go further and testify in detail as to what they had been told is putting before the jury testimony which plainly violates the hearsay rule. Hearsay testimony may or may not be prejudicial. If, in the course of the trial, the same testimony is introduced coming from witnesses having first-hand knowledge of the facts, the fact that some previous witness has testified to those facts from hearsay is merely corroborative and not necessarily so prejudicial as to require the setting aside of a verdict.
In the instant case, all of the facts stated upon hearsay were corroborated and established by competent testimony later adduced from witnesses having first-hand knowledge.
We do not think the hearsay testimony in this case was so prejudicial as to require the setting aside of the verdict.
Assignments 3, 4, 5, 6, and 7 present questions of the sufficiency of the evidence to sustain the verdict of the jury.
The evidence tended to show that on the 18th day of April, 1930, Manuel H. Castrillo and Raimundo Santiago, inspectors in the customs patrol at San Juan, If orto ftico, were doing patrol duty in an automobile on the Caguas road. Acting upon information (confidential) which they had previously received, they stopped and searched a ear in which the defendants Rivera and Arzón were riding, and found no liquor in it. While searching the ear, they saw a Broekway truck, H-404, approaching: They tried to stop the truck, which, after attempting to run them down, escaped, followed by the ear occupied by the defendants. The two cars went ahead, the truck in front and defendants’ car behind. The inspectors, who followed them in their automobile, tried many times to pass defendants’ car, but they would block the road with their car whenever an attempt was made to pass them. Upon arriving at a country road the truck entered it, and defendants with their car blocked the entrance to the same. The two defendants got out of their ear with drawn revolvers, and together with six or seven other men from the truck, also armed, prevented the inspectors from capturing the truck. One of the customs patrol inspectors remained in observation, and tlie other went to a nearby town for reinforcements.
After obtaining assistance, the officers went back to where they had left the truck, took up the fresh track of the truck’s tires, followed it about a mile along a country road where they found it loaded with sacks of liquor. They opened one of the sacks and “found that it contained Holstein Pilsener beer made in Hamburg, Germany.” This was the name upon the labels of the bottles. They seized the truck and contents and took it to the police station in Rio Piedras.
Ernesto Gonzalez Comulada, a witness, called in behalf of the government, testified that he was chief inspector of customs at San Juan, Porto Rico; that he received from Mr. Castrillo, a customs inspector, April 2,0, 1930, 93 sacks of German beer; that according to the labels it was German beer; that sample of the beer was in the courtroom and the balance was in the customs warehouse. Pie testified that the liquor in the courtroom was a part of the 93 sacks.
J. W. Purman, a witness, called in behalf of the government, testified that he was chemist for the prohibition department at San 'Juan; that he had seen the two bottles that were in the courtroom; that they were brought to him by Mr. Castrillo on April 21, 1930; that he analyzed the contents and found it a very good class of beer running 5.6 per cent, alcohol; that he would call it a German variety of beer, the Pilsener variety. He testified thqt ho could not tell where it was made, but that it tasted like a good variety of German beer fit for beverage purposes; that they can’t make that kind of beer in Porto Rico. On cross-examination he testified that there was no brewery in Porto Rico making that kind of beer; that it takes a large brewery with certain kinds of apparatus and certain kinds of water; that in his opinion the beer is of foreign manufacture; that it is an aged beer. “I know that hv the taste, analysis and flavor. Good beer has to be aged for a certain period, but the period I don’t know exactly. This beer is not a green beer. That beer doesn’t age in tlie bottle, provided it is hermetically sealed and no air gets to it.” He testified that when he received these bottles they were sealed; and that he didn’t know its exact age.
Julio Padilla, called on behalf of tlie government, testified that lie was chief of the liquidating division of the custom house in San Juan and that his business was to liquidate all merchandise coming through customs in San Juan; that no German beer had come through the customs house or through any customs house in the island since lie had been liquidator for twelve years; that there had been no legal importation of any kind of beer; and that, he had been in the customs service since 1918. On cross-examination he testified that he had been over all of the records before coming to court to testify; that every record was in his file; that every importation to the island had to be liquidated in San Juan; and that he was positive that since 1920 there had been no legal importation of beer.
One contention of the defendants is that there is no evidence tending to show that they knew that the liquor was illegally imported into the United States without the payment of duties thereon. This point was saved by defendants’ motion for a directed verdict at the close of the government’s case.
On this branch of the ease, the first issue for our consideration seems to be whether or not there was evidence from which the jury might find that the beer was of foreign manufacture. The first evidence found in the record is that of Manuel H. Castrillo, who testified that when they found the truck “we counted 93 sacks on the truck; sacks of German beer, Tigre brand.” Raimundo Santiago testified: “We found the truck H-404 with many sacks of liquor. We opened a sack and found that it contained Holstein Pilsener beer made in Hamburg, Germany.” The witness continued: “I am testifying to what was on the label.”
Ernesto Gonzales Comulada testified: “According to the label it was German beer.”
Carlos Manuel Montes, corporal of the insular police, testified: “I took policeman Arturo Nieves and went with Inspector Cas-trillo, and on the Guaynabo Road we found a truck, H-404, loaded with liquor which we seized; it was beer.”
A.s already recited, Purman, the government, chemist, testified that in his judgment it was German beer of the Pilsener variety and that they could not make that kind of beer in Porto Rico; that the bottles were sealed; and that the beer had been aged before being bottled. Sample bottles were introduced in evidence, and the jury had the opportunity of reading the labels.
Castrillo testified that the labels on the bottles in court were the same labels on the bottles when seized.
Prom the foregoing evidence the jury could reasonably find that the beer was of foreign manufacture.
The next question is whether or not there was any evidence from which the jury could reasonably find that the beer had been illegally imported into the United States without the payment of duties thereon. If, as the jury evidently believed, it was manufactured in Germany, it must have been imported. Julio Padilla, liquidating agent of the custom house, testified 'that no German beer had been legally imported into the island for the past twelve years. From this evidence, the • jury could find that the beer was illegally imported without the payment of duties thereon. The evidence supports such a finding.
The next question is whether or not there was any evidence in the case from which the jury could justifiably find that the defendants knew that they were facilitating the transportation of foreign liquors imported or brought into the island contrary to law.
The evidence is circumstantial. In order to sustain a conviction on circumstantial evidence, all the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent. Such appears to be the general rule of law applicable to circumstantial evidence. Grantello v. United States (C. C. A.) 3 F.(2d) 117; Leslie v. United States (C. C. A.) 43 F.(2ld) 288.
Only two hypotheses are dedueible from the evidence; either the defendants were the owners or otherwise financially interested in the liquor, or they were men hired by the men “higher up” to guard the same.
That the defendants were connected with the transportation and knew it was contraband is established from the fact that, when the truck ran by the government car, the defendants followed in their touring car and barred the road. When the truck drew into a side road and stopped, the defendants still barred the road, and, with the men riding in the truck, defended it with drawn revolvers.
Conceding that, if the defendants were the owners of the liquor, the jury could reasonably find that they were not ignorant of its quality and quantity, the crucial question is whether there is sufficient evidence from which the jury could find that the defendants were the owners. I think there was; but a majority of the court are of the opinion that it does not follow that the only reau-sonable deduction from the fact that these respondents escorted the truck, but did not drive it, is that they were the owners of the liquor and therefore knew of its unlawful importation, or that because the transportation was from Naguabo, a place on or near the coast, proves beyond a reasonable doubt that the respondents knew that the contraband liquor was German beer and not of local origin. It is as reasonable, if not more reasonable, to conclude that the defendants were men hired to guard the truck as to conclude that they were the owners of the contraband liquor.
The chain of circumstances in the ease do not require a finding, as the only reasonable hypothesis, that the defendants knew the origin of the contents of the truck or its nature, except that it was contraband, which does not constitute the offense with which they are charged.
The circumstantial evidence in the ease not being sufficient to warrant a verdict of guilty on the third count, the court below should have granted the motion to direct a verdict of not guilty.
The judgment of the District Court is reversed, the verdict is set aside, and the case is remanded to that court for a new trial.
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:
|
sc_caseoriginstate
|
02
|
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.
FULLER v. ALASKA.
No. 249.
Decided October 28, 1968.
George Kaujmann for petitioner.
Per Curiam.
Petitioner was convicted of shooting with intent to kill or wound and was sentenced to 10 years in prison. Over petitioner’s objection that it was obtained in violation of § 605 of the Federal Communications Act, 48 Stat. 1103, 47 U. S. C. § 605, the prosecution introduced in evidence a telegram allegedly sent by petitioner to an accomplice. The Supreme Court of Alaska affirmed, holding that it did not need to decide whether § 605 had actually been violated since the evidence was in any event admissible in state trials under Schwartz v. Texas, 344 U. S. 199.
In Lee v. Florida, 392 U. S. 378, we overruled Schwartz v. Texas and held that evidence violative of § 605 is not admissible in state criminal trials. The decision of the Alaska Supreme Court cannot stand, therefore, if Lee is to be applied retroactively. We hold, however, that the exclusionary rule of Lee is to be given prospective application, and, accordingly, we affirm.
Prospective application of Lee is supported by all of the considerations outlined in Stovall v. Denno, 388 U. S. 293, 297. The purpose of Lee was in no sense to “enhance the reliability of the fact-finding process at trial.” Johnson v. New Jersey, 384 U. S. 719, 729. Like Mapp v. Ohio, 367 U. S. 643, Lee was designed to enforce the federal law. Linkletter v. Walker, 381 U. S. 618, 639. And evidence seized in violation of the federal statute is no less relevant and reliable than that seized in violation of the Fourth Amendment to the Constitution. Moreover, the States have justifiably relied upon the explicit holding of Schwartz that such evidence was admissible.
Retroactive application of Lee would overturn every state conviction obtained in good-faith reliance on Schwartz. Since this result is not required by the principle upon which Lee was decided, or necessary to accomplish its purpose, we hold that the exclusionary rule is to be applied only to trials in which the evidence is sought to be introduced after the date of our decision in Lee.
The petition for a writ of certiorari is granted, and the judgment of the Supreme Court of Alaska is affirmed.
These considerations were more recently applied in DeStefano v. Woods, 392 U. S. 631, 633, in which we concluded that the right to a jury trial in state criminal prosecutions under Duncan v. Louisiana, 391 U. S. 145, and Bloom v. Illinois, 391 U. S. 194, was prospective only.
Lee v. Florida, 392 U. S., at 386-387:
“We conclude, as we concluded in Elkins and in Mapp, that nothing short of mandatory exclusion of the illegal evidence will compel respect for the federal law ‘in the only effectively available way— by removing the incentive to disregard it.’ Elkins v. United States, 364 U. S., at 217.”
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:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. Wilton CHATMAN, Appellant.
No. 77-1297.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 14, 1978.
Decided Oct. 17, 1978.
Kenneth L. Foran, Alexandria, Va., for appellant.
Daniel J. Hurson, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty., Baltimore, Md., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and PHILLIPS, Circuit Judges.
WINTER, Circuit Judge:
Wilton “Willie” Chatman, a prisoner in a Maryland institution under a Maryland conviction, wrote a letter to a district judge about a pending case in which he threatened to kill the judge. For sending the letter, he was convicted of obstruction of justice and of mailing a threatening communication in violation of 18 U.S.C. §§ 1503 and 876, respectively. The defendant declined the assistance of counsel at his trial and he attacks the validity of his conviction on the ground he was denied access to a prison library in order to prepare his defense. He also questions the sufficiency of the proof to sustain his conviction for mailing a threatening communication, because he asserts that, being already in prison, he could not have had any real intent to harm the district judge.
We see no merit in defendant’s contentions. But we are constrained to reverse his convictions and award him a new trial, nonetheless, because of information furnished us by the government about the presence of a superfluous alternate juror in the jury room during a large part of the jury’s deliberations.
I.
In October 1976, defendant was an inmate of the Maryland Penitentiary in Baltimore. He was without prospect of parole or release. The Honorable C. Stanley Blair was a United States District Judge for the District of Maryland to whom had been assigned a civil rights action dealing with overcrowded conditions at the penitentiary in which defendant was one of many plaintiffs.
On October 18,1976, Judge Blair received a letter from the defendant complaining about the manner in which Judge Blair was handling the case — essentially that relief with respect to overcrowding, inadequate diet, etc. was being unduly delayed. Defendant asserted in the letter that his patience was exhausted, that he had been subjected to inhuman conditions of confinement, and that he would “reimburse all persons” who played any part in the continuation of his durance vile. The letter continued, “the person I’m gonna begin with, is you!! YES, Judge Blair first opportunity I get, I’m going to KILL YOU, that’s what I said; quote; ‘I’M GOING TO KILL YOU.’ ” In closing, the letter added, “YOU GONNA PAY FOR THIS JUDGE BLAIR, I PROMISE YOU THAT .... I HAVE NOTHING TO LOSE.”
At trial the proof showed that .defendant’s fingerprint was on the letter and that the signature was his. Indeed, later in the trial defendant acknowledged that he had sent the letter.
When arraigned, and again later at a hearing on pretrial motions, defendant declined to have an attorney appointed to represent him and firmly articulated his desire to represent himself without the aid of counsel. He does not now claim that his waiver of counsel was involuntary or uninformed. But at trial he asserted that he could not proceed because he had not been permitted access to the penitentiary library to prepare his defense. Apparently he was denied access because he was in segregated confinement for having sent the threatening letter in violation of the institution’s rules and for two later assaults on prison guards. He moved the district court for a continuance of his trial until he had had library access and he moved for an order directing that he be given library access. Both motions were denied; the trial proceeded; and defendant was convicted on both charges.
II.
Unquestionably defendant had a right to represent himself without the aid of counsel if he elected to do so with knowledge of his rights and the consequences of his election. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Defendant made that election and he does not question that it was made voluntarily and with knowledge of his rights. But he argues, on the authority of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), that, having refused the assistance of counsel, he had a right to access to legal matters to prepare his defense and the government had an obligation to provide such access.
We do not read Bounds to support that conclusion. Bounds was concerned with the rights to equal protection and to access to the courts of prisoners who sought to invoke post-conviction relief. It held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 430 U.S. at 828, .97 S.Ct. at 1498. Bounds, of course, has no direct application to defendant. He was accused of crime and had an absolute right to counsel, which he validly waived; he had no present thought of pursuing post-conviction relief. But, even so, we do not read Bounds to give an option to the prisoner as to the form in which he elects to obtain legal assistance. The option rests with the government which has the obligation to provide assistance as to the form which that assistance will take. Thus, to the extent that it may be said that Bounds has any application to the instant case, the United States satisfied its obligation under the sixth amendment when it offered defendant the assistance of counsel which he declined. We so hold. Cf. United States v. West, 557 F.2d 151 (8 Cir. 1977).
In arriving at this holding, we note the absence of any evident unfairness in the treatment that defendant received. It was not unreasonable to place him in segregated confinement, after an administrative hearing, for having sent the letter. Prison authorities could properly conclude that greater security was needed in the case of a prisoner who made a death threat, lest he escape and carry out his threat. And defendant was not singled out for the prohibition against use of the prison library. It is not disputed that at the Maryland Penitentiary this restriction is applied to all prisoners in segregated confinement.
III.
We see no merit in defendant’s argument that the proof of his intent was legally insufficient to support his conviction for mailing a threatening communication. The argument springs from the faulty premise that proof of intent to carry out the threat is required. The only proof of specific intent required to support a conviction under 18 U.S.C. § 876 is that the defendant knowingly deposits a threatening letter in the mails, not that he intended or was able to carry out the threat. See United States v. Sirhan, 504 F.2d 818, 819 (9 Cir. 1974); Petschl v. United States, 369 F.2d 769 (8 Cir. 1966). The specific intent to mail the letter in question in the instant case was amply proved.
IV.
With commendable candor, the government advised us in oral argument that when the jury retired to consider its verdict, a thirteenth juror (an alternate who had not been excused) retired with the regular jurors. The alternate remained in the jury room for the first forty-five minutes of the jury’s deliberations. The presence of the alternate was noticed when the jury returned to the courtroom to obtain a copy of the indictment which the jury had requested. At that time the alternate was excused, but there was neither objection to her having initially retired with the jury nor a motion for a mistrial. There was also no evidentiary inquiry to determine the extent, if at all, that the alternate had participated in the jury’s deliberations. After the alternate was excused, the jury returned its verdicts of guilty within fifteen minutes.
Reluctantly (because we think that the case against defendant was so strong and his defense so frivolous), we think that we must notice the presence of the alternate in the jury room during part of the jury’s deliberations as plain error, reverse the convictions and award defendant a new trial. United States v. Virginia Erection Corporation, 335 F.2d 868 (4 Cir. 1964), requires this result.
Virginia Erection was a criminal prosecution. The district court, with the apparent consent of counsel for the government and the defendants, permitted an alternate jur- or to retire with the jury when it began its deliberations, It appears that a regular juror gave evidence of being ill before the jury retired, and the district court was seeking to prevent another mistrial should that juror be unable to continue her service until a verdict was reached. The alternate was admonished not to participate in the deliberations unless a regular juror became ill or disqualified. In fact, the services of the alternate were never required.
Notwithstanding the consent of counsel an 1 the admonition to the alternate, we held that the guilty verdicts could not be perr ;+ted to stand. We found, first, that the personal consent of the defendants to the procedure followed was not obtained as required by Patton v. United States, 281 U.S. 276 (1930); second, that the presence of the alternate in the jury room while the entire complement of regular jurors was deliberating was in violation of F.R.Crim.P. 23(b) and 24(c); and, third, that the admonition to the alternate did not cure the error because her mere presence in the jury room, even if she remained mute, might have affected the verdict and did violate the privacy and secrecy of the jury.
As we read Virginia Erection, it establishes a per se rule of plain error. It has been followed in United States v. Beasley, 464 F.2d 468 (10 Cir. 1972), and impliedly approved in United States v. Hayutin, 398 F.2d 944 (2 Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968); United States v. Nash, 414 F.2d 234 (2 Cir.), cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24 L.Ed.2d 242 (1969); and Leser v. United States, 358 F.2d 313 (9 Cir.), cert. denied, 385 U.S. 802, 87 S.Ct. 10, 17 L.Ed.2d 49 (1966). In 2 C. Wright, Federal Practice and Procedure § 388 at 52 (1969), it is stated, “it is reversible error, even though defendant may have consented, to permit an alternate to stay with the jury after they have retired to deliberate.” Only the Fifth Circuit has taken a different course, see La-Tex Supply Co. v. Fruehauf Corp., 444 F.2d 1366 (5 Cir.), cert. denied, 404 U.S. 942, 92 S.Ct. 287, 30 L.Ed.2d 256 (1971); United States v. Allison, 481 F.2d 468 (5 Cir. 1973), aff’d after remand, 487 F.2d 339 (5 Cir. 1973), cert. denied, 416 U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 759 (1974), but Virginia Erection is the law of this circuit and binding on this panel.
The instant case is indistinguishable from Virginia Erection. Here, no consent was given; and although there was neither objection nor motion for a mistrial, we read Virginia Erection to require neither. On its authority, we must reverse and grant a new trial.
REVERSED; NEW TRIAL GRANTED.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_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.
HAY FOUNDRY & IRON WORKS, Plaintiff, v. BUTTERWORTH-JUDSON CORPORATION, Defendant, and United States, Appellant.
(Circuit Court of Appeals, Second Circuit.
May 18, 1925.)
No. 375.
Appeal from the District Court of the United States for the Southern District of New York.
Certiorari granted 45 S. Ct. 640, 69 L. Ed. 1157.
Decree reversed, 269 U. S.-, 46 S. Ct. 179, 70 L. Ed.-.
Rushmore, Bisbee & Stern, of New York City (Eldon Bisbee and Bertram F. Shipman, both of New York City, of counsel), for receivers.
Emory R. Buckner, U. S. Atty., of New York City, Alexander Holtzoff, Sp. Asst. Atty. Gen., and Robert E. Manley and Charles L. Sylvester, Asst. U. S. Attys., both of New York City, for petitioner appellant.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
PER CURIAM.
Decree affirmed, on the decision of this court in Equitable Trust Co. v. Connecticut Brass & Manufacturing Corporation, 290 F. 712.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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, Plaintiff-Appellee, v. James Louis REID, Defendant-Appellant.
No. 16922.
United States Court of Appeals Seventh Circuit.
May 14, 1969.
Roger P. Pascal, Thomas P. Luning, Chicago, Ill., James Louis Reid, in pro. per., for appellant.
Carl W. Feickert, U. S. Atty., Jonathan J. Seagle, Asst. U. S. Atty., East St. Louis, Ill., for appellee.
Before CASTLE, Chief Judge, CUMMINGS, Circuit Judge, and HOLDER, District Judge.
. Judge Holder is sitting by designation from the United States District Court for the Southern District of Indiana.
CUMMINGS, Circuit Judge.
Defendant, a prison inmate, was tried twice on an indictment charging him with assaulting a federal penal institution employee engaged in the performance of his official duties. Self-defense was the justification offered. The first trial resulted in a hung jury, but two months later a second jury found defendant guilty. This appeal is from the three-year sentence imposed after his motion for a new trial was denied. The sentence was to run consecutively to a previous sentence being served.
According to the evidence, about 9:30 p. m. on January 27, 1967, the prison authorities of the United States Penitentiary at Marion, Illinois, were investigating an altercation that had occurred earlier that evening. Defendant was reported to have had a weapon at that time. Therefore, the guard supervisor summoned defendant to his office for questioning. The search of defendant’s person disclosed no weapon, but one of the prison guards testified that he found a combination padlock with a rag attached to its hasp under the pillow in defendant’s cell. As a result, defendant was ordered to the segregation unit. While he was being escorted there by two guards, defendant admittedly struck one of them, Robert Meadows, at least once on the head. Defendant and another inmate, Don E. Grimes, testified that defendant struck Meadows because he was twisting defendant’s arm. On the other hand, three prison guards said that the assault was without provocation.
Three days after this incident, FBI Agents Claude Grace and James Stewart interrogated defendant. They, testified that they warned him of his constitutional rights and read him the usual FBI waiver of rights form. According to their testimony, after defendant read the waiver of rights form, he signed it and then stated that he was “mad” and had assaulted Meadows without provocation. On the other hand, the defendant testified that he did not sign the waiver of rights form and that he made no statements to the FBI agents. He admitted that he had a lock in his cell, but claimed it had no rag or string attached to it. Such locks were normally issued to prisoners. According to Agent Stewart, defendant said the lock “was not a weapon and that the cloth tied to the hasp was not intended as a handle. He also said that there was no special purpose for having put this cloth on the hasp of the lock.”
Defendant charges that four errors were committed that entitle him to a new trial. We have concluded that a new trial is necessary.
Padlock Testimony
Prior to trial, defendant moved for discovery of any weapons in the possession of the Government taken from his possession on January 27, 1967. The Government successfully opposed this motion on the ground that the requested objects were not material to the preparation of a defense. Before the start of the second trial, defense counsel objected to any reference to the padlock since he was not charged with its possession. This objection was refused as premature.
After the second trial commenced and for the same reason, defendant’s counsel objected on several occasions to testimony about the padlock found in his cell. These objections were overruled, and the prosecutor exhibited the padlock with a piece of cloth tied to its hasp to the Government’s first witness, the supervisor of guards. He was permitted to testify that this was the padlock that was brought to his office and could have been used as a weapon. He also testified that such padlocks were issued to prisoners but not with the cloth “handle” attached to the hasp. At the close of this witness’s testimony, the district court sustained defendant’s objections to the admission of the padlock into evidence. However, the testimony concerning the padlock remained in evidence.
Defendant was tried for assaulting a correctional officer by striking him with his fist. This is apparently the reason for the Government’s refusal to produce the lock before trial on the ground that such a weapon was not material to the preparation of a defense. The Government now seeks to justify its about face at trial as to the materiality of the lock by asserting that the lock was part of the res gestae of the crime, but even if we were to recognize that often criticized concept, the padlock was not so closely connected with the crime charged as to be admissible as part of the res gestae. The testimony reveals only that some altercation was under investigation and that defendant was reported to have a weapon in his possession. We do not know, and it was not the purpose of this trial to determine, whether defendant was even a participant in that altercation or whether any weapon was involved at all.
While we agree with the trial judge’s ruling that the padlock was inadmissible, it was improper to permit the Government to circumvent this ruling by eliciting extensive testimony about the padlock, including an inflammatory expression of opinion about the probable use of the lock. Even had a curative instruction been given, it is unlikely that the jurors would distinguish between evidence which was identified and exhibited before them and exhibits formally admitted into evidence.
The Government offers the suggestion that it was necessary to introduce the padlock testimony in order to establish a basis in fact for the guards’ authority to escort the defendant to punitive segregation. The Government’s brief volunteers that “Correctional officials who subject a prisoner to punishment in defiance of prison regulations do not come within the protection of the statute, as their actions are unauthorized.” Even if we were to accept this surprising invitation to prison inmates to resist with force a prison guard acting in furtherance of his orders if the inmate feels that the supervisor’s finding of wrongdoing is incorrect, such was not the theory of the defense in this case. Defendant claims that he struck the guard solely in order to defend himself against unprovoked physical abuse, not because of some real or imagined grievance against the supervisor’s order that he be subjected to solitary confinement for violation of prison regulations concerning the padlock.
We can only regard the testimony concerning the lock as highly prejudicial and without probative value. Its presence could only serve to invite the jury to speculate about other bad acts which the defendant may have committed. The introduction of testimony concerning dangerous weapons found among the belongings of a person charged with a crime, no part of which depends upon the use or ownership of the weapon, has consistently been regarded as prejudicial error requiring a new trial. Thomas v. United States, 376 F.2d 564, 567 (5th Cir. 1967); Moody v. United States, 376 F.2d 525, 532 (9th Cir. 1967); Brubaker v. United States, 183 F.2d 894, 898 (6th Cir. 1950). Only where there is independent evidence tending to relate the use of the weapon to the commission of the offense has the introduction of such evidence been permitted. United States v. Blackburn, 389 F.2d 93, 95-97 (6th Cir. 1968). We hold that this evidence was unduly prejudicial and inflammatory and that no reference to it may be permitted at the next trial.
Denial of Credibility Instruction
At the conference on instructions, defendant tendered the following credibility instruction No. 3:
“The Court instructs the jury that the testimony offered by officers shall not be given any greater weight or credibility by the fact alone of their office, but that such testimony shall be weighed and considered as to credibility on the same ground and for the same reason that the testimony of all other witnesses are weighed and judged.”
Even though the Government had no objections to this instruction, the district court declined to give it, stating:
“I am going to refuse it, because I am already giving one on credibility of witnesses, which includes all witnesses, and I am not singling out a particular witness, which I would be doing here.”
The court did instruct the jurors on the credibility of all witnesses, admonishing them to determine:
“ * * * whether or not [each witness] had a particular prejudice or biasness or feeling in the outcome of the case. Consider the,witness’s relationship to the Government or to the defendant; * *
However, the court thereafter singled out the defendant’s credibility by instructing the jury:
“ * * * You have a perfect right and it is your duty to take into consideration the fact that he is the defendant and that he is interested in the outcome of the case. * * * his interest, prejudice, biasness, result of the outcome of the case or anything else may affect his testimony.”
In this case, the outcome depended upon whether the jury believed defendant’s or the officers’ versions of the assault. As the hung jury in the first trial indicated, the credibility issue was indeed the whole case. Therefore, it was essential for the trial judge to present evenly balanced instructions as to the possible bias of both Government and defense witnesses. The question is “whether it can fairly be said that the instruction singles out or unmistakably refers or draws attention to” the defendant. United States v. Kahn, 381 F.2d 824, 835 (7th Cir. 1967), certiorari denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661. Here the prosecutor took every opportunity to emphasize the inherent credibility of the testimony of the Government’s employees.
The instruction tendered by the defendant did not advise the jury that the testimony of Government agents should be received with “caution” as in Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966), or with “suspicion” as in Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602, 604-605 (1967). The courts in those cases properly rejected arguments that such special instructions singling out Government witnesses were mandatory. Nor are we asked to hold that an instruction on the defendant’s interest in the outcome of the case is reversible error per se. See Taylor v. United States, 390 F.2d 278, 285 (8th Cir. 1968), certiorari denied, 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137. Defendant argues that under the circumstances of this case and in light of the prosecutor’s repeated emphasis on official truthfulness, it was reversible error to instruct the jury on the defendant’s possible “interest, prejudice, biasness” while refusing to instruct that Government witnesses are not entitled to any special credibility by the fact of their office alone. An instruction such as that tendered by defendant was approved in Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602, 605, note 6 (1967). Here the general credibility instruction referred to the witness’s relationship to the Government or to the defendant, but in the absence of an instruction such as that tendered by the defendant, the jury might have been led to believe by the prosecutor’s final argument that relationship to the Government was an assurance of trustworthiness, while the special instruction as to the defendant’s interest in the outcome served to impress upon the jury that relationship to the defendant cast doubt upon the reliability of testimony. We hold only that the instructions given, in conjunction with the refusal of defendant’s instruction No. 3, presented an unbalanced picture to the jury which was, on the special facts of this case, prejudicial error.
Impropriety of Government’s Closing Argument
In his closing argument, defense, counsel reminded the jury that the FBI agents did not show defendant the statements he allegedly gave them at the time of the interview in the prison, apparently intending to cast doubt on the authenticity of the statements, which defendant denied ever having made. Defense counsel also complained that it was not right for Agent Stewart “to make use of a statement [the dictated FBI notes of defendant’s oral admissions] and then a year later refresh his recollection from his statement without that statement being submitted to the defendant so that he can read it to himself.” In response, the Assistant United States Attorney told the jury that the FBI’s report of defendant’s admissions was “given to the defendant prior to trial, and he knew exactly what the Government was going to say in this case.”
Defendant here argues that by so doing the prosecutor introduced a fact not in evidence. The assertion of prejudice resulting from this action is unconvincing. In any event, in view of . the ambiguity of defense counsel’s argument, the jury could construe the prosecutor’s closing remarks to be a fair response thereto. Moreover, the district court sustained defense counsel’s objections to this material, and the jury was instructed to disregard it. In this setting, it was unnecessary to direct a mistrial. Keeble v. United States, 347 F.2d 951, 956 (8th Cir. 1965). However, at the retrial, both sides can be depended upon to avoid a similar incident.
Failure to Hold Hearing on Admissibility of Defendant’s Statements
Finally, defendant urges that under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, it was incumbent upon the trial judge to hold a hearing out of the presence of the jury and to make a preliminary determination as to the voluntariness of defendant’s statements to the FBI agents. However, defendant neither requested such a hearing nor objected to the introduction of his oral admissions. In United States v. Taylor, 374 F.2d 753 (7th Cir. 1967), this Court delineated certain circumstances that might require a trial judge to hold such a hearing sua sponte, stating (at p. 756):
“Certain alerting circumstances, such as a defendant’s apparent abnormal mental or physical condition, obvious ignorance, or lack of awareness —all of which may reveal a dereliction in defense counsel’s failure to object to the introduction of a confession — may, under due process standards, require a trial judge to investigate the necessity of conducting a hearing notwithstanding the absence of an objection.”
Neither the trial judge nor we have perceived here any of the “alerting circumstances” mentioned in Taylor. The FBI agents testified that they read defendant the waiver of rights form and that he also read it before executing it, after háving been fully apprised of his constitutional rights. Cf. Townsend v. Henderson, 405 F.2d 324, 327, 328-329 (6th Cir. 1968). Unlike United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968), where “an appropriate objection” was taken (392 F.2d at p. 852), this defendant may have freely waived his constitutional rights to remain silent and consult an attorney before making the damaging statements. However, the Government concedes that under Jackson v. Denno, supra, “the trial court could not have properly refused a request by the defendant for a hearing on the issue of whether a Fifth Amendment ground prevented the admission of his confession.” This issue will therefore be left open for the district court’s consideration on retrial.
Roger P. Pascal of the Chicago Bar was appointed to serve as defendant’s counsel in this Court. He has conscientiously and diligently presented defendant’s appeal.
Reversed and remanded.
. The indictment was brought under Sections 111 and 1114 of the Criminal Code (18 U.S.C. §§ 111 and 1114).
. Even if the padlock testimony had been relevant, under Rule 4-03 of the proposed Federal Rules of Evidence, it would not be “admissible if [as here] its probative value is substantially outweighed by the danger of unfair prejudice, * * Preliminary draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, 46 F.R.D. 161, 225 (1969).
. The motion for a new trial asserted that defendant was substantially prejudiced by reason of the admission of his statements to the agents, but the motion did not claim that the district court erred in not holding a voir dire hearing as to the vol-untariness of his statements,
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, for the Use of Harold BRYANT, dba Rio Grande Sand and Gravel, Appellant, v. LEMBKE CONSTRUCTION COMPANY, Inc., and Glens Falls Insurance Company, Appellees.
No. 8595.
United States Court of Appeals Tenth Circuit.
Dec. 20, 1966.
James A. Womack, Albuquerque, N. M. (Arturo G. Ortega, Albuquerque, N. M., on the brief), for appellant.
Richard G. Cooper, Albuquerque, N. M. (Bryan G. Johnson and Marshall G. Martin, Albuquerque, N. M., on the brief), for appellees.
Before MURRAH, Chief Judge, and HILL and HICKEY, Circuit Judges.
HILL, Circuit Judge.
This Miller Act case was brought in the United States District Court by the use plaintiff-appellant against appellees Lembke Construction Company, Inc., a prime contractor on a government construction contract, and its surety, Glens Falls Insurance Company. The District Court rendered judgment for the appellees.
Appellee Lembke Construction Company contracted to construct certain facilities for the United States Government. As required by the Miller Act, a payment bonding agreement was entered into —the bonding company being appellee Glens Falls Insurance Company. Subsequently, Adams Concrete Company entered into a contract with Lembke to supply all of the concrete necessary for the construction job. Appellant Harold Bryant, dba Rio Grande Sand and Gravel, then entered into an oral agreement with Adams whereby appellant agreed to supply Adams with sand apd-gravel needed in mixing the concrete far the government project. Appellant did perform under this agreement and it is not controverted that Adams owes appellant $2,390.-00 for sand and gravel delivered. Appellant, after complying with § 270b(a)’s notice requirement, as use plaintiff, instituted suit under the Miller Act against the prime contractor, Lembke Construction Company, and its bonding company, Glens Falls Insurance Company, to recover on the payment bond the amount due appellant from Adams. The District Court found that appellant could not recover on the bond because Adams was not a “subcontractor” within the meaning of 40 U.S.C. § 270b(a).
Since appellant Bryant had no contractual relationship with the prime contractor, appellee Lembke, Bryant cannot recover on the payment bond unless he can show that Adams was a “subcontractor” within the meaning of the statute. Thus, we have but one very narrow question to decide: Did the District Court properly conclude that Adams Concrete Company was not a “subcontractor” of the appellee Lembke Construction Company, Inc., within the meaning of the proviso in 40 U.S.C. § 270b(a) ?
The Supreme Court in Clifford F. MacEvoy Co. v. United States et al., 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163, addressed itself to an interpretation of “subcontractor” as the word is used in the proviso. In that case, considering the Miller Act’s history, the Court rejected a broad generic definition of the word and, instead, found that it was intended to have a “more technical meaning, as established by usage in the building trades * * Under this construction, the Court held that “a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen.” The appellee asserts that the District Court properly found that Adams was a material-man rather than a subcontractor. Appellant, however, relying on the disjunctive “or” in the language just quoted contends that a person who supplies only materials —as Adams did — can be a subcontractor if he performs for and takes from the prime contractor a “specific part of the * * * material requirements of the original contract.” Since Adams contracted to and did, except for a “few bags”, supply all the concrete used in the project, appellant contends he qualifies as a subcontractor.
The MacEvoy case does tell us that “The Miller Act * * * is highly remedial in nature. It is entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects.” It also tells us, however: “But such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds.” We think appellant is reading the language it relies upon in isolation and is ignoring the purpose of the Miller Act and the substance of the MacEvoy case. The ultimate determination of whether a supplier of material such as Adams is a materialman or a subcontractor depends upon a consideration of the extent to which, in matters of substance, the prime contractor delegates to the supplier, and the supplier undertakes to perform for the prime contractor, a specific part of the labor or material requirements of the prime contract.
In this case, Adams undertook to furnish concrete. There was by this undertaking no substantial delegation of any portion of Lembke’s contract. The concrete Adams undertook to deliver was in no way a “customized” material, thus bringing Adams within the purview of those eases holding that a supplier of such “customized” material is a subcontractor, even though he does not perform many services in reference to installation. All Adams did was deliver concrete. Admittedly, he was to deliver all the conCrete needed for the job and the concrete had to conform to the specifications in the prime contract. This does not, however, change Adams’ status from a materialman to a subcontractor. The reference in Adams’ contract to the specifications in the prime contract is “merely descriptive of what is to be furnished.” There was no material delegation of the job the prime contractor was obligated to perform under the prime contract.
We agree with appellant that “subcontractor” must be given a judicial interpretation and that its meaning is not dependent upon how the parties designate themselves. However, the Supreme Court has told us that “subcontractor” must be given a “technical meaning, as established by usage in the building trades. * * *.” Thus we think it significant that Adams furnished concrete under a “Standard Form of Material Contract” but when Adams contracted to prepare some road beds and parking areas for Lembke, that work was done under a “Standard Subcontract Form.” The District Court found that “The Contract for materials was treated by all the parties entirely on a different basis than the subcontract.”
We think it would fly in the face of the “practical considerations underlying the [Miller] Act" to accede to appellant’s too liberal construction of the MacEvoy case. The Act does not propose to cope “with remote and undeterminable liabilities incurred by an ordinary materialman * * *.”
Affirmed.
. 40 U.S.C. § 270a.
. The statute has been quoted so often in other opinions, we quote only that part necessary for a determination of the question in this case:
“ * * * Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. * * * ”
. Clifford F. MacEvoy Co. v. United States et al., supra, 322 U.S. at 108, 64 S.Ct. at 894.
. Clifford F. MacEvoy Co. v. United States et al., supra, 322 U.S. at 107, 64 S.Ct. at 893; See Golden West Construction Company v. United States et al., 10 Cir., 304 F.2d 753 and Woods Construction Company v. Pool Construction Company, 10 Cir., 348 F.2d 687 and cases there cited.
. United States for the Use and Benefit of Gulfport Piping Company v. Monaco and Son, Inc., U.S.D.C.Md., 222 F.Supp. 175, reversed on other grounds, 4 Cir., 336 F.2d 636; and see United States for Use of Wellman Engineering Company v. MSI Corporation, 2 Cir., 350 F.2d 285.
. See United States to Use of Hardwood Products Corp. v. John A. Johnson & Sons, D.C.W.D.Pa., 137 F.Supp. 562; Basich Brothers Construction Company v. United States, 9 Cir., 159 F.2d 182; United States for Use of Wellman Engineering Company v. MSI Corporation, 2 Cir., 350 F.2d 285.
. United States for Use of Potomac Rigging Company v. Wright Contracting Company, U.S.D.C.Md., 194 F.Supp. 444, 447; Brown & Root, Inc. v. Gifford-Hill & Co., 5 Cir., 319 F.2d 65. Compare United States to Use of Hardwood Products Corp. v. John A. Johnson & Sons, D.C.W.D.Pa., 137 F.Supp. 562 and United States for Use of Wellman Engineering Company v. MSI Corporation, 2 Cir., 350 F.2d 285.
. See Clifford F. MacEvoy Co. v. United States et al., supra, 322 U.S. at 108, 64 S.Ct. 890; United States for Use of Wellman Engineering Company v. MSI Corporation, 2 Cir., 350 F.2d 285 and United States for the Use and Benefit of Gulfport Piping Company v. Monaco and Son, Inc., U.S.D.C.Md., 222 F.Supp. 175, reversed on other grounds, 4 Cir., 336 F.2d 636.
. Clifford F. MacEvoy Co. v. United States et al., supra, 322 U.S. at 108, 64 S.Ct. at 894; see also United States for Use of Potomac Rigging Company v. Wright Contracting Company, supra.
. The District Court specifically found:
“That the contracting industry by custom and usage in the contracting business recognizes the distinction between the Standard Form of Material Contract and the Standard Subcontract Form and the following requirements in connection therewith:
“That under Standard Form of Material Contracts sales tax is added to the price, and that in the use of Standard Subcontract Forms the sales tax is figured in the price and not added thereto; that in the case here before the Court the contract on the Standard Form of Material Contract added the tax to the price therein contained and did not include the tax in the price set forth.
“That under the Standard Form of Material Contract payrolls are not submitted to the prime contractor and under the Standard Subcontract Form of agreement payrolls are submitted to the prime contractor; that in the case here before the Court no payrolls were submitted to the prime contractor by the Adams Concrete Co. under the Standard Form of Material Contract.
“That under the Standard Form of Material Contract copies of such contracts are not required to be furnished the Bureau of Indian Affairs, and under the Standard Subcontract Form copies are required to be furnished the United States Bureau of Indian Affairs; that in the case here before the Court no copies of the contract entered into on the Standard Form of Material Contract were furnished the United States Department of the Interior, Bureau of Indian Affairs.
“That under Standard Form of Material Contract no performance bond is required, and under the Standard Subcontract Form performance bonds are required; that in the case here before the Court no performance bond was furnished by the Adams Concrete Co. under Standard Form of Material Contract but was required under Standard Subcontract Form.”
. Clifford F. MacEvoy Co. v. United States et al., supra, 322 U.S. at 110, 64 S.Ct. at 895.
. Ibid.
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_numappel
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ARONISS et al. v. UNITED STATES.
(Circuit Court of Appeals, Third Circuit.
February 2, 1926.
Rehearing Denied July 14, 1926.)
No. 3346.
1. Criminal law <@=>419, 420(1) — Direct positive testimony of prohibition agent as to fellow agent’s purchase of liquor from accused properly received.
In prosecution for sale of whisky, direct positive testimony of prohibition agent as to accused’s sale of liquor to another agent was properly received in evidence; there being nothing to prove such testimony was otherwise than from witness’ own knowledge.
2. Intoxicating liquors <©=>213 — Charge that defendants diid unlawfully “maintain a common nuisance” in “violation of National Prohibition Act” insufficient.
Indictment charging that defendants did 'unlawfully “maintain a common nuisance” at a named place, “in violation of National Prohibition Act,” tit. 2, § 21 (Comp. St. Ann. Supp. 1923, § 10138%jj), would be bad in failing to give any indication, of circumstances constituting such a nuisance.
3. Intoxicating liquors <©=>213 — Charge of maintaining a common nuisance under Prohibition Act held insufficient.
Indictment charging that defendants did “unlawfully maintain a common nuisance” at a certain place “where intoxicating liquors were kept,” in violation of National Prohibition Act, tit. 2, § 21 (Comp. St. Ann. Supp. 1923, § 10138%ji), held not to state offense, in absence of pleading of acts occurring by which place was used to violate the law.
4. Intoxicating liquors <@=>222P-Every ingredient of crime must be charged, though defensive negative averments may be dispensed with.
National Prohibition Act, tit. 2, 32 (Comp. St., Ann. Supp. 1923, § 10138%s), providing that an information or indictment need not include any “defensive negative averment,” does not dispense with necessity that indictment shall contain and state wi£h precision and certainty every ingredient of the crime.
5. Indictment and information <@=>110(4)— When charge of offense in words of statute is sufficient stated.
Merely charging offense in words of a statute is not sufficient, except where words of statute fully, directly, and expressly, without any uncertainty or ambiguity, set forth all elements necessary to constitute offense intended to be punished.
6. Indictment and information <@=>110(31)— Charging offense of maintaining common nuisance in words of statute insufficient.
Charge of maintaining a common nuisance, in violation of National Prohibition Act, tit. 2, § 21 (Comp. St. Ann. Supp. 1923, § 10138%jj), in words of statute, is insufficient, inasmuch as statute merely refers to place where liquor is kept, “in violation of” one of its provisions, and leaves pleader to show violation by stating facts.
7. Intoxicating liquors ©=>213 — Defective indictment for maintaining nuisance held not aided by reference to place involved as a “café.”
Charge of maintaining common nuisance, in violation of National Prohibition Act, tit. 2, § 21 (Comp. St. Ann. Supp. 1923, § 10138%jj), defective in failing to charge that liquor was kept at place charged for purposes of sale, was not aided by reference to place as a “café.”
8. Indictment and information ©=>70 — Valid accusation of crime must state facts which,
without more, show the otfense.
A valid accusation of crime cannot be made by argument or by inference, but only by stating facts which, without more, show the offense.
Buffington, Circuit Judge, dissenting in part.
In Error to the District Court of the United States for tho District of New Jersey; Joseph L. Bodine, Judge.
Nathan Aroniss and Simon Kalb were convicted of violating the National Prohibition Act, and they bring error.
Judgment of sentence reversed, and case remanded, if necessary, for resentence.
Harry Heher and John H. Kafes, both of Trenton, N. J., for plaintiffs in error.
Walter G. Winno, U. S. Atty., of Hackensack, N. J., and Harlan Besson, Asst. U. S. Atty., of Hoboken, N. J.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and CLARK, District Judge.
WOOLLEY, Circuit Judge.
The indictment is laid in ten counts. Three were withdrawn. Of the remaining counts, the first purports lo charge .the maintenance of a common nuisance; the others charge specific sales of whisky; all in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138(4 et seq.). After verdict of guilty on the seven counts the court imposed sentences of imprisonment under each count for terms running concurrently with some and not concurrently with others, together with fines, making in all (for each defendant) two years’ imprisonment and $4,-000 in fines. The defendants then sued' out this writ, assigning many errors, of which ■only one calls for discussion and one other for notice in this opinion.
The latter specification of error is an alleged want of evidence to sustain the verdict on the second count. This count charges ■a sale of whisky to one Dawson, a prohibition agent. Dawson had died before trial, so Davis, a fellow prohibition agent, was called to prove the charge. Davis testified that Dawson bought drinks in tho defendants’ place and the question is whether he testified from an affidavit made by Dawson or from his own knowledge. The record (particularly at pages 57 and 58) shows that his testimony was direct and positive, without anything to prove it was otherwise than from his own knowledge, hence there was no error in admitting it.
The error first assigned grew out of the alleged want of a sufficient statement of the offense in the first count and arose on motions, seasonably made, to quash the count, direct'the verdict and arrest the judgment. The count charges that at a given time the defendants “did knowingly, willfully and unlawfully maintain a common nuisance, that is to say, at the promises known as the Bismark Café, situated at 25 East .Hanover street, in said city of Trenton, whore intoxicating liquors, namely, beer and whisky, were kept, in violation of Title II of the National Prohibition Act,” etc. A statement that the defendants did unlawfully “maintain a common nuisance” at a’named place “in violation of Title II of the National Prohibition Act” would clearly be bad under Linden Park Horse Association v. State, 55 N. J. Law, 557, 27 A. 1091, in that it would fail to give “any indication of the circumstances that make it such.” Tho question is whether the statement of the offense is aided by the added words “where intoxicating liquors, namely, beer and whisky, were kept.” The Government says it is aided and therefore the statement is sufficient because it repeat the words and, accordingly, recites tho offense of tho statute. The statute (Section 21 of Title 2 [Comp. St. Ann. Supp. 1923, § 10138(4jj]) provides that “Any * * * house *' * * where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, * * * is hereby declared to be a common nuisance.” To charge that a place was a common nuisance, the pleading must show the acts, there occurring, by which the place was used lo violate tho law. The mere allegation that it was a place where liquors were kept leaves the character of the place open to dispute and therefore to uncertainty, for under the law liquors may be kept lawfully and kept unlawfully.
The provision of Section 32 of Title 2 of the Act (Comp. St. Ann. Supp. 1923, § 10138(4s) that an information or indictment need not “include any defensive negative averments” does not dispose of tho necessity that the indictment shall contain, and state with precision and certainty, every ingredient of which the' crime is composed. United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588. One ingredient is the use to which the place charged to be a common nuisance was put; in this instance, we surmise, the keeping of liquor for sale. But if liquor was not kept for that purpose, the place was not a common nuisance. Merely stating an offense in the words of a statute is not sufficient except in eases “where the words of the statute themselves * * * fully, directly, and expressly, without any uncertainty or ambiguity, set forth ail the elements necessary to constitute the offense intended to be punished.” United States v. Simmons, 96 U. S. 360, 362, (24 L. Ed. 819); Evans v. United States, 153 U. S. 584, 587, 14 S. Ct. 934, 38 L. Ed. 830.
The statute declared on does not do this. It merely refers to a house where liquor is kept “in violation of” one of its provisions and leaves the pleader to show the violation by stating facts which come within its terms. In this we find ourselves in accord with the decision in Young v. United States (C. C. A. 9th) 272 F. 967, yet not in accord with the decision in Kathriner v. United States (C. C. A. 9th) 276 F. 808. Nor is our position at variance with that which we took in Singer v. United States (C. C. A. 3d) 288 F. 695, 696, for although one count of the indictment in that case resembled elosely the count in the indictment in this case now. under discussion, the decision went off on what is the test of a common nuisance, namely, whether it is the number of sales or the length of time liquor was kept upón premises or the fact that the place was maintained for the keeping and sale of liquor. The decision in Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 92, 41 S. Ct. 31, 32, 65 L. Ed. 151, 10 A. L. R. 1548, was there referred to as an interpretation of the statute not as a ruling on a pleading.
And finally, we do not think the pleading is aided by reference to the place of the alleged common nuisance as a “café,” the suggestion by the Government being, arguendo, that keeping liquor in a café is never lawful. A valid accusation of crime cannot be made by argument or by inference but can only be made by stating facts which, without’ more, show the offense. Being off opinion that in refusing to quash the first count of the indictment the court fell into error, we are constrained to reverse the judgment of sentence imposed under that count with direction that,, if necessary, the case he remanded to the District Court for resentence of the defendants as to proper dates under the remaining counts.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Audrey WALKER, Petitioner-Appellant, v. Martha WHEELER, Superintendent, Respondent-Appellee.
No. 18884.
United States Court of Appeals Sixth Circuit.
May 27, 1969.
James R. Willis, Cleveland, Ohio, for petitioner-appellant.
Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee; Paul W. Brown, Atty. Gen. of Ohio, on brief.
Before PECK and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.
PER CURIAM.
This is an appeal from the District Court’s denial of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (1948). A number of constitutional issues are presented, but we reach only the question whether in this ease the District Court is precluded from considering the validity of one of appellant’s convictions because the sentence imposed is concurrent with, and identical to, a sentence on a later conviction, the validity of which has not been successfully attacked.
Appellant was convicted of a narcotics offense in the state court on December 19, 1960, and sentenced to a term of ten to twenty years in the Ohio Reformatory for Women. In December, 1961, she was convicted on other counts that were related to the original narcotics conviction, but which had been severed from the original indictment. These later convictions resulted in sentences of ten to twenty years, to run concurrently with the sentence on the first conviction, and twenty to forty years, to run consecutively to that sentence.
Appellant attacks her first conviction on the ground that she was denied an appeal because of the state trial court’s erroneous determination that she was not indigent and therefore entitled to the costs of a bill of exceptions. The state court apparently based its finding on the fact that appellant’s paramour and co-defendant, Yancey Wilson, had paid for her trial counsel and could afford to furnish her a bill of exceptions.
The District Judge declined to consider appellant’s contention despite the state court’s unsatisfactory reason for finding her not indigent. Relying on Mc-Nally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), and Coleman v. Maxwell, 387 F.2d 134 (6th Cir. 1967), he held that since appellant’s second conviction had not been successfully attacked and the sentence on that conviction was concurrent with, and identical to, the sentence on the first conviction, he did not have to consider the validity of the confinement pursuant to the first conviction.
Subsequent to the District Judge’s consideration of this case, the Supreme Court overruled McNally in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). This decision would seem also to erode Coleman, at least to the extent that in this case the District Judge should consider appellant’s contentions concerning her first conviction.
Appellee’s contention that Peyton is distinguishable because under Ohio law appellant’s eligibility for parole is unaffected by the existence of her second conviction is unpersuasive. It is unlikely that in practice parole is granted as readily to a person serving concurrent sentences on several convictions as to one serving a sentence for a single offense. See Williams v. Peyton, 372 F.2d 216, 220 (4th Cir. 1967).
The decision of the District Court is reversed and the case is remanded for proceedings consistent with this opinion.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_casesource
|
030
|
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.
Travis BECKLES, Petitioner
v.
UNITED STATES.
No. 15-8544.
Supreme Court of the United States
Argued Nov. 28, 2016.
Decided March 6, 2017.
Janice L. Bergmann, Fort Lauderdale, FL, for Petitioner.
Michael R. Dreeben, Washington, DC, for Respondent.
Adam K. Mortara, appointed by this Court, as amicus curiae, supporting the judgment below on Question 2.
Michael Caruso, Federal Public Defender, Janice L. Bergmann, Assistant Federal Public Defender, Andrew L. Adler, Assistant Federal Public Defender, Fort Lauderdale, FL, for Petitioner.
Donald B. Verrilli, Jr., Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Nina Goodman, Attorney, Ian Heath Gershengorn, Acting Solicitor General, Michael R. Dreeben, Deputy Solicitor General, John F. Bash, Assistant to the Solicitor General, Department of Justice, Washington, DC, for the United States.
Justice THOMAS delivered the opinion of the Court.
At the time of petitioner's sentencing, the advisory Sentencing Guidelines included a residual clause defining a "crime of violence" as an offense that "involves conduct that presents a serious potential risk of physical injury to another." United States Sentencing Commission, Guidelines Manual § 4B1.2(a)(2) (Nov. 2006) (U.S.S.G.). This Court held in Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines' residual clause is also void for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner's argument.
I
Petitioner Travis Beckles was convicted in 2007 of possession of a firearm by a convicted felon, § 922(g)(1). According to the presentence investigation report, the firearm was a sawed-off shotgun, and petitioner was therefore eligible for a sentencing enhancement as a "career offender" under the Sentencing Guidelines. The 2006 version of the Guidelines, which were in effect when petitioner was sentenced, provided that "[a] defendant is a career offender if
"(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a).
The Guidelines defined "crime of violence" as
"any offense under federal or state law, punishable by imprisonment for a term exceeding one year that-
"(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or "(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 4B1.2(a) (emphasis added).
The clause beginning with "or otherwise" in this definition is known as the residual clause.
The commentary to the career-offender Guideline provided that possession of a sawed-off shotgun was a crime of violence. See § 4B1.2, comment., n. 1 ("Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun... ) is a 'crime of violence' "); § 5845(a) ("The term 'firearm' means (1) a shotgun having a barrel or barrels of less than 18 inches in length").
The District Court agreed that petitioner qualified as a career offender under the Guidelines. Petitioner was over 18 years of age at the time of his offense, and his criminal history included multiple prior felony convictions for controlled substance offenses. Furthermore, in the District Court's view, petitioner's § 922(g)(1) conviction qualified as a "crime of violence." Because he qualified as a career offender, petitioner's Guidelines range was 360 months to life imprisonment. The District Court sentenced petitioner to 360 months. The Court of Appeals affirmed petitioner's conviction and sentence, and this Court denied certiorari. United States v. Beckles, 565 F.3d 832, 846 (C.A.11), cert. denied, 558 U.S. 906, 130 S.Ct. 272, 175 L.Ed.2d 183 (2009).
In September 2010, petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his conviction for unlawful possession of a firearm was not a "crime of violence," and therefore that he did not qualify as a career offender under the Guidelines. The District Court denied the motion, and the Court of Appeals affirmed.
Petitioner then filed a second petition for certiorari in this Court. While his petition was pending, the Court decided Johnson, holding that "imposing an increased sentence under the residual clause of the [ACCA]"-which contained the same language as the Guidelines' residual clause-"violate[d] the Constitution's guarantee of due process" because the clause was unconstitutionally vague. 576 U.S., at ----, 135 S.Ct., at 2563. We subsequently granted his petition, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of Johnson. Beckles v. United States, 576 U.S. ----, 135 S.Ct. 2928, 192 L.Ed.2d 973 (2015).
On remand, petitioner argued that his enhanced sentence was based on § 4B1.2(a)'s residual clause, which he contended was unconstitutionally vague under Johnson. The Court of Appeals again affirmed. It noted that petitioner "was sentenced as a career offender based not on the ACCA's residual clause, but based on express language in the Sentencing Guidelines classifying [his] offense as a 'crime of violence.' " 616 Fed.Appx. 415, 416 (2015) (per curiam ). "Johnson, " the Court of Appeals reasoned, "says and decided nothing about career-offender enhancements under the Sentencing Guidelines or about the Guidelines commentary underlying [petitioner]'s status as a career-offender." Ibid. The Court of Appeals denied rehearing en banc.
Petitioner filed another petition for certiorari in this Court, again contending that § 4B1.2(a)'s residual clause is void for vagueness. To resolve a conflict among the Courts of Appeals on the question whether Johnson's vagueness holding applies to the residual clause in § 4B1.2(a) of the Guidelines, we granted certiorari. 579 U.S. ----, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). Because the United States, as respondent, agrees with petitioner that the Guidelines are subject to vagueness challenges, the Court appointed Adam K. Mortara as amicus curiae to argue the contrary position. 579 U.S. ----, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). He has ably discharged his responsibilities.
II
This Court has held that the Due Process Clause prohibits the Government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson, 576 U.S., at ---- - ----, 135 S.Ct., at 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ). Applying this standard, the Court has invalidated two kinds of criminal laws as "void for vagueness": laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses.
For the former, the Court has explained that "the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Id., at 357, 103 S.Ct. 1855. For the latter, the Court has explained that "statutes fixing sentences," Johnson, supra, at ----, 135 S.Ct., at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) ), must specify the range of available sentences with "sufficient clarity," id., at 123, 99 S.Ct. 2198 ; see also United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948) ; cf. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).
In Johnson, we applied the vagueness rule to a statute fixing permissible sentences. The ACCA's residual clause, where applicable, required sentencing courts to increase a defendant's prison term from a statutory maximum of 10 years to a minimum of 15 years. That requirement thus fixed-in an impermissibly vague way-a higher range of sentences for certain defendants. See Alleyne v. United States, 570 U.S. ----, ----, 133 S.Ct. 2151, 2160-2161, 186 L.Ed.2d 314 (2013) (describing the legally prescribed range of available sentences as the penalty fixed to a crime).
Unlike the ACCA, however, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.
A
The limited scope of the void-for-vagueness doctrine in this context is rooted in the history of federal sentencing. Instead of enacting specific sentences for particular federal crimes, Congress historically permitted district courts "wide discretion to decide whether the offender should be incarcerated and for how long." Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). For most crimes, Congress set forth a range of sentences, and sentencing courts had "almost unfettered discretion" to select the actual length of a defendant's sentence "within the customarily wide range" Congress had enacted. Id., at 364, 109 S.Ct. 647 ; see also, e.g., Apprendi v. New Jersey, 530 U.S. 466, 481-482, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; Williams v. New York, 337 U.S. 241, 247-248, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). That discretion allowed district courts to craft individualized sentences, taking into account the facts of the crime and the history of the defendant. As a result, "[s]erious disparities in sentences... were common." Mistretta, supra, at 365, 109 S.Ct. 647
Yet in the long history of discretionary sentencing, this Court has "never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range." United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ; see also, e.g., Apprendi, supra, at 481, 120 S.Ct. 2348 ("[N]othing in this history suggests that it is impermissible for judges to exercise discretion... in imposing a judgment within the range prescribed by statute"); Giaccio, supra, at 405, n. 8, 86 S.Ct. 518 ("[W]e intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits").
More specifically, our cases have never suggested that a defendant can successfully challenge as vague a sentencing statute conferring discretion to select an appropriate sentence from within a statutory range, even when that discretion is unfettered. In fact, our reasoning in Batchelder suggests the opposite. This Court considered in that case the constitutionality of two overlapping criminal provisions that authorized different maximum penalties for the same conduct. 442 U.S., at 115-116, 99 S.Ct. 2198. The Court held that the sentencing provisions were not void for vagueness because they specified the "penalties available" and defined the "punishment authorized" upon conviction for each crime. Id., at 123, 99 S.Ct. 2198. "Although the statutes create[d] uncertainty as to which crime may be charged and therefore what penalties may be imposed, they d[id] so to no greater extent than would a single statute authorizing various alternative punishments." Ibid. (emphasis added). By specifying "the range of penalties that prosecutors and judges may seek and impose," Congress had "fulfilled its duty." Id., at 126, 99 S.Ct. 2198 (citing Evans, supra, at 483, 68 S.Ct. 634 ; emphasis added). Indeed, no party to this case suggests that a system of purely discretionary sentencing could be subject to a vagueness challenge.
B
The Sentencing Reform Act of 1984 departed from this regime by establishing several factors to guide district courts in exercising their traditional sentencing discretion. 18 U.S.C. § 3553. Congress in the same Act created the United States Sentencing Commission and charged it with establishing guidelines to be used for sentencing. Mistretta, supra, at 367, 109 S.Ct. 647. The result of the Commission's work is the Federal Sentencing Guidelines, which are one of the sentencing factors that the Act requires courts to consider. § 3553(a)(4).
The Guidelines were initially binding on district courts, Booker, 543 U.S., at 233, 125 S.Ct. 738, but this Court in Booker rendered them "effectively advisory," id., at 245, 125 S.Ct. 738. Although the Guidelines remain "the starting point and the initial benchmark" for sentencing, a sentencing court may no longer rely exclusively on the Guidelines range; rather, the court "must make an individualized assessment based on the facts presented" and the other statutory factors. Gall v. United States, 552 U.S. 38, 49, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The Guidelines thus continue to guide district courts in exercising their discretion by serving as "the framework for sentencing," Peugh v. United States, 569 U.S. ----, ----, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013), but they "do not constrain th[at] discretion," id., at ----, 133 S.Ct., at 2089 (THOMAS, J., dissenting).
Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge. As discussed above, the system of purely discretionary sentencing that predated the Guidelines was constitutionally permissible. If a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be.
The advisory Guidelines also do not implicate the twin concerns underlying vagueness doctrine-providing notice and preventing arbitrary enforcement. As to notice, even perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). That is because even if a person behaves so as to avoid an enhanced sentence under the career-offender guideline, the sentencing court retains discretion to impose the enhanced sentence. See, e.g., Pepper v. United States, 562 U.S. 476, 501, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) ("[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission's views"). As we held in Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), "[t]he due process concerns that... require notice in a world of mandatory Guidelines no longer" apply. Id., at 714, 128 S.Ct. 2198 ; see id., at 713, 128 S.Ct. 2198 ("Any expectation subject to due process protection... that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in [Booker ], which invalidated the mandatory features of the Guidelines"). All of the notice required is provided by the applicable statutory range, which establishes the permissible bounds of the court's sentencing discretion.
The advisory Guidelines also do not implicate the vagueness doctrine's concern with arbitrary enforcement. Laws that "regulate persons or entities," we have explained, must be sufficiently clear "that those enforcing the law do not act in an arbitrary or discriminatory way." FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253, 132 S.Ct. 2307, 183 L.Ed.2d 234 (2012) ; see also Grayned, supra, at 108-109, 92 S.Ct. 2294 ("A vague law impermissibly delegates basic policy matters" to judges "for resolution on an ad hoc and subjective basis"). An unconstitutionally vague law invites arbitrary enforcement in this sense if it "leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case," Giaccio, 382 U.S., at 402-403, 86 S.Ct. 518, or permits them to prescribe the sentences or sentencing range available, cf. Alleyne, 570 U.S., at ----, 133 S.Ct., at 2160-2161 ("[T]he legally prescribed range is the penalty affixed to the crime").
The Guidelines, however, do not regulate the public by prohibiting any conduct or by "establishing minimum and maximum penalties for [any] crime." Mistretta, 488 U.S., at 396, 109 S.Ct. 647 (Sentencing Guidelines "do not bind or regulate the primary conduct of the public"). Rather, the Guidelines advise sentencing courts how to exercise their discretion within the bounds established by Congress. In this case, for example, the District Court did not "enforce" the career-offender Guideline against petitioner. It enforced 18 U.S.C. § 922(g)(1)'s prohibition on possession of a firearm by a felon-which prohibited petitioner's conduct-and § 924(e)(1)'s mandate of a sentence of 15 years to life imprisonment-which fixed the permissible range of petitioner's sentence. The court relied on the career-offender Guideline merely for advice in exercising its discretion to choose a sentence within those statutory limits.
Justice SOTOMAYOR's concurrence suggests that judges interpreting a vague sentencing Guideline might rely on "statistical analysis," "gut instinct," or the judge's "own feelings" to decide whether a defendant's conviction is a crime of violence. Post, at 901 (opinion concurring in judgment) (internal quotation marks omitted). A judge granted unfettered discretion could use those same approaches in determining a defendant's sentence. Indeed, the concurrence notes that federal judges before the Guidelines considered their own "view[s] of proper sentencing policy," among other considerations. Post, at 903 - 904. Yet we have never suggested that unfettered discretion can be void for vagueness.
Accordingly, we hold that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)'s residual clause is not void for vagueness.
III
Our holding today does not render the advisory Guidelines immune from constitutional scrutiny. This Court held in Peugh, for example, that a "retrospective increase in the Guidelines range applicable to a defendant" violates the Ex Post Facto Clause. 569 U.S., at ----, 133 S.Ct., at 2084. But the void-for-vagueness and ex post facto inquiries are "analytically distinct." See id., at ----, 133 S.Ct., at 2088 (distinguishing an ex post facto inquiry from a Sixth Amendment inquiry). Our ex post facto cases "have focused on whether a change in law creates a'significant risk' of a higher sentence." Ibid. A retroactive change in the Guidelines creates such a risk because "sentencing decisions are anchored by the Guidelines," which establish "the framework for sentencing." Id., at ----, ----, 133 S.Ct., at 2083. In contrast, the void-for-vagueness doctrine requires a different inquiry. The question is whether a law regulating private conduct by fixing permissible sentences provides notice and avoids arbitrary enforcement by clearly specifying the range of penalties available. The Government's rebuttal that both doctrines are concerned with " 'fundamental justice,' " Reply Brief for United States 7, ignores the contours of our precedents.
The Court has also recognized "in the Eighth Amendment context" that a district court's reliance on a vague sentencing factor in a capital case, even indirectly, "can taint the sentence." Brief for United States 43 (citing Espinosa v. Florida, 505 U.S. 1079, 1082, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992) (per curiam ); emphasis added). But our approach to vagueness under the Due Process Clause is not interchangeable with "the rationale of our cases construing and applying the Eighth Amendment." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Our decision in Espinosa is thus inapposite, as it did not involve advisory Sentencing Guidelines or the Due Process Clause.
Finally, our holding today also does not render "sentencing procedure[s]" entirely "immune from scrutiny under the due process clause." Williams, 337 U.S., at 252, n. 18, 69 S.Ct. 1079 ; see, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (holding that due process is violated when a court relies on "extensively and materially false" evidence to impose a sentence on an uncounseled defendant). We hold only that the advisory Sentencing Guidelines, including § 4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine.
IV
In addition to directing sentencing courts to consider the Guidelines, see § 3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§ 3553(a)(1)-(3), (5)-(7). The Government concedes that "American judges have long made th [e] sorts of judgments" called for by the § 3553(a) factors "in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns." Brief for United States 42. Because the § 3553 factors-like the Guidelines-do not mandate any specific sentences, but rather guide the exercise of a district court's discretion within the applicable statutory range, our holding today casts no doubt on their validity.
Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as § 4B1.2(a)'s residual clause. For example, courts must assess "the need for the sentence imposed" to achieve certain goals-such as to "reflect the seriousness of the offense," "promote respect for the law," "provide just punishment for the offense," "afford adequate deterrence to criminal conduct," and "provide the defendant with needed educational or vocational training... in the most effective manner." § 3553(a)(2). If petitioner were correct that § 4B1.2(a)'s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement.
The Government tries to have it both ways, arguing that the individualized sentencing required by the other § 3553(a) factors is different in kind from that required by the Guidelines. "An inscrutably vague advisory guideline," it contends, "injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system." Reply Brief for United States 10-11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, "to promote respect for the law." § 3553(a)(2)(A). And neither the Guidelines nor the other § 3553 factors implicate those concerns more than the absence of any guidance at all
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200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Leonard VAN DOMELEN and Amy Van Domelen, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, a corporation, Appellee.
No. 21447.
United States Court of Appeals Ninth Circuit.
July 27, 1967.
Gerald H. Robinson, Portland, Or., for appellants; Green, Richardson, Griswold & Murphy, Portland, Or., of counsel.
W. C. Schwenn, Hillsboro, Or., Malcolm J. Montague, Williams, Montague, Stark & Thorpe, Portland, Or., for appellee.
Before HAMLEY and MERRILL, Circuit Judges, and MATHES, District Judge.
MATHES, District Judge:
Leonard and Amy Van Domelen appeal from a judgment of the District Court entered upon a jury verdict finding them liable upon their joint written guaranty in favor of appellee.
The guaranty in question, dated January 7, 1964, was executed in Oregon in favor of the appellee, Westinghouse Electric Corporation, and by its terms guarantees payment of the account of Sharon Manufacturing Company with Westinghouse. Federal jurisdiction is grounded upon diversity of citizenship, so the substantive law of Oregon governs. [Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).]
Appellants’ first contention is that this guaranty failed to satisfy the expression-of-consideration requirement of the Oregon Statute of Frauds, which provides in part that:
“In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing * * *
(2) An agreement to answer for the debt, default or miscarriage of another.” [Ore.Rev.Stat. § 41.580.]
Although the challenged instrument recites that it was executed “In consideration of your [Westinghouse] extending credit to Sharon Furniture Manufacturing Co., Inc. * * * and for value received”, appellants argue that this is an insufficient expression of the consideration for the guaranty here, since the consideration claimed by Westinghouse to have been given was not extension of credit, but a forbearance of suit against Sharon.
It is to be noted however, that the provisions of the guaranty conclude with the following recital: “Witness our hands and seals the day and year above written.” The abbreviation “L.S.” appears in print following each of the Van Domelen signatures, and signifies presence of a seal in accordance with § 42.-120 of the Oregon Revised Statutes, which was in effect at all times relevant here.
In Johnston v. Wadsworth, 24 Or. 494, 34 P. 13 (1883), the Oregon Supreme Court considered the requirement of “expressing the consideration”, as found in Oregon’s Statute of Frauds [Or.Rev. Stat. § 41.580], and observed that “the agreement being under seal, the seal is itself sufficient to satisfy the statute.” [24 Or. at 502, 34 P. at 15; cf. Title & Trust Co. v. Nelson, 157 Or. 585, 71 P.2d 1081, 114 A.L.R. 1196 (1937).]
Although, as appellants point out, § 41.350(3) of the Oregon Revised Statutes declares that a recital of consideration is excluded from the conclusive presumption of “[t]he truth of the facts recited * * * in a written instrument”, this provision is relevant to a determination of whether or not there was in fact a failure of the expressed consideration, and not to a determination of whether or not the Oregon Statute of Frauds has been satisfied.
The requirements of Oregon's Statute of Frauds being met by execution of the guaranty under seal, parol evidence was properly admitted to explain that the ambiguous phrase “extending credit * * * and for value received”, as employed in the guaranty, referred to forbearance of suit on the part of appellee. [See Or.Rev.Stat. §§ 41.740, 42.-220.]
Appellants next urge that there was insufficient evidence to support the jury’s determination that Westinghouse agreed to forbear suit against Sharon, but so to hold would require us to declare that the jury could not reasonably have believed the testimony of appellee’s credit manager. We are unable to say that the jury’s finding from the evidence in the case was outside the bounds of reasonableness. [See Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (I960).]
Finally, appellants contend that in all events there was no credible evidence to warrant a jury finding that Westinghouse relied upon the guaranty in forbearing to sue Sharon; and in this connection they also assert that the trial court erroneously limited appellants’ cross-examination of appellee’s principal witness on this issue.
The trial judge instructed the jury that, in order to find in favor of appellee, they must find not only that Westinghouse promised Sharon to forbear suit in return for appellant’s guaranty, but also that Westinghouse relied at least in part upon appellants’ guaranty in actually forbearing suit against Sharon for the agreed period of time. Inasmuch as we find no authority suggesting that the courts of Oregon would follow a different rule from that adhered to in other jurisdictions, we hold that the jury’s verdict in favor of appellee would have been fully supported either by a finding of a promise to forbear, or by a finding of actual forbearance in reliance upon the guaranty. [See Restatement of Contracts § 75 (1932); 1 Corbin on Contracts § 139 (1963); Annot., 78 A. L.R.2d 1414.]
And since there was ample evidence to support the finding of a promise to forbear on the part of Westinghouse, and it is undisputed that Westinghouse actually did forbear during the agreed-upon period of time, the trial court’s error, if any, in limiting appellants’ cross-examination and in tendering the issue of reliance upon the guaranty to the jury, was harmless. [See Fed.R. Civ.P. 61.]
The verdict in favor of appellee on the January 7, 1964 guaranty being sufficient to sustain the judgment appealed from, we need not reach the questions raised as to the correctness of the trial court’s rulings involving an earlier guaranty executed in 1963 by appellant Leonard Van Domelen alone in favor of appellee.
The judgment appealed from is affirmed.
Judge Mathes prepared and signed this opinion, hut died before it could be filed.
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:
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songer_appnatpr
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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 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.
Eugene M. BARRETT, Appellant, v. C. H. LOONEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
No. 5758.
United States Court of Appeals Tenth Circuit.
Feb. 18, 1958.
Joseph P. Jenkins, Kansas City, Mo., for appellant.
Peter S. Wondolowski, Lieutenant Colonel, U. S. Army, Judge Advocate General’s Corps, Washington, D. C. (William C. Farmer, U. S. Atty., Topeka, Kan., Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., and Cecil L. Fori-nash, Lieutenant Colonel, U. S. Army, Judge Advocate General’s Corps, Washington, D. C., were with him on the brief), for appellee.
Before MURRAH, LEWIS and BREI-TENSTEIN, Circuit Judges.
PER CURIAM.
This case presents a single question: Does one who enlists in the military while under lawful age for enlistment but who continues to voluntarily render military service after reaching the age of permissible enlistment thereupon become amenable to court-martial jurisdiction for offenses committed after such lawful age is attained?
Appeal is taken from the judgment of the District Court of Kansas holding that one who so serves becomes a member of the military and subject to its jurisdiction.
The particular facts premising the issue, together with a careful analysis of pertinent authority, is set forth in the opinion of Senior Circuit Judge Huxman who heard the case upon assignment to the District Court. We agree with Judge Huxman’s opinion and the judgment is affirmed for the reasons stated therein. 158 F.Supp. 224. Since we hold appellant to have been a member of the military at the time of his offenses we need not consider any aspect of possible military jurisdiction over civilians.
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_casetyp1_7-3-5
|
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 - misc economic regulation and benefits".
Mary Alma TIERNEY, et al., Appellants, v. Richard S. SCHWEIKER, Secretary of Health and Human Services. Ava P. TRAHAN, et al., Appellants, v. Donald T. REGAN, Secretary of the Treasury, et al.
Nos. 82-1790, 82-2449.
United States Court of Appeals, District of Columbia Circuit.
Argued April 28, 1983.
Decided Sept. 20, 1983.
Bruce M. Fried, with whom Burton M. Fretz, and Michael R. Schuster, Washington, D.C., were on the brief for appellants, Mary Alma Tierney, et al., in 82-1790 and for appellants, Ava P. Trahan, et al., in 82-2449.
Mitchell R. Berger, Asst. U.S. Atty., with whom Stánley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief for appellee, Schweiker, Secretary of Health and Human Services in 82-1790 and for appellees Regan, Secretary of the Treasury, et al., in 82-2249.
Before TAMM and MIKVA, Circuit Judges, and VAN PELT, Senior District Judge for Nebraska.
Opinion for the Court filed by Circuit Judge MIKVA.
Concurring opinion filed by Senior District Judge VAN PELT.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
MIKVA, Circuit Judge:
Prompted by allegations of widespread abuse in the Supplemental Security Income (Benefits) program, the Social Security Administration (SSA) implemented a new policy to verify the income and assets of SSI recipients. Specifically, through a mass mailing distributed in May 1982, SSA asked each of four million former and current Benefits recipients to sign a consent form that would allow SSA to obtain copies of otherwise confidential tax return information maintained by the Internal Revenue Service (IRS). This tax return information would then be checked against the strict financial limitations that are imposed on Benefits recipients, thereby allowing SSA to eliminate from the program any individuals who are ineligible because their income or assets exceed the maximum allowable levels.
After these forms were distributed (and in many cases signed and returned by Benefits recipients), but before the IRS released any confidential tax information to the SSA, the appellants, current and former Benefits recipients, initiated two separate actions in district court, one against the SSA and the other against the IRS, Trahan v. Regan, 554 F.Supp. 57 (D.D.C.1982). In both cases, the appellants were denied relief for a variety of jurisdictional and remedial reasons. These appeals were then filed and briefed separately, but were consolidated for oral argument before this court. Because we hold that any release of tax information based on the consent form included in the May 1982 mailing would violate the confidentiality section of the Internal Revenue Code, we reverse the district court decision that denied the appellants a declaratory judgment against the IRS. That conclusion makes it unnecessary for us to review the holdings made by the district court as to SSA. Thus, we vacate that order and dismiss the appeal without prejudice to the refiling of those claims in district court should such a course of action someday be deemed necessary.
I. Background
The Benefits program, appearing as Title XVI of the Social Security Act, was first enacted in 1972. See 42 U.S.C. §§ 1381-1383c (1976 & Supp. V 1981). Administered by the federal government through the Social Security Administration, the Benefits program is designed to provide cash assistance to needy individuals who are aged, blind, or disabled. To be eligible to receive benefits under the program, a person not only must qualify on medical or age grounds, but also must meet financial eligibility requirements established by the SSA pursuant to 42 U.S.C. §§ 1382, 1382a, and 1382b (defining eligibility for benefits based on income and resources). See 20 C.F.R. §§ 416.1100-.1266 (1982) (defining income and resources).
To ensure that benefits are granted only to individuals who are financially eligible, Congress has directed the SSA to prescribe regulations for the effective and efficient administration of the program. 42 U.S.C. § 1383(e)(1)(A). Pursuant to this statutory authority, the agency has issued regulations requiring Benefits recipients to provide various types of information and documents that will assist the agency in determining eligibility to receive benefits. See, e.g., 20 C.F.R. § 416.200 (1982) (recipient “must give [SSA] any information ... requested] and show [SSA] necessary documents or other evidence to prove that .... these requirements [are met]”). Failure to comply with a request for necessary information can result in suspension of benefits. See id. § 416.1322; see also id. § 416.714(b) (if requested reports are not filed within thirty days, recipient may be ineligible for benefits). Before any suspension or termination of benefits may occur, however, a recipient is entitled to the full panoply of procedural protections, including adequate notice and a subsequent hearing as specified in both statute and regulation. See, e.g., 42 U.S.C. 1383(c)(3); 20 C.F.R. §§ 416.-1336, .1407-1494.
Despite the abundance of information that must be provided by recipients, the statute also directs that the agency not rely solely on “declarations by the applicant concerning eligibility factors or other relevant facts.” 42 U.S.C. § 1383(e)(1)(B). Rather, Congress has required that SSA’s determinations of eligibility be based on “relevant information [that is] verified from independent or collateral sources and additional information [that is] obtained as necessary.” Id. Although the statute does not identify any specific data sources to be used for verification purposes, Congress, apparently believing that the government was among the “independent or collateral sources” of “additional information” to which SSA would turn, explicitly required that other federal agencies cooperate in furnishing information to the SSA. Id. § 1383(f).
Thus, it was not surprising when two separate reports issued by the General Accounting Office (GAO) recommended that the SSA verify eligibility for Benefits by using tax information collected by the IRS. See Reports by the Comptroller General to the Congress, dated February 4,1981 (HRD 81-4) and January 12, 1982 (HRD 82-9). These reports estimated that more than $100 million in improper payments to Benefits recipients go undetected each year because many recipients earn too much income or own too many assets to be properly eligible for benefits. To eliminate this abuse, GAO made two recommendations— one proposing congressional action and the other directed at proposed changes in agency procedures — that would allow the SSA to use tax information to identify ineligible recipients.
The shape of these particular recommendations was dictated in large part by the stringent confidentiality requirements included in section 6103 of the Internal Revenue Code (Code). See I.R.C. § 6103 (1976 & Supp. V 1981). Even though SSA’s governing statute requires other federal agencies to furnish information to it, the Code’s directive is more explicit. Under the general rule of section 6103 of the Code, all “[r]eturns and return information shall be confidential ... except as authorized by this title.” See also id. § 6103(b)(2) (defining “return information” to include essentially all data associated or identified with a particular taxpayer). The section goes on to list scores of exceptions to this otherwise absolute confidentiality, covering many pages in the United States Code, and including many exceptions that permit disclosure to other federal agencies. See id. §§ 6103(c)-(o). Not one of these exceptions, however, applies to the SSA for use in determining or verifying eligibility for Benefits. Thus, the GAO recommended that the federal tax laws be amended to permit the IRS to disclose directly to the SSA data concerning the sources and amounts of income and assets of Benefits recipients.
Assuming that congressional amendment of the Code’s confidentiality provisions would not be forthcoming — an assumption that has proven true — the GAO reports also recommended an administrative alternative. That alternative was based on subsection 6103(c), the only existing exception to IRS confidentiality that is even arguably applicable in this situation. That subsection provides that the IRS “may, subject to such requirements and conditions as [it] may prescribe by regulations, disclose ... return information ... to such person or persons as the taxpayer may designate in a written request or a consent to such disclosure .... ” Id. § 6103(c). At least on its face, this statutory exception to otherwise absolute confidentiality suggests that the SSA could obtain tax information concerning Benefits recipients who consent to such disclosure.
The attempted implementation by SSA of this administrative alternative has precipitated the two cases that are now before the court. In May 1982, the SSA mailed to more than four million Benefits recipients a notice-and-consent form, the purpose of which was to provide the agency with written permission, under subsection 6103(c), to obtain otherwise confidential tax information. The notice-and-consent form distributed during this mass mailing consisted of two essential parts, both appearing on a single page. See Appendix, post. In the first part, labeled “Request for Your Consent for Social Security to Get Your Tax Information,” the agency attempted to notify Benefits recipients of the purposes to be served by the requested consent:
We want the Internal Revenue Service to give us information from your tax records. The Internal Revenue Service will give us the information if you sign the form below.
We will compare this tax information with what you told us about your income and what you own to make sure we are paying the right amount in your Supplemental Security Income checks.
Then, in an apparent attempt to explain the legal consequences of signing or not signing the consent form, the notice advised recipients that:
You have a choice about signing the form. But we must have accurate information about your income and what you own to pay your Supplemental Security Income checks. If you do not sign the form, your Supplemental Security Income checks may be affected.
The second part of the form was to be signed by Benefits recipients and returned to their local SSA offices. Almost 3 million of the over 4 million forms were signed and returned to SSA.
At the same time, a teletype was sent to area offices of the SSA explaining to the agency staff the procedures to be followed concerning the notice-and-consent forms. This teletype explained how the forms that were signed and returned would be collected, how those who continued to refuse to consent would be subject to suspension procedures (which include full notice and comment rights), and how refusal to sign the consent form apparently was, by itself, grounds for suspending benefits. The teletype also set forth the language to be used in notifying Benefits recipients that suspension procedures would commence: “Since you have not signed the authorization form, we can not determine if you continue to be eligible for Supplemental Security Income payments. Therefore, we can not pay you any more benefits beginning month/year.” See Joint Appendix in No. 82-1790 at 18; see also 20 C.F.R. § 416.3122 (allowing for suspension of benefits if a recipient fails to provide requested information and documents).
In June 1982, appellants filed a suit against SSA in federal district court [hereinafter referred to as the Tierney litigation]. In this lawsuit, appellants sought class certification and presented their case on four separate counts — (1) that the notice and consent form was constitutionally inadequate; (2) that the release of this tax information violated the Privacy Act, 5 U.S.C. § 552a(e)(3) (1976); (3) that the agency should have gone through notice and comment rulemaking pursuant to the Administrative Procedure Act, 5 U.S.C. § 553 (1976), before instituting the new procedures and before requiring consent as a condition of eligibility for benefits; and (4) that the SSA was acting beyond its • statutory authority. One day after the complaint was filed, the district court issued a temporary restraining order and conditionally certified the class; after a hearing, however, the district court granted SSA’s motion for summary judgment. In response to a motion for relief pending appeal, the trial judge explained that the case was premature and that he had dismissed the complaint on jurisdictional grounds without reaching the merits.
After the district court’s ruling in the Tierney litigation, many of the same appellants initiated a separate lawsuit in district court against the IRS [hereinafter referred to as the Trahan litigation]. These appellants again requested class certification and brought four separate counts against the IRS — (1) that the authorizations were obtained by threat and coercion, rather than by the consent that I.R.C. § 6103(c) requires; (2) that the notice-and-consent form did not meet the requirements set forth in the applicable IRS regulations, 26 C.F.R. § 301.6103(c)-l(a) (1982); (3) that SSA had failed to establish appropriate procedures for safeguarding the records as required by I.R.C. § 6103(p); and (4) that processing those forms would divert IRS staff from normal tax administration in violation of I.R.C. § 6103(c). A different trial judge dismissed the suit on a variety of remedial and jurisdictional grounds without deciding the class certification motion. In particular, the court held — (1) that it could not issue a declaratory judgment against the IRS because no “actual controversy” existed; (2) that the availability of a civil damage remedy for violations of section 6103 of the Code precluded a court from issuing an injunction; (3) that there was no federal question jurisdiction under 28 U.S.C. § 1331 (1976 & Supp. Y 1981), because appellants’ claims were “insubstantial and frivolous”; and (4) that there was no mandamus jurisdiction under 28 U.S.C. § 1361 (1976). These consolidated appeals followed.
II. Discussion
Much of the confusion generated by these two cases arises from conflicting signals given by the Congress. In 1972, when enacting the Social Security Amendments that instituted the Benefits program, Congress was concerned with ensuring that financially ineligible individuals not abuse the system. To this end, Congress directed the SSA to obtain as much information as possible to discover such ineligibility. In 1976, when expanding the confidentiality provisions as part of the Tax Reform Act of 1976, Congress made clear that tax information was to be absolutely confidential, subject to certain explicit exceptions. Although Congress created numerous exceptions, none was applicable to the information which SSA now seeks. When Congress speaks with two separate minds, the conflicting goals can present difficult dilemmas.
After carefully examining the many claims raised by appellants, and the various counterarguments made by the two agencies involved in these appeals, we believe that the separate directives of Congress can be heeded simultaneously, albeit not to the full satisfaction of SSA. It is most efficient to start with a discussion of the Trahan litigation and the issues surrounding the IRS and the Internal Revenue Code.
A. Jurisdiction
As a preliminary matter we hold that the district court had subject matter jurisdiction over the Trahan litigation under 28 U.S.C. § 1331 — the legal claims in this case “arise under” laws of the United States, specifically section 6103 of the Internal Revenue Code. We cannot agree with the district court that the claims are so insubstantial or frivolous as to allow for dismissal. See Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974) (claims must be “ ‘so attenuated ... as to be absolutely devoid of merit’ ”) (quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795 (1904)). The district court appears to have merged the substantiality requirement with a determination on the merits. But, “[j]urisdiction is not lost because the court ultimately concludes that the federal claim is without merit.” 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction § 3564, at 429 (1975) (footnote omitted).
Nor do we find any other bar to judicial review of the Trahan case. Benefits recipients who signed the notice-and-consent forms have standing to sue because they are threatened with the loss of a right which section 6103 was designed to protect. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); see also Capital Legal Foundation v. Commodity Credit Corporation, 711 F.2d 253 at 259 (D.C.Cir.1983) (“standing inquiry focuses on the substance of the agency action, its adverse impact on the plaintiff, and the types of interests that the applicable law is designed to protect”). Moreover, the case is ripe for decision because it appears that the IRS is prepared to release the tax information should we dismiss this case. See ITT World Communications, Inc. v. Federal Communications Commission, 699 F.2d 1219, 1232 (D.C.Cir.1983) (ripeness requires an evaluation of “ ‘the fitness of the issues for judicial decision,’ and ... ‘the hardship to the parties of withholding court consideration’ ”) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136,148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)).
B. The Consent Requirement of Subsection 6103(c)
Given that the Code guarantees confidentiality and creates no statutory exception for SSA to verify Benefits eligibility, the agencies have been forced to rely on subsection 6103(e) in order to justify the potential release of confidential tax information. That section provides that the IRS “may, subject to such requirements and conditions as [it] may prescribe by regulations, disclose ... return information ... to such person or persons as the taxpayer may designate in a written request for or
consent to such disclosure .. .. ” I.R.C. § 6103(c) (emphasis added). Under this proviso, the notice-and-consent form signed by appellants and distributed to millions of Benefits recipients fails to provide the “consent” that is needed before the IRS can release confidential tax return information.
Our holding rests on two independent grounds. First, the notice-and-consent form does not meet the requirements of the IRS’ own regulations. Those regulations require that consent “be in the form of a written document pertaining solely to the authorized disclosure.” 26 C.F.R. § 301.-6103(c)-l(a) (1982). That document must contain certain specified information, including, “[t]he taxable year covered by the return or return information.” Id. The notice-and-consent form fails to comply with this requirement. It contains no expiration date and leaves the “taxable year covered” totally open-ended. Because the consent exception authorized by subsection 6103(c) is conditioned upon adherence to the regulations adopted by the IRS, the SSA’s attempt to secure wholesale access to recipients’ tax information is invalid.
The second, and more important, basis for our holding is that these forms, which were mailed to 4 million elderly, blind and disabled individuals, cannot solicit the type of knowing and voluntary consent that the statute contemplates before the IRS can release confidential tax information under subsection 6103(c). The purpose of the confidentiality clause of the Tax Reform Act of 1976 was to protect individual taxpayers from unauthorized disclosure of their tax return information. In particular, Congress was concerned about the potential widespread availability of individual tax information to government agencies. See Sen. Rep. No. 938 (Part II), 94th Cong., 2d Sess. 315-16, reprinted in 1976 U.S. Code Cong. & Ad.News 3744-45. The legislative history of section 6103 demonstrates that Congress intended to limit disclosure of tax return information except under narrowly defined circumstances.
Prior to enactment of section 6103, tax returns were available for inspection by government agencies under regulations approved by the President or under executive order. Congress was concerned that this system did not protect the privacy of individual taxpayers adequately. The Senate Finance Committee Report (the Report) explained why a new system was needed:
It has been stated that the IRS probably has more information about more people than any other agency in this country. Consequently, almost every other agency that has a need for information about U.S. citizens, therefore, logically seeks it from the IRS. However, in many cases the Congress has not specifically considered whether the agencies which have access to tax information should have that access.
Id. at 316-17, reprinted in 1976 U.S. Code Cong. & Ad.News 3746. The Report went on to explain how the Finance Committee determined which exceptions to a broad confidentiality rule were desirable:
The committee has reviewed each of the areas in which returns and return information are now subject to disclosure. With respect to each of these areas the committee has tried to balance the particular office or agency’s need for the information involved with the citizen’s right to privacy and the related impact of the disclosure upon the continuation of compliance with our country’s voluntary assessment system.
Id. at 318, reprinted in 1976 U.S. Code Cong. & Ad.News 3747 (footnote omitted). The Report specifically addressed the use of tax information by SSA to determine the eligibility of beneficiaries under its authority. See id. at 334, reprinted in 1976 U.S. Code Cong. & Ad.News 3764 (describing eligibility under Title II of the Social Security Act). According to the Report, “[t]he committee decided to limit strictly the types of returns and return information which would be made available to other agencies on a general basis for purposes other than tax administration or statistical use, and the situations in which they would be made available.” Id. at 335, reprinted in 1976 U.S. Code Cong. & Ad.News 3764. The Report therefore concluded that general use of tax return information by SSA and other agencies was “not warranted.” Id. Specifically, with regard to SSA, Congress concluded that only tax return information concerning employment taxes would be made available. Id. See I.R.C. § 6103(f)(1); see also H.R.Rep. No. 1515, 94th Cong., 2d Sess. 482-83, reprinted in 1976 U.S.Code Cong. & Ad.News 4186-87 (conference agreement to adopt Senate version).
In light of this legislative history, the IRS cannot use the consent exception of subsection 6103(c) as a “catch-all” provision to circumvent the general rule of confidentiality established by Congress. Although a knowing and intelligent waiver of rights by Benefits recipients might permit the IRS to release those individuals’ tax return information, the form used in this case makes a mockery of the consent requirement. The form itself contained poorly-veiled threats that the recipients’ benefits would be terminated if they failed to sign the forms: “If you do not sign the form, your Supplemental Security Income checks may be affected.” See Appendix, post. The form also failed to notify recipients of their procedural rights if SSA decided to terminate their benefits. The language of the form was thus likely to coerce individuals, who depend on social security for their subsistence, into giving up their right to confidentiality. The affidavits filed by appellants dramatize this coercive effect on Benefits recipients. See Joint Appendix in No. 82-2449 at 15-26. Without an understanding of their substantive and procedural rights, appellants cannot be said to have consented knowingly and voluntarily to the release of their tax information.
Our holding today is limited. We conclude that the form sent out by the Social Security Administration and signed by almost 3 million individuals does not meet the “consent” requirement of subsection 6103(c) of the Internal Revenue Code. We intimate no views on whether another form— one which contains no veiled threats and sets forth the substantive and procedural rights of Benefits recipients — could result in knowing and voluntary consent. And, of course, no consent form would be required (barring constitutional difficulties) should Congress create another exception to the confidentiality requirement of section 6103 so that SSA could use tax return information to determine the eligibility of Benefits recipients. See Note, The Constitutional Right to Confidentiality, 51 Geo.WashL. Rev. 133 (1982).
C. Appropriateness of Declaratory Relief
The district court in Trahan held that the appellants were not entitled to declaratory relief for lack of an “actual controversy.” The court also concluded that declaratory relief was precluded by the availability of “administrative remedies” — specifically, the revocation of the consents by Benefits recipients. We disagree.
The validity of the signed notice- and-consent forms is not the measure of whether an actual controversy exists. Given that the IRS intends to release this information to SSA, the controversy is of “sufficient immediacy” to warrant issuance of a declaratory judgment. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); see also Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937) (the controversy must be “real and substantial”). Moreover, as this court said in President v. Vance, 627 F.2d 353, 364 n. 76 (D.C.Cir.1980) (quoting E. Borchard, Declaratory Judgments 299 (2d ed. 1941)), “a declaratory judgment will ordinarily be granted only when it will either ‘serve a useful purpose in clarifying the legal relations in issue’ or ‘terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ ” A declaratory judgment here not only will put an end to the uncertainty and insecurity faced by the appellants, but also inform the government that release of tax information on Benefits recipients may subject it to millions of dollars in damages under I.R.C. § 7431 (West Supp.1983).
Appellees suggest that declaratory relief is precluded because appellants failed to show irreparable harm. We disagree. Although a party must demonstrate irreparable injury before obtaining injunctive relief, such a showing is not necessary for the issuance of a declaratory judgment. Steffel v. Thompson, 415 U.S. 452, 471-72, 94 act 1209, 1221-22, 39 L.Ed.2d 505 (1974).
Nor is declaratory relief unavailable because an alternative remedy (revocation of consent) was available to appellants. The Federal Rules of Civil Procedure expressly provide that “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” See Fed.R.Civ.P. 57. Indeed, as the Advisory Committee explained, “declaratory relief is alternative or cumulative and not exclusive or extraordinary .... [T]he fact that another remedy would be equally effective affords no ground for declining declaratory relief.” Fed.R.Civ.P. 57 advisory committee note. In this case, a declaratory judgment and the alternative remedies — revocation of consent and civil damages for unlawful disclosure — are not even “equally” effective. If we refused to grant declaratory relief in this case, appellants would have to abide their consents or risk termination of their benefits. The availability of a $1,000 damage remedy after the information is released fails to protect appellants’ right to confidentiality. By resolving the controversy over the validity of the consents, a declaratory judgment would protect appellants’ rights and inform the IRS that it will be liable for any unlawful disclosure of confidential information based on the notice-and-consent forms. Thus, the district court committed reversible error when it held that the availability of such alternative remedies precluded issuance of a declaratory judgment.
III. Conclusion
The notice-and-consent form relied upon by the IRS to justify release of otherwise confidential tax information does not provide the free and untrammelled consent envisioned by subsection 6103(c) of the Internal Revenue Code. The appellants are entitled to a declaratory judgment that reliance on these forms to justify release of tax information is unlawful and would subject the United States to civil damages under section 7431 of the Internal Revenue Code. Because of our conclusion that declaratory relief is appropriate in Trahan, we need not address the appropriateness of mandamus or injunctive relief — issues discussed extensively by the district court and the parties in their briefs before this court. Issuance of a declaratory judgment in Trahan also makes it unnecessary for us to decide any of the issues raised in the Tierney litigation. Under our ruling today, the IRS cannot release tax information to the SSA on the basis of these notice-and-consent forms. These forms are thus rendered useless to SSA. We therefore vacate the order of the district court in Tierney without prejudice to any of the parties if these matters should arise again. We vacate those portions of the Trahan order and opinion pertaining to injunctive relief and mandamus. We reverse the district court in Trahan as to subject matter jurisdiction and the availability of declaratory relief, and hold that the notice-and-consent forms do not meet the requirements of subsection 6103(c). We remand to the district court with instructions for it to issue a declaratory judgment in appellants’ favor.
It is so ordered.
APPENDIX
EXHIBIT A
Ui
•o
z
o
See I.R.C. § 7431 (West Supp.1983). Toward the end of 1982, Congress repealed the former civil damage section, I.R.C. § 7217 (1976), and replaced it with section 7431. See Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-278, § 357, 96 Stat. 645 (1982). The district court opinion referred to the former codification. Section 7431 retains the civil damage remedy of section 7217 but changes it in one important respect, by placing liability with the United States rather than with the individuals responsible for releasing the confidential material.
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:
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sc_adminaction
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117
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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.
LARKIN et al. v. GRENDEL’S DEN, INC.
No. 81-878.
Argued October 4, 1982
Decided December 13, 1982
BURGER, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, post, p. 127.
Gerald J. Caruso, Assistant Attorney General of Massachusetts, argued the cause pro hac vice for appellants. With him on the briefs for appellants Larkin et al. were Francis X. Bellotti, Attorney General, and Paul W. Johnson, Special Assistant Attorney General. David B. O’Connor and Birge Albright filed a brief for appellant Cambridge License Commission.
Laurence H. Tribe argued the cause and filed briefs for appellee.
Charles S. Sims and John Reinstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Chief Justice Burger
delivered the opinion of the Court.
The question presented by this appeal is whether a Massachusetts statute, which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school, violates the Establishment Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment.
I
A
Appellee operates a restaurant located in the Harvard Square area of Cambridge, Mass. The Holy Cross Armenian Catholic Parish is located adjacent to the restaurant; the back walls of the two buildings are 10 feet apart. In 1977, appellee applied to the Cambridge License Commission for approval of an alcoholic beverages license for the restaurant.
Section 16C of Chapter 138 of the Massachusetts General Laws provides: “Premises . . . located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto.”
Holy Cross Church objected to appellee’s application, expressing concern over “having so many licenses so near” (emphasis in original). The License Commission voted to deny the application, citing only the objection of Holy Cross Church and noting that the church “is within 10 feet of the proposed location.”
On appeal, the Massachusetts Alcoholic Beverages Control Commission upheld the License Commission’s action. The Beverages Control Commission found that “the church’s objection under Section 16C was the only basis on which the [license] was denied.”
Appellee then sued the License Commission and the Beverages Control Commission in United States District Court. Relief was sought on the grounds that § 16C, on its face and as applied, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Establishment Clause of the First Amendment, and the Sherman Act.
The suit was voluntarily continued pending the decision of the Massachusetts Supreme Judicial Court in a similar challenge to §16C, Arno v. Alcoholic Beverages Control Comm’n, 377 Mass. 83, 384 N. E. 2d 1223 (1979). In Amo, the Massachusetts court characterized § 16C as delegating a “veto power” to the specified institutions, id., at 89, 384 N. E. 2d, at 1227, but upheld the statute against Due Process and Establishment Clause challenges. Thereafter, the District Court denied appellants’ motion to dismiss.
On the parties’ cross-motions for summary judgment, the District Court declined to follow the Massachusetts Supreme Judicial Court’s decision in Arno, supra. The District Court held that §16C violated the Due Process Clause and the Establishment Clause and held § 16C void on its face, Grendel’s Den, Inc. v. Goodwin, 495 F. Supp. 761 (Mass. 1980). The District Court rejected appellee’s equal protection arguments, but held that the State’s actions were not immune from antitrust review under the doctrine of Parker v. Brown, 317 U. S. 341 (1943). It certified the judgment to the Court of Appeals for the First Circuit pursuant to 28 U. S. C. § 1292, and the Court of Appeals accepted certification.
A panel of the First Circuit, in a divided opinion, reversed the District Court on the Due Process and Establishment Clause arguments, but affirmed its antitrust analysis, Grendel’s Den, Inc. v. Goodwin, 662 F. 2d 88 (1981).
Appellee’s motion for rehearing en banc was granted and the en banc court, in a divided opinion, affirmed the District Court’s judgment on Establishment Clause grounds without reaching the due process or antitrust claims, Grendel's Den, Inc. v. Goodwin, 662 F. 2d 102 (1981).
B
The Court of Appeals noted that appellee does not contend that § 16C lacks a secular purpose, and turned to the question of “whether the law ‘has the direct and immediate effect of advancing religion’ as contrasted with ‘only a remote and incidental effect advantageous to religious institutions,”’ id., at 104 (emphasis in original), quoting Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 783, n. 39 (1973). The court concluded that § 16C confers a direct and substantial benefit upon religions by “the grant of a veto power over liquor sales in roughly one million square feet... of what may be a city’s most commercially valuable sites,” 662 F. 2d, at 105.
The court acknowledged that § 16C “extends its benefits beyond churches to schools,” but concluded that the inclusion of schools “does not dilute [the statute’s] forbidden religious classification,” since § 16C does not “encompass all who are otherwise similarly situated to churches in all respects except dedication to ‘divine worship.’” Id., at 106-107 (footnote omitted). In the view of the Court of Appeals, this “explicit religious discrimination,” id., at 105, provided an additional basis for its holding that § 16C violates the Establishment Clause.
The court found nothing in the Twenty-first Amendment to alter its conclusion, and affirmed the District Court’s holding that § 16C is facially unconstitutional under the Establishment Clause of the First Amendment.
We noted probable jurisdiction, 454 U. S. 1140 (1982), and we affirm.
II
A
Appellants contend that the State may, without impinging on the Establishment Clause of the First Amendment, enforce what it describes as a “zoning” law in order to shield schools and places of divine worship from the presence nearby of liquor-dispensing establishments. It is also contended that a zone of protection around churches and schools is essential to protect diverse centers of spiritual, educational, and cultural enrichment. It is to that end that the State has vested in the governing bodies of all schools, public or private, and all churches, the power to prevent the issu-anee of liquor licenses for any premises within 500 feet of their institutions.
Plainly schools and churches have a valid interest in being insulated from certain kinds of commercial establishments, including those dispensing liquor. Zoning laws have long been employed to this end, and there can be little doubt about the power of a state to regulate the environment in the vicinity of schools, churches, hospitals, and the like by exercise of reasonable zoning laws.
We have upheld reasonable zoning ordinances regulating the location of so-called “adult” theaters, see Young v. American Mini Theatres, Inc., 427 U. S. 50, 62-63 (1976); and in Grayned v. City of Rockford, 408 U. S. 104 (1972), we recognized the legitimate governmental interest in protecting the environment around certain institutions when we sustained an ordinance prohibiting willfully making, on grounds adjacent to a school, noises which are disturbing to the good order of the school sessions.
The zoning function is traditionally a governmental task requiring the “balancing [of] numerous competing considerations,” and courts should properly “refrain from reviewing the merits of [such] decisions, absent a showing of arbitrariness or irrationality.” Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265 (1977). See also, e. g., Village of Belle Terre v. Boraas, 416 U. S. 1, 7-9 (1974). Given the broad powers of states under the Twenty-first Amendment, judicial deference to the legislative exercise of zoning powers by a city council or other legislative zoning body is especially appropriate in the area of liquor regulation. See, e. g., California v. LaRue, 409 U. S. 109 (1972); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 106-110 (1980).
However, § 16C is not simply a legislative exercise of zoning power. As the Massachusetts Supreme Judicial Court concluded, § 16C delegates to private, nongovernmental entities power to veto certain liquor license applications, Arno v. Alcoholic Beverages Control Comm’n, 377 Mass., at 89, 384 N. E. 2d, at 1227. This is a power ordinarily vested in agencies of government. See, e. g., California v. LaRue, supra, at 116, commenting that a “state agency ... is itself the repository of the State’s power under the Twenty-first Amendment.” We need not decide whether, or upon what conditions, such power may ever be delegated to nongovernmental entities; here, of two classes of institutions to which the legislature has delegated this important decisionmaking power, one is secular, but one is religious. Under these circumstances, the deference normally due a legislative zoning judgment is not merited.
B
The purposes of the First Amendment guarantees relating to religion were twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other 18th-century systems. Religion and government, each insulated from the other, could then coexist. Jefferson’s idea of a “wall,” see Reynolds v. United States, 98 U. S. 145, 164 (1879), quoting reply from Thomas Jefferson to an address by a committee of the Danbury Baptist Association (January 1,1802), reprinted in 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861), was a useful figurative illustration to emphasize the poncept of separateness. Some limited and incidental entanglement between church and state authority is inevitable in a complex modem society, see, e. g., Lemon v. Kurtzman, 403 U. S. 602, 614 (1971); Walz v. Tax Comm’n, 397 U. S. 664, 670 (1970), but the concept of a “wall” of separation is a useful signpost. Here that “wall” is substantially breached by vesting discretionary governmental powers in religious bodies.
This Court has consistently held that a statute must satisfy three criteria to pass muster under the Establishment Clause:
“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Lemon v. Kurtzman, supra, at 612-613, quoting Walz v. Tax Comm’n, supra, at 674.
See also Widmar v. Vincent, 454 U. S. 263, 271 (1981); Wolman v. Walter, 433 U. S. 229, 236 (1977). Independent of the first of those criteria, the statute, by delegating a governmental power to religious institutions, inescapably implicates the Establishment Clause.
The purpose of § 16C, as described by the District Court, is to “protec[t] spiritual, cultural, and educational centers from the ‘hurly-burly’ associated with liquor outlets.” 495 F. Supp., at 766. There can be little doubt that this embraces valid secular legislative purposes. However, these valid secular objectives can be readily accomplished by other means — either through an absolute legislative ban on liquor outlets within reasonable prescribed distances from churches, schools, hospitals, and like institutions, or by ensuring a hearing for the views of affected institutions at licensing proceedings where, without question, such views would be entitled to substantial weight.
Appellants argue that § 16C has only a remote and incidental effect on the advancement of religion. The highest court in Massachusetts, however, has construed the statute as conferring upon churches a veto power over governmental licensing authority. Section 16C gives churches the right to determine whether a particular applicant will be granted a liquor license, or even which one of several competing applicants will receive a license.
The churches’ power under the statute is standardless, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used by churches to promote goals beyond insulating the church from undesirable neighbors; it could be employed for explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith. We can assume that churches would act in good faith in their exercise of the statutory power, see Lemon v. Kurtzman, supra, at 618-619, yet § 16C does not by its terms require that churches’ power be used in a religiously neutral way. “[T]he potential for conflict inheres in the situation,” Levitt v. Committee for Public Education, 413 U. S. 472, 480 (1973); and appellants have not suggested any “effective means of guaranteeing” that the delegated power “will be used exclusively for secular, neutral, and nonideological purposes.” Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S., at 780. In addition, the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred. It does not strain our prior holdings to say that the statute can be seen as having a “primary” and “principal” effect of advancing religion.
Turning to the third phase of the inquiry called for by Lemon v. Kurtzman, we see that we have not previously had occasion to consider the entanglement implications of a statute vesting significant governmental authority in churches. This statute enmeshes churches in the exercise of substantial governmental powers contrary to our consistent interpretation of the Establishment Clause; “[t]he objective is to prevent, as far as possible, the intrusion of either [Church or State] into the precincts of the other.” Lemon v. Kurtzman, 403 U. S., at 614. We went on in that case to state:
“Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.” Id., at 625 (emphasis added).
Our contemporary views do no more than reflect views approved by the Court more than a century ago:
“ ‘The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.’” Watson v. Jones, 13 Wall. 679, 730 (1872), quoting Harmon v. Dreher, 1 Speers Eq. 87, 120 (S. C. App. 1843).
As these and other cases make clear, the core rationale underlying the Establishment Clause is preventing “a fusion of governmental and religious functions,” Abington School Dis trict v. Schempp, 374 U. S. 203, 222 (1963). See, e. g., Walz v. Tax Comm’n, 397 U. S., at 674-675; Everson v. Board of Education, 330 U. S. 1, 8-13 (1947). The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.
Section 16C substitutes the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of “[pjolitical fragmentation and divisiveness on religious lines,” Lemon v. Kurtzman, supra, at 623. Ordinary human experience and a long line of cases teach that few entanglements could be more offensive to the spirit of the Constitution.
The judgment of the Court of Appeals is affirmed.
So ordered.
Section 16C defines “church” as “a church or synagogue building dedicated to divine worship and in regular use for that purpose, but not a chapel occupying a minor portion of a building primarily devoted to other uses.” “School” is defined as “an elementary or secondary school, public or private, giving not less than the minimum instruction and training required by [state law] to children of compulsory school age.” Mass. Gen. Laws. Ann., ch. 138, §16C (1974).
Section 16C originally was enacted in 1954 as an absolute ban on liquor licenses within 500 feet of a church or school, 1954 Mass. Acts, ch. 569, § 1. A 1968 amendment modified the absolute prohibition, permitting licenses within the 500-foot radius “if the governing body of such church assents in writing,” 1968 Mass. Acts, ch. 435. In 1970, the statute was amended to its present form, 1970 Mass. Acts, ch. 192.
In 1979, there were 26 liquor licensees in Harvard Square and within a 500-foot radius of Holy Cross Church; 25 of these were in existence at the time Holy Cross Church objected to appellee’s application. See App. 69-72.
Section 16C defines “church” as: “a church or synagogue building dedicated to divine worship”^ (emphasis added). Appellee argues that the statute unconstitutionally differentiates between theistic and nontheistic religions. We need not reach that issue. For purposes of this appeal, we assume, as did the original panel of the Court of Appeals, that the Massachusetts courts would apply the protections of § 16C to “any building primarily used as a place of assembly by a bona fide religious group,” 662 F. 2d, at 97, and thereby avoid serious constitutional questions that would arise concerning a statute that distinguishes between religions on the basis of commitment to belief in a divinity. See Torcaso v. Watkins, 367 U. S. 488, 495 (1961); Everson v. Board of Education, 330 U. S. 1, 15 (1947).
This recent construction of the statute by the highest court in Massachusetts is controlling on the meaning of § 16C. See O’Brien v. Skinner, 414 U. S. 524, 531 (1974).
For similar reasons, the Twenty-first Amendment does not justify § 16C. The Twenty-first Amendment reserves power to states, yet here the State has delegated to churches a power relating to liquor sales. The State may not exercise its power under the Twenty-first Amendment in a way which impinges upon the Establishment Clause of the First Amendment.
In this facial attack, the Court assumes that § 16C actually effectuates the secular goal of protecting churches and schools from the disruption associated with liquor-serving establishments. The fact that Holy Cross Church is already surrounded by 26 liquor outlets casts some doubt on the effectiveness of the protection granted, however.
See California v. LaRue, 409 U. S. 109, 120 (1972) (Stewart, J., concurring).
Section 16C, as originally enacted, consisted of an absolute ban on liquor licenses within 500 feet of a church or school, see n. 1, supra; and 27 States continue to prohibit liquor outlets within a prescribed distance of various categories of protected institutions, with certain exceptions and variations: Ala. Code § 28-3-17 (1977); Alaska Stat. Ann. § 04.11.410 (1980); Ark. Stat. Ann. §48-345 (1977); Colo. Rev. Stat. §12-17-138 (1978); Ga. Code Ann. §3-3-21 (1982); Idaho Code §§23-303, 23-913 (1977); Ill. Rev. Stat., ch. 43, ¶ 127 (Supp. 1980); Ind. Code §7.1-3-21-11 (1982); Kan. Stat. Ann. § 41-710 (1981); La. Rev. Stat. Ann. § 26-280 (West 1975); Md. Ann. Code, Art. 2B, §§46B, 47, 52A, 52C (1981 and Supp. 1982); Mich. Comp. Laws Ann. §§ 436.17a, 436.17c (1978 and Supp. 1982); Minn. Stat. Ann. §340.14 (1972 and Supp. 1982); Miss. Code Ann. §67-1-51 (Supp. 1982); Mont. Code Ann. § 16-3-306 (1981); Neb. Rev. Stat. §53-177 (1978); N. H. Rev. Stat. Ann. § 177:1 (1978); N. M. Stat. Ann. § 60-6B-10 (1981); N. C. Gen. Stat. § 18A-40 (1978) (schools); Okla. Stat., Tit. 37, § 534 (1981); R. I. Gen. Laws §3-7-19 (Supp. 1982); S. C. Code §61-3-440 (1976); S. D. Codified Laws §35-2-6.1 (Supp. 1982); Tex. Aleo. Bev. Code Ann., § 109.33 (1978); Utah Code Ann. § 16-6-13.5 (Supp. 1981); W. Va. Code § 11-16-12 (1974); Wis. Stat. Ann. § 125.68 (West Supp. 1982-1983). The Court does not express an opinion as to the constitutionality of any statute other than that of Massachusetts.
Eleven States have statutes or regulations directing the licensing authority to consider the proximity of the proposed liquor outlet to schools or other institutions in deciding whether to grant a liquor license: Cal. Bus. & Prof. Code Ann. § 23789 (West 1964); Conn. Gen. Stat. § 30-46 (1981); Del. Code Ann., Tit. 4, §543 (1974 and Supp. 1980); Haw. Rev. Stat. §281-56 (1976); Mich. Comp. Laws Ann. §§ 436.17a, 436.17c (1978 and Supp. 1982-1983) (certain classes of licenses); N. C. Gen. Stat. § 18A-40 (1978) (churches); Ohio Rev. Code Ann. §4303.26 (Supp. 1981); Pa. Stat. Ann., Tit. 47, §§ 4-404, 4-432(d) (Purdon 1969 and Supp. 1982); Tenn. Code Ann. § 57-5-105 (Supp. 1982); Va. Code § 4-31 (Supp. 1982); Vt. Liquor Control Bd. Regs. ¶39 (1976).
Appellants argue that the Beverages Control Commission may reject or ignore any objection made for discriminatory or illegal reasons. This contention appears flatly contradicted by the Massachusetts Supreme Judicial Court’s own interpretation of the statute, see Amo v. Alcoholic Beverages Control Comm’n, 377 Mass. 83, 90, 92, and n. 23, 384 N. E. 2d 1223, 1228, 1229, and n. 23 (1979). In any event, an assumption that the Beverages Control Commission might review the decisionmaking of the churches would present serious entanglement problems. See Lemon v. Kurtzman, 403 U. S. 602, 619 (1971); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979).
At the time of the Revolution, Americans feared not only a denial of religious freedom, but also the danger of political oppression through a union of civil and ecclesiastical control. B. Bailyn, Ideological Origins of the American Revolution 98-99, n. 3 (1967). See McDaniel v. Paty, 435 U. S. 618, 622-623 (1978). In 18th-century England, such a union of civil and ecclesiastical power was reflected in legal arrangements granting church officials substantial control over various occupations, including the liquor trade. See, e. g., 26 Geo. 2, ch. 31, § 2 (1753) (church officials given authority to grant certificate of character, a prerequisite for an alehouse license); S. Webb & B. Webb, The History of Liquor Licensing in England, Principally from 1700 to 1830, pp. 8, n. 1, 62-67, 102-103 (1903).
Appellee also challenges the statute as a violation of due process. In light of our analysis we need not and do not reach that claim.
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:
|
sc_petitioner
|
029
|
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.
GORI v. UNITED STATES.
No. 486.
Argued May 3, 1961.—
Decided June 12, 1961.
Harry I. Rand argued the cause for petitioner. With him on the brief were Milton C. Weisman and Jerome Lewis.
Beatrice Rosenberg argued the cause for the United States. With her on the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Miller and Assistant Attorney General Wilkey.
Emanuel Redfield filed a brief for the New York Civil Liberties Union, as amicus curiae, urging reversal.
Opinion of the Court, by
Mr. Justice Frankfurter,
announced by Mr. Justice Clark.
In view of this Court’s prior decisions, our limited grant of certiorari in this case brings a narrow question here. We are to determine whether, in the particular circumstances of this record, petitioner’s conviction at his see-ond trial for violation of 18 U. S. C. § 659, after his first trial had been terminated by the trial judge’s declaration of a mistrial sua sponte and without petitioner’s “active and express consent,” violates the Fifth Amendment’s prohibition of double jeopardy. The Court of Appeals for the Second Circuit in baric affirmed petitioner’s conviction (one judge dissenting), holding his constitutional objection without merit. 282 F. 2d 43. We agree that the Fifth Amendment does not require a contrary result.
Petitioner was brought to trial before a jury in the District Court for the Eastern District of New York on February 4, 1959, on an information charging that he had knowingly received and possessed goods stolen in interstate commerce. That same afternoon, during the direct examination of the fourth witness for the Government, the presiding judge, on his own motion and with neither approval nor objection by petitioner’s counsel, withdrew a juror and declared a mistrial. It is unclear what reasons caused the court to take this action, which the Court of Appeals characterized as “overassiduous” and criticized as premature. Apparently the trial judge inferred that the prosecuting attorney’s line of questioning presaged inquiry calculated to inform the jury of other crimes by the accused, and took action to forestall it. In any event, it is obvious, as the Court of Appeals concluded, that the judge “was acting according to his convictions in protecting the rights of the accused.” 282 F. 2d, at 46. The court below did not hold the mistrial ruling erroneous or an abuse of discretion. It did find the prosecutor’s conduct unexceptionable and the reason for the mistrial, therefore, not “entirely clear.” It did say that “the judge should have awaited a definite question which would have permitted a clear-cut ruling,” and that, in failing to do so, he displayed an “overzealousness” and acted “too hastily.” Id,., at 46, 48. But after discussing the wide range of discretion which the “fundamental concepts of the federal administration of criminal justice” allow to the trial judge in determining whether or not a mistrial is appropriate — a responsibility which “is particularly acute in the avoidance of prejudice arising from nuances in 'the heated atmosphere of trial, which cannot be fully depicted in the cold record on appeal,” id., at 47 — and the corresponding affirmative responsibility for the conduct of a criminal trial which the federal precedents impose, it concluded:
“On this basis we do not believe decision should be difficult, for the responsibility and discretion exercised by the judges below seem to us sound. . . .” Id., at 48.
Certainly, on the skimpy record before us it would exceed the appropriate scope of review were we ourselves to attempt to pass an independent judgment upon the propriety of the mistrial, even should we be prone to do so — as we are not, with due regard for the guiding familiarity with district judges and with district court conditions possessed by the Courts of Appeals.
On March 9, 1959, petitioner moved to dismiss the information on the ground that to try him again would constitute double jeopardy. The motion was denied and he was retried in April. He now attacks the conviction in which the second trial resulted.
In this state of the record, we are not required to pass upon the broad contentions pressed, respectively, by counsel for petitioner and for the Government. The case is one in which, viewing it most favorably to petitioner, the mistrial order upon which his claim of jeopardy is based was found neither apparently justified nor clearly erroneous by the Court of Appeals in its review of a cold record. What that court did find and what is unquestionable is that the order was the product of the trial judge’s extreme solicitude — an overeager solicitude, it may be — in favor of the accused.
Since 1824 it has been settled law in this Court that “The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.” Wade v. Hunter, 336 U. S. 684, 688. United States v. Perez, 9 Wheat. 579; Thompson v. United States, 155 U. S. 271; Keerl v. Montana, 213 U. S. 135, 137-138; see Ex parte Lange, 18 Wall. 163, 173-174; Green v. United States, 355 U. S. 184, 188. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U. S. 148; Logan v. United States, 144 U. S. 263; Dreyer v. Illinois, 187 U. S. 71, 85-86. It is also clear that “This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served . . . ,” Brock v. North Carolina, 344 U. S. 424, 427, and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. New Mexico, 242 U. S. 199; cf. Wade v. Hunter, supra. In the Perez case, the authoritative starting point of our law in this field, Mr. Justice Story, for a unanimous Court, thus stated the principles which have since guided the federal courts in their application of the concept of double jeopardy to situations giving rise to mistrials:
“. . . We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. ...” 9 Wheat., at 580.
The present case falls within these broad considerations. Judicial wisdom counsels against-anticipating hypothetical situations in which the discretion of the trial judge may be abused and so call for the safeguard of the Fifth Amendment — cases in which the defendant would be harassed by successive, oppressive prosecutions, or in which a judge exercises his authority to help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused. Suffice that we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial. It would hark back to the formalistic artificialities of seventeenth century criminal procedure so to confine our federal trial courts by compelling them to navigate a narrow compass between Scylla and Charybdis. We would not thus make them unduly hesitant conscientiously to exercise their most sensitive judgment — according to their own lights in the immediate exigencies of trial — for the more effective protection of the criminal accused.
Affirmed.
364 U. S. 917.
Prior to the proceedings in the two trials which are relevant for present purposes, denominated the “first” and “second” trials herein, there had been a mistrial granted upon motion of petitioner.
The statute makes unlawful, inter alia, the receipt or possession of any goods stolen from a vehicle and moving as, or constituting, an interstate shipment of freight, knowing the goods to be stolen.
282 F. 2d 43,46.
We cannot, of course, determine what result would obtain had the Court of Appeals, in light of its close acquaintance with the local situation, decided that petitioner’s mistrial operated to bar his further prosecution, and were such a decision before us.
In light of our disposition, we need not reach the Government’s suggestion that petitioner’s failure to object to the mistrial adversely affects his claim. We note petitioner’s argument that, because of the precipitous course of events, there was no opportunity for such objection.
“The colloquy [immediately preceding the mistrial] . . . demonstrates that the prosecutor did nothing to instigate the declaration of a mistrial and that he was only performing his assigned duty under trying conditions. This is borne out by the entire transcript, including also that covering the morning session. Nor does it make entirely clear the reasons which led the judge to act, though the parties appear agreed that he intended to prevent the prosecutor from bringing out evidence of other crimes by the accused. Even so, the judge should have awaited a definite question which would have permitted a clear-cut ruling. . . .” 282 F. 2d, at 46.
The record here contains, with respect to the February 4 trial, two paragraphs from the Government’s opening, four paragraphs from the petitioner’s opening, a six-line colloquy between the court and prosecuting counsel, a portion of the examination of the third of the Government’s first three witnesses, and the entire transcript of the testimony of the fourth witness. The last two items are set out in the affidavit of the Assistant United States Attorney in opposition to petitioner’s motion to dismiss the information following the mistrial.
Brock v. North Carolina was a state prosecution and therefore arose, of course, under the Due Process Clause of the Fourteenth Amendment. The passage quoted from Brock, however, related to the application in federal prosecutions of the double jeopardy provision of the Fifth.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_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".
Irmtrud and Eric MILLER v. APARTMENTS AND HOMES OF NEW JERSEY, INC.; Peter Ronay; CIB International, Inc.; Anthony Lacetola and James Nuckel, CIB International, Inc., Anthony Lacetola and James Nuckel, Appellants.
No. 80-2260.
United States Court of Appeals, Third Circuit.
Argued Feb. 12, 1981.
Decided April 22, 1981.
Jane W. Vanneman (argued), National Committee Against Discrimination in Housing, Washington, D. C., James Sacher, Middlesex County Legal Services Corp., New Brunswick, N. J., Andre Shramenko, Hackensack, N. J., for appellees.
Richard E. Snyder (argued), John D. Horan, Goodman, Stoldt & Horan, Hackensack, N. J., for appellants CIB International Inc., Anthony Lacetola and James Nuckel.
Before ALDISERT and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge.
Honorable Hubert I. Teitelbaum, United States District Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
TEITELBAUM, District Judge.
The matter sub judiee is an appeal from the decision of the District Court of New Jersey finding illegal racial discrimination in housing and awarding relief. The trial court, in the non-jury proceeding below, determined that the plaintiffs-appellees had impermissibly been denied the enjoyment of certain rental housing because of their race and awarded compensatory and punitive damages as well as attorney’s fees. The defendants-appellants do not challenge the finding of liability, but rather have urged that the award was too high a price to pay for discriminating. A careful review of appellants’ claims convinces us that the trial court committed no error. We affirm the judgment for the reasons set forth below.
I.
In August of 1973, Irmtrud Miller, a white woman, visited the offices of Apartment and Homes of New Jersey, Inc. (hereinafter Apartments and Homes), the rental agent for apartments owned by James Nuckel and/or CIB International, Inc., (hereinafter CIB) a corporation owned by Mr. Nuckel. There Mrs. Miller met Peter Ronay, a broker employed by Apartments and Homes. They went to the Florence Apartments in Little Ferry, New Jersey. The resident superintendent gave Mr. Ronay a key for a vacant apartment, apartment sixty-seven. Mr. Ronay told Mrs. Miller the apartment was available. Mrs. Miller agreed to rent the apartment for herself and her husband, left a deposit for the apartment, and completed an application to rent the premises. She was advised that pending the results of a credit check, she could occupy the premises beginning on September 10, 1973.
On September 5, 1973, the Millers met Mr. Ronay to sign the lease. When Mr. Ronay saw that Mr. Miller was black, “there was a perceptible change in [his] attitude,” according to the findings of the district court. The court did not specify what change occurred. In any event, Mr. Ronay and the Millers executed a formal lease for apartment sixty-seven. Mr. Ronay told the Millers that the key would be available at the office of the resident superintendent on September 7,1973. Mr. Miller went to the resident superintendent’s office on the evening of September 7 and asked for the key to his apartment. He did not state which apartment he had rented, and the superintendent did not ask. Instead, the superintendent stated that he had no knowledge of Mr. Miller’s rental of any apartment and asked him to wait outside while he checked further. After waiting about fifteen minutes Mr. Miller again knocked at the door and was told to wait. After another half hour, the superintendent advised Mr. Miller that he had no knowledge of the rental. Mr. Miller asked if he could look at the apartment, but again he did not specify the apartment number. The superintendent reiterated that he had no knowledge of Mr. Miller’s lease, but he took Mr. Miller directly to apartment sixty-seven without ever asking Mr. Miller which apartment he had rented. Mr. Miller specifically requested the keys to apartment sixty-seven and was refused. Mr. Miller described the superintendent’s attitude throughout the encounter as “cold” and testified that the superintendent looked “through” him and not at him. He testified also that he felt humiliated and downgraded, like a “village idiot,” by being made to wait outside the superintendent’s office for approximately forty-five minutes. The next.day the Millers went to the rental offices of CIB. Mr. Lacetola, in charge of the CIB office falsely told the Millers that the apartment had been previously rented. He suggested that they see Mr. Ronay about another apartment.
The Millers returned to Apartments and Homes to find alternative accommodations. Mr. Ronay was sympathetic to their plight, and made some modest, but unsuccessful effort to find another apartment for them. Upon reflection the Millers decided they were entitled to apartment sixty-seven and telephoned Mr. Lacetola to inform him of their position. He agreed that they were entitled to the apartment and indicated that he would have the key on September 10, 1973. On that day, having arranged to vacate their prior residence, the Millers, with all their possessions in a moving van, arrived at the CIB rental office to obtain the key as prearranged. Mrs. Miller’s request for the key was refused, again ostensibly because the apartment had been previously rented. Mr. Lacetola, although he had access to an extensive list of vacant apartments owned by Mr. Nuckel and/or CIB, remained indifferent to the Miller’s plight. After a brief stay with relatives, the Millers by their own efforts were fortunate enough to lease a different apartment. By coincidence it was owned and operated by the appellants, Nuckel and CIB, but the Millers did not deal with Mr. Ronay or the CIB rental office in learning of it. Unfortunately this substitute apartment was at a higher rental, and required the Millers to expend greater sums than they would have paid in apartment sixty-seven for equivalent necessary utility services.
On October 30, 1973, the Millers instituted this action against Apartments and Homes, Mr. Ronay, CIB, Mr. Lacetola and Mr. Nuckel. Near the end of 1975, the plaintiffs agreed to settle their claim against Apartments and Homes and Mr. Ronay for $1,821.00. The action against the remaining defendants proceeded to trial before the court, sitting without a jury. In addition to determining the aforementioned facts, the district court also noted that Mr. Nuckel and CIB had been the subjects of remedial court orders to cease discrimination. Despite those orders, statements made by Mr. Nuckel at his deposition (introduced into evidence at trial) showed his utter disregard for his obligations to promulgate and implement a policy of nondiscrimination. The court found Mr. Nuckel was interested only in building and money, and not in people; people who contributed to Mr. Nuckel’s and/or CIB’s monthly gross rental income of $400,000.00. The court also found that Mr. Nuckel and CIB disobeyed the prior remedial order by failing to instruct employees not to discriminate on the basis of race, and by falsifying required records showing the number of minority tenants.
In addition to these findings, the district court was also obliged to determine the appropriate amount of damages. The damages disputed in this appeal represent a portion of the compensatory damages, specifically, the sum awarded as the difference in rent and utility payments between what the Millers were required to pay and the amount that would have been required for apartment sixty-seven, an amount of $4,451.00; and the award of punitive damages of $25,000 assessed against Mr. Nuckel and CIB. Additionally, the court below held that the defendants were entitled to only a pro tanto reduction for the amounts previously paid by Mr. Ronay and Apartments and Homes in the settlement. Finally, an award of $21,845.00 was made for attorneys’ fees.
II.
As we previously noted, this is not an appeal alleging an error in the finding of liability, but rather a plea that the size of the total award was too great. While the trial court committed no error, several interesting issues have been raised which demand this Court’s attention. We turn now to those issues.
A.
The appellants claim that the district court erred on its ruling on the effect of a settlement upon the liability of the remaining defendants. The district court held that the award of compensatory damages against the appellants should be reduced by $1,821.00, the amount of appellees’ settlement with defendants Mr. Ronay and Apartments and Homes. The appellants argue that instead of this pro tanto reduction for the settlement, the court should have granted them a pro rata reduction of liability. They maintain that since there were essentially two groups of defendants in the case — Apartments and Homes and its employees, and Mr. Nuckel, his employees and subordinates — that the settlement with one group extinguished half of the Millers’ claim.
This the Millers deny. They insist that federal common law should govern with respect to the effect of settlements upon the liability of joint violators of federal civil rights statutes. They further insist that the federal rule relating to settlements should be the rule of pro tanto rather than pro rata reduction.
This case therefore appears to require the Court to decide whether state or federal law applies to such questions under the civil rights statutes, and what the pertinent rule should be. The general problem of whether state law or federal common law should apply to various subordinate issues relating to federal statutory rights is a familiar one. It derives from what Professor Hart called the “interstitial character” of federal law. The general problem extends to questions such as statutes of limitation and tolling rules, mental capacity, right to jury trial of designated issues, defenses in commercial paper law, and implied rights of action under federal statutes as well as to contribution rules. Professor Wright has said:
Whether state law or federal law controls on matters not covered by the Constitution or an Act of Congress is a very complicated question which yields to no simple answer in terms of the parties to the suit, the basis of jurisdiction, or the source of the right which is to be enforced.
C. Wright, Handbook of the Law of Federal Courts 247 (2d ed. 1970). The question is examined in all its complexity by Professor Wright, id. at 247-53, and by Professor Wechsler and his colleagues in Hart and Wechsler’s The Federal Courts and the Federal System at 756-832 (2d ed. 1973) (Bator, Mishkin, Shapiro and Wechsler, eds.).
Happily, the present case may be decided without a comprehensive reevaluation of the entire thicket. Congress provided the courts some modest guidance for resolving the choice of law question in civil rights cases in 42 U.S.C. § 1988. That section provides, in pertinent part:
§ 1988. Proceedings in vindication of civil rights.
The jurisdiction in civil... matters conferred on the district courts by the provisions of this chapter... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies... the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....
This section invites federal courts to adopt state rules to further, but not to frustrate, the purposes of the civil rights acts. Its general language invites courts to use their judgment in resolving problems. The cases are not in perfect harmony. This neither troubles nor surprises us. There is, however, a fair uniformity in favor of allowing contribution among the few courts which have considered the general question of contribution under the civil rights acts. See Glus v. G. C. Murphy Co., 629 F.2d 248 (3rd Cir. 1980), petition for cert. filed sub nom. Retail, Wholesale and Department Store Union v. G. C. Murphy Co.,-U.S.-, 101 S.Ct. 351, 66 L.Ed.2d 212 (1980) (contribution allowed where payment by one defendant to the plaintiff settled entire claim); Denicola v. G. C. Murphy Co., 562 F.2d 889 (3rd Cir. 1977); Johnson v. Rogers, 621 F.2d 300 (8th Cir. 1980) (applying state law under section 1988); cf. Grogg v. General Motors Corp., 72 F.R.D. 523 (S.D.N.Y. 1976); I. U. of E. Radio and Machine Workers v. Westinghouse Electric Corp., 73 F.R.D. 57 (W.D.N.Y.1976); Blanton v. Southern Bell Tel. & Tel. Co., 49 F.R.D. 162 (N.D.Ga.1970).
When narrower questions are asked, the decisions tend to disagree. In Johnson v. Rogers, supra, a former deputy sheriff sued the sheriff and the county under 42 U.S.C. § 1983. The plaintiff settled her claim against the county for $7500.00. By the settlement agreement, she agreed “to credit and satisfy only ‘that portion of the total amount of her damages... which may hereafter be allocated... in the trial or otherwise to causal [sic] acts or admissions [sic] on the part of the Defendant County of Meeker.’ ” At the trial no damages were assessed against or allocated to the county. The trial court rendered a judgment against the sheriff for $7500.00. The sheriff sought complete exoneration, arguing that the plaintiff’s proved damages had been fully satisfied by the settlement. The Court of Appeals for the Eighth Circuit rejected that claim. It held, initially, that the effect of the settlement was governed by Minnesota law under section 1988.
Since this is a civil rights action brought under 42 U.S.C. § 1983, § 1988 determines choice of law. As construed by the Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 588-90, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), § 1988 instructs that if federal law does not cover an issue, then state law should provide the rule of decision unless “inconsistent with the Constitution and laws of the United States.” In the instant case, as federal law does not answer the question of the effect of a plaintiff’s settlement with one defendant on an award of damages against a non-settling defendant, state law should serve as the federal rule of decision unless inconsistent with the policies underlying a § 1983 cause of action. Among the principal objectives of § 1983 are “compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.” Robertson v. Wegmann, supra, 436 U.S. at 590-91, 98 S.Ct. at 1995. Neither of these concerns would seem to be hindered by adoption of the Minnesota Court’s approach.
Id. at 304. This led the court to examine the Minnesota law. The court concluded that a non-settling defendant is entitled to have the amount of a settlement credited against the plaintiff’s damages only if it appears at trial that the settling defendant would have been liable to the plaintiff. Since that fact was not proved at trial, the sheriff was denied any benefit based on the settlement.
A month after the decision of Johnson v. Rogers, supra, this Court decided Glus v. G. C. Murphy Co., supra. In Glus, female employees of the G. C. Murphy Co. brought a class action under Title VII of the Civil Rights Act of 1964. They sought damages for employment discrimination on the basis of sex. Murphy filed cross-claims against certain unions seeking contribution. Prior to trial, Murphy and the plaintiff class settled the class action. Litigation continued on the cross-claims. The district court held that both Murphy and the unions had violated Title VII, and that Murphy was entitled to contribution with respect to the Title VII settlement.
This Court affirmed that decision, and held that Murphy was entitled to contribution as a matter of federal common law. We noted that Title VII does not specifically deal with the problem of contribution. The problem is interstitial. Whether this particular interstice was to be filled with federal common law or with state law depended upon an extensive analysis of Congressional purpose; of the underlying goals of a statute; of the extent to which the application of federal law would further those goals or the application of state laws would impede them; and of the traditional allocation of functions between state and federal law. Applying that analysis, we found no specific Congressional intent as to contribution; that Congress did intend to make unions liable for discrimination under Title VII; that a rule of contribution would further the purpose of Title VII by inducing employers and unions to be vigilant in observing Title VII requirements and in encouraging conciliation which Title VII favors.
Nothing in this case suggests that a different analysis or a different result should follow in civil rights cases. Neither does Johnson v. Rogers, supra, which was not considered in Glus, convince us that state law, rather than federal law, should apply. Johnson’s discussion of the choice of law problem relied on the text of section 1988 and on the Supreme Court’s decision in Robertson v. Wegmann, supra. We disagree with the Eighth Circuit’s reading of those authorities. Section 1988 declares that the civil rights acts shall be “enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies... the common law, as modified and changed by the Constitution and statutes of the State... shall be extended to and govern... the trial and disposition of the cause.... ” The Eighth Circuit in Johnson held that federal law does not prescribe a rule of contribution in civil rights cases, so state law must apply.
Robertson v. Wegmann, supra, does not require this analysis of the problem. In Robertson, the Supreme Court decided that state law governs some issues of survival of section 1983 causes of action. The decision that federal law is “deficient” with respect to survival was brief and conclusory. In essence the Supreme Court reasoned that the federal law “does not cover every issue that may arise in the context of a federal civil rights action...” id. 436 U.S. at 588, 98 S.Ct. at 1994. The Court then declared that “one specific area not covered by federal law is that relating to ‘the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant.... ’ State statutes governing the survival of state actions do exist, however.... [They provide] the principal reference point in determining survival of civil rights actions....” id. at 589-90, 98 S.Ct. at 1994-1995.
We do not understand that decision to abandon the historic method of analysis of problems of claimed federal common law rights. One traditional ground for refusing to declare federal common law to fill particular interstices of statutory law is this: that the question to be answered is one particularly suited to statutory rather than to judicial solution. Thus federal courts habitually apply state statutes of limitations to federal causes of action where Congress has not adopted an applicable limitation. Another traditional ground for refusing to declare federal common law is that the question to be answered lies in an area which is traditionally of state rather than federal concern. Matters of domestic relations including domestic property allocations such as the division of property upon divorce, and rules of descent, distribution and wills clearly are within this area of traditional state concern. We understand the decision in Robertson to rest on both of these grounds. The Court specifically referred to the existence and diversity of state survival statutes and to the fact that the states generally used statutes (rather than judicial declaration) to abrogate the ancient common law rule against the survival of actions, id. at 589, 98 S.Ct. at 1994. The Court also noted the diversity of state statutes with respect to the kinds of claims which survive and with respect to the identity of the successors, id. at 591. Finally, the Court noted the absence of general federal provisions concerning survival of actions, id. at 589, 98 S.Ct. at 1994.
The present problem is unlike the problem in Robertson in three important ways. First, the rule of contribution is intimately bound up with the nature and extent of the substantive federal rights created by the civil rights acts. Questions of limitation periods and of survival are less related to the substance of the federal rights. See, Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). Contribution rules declare which defendants are liable and how much they owe. Contribution rules are of high importance in the process of settling claims before trial. Consequently, the selection of a contribution rule bears on the work of the federal courts as well as on the substantive rights and liabilities of the parties.
Second, contribution rules are not traditional matters of state rather than federal concern. Federal courts have fashioned common law contribution principles in civil rights cases, Glus, supra, and in anti-trust cases, Wilson P. Abraham Constr. Corp. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir. 1979), cert. granted sub nom. Texas Industries, Inc. v. Radcliff Materials, Inc.,-U.S.-, 101 S.Ct. 351, 66 L.Ed.2d 213 (1980) (contribution is a matter of federal law). Federal contribution rules have long governed collision cases in admiralty, Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and govern the availability of contribution in admiralty actions for personal injury not based on collisions, id., Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974).
Finally, contribution rules, unlike limitations and survival rules, are not invariably legislative creations. Federal courts have fashioned contribution rules in various fields. Some state courts have overruled the ancient rule against contribution without waiting for the adoption of a contribution statute. W. Prosser, Handbook of the Law of Torts § 50 at 306-07 (4th ed. 1971). Thus no special considerations of institutional competence prevent the courts from elaborating a federal common law of contribution in civil rights cases.
Our decision that federal law determines the availability of contribution in federal civil rights suits requires us to determine what that rule is where one of two defendants settles with a plaintiff before a trial. The non-settling defendants claim that they should receive a pro rata reduction of the damages award because the plaintiff has deprived the defendant of recourse against the settling defendant. This, the defendant urges, would be the result under the “enlightened” New Jersey rule. The plaintiff replies that the district court correctly applied a rule of pro tanto reduction.
Our decision in the Glus case, supra, does not resolve this problem. There the only defendant settled the plaintiffs entire claim. The defendant then sued the joint tort-feasor for contribution, and received it. There this Court did not have to consider the effect of a settlement which ended the settling defendant’s direct liability to the non-settling joint tort-feasor. The effect such settlements should have is not an arid and technical question. It is one rooted in important and conflicting principles of public policy. Three principles must be considered in choosing the rule.
First, the law generally seeks to assure the tort victim neither more nor less than one complete satisfaction of his claim. A rule of pro tanto reduction accomplishes this goal. A rule of pro rata reduction frustrates it to the extent that the plaintiff makes a good or a bad settlement.
Second, the law seeks to encourage settlements. A rule that the settling defendant will remain liable to contribute after an award against a non-settling defendant would impede settlements. So would a rule that the plaintiff must give non-settling defendants the benefit of a pro rata reduction in their liability. The 1939 Uniform Contribution Among Tort-feasors Act emphasized competing policies rather than the policy of promoting settlements. Section 4 of the 1939 Act required a pro tanto credit for the amount of settlements the plaintiff received. However, Section 5 declared that settling defendants remained liable to contribute to non-settling defendants unless the.release provided for a pro rata reduction of the plaintiff’s damages recoverable against all the other tort-feasors. The 1955 Uniform Contribution Among Tort-feasors Act abandoned that policy choice. The 1955 Act retains the direct pro tanto credit rule. But section 4(b) now provides:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death;... (b) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
See, 73 A.L.R.2d 403 (1960).
Third, considerations of justice suggest that tort-feasors whose conduct has caused a plaintiff a single injury should be equally liable (or, in comparative fault jurisdictions, should be liable in proportion to the degree of their fault) for the injury. A rule of pro rata reduction achieves the goal of equality albeit at the expense of other values. The same could be said of the rule of the 1939 Act which held a settling defendant liable to contribute. A rule of pro tanto reduction, on the other hand, defeats a goal of equality.
None of these competing principles is insignificant. The law must choose to promote some at the expense of others. The choice has varied in different jurisdictions, and some courts have chosen to avoid innovation while calling for a legislative solution to the problem of choice. The issues posed are clear. The work of the law requires an early and definite declaration of a rule for the guidance of attorneys and litigants. The question of contribution rules is fairly presented in this case, and should not be avoided or deferred. As Judge Higginbotham of this panel wrote in Glus,
There are countervailing arguments, and the policy choice is a difficult one. But the litigants before us have tendered the issue, and its closeness does not absolve us from the obligation to decide it. Nor does our action become an impermissible encroachment on the legislative branch, merely because of the difficulty of the issue presented. [Whichever rule we adopt,] we must make a choice.
Supra at 257. In making our choice, we accord the least weight to the third principle. We believe that parties generally will have sufficient incentive to negotiate settlements as vigorously as they can, and that in most cases the settlements achieved will not deviate unacceptably from the aimed for proportionality of payment. We further believe that in most cases favoritism will present no problem, and that skilled attorneys will be able to discover collusive settlements and avoid the feared harmful effects of the collusion. We see no necessary conflict between the first two policies. The policy of allowing complete satisfaction is furthered by a rule of pro tanto credit. And the rule of pro tanto credit is plainly preferable to a rule of pro rata credit in encouraging settlements. We therefore hold that in federal civil rights cases, where one or more defendants have settled with a plaintiff, the damages recoverable by that plaintiff shall be reduced by the amount of the settlement received. Since we see nothing inconsistent with this rule in the decision of the district court, its decision on this point will be affirmed.
One further issue concerning contribution requires discussion. The decision of the district court did not specify whether it was based on the New Jersey law of contribution or on federal law. New Jersey law generally allows non-settling defendants a pro rata credit for settlement. Theobald v. Angelos, 44 N.J. 228, 208 A.2d 129 (1965). However, the non-settling defendant has the burden of proving that the settling defendant was a proper source of contribution, i. e., that the settling defendant would have been liable to the plaintiff for causing the same injury which the non-settling defendant caused. If the non-settling defendant cannot prove this, he is entitled only to a pro tanto credit, id. In this case the decision of the district court does not hold that Mr. Ronay or Apartments and Homes would have been liable to the plaintiffs. In fact, it appears that they would not have been liable. Mr. Ronay, as agent for the non-settling defendants, entered into a lease with the Millers. When the non-settling defendants repudiated it, Mr. Ronay provided further assistance to the Millers. It does not appear that he discriminated against the Millers on the basis of race. Therefore even if New Jersey law applied on the issue of contribution, the decision of the district court would be affirmed.
B.
Additionally, this appeal calls upon the Court to consider whether the limit on the award of punitive damages contained in 42 U.S.C. § 3612(c) creates an absolute ceiling on punitive damages when concurrent liability is established under the Fair Housing Act and section 1982. Although this issue is one of first impression in this Court, decisions elsewhere have held that no ceiling exists, Dillon v. AFBIC Development Corporation, 597 F.2d 556 (5th Cir. 1979) and Fountila v. Carter, 578 F.2d 487 (9th Cir. 1978).
Section 1982 and the Fair Housing Act stand independently of each other. Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 286 (1969) and Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). While both statutes prohibit racial discrimination in real estate transactions, the language of each statute suggests that some forms of discrimination are not prohibited by both of these provisions, the Fair Housing Act does not prohibit racial discrimination in transactions having no nexus to realty, and section 1982 does not prohibit discrimination based on sex, religion or national origin. Thus to accept the proposition urged by the defendants, that the award of punitive damages be governed by reference to section 3612(c) when there is concurrent liability under the Fair Housing Act and section 1982, would be to create an undesirable anomaly in the law; punitive damages for racial discrimination having some nexus to realty would be limited to $1000 while no such limit would preclude a greater award for similar conduct in a transaction involving only personalty.
Because of the independence of the Fair Housing Act and section 1982 and because of our desire to avoid this unjustifiable result, we hold there is no ceiling on the award of punitive damages under these circumstances. The Court expresses no opinion as to the applicability of section 3612(c) when the discriminatory conduct is illegal solely under the Fair Housing Act as that problem is not presently before us. However, it is noted that the Fair Housing Act and section 1982 are not completely overlapping and may both remain viable depending upon the facts involved.
C.
Having decided that section 3612(c) does not limit the award of punitive damages in this case, we turn to the defendant’s contention that the district court had no basis to assess $25,000 in punitive damages against Mr. Nuekel and CIB, jointly. Federal courts award punitive damages when a defendant has acted “with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so,” Coehetti v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978), or “with such conscious and deliberate disregard of the consequences of his actions to others that his conduct is wanton.” Knippen v. Ford Motor Co., 546 F.2d 993, 1002 (D.C.Cir.1976) (quoted in Fountila v. Carter, 571 F.2d 487, 491 (9th Cir. 1978). We hold an employer liable for punitive damages for the conduct of his agent when the record shows that he was, “by action or knowledgeable inaction, involved in the wrongdoing,” Marr v. Rife, 503 F.2d 735, 745 (6th Cir. 1974), or that he has “authorized, ratified, or fostered the acts complained of.” Williams v. City of New York, 508 F.2d 356, 361 (2d Cir. 1974). The district court correctly applied those standards in this case. App. at 130-31. Considering that Mr. Nuekel and CIB had previously entered into a consent decree agreeing to pursue a policy of non-discrimination, and that Mr. Nuekel blithely admitted, via deposition, that he had not taken any action either to implement or enforce a policy of non-discrimination, but rather his only interest was to make money and further considering that guesswork alone was used to fulfill requirements to report the number of minority tenants, this Court is satisfied that the district court’s assessment of $25,000 punitive damages against entities receiving between $300,000 and $400,000 per month in gross rentals was not an abuse of discretion.
D.
The defendants challenge a portion of the compensatory damage award, specifically, the $4451.00 awarded as the difference in rent and utility bills between the substitute apartment and apartment sixty-seven. It is suggested that this award was improper because the Millers received fair economic value in exchange for their rent and utility payments and therefore suffered no legal damage. Defendants further contend that if the plaintiffs did suffer legal damage, then the proper measure of damages should be, by analogy to the measure of damages when a seller breaches a contract to sell real property, the difference between the rent specified in the lease for apartment sixty-seven and the fair market value of that apartment. The defendants also urge that the trial court erred in not finding that the Millers failed to mitigate damages in remaining at a superior and expensive substitute apartment.
We reject the contention that the Millers suffered no legal damage; the substitute apartment was “all electric” while apartment sixty-seven was not. Therefore simply due to the economics of the utility market, the plaintiffs were forced to pay more at the substitute apartment for substantially the same value they would have received at apartment sixty-seven. We also note the substitute apartment complex had been described by Mr. Ronay as “too expensive” suggesting that it was overpriced and that its rent was in excess of its fair market value. Further, if and to the extent that the Millers did receive more value at the substitute apartment, this can be viewed as a forced reallocation of their monetary resources, i. e. because of defendants’ actions plaintiffs were forced to pay more for an apartment than they wished and thus, had less money available to be used for other purposes.
Although defendants contend a real property measure of damages is proper, we conclude that the difference in rent and utility bills between the two apartments is the proper measure of damages in these circumstances. Upon consideration of the trend to treat leases within the framework of contract rather than property law, and the concept of “cover” in sales transactions, we find an appropriate remedy for defendants’ racial discrimination is to allow appellees to “cover.” See Young v. Parkland Village, Inc., 460 F.Supp. 67, 71 (D.Md. 1978), Walker v. Fox, 395 F.Supp. 1303, 1306 n.2 (S.D.Ohio 1975), Stevens v. Dobs, Inc., 373 F
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_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.
BLANCH et al. v. CORDERO, Auditor, et al.
No. 4451.
United States Court of Appeals First Circuit.
March 22, 1950.
Arturo O’Neill, Hato Rey, P. R., for appellants.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (H. G. Morison, Assistant Attorney General, Paul A. Sweeney and Richard P. Williams, III, Attorneys, Department of Justice, Mastín G. White, Solicitor, Department of the Interior, Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of the Interior, and Shirley Ecker Boskey, Attorney, Department of the Interior, all of Washington, D. C., on the brief), for appellees.
MAGRUDER, Chief Judge, and MARIS (by special assignment) and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a judgment of the Supreme Court of Puerto Rico affirming a judgment of the District Court for the Judicial District of San Juan dismissing a complaint praying for the issuance of a writ of mandamus directed to the insular Auditor and the insular Treasurer. The plaintiffs allege that they were all officers or employees of the People of Puerto Rico on July 1, 1932, whose salaries were specified in the budget bill enacted by the Legislature of Puerto' Rico for the fiscal year beginning on July 1, 1932 and ending on June 30, 1933; and that their salaries as so specified were reduced by the governor of Puerto Rico and they were paid the salaries as so reduced for the above fiscal year. The object of these proceedings, which were instituted on June 16, 1947, is to recover the difference between the salaries as originally provided in the budget bill and the reduced salaries actually paid on the ground that the governor is without authority under the Organic Act to reduce any item of appropriation of money made by the legislature.
Section 34 of the Organic Act, 39 Stat. 960, 961, 48 U.S.C.A. § 822 et seq., after provisions with respect to the enactment of legislation and the veto power, provides: “If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, or any part or parts, portion or portions thereof, while approving of the other portion of the bill.”
It is contended that this language, while giving the governor power to eliminate or strike any item or part or portion of an appropriation bill, does not give the governor the power to' scale down or reduce any item of appropriation of money made by the legislature. The contention rests upon a detailed grammatical analysis of the language employed. It is said that the word “thereof” is defined in the dictionaries as meaning “of that” or “of it”, wherefore it must refer to an antecedent in a singular form, and the only antecedent in that form in the sentence under consideration is the word “bill”. Thus it is said that the language of the Organic Act quoted above should be read as authorizing the governor to veto any item or items, or any part or parts, portion or portions of the. bill, but not as authorizing him to veto any part or parts, portion or portions of an item in the bill.
The contention that the .word “thereof” has reference to the word “bill” in the first part of the sentence quoted above, instead of to the word “items” repeated therein twice subsequently, was rejected after full consideration by the Supreme Court of Puerto Rico in De la Rosa v. Winship, 47 P.R.R. 312, and again in Leon v. Fitzsimmons, 61 P.R.R. 340. And in the latter case on appeal, Fitzsimmons v. Leon, 1 Cir., 141 F.2d 886, 888, this court brushed it aside in a dictum in the course of holding that the power to object to an item in a general appropriation bill did not confer power to reduce the amount of the salary set for an insular official in antecedent legislation establishing his office. We now reject the contention categorically.
It may be that “thereof” usually refers to a singular antecedent, but we are not aware that its reference must always be to such an antecedent. At any rate we see no grammatical objection to the use of the word as referring to a plural, and indeed in Commonwealth v. Bralley, 3 Gray. 456, 69 Mass. 456, it was construed by the Supreme Judicial Court of Massachusetts (Shaw, C. J.), apparently without thought of any. grammatical impediment, as having ■ reference to “spirituous or intoxicating liquors” in a statute making it a crime to sell such commodities “without being duly appointed or authorized.”
Furthermore statutes are to be construed primarily with an eye to the legislative intent, rather than with an eye primarily to the niceties and refinements of English grammar, and so construing the sentence we think that Congress clearly meant to empower the insular governor to scale down, as well as to reject altogether, any item in a money bill. Certainly the sentence so reads at first glance, as the appellant concedes, and this ordinary reading is reinforced by legislative history, for it appears that as the Act was originally introduced it gave the governor power merely to object to “one or more of such items,” but that it was amended on the floor of the Senate to its present phraseology by the insertion after the word “items” of the words “or any part or parts, portion or portions thereof.” 54 Cong.Rec. 2256. There is no illuminating discussion of this amendment available, but the amendment is meaningless surplusage unless it was intended to give power to veto a part or portion of an item, in other words to reduce it, as well as to strike it out altogether. Power to veto, parts or portions of an appropriation bill adds nothing to the power to veto any or all of its individual items. Perhaps the amendment might be construed as adding power to veto generally entire sections or subdivisions of an appropriation bill, if such a bill should be subdivided into parts or portions, but we do not think this meaning could have been intended, for the Organic Act does not require that budget bills shall be subdivided into parts and portions. Indeed it does not in any way .specify the form in which general appropriation bills shall be cast. It merely provides in § 34, supra, that “The governor shall submit at the opening of each regular session of the legislature a budget of receipts and expenditures, which shall be the basis of the ensuing biennial appropriation bill”, and that such bills shall originate in the house of representatives and shall embrace only appropriations for the ordinary expenses of the three basic departments of the government, interest on the public debt, and appropriations for public schools.
The foregoing considerations leave no doubt in our minds that under the Organic Act the governor has the power to reduce, as well as to strike, items in an appropriation bill.
Moreover, the question of laches has been decided adversely to the plaintiffs by both insular courts and we see no reason to disturb this conclusion of local law on the ground that it is “inescapably wrong” or “patently erroneous.”
The judgment of the Supreme Court of Puerto Rico is affirmed.
. The contention was advanced in both courts below, but has been abandoned on this appeal, that for reasons we need not detail no valid budget bill for the fiscal year 1932-1933 was ever enacted, with the result that the salaries of the plaintiffs as fixed in the preceding budget bill should have been paid pursuant to the provision of § 34 of the Organic Act, infra, to the effect that “If at the termination of any fiscal year the appropriations necessary for the support of the government for the ensuing fiscal year shall not have been made, the several sums appropriated in the last appropriation bills for the objects and purposes therein specified, so far as the same may be applicable, shall be deemed to be re-appropriated item by item; and until the legislature shall act in such behalf the treasurer may, with the advice of the governor, make the payments necessary for the purposes aforesaid.”
. We are told that the Supreme Court of Puerto Rico rejected it a third time in the recent case of Ferrao v. Cordero, 67 P.R.R. -, not yet translated into English.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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sc_respondentstate
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06
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
PACIFIC GAS & ELECTRIC CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al.
No. 84-1044.
Argued October 8, 1985
Decided February 25, 1986
Powell, J., announced the judgment of the Court and delivered an opinion, in which BurgeR, C. J., and Brennan and O’Connor, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 21. Marshall, J., filed an opinion concurring in the judgment, post, p. 21. Rehnquist, J., filed a dissenting opinion, in Part I of which White and Stevens, JJ., joined, post, p. 26. Stevens, J., filed a dissenting opinion, post, p. 35. Blackmun, J., took no part in the consideration or decision of the case.
Robert L. Harris argued the cause for appellant. With him on the briefs was Malcolm H. Furbush.
Mark Fogelman argued the cause for appellees. With him on the brief for appellee Public Utilities Commission of California were Janice E. Kerr and Hector Anninos. Jerome B. Falk, Jr., Steven L. Mayer, and Frederic D. Woocher filed a brief for appellees Toward Utility Rate Normalization et al.
Briefs of amici curiae urging reversal were filed for the American Gas Association by George H. Lawrence, David J. Muchow, John H. Myler, and Carol A. Smoots; for Bell Atlantic Telephone Companies by Daniel A. Rezneck and Robert A. Levetown; for Consolidated Edison Co. of New York, Inc., by Joy Tannian, Peter P. Garam, and Bernard L. Sanoff; for the California Chamber of Commerce by John R. Reese; for the Edison Electric Institute by Robert L. Baum, Peter B. Kelsey, William L. Fang, and James H. Byrd; for the Gas Distributors Information Service by Paul A. Lenzini; for the Legal Foundation of America by David Crump, Jean F. Powers, and Bradley Ford Stuebling; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon; for the Mountain States Legal Foundation by Constance E. Brooks, K. Preston Oade, Jr., and Casey Shpall; for National Fuel Gas Distribution Corp. et al. by Stanley W. Widger, Jr., Richard N. George, and Thomas C. Hutton; for Pacific Bell et al. by Philip B. Kurland, John J. Coffey, Robert V. R. Dalenberg, Margaret deB. Brown, Thomas D. Clarke, Jeffrey E. Jackson, and Richard M. Cahill; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and John H. Findley; for Pacific Northwest Bell Telephone Co. et al. by Robert F. Harrington and Thomas H. Nelson; for Sierra Pacific Power Co. by Boris H. Lakusta, John Mada-riaga, and James D. Salo; for the Washington Legal Foundation by Daniel C. Popeo and Paul D. Kamenar; and for the Wisconsin State Telephone Association et al. by Robert A. Christensen, Ray J. Riordan, Jr., Philip L. Wettengel, Floyd S. Keene, and Renee M. Martin.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by John Van de Kamp, Attorney General of California, Herschel T. Elkins, Senior Assistant Attorney General, Michael R. Botwin, Deputy Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, William B. Gundling, Assistant Attorney General, Elliot F. Gerson, Deputy Attorney General, Linley E. Pearson, Attorney General of Indiana, William E. Daily, Deputy Attorney General, William J. Guste, Jr., Attorney General of Louisiana, Kendall L. Vick, Assistant Attorney General, Mike Greely, Attorney General of Montana, Patricia
J. Schaeffer, Assistant Attorney General, Robert M. Spire, Attorney General of Nebraska, John Boehm, Assistant Attorney General, Brian McKay, Attorney General of Nevada, William E. Isaeff, Chief Deputy Attorney General, Paul Bardacke, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Jo Anne Sanford, Special Deputy Attorney General, Karen E. Long, Assistant Attorney General, Nicholas J. Spaeth, Attorney General of North Dakota, Terry L. Adkins, Assistant Attorney General, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Robert S. Tongren, Assistant Attorney General, Arlene Violet, Attorney General of Rhode Island, Constance L. Messore, Special Assistant Attorney General, Jim Mattox, Attorney General of Texas, Larry J. Laurent, Assistant Attorney General, Charlie Brown, Attorney General of West Virginia, and David L. Grubb, Deputy Attorney General; for the State of Illinois et al. by Neil F. Hartigan, Attorney General, Jill Wine-Banks, Solicitor General, John W. McCaffrey and Rosalyn B. Kaplan, Assistant Attorneys General, Robert L. Graham and Laura A. Kastor; for the State of Oregon by Dave Frohnmayer, Attorney General, William F. Gary, Deputy Attorney General, and James E. Mountain, Jr., Solicitor General; for the State of Wisconsin by Bronson C. La Follette, Attorney General, and David T. Flanagan, Assistant Attorney General; for the National League of Cities et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Jonathan B. Sallet; for the American Federation of Labor and Congress of Industrial Organizations by Marsha Berzon and Laurence Gold; for the Center for Public Interest Law of the University of San Diego School of Law by Robert C. Fellmeth; for the Legal Aid Society of New York City by Helaine Barnett, John E. Kirklin, and Kalman Finkel; for the National Association of State Utility Consumer Advocates et al. by William Paul Rodgers, Jr., Steven W. Hamm, and Raymon E. Lark, Jr.; and for the New York Citizens’ Utility Board, Inc., et al. by John Cary Sims and Alan B. Morrison; for the Public Service Commission of New York et al. by David E. Blabey, Timothy P. Sheehan, Robert Abrams, Attorney General of New York, and Peter Bienstock; for the Telecommunications Research and Action Center et al. by Andrew J. Schwartzman; and for the Wisconsin Citizens’ Utility Board by Lee Cullen.
Justice Powell
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Brennan, and Justice O’Connor join.
The question in this case is whether the California Public Utilities Commission may require a privately owned utility company to include in its billing envelopes speech of a third party with which the utility disagrees.
I — I
For the past 62 years, appellant Pacific Gas and Electric Company has distributed a newsletter in its monthly billing envelope. Appellant’s newsletter, called Progress, reaches over three million customers. It has included political editorials, feature stories on matters of public interest, tips on energy conservation, and straightforward information about utility services and bills. App. to Juris. Statement A-66, A-183 to A-190.
In 1980, appellee Toward Utility Rate Normalization (TURN), an intervenor in a ratemaking proceeding before California’s Public Utilities Commission, another appellee, urged the Commission to forbid appellant to use the billing envelopes to distribute political editorials, on the ground that appellant’s customers should not bear the expense of appellant’s own political speech. Id., at A-2. The Commission decided that the envelope space that appellant had used to disseminate Progress is the property of the ratepayers. Id., at A-2 to A-3. This “extra space” was defined as “the space remaining in the billing envelope, after inclusion of the monthly bill and any required legal notices, for inclusion of other materials up to such total envelope weight as would not result in any additional postage cost.” Ibid.
In an effort to apportion this “extra space” between appellant and its customers, the Commission permitted TURN to use the “extra space” four times a year for the next two years. During these months, appellant may use any space not used by TURN, and it may include additional materials if it pays any extra postage. The Commission found that TURN has represented the interests of “a significant group” of appellant’s residential customers, id., at A-15, and has aided the Commission in performing its regulatory function, id., at A-49 to A-50. Consequently, the Commission determined that ratepayers would benefit from permitting TURN to use the extra space in the billing envelopes to raise funds and to communicate with ratepayers: “Our goal... is to change the present system to one which uses the extra space more efficiently for the ratepayers’ benefit. It is reasonable to assume that the ratepayers will benefit more from exposure to a variety of views than they will from only that of PG&E.” Id., at A-17. The Commission concluded that appellant could have no interest in excluding TURN’S message from the billing envelope since appellant does not own the space that message would fill. Id., at A-23. The Commission placed no limitations on what TURN or appellant could say in the envelope, except that TURN is required to state that its messages are not those of appellant. Id., at A-17 to A-18. The Commission reserved the right to grant other groups access to the envelopes in the future. Ibid.
Appellant appealed the Commission’s order to the California Supreme Court, arguing that it has a First Amendment right not to help spread a message with which it disagrees, see Wooley v. Maynard, 430 U. S. 705 (1977), and that the Commission’s order infringes that right. The California Supreme Court denied discretionary review. We noted probable jurisdiction, 470 U. S. 1083 (1985), and now reverse.
II
The constitutional guarantee of free speech “serves significant societal interests” wholly apart from the speaker’s interest in self-expression. First National Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978). By protecting those who wish, to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information. See Thornhill v. Alabama, 310 U. S. 88, 102 (1940); Saxbe v. Washington Post Co., 417 U. S. 843, 863-864 (1974) (Powell, J., dissenting). The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the “discussion, debate, and the dissemination of information and ideas” that the First Amendment seeks to foster. First National Bank of Boston v. Bellotti, supra, at 783 (citations omitted). Thus, in Bellotti, we invalidated a state prohibition aimed at speech by corporations that sought to influence the outcome of a state referendum. 435 U. S., at 795. Similarly, in Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 544 (1980), we invalidated a state order prohibiting a privately owned utility company from discussing controversial political issues in its billing envelopes. In both cases, the critical considerations were that the State sought to abridge speech that the First Amendment is designed to protect, and that such prohibitions limited the range of information and ideas to which the public is exposed. First National Bank of Boston v. Bellotti, supra, at 776-778, 781-783; Consolidated Edison Co. v. Public Service Comm’n of N. Y., supra, at 533-535.
There is no doubt that under these principles appellant’s newsletter Progress receives the full protection of the First Amendment. Lovell v. Griffin, 303 U. S. 444, 452 (1938). In appearance no different from a small newspaper, Progress’ contents range from energy-saving tips to stories about wildlife conservation, and from billing information to recipes. App. to Juris. Statement A-183 to A-190 extends well beyond speech that proposes a business transaction, see Zauderer v. Office of Disciplinary Counsel, 471 U. S. 626, 637 (1985); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N. Y., 447 U. S. 557, 561-563 (1980), and includes the kind of discussion of “matters of public concern” that the First Amendment both fully protects and implicitly encourages. Thornhill v. Alabama, supra, at 101.
The Commission recognized as much, but concluded that requiring appellant to disseminate TURN’S views did not infringe upon First Amendment rights. It reasoned that appellant remains free to mail its own newsletter except for the four months in which TURN is given access. The Commission’s conclusion necessarily rests on one of two premises: (i) compelling appellant to grant TURN access to a hitherto private forum does not infringe appellant’s right to speak; or (n) appellant has no property interest in the relevant forum and therefore has no constitutionally protected right in restricting access to it. We now examine those propositions.
HH I — I I — I
Compelled access like that ordered in this case both penalizes the expression of particular points of view and forces speakers to alter their speech to conform with an agenda they do not set. These impermissible effects are not remedied by the Commission’s definition of the relevant property rights.
A
This Court has previously considered the question whether compelling a private corporation to provide a forum for views other than its own may infringe the corporation’s freedom of speech. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); see also PruneYard Shopping Center v. Robins, 447 U. S. 74, 85-88 (1980); id., at 98-100 (Powell, J., joined by White, J., concurring in part and in judgment). Tornillo involved a challenge to Florida’s right-of-reply statute. The Florida law provided that, if a newspaper assailed a candidate’s character or record, the candidate could demand that the newspaper print a reply of equal prominence and space. 418 U. S., at 244-245, and n. 2.
We found that the right-of-reply statute directly interfered with the newspaper’s right to speak in two ways. Id., at 256. First, the newspaper’s expression of a particular viewpoint triggered an obligation to permit other speakers, with whom the newspaper disagreed, to use the newspaper’s facilities to spread their own message. The statute purported to advance free discussion, but its effect was to deter newspapers from speaking out in the first instance: by forcing the newspaper to disseminate opponents’ views, the statute penalized the newspaper’s own expression. We therefore concluded that a “[g]overnment-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.’” Id., at 257 (emphasis added) (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 279 (1963).
Second, we noted that the newspaper’s “treatment of public issues and public officials — whether fair or unfair — constitute[s] the exercise of editorial control and judgment.” 418 U. S., at 258. Florida’s statute interfered with this “editorial control and judgment” by forcing the newspaper to tailor its speech to an opponent’s agenda, and to respond to candidates’ arguments where the newspaper might prefer to be silent. Cf. Wooley v. Maynard, 430 U. S., at 714; West Virginia Board of Education v. Barnette, 319 U. S. 624, 633-634 (1943). Since all speech inherently involves choices of what to say and what to leave unsaid, this effect was impermissible. As we stated last Term: “‘The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas.... There is necessarily... a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.’” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U. S. 524, 559 (1985) (quoting Estate of Hemingway v. Random House, 23 N. Y. 2d 341, 348, 244 N. E. 2d 250, 255 (1968)) (emphasis in original). See PruneYard, supra, at 99-100 (opinion of Powell, J.).
The concerns that caused us to invalidate the compelled access rule in Tomillo apply to appellant as well as to the institutional press. See First National Bank of Boston v. Bellotti, 435 U. S., at 782-784. Cf. Lovell v. Griffin, 303 U. S., at 452. Just as the State is not free to “tell a newspaper in advance what it can print and what it cannot,” Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376, 400 (1973) (Stewart, J., dissenting); see also PruneYard, supra, at 88, the State is not free either to restrict appellant’s speech to certain topics or views or to force appellant to respond to views that others may hold. Consolidated Edi son Co. v. Public Service Comm’n of N. Y., 447 U. S., at 533-535. See PruneYard, 447 U. S., at 100 (opinion of Powell, J.); Abood v. Detroit Board of Education, 431 U. S. 209, 241 (1977). Under Tomillo a forced access rule that would accomplish these purposes indirectly is similarly forbidden.
The Court’s decision in PruneYard Shopping Center v. Robins, supra, is not to the contrary. In PruneYard, a shopping center owner sought to deny access to a group of students who wished to hand out pamphlets in the shopping center’s common area. The California Supreme Court held that the students’ access was protected by the State Constitution; the shopping center owner argued that this ruling violated his First Amendment rights. This Court held that the shopping center did not have a constitutionally protected right to exclude the pamphleteers from the area open to the public at large. Id., at 88. Notably absent from PruneYard was any concern that access to this area might affect the shopping center owner’s exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets; nor was the access right content based. PruneYard thus does not undercut the proposition that forced associations that burden protected speech are impermissible.
B
The Commission’s order is inconsistent with these principles. The order does not simply award access to the public at large; rather, it discriminates on the basis of the viewpoints of the selected speakers. Two of the acknowledged purposes of the access order are to offer the public a greater variety of views in appellant’s billing envelope, and to assist groups (such as TURN) that challenge appellant in the Commission’s ratemaking proceedings in raising funds. App. to Juris. Statement A-16 to A-17. Access to the envelopes thus is not content neutral. The variety of views that the Commission seeks to foster cannot be obtained by including speakers whose speech agrees with appellant’s. Similarly, the perceived need to raise funds to finance participation in ratemaking proceedings exists only where the relevant groups represent interests that diverge from appellant’s interests. Access is limited to persons or groups— such as TURN — who disagree with appellant’s views as expressed in Progress and who oppose appellant in Commission proceedings.
Such one-sidedness impermissibly burdens appellant’s own expression. Tornillo illustrates the point. Access to the newspaper in that case was content based in two senses: (i) it was triggered by a particular category of newspaper speech, and (ii) it was awarded only to those who disagreed with the newspaper’s views. The Commission’s order is not, in Tor-nillo’s words, a “content-based penalty” in the first sense, because TURN’S access to appellant’s envelopes is not conditioned on any particular expression by appellant. Cf. Tornillo, 418 U. S., at 256. But because access is awarded only to those who disagree with appellant’s views and who are hostile to appellant’s interests, appellant must contend with the fact that whenever it speaks out on a given issue, it may be forced — at TURN’S discretion — to help disseminate hostile views. Appellant “might well conclude” that, under these circumstances, “the safe course is to avoid controversy,” thereby reducing the free flow of information and ideas that the First Amendment seeks to promote. Id., at 257.
Appellant does not, of course, have the right to be free from vigorous debate. But it does have the right to be free from government restrictions that abridge its own rights in order to “enhance the relative voice” of its opponents. Buckley v. Valeo, 424 U. S. 1, 49, and n. 55 (1976). The Commission’s order requires appellant to assist in disseminating TURN’S views; it does not equally constrain both sides of the debate about utility regulation. This kind of favoritism goes well beyond the fundamentally content-neutral subsidies that we sustained in Buckley and in Regan v. Taxation With Representation of Washington, 461 U. S. 540 (1988). See Buckley, supra at 97-105 (sustaining funding of general election campaign expenses of major party candidates); Regan, supra, at 546-550 (sustaining tax deduction for contributors to veterans’ organizations). Unlike these permissible government subsidies of speech, the Commission’s order identifies a favored speaker “based on the identity of the interests that [the speaker] may represent,” First National Bank of Boston v. Bellotti, 435 U. S., at 784, and forces the speaker’s opponent — not the taxpaying public — to assist in disseminating the speaker’s message. Such a requirement necessarily burdens the expression of the disfavored speaker.
The Commission’s access order also impermissibly requires appellant to associate with speech with which appellant may disagree. The order on its face leaves TURN free to use the billing envelopes to discuss any issues it chooses. Should TURN choose, for example, to urge appellant’s customers to vote for a particular slate of legislative candidates, or to argue in favor of legislation that could seriously affect the utility business, appellant may be forced either to appear to agree with TURN’S views or to respond. PruneYard, 447 U. S., at 98-100 (opinion of Powell, J.). This pressure to respond “is particularly apparent when the owner has taken a position opposed to the view being expressed on his property.” Id., at 100. Especially since TURN has been given access in part to create a multiplicity of views in the envelopes, there can be little doubt that appellant will feel compelled to respond to arguments and allegations made by TURN in its messages to appellant’s customers.
That kind of forced response is antithetical to the free discussion that the First Amendment seeks to foster. Harper & Row, 471 U. S., at 559. See also Wooley v. Maynard, 430 U. S., at 714. For corporations as for individuals, the choice to speak includes within it the choice of what not to say. Tornillo, supra, at 258. And we have held that speech does not lose its protection because of the corporate identity of the speaker. Bellotti, supra, at 777; Consolidated Edison, 447 U. S., at 533. Were the government freely able to compel corporate speakers to propound political messages with which they disagree, this protection would be empty, for the government could require speakers to affirm in one breath that which they deny in the next. It is therefore incorrect to say, as do appellees, that our decisions do not limit the government’s authority to compel speech by corporations. The danger that appellant will be required to alter its own message as a consequence of the government’s coercive action is a proper object of First Amendment solicitude, because the message itself is protected under our decisions in Bellotti and Consolidated Edison. Where, as in this case, the danger is one that arises from a content-based grant of access to private property, it is a danger that the government may not impose absent a compelling interest.
C
The Commission has emphasized that appellant’s customers own the “extra space” in the billing envelopes. App. to Juris. Statement A-64 to A-66. According to appellees, it follows that appellant cannot have a constitutionally protected interest in restricting.access to the envelopes. This argument misperceives both the relevant property rights and the nature of the State’s First Amendment violation.
The Commission expressly declined to hold that under California law appellant’s customers own the entire billing envelopes and everything contained therein. Id., at A-2 to A-3. It decided only that the ratepayers own the “extra space” in the envelope, defined as that space left over after including the bill and required notices, up to a weight of one ounce. Ibid. The envelopes themselves, the bills, and Progress all remain appellant’s property. The Commission’s access order thus clearly requires appellant to use its property as a vehicle for spreading a message with which it disagrees. In Wooley v. Maynard, we held that New Hampshire could not require two citizens to display a slogan on their license plates and thereby “use their private property as a ‘mobile billboard’ for the State’s ideological message.” 430 U. S., at 715. The “private property” that was used to spread the unwelcome message was the automobile, not the license plates. Similarly, the Commission’s order requires appellant to use its property — the billing envelopes — to distribute the message of another. This is so whoever is deemed to own the “extra space.”
A different conclusion would necessarily imply that our decision in Tornillo rested on the Miami Herald’s ownership of the space that would have been used to print candidate replies. Nothing in Tornillo suggests that the result would have been different had the Florida Supreme Court decided that the newspaper space needed to print candidates’ replies was the property of the newspaper’s readers, or had the court ordered the Miami Herald to distribute inserts owned and prepared by the candidates together with its newspapers. The constitutional difficulty with the right-of-reply statute was that it required the newspaper to disseminate a message with which the newspaper disagreed. This difficulty did not depend on whether the particular paper on which the replies were printed belonged to the newspaper or to the candidate.
Appellees’ argument suffers from the same constitutional defect. The Commission’s order forces appellant to disseminate TURN’S speech in envelopes that appellant owns and that bear appellant’s return address. Such forced association with potentially hostile views burdens the expression of views different from TURN’S and risks forcing appellant to speak where it would prefer to remain silent. Those effects do not depend on who “owns” the “extra space.”
H <
Notwithstanding that it burdens protected speech, the Commission’s order could be valid if it were a narrowly tailored means of serving a compelling state interest. Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S., at 535; First National Bank of Boston v. Bellotti, 435 U. S., at 786. Appellees argue that the access order does in fact further compelling state interests. In the alternative, appellees argue that the order is a permissible time, place, or manner restriction. We consider these arguments in turn.
A
Appellees identify two assertedly compelling state interests that the access order is said to advance. First, appel-lees argue that the order furthers the State’s interest in effective ratemaking proceedings. TURN has been a regular participant in those proceedings, and the Commission found that TURN has aided the Commission in performing its regulatory task. Appellees argue that the access order permits TURN to continue to help the Commission by assisting TURN in raising funds from the ratepayers whose interest TURN seeks to serve.
The State’s interest in fair and effective utility regulation may be compelling. The difficulty with appellees’ argument is that the State can serve that interest through means that would not violate appellant’s First Amendment rights, such as awarding costs and fees. The State’s interest may justify imposing on appellant the reasonable expenses of responsible groups that represent the public interest at ratemaking proceedings. But “we find ‘no substantially relevant correlation between the governmental interest asserted and the State’s effort’” to compel appellant to distribute TURN’S speech in appellant’s envelopes. First National Bank of Boston v. Bellotti, supra, at 795 (quoting Shelton v. Tucker, 364 U. S. 479, 485 (1960)).
Second, appellees argue that the order furthers the State’s interest in promoting speech by making a variety of views available to appellant’s customers. Cf. Buckley v. Valeo, 424 U. S., at 92-93, and n. 127. We have noted above that this interest is not furthered by an order that is not content neutral. Moreover, the means chosen to advance variety tend to inhibit expression of appellant’s views in order to promote TURN’S. Our cases establish that the State cannot advance some points of view by burdening the expression of others. First National Bank of Boston v. Bellotti, supra, at 785-786; Buckley v. Valeo, supra, at 48-49. It follows that the Commission’s order is not a narrowly tailored means of furthering this interest.
B
Appellees argue, finally, that the Commission’s order is a permissible time, place, or manner regulation, since it “serve[s] a significant governmental interest and leave[s] ample alternative channels for communication.” Consolidated Edison Co. v. Public Service Comm’n of N. Y., supra, at 535; see also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976). For a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech to be regulated. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); see also Erznoznik v. City of Jacksonville, 422 U. S. 205, 210-212 (1975). As we have shown, the State’s asserted interest in exposing appellant’s customers to a variety of viewpoints is not — and does not purport to be— content neutral.
V
We conclude that the Commission’s order impermissibly burdens appellant’s First Amendment rights because it forces appellant to associate with the views of other speakers, and because it selects the other speakers on the basis of their viewpoints. The order is not a narrowly tailored means of farthering a compelling state interest, and it is not a valid time, place, or manner regulation.
For these reasons, the decision of the California Public Utilities Commission must be vacated. The case is remanded to the California Supreme Court for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Blackmun took no part in the consideration or decision of this case.
For example, the December 1984 issue of Progress included a story on appellant’s “automatic payment” and “balanced payment” plans, an article instructing ratepayers on how to weatherstrip their homes, recipes for holiday dishes, and a feature on appellant’s efforts to help bald eagles in the Pit River area of California. App. to Juris. Statement A-183 to A-190. When the Commission first addressed the question whether appellant could continue to have exclusive access to its billing envelopes, it noted that Progress has previously discussed the merits of recently passed and pending legislation in Congress. Id,., at A-66.
In addition to TURN and the Commission, there are five other ap-pellees: Consumers Union, Consumer Federation of California, Common Cause of California, California Public Interest Research Group, and California Association of Utility Shareholders. Only TURN claims a direct interest in the outcome of this ease; the other appellees appear to be inter-venors concerned only with this case’s precedential effects.
The Commission summarized its reasoning as follows:
“[E]nvelope and postage costs and any other costs of mailing bills are a necessary part of providing utility service to the customer.... However, due to the nature of postal rates... extra space exists in these billing envelopes.... Mindful that the extra space is an artifact generated with ratepayer funds, and is not an intended or necessary item of rate base, and that the only alternative treatment would unjustly enrich PG&E and simultaneously deprive the ratepayers of the value of that space, we concluded that the extra space in the billing envelope ‘is properly considered as ratepayer property.’ ” Id., at A-3.
Commissioners Bagley and Calvo dissented from the Commission’s decision to grant TURN access to the billing envelopes. Commissioner Bagley argued that the Commission’s order had potentially sweeping consequences for various kinds of property interests:
“The face of every utility-owned dam, the side of every building, the surface of every gas holder rising above our cities, and the bumpers of every utility vehicle — to name just a few relevant examples — have ‘excess space’ and ‘economic advertising value.’ Some utility corporations place bumper-strip messages on their vehicles. Buses and trucks regularly carry advertising messages. In the words of the majority at page 23 of the decision, ‘It is reasonable to assume that the ratepayers will benefit from exposure to a variety of views....’ Is it the postulate of this Commission, flowing from the decision’s stated premise... that ratepayers would benefit from exposure to some particular socially desirable message from some ratepayer group making use of any or all such areas of excess valuable space?” Id., at A-40.
Commissioner Bagley also argued that the Commission’s decision would require the Commission to make forbidden content-based distinctions in order to allocate the extra space among competing speakers. Id., at A-41. Commissioner Calvo contended, first, that the order infringed appellant’s First Amendment rights, and, second, that it was unnecessary because “TURN has other opportunities to reach its natural audience.” Id., at A-56. Commissioner Calvo noted that the Commission often awarded TURN and similar groups fees for their participation in ratemaking proceedings, funds that presumably could finance separate mailings. Ibid.
The Commission has already denied access to at least one group based on the content of its speech. The Commission denied the application of a taxpayer group — the Committee of More than One Million Taxpayers to Save Proposition 13— on the ground that that group neither wished to participate in Commission proceedings nor alleged that its use of the billing envelope space would improve consumer participation in those proceedings. Id., at A-157 to A-164. The record does not reveal whether any other groups have sought access to the billing envelopes.
This Court has sustained a limited government-enforced right of access to broadcast media. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969). Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973). Appellant’s billing envelopes do not, however, present the same constraints that justify the result in Red Lion: “[A] broadcaster communicates through use of a scarce, publicly owned resource. No person can broadcast without a license, whereas all persons are free to send correspondence to private homes through the mails.” Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 543 (1980).
Unlike the right-of-reply statute at issue in Tomillo, the Commission’s order does not require appellant to place TURN’S message in appellant’s newsletter. Instead, the Commission ordered appellant to place TURN’S message in appellant’s envelope four months out of the year. Like the Miami Herald, however, appellant is still required to carry speech with which it disagreed, and might well feel compelled to reply or limit its own speech in response to TURN’S.
The Court’s opinion in Tomillo emphasizes that the right-of-reply statute impermissibly deterred protected speech. 418 U. S., at 256-257. In the last paragraph of the opinion, the Court concluded that an independent ground for invalidating the statute was its effect on editors’ allocation of scarce newspaper space. Id., at 258. See also id., at 257, n. 22. That discussion in no way suggested that the State was free otherwise to burden the newspaper’s speech as long as the actual paper on which the newspaper was printed was not invaded
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_appel1_4_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Vernon R. JANTZ, Plaintiff-Appellee, v. Cleofas F. MUCI, Defendant-Appellant. Lambda Legal Defense and Education Fund, Inc.; American Civil Liberties Union Foundation and American Civil Liberties Union of Kansas; National Conference of Gay and Lesbian Elected Officials, Amici Curiae.
No. 91-3245.
United States Court of Appeals, Tenth Circuit.
Oct. 9, 1992.
Rehearing Denied Dec. 14, 1992.
David M. Rapp of Hinkle, Eberhart & Elkouri, Wichita, Kan., for defendant-appellant.
James S. Phillips, Jr. of Phillips & Phillips, Wichita, Kan., for plaintiff-appellee.
Stephen V. Bomse, Clyde J. Wadsworth of Heller, Ehrman, White & McAuliffe, San Francisco, Cal., and Mary Newcombe, Los Angeles, Cal., for amicus curiae Lambda Legal Defense and Educ. Fund, Inc.
Eric E. Davis of Saperstein, Mayeda, Larkin & Goldstein, Los Angeles, Cal., for amicus curiae National Conference of Gay and Lesbian Elected Officials.
William B. Rubenstein, Matt Coles, Ruth E. Harlow of American Civil Liberties Foundation, New York City, and David J. Waxse of Shook, Hardy & Bacon, Overland Park, Kan., for amicus curiae American Civil Liberties Union Foundation and the American Civil Liberties Union of Kansas.
Before BALDOCK and BARRETT, Circuit Judges, and PARKER, District Judge.
Honorable James A. Parker, United States District Judge for the District of New Mexico, sitting by designation.
BALDOCK, Circuit Judge.
Plaintiff-appellee Vernon R. Jantz brought this 42 U.S.C. § 1983 action against Defendant-appellant Cleofas F. Muci, the former principal of Wichita North High School (Wichita North), Unified School District No. 259 (District 259), in Wichita, Kansas. Plaintiff alleges that Defendant violated his Fourteenth Amendment equal protection rights under color of state law by denying him full-time employment as a social studies teacher/coach at Wichita North because of what Defendant perceived as Plaintiff’s “homosexual tendencies.” Plaintiff brought the action against Defendant in both Defendant’s individual and official capacities. Defendant moved for summary judgment, claiming that Plaintiff had failed to place material facts in issue and that he was entitled to judgment as a matter of law. The district court refused to grant summary judgment, and Defendant appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, see Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988), and we reverse. The case is remanded for entry of summary judgment in favor of Defendant.
I.
Plaintiff has taught continuously since early 1987 in various District 259 schools, including some work as a substitute teacher at Wichita North. He has twice been rejected, however, for full-time District 259 high school teaching positions. This case arises from his attempt to obtain a full-time position at Wichita North for the 1988-89 school year. Because of the merger of District 259 Ninth Graders into high school that year, the District created a new social studies teacher/coach position. Plaintiff interviewed for the position but was rejected in favor of Matthew Silver-thorne, a recent college graduate who had student taught and coached at Wichita North. Defendant, the Wichita North principal, recommended that the District hire Mr. Silverthorne. It is undisputed on appeal that Jane Ware, Director of Secondary Personnel in District 259, actually made the employment offer to Mr. Silverthorne, but the district court found that Plaintiff had established on summary judgment that Defendant’s decision not to recommend Plaintiff was an exercise of de facto hiring authority.
Defendant argued below on summary judgment that he recommended Mr. Silver-thorne because he was better qualified than Plaintiff. He also argued that he was qualifiedly immune from the claim brought against him in his personal capacity and that he did not have final policy decision-making authority so as to give rise to entity liability for the claim brought against him in his official capacity. Plaintiff countered with summary judgment evidence to support his allegation that Defendant’s decision resulted from prejudice against homosexuals; this, even though the record shows that Plaintiff is married, has two children, and does not claim to be homosexual or bisexual. The summary judgment evidence came in the form of deposition testimony from Defendant’s secretary, Sharon Fredin, and the director of social studies at Wichita North, William Jenkins. Ms. Fredin testified that she had remarked to Defendant sometime during the 1987-88 school year that Plaintiff reminded her of her former husband, whom she believed to be a homosexual. Mr. Jenkins testified that he knew and respected Plaintiff based on Plaintiff’s substitute teaching experience and that he had recommended Plaintiff for the new position. He further testified that sometime during the fall of the 1988-89 school year he had inquired into why Plaintiff had not been hired and that Defendant had stated that it was because of Plaintiff’s “homosexual tendencies.” Defendant admitted in deposition testimony that he had conveyed Ms. Fredin’s remark to Mr. Jenkins, but he denied that this was his reason for not recommending Plaintiff.
In denying Defendant’s motion for summary judgment, the district court held that material issues of fact existed regarding whether Defendant had violated Plaintiff’s Fourteenth Amendment equal protection rights by denying employment based on a perceived homosexual classification. The court broke new ground and held that, as of 1991, the date of the decision, homosexuals and those perceived as homosexuals are a suspect class deserving of heightened scrutiny in the equal protection context. 759 F.Supp. 1543, 1546-51. Nevertheless, the court recognized that this new suspect classification could not possibly have been clearly established in 1988 when Defendant allegedly discriminated against Plaintiff. Id. at 1552. Therefore, the court analyzed Plaintiff's qualified immunity defense under a rational basis test, holding that it was clearly established in 1988 that the government could not “ 'discriminate [against homosexuals] for the sake of discrimination.’ ” Id. at 1552 (citing Swift v. United States, 649 F.Supp. 596 (D.D.C.1986)). Applying this precept as clearly established by one fellow district court, the court held that Defendant was not entitled to the qualified immunity defense because he did not offer a rational explanation for basing his hiring decision on a perception of “homosexual tendencies.” Id. at 1553. Furthermore, the court rejected Defendant’s argument with regard to the claim against him in his official capacity, noting only that Plaintiff had demonstrated on summary judgment that Defendant’s failure to recommend Plaintiff for employment was consistent with an established District 259 policy of allowing school principals unchecked hiring authority and that Defendant had not adduced summary judgment evidence of the participation of any other official in the decision to reject Plaintiff. Id. at 1553 (citing Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)).
This appeal centers on the district court’s treatment of the qualified immunity issue and Defendant’s argument that he did not have final policy decisionmaking authority. We address each issue in turn.
II.
Qualified immunity shields government officials from the burdens of lawsuits stemming from the exercise of discretionary authority, yet it also allows for the vindication of constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Hannula v. City of Lakewood, 907 F.2d 129, 130-31 (10th Cir.1990). In striking a balance between these two competing goals, the Supreme Court has formulated a test based on the “objective reasonableness” of the conduct at issue as compared with the state of the law at the time of the alleged violation. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Snell v. Tunnell, 920 F.2d 673, 696 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). Under this test, the burdens of a trial and personal liability may not be imposed on a government official for the exercise of discretionary authority unless his conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. This “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
Qualified immunity differs from other affirmative defenses in that it protects the defendant from “the burdens associated with trial’.’ as well as from personal liability. Pueblo Neighborhood Health Centers, 847 F.2d at 645; Hannula, 907 F.2d at 131. Therefore, our review of the district court’s summary judgment determination differs from the norm. Hannula, 907 F.2d at 130. A defendant government official need only raise the qualified immunity defense to shift the summary judgment burden to the plaintiff. Id. This burden is quite heavy, id. at 131, for the plaintiff must do more than simply allege the violation of a general legal precept. Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). The plaintiff must “instead demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defen dant’s actions were clearly prohibited.” Hannula, 907 F.2d at 131. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Clearly this standard does not require a precise factual analogy to pre-existing law; however, the plaintiff must demonstrate that the unlawfulness of the conduct was “apparent” in the light of preexisting law. Id. Once the plaintiff meets his burden of coming forward with facts or allegations which demonstrate that the defendant’s alleged violation should have been apparent in light of pre-existing law, the “defendant assume[s] the normal burden of a movant for summary judgment of establishing that no material facts remain in dispute that would defeat her or his claim of qualified immunity.” Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989).
Applying the qualified immunity analysis to this case, we must determine whether Plaintiff has met his burden of demonstrating that Defendant’s alleged conduct violated clearly established law of which a reasonable person would have been aware in 1988. Plaintiff contends that clearly established Fourteenth Amendment equal protection principles prohibited state and local officials from arbitrarily discriminating against homosexuals when Defendant refused to recommend him for the new social studies teacher/coach position at Wichita North in 1988. The district court agreed with this assertion, relying solely on United States v. Swift, 649 F.Supp. 596 (D.D.C.1986). 759 F.Supp. at 1553. In Swift, the District Court for the District of Columbia held that “the government may not discriminate against homosexuals for the sake of discrimination, or for no reason at all.” 649 F.Supp. at 602. By way of analogy, the district court in this case held that the government may not arbitrarily discriminate against “perceived homosexuals” either. 759 F.Supp. at 1553.
On appeal, Plaintiff goes beyond Swift, relying primarily on a general discussion of equal protection principles. For qualified immunity purposes only, he concedes, as the district court recognized, that government classifications based on sexual orientation were neither inherently suspect nor quasi-suspect as a matter of clearly established law in 1988. He concedes the same with regard to fundamental rights. Therefore, he does not discuss the higher levels of scrutiny applied to government actions which disparately affect such classes and rights.
Nevertheless, Plaintiff argues that Defendant's actions could not withstand the clearly established rational basis review applied to government classifications which do not call for higher levels of scrutiny. He cites United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), in which the Supreme Court held that a provision of the Food Stamp Act which was designed to prevent hippies from participating in the Food Stamp Program could not withstand traditional rational basis review under a Fifth Amendment equal protection analysis. Id. at 533-34, 93 S.Ct. at 2825-26. The Moreno Court noted that “[f]or the constitutional conception of ‘equal protection of the laws’ to mean anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. at 534, 93 S.Ct. at 2826. Plaintiff also cites Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446-47, 105 S.Ct. 3249, 3257-58, 87 L.Ed.2d 313 (1985), in which the Court applied the same principle under a Fourteenth Amendment equal protection analysis of a classification which disparately affected retarded citizens. We take it as given that the Moreno and Cleburne references to Congressional desire to harm an unpopular group apply also to a school administrator’s decision to deny employment to an applicant. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957) (State cannot exclude person from occupation in contravention of Fourteenth Amendment Equal Protection clause). See also Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886) (Equal Protection clause applies to discriminatory administration of facially neutral statute). Accordingly, Plaintiff contends that Defendant’s bare desire to harm homosexuals by denying him the full-time position at Wichita North violated equal protection principles clearly established in Moreno and Cle-burne.
Plaintiff stresses that Defendant did not offer a rationale in district court for denying him the full-time position based on a perceived homosexual status. Therefore, Plaintiff argues, the decision was per se invidious discrimination against homosexuals in violation of the general principles established in Moreno and Cleburne, Plaintiff misapplies the qualified immunity standard, however. It was not Defendant’s burden to demonstrate that his alleged conduct did not violate clearly established law. Rather it was Plaintiffs burden “to demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant’s actions were clearly prohibited.” Hannula, 907 F.2d at 131. Rather than a survey of the generalized rational basis test as applied in Moreno and Cle-burne, we think the “substantial correspondence” test at a minimum requires an examination of how courts have treated classifications affecting homosexuals, for the unlawfulness of the alleged activity must be “apparent” in light of pre-existing law before Defendant can be forced to endure the burdens associated with trial.
Examining the case law as it existed in 1988, we do not find a clearly established line of authority proscribing an adverse action against civilian job applicants based on homosexual or perceived homosexual orientation. In 1985, Justice Brennan aptly described the state of the law in this area: “[wjhether constitutional rights are infringed in sexual preference eases, and whether some compelling state interest can be advanced to permit their infringement, are important questions that this Court has never addressed, and which have left lower courts in some disarray.” Rowland v. Mad River Local School District, 470 U.S. 1009, 1015-16, 105 S.Ct. 1373, 1378, 84 L.Ed.2d 392 (1985) (Brennan, J., dissenting from the denial of certiorari). The appeals court in Rowland reversed a jury verdict in favor of a bisexual high school guidance counsel- or who had been discharged from employment because she had expressed her sexual orientation. Regarding her equal protection claim, the appeals court reversed on plain error grounds because she had failed to present “evidence of how other employees with different sexual preferences were treated.” 730 F.2d 444, 450 (6th Cir.1984). Justice Brennan viewed this holding as a transparent effort to evade the central question in the case: “may a State dismiss a public employee based on her sexual status alone?” 470 U.S. at 1011, 105 S.Ct. at 1375. Justice Brennan further noted that the court of appeals had answered this question in the affirmative by reversing the jury’s verdict. Id. at 1017-18, 105 S.Ct. at 1379.
Soon after Justice Brennan’s dissent from the denial of certiorari in Rowland, the Court held in Bowers v. Hardwick, 478 U.S. 186, 194, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986) that homosexual sodomy was not a fundamental right under a Fourteenth Amendment substantive due process analysis. Plaintiff argues that Hardwick is inapposite because it dealt with a substantive due process analysis whereas his claim is based on the equal protection clause. For purposes of qualified immunity, however, we need not decide how Hardwick affects equal protection claims; we need only note that courts have reached differing conclusions on the issue. See, e.g., Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989) (“If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes.”), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989) (“After Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm.”), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990); Padula v. Webster, 822 F.2d 97, 103 (D.C.Cir.1987) (“There can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”). But see Pruitt v. Cheney, 963 F.2d 1160, 1166 n. 5 (9th Cir.1992) (reviewing status-based discrimination against homosexuals under an active rational basis review, distinguishing Hard-wick as conduct based discrimination); High Tech Gays v. Defense Indust. Securi ty Clearance Office, 895 F.2d 563, 573 (9th Cir.1990) (same).
Plaintiff argues that, even though the cases interpreting Hardwick have reached differing results on the level of scrutiny applied to classifications based on homosexual conduct or status, each court applied at least the minimal rational basis test of Moreno and Cleburne. We agree, and pri- or to Hardwick we twice applied rational basis review to classifications which disparately affected homosexuals. See Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir.1984); National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir.1984), aff'd by an equally divided court, 470 U.S. 903, 105 S.Ct. 1858, 84 L.Ed.2d 776 (1985). The Supreme Court, however, held in Hardwick that the community’s notions of morality were sufficient to provide a rational basis for the statute. Id. 478 U.S. at 196, 106 S.Ct. at 2846. See also Barnes v. Glenn Theatre, Inc., — U.S. -, -, 111 S.Ct. 2456, 2468, 115 L.Ed.2d 504 (1991) (Scalia, J., concurring) (“In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis.”). Although the Hardwick Court did not deal with an equal protection claim, for qualified immunity purposes we think its holding, and the general state of confusion in the law at the time, cast enough shadow on the area so that any unlawfulness in Defendant’s actions was not “apparent” in 1988. And we do not find Swift, 649 F.Supp. 596, which formed the basis of the district court’s holding in this case, to clarify the law. Therefore, we hold that Defendant is entitled to qualified immunity.
III.
At issue next is whether Defendant may be held liable — i.e. whether District 259 may be held liable — for damages resulting from the suit brought against him in his official capacity. Section 1983 liability for the single act of an employee may not be imposed on a local government entity under a respondeat superior theory. Monell v. City of New York Dep’t of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Rather, such liability may be imposed only if the employee possesses “final authority” under state law to establish policy with respect to the challenged action. See Jett v. Dallas Indep. School Dist., 491 U.S. 701, 736-38, 109 S.Ct. 2702, 2722-23, 105 L.Ed.2d 598 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84, 106 S.Ct. 1292, 1299-300, 89 L.Ed.2d 452 (1986); Ware v. Unified School District No. 492, 902 F.2d 815, 817 (10th Cir.1990). Whether Defendant possessed such “final authority” is a question of state law. Ware, 902 F.2d at 817. We review the denial of summary judgment on this issue under the same standard as the district court. Osgood v. State Farm Mut. Auto Ins., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
This issue is controlled by our decision in Ware. In Ware we interpreted Kansas law and held that final hiring authority in the Kansas school system rests in the school N ;rds. 902 F.2d at 818 (citing Kan.Stat.Ann. § 72-8202c (1985)). Furthermore, we held that the school boards had no statutory authority to delegate hiring authority to subordinates. Id. (citing Hobart v. Board of Educ. of Unified School Dist. No. 309, 230 Kan. 375, 634 P.2d 1088, 1094 (1981)). Therefore, in this case it is beyond dispute that Defendant, as principal of Wichita North, did not have “final authority” under Kansas law to hire teachers. In Ware, however, we noted “that lawfully empowered decisionmakers cannot insulate themselves from liability under section 1983 by knomngly allowing a subordinate to exercise final policymaking authority vested by law in the decision-makers.” Id. (citing Praprotnik, 485 U.S. at 126-27, 108 S.Ct. at 926.) (emphasis in original). This type of delegation “arises when a subordinate’s decision is couched as a policy statement expressly approved by the policymaking entity, or when the decision manifests a custom or usage of which the entity must have been aware.” Id. (citing Praprotnik, 485 U.S. at 130, 108 S.Ct. at 927-28). Plaintiff does not contend that Defendant’s decision was couched in terms of a policy statement. Rather, he contends that District 259 delegated hiring authority to Defendant by “custom or usage,” noting that the district court found that Defendant and other principals had virtual de facto hiring authority. The district court anchored its summary judgment determination on this finding, although it did not discuss Kansas law. 759 F.Supp. at 1553.
The district court noted that “[ujltimate hiring decisions rarely conflict with the decision of the school principals] [in District 259].” Id. “Simply going along with discretionary decisions made by one’s subordinates, however, is not a delegation to them of the authority to make policy.” Praprotnik, 485 U.S. at 130, 108 S.Ct. at 927-28. Delegation must be absolute to give rise to the “final authority.” If the board retains the authority to review, even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur. See id. See also Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir.1988) (“A clear message from Praprotnik is that an incomplete delegation of authority — i.e., the right of review is retained — will not result in municipal liability, whereas an absolute delegation of authority may result in liability on the part of the municipality.”), cert. denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 565 (1989); Worsham v. City of Pasadena, 881 F.2d 1336, 1341 (5th Cir.1989) (citing Williams v. Butler). The uncontroverted record on summary judgment in this case demonstrates that the Board retained the right to review hiring decisions made by District 259 principals, including Defendant. See 759 F.Supp. at 1553 (“The principal’s discretion in hiring is not unfettered.”). Therefore, we do not find a delegation of policymaking authority. Summary judgment should have issued in favor of Defendant on the official capacity claim.
REVERSED AND REMANDED.
. Although the district court cited only to Swift, we note that there are earlier opinions from the 1960’s by the D.C. Circuit which are consistent with Swift. See Norton v. Macy, 417 F.2d 1161 (D.C.Cir.1969) (mere homosexual conduct not grounds for dismissal from federal employment; instead the government must show a relationship between homosexuality and a negative effect on the efficiency of the government's service); Scott v. Macy, 349 F.2d 182 (D.C.Cir.1965) (government’s refusal to hire plaintiff on grounds that he was homosexual was insufficient basis in absence of specific evidence of misconduct and the relationship of misconduct or immorality to occupation competence or fitness).
. The district court agreed, although it relied only on Swift:
The present case provides no indication of any justification for the defendant’s determination to discriminate on the basis of sexual orientation, nor, as the court has noted earlier, has the defendant attempted to supply one.... Accepting as true the evidence offered by the plaintiff, as the court must under the relevant standards of review, the defendant acted arbitrarily, without any rational purpose, based upon personal prejudices against homosexuals.
759 F.Supp. at 1553 (citing Swift, 649 F.Supp. at 602).
. Given our disposition of this case on immunity grounds, we need not address the district court’s holding that classifications based on homosexual status as opposed to homosexual conduct are inherently suspect. 759 F.Supp. at 1546-51. We note, however, that the court failed to cite Rich, in which we held that a status-based classification was not inherently suspect. Were we to have the issue before us, we would not be entitled as a three-judge panel to overrule circuit precedent. United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990).
. Plaintiff's official capacity action against Defendant is in reality an action against District 259, and District 259 has had notice and an opportunity to respond. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) ("As long as the government entity receives notice and opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."). District 259 may not plead qualified immunity. See Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1418-19, 63 L.Ed.2d 673 (1979).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
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