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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.
MINNICK v. MISSISSIPPI
No. 89-6332.
Argued October 3, 1990
Decided December 3, 1990
Kennedy, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 156. Souter, J., took no part in the consideration or decision of the ease.
Floyd Abrams argued the cause for petitioner. With him on the briefs were Anthony Paduano and Clive A. Stafford Smith.
Marvin L. White, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Mike Moore, Attorney General.
David W. DeBruin and Donald B. Verrilli, Jr., filed a brief for the Mississippi State Bar as amicus curiae urging reversal.
Solicitor General Starr, Assistant Attorney General Dennis, Deputy Solicitor General Br-yson, and Nina Goodman filed a brief for the United States as amicus curiae urging affirmance.
Justice Kennedy
delivered the opinion of the Court.
To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U. S. 436, 474 (1966). We reinforced the protections of Miranda in Edwards v. Arizona, 451 U. S. 477, 484-485 (1981), which held that once the accused requests counsel, officials may not reinitiate questioning “until counsel has been made available” to him. The issue in the case before us is whether Edwards’ protection ceases once the suspect has consulted with an attorney.
Petitioner Robert Minnick and fellow prisoner James Dyess escaped from a county jail in Mississippi and, a day later, broke into a mobile home in search of weapons. In the course of the burglary they were interrupted by the arrival of the trailer's owner, Ellis Thomas, accompanied by Lamar Lafferty and Lafferty’s infant son. Dyess and Minnick used the stolen weapons to kill Thomas and the senior Lafferty. Minnick’s story is that Dyess murdered one victim and forced Minnick to shoot the other. Before the escapees could get away, two young women arrived at the mobile home. They were held at gunpoint, then bound hand and foot. Dyess and Minnick fled in Thomas’ truck, abandoning the vehicle in New Orleans. The fugitives continued to Mexico, where they fought, and Minnick then proceeded alone to California. Minnick was arrested in Lemon Grove, California, on a Mississippi warrant, some four months after the murders.
The confession at issue here resulted from the last interrogation of Minnick while he was held in the San Diego jail, but we first recount the events which preceded it. Minnick was arrested on Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and after the arrest. The day following the arrest, Saturday, two Federal Bureau of Investigation (FBI) agents came to the jail to interview him. Petitioner testified that he refused to go to the interview, but was told he would “have to go down or else.” App. 45. The FBI report indicates that the agents read petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused to sign a rights waiver form, however, and said he would not answer “very many” questions. Minnick told the agents about the jailbreak and the flight, and described how Dyess threatened and beat him. Early in the interview, he sobbed “[i]t was my life or theirs,” but otherwise he hesitated to tell what happened at the trailer. The agents reminded him he did not have to answer questions without a lawyer present. According to the report, “Minnick stated ‘Come back Monday when I have a lawyer,’ and stated that he would make a more complete statement then with his lawyer present.” App. 16. The FBI interview ended.
After the FBI interview, an appointed attorney met with petitioner. Petitioner spoke with the lawyer on two or three occasions, though it is not clear from the record whether all of these conferences were in person.
On Monday, August 25, Deputy Sheriff J. C. Denham of Clarke County, Mississippi, came to the San Diego jail to question Minnick. Minnick testified that his jailers again told him he would “have to talk” to Denham and that he “could not refuse.” Id., at 45. Denham advised petitioner of his rights, and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the escape and then proceeded to describe the events at the mobile home. According to petitioner, Dyess jumped out of the mobile home and shot the first of the two victims, once in the back with a shotgun and once in the head with a pistol. Dyess then handed the pistol to petitioner and ordered him to shoot the other victim, holding the shotgun on petitioner until he did so. Petitioner also said that when the two girls arrived, he talked Dyess out of raping or otherwise hurting them.
Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the FBI or other police officers, including Denham. The trial court denied the motion with respect to petitioner’s statements to Denham, but suppressed his other statements. Petitioner was convicted on two counts of capital murder and sentenced to death.
On appeal, petitioner argued that the confession to Den-ham was taken in violation of his rights to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court rejected the claims. With respect to the Fifth Amendment aspect of the case, the court found “the Edwards bright-line rule as to initiation” inapplicable. 551 So. 2d 77, 83 (1988). Relying on language in Edwards indicating that the bar on interrogating the accused after a request for counsel applies “‘until counsel has been made available to him,’” ibid., quoting Edwards v. Arizona, supra, at 484-485, the court concluded that “[s]ince counsel was made available to Minnick, his Fifth Amendment right to counsel was satisfied.” 551 So. 2d, at 83. The court also rejected the Sixth Amendment claim, finding that petitioner waived his Sixth Amendment right to counsel when he spoke with Denham. Id., at 83-85. We granted certiorari, 495 U. S. 903 (1990), and, without reaching any Sixth Amendment implications in the case, we decide that the Fifth Amendment protection of Edwards is not terminated or suspended by consultation with counsel.
In Miranda v. Arizona, supra, at 474, we indicated that once an individual in custody invokes his right to counsel, interrogation “must cease until an attorney is present”; at that point, “the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.” Edwards gave force to these admonitions, finding it “inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” 451 U. S., at 485. We held that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id., at 484. Further, an accused who requests an attorney, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id., at 484-485.
Edwards is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U. S. 344, 350 (1990). See also Smith v. Illinois, 469 U. S. 91, 98 (1984). The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures. Edwards conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms.
The merit of the Edwards decision lies in the clarity of its command and the certainty of its application. We have confirmed that the Edwards rule provides “ ‘clear and unequivocal’ guidelines to the law enforcement profession.” Arizona v. Roberson, 486 U. S. 675, 682 (1988). Cf. Moran v. Burbine, 475 U. S. 412, 425-426 (1986). Even before Edwards, we noted that Miranda’s “relatively rigid requirement that interrogation must cease upon the accused’s request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” Fare v. Michael C., 442 U. S. 707, 718 (1979). This pre-Edwards explanation applies as well to Edwards and its progeny. Arizona v. Roberson, supra, at 681-682.
The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes his right to counsel “is not subject to further interrogation by the authorities until counsel has been made available to him . . . .” 451 U. S., at 484-485. We do not interpret this language to mean, as the Mississippi court thought, that the protection of Edwards terminates once counsel has consulted with the suspect. In context, the requirement that counsel be “made available” to the accused refers to more than an opportunity to consult with an attorney outside the interrogation room.
In Edwards, we focused on Miranda's instruction that when the accused invokes his right to counsel, “the interrogation must cease until an attorney is present,” 384 U. S., at 474 (emphasis added), agreeing with Edwards’ contention that he had not waived his right “to have counsel present during custodial interrogation.” 451 U. S., at 482 (emphasis added). In the sentence preceding the language quoted by the Mississippi Supreme Court, we referred to the “right to have counsel present during custodial interrogation,” and in the sentence following, we again quoted the phrase “ ‘interrogation must cease until an attorney is present’” from Miranda. 451 U. S., at 484-485 (emphasis added). The full sentence relied on by the Mississippi Supreme Court, moreover, says: “We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Ibid. (emphasis added).
Our emphasis on counsel’s presence at interrogation is not unique to Edwards. It derives from Miranda, where we said that in the cases before us “[t]he presence of counsel. . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the [Fifth Amendment] privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.” 384 U. S., at 466. See Fare v. Michael C., supra, at 719. Our cases following Edwards have interpreted the decision to mean that the authorities may not initiate questioning of the accused in counsel’s absence. Writing for a plurality of the Court, for instance, then-JusTiCE Rehnquist described the holding of Edwards to be “that subsequent incriminating statements made without [Edwards’] attorney present violated the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution.” Oregon v. Bradshaw, 462 U. S. 1039, 1043 (1983) (emphasis added). See also Arizona v. Roberson, supra, at 680 (“The rule of the Edwards case came as a corollary to Miranda’s admonition that ‘[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present’ ”); Shea v. Louisiana, 470 U. S. 51, 52 (1985) (“In Edwards v. Arizona, . . . this Court ruled that a criminal defendant’s rights under the Fifth and Fourteenth Amendments were violated by the use of his confession obtained by police-instigated interrogation — without counsel present — after he requested an attorney”). These descriptions of Edwards’ holding are consistent with our statement that “[preserving the integrity of an accused’s choice to communicate with police only through counsel is the essence of Edwards and its progeny.” Patterson v. Illinois, 487 U. S. 285, 291 (1988). In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.
We consider our ruling to be an appropriate and necessary application of the Edwards rule. A single consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights, or from the coercive pressures that accompany custody and that may increase as custody is prolonged. The case before us well illustrates the pressures, and abuses, that may be concomitants of custody. Petitioner testified that though he resisted, he was required to submit to both the FBI and the Denham interviews. In the latter instance, the compulsion to submit to interrogation followed petitioner’s unequivocal request during the FBI interview that questioning cease until counsel was present. The case illustrates also that consultation is not always effective in instructing the suspect of his rights. One plausible interpretation of the record is that petitioner thought he could keep his admissions out of evidence by refusing to sign a formal waiver of rights. If the authorities had complied with Minnick’s request to have counsel present during interrogation, the attorney could have corrected Minnick’s misunderstanding, or indeed counseled him that he need not make a statement at all. We decline to remove protection from police-initiated questioning based on isolated consultations with counsel who is absent when the interrogation resumes.
The exception to Edwards here proposed is inconsistent with Edwards’ purpose to protect the suspect’s right to have counsel present at custodial interrogation. It is inconsistent as well with Miranda, where we specifically rejected respondent’s theory that the opportunity to consult with one’s attorney would substantially counteract the compulsion created by custodial interrogation. We noted in Miranda that “[e]ven preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” 384 U. S., at 470 (citation omitted).
The exception proposed, furthermore, would undermine the advantages flowing from Edwards’ “clear and unequivocal” character. Respondent concedes that even after consultation with counsel, a second request for counsel should reinstate the Edwards protection. We are invited by this formulation to adopt a regime in which Edwards’ protection could pass in and out of existence multiple times prior to arraignment, at which point the same protection might reattach by virtue of our Sixth Amendment jurisprudence, see Michigan v. Jackson, 475 U. S. 625 (1986). Vagaries of this sort spread confusion through the justice system and lead to a consequent loss of respect for the underlying constitutional principle.
In addition, adopting the rule proposed would leave far from certain the sort of consultation required to displace Edwards. Consultation is not a precise concept, for it may encompass variations from a telephone call to say that the attorney is en route, to a hurried interchange between the attorney and client in a detention facility corridor, to a lengthy in-person conference in which the attorney gives full and adequate advice respecting all matters that might be covered in further interrogations. And even with the necessary scope of consultation settled, the officials in charge of the case would have to confirm the occurrence and, possibly, the extent of consultation to determine whether further interrogation is permissible. The necessary inquiries could interfere with the attorney-client privilege.
Added to these difficulties in definition and application of the proposed rule is our concern over its consequence that the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not. There is more than irony to this result. There is a strong possibility that it would distort the proper conception of the attorney’s duty to the client and set us on a course at odds with what ought to be effective representation.
Both waiver of rights and admission of guilt are consistent with the affirmation of individual responsibility that is a principle of the criminal justice system. It does not detract from this principle, however, to insist that neither admissions nor waivers are effective unless there are both particular and systemic assurances that the coercive pressures of custody were not the inducing cause. The Edwards rule sets forth a specific standard to fulfill these purposes, and we have de-dined to confine it in other instances. See Arizona v. Roberson, 486 U. S. 675 (1988). It would detract from the efficacy of the rule to remove its protections based on consultation with counsel.
Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Since petitioner made a specific request for counsel before the interview, the police-initiated interrogation was impermissible. Petitioner’s statement to Denham was not admissible at trial.
The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Souter took no part in the consideration or decision of this case.
Question: What is the court whose decision the Supreme Court reviewed?
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211. Court of Private Land Claims
Answer:
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songer_usc2
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50
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What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 50. 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.
BROWNELL, Atty. Gen. v. KETCHAM WIRE & MFG. CO.
No. 13718.
United States Court of Appeals Ninth Circuit.
Feb. 19, 1954.
Paul V. Myron, Deputy Director, Office of Alien Property, Washington, D. C., James D. Hill, George B. Searls, Westley W. Silvian, Attorneys, Department of Justice, Washington, D. C., Charles P. Moriarty, U. S. Atty., Seattle, Wash., John E. Belcher, Asst. U. S. Atty., Seattle, Wash., Val Hammaek, Sp. Asst, to Atty. Gen., for appellant.
Skeel, McKelvy, Henke, Evenson & Uhlmann, W. Paul Uhlmann, William H. Gates, Jr., Altha P. Curry, Seattle, Wash., for appellee.
Before HEALY and BONE, Circuit Judges, and JAMES M. CARTER, District Judge.
JAMES M. CARTER, District Judge.
This appeal raises questions concerning the jurisdiction of the District Court under the Trading With The Enemy Act, Oct. 6, 1917, c. 106, § 1; 40 Stat. 411 as amended; 50 U.S.C.A.Appendix, §§ 1-40; interpretation of appellee’s patent licensing contract with a German national and the impact of the antitrust laws of the United States on such contract.
Motions for summary judgment supported by affidavits were made by both appellant and appellee, and the basic facts are not in dispute. No findings were made. We draw the facts hereafter related from the admitted facts of the pleadings, the undisputed affidavits, and correspondence between the parties set up as exhibits to the motions.
The appellee and plaintiff [hereafter called Ketcham] is a corporation of the State of Washington. It is not an “enemy” or “ally of the enemy.” On December 23, 1938, there was delivered to Ketcham an option agreement executed by Oscar Kind, a German national, covering two U. S. patents, and two applica* tions for U. S. patents relating to wire tieing and wire strapping methods, devices and machines. The patents in question were the product of German invention, and owned by Oscar Kind.
Ketcham paid $1000 to Kind on receipt of the option, and within the time specified and an extension thereof, paid an additional $4000 on or about June 30, 1939. Ketcham thus secured an exclusive licensing agreement covering the patents and patent applications [hereinafter referred to as the “patents”] within the United States and its territories.
In return for the exclusive license, Ketcham was obligated to pay royalties based on the amount of wire sold with the inventions covered by the licensing agreement, and on the sale of machines manufactured under the patents. Royalty provisions also gave the licensor, Kind, the right to cancel in the event that sales did not produce $2000 royalty per year within two years. Kind promised, among other things, to supply Ketcham with plans and specifications and a sample of an automatic wire tieing machine. Due to the intervention of the war, this machine and the plans and specifications were never delivered to Ketcham.
After describing the patents, the agreement read as follows: “I, [Kind], offer you the sole and exclusive right to manufacture, sell, loan, give in sub-license or dispose of otherwise in the United States and its territories and possessions, the articles covered by said patents and applications for patents, and all improvements thereon at the following conditions * * * ”; and provided in paragraph 12, “It is understood and' agreed that you will not sell or export the articles covered by the aforesaid patents and patent applications to any foreign country, and that I will not import nor permit the importation of said articles into the United States of America, its territories and posséssions.”
The patents were vested by the Alien Property Custodian by vesting orders No. 68 and No. 201 [7 Fed.Reg. 6181, 8 Fed.Reg. 625], dated respectively July 30, 1942 and October 2, 1942. All right, title and interest of Kind in the license agreement was vested by the Alien Property Custodian by vesting order No. 3998 [9 Fed.Reg. 10652] on August 8, 1944.
Pursuant to inquiry by Ketcham, the Alien Property Custodian on November 5, 1942, enclosed .copies of two forms which could be filed with his office— Form APC-1, issued pursuant to General Order No. 4, [Fed.Reg. 5539] and Form APC-2, issued pursuant to General Order No. 2, [7 Fed.Reg. 4634.]
On November 5, 1942, the Alien Property Custodian also informed Ketcham that the Custodian was willing to consider an informal claim to any rights it-might have and that if action satisfactory to Ketcham was not taken, Ketcham could then file a claim on APC-1. On December 1, 1942, Ketcham filed form APC-2. The government contends Ketcham never filed form APC-1.
By letter of July 1, 1949, the government advised Ketcham that it had concluded that the licensing agreement violated the Sherman Act, 15 U.S.C.A. § 1 et seq., that rights claimed by appellee under the licensing agreement were un-enforcible and that the government considered itself “at liberty to take such action with respect to the patents as appear to be desirable in the public interest, including the grant of revocable,non-exclusive, royalty free licenses thereunder.”
On September 20, 1950, the government informed Ketcham of its intention to terminate the agreement as of December 31, 1950, for failure to pay the minimum royalties provided for in the agreement.
This action was commenced November 27, 1950, before the date of the announced termination.
Upon granting Ketcham’s motion for summary judgment, the district court entered a judgment which we summarize as follows:
(1) That the agreement between Kind and Ketcham was an enforcible agreement, had not been abandoned or terminated by the parties, and was still in force and effect.
(2) That the agreement did not violate the antitrust laws of the United States. That if paragraph 12 of the agreement could be said to violate the antitrust laws, the paragraph was sev-erable from the rest of the agreement and the lawful parts would be given effect.
(3) That forfeiture or termination of the agreement for failure to pay minimum royalties could be effected by the licensor or his successors in interest only for failure to pay minimum royalties during the particular two year period prior to the effective termination date.
(4) That the furnishing by the li-censor of models and complete drawings of each of the patented articles were conditions precedent to the obligation to pay royalties.
(5) That the defendant as successor to the Alien Property Custodian and his predecessors did not by their acts or their letter of September 20, 1950, terminate Ketcham’s rights under the agreement.
(6) That Ketcham is, and at all times since June 30, 1939, has been, the sole and exclusive licensee in the United States for the patents involved.
(7) That the defendant and all persons claiming by, through or under him or his predecessors in interest, are directed to recognize Ketcham as such sole and exclusive licensee.
The appellant now contends:
(1) That Ketcham failed to comply with Section 9(a) of the Trading With The Enemy Act, in that it did not file a claim for the return of vested property;
(2) The government did not vest any property or rights of Ketcham and that therefore the court below lacked jurisdiction to enter a judgment under the Trading With The Enemy Act;
(3) That the reliance by the court below on the Declaratory Judgment Act was improper;
(4) That the agreement provided for a division of markets which was a per se violation of the antitrust laws and that the agreement was therefore unen-forcible.
I.
Notice under Section 9(a) of the Act.
The filing of a notice of claim for the return of vested property under Section 9(a) of the Act is a condition' precedent to maintaining the suit. 50 U.S.C. A. Appendix, § 9(a); Central Union Trust Co. of New York v. Garvan, 1921, 254 U.S. 554, 567-568, 41 S.Ct. 214, 65 L.Ed. 403; Panatech Corp. v. Carl Zeiss, Inc., D.C.S.D.N.Y.1953, 110 F.Supp. 664, 665.
Appellant contends such a claim was never filed. But the complaint alleges in Paragraph XII that Ketcham, on or about December 1, 1942, “presented a claim for its interest as herein alleged in the patents above referred to under The Trading With The Enemy Act, 50 U.S. C.A.Appendix, § 9 and § 32(a). That the claim was presented to the Alien Property Custodian on forms prescribed by said Alien Property Custodian.” The answer denies the filing of a claim under Section 32(a) of the Act and admits the other allegations of Paragraph XII of the complaint. Thus, the government’s pleading admits the filing of a claim under Section 9(a) of the Act.
The Alien Property Custodian by press release dated February 23, 1943, announced that, “* * * An American licensee under a vested patent or patent application, need not file a form APC-1 to assert his claim to rights under his license.” The government includes this press release as part of its showing on a motion for summary judgment. We can only conclude that either the notice required under Section 9(a) was given as admitted by the pleadings, or its equivalent, notice by form APC-2 was given as is shown clearly by the record, or that the notice was waived. In any event we find no merit to this contention by appellant.
II.
Vesting or seizure of Ketcham’s rights.
It is admitted that the Alien Property Custodian vested in the United States all the right and interest of Oscar Kind in the four patents and in the licensing agreement sued upon. But appellant contends the orders “did not vest and did not purport to vest” any rights of Ketcham.
It makes little difference what name or language is used. We inquire into what was done and the result accomplished. After the vesting orders, the Alien Property Custodian and his successor, the Attorney General, did the following things:
(1) Advised Ketcham that the licensing agreement was unenforcible because it violated the Sherman Act, [letter of 7/1/49];
(2) Advised Ketcham of its election and intention to terminate the agreement on December 31, 1950, pursuant to Paragraphs 15 and 16 of the agreement, but stating this was without prejudice to its position that the agreement was illegal, [letter of 9/20/50] ;
(3) Granted non-exclusive royalty-free licenses to the patents to various manufacturers for a nominal consideration.
Neither the statements by the Alien Property Custodian (or his successor, the Attorney General) that he considered the licensing agreement illegal and unenforcible, nor his statement that he intended to terminate the agreement, would constitute a vesting.
Since the government stood in Kind’s shoes after the vesting orders, it had all of Kind’s rights. If by the exercise of Kind’s rights, particularly the alleged right to terminate for failure to pay royalties, Ketcham’s rights under the agreements were affected or became valueless, this was not a vesting of Ketcham’s rights or a taking of them by the government. The granting of rights to others following a valid termination would not be wrongful and Ketcham could not complain. But the government’s alleged right to terminate was determined adversely to it in the court below, and that determination is not contested in this appeal.
The government, contending the licensing agreement was illegal and unen-forcible under the Sherman Act, granted licenses to others in derogation of Ket-cham’s exclusive right under the licensing agreement. This was an exercise of dominion, a taking, and had all the earmarks of a “vesting” unless the government had a right to do so, based on the ground that the licensing agreement was illegal.
It is argued that since the vesting order contains no language expressly indicating a vesting of Ketcham’s rights, that regardless of the government’s action, there had been no vesting. Section 9(a) of the Act describes property “transferred * * * [or] delivered * * * to the Alien Property Custodian or seized by him hereunder and held by him * * Section 7 (c) of the Act, provides that:
“The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or required so to be, or seized by him shall be that provided by the terms of this Act * *
The Trading With The Enemy Act “would be of doubtful constitutionality if the remedy given were (sic) inadequate to secure to the nonenemy owner either the return of the property or compensation for it.” Becker Steel Co. v. Cummings, 1935, 296 U.S. 74, at page 79, 56 S.Ct. 15, at page 18, 80 L.Ed. 54. To the same effect, Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 649.
Stoehr v. Wallace, 1921, 255 U.S. 239, stated at page 246, 41 S.Ct. 293, at page 296, 65 L.Ed. 604:
“Thus there is provision for the return of property mistakenly sequestered; and we have no hesitation in pronouncing it adequate, for it enables the claimant as of right, to obtain a full hearing on his claim in a court having power to enforce it if found meritorious.”
“The existence of a right upon the part of claimant to regain his wrongfully seized property, and to do so completely, is essential to the constitutionality of the Act.” Standard Oil Co. v. Markham, D.C.S.D.N.Y.1944, 57 F.Supp. 332, 334. “* * * care must be taken to make secure to ‘any person, not an enemy, or ally of enemy,’ as such categories are specified in the Act, the right to reclaim his property or to have just ‘compensation’ for it * * Sar-thou v. Clark, D.C.S.D.Cal.1948, 78 F.Supp. 139, 145.
“Section 9(a) must be broadly construed to give effect to its remedial purpose”. Becker Steel Co. v. Cummings, supra, 296 U.S. at page 80, 56 S.Ct. at page 18; Standard Oil Co. v. Markham, supra, 57 F.Supp. at page 334.
In N. V. Montan Export-Metaal, etc., v. United States, 1952, 102 F.Supp. 1016, the court said at pages 1018-1019, 122 Ct.Cl. 42:
“That mistaken seizures would occur because of circumstances unknown to the Alien Property Custodian was apparent, and accordingly Congress provided in § 9(a) a remedy for just such occurrences. Congress had the right to prescribe, as it did in § 9(a), the sole manner in which mistakes could be corrected, and we therefore think that plaintiff must pursue the remedy provided.”
The closest case we find is Leser v. McGranery, D.C.E.D.N.Y.1953, 112 F.Supp. 947. A beneficiary to insurance policies which had been vested was held to have stated a cause of action under Section 9 (a) of the Act even though her right was a contractual one, and the Custodian did not have physical possession of the policies. Inherent in the decision but not discussed, is the fact that the vesting order did not purport to vest her interest as a beneficiary.
Was there a seizure or a taking of appellee’s rights under the licensing agreement? We judge this question, not alone by what was stated in the vesting order. After the vesting order was issued the government purported to exercise dominion over Ketcham’s rights. The granting of licensing agreements to-others, in derogation of Ketcham’s exclusive licensing agreement was a vesting or a seizure under the Act unless the licensing agreement was illegal and unenforcible under the antitrust laws.
III.
The Jurisdiction of the District Court.
The government contends that the district court had no jurisdiction under the Trading With The Enemy Act to enter a declaratory judgment.
It is true that the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, is not a consent of the United States to be sued, and merely grants an additional remedy in cases where jurisdiction already exists in the court. Commercial Casualty Ins. Co. v. Fowles, 9 Cir. 1946, 154 F.2d 884, 165 A.L.R. 1068; Clark v. Memolo, 1949, 85 U.S.App.D.C. 65, 174 F.2d 978. Under Section 9(a) of the Trading With The Enemy Act, the “claimant may institute a suit in equity in * * * the district court of the United States for the district in which such claimant resides * * * to establish the interest, right, title, or debt so claimed * * Clearly, the court had jurisdiction of the parties and subject matter of the suit. Whether the court below correctly decided the case is not a jurisdictional question.
Furthermore, Ketcham’s complaint sought an injunction to enjoin the proposed termination of the agreement and to enjoin granting of further licenses under the patent to strangers. The decree of the court, in addition to declaring certain rights of the parties, provided that the Attorney General [then the party to the action and the successor of the Alien Property Custodian] be “directed to recognize the plaintiff Ket-cham Wire and Manufacturing Co., as such sole and exclusive licensee, with the rights above enumerated.” This language of decree goes further than a mere declaration of rights and is in substance a mandatory injunction.
We have heretofore pointed out that constitutionality of the Trading With The Enemy Act requires that the remedy to the non-enemy property owner be broad enough to give him adequate relief. The relief he seeks depends upon whether the thing seized is for example, a chattel subject to actual delivery, or an intangible right where the remedy would consist of compelling an assignment of the same, or an adjudication that the plaintiff was the owner.
We hold that the power to grant judgment on behalf of a non-enemy property owner “establishing his right” is within the jurisdiction of a district court under the Trading With The Enemy Act.
IV.
The licensing agreement is not illegal or unenforcible under the antitrust laws.
It is a fundamental rule of patent law that the owner of a patent may license another and prescribe territorial limitations. 35 U.S.Code, § 47 provided he may “grant and convey an exclusive right under his application for patent or patent to the whole or any specified part of the United States.” Substantially similar language was carried over in to 35 U.S.Code, § 261 by the revision of the patent laws. Act of July 19, 1952, c. 950, § 1, 66 Stat. 810. These sections rest on the provisions of the Constitution in Art. 1, § 8, Clause 8. Patent laws therefore are equally as valid as antitrust laws.
The government cases are not in point in the case at bar.
It is clear that agreements to divide a market are violations of the antitrust laws. Addyston Pipe & Steel Co. v. U. S., 1899, 175 U.S. 211, 241, 20 S.Ct. 96, 44 L.Ed. 136; Continental Wall Paper Company v. Louis Voight & Sons Co., 1909, 212 U.S. 227, 261-263, 29 S. Ct. 280, 53 L.Ed. 486. But these cases do not concern the exercise of a patent monopoly.
U. S. v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, was a case involving the monopolizing of a market but not by use of patents.
“It is not the monopoly of the patent that is invalid. It is the improper use of that monopoly.” U. S. v. Line Material Co., 1948, 333 U.S. 287, 310, 68 S.Ct. 550, 562, 92 L.Ed. 701.
The courts have condemned many practices in connection with the use of patents, e. g.:
(a) Use of invalid patents in price fixing:
McGregor v. Westinghouse Electric & Mfg. Co., 1947, 329 U.S. 402, 407, 67 S. Ct. 421, 91 L.Ed. 380.
(b) Cross-licensing of patents:
U. S. v. Line Material Co., supra.
(c) Attempts to extend the scope of patent monopoly:
Motion Picture Patents Co. v. Universal Film Mfg. Co., 1917, 243 U.S. 502, 516, 37 S.Ct. 416, 61 L.Ed. 871; Carbice Corp of America v. American Patents Development Corp., 1931, 283 U.S. 27, 31, 51 S.Ct. 334, 75 L.Ed. 819.
(d) Illegal price fixing activities in connection with patents:
Sola Electric Co. v. Jefferson Electric Co., 1942, 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165; Edward Katzinger Co. v. Chicago Metallic Mfg. Co., 1947, 329 U. S. 394, 67 S.Ct. 416, 91 L.Ed. 374; McGregor v. Westinghouse Electric & Mfg. Co., supra; Pfotzer v. Aqua Systems, Inc., 2 Cir., 1947, 162 F.2d 779, falls within this category. There was also involved the claim of royalties on unpatented articles.
(e) Tieing patents to unpatented devices or processes:
Ethyl Gasoline Corp. v. U. S., 1940, 309 U.S. 436, 456, 60 S.Ct. 618, 84 L.Ed. 852; Mercoid Corp. v. Mid-Continent Investment Co., 1944, 320 U.S. 661, 667-668, 64 S.Ct. 268, 88 L.Ed. 376; Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 1944, 320 U.S. 680, 684, 64 S. Ct. 278, 88 L.Ed. 396.
(f) Seeking to extend the effect of an expired patent:
U. S. v. Timken Roller Bearing Co., D. C.Ohio, 1949, 83 F.Supp. 284, 313-314. Affirmed Timken Roller Bearing Co. v. U. S., 1951, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199.
(g) Misuse of patents:
U. S. v. National Lead Co., 1947, 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; McCullough v. Kammerer Corp., 9 Cir., 1948, 166 F.2d 759.
The licensing agreement in our case does not come within the areas proscribed in the above cases relied on by the government.
Paragraph 12 of the licensing agreement heretofore set forth in this opinion, consists of two parts: First, “* * that you (Ketcham) will not sell or export the articles covered by the aforesaid patent and patent applications to any foreign country * * This was an agreement by Ketcham to honor the territorial limits of the license granted, and was lawful. The second part reads, “and that I, (Kind) will not import, nor permit the importation of said articles into the United States of America, its territories and possessions * * This was an agreement by Kind that the license granted Ketcham was an exclusive license. We cannot find anything illegal or unenforcible in paragraph 12. Exclusive territorial licenses granted under patents are old in the law. Unless they run afoul of the antitrust laws for other reasons, and based on additional facts as shown in the examples cited above, they are legal. U. S. v. General Electric Co., 1926, 272 U. S. 476, 489, 47 S.Ct. 192, 71 L.Ed. 362; Becton, Dickinson & Co. v. Eisele & Co., 6 Cir., 1936, 86 F.2d 267; certiorari denied 300 U.S. 667, 57 S.Ct. 509, 81 L.Ed. 874.
The basic holding in the General Electric case, supra, as to the right to a patent monopoly has not been questioned. That portion of the opinion involving price fixing, has resulted in discussion in subsequent opinions, e. g., U. S. v. Line Material Co., supra. But price fixing is not involved in our case.
Paragraph 14 of the licensing agreement, provides: “I, (Kind) undertake to give you (Ketcham) the first option on all and every new invention or improvement I shall make in future in the special Art of wire tieing tools and machines.” At most Ketcham had an option which would permit him to bargain for the new patents. Unless Ketcham met Kind’s prices and terms as to royalty payment, the option would avail him nothing. This probably meant' nothing more than that between equal bids for the new patents or device, Ketcham’s bid would be favored.
We hold that the licensing agreement is not illegal or unenforcible. It follows that the appellant unlawfully exercised control and dominion over Ketcham’s rights under the licensing agreement and that Ketcham was entitled to the relief granted by the trial court. The judgment is affirmed.
. Those patents were No. 2,019,570 — wire strapping for packages, with twisted tie, issued November 5, 1935; No. 2,129,063 wire tieing machine etc., issued September 6, 1938. Application, Serial No. 144,-101, devise for tensioning metal binding strips, on which patent No. 2,154,85.1 was issued on April 18, 1939; and patent application Serial No. 277,561 for a full automatic wire strapping machine on which patent No. 2,330,629 was issued on September 28, 1943.
. There was undisputed evidence in the record from which the trial court could and did hold that Kind was the owner of the patents, although title to one of them stood in the name of a German Company, owned and controlled by Kind.
. During World War I the Custodian “seized” property. By virtue of the 1941 amendment to the Act, during World War II property was “vested”. Section 9(a) applies to “vested” property as it did to that which was “seized”. See Markham v. Cabell, 1945, 326 U.S. 404, 411, 66 S. Ct. 193, 90 L.Ed. 165; Draeger Shipping Co. v. Crowley, D.C., S.D.N.Y.1943, 49 F.Supp. 215.
. The vesting orders were made by the Alien Property Custodian. Subsequently the record shows action by the “Office of Alien Property” and “Director, Office of Alien Property.” By Executive Order No. 9788, 50 U.S.C.A.Appendix, § 6 note [Oct. 15, 1946, 11 Red.Reg. 11981] the Attorney General succeeded to the duties and powers of the Alien Property Custodian. In this opinion the Alien Property Custodian, the Director, Office of Alien Property and the Attorney General will be referred to as the government.
. Both Section 9 and Section 32 of the Act refer to the filing of a claim. Section 9 concerns suits to recover property, while Section 32 concerns voluntary return of property by the Alien Property Custodian.
. APC-1 is the form provided by the Alien Property Custodian for notice under Section 9(a) of the Act, issued pursuant to General Order No. 4 [7 Fed.Reg. 5539.]
. Termination was to be based on the ground that minimum royalties of $2000 per 2 years period were not paid. The trial court found payment of royalties was excused by failure of Kind to supply the model automatic machine and the plans and specifications therefor. This bolding by the trial court is not contested on the appeal.
. Appellants concede that between July 1949 and September 20, 1950, the Attorney General issued three such licenses to others covering the patents in question.
. Here the court entertained a request for an injunction but denied it as unnecessary to protect plaintiff. The plaintiff claimed patents, and rights under patents and contracts -which apparently had been vested.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 50. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_opinstat
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America ex rel. William E. BAITY E-1152, Appellant, v. James F. MARONEY, Superintendent.
No. 18979.
United States Court of Appeals, Third Circuit.
Submitted on Briefs Dec. 11, 1970.
Decided Dec. 29, 1970.
William E. Baity, pro se.
James D. Crawford, Deputy Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., on the brief, for appellee.
Before ALDISERT, ADAMS, and ROSENN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Before us is an appeal from the district court’s denial of a writ of habeas corpus. Represented by counsel, the appellant in 1949 entered a guilty plea to a general charge of murder before a panel of three judges which made a finding of first degree murder and imposed a life sentence. He took no direct appeal from the finding and the sentence.
Seventeen years later, contending that his guilty plea had been unlawfully induced by a coerced confession, appellant filed a petition under the Pennsylvania Post Conviction Hearing Act. Testimony from both appellant and his trial counsel was received at an evidentiary hearing. The state court denied the petition, and the denial was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968).
Appellant then filed a habeas corpus petition in the district court, and a second evidentiary hearing was held at which the appellant and trial counsel again testified. The district court denied the petition.
We find no merit in any of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970).
In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden.
The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for heabeas corpus. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, appellant’s trial counsel testified that appellant did not tell him his confession was coerced. And both the state court and the district court, after separate evidentiary hearings, found no coercion.
The record indicates that the Pennsylvania felony-murder rule was explained to appellant by his counsel and suggests that appellant was induced to plead guilty because of assurances that the maximum sentence would be life imprisonment. This inflicts no constitutional infirmities upon the proceedings. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); North Carolina v. Alford, 400 U.S. 25 91 S.Ct. 160, 27 L.Ed.2d 162 (November 23, 1970).
The judgment of the district court will be affirmed.
. The district court applied the standard in effect at the time of the hearing which imposed upon the Commonwealth the burden of proving the voluntary nature of a guilty plea, United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3 Cir. 1968); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3 Cir. 1968) ; United States ex rel. Fink v. Rundle, 414 F.2d 542 (3 Cir. 1969). We have expressly stated that these cases are not to be followed to the extent they may be inconsistent with our later decision in Grays.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
H. C. MACAULAY FOUNDRY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 76-1984.
United States Court of Appeals, Ninth Circuit.
May 10, 1977.
Herbert S. Matthews, argued, South San Francisco, Cal, for petitioner.
Elliott Moore, Andrew F. Tranovich, argued, National Labor Relations Bd., Washington, D. C., for respondent.
Before CHOY and KENNEDY, Circuit Judges, and PREGERSON, District Judge.
Honorable Harry Pregerson, United States District Judge for the Central District of California, sitting by designation.
KENNEDY, Circuit Judge:
In the proceedings below, the National Labor Relations Board (the Board) held that the H. C. Macaulay Foundry Company (the Company) violated National Labor Relations Act (the Act) § 8(a)(3), 29 U.S.C. § 158(a)(3). The Board found that at the request of the International Molders and Allied Workers, Local Union 164 (the Union), the Company had wrongfully discharged one George Sottero, the complainant. The Board awarded Sottero back pay. The Company petitions for review of the Board’s order, and the Board cross-petitions for enforcement. We affirm and enforce the order.
In May 1975, Sottero took a leave of absence to recover from injuries sustained on the job. At that time, he was delinquent in paying his union dues. On July 10,1975, unaware of Sottero’s absence from work owing to his injuries, the Union sent a letter notifying him that unless he paid his dues “on the first pay day,” his employment would be terminated pursuant to a collective bargaining agreement that contained a union security clause requiring employees covered by the agreement to become and remain members of the Union. Sottero interpreted the letter as requiring him to pay his dues on the first payday after his return to work. Sottero returned to work on August 13, 1975; the first payday following his return was August 22. On August 21, the Company received a letter from the Union requesting that Sottero be discharged immediately for nonpayment of dues.
It is undisputed that on the day the Company received the Union’s letter, Sabatini, a Company representative, met with Sottero and a union shop steward. The parties conflict, however, as to what occurred next. Sottero testified that he told the Company representative that he had received a letter from the Union stating that he need not pay his back dues until August 22, the first payday after his return to work. The Company representative, Sottero claimed, responded that this “was a matter between Sottero and the Union.”
According to Sabatini’s testimony, Sottero mentioned that he had received some form of notice permitting him to pay the back dues on August 22. When Sabatini asked the shop steward if he knew of such an arrangement, the steward replied that he had no such knowledge and that the Company had no choice but to fire Sottero. The Board credited Sottero’s testimony rather than that of Sabatini.
Sottero was terminated on August 21. On the following day, Sottero went to the Union office and told the Union’s business agent the facts surrounding the discharge. The Board found that the business agent advised Sabatini that a mistake had been made and that the Company should reinstate Sottero. Again, Sabatini disputed this characterization of the facts.
On September 5, the Union sent the Company a letter that read in part:
This letter is to rescind our letter of termination, sent to you on August 13, 1975, on George Sottero. We were not informed that Sottero was off work on disability. Hoping you will comply with our wishes.
On September 9, the Company answered the Union in writing, asking whether Sottero was to be considered a member of the Union in good standing, so that the Company might reemploy him despite the security clause. The Union failed to respond. Several weeks after his discharge, Sottero was reinstated by the Company.
Sottero filed a complaint with the Board charging that the Company and the Union had violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) & (3). The administrative law judge ruled that both the Union and the Company had committed unfair labor practices. The judge also held, however, that the Union had terminated its liability when it advised the Company of its error in the telephone call to Sabatini. The judge thereupon ordered that Sottero be awarded back pay for the period of his discharge; the Union and Company were held jointly and severally liable for the period from August 21 to August 27,1975. The Company was held solely liable for lost wages accruing after that date. The Board affirmed the findings of the administrative law judge.
The Company contends that the Board erred because: (1) the Union’s discharge request did not violate the Act and (2) even if the request was unlawful, the Company’s action in complying with the request was proper.
The Union’s Violation
In general, an employee may not be discharged for nonmembership in a union, 29 U.S.C. § 158(a)(3), and a union that causes an employer so to discriminate against an employee is guilty of an unfair labor practice. 29 U.S.C. § 158(b)(2). Pursuant to a valid union security agreement, however, a union may effect discharge of an employee who by nonpayment of dues fails to maintain union membership. 29 U.S.C. § 158(a)(3); NLRB v. Hershey Foods Corp., 513 F.2d 1083, 1084-85 (9th Cir.1975); NLRB v. Brotherhood of Teamsters, 458 F.2d 222, 225 (9th Cir. 1972).
Where a union invokes a valid security clause to demand discharge of an employee for nonpayment of dues, the Union must deal fairly with the member. NLRB v. Hotel, Motel and Club Employees’ Union, Local 568, 320 F.2d 254, 258 (3d Cir. 1963); Cf. NLRB v. International Woodworkers of America, 264 F.2d 649 (9th Cir. 1959). In this respect the Union has a fiduciary obligation to the employee, and at a minimum must “inform the employee of his obligations in order that the employee may take whatever action is necessary to protect his job tenure.” NLRB v. Hotel, Motel and Club Employees Union, Local 568, 320 F.2d at 258.
In the case before us, the Union breached that fiduciary duty. In its letter to Sottero explaining that it would demand his discharge if he could not pay his dues, the Union advised him that back dues were to be paid on or before “the first pay day.” Because Sottero was officially on leave to recover from injuries, the language was at best ambiguous. Sottero could reasonably conclude that the deadline for the payment of his dues was the first payday after his return, rather than the first payday after receipt of the letter. By reason of its fiduciary obligation to the employee, the Union must bear the responsibility for this ambiguity. Therefore, the Union’s action in initially requesting Sottero’s termination violated section 8(b)(2) of the Act.
The Company’s Violation
While the Act permits a union and employer to enter into an agreement that payment of union dues be a condition of employment, it also provides that an employer may not justify a discharge for nonpayment of dues “if he has reasonable grounds for believing that membership was denied or terminated for reasons other than failure of the employee to tender the periodic dues . . . uniformly required as a condition of acquiring or retaining membership.” 29 U.S.C. § 158(a)(3)(B). Therefore, if the employer has a reasonable ground to believe that a union’s discharge is an improper one, the employer violates the Act by complying with that demand.
The employer need not in every case inquire into the facts surrounding a union’s request to fire an employee. A duty to inquire into the circumstances behind a union’s demand that an employee be discharged only arises where the employer is aware of facts that would lead him to believe that the discharge may be for an improper purpose. NLRB v. Zoe Chemical Co., 406 F.2d 574, 580 (2d Cir. 1969). In determining whether such a duty exists, and in assessing the scope of that duty, several factors must be considered: the nature of the facts known to the employer and the degree of doubt that they would raise as to the legality of the union’s action; the burden that further inquiry would impose on the employer; and the likelihood that an investigation would lead to prompt and certain resolution of the employer’s uncertainly. Id. at 583. The duty to inquire is therefore not exhaustive, and the extent of the duty, if any, will vary from case to case. Here, it would have been in no way burdensome for the Company to make a prompt and adequate investigation. Had the Company done so, the matter could have been resolved simply by telephoning the responsible union officials. The Board could properly determine that the Company did not conduct an adequate investigation.
The Company contends that even if it had a duty to investigate, its duty was discharged when Sabatini, the Company representative, met with the shop steward about Sottero’s problems. The administrative law judge, however, credited Sottero’s, rather than the Company’s version of that meeting. The trial examiner is responsible for evaluating the credibility of witnesses. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Vegas Vic, Inc., 546 F.2d 828 (9th Cir. 1976). We hold that the administrative law judge’s credibility finding is supported by sufficient evidence in the record. Further, even if we were to accept the Company’s version of the meeting, our conclusion that the Company did not discharge its duty to investigate would not change. There is nothing in the record to indicate that the shop steward should have known about correspondence between the Union and an individual member. The Board’s determination that the Company violated section 8(a)(3) of the Act by complying with the Union’s unlawful discharge demand is therefore supported by substantial evidence.
Finally, the Board held the Union terminated its liability when it communicated to the Company that Sottero should be reinstated. The Board thus held the Union and the Company jointly and severally liable for Sottero’s back pay only through August 27, 1975, and held the Company solely liable thereafter. It was proper for the Board to impose joint and several liability on the Company and the Union through August 27. See NLRB v. Campbell Soup Co., 378 F.2d 259, 262 (9th Cir. 1967). It is established, however, that a union may terminate its liability by notifying the employer and the employee that it has no objection to reemployment. Brotherhood of Teamsters, Local 70, 212 NLRB 714 (1974); Westwood Plumbers, 131 NLRB 562 (1961). In this case, the Board could properly hold that the Union terminated its liability when it requested that the Company reinstate Sottero. According the decision of the Board is affirmed, and the Board’s order shall be enforced.
. The Board’s order is reported at 223 NLRB No. 125.
. The agreement provides in pertinent part: [W]hen the Employer is notified by the Union in writing that an employee is delinquent in payment of Union dues . . . the Employer shall immediately terminate such employee. Such employee shall not be reemployed by the Employer until notified by the Union that the employee is a member in good standing in the Union, or the employee presents work clearance from Union to Employer.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Mark David JOHNS, et al., Plaintiffs-Appellants, Cross Appellees, v. DEPARTMENT OF JUSTICE OF the UNITED STATES, et al., Defendants-Appellees, Angela Macias-Rosales, Intervenor-Appellee, Cross Appellant.
Nos. 80-5135, 81-5062.
United States Court of Appeals, Fifth Circuit.
Aug. 4, 1981.
Rehearings Denied Sept. 2,1981.
Joseph Nazzaro, North Miami Beach, Fla., Philip Dennis, Financial Planning Consultant, North Miami Beach, Fla., for plaintiffs-appellants, cross appellees.
Atlee W. Wampler, III, U. S. Atty., Peter Nimkoff and Richard A. Marshall, Jr., Asst. U. S. Attys., Miami, Fla., for defendants-appellees.
Elizabeth S. Baker, Legal Serv. of Greater Miami, Inc., Miami, Fla., Kathy Hamilton, Coral Gables, Fla., for Macias-Rosales.
Theodore Klein, Miami, Fla., Guardian Ad Litem for minor child Cynthia.
Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge.
Almost a full year has passed since this Court, in Johns v. Department of Justice, 624 F.2d 522 (5th Cir. 1980), considered an appeal from an order of a district court refusing to stay the deportation of Cynthia, then a four-year-old child, who, when she was one day old, had been brought to the United States from Mexico, where she had been born. The immigration judge, after a deportation hearing, had concluded that Cynthia had been brought to the United States illegally and had found her deportable. This decision had been affirmed by the Board of Immigration Appeals, which, however, had granted Cynthia the privilege of voluntary departure. Pursuant to an INS warrant issued on January 30, 1980, Cynthia had been taken from the Johns and had been placed in an institution under the care of Catholic Services Bureau (CSB), for what was then proposed to be a period of 48 to 72 hours, pending arrangement of air transportation to Mexico.
No appeal had been taken from the Board’s final order. Instead, Mark and Eileen Johns, who had brought Cynthia to the United States shortly after her birth and who had reared her as their daughter since then, had filed- suit to enjoin her deportation and for a writ of habeas corpus commanding that she be returned to their custody. Her natural mother, Angela Macias-Rosales, sought to intervene. She contended that the Johns had taken Cynthia illegally and asked that her child be returned to Mexico. The United States had sought dismissal of the proceeding. The district court had denied the Johns’ motion in its entirety and had denied Mrs. Macias-Rosales’ motion to intervene. The Johns had then filed an appeal to this Court.
Because Cynthia had not been represented in the deportation proceeding, we remanded the case to the district court with instructions to appoint a guardian ad litem
to represent Cynthia, to enjoin execution of the deportation order, and to direct the INS to conduct all further proceedings involving Cynthia contradictorily with her guardian ad litem.
It was apparent to all that, in view of her age, the temporary situation was traumatic to Cynthia and its protraction was undesirable. We had no jurisdiction to determine what her personal welfare required, however, because the only issues before us were whether her deportation should be enjoined and whether habeas corpus should be granted to the Johns. Contemplating further INS action, we ordered it to be completed within sixty days and further ordered subsequent district court proceedings to be completed within thirty days thereafter. To avoid further appellate delay, we retained jurisdiction.
Events thereafter, unfortunately, perhaps due to no one’s fault or more likely due to the fault of everyone but Cynthia, and to Cynthia’s continued detriment, took the leisurely course we had hoped to avoid. Our opinion was issued on August 1, 1980. On August 6, the district judge appointed Theodore Klein, Esq. and Rebecca Poston, Esq., both members of the Florida bar, as guardians ad litem for Cynthia. On August 22, the Johns filed a motion seeking her release to their custody pending resolution of the case. This was accompanied by psychiatric and psychological reports stating that the Johns were Cynthia’s “psychological parents” and that she should be returned to their care immediately lest she suffer permanent psychological harm. Cynthia’s mother countered with a motion to deny the Johns’ motion. The INS opposed the Johns’ motion on the grounds, inter alia, that the Johns might flee and that it was doubtful that they provided a desirable home environment. Mr. Klein, as guardian ad litem, also opposed the Johns’ motion. On September 23, the district judge denied the motion.
Meanwhile, on September 5, the federal defendants, represented by the Assistant U.S. Attorney, called the district court’s attention to the passage of time since the entry of this Court’s order and to the failure of either the INS or the guardian ad litem to institute any proceedings. The federal defendants recommended the appointment of a psychiatric and a psychological expert to assist the guardian ad litem. In apparent response to that action, the guardian ad litem petitioned this Court and we granted an additional fifteen days for completion of INS proceedings.
On October 30, Mr. Klein filed a request with the INS District Director for a “stay of deportation.” In the letter requesting the action, he recommended that “custody” be decided by a Florida court. On November 12, the District Director granted the stay by a letter addressed to Mr. Klein. The letter states, in part:
It is very evident from its decision that the Circuit Court is troubled by the fact that Cynthia Johns was not specifically represented by Counsel during the previous legal proceedings. The Court points out that even though Mr. and Mrs. Johns were frequently represented by Counsel, their interests do not necessarily coincide with those of Cynthia. The thrust of the Circuit Court’s decision is that Cynthia’s interests must be considered before a final decision is made regarding her deportation from the United States.
On the basis that the custody of Cynthia Johns will be litigated, and hopefully decided in a Florida Court proceeding, I am granting your request for a Stay of Deportation pending the outcome of those proceedings.
Mrs. Macias-Rosales promptly filed a motion requesting the federal District Court to order Cynthia’s deportation or, in the alternative, to declare the INS to be “without further authority to detain the child” and to “release the child forthwith to the natural mother.” The Johns opposed the motion and asked the Court to order the “immediate release of Cindy” to them.
Meanwhile, on December 5, the guardian ad litem filed a proceeding in the Family Division of the Florida state trial court “to determine the legal custody of Cynthia [Johns].” Mrs. Macias-Rosales, opposing his petition, disputed that court’s jurisdiction. From the Family Court’s decision that it had jurisdiction, she appealed. That appeal is now pending in the Florida Third District Court of Appeals.
The federal District Court treated the pleading filed before it as an application for review of the INS order staying deportation, and denied it on the basis that the District Director has discretion to determine whether to proceed with or to stay a deportation, and that no abuse of discretion had been shown. The District Judge added:
A determination as to the legal custodian of Cynthia is a factor of the utmost importance as to whether or not she will be deported. For that reason, the Guardian Ad Litem’s report supports the Director’s stay to allow further proceedings to determine what is in the best interests of Cynthia.
The Johns and Mrs. Macias-Rosales both filed a new appeal from this order, apparently without noting our retention of jurisdiction in the habeas corpus action, Case No. 80-5135. Because the new appeal was separately docketed as Case No. 81-5062, and none of the parties called special attention to it or requested expedited action, the case was handled routinely — as it should never have been — and its pendency did not reach this panel’s attention until briefing under the usual schedule was completed. Thus, the litigants, most of all Cynthia, who assuredly is the only completely innocent party, have again been victims of delays in the legal process.
In March 1981, Cynthia was finally transferred from the CSB institution to the care of a foster family under CSB supervision. She was attended by an INS guard 24 hours a day until July 23, when the CSB succeeded in having the guard removed. She remains in the foster home, her stay indefinite, her future uncertain. Recognizing this, as soon as the case again reached our attention, we suggested oral argument by conference telephone. All parties consented to this procedure and the case was orally argued. We now order the two nominally separate matters consolidated and consider both in this opinion.
I.
Two INS hearings and a sheaf of ex parte representations by those who contend for Cynthia’s custody leave the history of her separation from her mother and her entry into the United States still disordered. The following facts are culled from the INS hearing and the many documents filed in the various proceedings to which Cynthia has been subjected.
It appears certain that Cynthia is an alien, of Mexican nationality, and that Angela Macias-Rosales is Cynthia’s natural mother. Mrs. Macias-Rosales is 33 years of age, has two children, a girl about three years old and a boy about two years old, who reside with her in Rosarito, Baja California, where, she now operates a restaurant. Whether she is married to the person who is the father of these children and of Cynthia is disputed. There are representations that this man is married to someone else and cannot obtain a divorce. There is an account that Mrs. Macias-Rosales has two older children, aged ten and eleven, who live with her mother.
In 1975, the Johns went to Tijuana, Mexico, to adopt a child. They met Mrs. Macias-Rosales, apparently as a result of arrangements by intermediaries. They visited her in the hospital where Cynthia was born, and left the hospital with Cynthia the day after the child’s birth. They secured a Mexican birth certificate showing them as her natural and lawful parents, and, representing Cynthia to be their child, entered the United States. They, therefore, appeared to need no visa for her and had none.
Mrs. Macias-Rosales contends that the Johns kidnapped Cynthia. She has been attempting to locate Cynthia and secure the child’s return since the Johns left Mexico or shortly thereafter. The Johns claim that Mrs. Macias-Rosales surrendered Cynthia to them for adoption and that their procurement of a birth certificate was a de facto “informal” adoption. There is evidence that the Johns knew that this did not suffice as an adoption. There is evidence for and against the parental fitness of both the Johns and Mrs. Macias-Rosales.
After an INS hearing in California, the Immigration Judge found Cynthia to be deportable, but withheld his final decision for six months. He envisioned that the Johns might be able to adopt Cynthia by proceeding in California state courts and that this might enable Cynthia to remain in the United States. After the six-month period had elapsed, finding that the California courts had taken no action on the merits, the Immigration Judge ordered that Cynthia be deported. Thereafter, the Johns fled with Cynthia to Florida, where they were located several years later. After being located, they failed to report to the INS as they had apparently promised.. The INS, therefore, secured a warrant for Cynthia’s detention and refuses to return her even temporarily to their control.
II.
The Attorney General has primary responsibility for enforcing the statutes requiring the deportation of persons who are not lawfully in the United States. An alien is deportable if he has entered the United States unlawfully without an immigrant visa, 8 U.S.C. § 1251(a), and for a number of other reasons. See, e. g., 8 U.S.C. § 1251. Aliens who are determined to be deportable, “shall be deported” upon the order of the Attorney General. 8 U.S.C. § 1251. His responsibility in this regard is akin to his responsibility for enforcing the criminal laws: in both situations, he has discretion to refrain from instituting proceedings even though grounds for their commencement may exist. See C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.3e(l) (1981).
If the Attorney General has reason to suspect that an alien is subject to deportation, he may arrest the alien, 8 U.S.C. § 1252(a), or commence deportation proceedings without taking the alien into custody. The Attorney General discharges his responsibility for enforcing the deportation laws through the INS, a division of the Department of Justice, to which hp has delegated many of his responsibilities under the immigration laws. The District Director of the INS, therefore, normally makes the decision to institute deportation proceedings. An immigration judge (formerly called a special inquiry officer) then conducts proceedings to determine the alien’s deportability. Id. at § 1252(h). This is the “sole and exclusive procedure for determining the deportability of an alien” under the sections of law here involved. 8 U.S.C. § 1252(b). The immigration judge is empowered to make all decisions necessary to dispose fully of the case and may order that the alien be deported, that the proceedings be terminated favorably to the alien, or that discretionary relief should be afforded. The immigration judge’s order is final, subject, of course, to further administrative and eventual judicial review.
Deportation orders entered by immigration judges are reviewed initially by the Board of Immigration Appeals (BIA). The BIA is a delegate of the Attorney General and exercises the Attorney General’s reviewing authority in deportation cases. The BIA’s decision, absent exceptional circumstances, is administratively final, subject only to judicial review.
The Attorney General has six months after the order of deportation becomes final in which to effect the alien’s departure from the United States. 8 U.S.C. § 1252(c). During this six month period, the Attorney General has discretion to determine whether the alien should be detained or released on bond or conditional parole. 8 U.S.C. § 1252(c). At the termination of the six months, pursuant to a warrant of deportation issued by the district director, 8 C.F.R. § 243.2, the alien may be deported. If deportation during this time has not been “practicable, advisable, or possible or departure of the alien... has not been effected within such six month period,” the alien is subject to further supervision although detention is not permitted. 8 U.S.C. § 1252(c) & (d). See also 8 C.F.R. § 242.2(d), containing the Attorney General’s delegation of his supervisory power to the District Director.
III.
Deportation is not, however, the inevitable consequence of unauthorized presence in the United States. The Attorney General is given discretion by express statutory provisions, in some situations, to ameliorate the rigidity of the deportation laws. In other instances, as the result of implied authority, he exercises discretion nowhere granted expressly. By express delegation, and by practice, the Attorney General has authorized the INS to exercise his discretion. In fact, not only does the INS, as the Attorney General’s surrogate, exercise his quasi-prosecutorial discretion to commence or not to commence deportation, but even after a final order of deportation has been entered, the District Director exercises discretion to afford aliens relief from deportation.
If the Attorney General decides that an alien is unlawfully in the country, and should not be permitted to remain, he may permit the alien to depart voluntarily at the alien’s expense, see 8 U.S.C. § 1254(e), 8 C.F.R. 243.5; Boulamandis v. Brownell, 247 F.2d 83 (D.C.Cir.1957), so that the alien’s record will not show that he was involuntarily deported, thus creating a barrier to possible future lawful return. See C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.18b (1981); Comment, Suspension of Deportation: Illusory Relief, 14 S.D.L.Rev. 229, 253 (1976). The Attorney General is also authorized to “withhold deportation” of any alien to any country if the alien’s life or freedom would be threatened there on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1253(h).
The Attorney General also determines whether (1) to refrain from (or, in administrative parlance, to defer in) executing an outstanding order of deportation, or (2) to stay the order of deportation. Although such a stay is usually designed to give a deportee a reasonable amount of time to make any necessary business or personal arrangements, both the length of and reason for the stay lie entirely within the discretion of the Attorney General or his delegate.
The Attorney General has adopted regulations giving the District Director discretionary authority, either on his own or on the request of a party, to stay an order of deportation for such time and under such conditions as the director thinks necessary. Neither the statute nor the regulations permit an administrative appeal from a decision regarding a requested stay to an immigration judge or the BIA. 8 C.F.R. 243.4. See Matter of Paduano, 13 I.N.S. 658 (1971). Although both these forms of discretionary relief were here, requested by the guardian ad litem, the request for deferred action was postponed by the District Director until the termination of the state court proceeding. The district director’s action was limited to granting a “stay of deportation.”
IV.
The entry of a final order of deportation or final action on a request for discretionary relief is subject to judicial review. Such review, of course, does not entail the substitution of a court’s judgment for that of the Attorney General or the designees who exercise his power. See, e. g., Foti v. INS, 375 U.S. 217, 228, 84 S.Ct. 306, 313, 11 L.Ed.2d 281, 290 (1963). The Attorney General’s order must be affirmed unless there has been an abuse of discretion or a complete failure to exercise discretion.
The forum for judicial review depends, however, on the nature of the challenged action. Jurisdiction to review “all final orders of deportation... made against aliens within the United States pursuant to administrative proceedings under [8 U.S.C. § 1252(b)]” lies exclusively in the courts of appeals. 8 U.S.C. § 1105a(a). See 5 U.S.C. §§ 1031 — 1042 (The Hobbs Act). Such a petition for review, however, may not be filed more than six months after the date of the final order of deportation.
The scope of the term “final orders of deportation” is not, of course, self-defining. Recognizing the desirability, reflected in 8 U.S.C. § 1105a, of minimizing multiple review, the Supreme Court held in Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), that the term includes in addition to the actual order of deportation, all orders closely related to the deportation proceeding and entered during deportation.proceedings conducted pursuant to 8 U.S.C. § 1252(b), such as the denial of voluntary departure or adjustment of status. See also Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam).
If, on the other hand, ancillary determinations, such as granting a stay of deportation, are made outside the context of a proceeding under 8 U.S.C. § 1252(b), jurisdiction to review initially is not given to the courts of appeals. Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). Such ancillary administrative actions are subject to review in declaratory judgment actions, or by requests for injunctions, in the district courts under the Administrative Procedure Act, 5 U.S.C. § 702, and under 8 U.S.C. § 1329, an independent grant of jurisdiction, to the district courts, of cases arising under the immigration laws. See C. Gordon and H. Rosenfield, Immigration Law and Procedure § 8.8 (1981); Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum.L.Rev. 1, 32 (1975). See also Comment, Judicial Review of Final Orders of Deportation,. 42 N.Y.U.L.Rev. 1155 (1967).
The right of the INS to hold an alien in custody pursuant to an order of deportation may also be challenged by application for a writ of habeas corpus. 8 U.S.C. § 1105(a). In such an action, brought initially in the district court, the alien may challenge the legality and constitutionality of his confinement by the INS.
V.
With these jurisdictional lines in mind, we examine the proceedings before us to
determine first, whether the District Court had jurisdiction of the proceedings involved in case No. 81-5062. Five days after the District Director granted what he termed a “stay of deportation,” Mrs. Macias-Rosales filed a motion in the district court requesting that the court either order deportation or declare that the INS is without authority to detain Cynthia and order that the child be released to her natural mother. Shortly after that motion was filed, the Johns filed a pleading urging the court to deny Mrs. Macias-Rosales’ motion and order the immediate release of Cynthia to their custody. The guardian ad litem, arguing in support of the INS action, opposed both of these motions.
The Johns and Mrs. Macias-Rosales are both “aggrieved parties” within the meaning of the Administrative Procedure Act. 5 U.S.C. § 702. They were, therefore, proper persons to appear in the district court.
The district court, treating the two motions as requests to review the entry of the stay, held that the District Director’s action was not arbitrary or capricious, and refused to vacate it. The relief sought by Mrs. Macias-Rosales was not, however, merely the vacation of the stay nor was it, of course, an attempt to appeal the 1977 deportation order. Her motion was an attempt to secure an order commanding deportation. This was plainly a “cause... arising under” the deportation provisions of the immigration laws, 8 U.S.C. § 1329, of which the District Court had jurisdiction. We, therefore, consider the order on its merits.
Our prior opinion, holding that the initial deportation proceedings were conducted without due process, effectively voided that prior adjudication. Had the deportation order remained in force, there would have been no need for further proceedings contradictorily with Cynthia’s guardian ad litem. Deportation of Cynthia would have followed as a matter of course absent the guardian’s intervention. As a result of our prior mandate, the final order of deportation, entered on December 16,1977, must be considered without force. Cynthia is, therefore, in the same position as any alien who appears deportable.
The prior deportation order being void for want of due process, the District Director had discretion either again to commence a deportation proceeding or not to do so. That discretion is, like prosecutorial discretion, immune from review in the courts. While the INS order is framed in terms of a “stay of deportation,” we treat it as a refusal to institute further proceedings and affirm the District Director’s authority to exercise his prosecutive discretion in that manner. We, therefore, affirm the District Court order refusing to vacate the stay.
VI.
The APA generally precludes judicial review of the manner in which the Attorney General chooses to exercise his discretionary authority to inquire into the immigration status of an alien who is seeking admission to this country or is here without proper documentation. Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1199 (9th Cir. 1975); 5 U.S.C. § 701(a)(2). It would, therefore, be inappropriate for us to instruct the District Director concerning the exercise of his discretion. Because, however, the District Director not only misinterpreted the effect of our prior decree on the deportation order, but also erred in his interpretation of the reasons for that decision, we amplify it, so that his future actions will not be improperly influenced by what may have been a lack of clarity in that opinion.
Our prior opinion must not be read as instructing the District Director that deportability of a person is to be determined solely by what is in that person’s best interests, whether the person be an adult or a child. None resist deportation save those who think it is in their best interests to remain. Instead our mandate was designed only to assure Cynthia due process by requiring that she be represented by a competent guardian ad litem with fidelity only to her. The effect of our prior judgment was to void the original order of deportation because the proceeding underlying that order deprived Cynthia of the process due her under the Constitution. We did not under-take to direct how the District Director should proceed so long as he accorded Cynthia due process.
Whether or not Florida courts have jurisdiction over Cynthia, they can in the proceeding presently pending determine only who is entitled to her custody. Save insofar as a custody determination decides whether a person is the “child” of a citizen, custody is not a statutory factor in determining deportability. See, e. g., 8 U.S.C. § 1101(b)(1)(F), 8 U.S.C. § 1401(a)(3); 8 C.F.R. 211.5. It was neither our order nor our. intention that the resolution of these protracted deportation proceedings await Florida court proceedings to determine Cynthia’s custody. Cf. Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978) (the presence of the alien children in the United States was concededly lawful but only their custody was contested).
All parties agree that Cynthia has been harmed by the disruption of her life that has already occurred. They differ only in how they would repair that part of her life. Her life is in limbo at a time when she is most in need of parental affection and guidance. It was not our direction that the District Director’s decision await another indefinitely prolonged period of legal thrust and counterthrust, but only that Cynthia’s due process rights be protected and her status be adjudicated without delay. This has been accomplished in part by the appointment of the guardian ad litem and by his appearance in all proceedings as Cynthia’s representative. It will be assured by his continued representation of her.
The Attorney General, as we have noted, has delegated his statutory authority to determine deportability and, if deportability is found, discretion in acting on that decision, to the District Director. That officer has a duty to decide whether to proceed against Cynthia. We perceive nothing in either the statute or the regulations that requires him to go through a sort of abstention process, particularly when the state court will decide only whether it has jurisdiction, and, if so, who should have custody of her. The issues before him, whether Cynthia is lawfully in this country, whether she should be deported, whether there is a statutory or factual basis for executive compassion and, if so, whether it should be extended to avoid deportation, and related questions, are no more difficult than issues such as moral turpitude, legality of entry, validity of marriage, and fraud and misrepresentation that are decided in immigration hearings daily. Important issues affecting Cynthia must be resolved, at least initially, and perhaps exclusively, by the District Director. Delay is an act of injustice to Cynthia, not of mercy. It is also, to a lesser degree, a prolongation of the anxiety and distress that disturbs the lives of Mrs. Macias-Rosales and Mr. and Mrs. Johns.
Because the guardian ad litem was appointed by the District Court and acts under the orders of that court, subject to our review, we do consider it appropriate to remind him that he was appointed to assure Cynthia due process and to safeguard her best interests; and that each of the many experts whose opinions are now in the record, whether consulted by him or, by Mrs. Macias-Rosales, or by the Johns, or appointed to advise this Court, has concluded that prolongation of the present crisis in Cynthia’s life is harmful to her, perhaps irreparably. We do not consider it necessary, as a matter of law, that the guardian ad litem await state court adjudication of Cynthia’s best interests. We require only that he satisfy himself that the action he recommends is in her best interests and that he then vigorously pursue that recommendation before the administrative agency and the courts. We intimate no opinion concerning the extent of his duties, if any, with regard to proceedings relating to Cynthia’s custody, a matter not within our jurisdiction.
VII.
The action of the INS in detaining a person is, as we have noted, subject to challenge by petition to the District Court for habeas corpus. 8 U.S.C. § 1105a(a)(9). The Johns raised the habeas corpus issue by a motion “on behalf of Cynthia.” The denial of that motion served as the basis for their initial appeal to this Court. In our prior opinion finding that the deportation proceeding was conducted in contravention of Cynthia’s due process rights, we did not address the merits of the Johns’ petition for habeas corpus. Mrs. Macias-Rosales has also filed a habeas corpus petition in the same District Court, but that case has been allotted to another judge. In neither case has the District Judge made any findings of fact concerning the merits.
A petition for habeas corpus in federal court challenges only the legality and the constitutionality of a person’s detention. See United States ex rel. Marcello v. INS, 634 F.2d 964, 965 (5th Cir. 1981). So long as the petitioner has standing to raise that issue, it neither requires nor permits the federal court to determine who, among private persons competing to care for another, has the right to custody. We find the record insufficient to determine whether the District Court erroneously denied the Johns’ habeas, corpus petition. Because the record contains only ex parte statements concerning the facts surrounding Cynthia’s birth and entry into this country, we are unable to determine whether she' is now being held illegally or unconstitutionally. This Court cannot review such an issue without the benefit of a final determination by a District Court based on its findings of fact. While a petition for habeas corpus directed at the INS is usually reviewed by reference only to the administrative record, the District Court may, if necessary, conduct a hearing to take evidence concerning illegal action that is not reflected in the record. Therefore, we remand the case initially appealed for a determination of the merits of the Johns’ habeas corpus application. In order to avoid duplication of effort, and possible inconsistency of results, that proceeding must be consolidated with Mrs. Mácias-Rosales’ petition and be considered by the same District Judge. The guardian ad litem should appear in the consolidated proceeding to assure that Cynthia, as a person, is accorded her legal rights. Perhaps redundantly, we stress that each habeas corpus proceeding challenges only the legality of Cynthia’s detention, from each of the petitioners, by the INS, and that in neither habeas proceeding does the federal District Court have jurisdiction to determine who, between Mrs. Macias-Rosales and the Johns, has the right to custody. Each of them is proceeding contradictorily with the INS and not against the other. See also note 32, supra.
VIII.
The District Court order issued pursuant to our mandate in case No. 80-5135, appointing guardians ad litem and ordering any deportation proceedings to be pursued contradictorily with them, is maintained in force. The order enjoining Cynthia’s deportation is maintained in force unless a final order of deportation is entered pursuant to proceedings conducted contradictorily with the guardian ad litem.
The District Court order in Case No. 81-5062, refusing to vacate what the district director called a stay of deportation, is affirmed.
Case No. 80-5135 is remanded for modification of the District Court’s order of August 6, 1980, for further proceedings consistent with this opinion. That cause, including the petition for habeas corpus set forth in it, is consolidated with the petition for habeas corpus filed by Mrs. Macias-Rosales and now pending in the District Court, and with Case No. 81-5062. All of these proceedings shall be allotted to the same judge for further proceedings consistent with this opinion.
This Court continues to retain jurisdiction so that any appeals can be expeditiously heard. To avoid the type of delay that occurred previously, the clerk will promptly notify the panel as soon as any pleading of any kind connected with this matter is filed in this Court. The briefing schedule will be set by the panel. The parties are instructed that any pleading filed is to bear Docket No. 80-5135 and the clerk’s special attention is to be directed to it by the attachment of a notice or letter stating: This is a matter in which the Court has retained jurisdiction and is to be given special attention as directed by prior court order.
SO ORDERED.
. We also granted Mrs. Macias-Rosales’ motion to intervene in support of the judgment of the district court.
. While the district court appointed both Mr. Klein and Ms. Poston as guardians ad litem, the pleadings and letters in the file have been signed only by Mr. Klein. We shall, therefore, refer to the court-appointed guardians as the “guardian ad litem.”
. This extension permitted'proceedings to continue until November 15, 1980. The guardian ad litem, apparently believing the entry of the stay by the INS relieved the INS and the guardian of responsibility to complete “all proceedings” by that date, did not communicate further with this Court until, in response to our request, he filed a brief on the issues raised by the present appeal.
. The action was filed in the Circuit Court of the 11th Judicial District in and for Dade County, Florida.
. Counsel inform us that the last brief in the state appellate court has not yet been filed and that the court’s decision cannot be expected before October or November 1981. If jurisdiction is sustained, further proceedings in the state trial court will be necessary to determine what is in Cynthia’s best interests. Its ultimate decision may be appealed. The guardian ad litem has informed us that he will act on the basis of the Florida trial court’s decision, and will not abide an appeal to take further action. His action, however, will not dictate a course to the INS. Although the INS has assured us that it also will be guided by the state court’s decision, this does not necessarily mean that it will accept a trial court decision that has been appealed and is being bitterly contested.
. A former commissioner of the INS estimated that as many as 700 grounds for deportation exist. Hearings on H.R. 4974 before the Subcommittee of the Senate Committee on Appropriations, 83d Cong. 1st Sess. 250 (1954).
. Although, before 1956, every deportation proceeding was commenced with an arrest, such proceedings are now customarily initiated by an order to show cause. See 21 F.R. 99-101; 8 C.F.R. § 242.1. An alien is now arrested only if the public interest requires incarceration or there is a substantial basis for a belief that the alien will flee. See generally C. Gordon & H. Rosenfield, Immigration Law and Procedure §§ 5.3a & 5.4a (1981).
The initial INS action taken in this case was the issuance of an order to show cause why Cynthia should not be deported. Only after the Johns absconded to Florida with Cynthia did the INS detain the child.
. See 8 U.S.C. § 1103(a); 8 C.F.R. 2.1 & 103.1.
. The statute exempts from deportation on certain grounds “an alien otherwise admissible at the time of entry” who is the “child of a United States citizen,” 8 U.S.C. § 1251(f), and provides for adjustment of status of other aliens, 8 U.S.C. I*. 1255, as well as for suspension of deportation of persons who have been present in the United States for lengthy periods. 8 U.S.C. § 1254. The term “child” for purposes of admission to the United States includes an adopted child and a child who is an orphan or who has been abandoned. 8 U.S.C. § 1101(b)(1)(F).
In addition, from time to time Congress has enacted statutes providing special provisions to permit alien refugees to remain in this country by authorizing the Attorney General to adjust their status. See, e. g., as to certain refugees, Act Nov. 2, 1966, P.L. 89-732, §§ 1-5, 80 Stat. 1161; and Act Oct. 20, 1976, P.L. 54-571, § 8, 90 Stat. 2706; as to Indochina refugees (Vietnam, Laos or Cambodia), Act of Oct. 28, 1977, P.L. 95-145, Title I, §§ 101-107, 91 Stat. 1223; as to Cambodian refugees, Act Nov. 9, 1978, P.L. 85-624, § 16, 92 Stat. 3465.
. Before jurisdiction rests in the BIA the alien is permitted to request that the immigration judge reopen the proceedings. See
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_method
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
SAVE OUR CUMBERLAND MOUNTAINS, INC., et al. v. Donald P. HODEL, Secretary of the Interior, et al., Appellants.
No. 85-5984.
United States Court of Appeals, District of Columbia Circuit.
Argued March 2, 1988.
Decided Sept. 16, 1988.
John A. Bryson, Attorney, Dept, of Justice, with whom Roger J. Marzulla, Acting Asst. Atty. Gen., and Robert L. Klarquist, Attorney, Dept, of Justice, Washington, D.C., were on the brief, for appellants.
Joseph A. Yablonski, with whom L. Thomas Galloway, Washington, D.C., was on the brief, for appellees. Daniel B. Edel-man, Washington, D.C., also entered an appearance for appellees.
Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting Opinion filed by Circuit Judge STARR, in which Circuit Judges SILBERMAN and BUCKLEY concur.
SENTELLE, Circuit Judge:
The panel opinion in this case, Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43 (D.C.Cir.1987), reviewed an attorneys’ fee award entered pursuant to § 520(d) of the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1270(d) (1982 & Supp.1986). In addition to making other modifications, generally not pertinent to this decision, the panel, based on the precedent of Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.Cir.1984), determined that the District Court had improperly computed the hourly rate for plaintiffs’ attorneys, and accordingly ordered a remand for recalculation of that rate consistent with Laffey and the panel opinion. Thereafter, we accepted the case for rehearing en banc, Save Our Cumberland Mountains, Inc. v. Hodel, 830 F.2d 1182 (D.C.Cir.1987), and ordered briefing of the single question:
Should Laffey v. Northwest Airlines, Inc.... be overruled to the extent that it holds that in awarding attorneys’ fees to a private law firm, that customarily charges below the prevailing community rate in order to serve a particular type of client, courts should calculate the “reasonable hourly rate” according to the hourly rates charged in similar cases by that firm, as opposed to rates that reflect the prevailing community rate for similar legal services?
Id. Having reviewed the question en banc, we now answer that question in the affirmative and overrule Laffey.
I. Background
The factual background of the substantive litigation underlying this attorneys’ fee dispute is set forth in both the panel opinion and the District Court opinion, Save Our Cumberland Mountains, Inc. v. Hodel, 622 F.Supp. 1160 (D.D.C.1985). We will revisit only those facts directly relating to the fee petition and the question before us. The District Court had awarded fees for work performed by plaintiffs’ four attorneys, Joseph A. Yablonski, L. Thomas Galloway, Daniel B. Edelman, and Lee Bishop. As the panel noted, the District Court applied the correct three-part analysis to determine the appropriate award: (1) determination of the number of hours reasonably expanded in litigation; (2) determination of a reasonable hourly rate or “lodestar”; and (3) the use of multipliers as merited. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). As to the second of these steps, the panel ruled that the District Court had erred as to the appropriate “reasonable hourly rate” for Yablonski and Galloway.
The District Court, in attempting to determine the reasonable hourly rate, first noted the Supreme Court’s determination in Blum v. Stenson that “[s]uch a reasonable hourly rate is that ‘prevailing in the community for similar work.’ ” Save Our Cumberland Mountains, 622 F.Supp. at 1165 (citation omitted). He further noted this Circuit’s prior holding that “[f]or an attorney who has a customary rate at which he or she bills fee-paying clients, the prevailing community rate has been said to be that customarily charged rate.” Id. (citing Laffey, 746 F.2d 4 (D.C.Cir.1984)). He then held, following Blum v. Stenson, that “for an attorney who has no customary hourly rate, the Court must look to the prevailing community rates in order to determine the appropriate hourly rate.” Save Our Cumberland Mountains, 622 F.Supp. at 1165.
The panel opinion noted that under Laf-fey, this case is factually distinct from Blum v. Stenson. In Blum, the attorneys seeking the fee awards were salaried employees of the Legal Aid Society of New York, a private, non-profit law office. The District Court had applied prevailing market rates for attorneys of like competence and experience in the same area doing similar work during the relevant period. Stenson v. Blum, 512 F.Supp. 680, 683 (S.D.N.Y.1981). The government argued to the Supreme Court for the adoption of a cost-based standard for fee awards to non-profit, legal aid attorneys, while recognizing that prevailing market rates were the proper standard attorneys in private for-profit practices. The Court rejected that theory and applied the same test for non-profit legal services organizations as the government had conceded was applicable to private attorneys.
The panel opinion of this Court reviewed Blum and Laffey and determined this case to be controlled by Laffey. Plaintiffs’ attorneys in Laffey, like SOCM’s attorney in the case at bar, charged some clients at hourly rates less than the prevailing average, from motives of subsidizing what they perceived to be “good" clients or clients with good causes. Laffey, 746 F.2d at 14 n. 69. We held in Laffey that the Blum treatment of public interest legal organizations was inapplicable to a quasi-public interest law firm practicing for profit, but reducing rates from non-economic motives, and that the most “relevant comparison” was the rate charged in private representation by the attorneys seeking the awards. Laffey, 746 F.2d at 24.
In the present case, the panel applied Laffey and determined that Yablonski’s average rate, for the 20 to 50 percent of his clients whom he charged on an hourly basis, was $100 per hour and that Galloway charged a “reduced rate” for “national environmental and conservation groups” of from $75 to $100 per hour. Applying the Laffey rule to those facts, the panel determined that $100 was the proper hourly rate for the determination of the lodestar as to Yablonski and Galloway.
It is in this posture that we now consider plaintiffs’ contention that Laffey must be overruled.
II. Analysis
As both Blum and Laffey teach, the determination of an award of reasonable attorney fees is at bottom a question of statutory interpretation. In Blum, the Supreme Court construed the Civil Rights Attorney’s Fee Award Act of 1976, 42 U.S.C. § 1988 (1976 & Supp. V), which expressly authorized the award of a reasonable attorney’s fee to prevailing civil rights litigants other than the United States. In determining the intent of Congress as to the meaning of the phrase “reasonable attorneys fees” (emphasis supplied), the Court looked in large part to the Senate Report which approved the method employed in four cases, Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974); Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974); Davis v. County of Los Angeles, 8 Empl.Prac.Dec. (CCH) ¶ 9444 (C.D.Cal.1974); and Swann v. Charlotte Mecklenburg Bd. of Educ., 66 F.R.D. 483 (W.D.N.C.1975). The Senate Report plainly expresses the intent of Congress that the Johnson case lays down the “appropriate standards,” and that the standards are “correctly applied” in the other three cited cases which “ ‘resulted in fees which are adequate to attract competent counsel but which do not produce windfalls to attorneys.’ ” Blum, 465 U.S. at 893-94, 104 S.Ct. at 1546. (quoting S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976) U.S.Code Cong. & Admin.News pp. 5909, 5913).
The Blum Court then went on to determine from this legislative history that “Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.” Id. at 894, 104 S.Ct. at 1547.
Later that same year, we faced in Laffey the question of applying that statutory analysis to a fact situation, like the one at bar, in which the plaintiff’s attorney did not fall neatly into either of the categories “private counsel” or “nonprofit legal services organization.” The Laffey counsel, like SOCM’s counsel, was literally engaged in private for-profit practice, but adjusted fee schedules downward from pro bono or quasi public interest motives to reflect the reduced ability of the client to pay or what the attorney saw as the importance and justice of the client’s cause. The Laffey Court noted that the Supreme Court has interpreted “a reasonable attorney’s fee” to be one that is “adequate” to attract competent legal advice, but does not produce “windfalls” to attorneys. Laffey, 746 F.2d at 16 (quoting Blum, 465 U.S. at 897, 104 S.Ct. at 1548). Starting from this point of reference, the Laffey Court determined that Blum’s teaching with reference to the use of prevailing market rates applies only where, as in the case of the public interest nonprofit law firm, the attorneys have no billing histories, and a “proxy for the market must be found in order to set a reasonable hourly rate.” Laffey, 746 F.2d at 16 n. 74. The Laffey Court then reasoned that the willingness of counsel to undertake the representation at his stated rate proved the adequacy of that rate to attract competent counsel. To award higher rates based on the prevailing market, the Court reasoned, “would produce the very windfall Congress and the Supreme Court have said should be avoided.” Id. at 25 (footnote omitted).
It was against this background of Blum and Laffey that the panel opinion in the present case attempted to determine a reasonable hourly rate for Yablonski and Galloway. Thus the panel found that Laffey bound it to determination of the rates of the for-profit but public interest motivated attorneys that began with “relevant comparison” of the rates charged in similar private representation by the law firm itself. Next the panel held, obedient to the teachings of Laffey, that the Court should bracket that rate by establishing that it falls within the rates charged by other firms for similar work in the community. Then, “[s]o long as the firm’s own rate falls within the rate brackets, it is the market rate, for the purposes of calculating the lodestar.” Laffey, 746 F.2d at 25 (emphasis in original).
Since Galloway and Yablonski did in fact have hourly billing histories, the panel started with those rates, applied the Laffey brackets and concluded that the lower than prevailing market rate of $100 per hour was the appropriate rate and that the District Court had erred in using higher rates based upon its determination of the prevailing market.
The members of the panel spoke in three separate opinions expressing varying degrees of dissatisfaction with the Laffey rule. Judge Bork’s opinion announced the decision of the Court but did so noting that “[wjhether or not Laffey’s position on this point is correct — and the dissent presents a serious argument that it may not be — this panel is bound by that position as the law of the circuit.” Save Our Cumberland Mountains, 826 F.2d at 49.
Judge Ruth B. Ginsburg separately concurred but joined the dissent’s conclusion that Laffey “is of questionable consistency with Blum v. Stenson... and bears reexamination.” Id. at 54 (citation omitted) (Ginsburg, Ruth B., J., concurring). Chief Judge Wald dissented in part, finding Galloway’s rate policy to be distinguishable from that of the law firm in Laffey, but conceded the controlling precedent of Laf-fey as to Yablonski’s fees. She then criticized Laffey as being inconsistent with Blum, producing anomalous results, and being a far distance from the congressional intent. As she put it “[i]f this is what Laffey has wrought, it is time that we or Congress took a harder look.” Save Our Cumberland Mountains, 826 F.2d at 60 (Wald, C.J., dissenting in part).
Therefore, each member of the panel in differing terms and to differing degrees, questioned the correctness of the Laffey holding, but concluded that “Laffey... is the law of the Circuit... and binds us unless and until overturned by the court en banc or by Higher Authority.” Id. at 54 (Ginsburg, Ruth B., J., concurring). This the Court en banc now does.
A. The Anomalous Result
As Chief Judge Wald and Judge Ruth B. Ginsburg note in their separate opinions, the Laffey application of the Blum rule produces an anomaly. The highly paid commercial, for-profit law firm can receive awards equal to its usual handsome rates. The legal aid attorney, tied to the prevailing market rate analysis of Blum, can look to the purely for-profit firm for evidence supporting a market rate calculation and receive the awards consistent with those of “[t]he highest paid law firm in town.” Save Our Cumberland Mountains, 826 F.2d at 60 (Wald, C.J., dissenting in part). But, attorneys whose practice partakes of some elements of each of those two entities will receive fee awards often significantly smaller than those calculated on the common basis of the other two. That is, privately practicing but public interest motivated attorneys who intentionally charge their poorer clients reduced rates will receive the same reduced rates as statutory fees, even though they must depend upon the received fees for their livelihood.
To describe the result of the Laffey holding, and to observe it in the context of the present facts, is to reveal its anomalous nature. If the public spirited attorney is in a position, either by devoting the vast bulk of his time to other profit making representation or because of independent means, to represent the public interest group for free, then he can be awarded at high market rates for his pro bono efforts. That is, if he becomes a traditional for-profit practitioner using the market or higher fees charged to his commercial clients as subsidies for his pro bono clients during the course of their litigation, then his market rates will entitle him to the higher fee awards. On the other hand, if he always represents all clients free (whether or not they be deserving and impecunious), then his non-economic choices will result in the economic boon that Blum and Laffey provide for the attorney without a billing history. However, if either his own economic circumstances or the available but limited means of the client make it advisable to charge the client at rates providing some compensation but below the market rate, then those rates create a cap for his services. Thus, the practitioner outside the large or established firm may either eschew pro bono representation, directing those potential clients of the Laffey or SO CM mold to the established firm or legal aid societies if either of those entities is available and willing to undertake the representation, or quote fictitious but market-based rates, which neither he nor the client have any intention of actually seeing collected in toto unless court-awarded fees are ultimately available. Neither of these alternatives seems consistent with the policies behind fee shifting statutes or accepted principles of legal ethics.
The effect of the anomaly upon the client has an even more negative impact. As this case illustrates, reduced profit public interest lawyers often acquire particular experience and expertise in specific public interest areas. The District Court’s finding that “Mr. Galloway has had a coal-related practice for over ten years, and is considered on [sic] of the leading experts on the Surface Mining Act” stands unchallenged. Save Our Cumberland Mountains, 622 F.Supp. at 1164. If practitioners of his sort are unavailable, expertise in a specific area is likely to be found only in the firms which customarily represent coal companies and others who regularly litigate against public interest groups. Obviously, the possibility of conflict is so pervasive as to render this a less than desirable source of expertise. Of course “attorneys may... [leave] the area of their professional expertise in taking on pro bono publi-co litigation Stanford Daily, 64 F.R.D. at 684, but then the benefit of expertise is lost.
Of course, if Congress, in enacting the statutes which we now construe, expressed an intent to compel these results, we would have no choice but to accept them. It is not the function of this Court to rewrite statutes. Thus, if the Laffey construction of the fee shifting statutes is correct, the panel opinion would stand. However, as we demonstrate below, this is not the case.
B. The Congressional Intent
The result sought by plaintiffs, that is a fee award based on prevailing market rates rather than the actual rates of Yablonski and Galloway, is not only not inconsistent with the express intent of Congress, but rather accomplishes Congress’ express goals. As noted above, the very Senate Report relied on by the Supreme Court in Blum v. Stenson reveals the goal to be “fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976) (emphasis supplied). By striking down the anomalous result of the Laffey rule, we in fact achieve the situation which one commentator has described as follows:
[P]ublic interest lawyers will continue to provide the specialization, freedom from conflicts with private clients, readiness to take on unpopular cases, and willingness to carry the cost of protracted cases that is indispensable to full enforcement.
Berger, S., Court Awarded Attorneys’ Fees: What Is “Reasonable”?, 126 U.Pa.L. Rev. 281, 323 (1977).
Congress after all did not simply express its intent that the fees would attract counsel, but rather that they would be “adequate to attract competent coun-sel_” S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976) (emphasis supplied).
Nor should the congressional desire to avoid windfalls to attorneys deter this result. Cf. S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976). It is not inconsistent with the avoidance of windfalls to pay attorneys at rates commensurate with prevailing community standards of attorneys of like expertise doing the same sort of work in the same area. In fact, the Senate Report supports this conclusion. That Report, as noted above, was relied on by the Supreme Court in Blum as authoritative on the question of congressional intent in defining “reasonable counsel fees.” As also noted above, the Report cited three cases as correctly applying the appropriate standards in the lodestar analysis drawn from Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Examination of these cases supports the result we reach, as noted by the dissent in Laffey, 746 F.2d at 32-33 (Wright, J., dissenting).
The Johnson case itself is now often referred to as if it were the genesis of the lodestar method. That opinion did not in fact set forth the three steps described above of first determining the reasonable number of hours, then determining the reasonable hourly rate or lodestar, and then using multipliers as merited. What it actually did was set forth twelve “guidelines,” now commonly referred to as the “Johnson factors,” which the Fifth Circuit deemed appropriate for use in fee award calculations “consistent with those recommended by the American Bar Association’s Code of Professional Responsibility, Ethical Consideration 2-18, Disciplinary Rule 2-106.” Johnson, 488 F.2d at 719. Those factors, which are now familiar in the jurisprudence of attorneys’ fee awards, are:
(1) The time and labor required.
(2) The novelty and difficulty of the question.
(3) The skill requisite to perform the legal service properly.
(4) The preclusion of other employment by the attorney due to acceptance of the case.
(5) The customary fee.
(6) Whether the fee is fixed or contingent.
(7) Time limitations imposed by the client or the circumstances.
(8) The amount involved and the result attained.
(9) The experience, reputation, and ability of the attorney.
(10) The “undesirability” of the case.
(11) The nature and length of the professional relationship with the client.
(12) Awards in similar cases.
Johnson, 488 F.2d at 717-19. The full lodestar approach was developed only over time. Much dispute has occurred, and some still exists, as to which, if any, of the Johnson factors may be considered for purposes of multiplication rather than in the original lodestar computation. See, e.g., Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (Delaware Valley I); Pennsylvania v. Delaware Valley Citizens Council for Clean Air, — U.S. -, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II) and authorities collected therein. Therefore, when the Senate Report expressed congressional approval of the Johnson factors, it was not approving the lodestar method, but rather the use of the factors that the Johnson Court employed.
The lineage of the lodestar as such is more properly traceable to Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir.1973), which did in fact describe the product of a reasonable hourly rate and hours actually worked as being the “lodestar of the court’s fee determination,” subject to adjustment for “the contingent nature of success” and “the quality of [the] attorney’s work.” Thus, when the Senate Report expressed congressional approval of the Johnson case as “setting the appropriate standards” it was approving not the lodestar method per se but rather the use of the twelve Johnson factors in some fashion in arriving at the fee. It is the Senate Report’s approval and the Supreme Court’s adoption of that approval of the application of those factors in the other three cases that may be instructive to us in the present dispute.
In Stanford Daily, the District Court expressly sought to
avoid the Scylla of simply accepting the attorneys’ account of the value of the legal services which they have provided[, and] the Charybdis of decreasing reasonable fees because the attorneys conducted the litigation more as an act pro bono publico than as an effort of securing a large monetary return.
64 F.R.D. at 681 (citations omitted). It is the avoidance of the very Charybdis seen by the District Judge in that congressionally-approved application of the appropriate standards that we seek to accomplish by overruling Laffey. Since both the Senate and the Supreme Court by adoption have expressly approved that case, we are satisfied that our present decision not only avoids an undesirable anomaly but comports with the intent of Congress and the precedent of the highest court. Lest we be seen as reading too much into a single sentence of a single opinion adopted by a single reference in a Senate Report, examination of the other two approved decisions offers considerable support and no inconsistency to our conclusion.
Swann v. Charlotte Mecklenburg Bd. of Educ., 66 F.R.D. 483 (W.D.N.C.1975), actually offers significant support. As noted by the dissent in Laffey, “[i]n Swann the court, in determining the amount of the fee award, looked to the rate charged by opposing counsel. Like Stanford Daily, Swann makes clear that Congress did not intend to use historical billing rates as a cap on fee awards.” Laffey, 746 F.2d at 32 n. 3 (citations omitted) (Wright, J., dissenting). The Laffey majority concedes that “the district judge [in Swann ] may have based his award on the ‘[f]ees paid to opposing counsel,’ as the dissent suggests. But we will never know, because he also listed eight other factors, including... surrogates for historical billing rates....” Laffey, 746 F.2d at 23 (footnote omitted). As the majority in Laffey suggests, it is not entirely clear precisely what method the Swann Court did apply. This, however, does nothing to change the fact that the Senate Report and the Supreme Court have approved the Swann Court’s application of the appropriate standards, nor does that criticism, of the Swann case lessen its persuasiveness. At the time of the Swann fee award in 1975, the Lindy Bros, decision was less than two years old and was from the Third Circuit, while the Swann District Court was in the Fourth Circuit. Johnson, a Fifth Circuit decision, was less than one year old at that time. The Swann Judge had no reason to consider either decision binding upon him. The Fourth Circuit, the only Circuit which could authoritatively bind the Swann Court, did approve Lindy Bros, and Johnson in Walston v. School Bd., 566 F.2d 1201 (4th Cir.1977), but not until two years after the Swann order and even then they did not require express obedience to either the Johnson factors or the Lindy lodestar method. It was not until 1982 that the Supreme Court finally authoritatively approved the Johnson factors and the lodestar approach in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1982). That decision, as noted, left open the appropriate stage for the use of several Johnson factors, a dispute largely resolved in Delaware Valley I, supra, and Delaware Valley II, supra, but still not totally foreclosed. Thus it would be most surprising if the District Court’s opinion in Swann were a prescient application of the exact factors in the exact fashion subsequently approved. Indeed, Hensley v. Eckerhart also quotes the above referenced Senate Report and briefly analyzes with approval Johnson, Stanford Daily, Davis, and Swann.
Thus, despite the criticism by the majority in Laffey, we find Swann to be instructive on the point we consider today. We note first that it is by no means certain that the Swann Judge did not use something at least akin to the lodestar method. His published order runs less than three pages in total length and plainly reflects only the conclusion of an extended fee controversy. The opinion refers to extensive documentation including affidavits reflecting that plaintiffs counsel had expended more than 2,700 hours on the case. Swann, 66 F.R.D. at 485. The order expressly finds that “hourly rates in federal courts run from $30 to $35 an hour up to two or three times that figure.” Id. at 486. He finally awarded fees of $175,000 which divided by 2,700 hours yields an apparent hourly rate of $64.81, well within the broad range (or “brackets”) earlier referenced by the Court. In setting the fee at the referenced figure, he explicitly expresses a preference to “err on the conservative side in dealing with any fee question....” Id. Also in the order, he finds plaintiffs counsel to be exceptional in “reputation, experience and ability.” Id. So it would appear that the Swann award is at least not inconsistent with the lodestar approach.
More significantly for our purposes, as noted above, the Swann Court expressly considered “[f]ees customarily charged for similar services.” Id. He also considered as one factor the “[f]ees paid to opposing counsel.” Id. at 485. The opposing counsel were conventional for-profit law firms. The Swann fee award order expressly finds that plaintiffs counsel had been “compensated... on a nominal basis.” Id. at 486. As is apparent, the Swann Court based the fee award on the other factors it listed inclusive of “[f]ees customarily charged for similar services” and “[f]ees paid to opposing counsel” (for-profit firms) without any cap constructed from the lower or “nominal” fees which had been adequate to attract counsel not only competent but exceptional as to “reputation, experience, and ability_” Id. at 485-86. In short, the Senate and the Supreme Court, by approving the application of the appropriate standards in Swann, evidence an intent consistent with our decision and inconsistent with that of Laffey.
The third case eongressionally approved as properly applying the appropriate standards, Davis v. County of Los Angeles, supra, is not on point. That case involved a true public interest legal organization with no ascertainable billing history. That decision therefore presages the exact question answered in Blum v. Stenson. Nonetheless, Davis is in no sense inconsistent with our conclusion that Congress did not intend the private but public-spirited rate-cutting attorney to be penalized for his public spiritedness by being paid on a lower scale than either his higher priced fellow barrister from a more established firm or his salaried neighbor at a legal services clinic.
In short, we conclude that our prior decision in Laffey v. Northwest Airlines, Inc., and the panel decision in this case, which it compelled, are both inconsistent with the intent of Congress in enacting fee award statutes and with the Supreme Court’s decision in Blum v. Stenson which construed those statutes. We therefore expressly overrule Laffey to the extent that it imposes the above discussed different method of determining reasonable attorney fees on attorneys situated as Yablonski and Galloway are here. Henceforth, the prevailing market rate method heretofore used in awarding fees to traditional for-profit firms and public interest legal services organizations shall apply as well to those attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals.
C. Second Litigation
The Secretary argues here, as Northwest Airlines did in Laffey, that the approach used by the District Court in the fee calculation in each case, which we today adopt, is inconsistent with the Supreme Court’s admonition that “a request for attorneys fees should not result in a second major litigation.” The argument proceeds from there that “determining an appropriate ‘market rate’ for the services of a lawyer is inherently difficult.” Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11. Therefore, the Secretary contends, it must engender more fee litigation than the more easily applied Laffey method. However, the difficulty of application of the method Congress intended does not justify our abandoning it. Neither does it justify the anomaly that resulted from the Laffey rule.
Indeed, defendants’ argument on this subject defeats itself. The very language from Blum argued by the defense here, as quoted by us above, comes from the Blum Court’s analysis of the proper methodology for applying fee award statutes to public service legal organizations. The very paragraph cited by the Secretary goes on to say “[nevertheless... the critical inquiry in determining reasonableness is now generally recognized as the appropriate hourly rate. And the rates charged in private representations may afford relevant comparisons.” Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11. Plainly the difficulty of determining market rate, though recognized by the Supreme Court in Blum, did not prevent that determination from being the proper basis for fee awards on Blum -type facts. Neither can it on Laffey -type facts.
D. The Remaining Remand
Despite the fact that we vacate so much of the panel opinion as is inconsistent with this opinion (that is so much of that opinion as relied on Laffey), and adopt the reasoning of the District Court on the basic method of determining a reasonable hourly rate, a limited remand is necessary. In arriving at the “prevailing community rates” applicable to Yablonski’s and Galloway’s fee award determination, the District Court relied, at least in part, on the schedule of prevailing community rates compiled by the District Court in Laffey. Save Our Cumberland Mountains, 662 F.Supp. at 1165. The difficulty of that reliance is that, since the time of the District Court’s opinion, the Supreme Court has made it plain that “absent an explicit waiver of sovereign immunity, attorneys’ fees awarded against the federal government must be based on historical rates.” Save Our Cumberland Mountains, 826 F.2d at 59 (Wald, C.J., separate opinion) (citing Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986)). Thus, we must remand this matter for the limited purpose of new findings as to reasonable hourly rates at the time the services were performed consistent with this opinion.
We do not intend, by this remand, to diminish the value of the fee schedule compiled by the District Court in Laffey. Indeed, we commend its use for the year to which it applies. Perhaps the most desirable result of the present litigation would be the compiling of a similar schedule of prevailing community rates for other relevant years.
In making this remand we encourage the parties to act reasonably in pursuit of any possible settlement. Already this case has occupied the time of the Courts and the attorneys since 1981. Since 1985, the litigation has concerned attorneys’ fees. Consistent with the admonitions of the Supreme Court in Hensley v. Eckerhart, we would urge the parties not to unduly prolong what is already “a second major litigation.”
VACATED AND REMANDED.
. As the panel noted, the attorneys’ fee provision applicable to this case does not "require that the award be ‘reasonable’; instead, it simply empowers the court to award fees to 'any party, whenever the court determines such award is appropriate.’ 30 U.S.C. § 1270(d) (1982). Nonetheless, the Supreme Court has found that an identically worded fee statute in the Clean Air Act, 42 U.S.C. § 7604(d) (1982), should be interpreted in accord with the more abundant jurisprudence addressing the attorney’s fee provision in the Civil Rights Act, 42 U.S.C. § 1988 (1982), and other statutes that award a ‘reasonable’ attorney’s fee_’’ Save Our Cumberland Mountains, 826 F.2d at 47. Therefore the analysis is the same as that pursued in Blum and Laffey.
. Provided, of course, these do not exceed the Laffey brackets.
. See American Bar Ass'n, Model Rules of Professional Conduct (1984), Rules 3.3, 4.1 (Candor and Truthfulness), and Rule 6.1 (Pro Bono Pub-lico Service).
. Again we note that the Supreme Court was construing a different fee awards statute, but again the analysis applies. See supra note 1. While the dissent accuses us of tilting at windmills, the dissent's consistent theme of tilting at windfalls challenges opponents that are not even there. We do not propose, as the dissent suggests, that all attorneys be remunerated at the same rate, regardless of their competence, experience, and marketability. We only aim to provide that their experience, competence, and marketability will be reflected in the rate at which they are in fact remunerated.
. Now embodied in the ABA Model Code, Rule 1.5. See supra note 3.
. The Johnson Court discussed each factor in a separate paragraph. See Johnson, 488 F.2d at 717-19.
. The modifications in the District Court’s opinion ordered by
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_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.
UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Gaylord OLSON, Defendant-Appellant.
No. 71-1617.
United States Court of Appeals, Ninth Circuit.
Sept. 13, 1971.
Gerard J. Glass, San Francisco, Cal., for defendant-appellant.
James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before KOELSCH and CHOY, Circuit Judges, and POWELL, District Judge.
Honorable Charles L. Powell, Chief Judge, United States District Court for the Eastern District of Washington, sitting by designation.
CHOY, Circuit Judge:
Lawrence Olson appeals his conviction for refusal to submit to induction. We affirm.
On October 11, 1966, Olson enrolled in Shasta Junior College and subsequently received a II-S student deferment. In 1967, he transferred to Cabrillo Junior College, and the II-S was continued. At the completion of his second year in college, his first at Cabrillo, Olson had completed 58% units, which fell short of the 60 units required by Cabrillo for junior college graduation after two years.
In December, 1968, Olson’s Local Board found that he was not “satisfactorily pursuing a full-time course of instruction” within the meaning of 32 C.F.B. sec. 1625.25 and reclassified him I-A. One day after the expiration of the thirty-day appeal period, Olson asked for an appeal and a personal appearance before the Board. The Board granted the appeal, but refused a personal interview. The I-A was upheld on appeal, and Olson was ordered to report for induction. He failed to do so, and was reordered to report. He did so, but refused to take the symbolic step forward. Olson was then indicted and convicted.
The Local Board was correct in revoking Olson’s II-S and reclassifying him I-A. Olson enrolled in a two-year college in October, 1966, and in October, 1968, should have completed the full 60-credit program required to graduate. He did not. Olson had four years from 1966 to obtain his baccalaureate degree; the letter sent by Tahoe College in 1969, attesting that he was enrolled as a full-time third-year student at that institution and would graduate in 1971, confirmed that he could not do so.
The Selective Service System recognizes that the four-year requirement need not be rigidly applied when a student transfers from a junior or community college to a four-year school. Local Board Memorandum No. 43, issued by the Director of Selective Service, provides :
“When a registrant transfers from a junior college or community college to a degree granting institution, and loses credit through no fault of his own, he may have less than the percent of course completion required in Regulation) 1625.25(c). * * * The local board may, in its discretion, grant a II-S deferment for the first year after transfer. * * * ”
But this Memorandum does not help Olson. First, the II-S deferment is discretionary with the Local Board. It need not be given. Second, the Memorandum applies only when a registrant transfers from a junior to a four-year institution and loses credit in that transition. Olson lost his credits in his move from Shasta Junior College to Cabrillo Junior College, or during his enrollment at either school. Finally, Olson has not proved that he lost his credits through no fault of his own.
Whether a student is “satisfactorily pursuing a full-time course of instruction” is a question of fact. In resolving that question, the main source of information and evidence is generally the college administration. “When a college cannot certify that the registrant is expected to graduate on time, certainly a local board would have a basis in fact for terminating the [II-S] deferment.” Coleman v. Tolson, 435 F.2d 1062, 1064 (4th Cir., 1970). Olson could not graduate in time. The Local Board was correct in revoking his II-S. United States v. Brooks, 415 F.2d 502 (6th Cir., 1969).
There is no evidence in the record to indicate that the Board’s refusal to reopen Olson’s classification when it received the Tahoe College letter was punitive in nature. Since Olson had not presented a prima facie case warranting reopening his classification, the Board’s refusal to do so was not illegal.
Finally, Olson cites United States v. Karlock, 427 F.2d 156 (9th Cir., 1970), and urges that once the Board had waived the thirty-day appeal requirement and allowed his appeal, it was also obligated to grant him a personal appearance. We find Karlock distinguishable. Karlock brought a new classification request to his board’s attention; and once it had agreed to entertain that new classification request, it had an obligation to afford the registrant an opportunity for both local and appeals board review. Here, Olson was continuously contesting the validity of the revocation of his II-S. To extend Karlock to such a situation is unwarranted. The Board’s decision here to bestow one benefit does not require it to bestow another.
Affirmed.
. (a) In Class II-S shall be placed any registrant who has requested such deferment and who is satisfactorily pursuing a full-time course of instruction at a college, * !! * such deferment shall continue until such registrant * * * fails to pursue satisfactorily a full-time course of instruction. * * *
(b) A student shall be deemed to be “satisfactorily pursuing a full-time course of instruction” when, during his academic year, lie has earned, as a minimum, ei'edits toward his degree which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year.
. Nor dill the Tahoe College letter constitute a prima facie case warranting reopening Olson’s classification. 32 C.F.R. sec. 1625.4; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Bd.2d 362 (1970). The letter confirmed the fact that Olson had not completed his second academic year according to the terms of the Regulations. Since Olson’s academic year terminated in October, 1968, United States v. Brandt, 435 F.2d 324 (9th Cir., 1970), a prima facie case would have to show that at that time Olson had completed 50% of the credits needed to graduate in 1970. The Tahoe College letter did not show that.
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_applfrom
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Andrew J. EASTER and Mildred P. Easter, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 9602.
United States Court of Appeals Fourth Circuit.
Argued Nov. 16, 1964.
Decided Dec. 1, 1964.
Andrew J. Easter, petitioner, pro se.
Norman Sepenuk, Atty., Dept. of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept. of Justice, on brief), for respondent.
Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.
PER CURIAM.
We have carefully reviewed the decision of the Tax Court in this matter, and for the reasons set out in its opinion, we affirm.
The adjustment of the depreciation basis for the facilities located at 6608 Belair Road, Baltimore, Maryland,was clearly proper, since it is undisputed that the taxpayer himself invested only $28,000 in the buildings on that site. It is elemental that a taxpayer cannot recoup by means of depreciation deductions an investment in a depreciable asset made by a stranger. Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 102, 63 S.Ct. 902, 87 L.Ed. 1286 (1943); Commissioner of Internal Revenue v. Revere Land Co., 169 F.2d 469 (3 Cir.), cert. denied, 335 U.S. 853, 69 S.Ct. 82, 93 L.Ed. 401 (1948); Commissioner of Internal Revenue v. Arundel-Brooks Concrete Corp., 152 F.2d 225, 162 A.L.R. 1200 (4 Cir. 1945).
There also was no error in the redetermination of the remaining useful life of the other three pieces of property involved in this litigation, for the Tax Court decisions concerning the structures at both 2801 Adams Mill Road in Washington, D. C., and 6420 Belair Road in Baltimore are supported by substantial credible evidence in the record. Regarding the frame house located at 6502 Belair Road in Baltimore, neither the Government nor the taxpayer produced evidence from which a decision could be made as to its reasonable estimated useful life. Since the Commissioner’s determination in this regard is presumptively correct and the burden is upon the taxpayer to show error therein, Burka v. Commissioner of Internal Revenue, 179 F.2d 483 (4 Cir. 1950), the Tax Court had no choice but to accept the useful life position contended for by the Commissioner, and we have no choice but to affirm.
While it may be somewhat frustrating to the petitioner, the law is nonetheless settled that the acceptance of returns filed by a taxpayer in earlier years and the acquiescence in the taxpayer’s depreciation basis and useful life figures contained therein for the purpose of approving tax refunds will not support an estoppel argument or bar the Commissioner’s action in correcting a mistake in the taxpayer’s prior returns when it is detected by him within the period of limitations. M. Pauline Casey, 38 T.C. 357, 381 (1962); cf. Caldwell v. Commissioner of Internal Revenue, 202 F.2d 112, 115 (2 Cir. 1953).
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_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
HOBBS & COMPANY, INC. v. AMERICAN INVESTORS MANAGEMENT, INC. and Harry M. Weenig, Appellants.
No. 77-1445.
United States Court of Appeals, Third Circuit.
Argued Jan. 9, 1978.
Decided May 4, 1978.
Israel Packel, John C. McNamara, Jr., Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for appellants.
William T. Hangley, Stephen M. Foxman, Goodman & Ewing, Philadelphia, Pa., for appellee.
Before ADAMS, BIGGS and WEIS, Circuit Judges.
OPINION OF THE COURT
BIGGS, Circuit Judge.
This is an appeal, pursuant to 28 U.S.C. § 1291, from a final judgment of the United States District Court for the Eastern District of Pennsylvania, dated January 24, 1977. On December 31, 1974, appellee Hobbs & Company, Inc. (“Hobbs”) instituted suit against seventeen defendants, including appellants herein, American Investors Management, Inc. (“AIM”) and Harry M. Weenig (“Weenig”). The action arose out of Hobbs’ 1973 investment in SME Florida Partners Ltd. (“SME”), a limited partnership organized to develop condominiums in Florida and to provide tax benefits to the investing limited partners. AIM was the general partner in SME, and Weenig was a shareholder, director, and officer of AIM. Hobbs’ complaint, charging violations of federal and state securities laws as well as common law fraud, alleged that the defendants, including AIM and Weenig, used fraudulent and deceptive means to induce Hobbs to purchase a limited partnership interest in SME for $150,000, and that as a result Hobbs was entitled to recover compensatory damages in excess of $400,000 as well as punitive damages.
After extensive pre-trial proceedings, a Settlement Agreement was entered into by the parties on January 6,1976. This Agreement was approved by the district court and Hobbs’ action was dismissed with prejudice. In addition to providing for cash payments to Hobbs, the Settlement Agreement contained, inter alia, the following pertinent provisions. (1) SME had invested in two development projects, “Jacaranda” and “Tamarac,” but had substantially defaulted on the principal, interest, and tax payments on both properties. Under Paragraph 6 of the Settlement Agreement, AIM, but not Weenig, agreed to “make all payments including payments of mortgage principal, interest and taxes necessary to preserve intact and keep free from any cloud on title or liability the ownership interest of SME . in . Jacaranda and Tamarac, through January 1, 1978.” (2) The limited partnership interests had been marketed as a tax shelter. Paragraph 7 of the Agreement stated that AIM and Weenig represented and guaranteed that certain tax consequences were available to the limited partnership for the years ended December 31, 1973, 1974, and 1975, and promised to prepare and file tax returns and reports necessary to secure such benefits. Upon failure of these undertakings, AIM and Weenig agreed to pay Hobbs such amount of money as would put it in the same position which would have resulted had the promised tax consequences been made available. (3) With respect to remedies in the event of default by any settling defendant, Paragraph 10 of the Agreement provided that “[u]pon the default, failure or delinquency of any defendant in making any payment of any money, in delivering or satisfying any note or in the performance of any undertaking to which such defaulting defendant has agreed, then the dismissal compromise and settlement of plaintiff’s claims against such defaulting defendant provided for in this Stipulation and Agreement shall be void and of no effect solely as to such defaulting defendant. . . .” Paragraph 10 further provided that “this Court shall retain jurisdiction of this action solely for the purpose of enforcing the undertakings contained in this Stipulation and Agreement.
On May 17, 1976, Hobbs filed a motion with the district court to enforce against AIM its obligations with respect to Jacaranda, as set forth in Paragraph 6 of the Settlement Agreement, to hold AIM and Weenig in civil contempt on account of their willful breach of the Agreement, and to order AIM and Weenig to pay Hobbs’ attorneys’ fees. Hobbs contended, inter alia, that AIM had failed to make the Jacaranda payments when due and did not intend to make future payments, and that Jacaranda’s mortgagee, Gulfstream Land & Development Corp. (“Gulfstream”), had declared the mortgage in default and initiated foreclosure proceedings. According to Hobbs, the court convened a telephonic hearing by conference call on May 17, 1976, which was participated in by the court, counsel for Hobbs, Weenig, AIM (by Weenig), and various other counsel. On May 19, 1976, the court ordered AIM to pay instanter all delinquent and current installments of mortgage principal, interest, and taxes on Jacaranda and to thereafter make all such payments through January 1, 1978; enjoined AIM and Weenig, among others, from doing any act inconsistent with or interfering with the performance of the Settlement Agreement and Order; and ordered AIM and Weenig to pay Hobbs’ costs and legal expenses arising out of their refusal to perform their obligations under the Settlement Agreement and Order in an amount to be determined by the court. The court declined to find AIM or Weenig in civil contempt.
In June 1976, Hobbs learned that AIM was no longer able to make the required payments on Jacaranda. In a letter to Gulfstream dated June 16, 1976, Weenig attributed AIM’s financial difficulties to the cost of legal work in connection with litigation other than with Hobbs to which AIM and Weenig were parties and to internal expenditures in the management of AIM. On June 28, 1976, Hobbs filed another motion for enforcement and for a contempt adjudication against AIM and Weenig, alleging that Weenig had violated the court’s May 19 injunction and had caused AIM to violate the Settlement Agreement and the court’s prior orders by dispersing its funds to matters other than the Jacaranda obligations. Hobbs prayed that Weenig be ordered personally to make the delinquent and current payments on Jacaranda to the extent that they were not timely made by AIM, and that AIM and Weenig be held in civil contempt. AIM and Weenig jointly responded with briefs, affidavits, and exhibits attempting to rebut Hobbs’ contention that Weenig had directed AIM’s available assets to matters other than the performance of the Settlement Agreement. According to Hobbs, a conference was held in chambers on August 9,1976, with counsel for Hobbs and counsel for AIM and Weenig present, and on September 2, 1976, evidence from both sides, including Weenig’s live testimony, was taken at a hearing on Hobbs’ motion in open court. This hearing was not transcribed. See n. 16 infra. At the hearing, avers Hobbs, the court made certain settlement recommendations and Hobbs’ motion was held in abeyance pending the parties’ attempts to work out an amicable resolution of the situation. Apparehtly, in light of the pending foreclosure proceedings on Jacaranda, the court indicated its intention to act on Hobbs’ motion if the matter was not resolved by September 16, 1976.
Although the matter was not settled in accordance with the foregoing, the court took no action. On November 29, 1976, counsel for AIM and Weenig informed the court that Weenig had resigned as President and director of AIM, that AIM was without officers and directors, and that its remaining assets and affairs were being managed by Weenig Enterprises in Utah. In a word, AIM was defunct.
On December 13, 1976, the district court issued an opinion and order scheduling an additional hearing on December 20, 1976. The opinion noted that Hobbs’ motions remained unresolved and that the hearing would be held to resolve all issues which had arisen as a result of the Settlement Agreement. Hobbs alleges that at the hearing it submitted that the Jacaranda payments had not been made, that the tax consequences and filings guaranteed by AIM and Weenig in Paragraph 7 of the Agreement had not come about, and that Weenig had prevented AIM from making the Jacaranda payments and had allowed AIM to use its assets to such an extent that it became incapable of making the payments on the property. On January 5, 1977, Hobbs’ counsel, apparently at the court’s suggestion, submitted a motion to reduce the Settlement Agreement to judgment against AIM and Weenig and for reimbursement of its counsel fees and expenses. The motion prayed for judgment against AIM and Weenig, jointly and severally, in the amount of $131,856.37, plus interest, as damages for the nonpayment by AIM of the Jacaranda obligations. The alleged basis of Hobbs’ damage claim was that its investment or contribution of $150,-000 to SME’s initial capitalization entitled it to a “9.375% equity interest in all assets of SME,” and thus, the danger of foreclosure of Jacaranda entitled Hobbs to damages of 9.375% of the price which SME had agreed to pay on an installment basis for that realty ($1,406,468), or $131,856.37. In addition, the motion asserted a violation by AIM and Weenig of Paragraph 7 of the Settlement Agreement (the tax consequence provision) and requested counsel fees and expenses in the amount of $4,836. In response to Hobbs’ motion, AIM and Weenig asserted their good faith efforts to preserve Jacaranda from foreclosure, denied the damage claim (specifically stating that Hobbs, “by virtue of his investment in SME, acquired no equitable or legal interest in the partnership realty and, consequently, does not have an interest in Jacaranda, that is ‘not less than $131,856.37’ as is alleged”), and denied Hobbs’ right to counsel fees and expenses as inappropriate as a matter of law.
On January 24, 1977, the court, without any further hearing or proceeding and “upon consideration of plaintiff’s Motion and in consideration of the testimony and other evidence presented by the parties at the various hearings in this matter and by affidavit,” entered the requested judgment. The court ordered: “that paragraph 6 of the . . . Settlement Agreement . . . is reduced to judgment, and judgment is entered against defendants . . AIM . and . . . Weenig . . . , jointly and severally, and in favor of plaintiff Hobbs ... in the amount of $131,856.37, plus interest at six (6%) per cent per annum from January 6, 1976”; “that paragraph 7 of the Settlement Agreement is reduced to judgment, and judgment is entered against defendants AIM and Weenig, jointly and severally, thereunder”; and “that plaintiff is hereby granted judgment for its legal fees and expenses incurred in procuring enforcement of the Settlement Agreement in the amount of $4,836.” AIM and Weenig appeal from that judgment.
Appellants first contend that the award of damages by the district judge in favor of Hobbs was unauthorized both at law and under the specific terms of the Settlement Agreement. Appellants acknowledge that a district court generally has jurisdiction to enforce a settlement agreement entered into under its aegis, Kelly v. Greer, 365 F.2d 669 (3d Cir. 1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967), and as part of its enforcement powers to award damages for breach of such an agreement, Walther & Cie v. U. S. Fidelity & Guaranty Co., 397 F.Supp. 937 (M.D.Pa. 1975). However, Paragraph 10 of the Settlement Agreement expressly provided that a default by any settling defendant would void the dismissal of the action as to that defendant, permitting plaintiff to reinstitute the litigation, with the defaulting defendant thereafter deprived of certain claims and specified defenses. Appellants thus argue that the inclusion in the Agreement of this express remedy, together with the absence of any language concerning a recovery of damages for nonperformance, precluded the court from awarding damages upon appellants’ failure to comply with the terms of the Agreement. Appellee Hobbs argues that notwithstanding the inclusion of this express remedy, a further provision of Paragraph 10, stating that “this Court shall retain jurisdiction of this action solely for the purpose of enforcing the undertakings contained in this Stipulation and Agreement,” authorized the court to award damages for breach of the settlement contract.
The contentions of the parties raise a question respecting the proper construction and interpretation of the Settlement Agreement on which we decline to rule, the matter apparently never having been raised in the district court in the first instance and the present record being insufficient to determine the intent of the parties with respect to the remedies contemplated in Paragraph 10. See Aro Corporation v. Allied Witan Co., 531 F.2d 1368, 1371 n. 1 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976); Florida Education Association, Inc. v. Atkinson, 481 F.2d 662, 663 (5th Cir. 1973); Lichtenstein v. Lichtenstein, 454 F.2d 69, 71 (3d Cir. 1972) and 425 F.2d 1111, 1113 n. 2 (3d Cir. 1970). However, even assuming that the district judge was not precluded by the terms of the Settlement Agreement from entertaining Hobbs’ motion for damages, remand of this case is necessary because damages should not have been awarded summarily under the circumstances here presented. Although it is well established that district courts generally have the power to enforce summarily, on motion, settlement agreements entered into with their approval, Kelly v. Greer, supra, at 671, there are instances where the facts at issue are so complex or disputed that summary enforcement of the agreement is improper. As stated by the court in Autera v. Robinson, 136 U.S.App.D.C. 216, 419 F.2d 1197 (1969): “[I]t is apparent that the summary procedure for enforcement of unperformed settlement contracts is not a panacea for the myriad types of problems that may arise. The summary procedure is admirably suited to situations where, for example, a binding settlement bargain is conceded or shown, and the excuse for nonperformance is comparatively unsubstantial. On the other hand, it is ill-suited to situations presenting complex factual issues related either to the formation or the consummation of the contract, which only testimonial exploration in a more plenary proceeding is apt to satisfactorily resolve. We commend the summary practice for use in connection with problems capable of precise resolution without attendant hazard to the interests of the parties. At the same time, it is evident that beyond that point the convenience of the summary procedure must yield to the exigencies of safeguarding all legally protected rights that are involved.” Id. at 219, 419 F.2d at 1200; see Kukla v. National Distillers Products Co., supra, at 621-22.
In the instant case the district judge entered not an enforcement order but rather a judgment for unliquidated damages, and, as shown in the above portion of this opinion, the facts surrounding appellants’ alleged breach, the theory and amount of damages, and the party or parties properly liable for damages were complex and highly disputed issues. Although several conferences and at least one court hearing were convened, none of these proceedings was held subsequent to Hobbs’ motion for damages and none apparently was addressed to the issue of damages. Under these circumstances the district judge should have held a further proceeding to receive evidence from the parties bearing on the question of damages and other related issues.
On the basis of the record before us, we are unable to review the remaining questions raised by appellants, viz., whether the district court erred in calculating Hobbs’ damages, in entering judgment against Weenig personally for AIM’s breach of Paragraph 6 of the Agreement, and in awarding attorneys’ fees and expenses in favor of Hobbs. The judgment recited that the district judge relied, inter alia, upon “the testimony and other evidence presented by the parties at the various hearings in this matter.” However, no records were ever taken or transcriptions made at said hearings, and the district judge made no findings of fact or conclusions of law in support of the judgment. Nor was an opinion or memorandum handed down. While neither party contests the proposition that the district judge, given the proper circumstances, had the power to “pierce the corporate veil” in holding Weenig personally liable and to award attorneys’ fees and expenses to Hobbs, we are left to speculate as to the basis of the district court’s judgment. See Kreda v. Rush, 550 F.2d 888, 890 (3d Cir. 1977); Goode v. Rizzo, 506 F.2d 542, 549 (3d Cir. 1974), reversed on other grounds, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Groh v. Brooks, 421 F.2d 589, 594-95 (3d Cir. 1970); O’Neill v. United States, 411 F.2d 139, 146 (3d Cir. 1969); Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449, 452 (3d Cir. 1964). “It is necessary that a Court state its reasons for granting or denying attorneys’ fees, in order that the Court’s action can be properly reviewed on appeal.” Taylor v. Perini, 503 F.2d 899, 904 (6th Cir. 1974), vacated on other grounds, 421 U.S. 982, 95 S.Ct. 1985, 44 L.Ed.2d 474 (1975); see Goode v. Rizzo, supra, at 549; Milburn v. Huecker, 500 F.2d 1279, 1282 (6th Cir. 1974); Lee v. Southern Home Sites Corp., 429 F.2d 290, 296 (5th Cir. 1970). The same principle is applicable in order for this court to determine whether the extraordinary remedy of piercing the corporate veil was warranted on the facts of this case. Similarly, although appellee contends that the district court acted within its discretion in awarding damages based upon the value of the partnership assets, we are unable to discern the proofs or theories upon which the district court relied. Whether or not Rule 52(a), Fed.R. Civ.P., 28 U.S.C., is expressly applicable, the case at bar is one which requires findings of fact and conclusions of law in respect to the relevant issues. American Cyanamid Co. v. Sharff, 309 F.2d 790, 798 (3d Cir. 1962). The case must therefore be remanded to the district court so that the necessary findings of fact and conclusions of law may be made and the record augmented by further evidence if necessary.
Accordingly, for the reasons set forth herein, the judgment of the district court will be vacated and the case will be remanded for proceedings not inconsistent with this opinion.
. There is a factual dispute as to whether Weenig was the sole or the principal shareholder of AIM. The resolving of this dispute may be relevant but we cannot perceive whether it is on the present insufficient record.
. Paragraph 1 of the Settlement Agreement provided that certain of the defendants, including Weenig but not AIM, were to make immediate cash payments to Hobbs aggregating 191,000. Of this amount, Weenig’s obligation was $21,000. Although the defendants, as a group, were delinquent in making these payments, Hobbs eventually received most of the cash with the aid of a court order.
. The Jacaranda property had been purchased for $1,406,468. The sum of $953,962 was paid as a down payment, leaving a balance of $452,-506 payable in four equal payments of $113,-127, all of which was either delinquent on the settlement date or due before January 1, 1978. Although the payments on Tamarac were similarly in default, the partnership’s equity in Tamarac was much smaller and the property was considered less valuable than Jacaranda. Therefore, Hobbs agreed in Paragraph 6 of the Agreement that the abandonment of Tamarac, with the approval of a majority of the limited partnership interests in SME, would not be deemed a breach of the settlement agreement. In fact, Tamarac was eventually abandoned.
. In a letter to Hobbs’ attorney, dated March 16, 1976, counsel for AIM and Weenig took the position that the language of Paragraph 6 of the Agreement did not accurately set forth the understanding between Hobbs and AIM. Apparently, Hobbs interpreted that provision to mean that until January 1, 1978, AIM would make all payments required under the purchase contract between SME and Gulfstream relative to the Jacaranda property. AIM’s counsel, however, interpreted Paragraph 6 to mean that AIM could use any means possible to preserve the property and that it was not strictly bound to the repayment schedule or terms set forth in the original purchase agreement. To that end, AIM, at the time the Settlement Agreement was executed and allegedly without the knowledge of Hobbs or the court, proposed to Gulfstream a plan whereby the delinquent interest would be added to the principal amount of the note and the terms and schedule of repayment would be modified. The negotiations further contemplated the delivery to Gulfstream, in escrow, of a deed in lieu of foreclosure which could be recorded in favor of Gulfstream without normal foreclosure if the partnership failed to make any payment. Hobbs contended that this plan violated Paragraph 6 of the Settlement Agreement in that it placed title to Jacaranda in immediate jeopardy and reduced the partnership’s equity in the property. In any event, as evidenced by a letter from Gulfstream to AIM and Weenig dated April 5, 1976, the negotiations failed when an initial payment from AIM was dishonored, and Gulfstream initiated foreclosure proceedings.
. On June 21 23, 1976, Hobbs submitted applications and affidavits in support of the award of counsel fees and expenses in the amount of $4,836, but these were not acted upon by the court until the judgment of January 24, 1977.
. This was the amount originally requested by Hobbs’ counsel subsequent to the court’s order of May 19, 1976. See note 5 supra.
. In Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, the court stated: “Under the general powers of the court, a settlement having taken place in a judicial proceeding, this court may direct a judgment directly in favor of one who has suffered damages as a result of a breach of the settlement agreement by a subscribing party. . . . When parties negotiate a compromise and settlement, this court has authority to see that it is carried out and to award damages for breach thereof. To hold otherwise would undermine the judicially-favored resolution of the litigation through settlement.” 397 F.Supp. at 946 (citations omitted); see Kelly v. Greer, supra, at 672.
. While parties may stipulate in a settlement agreement to the entry of judgment for a sum certain upon the occurrence of a specified event, such as default, All States Investors, Inc. v. Bankers Bond Co., 343 F.2d 618 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965), no such provision was included in the present Agreement.
. Noting that a judgment enforcing a settlement agreement is analogous to a “judgment by consent,” Kukla v. National Distillers Products Co., 483 F.2d 619, 621 (6th Cir. 1973), appellants argue that they never “consented” to an award of damages against them. According to appellants, the district judge should have reinstated the case for trial consistent with the terms of the Agreement. They add that if this remedy would not afford plaintiff satisfactory relief, plaintiff could sue the defaulting defendant for breach of the Settlement Agreement. See Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974).
. Appellee relies upon American Steel Engineering Co., Inc. v. U. S. Fidelity & Guaranty Co., Civil Action No. 75-2131 (E.D.Pa. April 12, 1976), for the proposition that the inclusion of a provision in a settlement agreement giving plaintiff the right to reinstitute its action upon breach does not prohibit the court from enforcing the settlement agreement and awarding damages for its breach. However, in that case the defendant’s obligation under the agreement was to pay plaintiff certain amounts of money, and the court’s enforcement order, which found the defendant in contempt, merely compelled payment of the amount originally due. Thus, the remedy imposed in American Steel was more ir. the nature of an enforcement order than a judgment for damages.
. Appellee asserts that upon breach of the Agreement, as upon breach of any contract, it had the option of affirming the contract and moving for enforcement or disaffirming the contract and suing for damages.
. At oral argument counsel for Hobbs appeared to concede the validity of this proposition, but insisted that the damage award herein was not determined summarily in that it was supported by sufficient evidence properly before the court.
. We note that in Walther & Cie v. U. S. Fidelity & Guaranty Co., discussed supra at note 7, the court, while broadly construing the authority of the district court to award damages for breach of a settlement agreement, awarded such damages only after evidence concerning the construction of the agreement and the measure and amount of damages had been adduced at an evidentiary hearing. 397 F.Supp. at 941.
. As noted infra, no records or transcriptions of these hearings were ever made.
. Although, as appellee stresses, appellants never requested an evidentiary hearing, the briefs and affidavits before the district judge clearly reflected a dispute as to appellants’ alleged breach, the measure and amount of damages, and the propriety of holding Weenig personally liable. See Appendix at A68-A145. While we do not commend appellants’ failure to request further proceedings in the district court, we think that in this case it was incumbent for the judge to develop the facts more fully before entering judgment.
. Since at least one hearing was held in open court, we note that 28 U.S.C. § 753(b) requires court reporters to record verbatim “all proceedings in other [than criminal] cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary . . . .” At oral argument counsel for Hobbs explained that for reasons not necessary to state here appellants desired to conduct the proceedings off the record. Because the district judge apparently acquiesced in this request, we assume that the conditions of § 753(b) were met.
The desirability of having a court reporter present and at least taking notes has been repeatedly referred to by this court. Carroll v. Frontera Compania Naviera, 390 F.2d 311, 315 (3d Cir. 1968); Jaconski v. Avisun Corporation, 359 F.2d 931, 936 (3d Cir. 1966); and United States v. Sigal, 341 F.2d 837, 846-851 (3d Cir.), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965).
. Although ordinarily a stockholder, director, or officer of a corporation is not personally liable for the obligations of that corporation, see, e. g., Bucks v. Buckwalter, 419 Pa. 544, 215 A.2d 625 (1966), personal liability may be imposed in exceptional circumstances, often involving bad faith, contumacious behavior, or fraud. See, e. g., Francis O. Day Co. v. Shapiro, 105 U.S.App.D.C. 392, 267 F.2d 669 (1959); Thomas v. E. C. Mutter Construction Co., 405 Pa. 509, 178 A.2d 570 (1962).
. The current rule regarding the award of attorneys’ fees has been summarized as follows: “Attorneys’ fees and costs are not ordinarily recoverable and unless specifically authorized by statute are awarded only in extraordinary cases. . . Exceptions to this general rule which are rooted in the inherent equity power of the courts consist of the power to assess attorneys’ fees for the willful disobedience of a court order as part of the fine to be levied on a defendant . . . and the authority to award attorneys’ fees when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, at 946 (citations omitted); see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Lichtenstein v. Lichtenstein, 481 F.2d 682 (3d Cir. 1973), cert. denied, 414 U.S. 1144, 94 S.Ct. 895, 39 L.Ed.2d 98 (1974). We note that the instant Settlement Agreement was silent with respect to the matter of attorneys’ fees.
. Appellee argues that the word “refusal” in the court’s Order of May 19, 1976, provides this court with.an adequate finding upon which to review the attorneys’ fee award. The Order stated: “Defendants AIM and Weenig shall pay to plaintiff iustanter, the sum to be determined by the Court as compensation for plaintiffs’ costs and legal expenses arising out of said defendants’ refusal to perform their obligations under the Settlement Agreement and the Order" (emphasis added). However, we think this an insufficient indication of the basis of the district court’s award, especially in light of the fact that on two separate occasions appellee unsuccessfully petitioned the court to find appellants “in civil contempt ... by reason of their willful breach of the Settlement Agreement." We add that in the cases cited by appellee the appellate courts were able to review specific findings of bad faith, vexatiousness, and so forth made by the district courts.
. Indeed, appellee’s lengthy recitation of the numerous bases upon which the district judge could have held Weenig personally liable only amplifies the need for proper findings.
. As noted above, it appears that issues concerning the amount and theory of damages were not developed in any evidentiary proceeding. There is no indication on the record that an attempt was made to apply a measure of damages such as that set forth in Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, at 944, where the court, referring to the breached settlement agreement as a “contract,” stated: “The court, therefore, must apply the general rule that where a contract is breached without legal justification, the injured party is entitled to recover, absent contrary provisions in the contract, whatever damages he suffered provided: (1) they were such as would naturally and ordinarily follow from the breach; (2) they were reasonably foreseeable and within the contemplation of the parties at the time they made the contract; and (3) they can be proved with reasonable certainty.”
. Rule 52(a) of the Federal Rules of Civil Procedure provides in pertinent part: “In all actions tried upon the facts without a jury .... the court shall find the facts specially and state separately its conclusions of law thereon .... Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” Although the parties have not specifically focused upon the applicability of Rule 52 to this case, appellee, in its brief, states cursorily that findings of fact and conclusions of law by the district court were not compelled by Rule 52. However, even though appellee’s request for damages was framed in terms of a “motion,” the district court’s ruling on the motion involved the resolution of numerous factual issues. Thus, it is arguable that this was in reality an action “tried upon the facts without a jury.” See 5A J. Moore, Federal Practice U 52.08 (2d Ed. 1977); Interpace Corporation v. City of Philadelphia, 438 F.2d 401, 405 (3d Cir. 1971) (Adams, J., dissenting).
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_adminaction_is
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
PEREZ v. UNITED STATES
No. 600.
Argued March 22, 1971 —
Decided April 26, 1971
Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, HáRLAN, BreNNAN, White, Marshall, and BlackmuN, JJ., joined. Stewart, J., filed a dissenting opinion, post, p. 157.
Albert J. Krieger argued the cause for petitioner. With him on the briefs was Joel M. Finkelstein.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Beatrice Rosenberg, and Marshall Tamor Golding.
Mr. Justice Douglas
delivered the opinion of the Court.
The question in this case is whether Title II of the Consumer Credit Protection Act, 82 Stat. 159, 18 U. S. C. §891 et seq. (1964 ed., Supp. V), as construed and applied to petitioner, is a permissible exercise by Congress of its powers under the Commerce Clause of the Constitution. Petitioner’s conviction after trial by jury and his sentence were affirmed by the Court of Appeals, one judge dissenting. 426 F. 2d 1073. We granted the petition for a writ of certiorari because of the importance of the question presented. 400 U. S. 915. We affirm that judgment.
Petitioner is one of the species commonly known as “loan sharks” which Congress found are in large part under the control of “organized crime.” “Extortionate credit transactions” are defined as those characterized by the use or threat of the use of “violence or other criminal means” in enforcement. There was ample evidence showing petitioner was a “loan shark” who used the threat of violence as a method of collection. He loaned money to one Miranda, owner of a new butcher shop, making a $1,000 advance to be repaid in installments of $105 per week for 14 weeks. After paying at this rate for six or eight weeks, petitioner increased the weekly payment to $130. In two months Miranda asked for an additional loan of $2,000 which was made, the agreement being that Miranda was to pay $205 a week. In a few weeks petitioner increased the weekly payment to $330. When Miranda objected, petitioner told him about a customer who refused to pay and ended up in a hospital. So Miranda paid. In a few months petitioner increased his demands to $500 weekly which Miranda paid, only to be advised that at the end of the week petitioner would need $1,000. Miranda made that payment by not paying his suppliers; but, faced with a $1,000 payment the next week, he sold his butcher shop. Petitioner pursued Miranda, first making threats to Miranda’s wife and then telling Miranda he could have him castrated. When Miranda did not make more payments, petitioner said he was turning over his collections to people who would not be nice but who would put him in the hospital if he did not pay. Negotiations went on, Miranda finally saying he could only pay $25 a week. Petitioner said that was not enough, that Miranda should steal or sell drugs if necessary to get the money to pay the loan, and that if he went to jail it would be better than going to a hospital with a broken back or legs. He added, “I could have sent you to the hospital, you and your family, any moment I want with my people.”
Petitioner’s arrest followed. Miranda, his wife, and an employee gave the evidence against petitioner who did not testify or call any witnesses. Petitioner’s attack was on the constitutionality of the Act, starting with a motion to dismiss the indictment.
The constitutional question is a substantial one.
Two “loan shark” amendments to the bill that became this Act were proposed in the House — one by Congressman Poff of Virginia, 114 Cong. Rec. 1605-1606 and another one by Congressman McDade of Pennsylvania. Id., at 1609-1610.
The House debates include a long article from the New York Times Magazine for January 28, 1968, on the connection between the “loan shark” and organized crime. Id., at 1428-1431. The gruesome and stirring episodes related have the following as a prelude:
“The loan shark, then, is the indispensable ‘money-mover’ of the underworld. He takes ‘black’ money tainted by its derivation from the gambling or narcotics rackets and turns it ‘white’ by funneling it into channels of legitimate trade. In so doing, he exacts usurious interest that doubles the black-white money in no time; and, by his special decrees, by his imposition of impossible penalties, he greases the way for the underworld takeover of entire businesses.” Id., at 1429.
There were objections on constitutional grounds. Congressman Eckhardt of Texas said:
“Should it become law, the amendment would take a long stride by the Federal Government toward occupying the field of general criminal law and toward exercising a general Federal police power; and it would permit prosecution in Federal as well as State courts of a typically State offense.
“I believe that Alexander Hamilton, though a federalist, would be astonished that such a deep entrenchment on the rights of the States in performing their most fundamental function should come from the more conservative quarter of the House.” Id., at 1610.
Senator Proxmire presented to the Senate the Conference Report approving essentially the “loan shark” provision suggested by Congressman McDade, saying:
“Once again these provisions raised serious questions of Federal-State responsibilities. Nonetheless, because of the importance of the problem, the Senate conferees agreed to the House provision. Organized crime operates on a national scale. One of the principal sources of revenue of organized crime comes from loan sharking. If we are to win the battle against organized crime we must strike at their source of revenue and give the Justice Department additional tools to deal with the problem. The problem simply cannot be solved by the States alone. We must bring into play the full resources of the Federal Government.” Id., at 14490.
The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, as, for example, the shipment of stolen goods (18 U. S. C. §§ 2312-2315) or of persons who have been kidnaped (18 U. S. C. § 1201). Second, protection of the instrumentalities of interstate commerce, as, for example, the destruction of an aircraft (18 U. S. C. § 32), or persons or things in commerce, as, for example, thefts from interstate shipments (18 U. S. C. § 659). Third, those activities affecting commerce. It is with this last category that we are here concerned.
Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 195, said:
“The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.”
Decisions which followed departed from that view; but by the time of United States v. Darby, 312 U. S. 100, and Wickard v. Filburn, 317 U. S. 111, the broader view of the Commerce Clause announced by Chief Justice Marshall had been restored. Chief Justice Stone wrote for a unanimous Court in 1942 that Congress could provide for the regulation of the price of intrastate milk, the sale of which, in competition with interstate milk, affects the price structure and federal regulation of the latter. United States v. Wrightwood Dairy Co., 315 U. S. 110. The commerce power, he said, “extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.” Id., at 119.
Wickard v. Filburn, 317 U. S. 111, soon followed in which a unanimous Court held that wheat grown wholly for home consumption was constitutionally within the scope of federal regulation of wheat production because, though never marketed interstate, it supplied the need of the grower which otherwise would be satisfied by his purchases in the open market. We said:
“[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ ” 317 U. S., at 125.
In United States v. Darby, 312 U. S. 100, the decision sustaining an Act of Congress which prohibited the employment of workers in the production of goods “for interstate commerce” at other than prescribed wages and hours, a class of activities was held properly regulated by Congress without proof that the particular intrastate activity against which a sanction was laid had an effect on commerce. A unanimous Court said:
“Congress has sometimes left it to the courts to determine whether the intrastate activities have the prohibited effect on the commerce, as in the Sherman Act. It has sometimes left it to an administrative board or agency to determine whether the activities sought to be regulated or prohibited have such effect, as in the case of the Interstate Commerce Act, and the National Labor Relations Act, or whether they come within the statutory definition of the prohibited Act, as in the Federal Trade Commission Act. And sometimes Congress itself has said that a particular activity affects the commerce, as it did in the present Act, the Safety Appliance | Act and the Railway Labor Act. In passing on the validity of legislation of the class last mentioned the only function of courts is to determine whether the particular activity regulated or prohibited is within the reach of the federal power.” (Italics added.) Id., at 120-121.
That case is particularly relevant here because it involved a criminal prosecution, a unanimous Court holding that the Act was “sufficiently definite to meet constitutional demands.” Id., at 125. Petitioner is clearly a member of the class which engages in “extortionate credit transactions” as defined by Congress and the description of that class has the required definiteness.
It was the “class of activities” test which we employed in Atlanta Motel v. United States, 379 U. S. 241, to sustain an Act of Congress requiring hotel or motel accommodations for Negro guests. The Act declared that “ ‘any inn, hotel, motel, or other establishment which provides lodging to transient guests’ affects commerce per se.” Id., at 247. That exercise of power under the Commerce Clause was sustained.
“[O]ur people have become increasingly mobile with millions of people of all races traveling from State to State; . . . Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; . . . often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight . . . and . . . these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook. . . .” Id., at 252-253.
In a companion case, Katzenbach v. McClung, 379 U. S. 294, we ruled on the constitutionality of the restaurant provision of the same Civil Rights Act which regulated the restaurant “if ... it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce.” Id., at 298. Apart from the effect on the flow of food in commerce to restaurants, we spoke of the restrictive effect of the exclusion of Negroes from restaurants on interstate travel by Negroes.
“[T]here was an impressive array of testimony that discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes. This resulted, it was said, because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce for one can hardly travel without eating. Likewise, it was said, that discrimination deterred professional, as well as skilled, people from moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there.” Id., at 300.
In emphasis of our position that it was the class of activities regulated that was the measure, we acknowledged that Congress appropriately considered the “total incidence” of the practice on commerce. Id., at 301.
Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power “to excise, as trivial, individual instances” of the class. Maryland v. Wirtz, 392 U. S. 183, 193.
Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce. In an analogous situation, Mr. Justice Holmes, speaking for a unanimous Court, said: “[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so.” Westfall v. United States, 274 U. S. 256, 259. In that case an officer of a state bank which was a member of the Federal Reserve System issued a fraudulent certificate of deposit and paid it from the funds of the state bank. It was argued that there was no loss to the Reserve Bank. Mr. Justice Holmes replied, “But every fraud like the one before us weakens the member bank and therefore weakens the System.” Id., at 259. In the setting of the present case there is a tie-in between local loan sharks and interstate crime.
The findings by Congress are quite adequate on that ground. The McDade Amendment in the House, as already noted, was the one ultimately adopted. As stated by Congressman McDade it grew out of a “profound study of organized crime, its ramifications and its implications” undertaken by some 22 Congressmen in 1966-1967. 114 Cong. Rec. 14391. The results of that study were included in a report, The Urban Poor and Organized Crime, submitted to the House on August 29, 1967, which revealed that “organized crime takes over $350 million a year from America’s poor through loan-sharking alone.” See 113 Cong. Rec. 24460-24464. Congressman McDade also relied on The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice (February 1967) which stated that loan sharking was “the second largest source of revenue for organized crime,” id., at 189, and is one way by which the underworld obtains control of legitimate businesses. Id., at 190.
The Congress also knew about New York’s Report, An Investigation of the Loan Shark Racket (1965). See 114 Cong. Rec. 1428-1431. That report shows the loan shark racket is controlled by organized criminal syndicates, either directly or in partnership with independent operators; that in most instances the racket is organized into three echelons, with the top underworld “bosses” providing the money to their principal “lieutenants,” who in turn distribute the money to the “operators” who make the actual individual loans; that loan sharks serve as a source of funds to bookmakers, narcotics dealers, and 'other racketeers; that victims of the racket include all classes, rich and poor, businessmen and laborers; that the victims are often coerced into the commission of criminal acts in order to repay their loans; that through loan sharking the organized underworld has obtained control of legitimate businesses, including securities brokerages and banks which are then exploited; and that “[e]ven where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce.”
Shortly before the Conference bill was adopted by Congress a Senate Committee had held hearings on loan sharking and that testimony was made available to members of the House. See 114 Cong. Rec. 14390.
The essence of all these reports and hearings was summarized and embodied in formal congressional findings. They supplied Congress with the knowledge that the loan shark racket provides organized crime with its second most lucrative source of revenue, exacts millions from the pockets of people, coerces its victims into the commission of crimes against property, and causes the takeover by racketeers of legitimate businesses. See generally 114 Cong. Rec. 14391, 14392, 14395, 14396.
We have mentioned in detail the economic, financial, and social setting of the problem as revealed to Congress. We do so not to infer that Congress need make particularized findings in order to legislate. We relate the history of the Act in detail to answer the impassioned plea of petitioner that all that is involved in loan sharking is a traditionally local activity. It appears, instead, that loan sharking in its national setting is one way organized interstate crime holds its guns to the heads of the poor and the rich alike and syphons funds from numerous localities to finance its national operations.
Affirmed.
Section 201 (a) of Title II contains the following findings by Congress:
“(1) Organized crime is interstate and international in character. Its activities involve many billions of dollars each year. It is directly responsible for murders, willful injuries to person and property, corruption of officials, and terrorization of countless citizens. A substantial part of the income of organized crime is generated by extortionate credit transactions.
“ (2) Extortionate credit transactions are characterized by the use, or the express or implicit threat of the use, of violence or other criminal means to cause harm to person, reputation, or property as a means of enforcing repayment. Among the factors which have rendered past efforts at prosecution almost wholly ineffective has been the existence of exclusionary rules of evidence stricter than necessary for the protection of constitutional rights.
“(3) Extortionate credit transactions are carried on to a substantial extent in interstate and foreign commerce and through the means and instrumentalities of such commerce. Even where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce.”
Section 891 of 18 U. S. C. (1964 ed., Supp. V) provides in part:
“(6) An extortionate extension of credit is any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.
“(7) An extortionate means is any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.”
That decision has been followed: Beckman v. Mall, 317 U. S. 597; Bender v. Wickard, 319 U. S. 731; United States v. Haley, 358 U. S. 644; United States v. Ohio, 385 U. S. 9.
See n. 2, supra.
See n. 1, supra.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_casetyp1_1-3-1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Appellee, v. Kevin Ronald HAMILTON, Appellant.
No. 79-5081.
United States Court of Appeals, Fourth Circuit.
Argued May 8, 1980.
Decided July 22, 1980.
John E. Griswold, Petersburg, Va. (White, Hamilton, Wyche & Shell, Peters-burg, Va., on brief), for appellant.
N. George Metcalf, Asst. U.S. Atty., Richmond, Va. (Justin W. Williams, U.S. Atty., Richmond, Va., Tom B. Barwick, Student Asst, to the U.S. Atty., on brief), for appellee.
Before FIELD, Senior Circuit Judge, and HALL and PHILLIPS, Circuit Judges.
FIELD, Senior Circuit Judge:
A federal grand jury for the Eastern District of Virginia returned a two count indictment against the defendant, Kevin Ronald Hamilton. The first count charged the defendant with an assault with a dangerous weapon upon an employee of the Federal Correctional Institution at Peters-burg, Virginia, in violation of Title 18 U.S.C. § 111. The second count charged Hamilton with the conveyance from place to place within the Institution of a weapon, substance or thing designed to kill, injure or disable an employee of the Institution in violation of 18 U.S.C. § 1792. The defendant waived a jury and was tried to the court who convicted him on both counts. Hamilton has appealed.
The evidence, viewed in the light most favorable to the Government, disclosed the following facts. On December 15, 1978, the defendant, upon returning from a visit to the dentist, refused to enter his cell. The Correctional Supervisor called upon several officers, including Sheryl Murray, to assist in placing Hamilton in his cell. As the officers entered the area, the defendant procured a broom handle from his cell and approached the guards swinging the handle “like a ball bat.” When the defendant took the broom handle from his cell, the bottom or bristle portion of the broom had been removed from the handle. The defendant walked forty to fifty feet from his cell while swinging the handle in a menacing manner, and upon reaching the officers struck Murray twice inflicting painful injuries.
We have little difficulty with the conviction on the first count. While there was some conflict in the testimony concerning the confrontation between the defendant and the officers, there was ample evidence to support the court’s determination of guilt, and unquestionably “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).
In challenging his conviction under count two, the defendant argues that since the broom handle had not been modified or altered in any way it could not be properly classified as a “weapon * * * or thing designed to kill, injure, or disable” under Section 1792. We cannot accept such a restrictive reading of the statute. By its terms, the statute does not limit the crime to weapons or firearms, but embraces any “substance or thing designed to kill, injure, or disable any officer, agent, employee, or inmate.” As the court noted in United States v. Roche, 443 F.2d 98, 100 (10 Cir. 1971), “the statute goes further than prohibiting only proven combat weapons.”
The objective of section 1792 is the maintenance of order and security in federal penal institutions. Articles which would ordinarily be considered relatively innocuous may acquire the characteristics of a lethal weapon in a penal institution. Whether an article should be deemed a weapon depends not only upon the nature of the article but the intent with which it is used or conveyed by the individual. This is ordinarily a question to be determined by the jury or the court as trier of the facts. In United States v. Barnes, 569 F.2d 862, 863 (5 Cir. 1978), the court noted “that almost any implement, even a belt buckle, could be intended or used as a weapon,” and held that whether an item constituted a weapon, was a question of fact for the jury. See also United States v. Swindler, 476 F.2d 167, 170 (10 Cir. 1973), cert. denied 414 U.S. 837, 94 S.Ct. 183, 38 L.Ed.2d 72.
In our own circuit, we have read the phrase “dangerous weapon” in a liberal fashion. In United States v. Johnson, 324 F.2d 264 (4 Cir. 1963), we affirmed a conviction of an assault with a dangerous weapon under 18 U.S.C. § 113(c), a statute, incidentally, much narrower in its terms than section 1792. There the defendant had struck and injured an institutional officer with a metal and plastic chair. Writing for the court in that case, Judge Sobeloff made the following observation:
The main legal contention is that a chair is not a dangerous weapon. While it may not be a dangerous weapon per se, 4 AmJur. Assault and Battery § 34, p. 145, almost any object “which as used or attempted to be used may endanger life or inflict great bodily harm." United States v. Anderson, 190 F.Supp. 589, 591 (D. Md. 1960), or which, as it is sometimes expressed, “is likely to produce death or great bodily harm," Tatum v. United States, 71 App.D.C. 393, 110 F.2d 555, 556 (1940), can in certain circumstances be a dangerous weapon. Illustrating this principle, courts have held that a wine bottle can be a dangerous weapon, Thornton v. United States, 106 U.S.App.D.C. 7, 268 F.2d 583 (1959); shoes can be dangerous weapons, Medlin v. United States, 93 U.S.App.D.C. 64, 207 F.2d 33 (1953); a rake can be a dangerous weapon, Eagleston v. United States, 172 F.2d 194 (9th Cir. 1949); a thrown club can be a dangerous weapon, United States v. Anderson, 190 F.Supp. 589 (D. Md.1961); a brick can be a dangerous weapon, State v. Perry, 226 N.C. 530, 39 S.E.2d 460 (1946); and a chair leg can be a dangerous weapon, Wisniewski v. State, 51 Del. 84 [1 Storey 84] 138 A.2d 333 (1957). Not the object’s latent capability alone, but that, coupled with the manner of its use, is determinative. The chair in the instant case was metal and plastic. It was wielded from an upright (overhead) position and brought down upon the victim’s head. Fortuitously, the wound inflicted was not serious, but had the blow fallen an inch lower it could have endangered Cassidy’s eye, or if slightly higher, a dangerous head wound was likely. Evidence of such use of a chair is sufficient to support its characterization by the District Court as a dangerous weapon.” (Emphasis added).
324 F.2d., at 266.
In our opinion the conclusion of the district judge that the broom handle used and conveyed by the defendant constituted a weapon “or thing designed to kill, injure or disable” within the meaning of section 1792 was reasonable and amply supported by the evidence. We further conclude that traversing the forty or fifty feet between his cell and the officers while brandishing the weapon was a sufficient “conveyance” by the defendant to establish that element of the offense. See United States v. LaBare, 542 F.2d 926 (4 Cir. 1976), cert. denied 429 U.S. 1027, 97 S.Ct. 651, 50 L.Ed.2d 630. Accordingly, the convictions on both counts are affirmed.
AFFIRMED.
. 18 U.S.C. § 111. Assaulting, resisting, or impeding certain officers or employees
Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years or both.
. 18 U.S.C. § 1792 reads in pertinent part as follows:
Whoever conveys into such institution, or from place to place therein, any firearm, weapon, explosive, or any lethal or poisonous gas, or any other substance or thing designed to kill, injure, or disable any officer, agent, employee, or inmate thereof, or conspires so to do—
Shall be imprisoned not more than ten years.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_appel1_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 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.
MARICOPA COUNTY, Plaintiff-Appellee, v. AMERICAN PIPE AND CONSTRUCTION CO. et al., DefendantsAppellants.
No. 24737.
United States Court of Appeals, Ninth Circuit.
Aug. 28, 1970.
Rehearing Denied Oct. 26, 1970.
Hamley, Circuit Judge, dissented in part and filed opinion.
Gibson, Dunn & Crutcher, Los Ange-les, Cal., for Smith Scott & United Concrete Pipe.
Pierce T. Selwood (argued), of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for Martin-Marietta Corp.
Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for U.S. Indus.
Jesse O’Malley (argued), of Musick, Peeler & Garrett, Los Angeles, Cal., for U.S. Steel.
George Jansen, Wayne Pitluck, of Sullivan, Marinos, Augustine & Delafield, San Diego, Cal., for American Pipe & Constr. and Am. Concrete.
Gordon Johnson (argued), of Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for Kaiser Steel Corp.
Evans, Kitchel & Jenckes, Phoenix, Ariz., for O’Malley Gannaway Concrete Pipe.
Dominic B. King, Pittsburgh, Pa., for U.S. Steel.
Ronald W. Meyer (argued), Deputy County Atty., Moise Berger, Maricopa County Atty., R. E. Johnson, of Johnson, Bebeau & Timbanard, Phoenix, Ariz., for plaintiff-appellee.
O’Melveny & Myers, Los Angeles, Cal., Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, Olmstead, Stine & Campbell, Ogden, Utah, amicus curiae.
Before HAMLEY and BROWNING, Circuit Judges, and THOMPSON, District Judge.
Honorable Bruce R. Thompson, United States District Judge for the District of Nevada, sitting by designation.
PER CURIAM:
We affirm the order of the district court denying appellants’ motion for summary judgment. We affirm on the grounds stated in the district court’s opinion, except that we do not pass upon the soundness of the district court’s dictum that a government antitrust proceeding filed more than one year subsequent to the termination of a prior government antitrust proceeding could not toll the running of the statute of limitations on private treble damage actions. Nor do we pass upon the contention, made for the first time in a reply brief in this court, that a partial summary judgment should have been granted because American Pipe and Construction Company was not named as a defendant in two of the five civil actions commenced by the government. We see no reason to depart from the general rule that a district court judgment should not be reversed on grounds not raised below. Our affirmance is without prejudice, however, to the filing in the district court by appellants of a motion for partial summary judgment raising this new issue.
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_state
|
25
|
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".
Jack C. VAUGHAN, v. CITY BANK & TRUST COMPANY, NATCHEZ, MISS.
No. 15163.
United States Court of Appeals. Fifth Circuit.
Jan. 28, 1955.
Rehearing Denied March 17, 1955.
Jack C. Vaughan, in pro. per.
R. Brent Forman, Natchez, Miss., for appellee.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAW-KINS, District Judge.
HUTCHESON, Chief Judge.
Acting for and representing himself, plaintiff brought this suit, to recover of defendant $10,416.95 which plaintiff paid it and $250,000.00’ as damages for defendant’s having wrongfully caused to be published a notice of trustee’s sale of property on. which plaintiff had given a deed of trust, and to cancel and set aside said deed of trust.
The proceedings set out below followed, and plaintiff on June 9, 1954, giving notice of appeal “from the following orders of this court in this cause, to-wit, order of Nov. 20, 1953 * * * and (2) final order of May 17, 1954, dismissing the action” is here seeking their reversal.
The appellee moves to dismiss the appeal from both orders. As to the order of Nov. 20, 1953, which overruled the motion to reconsider the order of Oct. 19, 1953, overruling plaintiff’s motion for summary judgment, he insists that it was not a final order and therefore was unappealable, as was the order of Oct. 19th itself. He further insists that if the order of November 20th was appealable, the appeal was not filed in time.
In support of his motion to dismiss the appeal as to the order of May 17, 1954, pointing out that this order was entered at the request of plaintiff, and citing many cases in support, he insists that it is a voluntary dismissal and, being therefore a consent decree, it is not an order from which plaintiff can appeal.
As to the order of November 20, 1953, we agree with appellee that, for the reasons put forward by it, the order was not an appealable one, and the attempted appeal from it must be dismissed.
As to the dismissal order of May 17, 1954, however, while we are of the clear opinion that it was entered properly and advisedly and no error requiring its reversal has been made to appear, we are also of the opinion that the order was a final and appealable one, and the motion to dismiss the appeal from it must be, and it is, denied.
It is true that upon its face the dismissal of the action appears to have been voluntary rather than involuntary, an order invited and consented to rather than one entered in invitum. The record taken as a whole, however, shows plainly that appellant took the course he did not for the purpose and with the intent of voluntarily discontinuing his action, but to obtain an involuntary dismissal within the rule of Ruff v. Gay, 5 Cir., 67 F.2d 684 and Weeks v. Fidelity & Cas. Co., 5 Cir., 218 F.2d 503, and that the order was in reality, and should be regarded as, an involuntary dismissal for want of prosecution and therefore a final judgment from which plaintiff could appeal. Cf. Milton v. U. S., 5 Cir., 120 F.2d 794, 795; Cybur Lbr. Co. v. Eckhard, 5 Cir., 247 F. 284; Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460.
When it comes, however, to appellant’s position, that he was entitled to a summary judgment on his pleadings, and could and would stand on them and refuse further to prosecute his suit and the court erred in dismissing it, the matter stands quite differently.
It is perfectly clear, we think, that there is no merit in plaintiff’s position and that the court did not err in dismissing his suit for want of prosecution. Putting to one side, therefore, appellee’s claim that the court should have dismissed the action for the failure of plaintiff’s complaint to state a claim, though it is difficult to find in it any legal basis for his demands, we think it quite clear beyond any question that there was no basis whatever for his claim that he was entitled on his pleadings to a summary judgment, and the district judge erred in not rendering such a judgment in his favor. On this record the court had no alternative to dismissing his suit.
The judgment was right. It is affirmed.
. The original bill of complaint was filed in the district court, on March 20, 1953, and on April 17, plaintiff filed a . motion for summary judgment.
Thereafter on Sept. 17, 1953, the district judge, by letter, advised the parties that it was his intention to overrule the motion for summary judgment, and on Sept. 25, 1953, plaintiff filed a motion to reconsider the motion for summary judgment.
On October 5, 1953, the answer of defendant was filed, and on October 13, 1953, a motion was filed by plaintiff to strike the defendant’s answer.
On Oct. 19, 1953, the order overruling the motion for summary judgment was filed.
On November 20, 1953, an Order was issued overruling the plaintiff’s motion to reconsider the summary judgment, and also overruling the plaintiff’s motion to strike the defendant’s answer.
On May 12, 1954, an instrument was filed by plaintiff stating that he did not intend to take any further steps in the prosecution of his cause and asking that the cause be dismissed.
On May 17, 1954, an order of dismissal was entered by the court in response to plaintiff’s request.
. Capella v. Zurich General Acc. Lib. Ins. Co., 5 Cir., 194 F.2d 558; Smails v. O'Omalley, 8 Cir., 127 F.2d 410; Lake City, Nettleton & Bay Road v. Luehrmann, 8 Cir., 113 F.2d 458; Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460; U. S. v. Babbitt, 104 U.S. 767, 26 L.Ed. 921.
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_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. 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".
James L. FIORE, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 199, Docket 81-2432.
United States Court of Appeals, Second Circuit.
Argued Sept. 28, 1982.
Decided Dec. 13, 1982.
Zulima V. Farber, Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, P.C., Rose-land, N.J., for appellant.
Warren Neil Eggleston, Asst. U.S. Atty., S.D.N.Y., New York City (John S. Martin, Jr., U.S. Atty., S.D.N.Y., Gerard E. Lynch, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before FEINBERG, Chief Judge, and OAKES and WINTER, Circuit Judges.
OAKES, Circuit Judge:
This appeal is from a judgment of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, denying a petition for correction of sentence. The petition, brought under 28 U.S.C. § 2255, claims that appellant’s probation was improperly conditioned on his payment of a fine imposed upon his corporation which was in excess of the maximum fine to which he was individually subject and which he was sentenced to pay. The condition is said to be illegal because it increases the maximum penalty permitted by statute. We agree with appellant’s con- ■ tention and reverse.
James L. Fiore, Jr., an accountant, commenced a laboratory testing corporation, Bucks County Research Institute, Inc. (BCRI), the business of which was to perform clinical studies and research concerning over-the-counter drugs. Fiore was president, secretary, sole shareholder and only full-time employee of BCRI. He obtained contracts with Vicks Division Research and Development of New York (Vicks) to do clinical studies on certain over-the-counter cough mixtures, cold pills, liquids and nasal spray and apparently followed the practice of a predecessor laboratory testing concern in paying “consulting fees” to a Vicks employee in charge of offering and accepting bids for such contracts. BCRI then submitted test results to Vicks that were not achieved pursuant to Vicks’ test performance instructions. BCRI submitted clinical test reports representing that a particular doctor who was a qualified medical investigator had performed the tests when in fact the tests were performed by another doctor who lacked appropriate accreditation and qualification in the Commonwealth of Pennsylvania. The signature of the qualified doctor was evidently forged on the test results, although this does not appear in the Rule 11 allocution. When the tests were compared to those of other testing laboratories Vicks conducted an intracorporate investigation which led to Fiore’s discovery.
Fiore was charged with a violation of 21 U.S.C. § 331(b) prohibiting the “adulteration or misbranding of any food, drug, device or cosmetic in interstate commerce,” the violation of which is a misdemeanor punishable by a maximum fine of $1,000 and a maximum term of imprisonment of one year. BCRI was charged with making false statements in a matter within the jurisdiction of the United States Food and Drug Administration in violation of 18 U.S.C. § 1001, a felony punishable by a maximum fine of $10,000 in the case of a corporation. Fiore pleaded guilty to the charges against him, and, as an officer of BCRI, pled guilty for the corporation. The sentence as to the corporate defendant was that it pay a sum of $10,000. Fiore’s sentence was that he pay a fine of $1,000 and the imposition of the sentence was suspended and the defendant placed on probation for a period of three years on the following terms and conditions:
1. That the defendant pay the fine of $1,000 in a lump sum;
2. That the defendant pay in full the fine imposed on Bucks County Research Institute, Inc. in installments arranged through the Probation Department; and
3. That the defendant henceforth not take any role, whether it be direct or indirect, in the operation of a medical testing laboratory.
No objection to the sentence was made or appeal taken. In the roughly seven months after imposition of the sentence only $408.81 of BCRI’s fine was paid and the Probation Department petitioned for revocation of probation when Fiore declined to make further payments. He claimed that he had been misadvised by prior counsel that he was not required to pay the fine. He then acknowledged his obligation to commence paying installments and paid an additional $1600. Fiore then filed the instant petition which was denied in November of 1981.
The governing statute is 18 U.S.C. § 3651 which provides in pertinent part as follows:
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
While on probation and among the conditions thereof, the defendant—
May be required to pay a fine in one or several sums; and
May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and
May be required to provide for the support of any persons, for whose support he is legally responsible.
This statute is the only source of the court’s power to suspend the imposition or execution of sentence. United States v. Murray, 275 U.S. 347, 357, 48 S.Ct. 146, 149, 72 L.Ed. 309 (1928); Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Beacon Piece Dyeing & Finishing Co., 455 F.2d 216, 216-17 (2d Cir.1972); United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). Under the statute the sentencing court’s discretion to set the conditions of probation is broad, the validity of conditions being reviewable only upon abuse of discretion. United States v. Pastore, 537 F.2d 675, 681 (2d Cir.1976). See also United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir.1971). The sentencing court may not, however, go beyond the plain language of section 3651, see United States v. Temple, 372 F.2d 795, 799 (4th Cir.1966), cert. denied, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967) (statute permitting punishment by fine or imprisonment does not permit fine and probation), nor may the court exceed the limitation that the conditions imposed must bear “ ‘a reasonable relationship to the treatment of the accused and the protection of the public.’ ” Pastore, supra, at 681; Higdon v. United States, 627 F.2d 893, 898-99 (9th Cir.1980); United States v. Pierce, 561 F.2d 735, 739 (9th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978). Thus, appellate courts have upheld conditions of probation that are tailored to serve the rehabilitation of the defendant and the protection of the public. E.g., United States v. Margala, 662 F.2d 622 (9th Cir.1981) (defendant convicted of stock fraud reasonably required to forfeit retirement benefits acquired from defrauded company after fraud set in motion); United States v. Tonry, 605 F.2d 144 (5th Cir.1979) (defendant convicted of repeated violations of Federal Election Campaign Act reasonably forbidden to engage in political activity while on probation); United States v. Miller, 549 F.2d 105, 107 (9th Cir.1976) (defendant convicted of alcohol-related transgressions reasonably forbidden to consume alcohol while on probation); Malone v. United States, 502 F.2d 554 (9th Cir.1974) (defendant convicted of gun running to the Irish Republic reasonably forbidden to belong to Irish Catholic organizations or groups or to visit any Irish pubs); Porth v. Templar, 453 F.2d 330, 334 (10th Cir.1971) (defendant convicted of failure to file tax returns reasonably forbidden to make public speeches encouraging income tax violations). And, conversely, courts have set aside conditions that are unreasonably excessive or are unrelated to the goals of probation. See Pastore, supra, at 679 (citing cases); e.g., Matter of Hernandez, No. 76757 (Cal.Super.Ct., Santa Barbara County, June 8, 1966) (requiring sterilization of unwed mother convicted- of narcotics violation); Springer v. United States, 148 F.2d 411, 415-16 (9th Cir.1945) (requiring blood donation of defendant convicted of Selective Service Act violation). See also United States v. Clovis Retail Liquor Dealers Trade Association, 540 F.2d 1389, 1390 (10th Cir.1976) (requiring defendant in criminal antitrust case to pay reparations to party not specifically harmed by violation, e.g., county alcoholic rehabilitation organization).
Implicit in the limitations on the permissible conditions of probation are two others suggested by the $10,000 condition imposed on Fiore in this case. First, it is not permissible to require a defendant to pay the penalty or serve the term of a codefendant as a condition of probation. After all the efforts that the courts make to ensure that defendants are not mistakenly or maliciously convicted for crimes that others have committed, it would be incongruous were it permissible to compel a defendant, once convicted of his misdeeds, to suffer penalties for another’s wrongdoings as well as his own. It is true that Fiore is president, secretary, sole stockholder and the only full-time employee of that co-defendant. To the extent that Fiore caused or neglected to prevent the fraud by BCRI, it would have been entirely proper that he be convicted for that fraud. But the degree of Fiore’s control and complicity in having tests performed by unqualified persons in exchange for payments to a Vicks official is a matter of fact not necessarily conceded by Fiore or tried by the court below. A presentence report is not the place to decide a defendant’s vicarious liability for the acts of another; only if Fiore had been proven to be the cause of BCRI’s wrongdoing could he be visited with the penalties for it.
Second, the $11,000 total penalty for Fiore's misdemeanor conviction suggests the additional obvious limitation that sentencing courts may not impose conditions of probation that circumvent the statutory maximum penalties set by Congress. See Higdon, supra, at 898 (“Nor may probation conditions be the vehicle for circumvention of statutory sentencing limits.”); United States v. Atlantic Richfield Co., 465 F.2d 58, 61 (7th Cir.1972); Note, “Structural Crime and Institutional Rehabilitation: A New Approach to Corporate Sentencing,” 89 Yale L.J. 353, 368-69 & n. 95 (1979). But see United States v. Logan, 505 F.2d 35 (5th Cir.1975) (upholding condition that defendant pay $10,000 bail forfeiture for bail-jumping crime). Though the statute allows that the defendant may, as a condition of probation, be required to pay “a” fine, it would not be proper to read this as an implicit waiver of the statutory maximum fines set by Congress. The Probation Act also allows the sentencing court to require a defendant to pay restitution or reparation for “actual damages or loss” to those “aggrieved” “by the offense for which the conviction was had,” or to provide support to those persons “for whose support he is legally responsible.” Neither of these provisions, however, allow the sentencing court to impose fees and charges at will on the defendant. The defendant plainly may not be required to support persons — corporate or natural — of the court’s choosing, but only those for whom he is already responsible. Similarly, the defendant may not be required to pay reparations to persons not aggrieved by his crimes, or simply to the community at large. Clovis, supra, at 1390. Nor may the defendant be required to pay reparations for crimes of which he has not been specifically convicted. United States v. Follette, 32 F.Supp. 953, 955 (E.D.Pa. 1940). These protections would be a sham if sentencing courts could set terms of probation that exceed the amount due as a fine, support or reparation.
Thus, Fiore’s corporate fine runs afoul of two controlling axioms of criminal jurisprudence — that a defendant may not be sentenced for the crimes of another and that courts may not sentence a defendant to a term or in an amount which exceeds the maximum penalty established by the legislature. A departure from these principles would require an extraordinary justification, one which would serve public purposes of great importance and which would be limited carefully to the exigency that gave rise to the exception so that it would not routinely void the high principles that individuals may be punished only for their crimes and then only to the extent that the legislature has allowed. The government’s proposed justification for Fiore’s sentence would have precisely this ill-effect. The probationary condition could be defended as reasonably related to the protection of the public and to Fiore’s rehabilitation because the stiffer $10,000 penalty arguably may deter others or “rehabilitate” Fiore more than the requirements that Fiore pay $1000 and no longer participate in medical testing. Gov’t Br. at 9-10. While this argument would link the higher penalty to the goals of probation, it proves too much because the higher penalty would deter others from committing Fiore’s crime even if Fiore were utterly innocent of BCRI’s wrongdoing— disregarding the requirement the defendants may be punished only to the extent of their own misdeeds — and it would apply in every case of probation — thereby dispensing with the safeguard that courts must tailor the conditions of probation to the rehabilitative needs of particular defendants. Because the condition of probation imposed here pays heed to neither of these strictures, the sentence must be modified.
The government has also argued that the $10,000 excess fine may be defended on the ground that it was tailored to a rehabilitative end because Fiore would feel that he had “beaten the system” if he could deplete the corporation’s assets and leave the fine unpaid after Fiore had reaped the benefits of BCRI’s crimes. This argument fails because it proves too little rather than too much. Fundamentally, it fails to prove that Fiore was the sole author or beneficiary of BCRI’s crimes, see supra note 2, and passes over in silence the fact that the government did not prosecute Fiore for BCRI’s crime from which it claims he benefitted. Tellingly, the argument proves too little when it asserts that punishing defendants for crimes of which they have not been convicted or for acts which have not been admitted or proven serves the goals of rehabilitation. On the contrary, the principles which govern our criminal jurisprudence hold just the opposite, and if the excess fine is upheld, it. will not be the defendant but the government that has “beaten the system.”
The appeals court must choose “between [either] eliminating the objectionable condition and letting the sentence stand as modified, [or] remanding for resentencing in accordance with our opinion.” United States v. Jimenez, 600 F.2d 1172, 1175 (5th Cir.1979); see also United States v. Turner, 628 F.2d 461, 467 (5th Cir.1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847 (1981). Remand could be proper because the $10,000 condition may have been an integral part of the misdemeanor sentence: a prison term was suspended, Fiore could be both fined and imprisoned under the statute, and some penalty in addition to the $1000 fine may have been appropriate in lieu of incarceration, if no prison sentence were imposed. On the other hand, Judge Ward said that the sentence given to Fiore was appropriate in part “because of the strains which are attendant upon a person who does not have a criminal record” and because a more culpable co-defendant had received only a probationary term, suggesting that no prison term was contemplated. Moreover, a rule of remand in such cases could be an invitation to impose prison terms on defendants whose imprisonment had not been considered appropriate before. Cf. United States v. DeLeo, 644 F.2d 300, 302 (3d Cir.1981) (sentencing court cannot impose fine as condition of probation after excess restitution revoked and period for sentencing has passed). Forcing defendants who raise valid claims to take such a gamble could “chill” the assertion of defendant’s rights. See United States v. DeLeo, supra. We therefore simply strike the illegal condition.
Judgment reversed.
. See, e.g., United States v. Park, 421 U.S. 658, 670-73, 95 S.Ct. 1903, 1910-12, 44 L.Ed.2d 489 (1975) (upholding conviction under Food and Drug Act of corporation president for exposing food in interstate shipment to contamination). In United States v. Dotterweich, 320 U.S. 277, 282, 64 S.Ct. 134, 137, 88 L.Ed. 48 (1943), the Supreme Court reversed United States v. Buffalo Pharmacal, 131 F.2d 500 (2d Cir.1942) because the lower court’s interpretation of the 1938 Food, Drug, and Cosmetic Act would allow that “the penalties of the law could be imposed only in the rare case where the corporation is merely an individual’s alter ego." The Act may therefore be applied to find liability in cases where responsibility is far more diffuse than in a one person company. United States v. Park, supra. Yet Fiore could probably have been prosecuted even under the narrow application of the Act struck down in Dotterweich. And had Fiore been prosecuted for and pleaded guilty to his own violation with the intent to defraud or mislead, he would have been subject to imprisonment for up to three years and a fine of $10,000. 21 U.S.C. § 333(b).
. Two things are clear as regards Fiore’s actual conviction. First, the $10,000 BCRI fine is clearly listed as a condition of his probation on the 18 U.S.C. § 371 count even though the report recording this disposition explicitly . notes that the maximum sentence for this offense is “1 year and/or $1000.” Second, the government did prosecute and convict Mr. Biemacki, Fiore’s predecessor in the BCRI scheme, for a felony under 18 U.S.C. § 1001, the same statute under which BCRI was convicted. Had the government wanted to prosecute Fiore for BCRI’s crimes, it could have done so, but the record suggests weaknesses in this strategy. Though the government alleges that BCRI was guilty in several instances of making false statements to the government, covering a range of over-the-counter drugs, Al-locution Tr. at 18, Fiore only admitted to filing falsely certified reports on antihistamines and this was the only basis of his plea. Id. at 19; Presentence Report at 3. Thus Fiore was not necessarily the alter ego of BCRI in the other falsehoods that were the basis of the charge against it. The facts suggest that he was not. Fiore was not the only author of BCRI’s crimes. The other officers of BCRI approved of the wrongdoing, Allocution Tr. at 13, and, if they were reimbursed for their services, presumably benefitted from it, too. Nor was Fiore the sole beneficiary of BCRI’s crime. Even though Fiore was the sole shareholder of BCRI, the government nowhere suggests that Fiore was the only individual paid by BCRI. In fact, the charge depends in part on the alleged kickback scheme with a Vicks official and on payments made to Dr. Romillo. In addition, Mr. Biernacki, who sold the advantageous arrangement with Vicks to Fiore, also apparently benefitted from the increased value of BCRI as a result of the scheme.
. The Logan court did not discuss the legality of the condition as a possible fine in excess of the $5000 maximum set by the statute forbidding bail jumping, 18 U.S.C. § 3150. That court’s decision does not conflict with the judgment here, however, because the payment of the $10,000 forfeiture in Logan may be construed as restitution to the surety who would otherwise be victimized by Logan’s absence.
. United States v. Santarpio, 560 F.2d 448 (1st Cir.1977), upholding as a condition of probation a requirement that the defendant pay attorney’s fees for his court appointed attorney in addition to his fine, is not contrary authority. The defendant was liable for the fees under the federal recoupment statute, 18 U.S.C. § 3006A(c) and (f), which allows a magistrate or court to require repayment “as the interests of justice may dictate” if the funds are available. Unlike Fiore’s case, the court below had found the defendant liable for the fees. Moreover, the authority of Santarpio is questionable. The Fifth Circuit in United States v. Jimenez, 600 F.2d 1172 (5th Cir.1979), rejected a requirement that the defendant pay attorney’s fees as a condition of probation where the repayment was not “an integral part of the district court’s judgment of what punishment was best for the defendant and for society.” Id. at 1175. See also United States v. Turner, 628 F.2d 461 (5th Cir.1980).
Similarly inapposite is United States v. Mar-gala, 662 F.2d 622 (9th Cir.1981), upholding as a condition of probation that a defendant forfeit retirement pension benefits and stocks acquired through the corporation he used as the instrument of his fraud. These assets, acquired “long after the scheme to defraud the public shareholders was set in motion,” id. at 627, could easily be covered by the restitution clause of § 3651. Thus, these forfeitures were visibly connected to the harms caused by the crimes for which Margala was convicted, unlike Fiore’s fines which seem clearly to be linked to a crime for which he was not even prosecuted. Furthermore, the conditions imposed on Margala were upheld because they might have served a rehabilitative purpose by severing his connection to the offending corporation. Id. By forcing Fiore to undertake BCRI’s penalties, this would not occur.
. The government tells us that prior to sentencing Fiore had substantially liquidated the corporate assets and apparently taken all remaining cash, leaving BCRI with assets of about $1000 and liabilities in excess of $30,000. Nothing that we know prevents the government from taking appropriate steps if, as may be the case, transfers from the corporation were made in fraud of creditors.
. The government also suggests that because BCRI has substantial liabilities and would be unable to pay the fine it is reasonable to make Fiore liable so that the government may collect the fine. Gov’t Br. at 8. On this rationale, it would be equally reasonable to make any wealthy person pay the fine, but that person, like Fiore, has not been convicted of BCRI’s crime and equally should not be called upon to pay for it.
. On imposing a more severe sentence on re-sentencing, see North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); McClain v. United States, 676 F.2d 915 (2d Cir.1982); United States v. Busic, 639 F.2d 940 (3d Cir.1981).
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_concur
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
UNITED STATES of America, Plaintiff-Appellee, v. John YOUNG, Defendant-Appellant.
No. 89-5016.
United States Court of Appeals, Fourth Circuit.
Argued June 7, 1990.
Decided Oct. 12, 1990.
John Kenneth Zwerling, Zwerling, Mark & Sutherlund, P.C., Alexandria, Va., argued (Thomas J. Curcio, Cohen, Dunn & Sinclair, P.C., Alexandria, Va., on brief), for defendant-appellant.
Dennis Michael Kennedy, Asst. U.S. Atty., Alexandria, Va., argued (Henry E. Hudson, U.S. Atty., Jennifer A. Costas, Law Student, Alexandria, Va., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, and MURNAGHAN and CHAPMAN, Circuit Judges.
CHAPMAN, Circuit Judge:
Appellant John Young was confined at Lorton Reformatory, serving a sentence of 54 years to life imprisonment for armed robbery and first degree murder, when, as a result of an incident which occurred during a major disturbance on December 24, 1987, he was charged (1) with willfully assaulting corrections officer Rhyne with a dangerous weapon with intent to cause bodily harm in violation of 18 U.S.C. § 113(c), (2) with assaulting Rhyne while the corrections officer was in the performance of his official duties, in violation of District of Columbia Code § 22-505(a), and (3) with possession of a knife in violation of Lorton Reformatory Regulations, a violation of 18 U.S.C. § 13, assimilating Virginia Code § 53.1-203(4) (1950), as amended. At trial Young was convicted on each count and was sentenced to 65 months on Count I, 65 months on Count II to run concurrently with the sentence on Count I, and 40 months on Count III to run consecutively to the sentences under Counts I and II. All sentences were consecutive to the sentences he was then serving.
On appeal Young argues (1) that the U.S. Sentencing Guidelines are not applicable to violations of the District of Columbia Code, (2) that the U.S. Sentencing Guidelines are not applicable to cases under the Assimila-tive Crimes Act, (3) that the sentences given on Counts I and II are outside the statutory maximum, (4) that the sentencing court erred in not grouping all counts for the purposes of the Sentencing Guidelines, (5) that the trial judge erred in holding that knowledge of the assault victim’s status as a corrections officer was sufficient to show that the attack was motivated by such status, and (6) that if the Sentencing Guidelines are applicable to assimilative crimes, the sentence must comport with the “like punishment” aspect of the Assimilative Crimes Act.
We hold that the Guidelines are applicable to crimes committed at Lorton Reformatory and to crimes under the Assimilative Crimes Act. We affirm the convictions of Young. However, we remand for resen-tencing because the maximum sentence for each of Counts I and II is 60 months, and the sentences of 65 months on each count are legally excessive, and all counts should have been grouped for sentencing under U.S. Sentencing Guidelines § 3D1.2.
I
On the evening of December 24, 1987, Lorton inmate Ricky Green was being chased across the yard by a group of inmates which included appellant John Young. Green had a shank (homemade knife) in his hand as he approached corrections officer Rhyne. As Green passed, Rhyne tripped him and grabbed the shank, but Green caught Rhyne from behind and used him as a shield against his pursuers. Rhyne was in uniform at the time, and Young made a thrust at Rhyne with his shank, catching Rhyne’s jacket with the weapon, but inflicting no personal injuries to Rhyne. Young was apprehended and his shank was confiscated.
At his sentencing, after he had been convicted on the three counts set forth above, appellant challenged the addition of two levels to his base offense level for bodily injury as to Count I, because the corrections officer was not injured. He challenged the addition of three levels to Count II for victim-related status because even though the victim was a corrections officer, there was no showing that the crime was motivated by such status. Appellant also contended that Counts I and II were related and should have been grouped for sentencing. The trial judge found that a two-level increase was not justified on Count I because corrections officer Rhyne was not injured, and that the corrections officer was in uniform at the time of the assault and a three-level increase should be made as to Count II because the crime was motivated by the victim’s status as a corrections officer.
The claim that Counts I and II should be grouped for sentencing was withdrawn by appellant’s trial counsel, so these offenses were not grouped.
The court found a base offense level of 25, criminal history category V, and a Guidelines range of 100-125 months. The court then imposed a sentence of 65 months concurrent as to Counts I and II, and 40 months consecutive as to Count III for a total of 105 months to be consecutive to the sentences Young was then serving.
An appeal was filed by Young’s trial attorney, but he then submitted a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that an appeal would be frivolous, and requested leave to withdraw. Young then filed a pro se brief claiming ineffective assistance of counsel and asking that his attorney be granted leave to withdraw. We allowed the trial attorney to withdraw and appointed new counsel to handle the appeal.
II
We find no merit to appellant’s claim that the United States Sentencing Guidelines do not apply to crimes committed at Lorton Reformatory, which is located in the Eastern District of Virginia. Appellant argues that under the holding in United States v. Thompson, 347 A.2d 581 (D.C.1975), both the United States District Court for the Eastern District of Virginia and the Superior Court of the District of Columbia had jurisdiction to try Young for the offenses committed at Lorton Reformatory. He then claims that the prosecutors have preferred to bring cases in the United States district courts because defendants receive longer sentences under the U.S. Sentencing Guidelines which are applicable in the federal courts and not in the Superi- or Courts of the District of Columbia.
Although the second count of the indictment is brought under District of Columbia Code § 22-505(a), which makes it a crime to assault “any officer or employee of any penal or correctional institution of the District of Columbia, or any officer or employee of the government of the District of Columbia charged with the supervision of juveniles being confined pursuant to law in any facility of the District of Columbia, whether such institution or facility is located within the District of Columbia or elsewhere,” this does not grant exclusive jurisdiction to the Superior Court, and we so held in United States v. Perez, 488 F.2d 1057 (4th Cir.1974). The Eastern District of Virginia has jurisdiction under the clear language of § 22-505 of the D.C.Code and under Article III of the Constitution which requires “[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed.” U.S. Const, art. Ill, § 2, cl. 3. The United States District Court for the Eastern District of Virginia has original jurisdiction for crimes committed at Lorton Reformatory, which is located within that district, and this includes criminal charges for violation of the D.C.Code and also for violation of Virginia criminal laws assimilated by 18 U.S.C. § 13.
District of Columbia Code § 22-505(a) is the basis for the charges contained in Count II of the indictment, and Code of Virginia § 53.1-203(4) as assimilated by 18 U.S.C. § 13 is the basis for the charge in Count III. The application of these laws to crimes committed at Lorton Reformatory is proper and provides a set of laws more complete than would be the case if only federal statutes were applicable.
Ill
Appellant argues that the Sentencing Guidelines do not apply to the Assimilative Crimes Act because of the requirement that persons convicted under 18 U.S.C. § 13 be “subject to a like punishment” as prescribed by state law. He contends that in sentencing the appellant, the trial judge made no effort to conform the sentence under Count III to state sentencing practices, and it was error not to seek intrastate uniformity in sentencing.
The Sentencing Reform Act and the Sentencing Guidelines adopted thereunder apply to assimilated crimes. See United States v. Garcia, 893 F.2d 250 (10th Cir.1989); United States v. Leake, 908 F.2d 550 (9th Cir.1990); and the Commentary to § 2X5.1, United States Sentencing Commission Guidelines Manual, effective November 1, 1989, which refers specifically to assimilated crimes. Both Leake and Garcia hold that the “like punishment” requirement of the Assimilative Crimes Act mandates that federal court sentences for assimilated crimes must fall within the minimum and maximum terms established by state law, and that within this range of discretion federal judges should apply the Sentencing Guidelines to the extent possible. We agree with and adopt this holding.
We are aware of United States v. White, 741 F.Supp. 1200 (E.D.N.C.1990), which holds that the Sentencing Guidelines do not apply to charges under the Assimilative Crimes Act. White relies upon language contained in United States v. Robinson, 495 F.2d 30 (4th Cir.1974), and United States v. Price, 812 F.2d 174 (4th Cir.1987), which predate the enactment of the Sen-tenting Reform Act and its Guidelines. The reasoning in White is not persuasive and it is not the law of this Circuit.
IV
The sentences of 65 months on both Counts I and II exceed the statutory maximum provided and are set aside. Both 18 U.S.C. § 113(c) and § 22-505(a) of the D.C. Code, the statutes violated in Counts I and II, respectively, have maximum penalties of only five years (60 months) imprisonment. Sentences of 65 months on each of these counts are illegal: “It is well established that a sentence which does not comply with the letter of the criminal statute which authorizes it is so erroneous that it may be set aside on appeal.” Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 648, 91 L.Ed. 818 (1947).
V
Since there must be a remand for resen-tencing, we will examine the process used by the district court in its determination of the original sentences, and we will explain the proper approach on resentencing. The trial judge found that the corrections officer was not injured in the assault; therefore, an increase of two levels on Count I was not appropriate under Guidelines § 2A2.1(b)(3)(A). On Count II the trial judge found that the assault was motivated by Officer Rhyne’s status as a corrections officer and three levels were added pursuant to Guidelines § 3A1.2(a). These findings of fact are not clearly erroneous. The court found that the appellant had withdrawn his claim that Counts I and II should be grouped. As a result, the offenses were not grouped as they should have been under U.S.S.G. § 3D1.1. The decision of whether to group counts is reviewed de novo. United States v. Toler, 901 F.2d 399 (4th Cir.1990).
The trial judge determined that the adjusted offense level was 23 using Count II as the highest level and adjusting for the status of the victim and the use of a weapon. The adjusted offense level was increased to 25 when Counts I and III were considered. The criminal history category was V and this combination produced a Guidelines range of 100-125 months in prison. The appellant received 65 months on Count I, 65 months on Count II, concurrent to Count I, and 40 months on Count III to be served consecutively to the sentences on Counts I and II.
Young claims that it was error not to group all of the counts to establish the proper sentence. Although at sentencing appellant’s attorney withdrew the request to group Counts I and II, the United States acknowledges that it was error not to group Counts I and II, and the United States Attorney has not argued that the issue of grouping was not properly preserved for appeal. Young’s trial counsel obviously did not have confidence in the grouping issue, because he originally argued to group Counts I and II and then withdrew this request. Appointed counsel has raised the matter of grouping and the issue of grouping is now before us. This issue must be addressed, because a failure to group, when required, is a misapplication of the Guidelines and appealable under 18 U.S.C. § 3742(a)(2).
The grouping of offenses is covered by part D, U.S. Sentencing Guidelines. It is provided in § 3Dl.l(a):
Procedure for Determining Offense Level on Multiple Counts
When a defendant has been convicted of more than one count, the court shall:
(a) Group the counts resulting in conviction into distinct Groups of Closely-Related Counts (“Groups”) by applying the rules specified in § 3D1.2.
Section 3D1.2 provides:
Groups of Closely-Related Counts
All counts involving substantially the same harm shall be grouped together in a single Group. A count for which the statute mandates imposition of a consecutive sentence is excluded from such Groups for purposes of §§ 3D1.2-3D1.5. Counts involve substantially the same harm within the meaning of this rule: (a) When Counts involve the same victim and the same act or transaction.
* # >K >k # *
(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.
Under the clear language of § 3D1.2(a), all counts against Young must be grouped for sentencing. They involve the same act or episode—an assault with a weapon upon a corrections officer. Count I charges that appellant Young “did assault Twan Rhyne with a dangerous weapon, to wit, a shank with intent to do bodily harm to said Twan Rhyne.” Count II charges Young with assaulting corrections officer Rhyne while said officer “was engaged in the performance of his official duties.” Count III (possession of a weapon) is a part of the same episode, and all three charges arise out of the same act and must be grouped as required by §§ 3D1.1 and 3D1.2(a) and (c). All of the counts involve the same act or transaction, they represent essentially the same injury, they are a part of the same criminal episode, they involve the same victim, and the possession and use of a weapon is “a specific offense charactistic in, or adjustment to, the guideline applicable to another count.” The use of the weapon requires an upward adjustment of four levels to Count II as indicated below.
To determine the offense level applicable to the grouped offenses, we turn to § 3D1.3 which provides:
Offense Level Applicable to Each Group of Closely-Related Counts.
Determine the offense level applicable to each of the Groups as follows:
(a) In the case of counts grouped together pursuant to § 3D1.2(a)-(c), the offense level applicable to a Group is the offense level, determined in accordance with Chapter Two and Parts A, B, and C of Chapter Three, for the .most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group.
Application Note 1 states: “The ‘offense level’ for a count refers to the offense level from Chapter Two after all adjustments from Parts A, B, and C of Chapter Three.” Applying these rules, Count II, assault upon a corrections officer, has the highest offense level after the required adjustments are made:
15 Base level (§ 2A2.2)
4 Weapon used (§ 2A2.2(b)(2)(B))
3 Official victim (§ 3A1.2)
22 Adjusted base level
The adjusted base level for Count I is 19, and the adjusted base level for Count III is 16. Using the highest adjusted offense level of 22 and a criminal history V, the Guidelines range is 77-96 months, and not 100-125 used by the district court. The error was occasioned by the withdrawal of the motion to group at sentencing.
The Guidelines range of 77-96 months is in excess of the 60-month maximum provided for each of the three offenses. To determine the proper sentence on multiple counts, we look to U.S.S.G. part G, specifically § 5G1.2(d):
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects sentences on all counts shall run concurrently, except to the extent otherwise required by law.
The Commentary advises that “total punishment is determined by the adjusted combined offense level. To the extent possible, the total punishment is to be imposed on each count. Sentences on all counts run concurrently, except as required to achieve the total sentence, or as required by law.”
The Guidelines range of 77-96 months would require a sentence of 60 months on Count I, 60 months on Count II to be served concurrently, and a consecutive sentence within a range of 17-36 months on Count III to reach the “total punishment” for these two counts.
We hold that the U.S. Sentencing Guidelines are applicable to the appellant’s offenses. We affirm the district court’s finding that the assault was motivated by the status of the victim as a corrections officer. We set aside all sentences and we remand for resentencing. The sentences on Counts I and II exceed the statutory maximum, and all counts should have been grouped under the Sentencing Guidelines.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESEN-TENCING.
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer:
|
songer_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
HAGAN COAL MINES, Inc., v. NEW STATE COAL CO. et al.
Circuit Court of Appeals, Eighth Circuit.
December 11, 1928.
No. 7937.
Merritt C. Mechem, of Albuquerque, N. M. (Mechem & Vellacott and Frank W. Vellacott, all of Albuquerque, N. M., on the brief), for plaintiff in error.
C. M. Botts, of Albuquerque, N. M. (Simms & Botts and John F. Simms, all of Albuquerque, N. M., on the brief), for defendants in error.
Before BOOTH and COTTERAL, Circuit Judges, and REEVES, District Judge.
BOOTH, Circuit Judge.
This is a writ of error to a judgment based upon findings which allowed the demand of plaintiff in error, plaintiff below, allowed the demand of defendants on their counterclaim, offset one against the other, and found a balance in defendants’ favor. The suit was at law. The basis of jurisdiction was diversity of citizenship and requisite amount involved.
The complaint alleged that a written contract was entered into between plaintiff and defendants, by which defendants were appointed general sale agents of plaintiff for the sale of its output of coal at its mines at Hagan, N. M., for one year from October 5, 1925; that performance of the contract was entered upon by both parties; that defend-ants had-failed and refused to account for certain of the coal sold; and that there wa? due and owing plaintiff $7,586.94.
Defendants in their answer made no denial of the amount owing ‘to plaintiff, but set up a counterclaim, alleging that plaintiff had induced defendants to enter into the contract by means of representations which were false, and which were relied upon by defendants to their damage. The principal false representation alleged to have been made was that plaintiff’s mine was capable of producing and would produce for sale by defendants at least 300 tons per day. Defendants further alleged in their answer that in reliance upon said representations they made expenditures amounting to $5,602.55 in preparation for making sales of the amount of coal stated; that the gross commissions on the sales of coal actually furnished (12,070 tons) amounted to $2,405.91, leaving a net loss to defendants of $3,196.64. Defendants further alleged that they were ready and able to sell the whole 300 tons per day, and would have done so if the same had been supplied by plaintiff; and that from such sales defendants would have derived net profits in the way of commissions in addition to those above mentioned of $6,561.21; that in order to recoup their losses and mitigate the damages, defendants sold other coal and derived a net profit therefrom of $1,304.02, leaving a net loss of profits of $5,257.19 — making a total loss and damage suffered by defendants of $8,453.83.
At the trial plaintiff introduced no evidence. Defendants introduced evidence in support of their counterclaim. At the close of the evidence plaintiff moved for judgment allowing recovery by it, and denying recovery on defendants’ counterclaim. The motion was denied, and findings were made as above stated, resulting in a judgment for defendants.
The assignments of error are seven in number. The first challenges the action of the court in denying plaintiff’s motion for judgment. Assignments 2 to 6, inclusive, relate to the receiving of certain items of evidence. The seventh challenges a finding of the court relative to- the allowance of damages for anticipated profits.
We take up first those assignments of error relating to the introduction of evidence. They may properly be considered- together. The evidence which was received over objection consisted of several, statements purporting to show: Total sales and expenses of defendants for the contract year and also for several years prior; amount of coal delivered by plaintiff and commissions earned thereon by defendants; selling expenses and comparison thereof with prior years; allocation of selling expenses to wholesale business; total sales at wholesale, including coal bought from others than plaintiff; cost per ton of selling the additional coal. These statements had been prepared by a public accountant from books and documents which were furnished Mm by defendant. The books and documents were present in court. They were identified as being books and records belonging to defendants. There was no objection to the summaries as such, but the objection was that the books themselves were neither offered and received in evidence nor was there a sufficient foundation laid for them to be so received.
We think the objection should have been sustained. In the absence of statute, the general rule governing the introduction of books of account of a party in Ms own favor is that a foundation must bo laid by proof of their character, authenticity, correctness, and regularity. 22 C. J. § 1035, p. 864; Phillips v. United States, 201 F. 259 (C. C. A. 8); Pabst Brewing Co. v. E. Clemens Horst Co. (C. C. A.) 229 F. 913.
Plaintiff places reliance upon the ease of St. Paul F. & M. Ins. Co. v. American Food Prod. Co. (C. C. A.) 21 F.(2d) 733, in which this court held that in eases where necessity required, books of account and summaries therefrom might be received in evidence without the testimony of the persons who made the original memoranda from which entries in, the books were made, providing there existed circumstantial guaranty of trustworthiness of the books. In that caso the evidence showed that the books from which summaries had been made were regular books of account ; that the entries therein were made in the regular course of business from data sent in by sales agents; that the entries in the boobs were correctly made. The persons who furnished the original data were not available as witnesses. It was held that the books and the summaries were both properly received in evidence.
The case at bar does not come within the ruling in that case, so far as the record shows.
There is a statute in the state of New Mexico bearing upon this question, which reads as follows:
“Books of account. In the trial of civil causes in the courts of this State, the books of account of any merchant, shopkeeper, physician, blacksmith or other person doing a regular business and keeping daily entries thereof, may be admitted in evidence as proo £ of such accounts upon the following conditions :
“First. That he kept no clerk, or else the clerk is dead or inaccessible.
“Second. Upon proof, the party’s oath being sufficient,, that the boob tendered is the hook of original entries.
“Third. Upon proof, by Ms customers, that he usually kept correct hooks.
“Fourth. Upon inspection by the Court to seo i£ the books are free from any suspicion of fraud.”
Section 2187, Code of 1915 of New Mexico.
It has been held that this statute was intended to supplement, not to supersede, the common-law rule. McKenzie v. King, 14 N. M. 375, 379, 93 P. 703. But the intended effect of this statute is immaterial in the case at bar, for the reason that there was no compliance with either the statute or the common-law rule.
' As there must he a reversal for the error pointed out, it is unnecessary for us to discuss the questions involved in the other assignments of error. In view of the possibility of a now trial, however, it-may not be amiss to say that the ruling on the motion made by the plaintiff for judgment was in our opinion correct. As to the assignment of error based upon an exception to the- ninth finding of fact of the court, it is sufficient to say that, since we have already held that the evidence adduced upon which the folding was based was incompetent, we deem it unwise to pass upon a finding based upon incompetent evidence.
The judgment is reversed, with instructions to grant a now trial.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
|
songer_appel1_3_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES v. KING COAL CO.
(Circuit Court of Appeals, Ninth Circuit.
May 11, 1925.)
No. 4401.
1. Collision <§=>73 — Moving vessel presumed in fault for collision with anchored vessel.
A collision between a moving vessel and one anchored in a proper place and carrying proper anchor lights is presumptively due to the fault of the moving vessel, which has the burden of proof to show absence of negligence.
2. Collision'<§=>71 (2) — Collision between moving and anchored vessel held not shown to be due to inevitable accident.
The blowing out of a fuse, causing the electrical steering gear of a submarine to become inoperative and the vessel to swing with the tide and come into collision with an anchored barge, held not to establish the defense of inevitable accident, where the vessel was suddenly put up against a strong running flood tide, throwing on the steering apparatus a load too great for the fuse to carry.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Rudkin, Judge.
Suit in admiralty for collision by the King Coal Company, owner of the barge Ruth, against the United States, owner of the submarine R-19. Decree for libelant, and the United ; States appeals.
Affirmed.
Suit brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats, of U. S. pt. 2, p. 1467).
Sterling Carr, U. S. Atty., of San Francisco, Cal., and Frank Maytham, Sp. Asst. Atty. Gen., for the United States.
Ira S. Lillick, of San Francisco, Cal., for appellee.
Before GILBERT, HUNT, and MORROW, Circuit Judges.
MORROW, Circuit Judge.
On October 11, 1918, the barge Ruth, owned by libelant, was anchored in San Francisco Bay, off the docks of-the Union Iron Works. The barge remained at this anchorage until October 18, 1918, when the submarine R-19, owned by the United States, coming down from Mare Island at about 8:45 p. m., turned into the Union Iron Works to take on supplies for San Pedro. The Ruth had the proper anchorage lights burning and the night; was clear. Objects on -the bay were normally visible. When the R-19 came within about 800 feet of the barge, at a speed of from 9 to 10 knots an hour, different commands were given by the commanding officer to reach the dock of the Union Iron Works. The navigation of the submarine resulted, in. its crashing into the barge, causing the damage for which this suit was brought. Libelant was awarded the sum of $19,179.26 for damages, together with costs. An order was entered dismissing the cross-libel, and the United States appeals.
There are two defenses:
First, that the barge was anchored in a forbidden area.
Second, that the aeeident was unavoidable.
Because of the alleged improper anchorage, a cross-libel was filed by the United States, claiming damages for injury to the submarine.
This suit was brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats. U. S. pt. 2, ,p. 1467).
The lower court held that the testimony was not definite and not easy of comprehension as to whether the barge was anchored in the forbidden area; but the testimony did show that the barge had been anchored there for about eight days previous to the aeei-dent, and no complaint had been made by the harbor authorities.
As to the second defense, the lower court held that the United States did not establish clearly that the accident was unavoidable.
It is alleged in the libel that at the time of the collision between the submarine R-19 'and the barge Ruth, the latter was at anchor in San Francisco Bay off the docks of the Union Iron Works, northeast by north about 1.800 feet.
In the cross-libel of the United States it is alleged that at a point about 1,200 feet off the shore from the wharves of the Union Iron Works, the submarine R-19 came upon and collided with the barge Ruth; that the latter was anchored at a point which obstructed the course of vessels landing or attempting to land at said wharves and at a point where anchorage was forbidden by the state harbor commissioners.
In the answer of the United States to the libel, it is alleged that the collision of the submarine R-19 with the barge Ruth occurred at a point approximately 1,500 feet off the docks of the Union Iron Works. It is denied that the barge was at said time about 1.800 feet off of.said docks, or any greater distance off said docks than, approximately 1;500 feet. It is-alleged that when the accident occurred, the submarine R-19 was attempting to make a landing at the Union Iron Works, and in doing so, proceeded to pass above the barge Ruth, and the current helped to sweep the submarine down against said barge.
The docks of the Union Iron Works are located at the southern extremity of the San Francisco water front. Between the docks of the Union Iron Works and the free and open space of waters of the bay is a strip of water, 1,500 feet wide, designated by the board of state harbor commissioners as forbidden anchorage. This strip of water extends along the water front of the harbor from Point Avisadero in a northwesterly direction to Pier No. 46. There is another strip of water 1,500 feet wide extending from the Western Pacific ferry slip, south of the Union Iron Works docks, across the Bay of San Francisco, in a northeasterly direction, to the Southern Pacific Railroad Company and the Western Pacific Railway Company training walls on the Oakland water front. This strip is also designated as forbidden anchorage.
These designations by the harbor commissioners of forbidden anchorages in the harbor were authorized by section 2524 of the Political Code of the State, since superseded and jurisdiction assumed by the United States by the Act of Congress of January 28,1915, creating the Coast Guard, etc. (38 Stat. pt. 1, p. 800; Comp. St. §§ 8459%a[l]-8459%a[6]), and section 7 of the River and Harbor Act of March 4, 1915 (38 Stat. pt. 1, p. 1053 [Comp. St. § 9959a]); but the strips of such forbidden anchorages do not appear to be buoyed or otherwise marked or designated, so that their boundaries on the water are not made visible to the ordinary observer. They appear to be ascertainable mainly by directions from maps and charts with reference to objects on shore, and by the experience of pilots.
The two strips^ of water designated by the harbor commissioners as forbidden anchorage passing in front of the docks of the Union Iron Works cross each other south of the Union Iron Works, leaving a triangular space of free and open water outside and between the strips of forbidden anchorage waters in front of the docks of the Union Iron Works.
These free and open water spaces in the harbor of San Francisco are .now designated as anchorage areas by the Secretary of War, exercising the jurisdiction of the United States in accordance with the rules and regulations issued February 9, 1921. But as the collision here in controversy occurred -October 18, 1918, we will refer to the areas as they were then designated.
Whether the barge Ruth was anchored within the free and open water of the harbor, or within the forbidden anchorage, passing immediately in front of the docks of the Union Iron Works, is exceedingly difficult to determine from the testimony; and the maps and charts are of but little assistance in fixing a definite location for the barge.
When the collision occurred, the side of the submarine scraped along the anchor chain of the Ruth and ran out several fathoms. 'Subsequently, the Ruth was beached, when the anchor chain was slipped and the anchor buoyed, and evidence was introduced tending to show where the anchor was found, but the directions and distances given are not clear. There is, however, testimony tending to show that the Ruth was anchored in the free and open water of the harbor, or, as we would say now, she was anchored within an authorized anchorage area.
The court below was unable to determine from the evidence and the maps and charts the location of the barge Ruth at the time of the collision. We, finding the same difficulty, resort to the more satisfactory testimony of Capt. Meyns, in command of the Merchant Towboat Company, who anchored the barge. This he did on October 11, 1918, and testified that he anchored her off the docks about 1,800 feet in open water. This would be in the open water or anchorage area, and beyond the forbidden anchorage in front of the docks of the Union Iron Works. This witness had been a captain of a tugboat in San Francisco Bay for 31 years, and had anchored more than a thousand vessels. He testified that it was a custom in the harbor of San Francisco for the harbor commissioners to notify any one when a vessel was anchored in forbidden anchorage, and compel them either to remove the vessel, or the vessel was removed by the harbor commissioners at the expense of the owner. The evidence shows that the barge remained where Capt. Meyns anchored her, without objection from the harbor commissioners, for a period of 8 days prior to the collision. There is a presumption in favor of the testimony of this witness by reason of his experience and reliability and the failure of the harbor commissioners to object to the anchorage of the Ruth.
We think, in view of all the facts, the court below was right in holding that the anchorage of the barge in a forbidden area was not established by the evidence, and that no negligence can be attributed to her on ¿that account.
As to the second defense, that the collision was unavoidable, Lieut. William F. Call-away, who was in command of the submarine at the time of the collision, testified:
“When I arrived at a point which I considered the proper one to make the turn into the Union Iron Works, considering the entrance of the harbor and anchored craft around there, I put the rudder right and brought the vessel around 90 degrees, or possibly a little more, and our course at that time was pointing — we had the tide slightly forward of the beam, that is, we were pointing slightly up against the tide — not perpendicular to it; slightly up against the tide, just up a little.”
He was asked, after having put the rudder right, what, if anything, was done with regard to switching from the engines to the motors :
“A. I don’t recall just the instant of shifting from the .engines to the motors. It-was about the time of the turn. We stopped .the engines and went to the electrical motors, to better be able to maneuver the ship, as the engines will not back.
“Q. Having put your rudder to the right, what, if anything, thereafter did you do with reference to the rudder? A. After we had made our right'turn and were headed on the course which I judged would best clear the traffic and carry us into the Union Iron Works, the left rudder was given in order to steady the ship on her course, and then order was given to ‘rudder amidships,’ which involved, of course, the right rudder.
“Q.- What, if anything, happened after the order was given for ‘rudder amidships’ ? A. After the rudder was given amidships, I noticed that the ship was not steady, was easing off to the left; so I gave ‘right rudder.’
“Q. What, if anything, happened then? A. The ship then kept easing off to the left. Before this we had seen the barge, which-afterwards turned out to be the Ruth, and noticed that we. were easing over toward her, was the reason we had given ‘right rudder.’
“Q. ‘Right rudder’ the second time? A. Yes; that is, from amidships. After you give the ‘amidships’ you ease off to the right; in fact, she was easing toward the left, down towards the Ruth. By that time I saw that we were going to pass her closely, and I increased the speed in order to get across, and then, after I saw that the bow would clear the Ruth, I gave -the orders for ‘hard left’ in order to throw the stern away from her, but just the time we were crossing her, or right at the time, it was reported that the electric cal steering gear was inoperative, and then I gave the orders to shift to hand steering. By that time we had crossed the bow'of the Ruth and struck her anchor chain, and our stern struck her a glancing blow on ■ the bow. After passing across her, we had the hand steering put in, and we rounded the stern of the Ruth, and came- up on her starboard side, and some time during that time we shifted back to the electrical gear.”
This witness testified further:
“It was necessary to use the electrical steering device going in. We had to cross the bow of the Ruth, practically, to make a 9’0-degree turn, and after we entered into the Union Iron Works’ basin we had to make another 90-degree turn in order to get into, the'slip. * * • The chief electrician reported to me, as his duty required, of the fuse blown in the steering circuit.”
On cross-etamination this witness said:
“I can’t recall the exact speed which I gave,, but it was probably around, ór I would say,. I would judge it was around nine knots, or-ten knots, and then after I saw that the ship was easing over to the left towards the Ruth,, I increased the speed in order to pass ahead, of her more quickly.”
The witness was asked:
“Can you state how far you were away-from the barge Ruth when you first observed, it? A. I can’t give the distance that I was. from the barge Ruth when I first observed; her, but I observed her long before we ever-made the 90-degree turn, because we had seen ships anchored before the entrance to, the Union Iron Works, and I was observing-not only the shore line, but the vessels around: the place where I intended to go in.
“Q. Can you state how far you were away-from the Ruth before it gave you any con-, cern as to the manner in which you would-maneuver your own vessel? A. I was considering the Ruth at the time I made my-right turn, because I had 'seen her before that, and we saw the vessel in front of the-entranee to the harbor, and I necessarily considered her when I made my right turn.”
The witness was asked:
“How do you account for the submarine-colliding with-the Ruth, then? A. The submarine collided with the Ruth due to the-steering gear becoming inoperative with left rudder on, and allowing the R-19 to gain, ground to the ieft, instead of pursuing the-course which I had contemplated pursuing.”
Lieut. Leverett S. Lewis, who was the navigator and at the wheel of the submarine-at the time of the collision, testified:
“When we got off the Iron Works, we-turned with the right rudder to head in to., the dock; as a usual thing, in making 90-degree turn, we use about 25 degrees right rudder.
“After we had completed' the turn of approximately 90 degrees, the captain ordered left rudder, to steady her on the new course, which is customary, and I put the controller to the left, putting on the left rudder to steady, her; there was about a four-knot tide, flood tide, at this time, and after we completed the turn, a barge was noted on our port bow at anchor.
“Q. That left rudder, you say, was for the purpose of steadying the submarine? A. That left rudder was for the purpose of steadying her on the new course. After a boat starts to turn, it turns very rapidly, and it is necessary to give her the opposite rudder for just a few seconds to steady her. As that happened at this time, the captain said ‘left rudder’ to steady her on the course, and then ‘rudder amidships.’
“Q. How long a time elapsed between the time of the order of ‘left rudder’ and ‘rudder amidships,’ approximately? A. Approximately five seconds.
“Q. Now, about how far was the submarine from the barge at the time that order was given, ‘rudder amidships’? A. The barge was about broad on our port bow, and in such a position that it seemed we would clear her by 100 feet.
“Q. What was the next maneuver? A. The captain evidently noticed at this time that the boat was starting to swing to the left, because he gave the order ‘right rudder,’ and immediately after that we noticed that the tide was setting us down on the Ruth, and the bow was not swinging to the right; and the captain then saw that although the bow of the submarine would clear the Ruth, it was possible that the stern would hit, so then he gave ‘full left rudder’ to throw the stern out, and went ahead on the motors to increase the speed. Our side scraped along the anchor chain of the Ruth and ran out several fathoms of the chain, and then the port side aft of the submarine hit the bow of the Ruth a glancing blow.”
This witness was asked:
“Q. What is your explanation as to the reason why this fuse blew out ? A. The only explanation I could offer is that the strong tide running at that time, the rudder was put up against the tide, and that the load was too great for the fuse to carry. The only other explanation would be defective fuse, and that very seldom happens, I believe.”
Robert S. Pearson was chief electrician on the submarine R-19 at the time of the collision with the barge Ruth. He testified that he was on the bridge at that time, saying:
“At that time we saw that the barge Ruth was in very close proximity to us, and the commanding officer ordered ‘hard right rudder,’ in order to be sure to clear her. x * * iji^g ru¿¿er evidently did not take, and the commanding officer, seeing that a collision might be caused, ordered ‘hard left rudder’; at that time the man in the conning tower, who was watching the indicator - — there is an indicator in the conning tower that designates by five degrees how the rudder acts — noticed that the steering gear was out of commission. The order was given to rig the hand-steering gear. Before this could be done, we raked the Ruth’s anchor chain, and our stern collided with her bow.”
. This witness was asked:
“What was the cause -of the refusal of the rudder to respond to the will of the operator under the command ‘right rudder’ ? A. Both fuses were blown out.”
Witness was asked:
“Have you ever known of a steering gear fuse to have blown out before? A. Not on the R type boats.”
These three witnesses were officers of the submarine R-19, called by the United States, and the situation was clearly stated by them, aside from the discrepancy in the testimony of the commanding officer and the navigator 'as to the time when the Ruth was discovered. The barge Ruth was at anchor with her anchor lights burning. Her anchorage was not in a forbidden area. Her visibility to moving shipping was normal, and her position was discovered in time for safe navigation on the part of the submarine. The presumption is, in such a situation, that the barge at anchor, properly lighted, was not at fault, while, on the other hand, the presumption is that the moving submarine, charged with reasonable caution, was at fault, and the evidence supports this presumption.
The United States contends that the collision was unavoidable, and that the commanding officer had the right to rely upon the electric steering apparatus, and that the blowing out of the fuse was an accident that could not be anticipated.
Counsel for the United States contend that the facts in this case bring it within the interpretation based upon the facts of the ease of The Olympia, 61 F. 120, 9 C. G. A. 393. The collision in that case occurred when the tiller rope on the Olympia broke. The court held that the accident was caused by a latent defect in the rope which could not have been discovered by reasonable inspection; consequently, the collision was held to have been caused by an inevitable accident. But in the course of his opinion, Judge Lurton of the Circuit Court of Appeals for the Sixth Circuit makes a distinction applicable here. He said:
“The defendants say, 'Our tiller rope broke, and the vessel became unmanageable, and the collision unavoidable.’ That only shows that the breaking- of the tiller rope was the cause of the collision. They must go further, and show that the cause which operated to break the tiller rope was unavoidable. The collision was but the result of the cause which produced a broken tiller rope. If that cause is not shown to be unavoidable, how can it be said that the collision was an inevitable accident? Unless the defendants can get rid of the negligence proved against them by showing the cause which broke this wheel rope, and that the result of that cause was inevitable, or by showing all the possible causes which might have produced such an effect, and then showing that the result of each one of these possible causes could not have been avoided by them, they have not met the burden of proof which rests upon them. ® Was it due to mismanagement of the steering wheel? The full force of the power of the steering engines suddenly thrown upon the steering gear might produce such a sudden strain as to snap the wheel rope. This full force could only be exerted by very suddenly putting the steering wheel hard over. If there was no necessity for putting the wheel hard over suddenly instead of slowly, and a parting was the result, negligence might well be imputed. But the evidence rebuts the theory that this was the probable cause.” Here is the distinction: “The evidence of the wheelman does not show that the wheel was put hard over, or suddenly handled in any way.”
Had the commanding officer, under the circumstances disclosed in the testimony, the right to put the electric steering apparatus, controlling the rudder, up against a strong running flood tide, throwing suddenly on the apparatus a load too great for the fuse to carry?
The burden is clearly upon the officers of the submarine to justify such dangerous navigation. ' The strain on the electrical apparatus should have been anticipated when too' great, a load was placed upon it. In the situation we have here presented, the doctrine-applicable is res ipsa loquitur — the situation speaks for itself — and fixes the charge of negligence upon the submarine.
The decree of the District Court is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer:
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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
MALLEY et al. v. BRIGGS et al.
No. 84-1586.
Argued November 13, 1985
Decided March 5, 1986
White, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, J., joined, post, p. 346.
Ann M. Sheadel, Assistant Attorney General of Rhode Island, argued the cause for petitioners. With her on the brief was Arlene Violet, Attorney General.
Leonard Decof, argued the cause for respondents. With him on the brief was John S. Foley.
Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, and Catharine F. Haukedahl, Special Assistant Attorney General, Charles A. Graddick, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, John K. Van de Kamp, Attorney General of California, Jim Smith, Attorney General of Florida, Michael J. -Bowers, Attorney General of Georgia, Corinne Watanabe, Acting Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, William J. Guste, Jr., Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Edwin Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Mike Greely, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, Irwin I. Kimmelman, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, David Frohnmayer, Attorney General of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, David L. Wilkinson, Attorney General of Utah, William G. Broaddus, Attorney General of Virginia, Bronson C. La Follette, Attorney General of Wisconsin, and A. G. McClintock, Attorney General of Wyoming; and for Americans for Effective Law Enforcement, Inc., et al. by David Crump, Daniel B. Hales, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak.
Steven P. Lockman, Jack D. Novik, Burt Neubome, and Lynette Labinger filed a brief for the American Civil Liberties Union et al. as amici curiae.
Justice White
delivered the opinion of the Court.
This case presents the question of the degree of immunity accorded a defendant police officer in a damages action under 42 U. S. C. § 1983 when it is alleged that the officer caused the plaintiffs to be unconstitutionally arrested by presenting a judge with a complaint and a supporting affidavit which failed to establish probable cause.
) — I
In December 1980, the Rhode Island State Police were conducting a court-authorized wiretap on the telephone of one Paul Driscoll, an acquaintance of respondents’ daughter. On December 20, the police intercepted a call to Driscoll from an unknown individual who identified himself as “Dr. Shogun.” The police logsheet summarizes the call as follows: “General conversation re. a party they went to last night. . . caller says I can’t believe I was token [sic] in front of Jimmy Briggs — caller states he passed it to Louisa . . . Paul says Nancy was sitting in his lap rolling her thing.” App. 78.
Petitioner Edward Malley (hereafter petitioner) was the Rhode Island state trooper in charge of the investigation of Driscoll. After reviewing the logsheet for December 20, petitioner decided that the call from “Dr. Shogun” was incriminating, because in drug parlance “toking” means smoking marihuana and “rolling her thing” refers to rolling a marihuana cigarette. Petitioner also concluded that another call monitored the same day showed that the party discussed by Driscoll and “Dr. Shogun” took place at respondents’ house. On the basis of these two calls, petitioner drew up felony complaints charging that respondents and Paul Driscoll “did unlawfully conspire to violate the uniform controlled substance act of the State of Rhode Island by having [marihuana] in their possession . . . .” Id., at 74. These complaints were presented to a State District Court Judge in February 1981, after the wiretap of Driscoll’s phone had been terminated. Accompanying the complaints were unsigned warrants for each respondent’s arrest, and supporting affidavits describing the two intercepted calls and petitioner’s interpretation of them. The judge signed warrants for the arrest of respondents and 20 other individuals charged by petitioner as a result of information gathered through the wiretap.
Respondents were arrested at their home shortly before six o’clock on the morning of March 19, 1981. They were taken to a police station, booked, held for several hours, arraigned, and released. Local and statewide newspapers published the fact that respondents, who are prominent members of their community, had been arrested and charged with drug possession. The charges against repondents were subsequently dropped when the grand jury to which the case was presented did not return an indictment.
Respondents brought an action under 42 U. S. C. § 1983 in the United States District Court for the District of Rhode Island charging, inter alia, that petitioner, in applying for warrants for their arrest, violated their rights under the Fourth and Fourteenth Amendments. The case was tried to a jury, and at the close of respondents’ evidence, petitioner moved for and was granted a directed verdict. The District Court’s primary justification for directing a verdict was that the act of the judge in issuing the arrest warrants for respondents broke the causal chain between petitioner’s filing of a complaint and respondents’ arrest. The court also stated that an officer who believes that the facts stated in his affidavit are true and who submits them to a neutral magistrate may thereby be entitled to immunity under the “objective reasonableness” standard of Harlow v. Fitzgerald, 457 U. S. 800 (1982).
The United States Court of Appeals for the First Circuit reversed, holding that an officer who seeks an arrest warrant by submitting a complaint and supporting affidavit to a judge is not entitled to immunity unless the officer has an objectively reasonable basis for believing that the facts alleged in his affidavit are sufficient to establish probable cause. 748 F. 2d 715 (1984). We granted certiorari in order to review the First Circuit’s application of the “objective reasonableness” standard in this context. 471 U. S. 1124 (1985). We affirm.
II
Petitioner urges reversal on two grounds: first, that in this context, he is absolutely immune from liability for damages; second, that he is at least entitled to qualified immunity in this case. We reject both propositions and address first the absolute immunity issue.
A
Our general approach to questions of immunity under § 1983 is by now well established. Although the statute on its face admits of no immunities, we have read it “in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Imbler v. Pachtman, 424 U. S. 409, 418 (1976). Our initial inquiry is whether an official claiming immunity under §1983 can point to a common-law counterpart to the privilege he asserts. Tower v. Glover, 467 U. S. 914 (1984). If “an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether §1983’s history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.” Id., at 920. Thus, while we look to the common law for guidance, we do not assume that Congress intended to incorporate every common-law immunity into §1983 in unaltered form.
Our cases also make plain that “[f]or executive officers in general, . . . qualified immunity represents the norm.” Harlow, supra, at 807. Like federal officers, state officers who “seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” Butz v. Economou, 438 U. S. 478, 506 (1978).
B
Although we have previously held that police officers sued under § 1983 for false arrest are qualifiedly immune, Pierson v. Ray, 386 U. S. 547, 557 (1967), petitioner urges that he should be absolutely immune because his function in seeking an arrest warrant was similar to that of a complaining witness. The difficulty with this submission is that complaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity. The common law thus affords no support for petitioner.
Nor are we moved by petitioner’s argument that policy considerations require absolute immunity for the officer applying for a warrant. As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law. At common law, in cases where probable cause to arrest was lacking, a complaining witness’ immunity turned on the issue of malice, which was a jury question. Under the Harlow standard, on the other hand, an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner. The Harlow standard is specifically designed to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,” and we believe it sufficiently serves this goal. Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.
C
As an alternative ground for claiming absolute immunity, petitioner draws an analogy between an officer requesting a warrant and a prosecutor who asks a grand jury to indict a suspect. Like the prosecutor, petitioner argues, the officer must exercise a discretionary judgment based on the evidence before him, and like the prosecutor, the officer may not exercise his best judgment if the threat of retaliatory lawsuits hangs over him. Thus, petitioner urges us to read § 1983 as giving the officer the same absolute immunity enjoyed by the prosecutor. Cf. Imbler v. Pachtman, 424 U. S. 409 (1976).
We reemphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice, and that we are guided in interpreting Congress’ intent by the common-law tradition. In Imbler, supra, we concluded that at common law “[t]he general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution.” Id., at 437. We do not find a comparable tradition of absolute immunity for one whose complaint causes a warrant to issue. See n. 3, supra. While this observation may seem unresponsive to petitioner’s policy argument, it is, we believe, an important guide to interpreting § 1983. Since the statute on its face does not provide for any immunities, we would be going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871.
Even were we to overlook the fact that petitioner is inviting us to expand what was a qualified immunity at common law into an absolute immunity, we would find his analogy between himself and a prosecutor untenable. We have interpreted § 1983 to give absolute immunity to functions “intimately associated with the judicial phase of the criminal process,” Imbler, supra, at 430 (emphasis added), not from an exaggerated esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself. Briscoe v. LaHue, 460 U. S. 325, 334-335 (1983). We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment. Furthermore, petitioner’s analogy, while it has some force, does not take account of the fact that the prosecutor’s act in seeking an indictment is but the first step in the process of seeking a conviction. Exposing the prosecutor to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability. Thus, we shield the prosecutor seeking an indictment because any lesser immunity could impair the performance of a central actor in the judicial process.
In the case of the officer applying for a warrant, it is our judgment that the judicial process will on the whole benefit from a rule of qualified rather than absolute immunity. We do not believe that the Harlow standard, which gives ample room for mistaken judgments, will frequently deter an officer from submitting an affidavit when probable cause to make an arrest is present. True, an officer who knows that objectively unreasonable decisions will be actionable may be motivated to reflect, before submitting a request for a warrant, upon whether he has a reasonable basis for believing that his affidavit establishes probable cause. But such reflection is desirable, because it reduces the likelihood that the officer’s request for a warrant will be premature. Premature requests for warrants are at best a waste of judicial resources; at worst, they lead to premature arrests, which may injure the innocent or, by giving the basis for a suppression motion, benefit the guilty.
Furthermore, it would be incongruous to test police behavior by the “objective reasonableness” standard in a suppression hearing, see United States v. Leon, 468 U. S. 897 (1984), while exempting police conduct in applying for an arrest or search warrant from any scrutiny whatsoever in a § 1988 damages action. While we believe the exclusionary rule serves a necessary purpose, it obviously does so at a considerable cost to society as a whole, because it excludes evidence probative of guilt. On the other hand, a damages remedy for an arrest following an objectively unreasonable request for a warrant imposes a cost directly on the officer responsible for the unreasonable request, without the side effect of hampering a criminal prosecution. Also, in the case of the § 1983 action, the likelihood is obviously greater than at the suppression hearing that the remedy is benefiting the victim of police misconduct one would think most deserving of a remedy — the person who in fact has done no wrong, and has been arrested for no reason, or a bad reason. See Owen v. City of Independence, 445 U. S. 622, 653 (1980).
Accordingly, we hold that the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon, supra, defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest. Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, Leon, supra, at 923, will the shield of immunity be lost.
I — I f — H HH
We also reject petitioner’s argument that if an officer is entitled to only qualified immunity in cases like this, he is nevertheless shielded from damages liability because the act of applying for a warrant is per se objectively reasonable, provided that the officer believes that the facts alleged in his affidavit are true. Petitioner insists that he is entitled to rely on the judgment of a judicial officer in finding that probable cause exists and hence issuing the warrant. This view of objective reasonableness is at odds with our development of that concept in Harlow and Leon. In Leon, we stated that “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” 468 U. S., at 922, n. 23. The analogous question in this case is whether a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. If such was the case, the officer’s application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest. It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment.
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Respondents’ complaint also named the State of Rhode Island as a defendant. At the close of respondents’ evidence, Rhode Island moved for and was granted a directed verdict on Eleventh Amendment grounds. Respondents have not contested the propriety of the directed verdict for the State.
Harlow was a suit against federal, not state, officials, but as we stated in deciding the case, it is “ ‘untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.”’ 457 U. S., at 818, n. 30 (quoting Butz v. Economou, 438 U. S. 478, 504 (1978)).
See, e. g., Dinsman v. Wilkes, 12 How. 390, 402 (1852); Randall v. Henry, 5 Stew. & P. 367, 378 (Ala. 1834); Bell v. Keepers, 37 Kan. 64, 14 P. 542 (1887); Finn v. Frink, 84 Me. 261, 24 A. 851 (1892); 4 W. Wait, Actions and Defenses 352-356 (1878). The same rule applied in the case of search warrants. See, e. g., Barker v. Stetson, 73 Mass. 53, 54 (1856); Carey v. Sheets, 67 Ind. 375, 378-379 (1879).
See 4 Wait, supra, at 345 (‘Whether malice is proved or not is a question of fact for the jury”).
The organized bar’s development and enforcement of professional standards for prosecutors also lessen the danger that absolute immunity will become a shield for prosecutorial misconduct. As we observed in Imbler, “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. ” 424 U. S., at 429 (footnote omitted). The absence of a comparably well-developed and pervasive mechanism for controlling police misconduct weighs against allowing absolute immunity for the officer.
Although the case before us only concerns a damages action for an officer’s part in obtaining an allegedly unconstitutional arrest warrant, the distinction between a search warrant and an arrest warrant would not make a difference in the degree of immunity accorded the officer who applied for the warrant.
Petitioner has not pressed the argument that in a case like this the officer should not be liable because the judge’s decision to issue the warrant breaks the causal chain between the application for the warrant and the improvident arrest. It should be clear, however, that the District Court’s “no causation” rationale in this case is inconsistent with our interpretation of § 1983. As we stated in Monroe v. Pape, 365 U. S. 167, 187 (1961), § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Since the common law recognized the causal link between the submission of a complaint and an ensuing arrest, we read § 1983 as recognizing the same causal link.
The question is not presented to us, nor do we decide, whether petitioner’s conduct in this case was in fact objectively reasonable. That issue must be resolved on remand.
Notwithstanding petitioner’s protestations, the rule we adopt in no way “requires the police officer to assume a role even more skilled . . . than the magistrate. ” Brief for Petitioners 33. It is a sound presumption that “the magistrate is more qualified than the police officer to make a probable cause determination,” ibid., and it goes without saying that where a magistrate acts mistakenly in issuing a warrant but -within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable. But it is different if no officer of reasonable competence would have requested the warrant, i. e., his request is outside the range of the professional competence expected of an officer. If the magistrate issues the warrant in such a ease, his action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty. The officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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sc_issuearea
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
ALABAMA v. SHELTON
No. 00-1214.
Argued February 19, 2002 —
Decided May 20, 2002
Bill Pryor, Attorney General of Alabama, argued the cause for petitioner. With him on the briefs were Sandra Jean Stewart and Stephanie N. Morman, Assistant Attorneys General.
Charles Fried, by invitation of the Court, 534 U. S. 987 (2001), argued the cause and filed a brief as amicus curiae in opposition to the judgment below.
William H. Mills argued the cause and filed a brief for respondent.
Steven Duke argued the cause for the National Association of Criminal Defense Lawyers as amicus curiae urging af-firmance. With him on the brief were Thomas F. Liotti and David M. Porter.
A brief of amici curiae urging reversal was filed for the State of Texas et al. by John Cornyn, Attorney General of Texas, Gregory S. Coleman, Solicitor General, S. Kyle Duncan, Assistant Solicitor General, Carter G. Phillips, Gene C. Schaerr, Paul J. Zidlicky, and Rebecca K Smith, and by the Attorneys General for their respective States as follows: M. Jane Brady of Delaware, Richard P. Ieyoub of Louisiana, Mike McGrath of Montana, Don Stenberg of Nebraska, Betty D. Montgomery of Ohio, and Randolph A Beales of Virginia.
Justice Ginsburg
delivered the opinion of the Court.
This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel. Two prior decisions control the Court’s judgment. First, in Argersinger v. Hamlin, 407 U. S. 25 (1972), this Court held that defense counsel must be appointed in any criminal prosecution, “whether classified as petty, misdemeanor, or felony,” id., at 37, “that actually leads to imprisonment even for a brief period,” id., at 33. Later, in Scott v. Illinois, 440 U. S. 367, 373-374 (1979), the Court drew the line at “actual imprisonment,” holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment.
Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applies to a defendant in Shelton’s situation. We hold that a suspended sentence that may “end up in the actual deprivation of a person’s liberty” may not be imposed unless the defendant was accorded “the guiding hand of counsel” in the prosecution for the crime charged. Argersinger, 407 U. S., at 40 (internal quotation marks omitted).
I
After representing himself at a bench trial in the District Court of Etowah County, Alabama, Shelton was convicted of third-degree assault, a class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2,000 fine, Ala. Code §§13A-6-22, 13A-5-7(a)(l), 13A-5-12(a)(l) (1994). He invoked his right to a new trial before a jury in Circuit Court, Ala. Code § 12-12-71 (1995), where he again appeared without a lawyer and was again convicted. The court repeatedly warned Shelton about the problems self-representation entailed, see App. 9, but at no time offered him assistance of counsel at state expense.
The Circuit Court sentenced Shelton to serve 30 days in the county prison. As authorized by Alabama law, however, Ala. Code § 15-22-50 (1995), the court suspended that sentence and placed Shelton on two years’ unsupervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69.
Shelton appealed his conviction and sentence on Sixth Amendment grounds, and the Alabama Court of Criminal Appeals affirmed. That court initially held that an indigent defendant who receives a suspended prison sentence has a constitutional right to state-appointed counsel and remanded for a determination whether Shelton had “made a knowing, intelligent, and voluntary waiver of his right.” App. 7. When the case returned from remand, however, the appeals court reversed course: A suspended sentence, the court concluded, does not trigger the Sixth Amendment right to appointed counsel unless there is “evidence in the record that the [defendant] has actually been deprived of liberty.” Id., at 13. Because Shelton remained on probation, the court held that he had not been denied any Sixth Amendment right at trial. Id., at 14.
The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court’s decisions in Argersinger and Scott, the Alabama Supreme Court reasoned that a defendant may not be “sentenced to a term of imprisonment” absent provision of counsel. App.'37. In the Alabama high court’s view, a suspended sentence constitutes a “term of imprisonment” within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, “ ‘the threat itself is hollow and should be considered a nullity.’ ” App. 37 (quoting United States v. Reilley, 948 F. 2d 648, 654 (CA10 1991)). Accordingly, the court affirmed Shelton’s conviction and the monetary portion of his punishment, but invalidated “that aspect of his sentence imposing 30 days of suspended jail time.” App. 40. By reversing Shelton’s suspended sentence, the State informs us, the court also vacated the two-year term of probation. See Brief for Petitioner 6.
Courts have divided on the Sixth Amendment question presented in this case. Some have agreed with the decision below that appointment of counsel is a constitutional prerequisite to imposition of a conditional or suspended prison sentence. See, e. g., Reilley, 948 F. 2d, at 654; United States v. Foster, 904 F. 2d 20, 21 (CA9 1990); United States v. White, 529 F. 2d 1390, 1394 (CA8 1976). Others have rejected that proposition. See, e. g., Cottle v. Wainwright, 477 F. 2d 269, 274 (CA5), vacated on other grounds, 414 U. S. 895 (1973); Griswold v. Commonwealth, 252 Va. 113, 116-117, 472 S. E. 2d 789, 791 (1996); State v. Hansen, 273 Mont. 321, 325, 903 P. 2d 194, 197 (1995). We granted certiorari to resolve the conflict. 532 U. S. 1018 (2001).
II
Three positions are before us in this case. In line with the decision of the Supreme Court of Alabama, Shelton argues that an indigent defendant may not receive a suspended sentence unless he is offered or waives the assistance of state-appointed counsel. Brief for Respondent 5-27. Alabama now concedes that the Sixth Amendment bars activation of a suspended sentence for an uncounseled conviction, but maintains that the Constitution does not prohibit imposition of such a sentence as a method of effectuating probationary punishment. Reply Brief 4-13. To assure full airing of the question presented, we invited an amicus curiae (ami-cus) to argue in support of a third position, one Alabama has abandoned: Failure to appoint counsel to an indigent defendant “does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked.” 534 U. S. 987 (2001).
A
In Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963), we held that the Sixth Amendment’s guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U. S. 458 (1938), applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in Arger-singer, holding that an indigent defendant must be offered counsel in any misdemeanor case “that actually leads to imprisonment.” 407 U. S., at 33. Seven Terms later, Scott confirmed Argersinger’s “delimitation],” 440 U. S., at 373. Although the governing statute in Scott authorized a jail sentence of up to one year, see id., at 368, we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine, id., at 373. “Even were the matter res nova,” we stated, “the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel” in nonfelony cases. Ibid.
Subsequent decisions have reiterated the Argersinger-Scott “actual imprisonment” standard. See, e. g., Glover v. United States, 531 U. S. 198, 203 (2001) (“any amount of actual jail time has Sixth Amendment significance”); M. L. B. v. S. L. J., 519 U. S. 102, 113 (1996); Nichols v. United States, 511 U. S. 738, 746 (1994) (constitutional line is “between criminal proceedings that resulted in imprisonment, and those that did not”); id., at 750 (Souter, J., concurring in judgment) (“The Court in Scott, relying on ArgersingerQ drew a bright line between imprisonment and lesser criminal penalties.”); Lassiter v. Department of Social Servs. of Durham Cty., 452 U. S. 18, 26 (1981). It is thus the controlling rule that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense... unless he was represented by counsel at his trial.” Argersinger, 407 U. S., at 37.
B
Applying the “actual imprisonment” rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant’s violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point “result[s] in imprisonment,” Nichols, 511 U. S., at 746; it “end[s] up in the actual deprivation of a person’s liberty,” Argersinger, 407 U. S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow.
Amicus resists this reasoning primarily on two grounds. First, he attempts to align this case with our decisions in Nichols and Gagnon v. Scarpelli, 411 U. S. 778 (1973). See Brief for Amicus Curiae by Invitation of the Court 11-18 (hereinafter Fried Brief). We conclude that Shelton’s case is not properly bracketed with those dispositions.
Nichols presented the question whether the Sixth Amendment barred consideration of a defendant’s prior uncoun-seled misdemeanor conviction in determining his sentence for a subsequent felony offense. 511 U. S., at 740. Nichols pleaded guilty to federal felony drug charges. Several years earlier, unrepresented by counsel, he was fined but not incarcerated for the state misdemeanor of driving under the influence (DUI). Including the DUI conviction in the federal Sentencing Guidelines calculation allowed the trial court to impose a sentence for the felony drug conviction “25 months longér than if the misdemeanor conviction had not been considered.” Id., at 741. We upheld this result, concluding that “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” Id., at 749. In Gagnon, the question was whether the defendant, who was placed on probation pursuant to a suspended sentence for armed robbery, had a due process right to representation by appointed counsel at a probation revocation hearing. 411 U. S., at 783. We held that counsel was not invariably required in parole or probation revocation proceedings; we directed, instead, a “case-by-case approach” turning on the character of the issues involved. Id., at 788-791.
Considered together, amicus contends, Nichols and Gagnon establish this principle: Sequential proceedings must be analyzed separately for Sixth Amendment purposes, Fried Brief 11-18, and only those proceedings “resulting] in immediate actual imprisonment” trigger the right to state-appointed counsel, id., at 13 (emphasis added). Thus, the defendant in Nichols had no right to appointed counsel in the DUI proceeding because he was hot immediately imprisoned at the conclusion of that proceeding. The uncounseled DUI, valid when imposed, did not later become invalid because it was used to enhance the length of imprisonment that followed a separate and subsequent felony proceeding. Just so here, amicus contends: Shelton had no right to appointed counsel in the Circuit Court because he was not incarcerated immediately after trial; his conviction and suspended sentence were thus valid and could serve as proper predicates for actual imprisonment at a later hearing to revoke his probation. See Fried Brief 14, 23-24.
Gagnon and Nichols do not stand for the broad proposition amicus would extract from them. The dispositive factor in those cases was not whether incarceration occurred immediately or only after some delay. Rather, the critical point was that the defendant had a recognized right to counsel when adjudicated guilty of the felony offense for which he was imprisoned. See Nichols, 511 U. S., at 743, n. 9 (absent waiver, right to appointed counsel in felony cases is absolute). Unlike this case, in which revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, the sentences imposed in Nichols and Gagnon were for felony convictions — a federal drug conviction in Nichols, and a state armed robbery conviction in Gagnon — for which the right to counsel is unquestioned. See Nichols, 511 U. S., at 747 (relevant sentencing provisions punished only “the last offense committed by the defendant,” and did not constitute or “change the penalty imposed for the earlier” uncounseled misdemeanor); Gagnon, 411 U. S., at 789 (distinguishing “the right of an accused to counsel in a criminal prosecution” from “the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime”).
Thus, neither Nichols nor Gagnon altered or diminished Argersinger’s command that “no person may be imprisoned for any offense... unless he was represented by counsel at his trial,” 407 U. S., at 37 (emphasis added). Far from supporting amicus’ position, Gagnon and Nichols simply highlight that the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to Shelton’s Circuit Court trial, where his guilt was adjudicated, eligibity for imprisonment established, and prison sentence determined.
Nichols is further distinguishable for the related reason that the Court there applied a “less exacting” standard “consistent with the traditional understanding of the sentencing process.” 511 U. S., at 747. Once guilt has been established, we noted in Nichols, sentencing courts may take into account not only “a defendant’s prior convictions, but... also [his] past criminal behavior, even if no conviction resulted from that behavior.” Ibid. Thus, in accord with due process, Nichols “could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise” to his previous conviction, id., at 748 (emphasis added), even if he had never been charged with that conduct, Williams v. New York, 337 U. S. 241 (1949), and even if he had been acquitted of the misdemeanor with the aid of appointed counsel, United States v. Watts, 519 U. S. 148, 157 (1997) (per curiam). That relaxed standard has no application in this case, where the question is whether the defendant may be jailed absent a conviction credited as reliable because the defendant had access to “the guiding hand of counsel,” Argersinger, 407 U. S., at 40 (internal quotation marks omitted).
Amicus also contends that “practical considerations clearly weigh against” the extension of the Sixth Amendment appointed-counsel right to a defendant in Shelton’s situation. Fried Brief 23. He cites figures suggesting that although conditional sentences are commonly imposed, they are rarely activated. Id., at 20-22; Tr. of Oral Arg. 20-21 (speculating that “hundreds of thousands” of uncounseled defendants receive suspended sentences, but only “thousands” of that large number are incarcerated upon violating the terms of their probation). Based on these estimations, ami- cus argues that a rule requiring appointed counsel in every case involving a suspended sentence would unduly hamper the States’ attempts to impose effective probationary punishment. A more “workable solution,” he contends, would permit imposition of a suspended sentence on an uncounseled defendant and require appointment of counsel, if at all, only at the probation revocation stage, when incarceration is imminent. Fried Brief 18, 23-24.
Amicus observes that probation is “now a critical tool of law enforcement in low level cases.” Id., at 22. Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment’s domain that would result from the regime amicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant. See id., at 24 (raising, but not endeavoring to answer, several potential questions about the nature of the revocation hearing amicus contemplates). In Alabama, however, the character of the probation revocation hearing currently afforded is not in doubt. The proceeding is an “informal” one, Buckelew v. State, 48 Ala. App. 418, 421, 265 So. 2d 202, 205 (Crim. App. 1972), at which the defendant has no right to counsel, and the court no obligation to observe customary rules of evidence, Martin v. State, 46 Ala. App. 310, 311, 241 So. 2d 339, 340 (Crim. App. 1970).
More significant, the sole issue at the hearing — apart from determinations about the necessity of confinement, see Ala. Code § 15-22-54(d)(4) (1975) — is whether the defendant breached the terms of probation. See Martin, 46 Ala. App., at 312, 241 So. 2d, at 341 (“All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended.” (internal quotation marks omitted)). The validity or reliability of the underlying conviction is beyond attack. See Buckelew, 48 Ala. App., at 421, 265 So. 2d, at 205 (“a probation hearing cannot entertain a collateral attack on a judgment of another circuit”).
We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton’s circumstances faces incarceration on a conviction that has never been subjected to “the crucible of meaningful adversarial testing,” United States v. Cronic, 466 U. S. 648, 656 (1984). The Sixth Amendment does not countenance this result.
In a variation on amicus’ position, the dissent would limit review in this case to the question whether the imposition of Shelton’s suspended sentence required appointment of counsel, answering that question “plainly no” because such a step “does not deprive a defendant of his personal liberty.” Post, at 676. Only if the sentence is later activated, the dissent contends, need the Court “ask whether the procedural safeguards attending the imposition of [Shelton’s] sentence comply with the Constitution.” Ibid.
Severing the analysis in this manner makes little sense. One cannot assess the constitutionality of imposing a suspended sentence while simultaneously walling off the procedures that will precede its activation. The dissent imagines a set of safeguards Alabama might provide at the probation revocation stage sufficient to cure its failure to appoint counsel prior to sentencing, including, perhaps, “complete retrial of the misdemeanor violation with assistance of counsel,” post, at 677. But there is no cause for speculation about Alabama’s procedures; they are established by Alabama statute and decisional law, see supra, at 666 and this page, and they bear no resemblance to those the dissent invents in its effort to sanction the prospect of Shelton’s imprisonment on an uncounseled conviction. Assessing the issue before us in light of actual circumstances, we do not comprehend how the procedures Alabama in fact provides at the probation revocation hearing could bring Shelton’s sentence within constitutional bounds.
Nor do we agree with amicus or the dissent that our holding will “substantially limit the states’ ability” to impose probation, Fried Brief 22, or encumber them with a “large, new burden,” post, at 680. Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution. See Nichols, 511 U. S., at 748-749, n. 12. All but 16 States, for example, would provide counsel to a defendant in Shelton’s circumstances, either because he received a substantial fine or because state law authorized incarceration for the charged offense or provided for a maximum prison term of one year. See Ala. Code §§ 13A-6-22,13A-5-7(a)(l), 13A-5-12(a)(l) (1994). There is thus scant reason to believe that a rule conditioning imposition of a suspended sentence on provision of appointed counsel would affect existing practice in the large majority of the States. And given the current commitment of most jurisdictions to affording court-appointed counsel to indigent misdemeanants while simultaneously preserving the option of probationary punishment, we do not share amicus’ concern that other States may lack the capacity and resources to do the same.
Moreover, even if amicus is correct that “some courts and jurisdictions at least [canjnot bear” the costs of the rule we confirm today, Fried Brief 23, those States need not abandon probation or equivalent measures as viable forms of punishment. Although they may not attach probation to an imposed and suspended prison sentence, States unable or unwilling routinely to provide appointed counsel to misde-meanants in Shelton’s situation are not without recourse to another option capable of yielding a similar result.
That option is pretrial probation, employed in some form by at least 23 States. See App. to Reply Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a-2a (collecting state statutes). Under such an arrangement, the prosecutor and defendant agree to the defendant’s participation in a pretrial rehabilitation program, which includes conditions typical of post-trial probation. The adjudication of guilt and imposition of sentence for the underlying offense then occur only if and when the defendant breaches those conditions. Ibid.; see, e. g., Conn. Gen. Stat. § 54-56e (2001); Pa. Rules Crim. Proc. 310-320, 316 (2002) (“The conditions of the [pretrial rehabilitation] program may be such as may be imposed with respect to probation after conviction of a crime.”); N. Y. Crim. Proc. Law § 170.55(3) (McKinney Supp. 2001) (pretrial “adjournment in contemplation of dismissal” may require defendant “to observe certain specified conditions of conduct”).
Like the regime urged by amicus, this system reserves the appointed-counsel requirement for the “small percentage” of cases in which incarceration proves necessary, Fried Brief 21, thus allowing a State to “supervise a course of rehabilitation” without providing a lawyer every time it wishes to pursue such a course, Gagnon, 411 U. S., at 784. Unlike amicus’ position, however, pretrial probation also respects the constitutional imperative that “no person may be imprisoned for any offense... unless he was represented by counsel at his trial,” Argersinger, 407 U. S., at 37.
C
Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant “for a term that relates to the original offense” and therefore “crosses the line of ‘actual imprisonment’” established in Argersinger and Scott. Reply Brief to Amicus Curiae Professor Charles Fried 8. Shelton cannot be imprisoned, Alabama thus acknowledges, “unless the State has afforded him 'the right to assistance of appointed counsel in his defense,” Scott, 440 U. S., at 374; see Reply Brief 9. Alabama maintains, however, that there is no constitutional barrier to imposition of a suspended sentence that can never be enforced; the State therefore urges reversal of the Alabama Supreme Court’s judgment insofar as it vacated the term of probation Shelton was ordered to serve.
In effect, Alabama invites us to regard two years’ probation for Shelton as a separate and independent sentence, which “the State would have the same power to enforce [as] a judgment of a mere fine.” Tr. of Oral Arg. 6. Scott, Alabama emphasizes, squarely held that a fine-only sentence does not trigger a right to court-appointed counsel, Tr. of Oral Arg. 6; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt proceeding. See Reply Brief 11-12; Reply Brief to Amicus Curiae Professor Charles Fried 10-13; Tr. of Oral Arg. 7.
Alabama describes the contempt proceeding it envisions as one in which Shelton would receive “the full panoply of due process,” including the assistance of counsel. Reply Brief 12. Any sanction imposed would be for “post-conviction wrongdoing,” not for the offense of conviction. Reply Brief to Amicus Curiae Professor Charles Fried 11. “The maximum penalty faced would be a $100 fine and five days’ imprisonment,” Reply Brief 12 (citing Ala. Code § 12-11-30(5) (1995)), not the 30 days ordered and suspended by the Alabama Circuit Court, see sufra, at 658.
There is not so much as a hint, however, in the decision of the Supreme Court of Alabama, that Shelton’s probation term is separable from the prison term to which it was tethered. Absent any prior presentation of the position the State now takes, we resist passing on it in the first instance. Our resistance to acting as a court of first view instead of one of review is heightened by the Alabama Attorney General’s acknowledgment at oral argument that he did not know of any State that imposes, postconviction, on a par with a fine, a term of probation unattached to a suspended sentence. Tr. of Oral Arg. 8. The novelty of the State’s current position is further marked by the unqualified statement in Alabama’s opening brief that, “[b]y reversing Shelton’s suspended sentence, the [Supreme Court of Alabama] correspondingly vacated the two-year probationary term.” Brief for Petitioner 6.
In short, Alabama has developed its position late in this litigation and before the wrong forum. It is for the Alabama Supreme Court to consider before this Court does whether the suspended sentence alone is invalid, leaving Shelton’s probation term freestanding and independently effective. See Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn., 426 U. S. 482, 488 (1976) (“We are, of course, bound to accept the interpretation of [the State’s] law by the highest court of the State.”). We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: “[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel.” App. 40 (emphasis added); see Brief for Petitioner 6. We find no infirmity in that holding.
* * *
Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama.
It is so ordered.
Shelton also appealed on a number of state-law grounds. The Court of Criminal Appeals rejected all but one of those challenges, concluding that most had been procedurally defaulted in the trial court. See App. 14-25. On one such challenge, the court remanded for further proceedings, id, at 23, but affirmed after the trial court ruled against Shelton on remand, id, at 29.
Justice Maddox dissented, stating that Shelton was not constitutionally entitled to counsel because he “received only a suspended sentence and was not incarcerated.” App. 41. Justice Maddox also construed the trial record as establishing Shelton’s waiver of any right to appointed counsel he might have enjoyed. Ibid.
Shelton also urges this Court to overrule Argersinger v. Hamlin, 407 U. S. 25 (1972), and Scott v. Illinois, 440 U. S. 367 (1979), to the extent those cases do not guarantee a right to counsel “in all cases where imprisonment is an authorized penalty.” Brief for Respondent 27-31. We do not entertain this contention, for Shelton first raised it in his brief on the merits. “We would normally expect notice of an intent to make so far-reaching an argument in the respondent’s opposition to a petition for certiorari, cf. this Court’s Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.” South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999).
Charles Fried, a member of the Bar of this Court, accepted our invitation and has well fulfilled his assigned responsibility.
In any event, the dissent is simply incorrect that our decision today effectively “deprive[s] the State of th[e] option” of placing an uncounseled defendant on probation, with incarceration conditioned on a guilty verdict following a trial de novo. Post, at 677. That option is the functional equivalent of pretrial probation, as to which we entertain no constitutional doubt. See infra, at 670-672, and n. 12.
Regarding the dissent’s suggestion that other “means of retesting (with assistance of counsel) the validity of the original conviction” might suffice, post, at 678, n. 3, we doubt that providing counsel after the critical guilt adjudication stage “[would] be of much help to a defendant,” for “the die is usually cast when judgment is entered on an uncounseled trial record.” Argersinger, 407 U. S., at 41 (Burger, C. J., concurring in result). “[A] large number of misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic change in the procedures of these courts, there would be no way” for the defendant to demonstrate error in the original proceeding or reconstruct evidence lost in the intervening period. Nichols v. United States, 511 U. S. 738, 748 (1994). But we need not here decide whether or what procedural safeguards “short of complete retrial” at the probation revocation stage could satisfy the Sixth Amendment, post, at 678; the minimal procedures Alabama does provide are plainly insufficient.
Charging that we have “miraculously divined how the Alabama justices would resolve a constitutional question,” post, at 676, the dissent forgets that this case is here on writ of certiorari to the Alabama Supreme Court. That court ruled in the decision under review that Shelton’s sentence violates the Sixth Amendment. The Alabama Supreme Court has thus already spoken on the issue we now address, and in doing so expressed not the slightest hint that revocation-stage procedures — real or imaginary— would affect the constitutional calculus.
See N. J. Stat. Ann. §2A:158A-5.2 (1985); State v. Hermanns, 278 N. J. Super. 19, 29, 650 A. 2d 360, 366 (1994); N. C. Gen. Stat. § 7A-451(a)(1) (1999); Vt. Stat. Ann., Tit. 13, §5201 (1998).
See Alexander v. Anchorage, 490 P. 2d 910, 913 (Alaska 1971) (interpreting Alaska Const., Art. I, § 11, to provide counsel when punishment may involve incarceration); Tracy v. Municipal Court for Glendale Judicial Dist., 22 Cal. 3d 760, 766, 587 P. 2d 227, 230 (1978) (Cal. Penal Code Ann. § 686 (West 1985) affords counsel to misdemeanor defendants); Del. Code Ann., Tit. 29, §4602 (1997); D. C. Code Ann. §11-2602 (West 2001); Haw. Rev. Stat. §802-1 (1999); Ill. Comp. Stat., ch. 725, §113-3 (1992); Brunson v. State, 182 Ind. App. 146, 149, 394 N. E. 2d 229, 231 (1979) (right to counsel in misdemeanor proceedings guaranteed by Ind. Const., Art. I, §13); Ky. Rev. Stat. Ann. §§31.100(4)(b), 31.110(1) (West 1999); La. Const., Art. I, §13; Mass. Rule Crim. Proc. 8 (2001); Minn. Rule Crim. Proc. 5.02(1) (2001); Neb. Rev. Stat. §29-3902 (1995); N.Y. Crim. Proc. Law § 170.10(3)(c) (West 1993); Okla. Stat., Tit. 22, § 1355.6.A (West Supp. 2002); Ore. Rev. Stat. Ann. § 135.050(4) (Supp. 1998);
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
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 type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_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.
E. I. DU PONT DE NEMOURS & CO. v. GLIDDEN CO.
No. 449.
Circuit Court of Appeals, Second Circuit.
July 10, 1933.
On Rehearing Nov. 13, 1933.
Charles Neave, Maxwell Barus, Paul R. Ames, and J. B. Cuningham, all of New York City, for appellant.
Pennie, Davis, Marvin & Edmonds, of New York City (William H. Davis, Daniel V. Ma-honey, George E. Faithfull, and Charles W. Riley, all of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
This is the usual equity suit for the infringement of a patent for a product; that is, for a lacquer made of nitro-cellulose with oils and resins, and for articles coated with it. Infringement is conceded, but the judge declared all the claims invalid. To an understanding of the case a brief statement is necessary, which may be supplemented by resort to the opinion below. De Nemours & Co. v. Glidden Co. (D. C.) 1 F. Supp. 1007. The base of the lacquer in question is nitrocellulose, a derivative of cotton, which when dissolved in proper diluents may be sprayed or brushed upon the object to be varnished, or made to adhere to its surface by dipping. As the solvents are evaporable, they disappear with exposure, leaving a coating upon the object which is hard, tough and adhesive, with a smooth glossy finish. The thickness of the coat obviously depends upon the solids left after the solvents have evaporated, principally the -nitro-cellulose. The greater the proportion of this to the solvents, the thicker the coat, and an initially thick coat is what is desired, else the operation must be more often repeated. On the other hand, the greater the proportion of nitro-cellulose in the solution, the more viscous it is, and the harder to spray or brush. The optimum is therefore that solution which will contain most nitro-cellulose and remain most fluid. There would have been no problem, if nitrocellulose were all of one quality, in respect of thickening the solution into which it is put. It is not. In some conditions of the substance a given proportion in a solution will thicken it beyond practicable limits; in others, the same proportion will leave it fluid enough for use. This quality is known as its “viscosity characteristic.” To achieve a thick coating and keep the solution fluid enough for use, it was essential to produce a nitro-cellulose of low “viscosity characteristie,” and undoubtedly the art would have welcomed such a lacquer before Flaherty’s time; indeed, it had tried to find one. It would thicken each covering and avoid several additional coats.
Various processes were known long before the invention by which viseosity of nitrocellulose could be reduced; the patent especially mentioned one of these of recent origin, Pitman. However, as the viscosity is reduced, though the lacquered objeet will be covered more thickly, the coating becomes brittle and will crack or chip. Oils and other softeners prevent this by making it tough; resins make it stick, though they counteract the action of the softeners, and even with softeners the viscosity must not be too far reduced. The art entirely understood the action of these components and had used them for long. The patent did not pretend to rely upon any of these discoveries, and could not. It gave a recipe for reducing viseosity, and for oils or resins, but laid no claim to it or any part of it. It claimed no more than that to produce an effective lacquer of thick coating quality, the viscosity characteristic of the nitro-cellulose must be below a critical limit fixed in the claims. It left the art to its own devices as to how to reduce the nitro-cellulose to the required viseosity, and how by the addition of oils and resins to make the coat tough and adhesive. The examples or recipes were merely illustrations of how the product could be made; they were not part of the invention and the defendant has not followed them; nor indeed does the plaintiff at the present time. They are present merely to conform to the statute.
There are various ways of reckoning viscosity; for convenience we shall adopt the simplest, which is a scale in seconds. The specifications declare that, by following the examples given, “a 25 to 4-0 %” nitro-cellulose “solution may be obtained having a viseosity below” a stated limit, “being practically the upper limit for any commercial, solution which is to be used for coating without thinning” (page 2, lines 25-31). This upper limit, by the scale used in the disclosure, involved in fact nitro-cellulose of different characteristics at the two extremes. The characteristic of the nitro-cellulose of a 25% solution measured by that standard is 4.6 seconds; that of a 40% solution is much lower, between .2 and .5 seconds, according to the amount of sodium acetate used to reducá it. Perhaps Flaherty intended by these words to fix a lower limit of viseosity, but the language is obscure, and his claims suggest nothing of the sort. Yet it is a natural way to read the language to suppose that the 40% solution was indeed a lower limit, in spite of the verbal inappositeness of the phrase. However that may be, he did indicate very clearly in his specifications that the viscosity should not be too low. Thus his first example was of lowering it so far as to be too low “even for most purposes,” and of building it back by the addition of higher viseosity nitro-cellulose, “to a suitable working point.” Clearly he presupposed that the art would understand what that point was, and that it should not make a lacquer too brittle to be corrected by softeners. The art certainly responded, for it had that knowledge and followed him without difficulty. In these circumstances it appears to us irrelevant that the claims contained no lower limit, as indeed they did not. So construed, is the patent valid?
Upon the appearance of the patented lacquer, under its trade-name, Viscolac, the art very generally followed suit, coming to rest for the most part with “half second” nitrocellulose. Flaherty’s work was done in 1920, shortly after the close of the Great War, and at a time when vast stocks of nitro-cellulose were on hand, and when the pressure for its disposal had increased, as well as for some use for the existing plants. This may account for the stimulus to get an effective lacquer of thick coverage, but it does not explain all the facts. The uses of such a laequer had existed long before, and when it appeared, it largely invaded the field of varnish and in many fields supplanted its use; there is- no reason to suppose that if it had been available earlier, it would not have done the same. Furthermore, the art had unquestionably been experimenting with low viscosity nitro-cellulose for a number of years before Flaherty began. In 1913, and thus before the war, Doerflinger, a competent chemist, who later went to the Perry Austen Company, began to work upon low viscosity lacquers. His nearest approach to anything within Flaherty’s limits was his formula 415. The technical evidence as to its viscosity, is obscure and baffling. Doerflingeris tests at the time were made by pipettes, and then in only two very thin solutions. The extent to which he reduced viseosity depends upon his testimony; at.least there is a dispute as to whether the basis of the experts’ experiments, i. e., the defendant’s bill of particulars, was the same as that testimony. Doerflinger during reduction neutralized tho agent, ammonia, by which he reduced viscosity. There is a dispute as to how far in the duplication of his experiments his moment of neutralization was observed. Upon it the viscosity depended. The evidence being in so much dispute, the severe standard of proof for anticipation was scarcely met in our judgment; but, quite aside from that, we think that the testimony of the art is enough to forbid the conclusion that, whatever viscosity Doerflinger got, he had produced a lacquer such as Viscolae. The Perry-Austen Company was a substantial producer; its wares were sold in quantity. The new lacquer appeared and passed to its customers without comment from them, or any notice of difference between it and the lacquers already on the market; manufacture was discontinued in 1919. When in 1921 Viscolae appeared, it at once commanded the attention of the whole art as something radically new and desirable. Its equal had not yet been available and all recognized that it must be matched. This seems to us at least to throw enough doubt upon Doerflinger’s work to put it out as an anticipation. It is explicable of course on the theory that the secret of the success lay in something other than low viscosity. Possibly it did, but the explanation is not forthcoming. It could not have been Hitt’s patent for a softener, for Viseolae made its appearance some months before that was used. So far as we can judge, the art had meanwhile received no information for the betterment of lacquer, except the control of viscosity. Why this should not have been earlier taken as critical, especially as the relation between viscosity and coverage was well known, we cannot say; but, so far as we can see, nothing except the knowledge that viscosity must be kept below Flaherty’s limit determined the success of the new product. The art apparently had no difficulty in avoiding such reduction as could not be corrected by oils or other softeners.
Our conclusion is borne out by the other 'evidence. One, Bacon, was a chemist in the employ of the Atlas Company, a large and powerful producer of lacquers. In 1919 this company wished to secure a lacquer of low viscosity and charged Bacon to develop it. An early report, that of July 30, 1919, indicated that he had succeeded; if it stood alone, it might be hard to deny that it was an anticipation of Flaherty, who had not yet begun. But Bacon had been premature in his conclusions. He was diverted to trying out resins and gums, and by August of 1920, by his own admission, had not yet succeeded in making a suitable wood lacquer. It is not necessary to follow his work in detail, for concededly his results in the later part of 1920, and the early part of 1921, are the most important. In December, 1920, he had developed a lacquer of very low viscosity which he used as a resin; it was very sticky and he did not mean to use it alone. To this he added a softener to increase its toughness, but still found that it was too thin. Finally he produced his Adamantine X, in which he did not reduce the viscosity so far as in the resinoid predecessor. Probably, though not certainly, the resulting viscosity was within Flaherty’s limit. However, it was probably not satisfactory; there is testimony that it checked and cracked. In any event it appeared in January, 1921, and after Flaherty had developed his own lacquer. Indeed, Flaherty’s first sale was in January, 1921, following some trial deliveries in December.
But again it seems to us that we need not depend upon the technical evidence, which, as is so common in chemical cases, is confused and uncertain. As in the ease of Doerflinger, whatever Bacon got, it was not Viscolae, which the trade at once recognized as new. The Atlas Company itself was explicit as to this; in its report of April, 1922, it said that “to obtain such a finish in one or two coats with material thinned with an equal amount of thinner had been unheard of in lacquer finishes until Viscolae came on the market.” Bacon had not succeeded, and the difficulties were plainly greater than appear from the known relation between coverage and viscosity. Though that was understood, it had not been enough to lead two competent experimenters to success. We have already said that it does not follow that the secret lay only in the critical limit of viscosity; and that it seems, at first blush anyway, rather improbable that this alone should have proved the cue. And yet again, when all the facts are considered, nothing else appears to have changed. The defendant suggests that new and economical methods of reducing viscosity had appeared, as for example Pitman’s. But the very process which it uses itself had been patented at least as early as 1910, and while the Hercules Company had not known the earlier disclosures, they were available to the art. An invention must be judged by what was in the public demesne, as well in the inventor’s favor, as against him. Nor was there any new discovery in softeners to account for success, as we have already said. True, all that Flaherty did was to carry out what was already known, and by trial and error fix the limit which should be observed. If genius is demanded, surely he was no inventor; rather he was one of those who, taking the knowledge at hand, worked out its implications in the laboratory. There are indeed expressions in the books which, taken literally, would exclude such work from the protection of the patent laws; there are others which would not. But we deprecate such a priori rules for determining invention. Nothing has tended more to confuse and obscure the issue than the attempts of courts to lay down generalities. The issue does not admit of such treatment, for invention is always a function of the particular situation, of the conditions which preceded and followed the appearance of the composition or the machine. That this is a treacherous standard is true enough, but at least it is less treacherous than easy absolutes which fit the immediate occasion, but lie athwart any realistic treatment in the next case. At any rate to this approach we stand committed. O’Rourke Engineering Construction Co. v. McMullen (C. C. A.) 160 F. 933, 938; American Stainless Steel Co. v. Ludlum Steel Co. (C. C. A.) 290 F. 103,105; Kirsch Mfg. Co. v. Gould Mersereau Co. (C. C. A.) 6 F. (2d) 793; Dubilier Condenser Corp. v. New York Coil Co. (C. C. A.) 20 F.(2d) 723, 724; Electrical Engineers’ Equipment Co. v. Champion Switch Co. (C. C. A.) 23 F.(2d) 600, 604; R. Hoe & Co. v. Goss Printing Press Co. (C. C. A.) 30 F.(2d) 271, 274; United Chromium Co. v. International Silver Co. (C. C. A.) 60 F.(2d) 913, 916, 917. And we have endeavored in adopting it'to follow the implications of the Supreme Court. Webster Loom Co. v. Higgins, 105 U. S. 580, 581, 26 L. Ed. 1177; Potts & Co. v. Creager, 155 U. S. 597, 607,15 S. Ct. 194, 39 L. Ed. 275; Diamond, etc., Co. v. Consolidated, etc., Co., 220 U. S. 428, 435, 31 S. Ct. 444, 55 L. Ed. 527; Eibel, etc., Co. v. Minnesota, etc., Co., 261 U. S. 45, 68, 43 S. Ct. 322, 67 L. Ed. 523.
The learned District Judge particularly relied upon De Forest Radio Company v. General Electric Co., 283 U. S. 664, 51 S. Ct. 563, 75 L. Ed. 1339, and so does the defendant. That was a ease which superficially somewhat resembled the case at bar, and where some of the language, broken from its context, looks in the defendant’s favor. We do not think that upon close scrutiny it goes so far as appears. Langmuir, the inventor, had utilized the current knowledge of the art in 1913, to claim as his invention the exhaustion of the occluded gases in a vacuum bulb, by which he reduced its ionization point in use. It was known that the phenomenon of ionization, though in some respects it assisted the development .of the current discharge in a radio receiving circuit, made it unsteady and demanded nice adjustment for each bulb. Thus it became desirable to reduce it so far as possible, allowing the electrons to pass in vacuo from the filament to the plate. All this, as we have said, was well known and had been declared in scientific periodicals, especially by Iilienféld. At the time when Langmuir disclosed his invention, which was merely for a completely exhausted bulb, there was no demand for anything of the sort; the art did not yet need it. Thus Langmuir had merely put in practical form, before they were needed, the scientific discoveries of others; indeed the court thought that De Forest had anticipated him even in that, though this was not its chief reliance. The opinion must be read with this in mind, and when so read appears inapposite. However obvious Langmuir’s invention might seem to be, we have no reason to suppose that, had he been the first to succeed of several experimenters, working over a substantial period after the practical need had arisen, he would have failed.
Therefore, we are disposed to regard Flaherty’s work in this ease as invention. From him dated in fact a contribution whose value cannot be denied; to him must be attributed the first practicable low viscosity lacquers, whose desirability had been known long enough to make them the subject of much experiment; we can discover nothing but the control of viscosity which achieved success, obvious as that may now seem; that information turned out to be enough to direct the art. There may be some illusion in all this, of which we are not aware, but as the case stands, to assimilate his work to mere craftsmanship would be a denial of the facts before us. Moreover, the patent has been recognized by fifty-two manufacturers who have taken licenses. True, this must not be pressed too far; it is easier to pay tribute than to "fight, and a substantial part of the trade has combined in this contest. But courts have always treated such recognition as a relevant consideration and certainly it may not be altogether disregarded. Thropp’s Sons Co. v. Seiberling, 264 U. S. 320, 329, 330, 44 S. Ct. 346, 68 L. Ed. 708.
Flaherty originally claimed a higher limit of viscosity than 4.6 seconds. Not only was he forced to disclaim after suit brought, claims to 16.2 second nitro-eellulose, but his specifications still contain the statement that “generally” the critical limit is as high as that (page 3> lines 2-9). He was more acquisitive than he should have been, as inventors often are; but that ought not to take away from him his invention, if he made one. The claims in suit are limited to 4.6 second viscosity, and that is what he actually found. The very purpose of the disclaimer statute is to allow retraction, in the absence of bad faith, which is not here asserted. That he should have wrongly guessed that the limit was higher, does not abate from the fact that he has found the actual limit; that which the art has now adopted. He could not be expected to set a definite figure; there is none, for viscosity may vary even below his limit. But he did set that limit definitely, and in a chemical patent that is all that is required. The supposed vacillation in his conception seems to us to be no more than is permissible to one who has in fact discovered a chemical invention of substance, but who is in doubt whether it may not extend beyond his experimental verification. Somewhere no doubt he must set his bounds at his peril, and that he did.
The defence of abandonment we need not consider. The District Judge thought it without merit and so do we. We are content to accept his disposition of that issue as our own.
Decree reversed.
On Rehearing.
PER CURIAM.
We have again examined the record as to Doerflinger’s prior use in 1913-1919, and axe still of opinion that it was not adequately proved. We may assume that he did on occasion reduce viscosity below Flaherty’s limit, but what he used, except experimentally, was solution 415, and the viscosity of that is most uncertain. Doerflinger used acetic acid to stop the reaction of ammonia, the reducing agent; the more ammonia that combined, the greater the reduction in viscosity. He added enough acetic acid to neutralize two-thirds of the ammonia; and after its addition the solution was neutral, not acid. The defendant’s experts allowed either all the ammonia, or much more than a third to combine; Schlatter, one of plaintiff’s witnesses, after adding the amount of acetic acid specified by Doerflinger, found that the result was acid; more than a third of the ammonia had been used. Naturally there was a greater reduction of viscosity. Clark, the other, did not test to see whether the solution was neutral or not. Moreover, the temperatures of Doerflinger’s experiments could not be reproduced, as they were not accurately measured at the time, and, besides, his memory was not reliable after nearly twenty years. Therefore, whatever "Doerflinger did, it is not definitely proved that he discovered a lacquer suitable in other respects, and of thick covering, produced by keeping within 4.6 seconds’ viscosity. If in his experiments he chanced upon some such, it was not an anticipation, unless he came to rest upon a formula which contained the elements of the patented composition. Lacquer made under formula 415 made no impression upon the art, either by its appearance or disappearance; and it is improbable that this would have been so, had it been that composition which in 1921 was at once recognized as a new and important advance. This circumstance fortifies our doubts as to the identity of the two, as it did before.
As to Bacon’s use, it is clear that, regardless of Flaherty’s date of invention, Admantine X was not the patented product. It was the culmination of a series of experiments originating in Admantine resin, which Bacon thought would be a substitute for true resins. It contained none, because at that time Given says that they did not believe that ordinary resins could be successfully combined with low viscosity nitrocellulose. Probably in 1919 they had thought that it eould, but the results had not been satisfactory, and, when Bacon took up the investigation again in July, 1920, they did not believe that he had yet solved the problem, certainly as to wood finishes. As to lacquers of other lands, if indeed the difference is as important as the defendant would have us believe, his results, judging by his reports, were still experimental and somewhat equivocal. For example, the report of October 27,1920, was based upon high viscosity nitrocellulose, with which they were therefore still working. We cannot regard all this, taken with the later omission of all resins, as compatible with more than tentative earlier results. Besides, the declarations of the Atlas Company itself, when Viscolac appeared, ought to lay any doubt that what Bacon succeeded in producing was not Flaherty’s lacquer.
Upon the issue of invention we have little to add to what we said before. Except for claim 1, all the claims are for compositions of nitrocellulose and resin; most of them ■with a softener added. The invention, so far as we need consider it, is not for a low viscosity nitrocellulose; not even for a lacquer made of low viseosity nitrocellulose. Our emphasis upon the new element in our opinion has apparently misled, the defendant into supposing that we thought the patented lacquer was only a nitrocellulose product. It was not; it was a lacquer made with gums or resins, and normally with a softener. Bacon at least had been led away from such a lacquer, as we have just said; he thought that it would not be tough, hard, and adhesive. Whether the art generally supposed so, does not appear, but such a lacquer with great covering power would have got wide acceptance. If Flaherty did no more than disabuse the art of a misconception, it is evidence of originality; most of us persist in what we are accustomed to believe. Though all he did was to carry forward the existing knowledge that lower viscosity would result in greater coverage, other competent persons had tried to use that knowledge; the stimulus to success was great, and the art had been either strangely inert, if the combination was obvious, or else obsessed with a belief that low viscosity was impracticable. The result was a new and unexpected product, recognized as such, and used to much advantage. We know of no rigid doctrine, divorced from those practical considerations which rightly or wrongly are basic in the patent law, that forbids to such an advance the name of invention. If authority is needed, Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 48 S. Ct. 474, 72 L. Ed. 868, will serve. There it was known that by degenerating starch its absorptivity would diminish. All Perkins did was to stop the process before it became dextrine, which gave bad adhesion; and that was an invention, though he did not claim it. The situation is here reversed; instead of stopping a known process to get a new result, Flaherty extended one. That his limit is not absolute is no objection; though at first hazy as to the precise boundaries, he had always fixed a safe upper limit, and that was enough. Nor do we agree that, at least on this record, we were wrong in saying that there is a lower limit to which viscosity should not extend; it is true that the resulting brittleness can be corrected, but there is at least some evidence that the necessary softeners make the lacquer impracticable. In any case, the point is unimportant, for no lower limit is necessary to the validity of the patent, and we have not found that there was any.
We did not mention Carlsson and Thall’s patent, because it seemed to us irrelevant, since it added nothing to Bacon’s work. The specifications are only for the preparation of low viscosity nitrocellulose. The last two claims, which were borrowed from Bacon, do indeed imply that such nitrocellulose may be used for lacquers; but the question whether the nitrocellulose described was to be used alone, or made an ingredient with resins and the like, is left wholly at large. This at best left the art just where Bacon’s own experiments left it. Unless we beg the whole question by assuming that the unanswered question was unimportant, the disclosure was irrelevant; and, even if we do not, it would scarcely be full enough.
We cannot see that Underwood v. Gerber, 149 U. S. 224, 13 S. Ct. 854, 37 L. Ed. 710, affects the validity of claims 12 and 17; it did not hold that a single patent might not contain claims both for a composition of matter and for articles in or on which it was used. It is not indeed apparent how a patentee gains anything by such claims; the article is already covered by claims for the composition, if it contains the composition. On the other hand, though such claims may be idle, they do not expand the monopoly, which covers all uses of the composition anyway.
We failed to notice that the disclaimer included lines 2 to 9 of page 3, but the argument is stronger with these out.
We adhere to our original decision, and the decree is reversed.
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_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ASSOCIATED DRY GOODS CORP.
No. 79-1068.
Argued November 3, 1980
Decided January 26, 1981
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, White, and Marshall, JJ., joined. BlacKmuN, J., filed an opinion concurring in part and dissenting in part, post, p. 604. SteveNS, J., filed a dissenting opinion, post, p. 606. Powell, J., took no part in the decision of the case. RehNQüist, J., took no part in the consideration or decision of the case.
Barry Sullivan argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Wallace, Leroy D. Clark, Joseph T. Eddins, Lutz Alexander Prager, and Vella M. Fink.
Roger S. Kaplan argued the cause for respondent. With him on the brief were Robert Lewis, Joel L. Finger, and Thomas C. Greble.
Briefs of amici curiae urging affirmance were filed by Leonard Rovins and Alan D. Gallay for the American Retail Federation; and by Robert E. Williams and Douglas S. McDowell for the Equal Employment Advisory Council.
Justice Stewart
delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 limits the authority of the Equal Employment Opportunity Commission to make public disclosure of information it has obtained in investigating and attempting to resolve a claim of employment discrimination. We granted certiorari in this case to consider whether the Court of Appeals for the Fourth Circuit was correct in holding that a prelitigation disclosure of information in a Commission file to the employee who filed the Title YII claim is a “public” disclosure within the meaning of the statutory restrictions. 445 U. S. 926.
I
This case arose when the Commission sought evidence with respect to discrimination charges filed against the Joseph Horne Co., a division of the respondent, Associated Dry Goods Corp. Horne operates retail department stores in Pennsylvania. Between 1971 and 1973, seven Home employees filed employment discrimination charges with the Commission, six alleging sex discrimination and one alleging racial discrimination. The Commission began its investigation by requesting Horne to provide the employment records of the complainants, and statistics, documents, and other information relating to Horne’s general personnel practices. Horne refused to provide the information unless the Commission agreed beforehand not to disclose any of the requested material to the charging parties. The Commission refused to give this assurance, explaining its practice of making limited disclosure to a charging party of information in his and other files when he needs that information in connection with a potential lawsuit. When Horne continued to refuse to provide the information without an assurance of absolute secrecy, the Commission subpoenaed the material. After the Commission rejected Horne’s petition for revocation of the agency subpoena, the respondent filed this suit, asking the District Court to declare that the Commission’s limited disclosure practices violated Title VII, and to enjoin the Commission from enforcing the subpoena.
The District Court, concluding that the Commission’s disclosure of confidential information to charging parties upsets Title VII’s scheme of negotiation and settlement, held that the regulations and the provisions in the Compliance Manual covering special disclosure to charging parties violate Title VII. Accordingly, the court enforced the subpoena only on the condition that the Commission treat charging parties as members of the “public” to whom it cannot disclose any information in its files. 454 F. Supp. 387 (ED Va.). The Court of Appeals affirmed the District Court’s judgment. EEOC v. Joseph Horne Co., 607 F. 2d 1075.
II
In enacting Title VII, Congress combined administrative and judicial means of eliminating employment discrimination. A person claiming to be the victim of discrimination must first file a charge with the Commission. The Commission must then serve notice of the charge on the employer, and begin an investigation to determine whether there is reasonable cause to believe the charge is true. 42 U. S. C. §2000e-5(b). If it finds no such reasonable cause, the Commission must dismiss the charge. Ibid. If it does find reasonable cause, it must try to eliminate the alleged discriminatory practice “by informal methods of conference, conciliation, and persuasion.” Ibid. If its attempts at conciliation fail, the Commission may bring a civil action against the employer. § 2000e-5 (f) (1). But Title VII also makes private lawsuits by aggrieved employees an important part of its means of enforcement. If the Commission dismisses the charge, the employee may immediately file a private action. Ibid. And regardless of whether the Commission finds reasonable cause, the employee may bring an action 180 days after filing the charge if by that time the Commission has not filed its own lawsuit. Ibid.
Title VII gives the Commission two formal means of obtaining information when it investigates a charge: The Commission may examine and copy evidence in the possession of the respondent employer, § 2000e-8 (a), and subpoena evidence and documents, § 2000e-9. Congress imposed on the Commission a duty to maintain this information in. confidence. Section 706 (b) of Title VII directs that “[c]harges shall not be made public by the Commission.” If the Commission attempts informally to resolve a charge for which it has found reasonable cause, it cannot make “public” anything said or done in the course of the negotiations between the Commission and the parties; any Commission employee violating this prohibition faces criminal penalties. Ibid. Section 709 (e) of the statute supplements these prohibitions by making it a misdemeanor for any officer or employee of the Commission “to make public in any manner whatever any information” the Commission obtains through its investigative powers before the institution of any proceeding involving this information.'
Title VII nowhere defines “public.” In its regulation governing disclosure, the Commission has construed the statute’s prohibition of “public” release of information to permit pre-litigation disclosure of charges and of investigative information to the parties where such disclosure “is deemed necessary for securing appropriate relief.” 29 CFR § 1601.22 (1979). Specifically, the Commission has also created special disclosure rules permitting release of information in its files to charging parties or their attorneys, aggrieved persons in whose behalf charges have been filed and the persons or organizations who have filed the charges in their behalf, and respondents and their attorneys, so long as the request for the information is made in connection with contemplated litigation. Though normally a person can see information in the file only for the case in which he is directly involved, the Commission sometimes allows a prospective litigant to see information in files of cases brought by other employees against the same employer where that information is relevant and material to the litigant’s case. EEOC Compliance Manual § 83.7 (c). Before disclosing any information, however, the Commission expunges the names, identifying characteristics, and statements of any witnesses who have been promised anonymity, as well as the names of any other respondents. Moreover, any person requesting confidential information must execute a written agreement not to disclose the information to any other person, except as part of the normal course of litigation after a suit is filed.
Ill
For the reasons that follow, we have concluded that Congress did not include charging parties within the “public” to whom disclosure of confidential information is illegal under the provisions of Title VII here at issue. Section 706 (b) states that “[c]harges shall not be made public.” 42 U. S. C. §2000e-5(b). The charge, of course, cannot be concealed from the charging party. Nor can it be concealed from the respondent, since the statute also expressly requires the Commission to serve notice of the charge upon the respondent within 10 days of its filing. Ibid. Thus, the “public” to whom the statute forbids disclosure of charges cannot logically include the parties to the agency proceeding. And we must infer that Congress intended the same distinction when it used the word “public” in § 709 (e), 42 U. S. C. § 2000e-8 (e). The two statutory provisions treat essentially the same subject, and, absent any congressional indication to the contrary, we must assume that “public” means the same thing in the two sections.
The very limited legislative history of the disclosure provisions supports this reading. The bill passed by the House contained no restrictions on public disclosure. See H. It. Rep. No. 914, 88th Cong., 1st Sess., 13 (1963). The disclosure provisions were made part of the substitute bill which Senators Dirksen and Humphrey introduced in the Senate, and which the House later passed without amendment. See 110 Cong. Rec. 12819 (1964). Senator Humphrey, the cosponsor of the bill, explained that the purpose of the disclosure provisions was to prevent wide or unauthorized dissemination of unproved charges, not limited disclosures necessary to carry out the Commission’s functions: “[T]his is a ban on publicizing and not on such disclosure as is necessary to the carrying out of the Commission’s duties under the statute. . .. The amendment is not intended to hamper Commission investigations or proper cooperation with other State and Federal agencies, but rather is aimed at the making available to the general public of unproven charges.” Id., at 12723 (emphasis added). The parties to an agency proceeding are hardly members of the “general public,” especially since, as common sense and the express language of § 706 (b) show, see supra, at 598, they always have available to them the charge — proved or unproved — in the case to which they are parties.
This reading of the statute, moreover, is consistent with the coordinated scheme of administrative and judicial enforcement which Congress created to enforce Title VII. See supra, at 595. First, limited disclosure to the parties can speed the Commission’s required investigation: the Commission can more readily obtain information informally — rather than through its formal powers under 42 U. S. C. § 2000e-9— if it can present the parties with specific facts for them to corroborate or rebut. Second, limited disclosure enhances the Commission’s ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation : A party is far more likely to settle when he has enough information to be able to assess the strengths and weaknesses of his opponent’s case as well as his own.
The respondent argues vigorously that the disclosure of investigative information to charging parties may encourage many lawsuits that would not otherwise be filed, and thus contravene the congressional policy of relying on administrative resolution and settlement. But the effect of limited disclosure may be just the opposite. The employee has little to gain from filing a futile lawsuit, and indeed faces the possibility of an adverse fee award if the suit is frivolous. Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421. Pointless litigation burdens both the parties and the federal courts, and it is in the interest of all concerned that the charging party have adequate information in assessing the feasibility of litigation. Under the respondent’s view of the statute, however, the charging party would be able to obtain that information only after filing a lawsuit. • See 42 U. S. C. § 2000e-8 (e). Thus, a charging party would have to file suit in a hopeless case in order to discover that the case was hopeless. The Commission’s disclosure practice may therefore help fulfill the statutory goal of maximum possible reliance upon voluntary conciliation and administrative resolution of claims.
In any event, even if disclosure may encourage litigation in some instances, that result is not inconsistent with the ultimate purposes of Title VII. The private right of action remains an important part of Title VII’s scheme of enforcement, Alexander v. Gardner-Denver Co., 415 U. S. 36, 45. Congress considered the charging party a “private attorney general,” whose role in enforcing the ban on discrimination is parallel to that of the Commission itself. Christiansburg Garment Co. v. EEOC, supra, at 421. The private litigant could hardly play that role without access to information needed to assess the feasibility of litigation.
IV
Nevertheless, though Congress allowed disclosure of investigative information in a charging party’s file to that party himself, nothing in the statute or its legislative history reveals any intent to allow the Commission to reveal to that charging party information in the files of other charging parties who have brought claims against the same employer. See EEOC Compliance Manual § 83.7 (c). As noted earlier, the charging party cannot logically be a member of the “public” to whom disclosure is forbidden by § 706 (b) of Title VII, and, by extension, cannot be a member of the public under § 709 (e). See supra, at 598. The reason, however, is that the charging party is obviously aware of the charge he has filed, and so cannot belong to the public to which Congress referred when it directed that “[c]harges shall not be made public.” 42 U. S. C. § 2000e-5 (b).
But there is no reason why the charging party should know the content of any other employee’s charge, and he must be considered a member of the public with respect to charges filed by other people. With respect to all files other than his own, he is a stranger.
The Commission notes that it often consolidates substantially similar charges for investigation, and in other instances draws upon information generated in an earlier investigation of the same employer. The Commission therefore argues that because information in one party’s file may be directly relevant to another party’s charge, it would be burdensome for it to have to reproduce the generally relevant information for each file, and unfair to a charging party to deny him access to generally relevant information that, by chance of timing, appears first and fully in another party’s file.
But the Commission’s argument is merely one of administrative convenience, and such convenience cannot override the prohibitions in the statute. Statistics and other information about an employer’s general practices may certainly be relevant to individual charges of discrimination, McDonnell Douglas Corp. v. Green, 411 U. S. 792, 804-805, but by including such information, in full or summary form, in each individual charging party’s file, the Commission can fully comply with the statute while giving each party the information he needs to weigh the strength of his own case.
V
The Court of Appeals erred, therefore, in holding that the respondent had a categorical right to refuse to comply with the EEOC subpoena unless the Commission assured it that the information supplied would be held in absolute secrecy. The respondent was entitled only to assurance that each employee filing a charge against Horne would see information in no file other than his or her own. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Justice Powell took no part in the decision of this case. Justice Rehnquist took no part in the consideration or decision of this case.
Section 706 (b) of Title VII, 78 Stat. 259, as amended, 42 U. S. C. §2000e-5 (b), provides in relevant part:
“Charges shall be made in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. ... If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. . .
Section 709 (e) of Title VII, 78 Stat. 264, 42 U. S. C. §2000e-8 (e), provides:
“It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this title involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.”
The decision of the Court of Appeals in this ease that the Commission lacks the authority to make such a disclosure, EEOC v. Joseph Horne Co., 607 F. 2d 1075 (CA4), conflicts with that of the Court of Appeals for the Fifth Circuit in H. Kessler & Co. v. EEOC, 472 F. 2d 1147. The Courts of Appeals for the Seventh and District of Columbia Circuits have construed the “public” disclosure provisions of the statute in virtually the same way as did the Court of Appeals for the Fourth Circuit in the present case, though in the somewhat different context of the Commission’s disclosure to individual charging parties of materials emerging from a systemwide investigation of an employer’s practices after the Commission itself has brought a charge. Burlington Northern, Inc, v. EEOC, 582 F. 2d 1097 (CA7); Sears, Roebuck & Co. v. EEOC, 189 U. S. App. D. C. 163, 581 F. 2d 941. Since the Commission itself brought no charge in this case, the question of how the disclosure provisions apply in that context is not before the Court.
The Commission’s general policy on disclosure is set out in 29 CFR §1601.22 (1979):
“Neither a charge, nor information obtained pursuant to section 709 (a) of Title VII, nor information obtained from records required to be kept or reports required to be filed pursuant to section 709 (e) and (d) of Title VII, shall be made matters of public information by the Commission prior to the institution of any proceedings under this Title involving such charge or information. This provision does not apply to such earlier disclosures to charging parties, or their attorneys, respondents or their attorneys, or witnesses where disclosure is deemed necessary for securing appropriate relief. This provision also does not apply to such earlier disclosures to representatives of interested Federal, State, and local authorities as may be appropriate or necessary to the carrying out of the Commission's function under Title VII, nor to the publication of data derived from such information in a form which does not reveal the identity of charging parties, respondents, or persons supplying the information.”
The Commission also has created very specific “special disclosure” rules governing the form and scope of disclosure to those persons whom the Commission treats as being separate from the “public” to whom the statute forbids any disclosure. 29 CFR § 1610.17 (d) (1979); EEOC Compliance Manual § 83 et seq.
The complaint also alleged that the EEOC disclosure rules violate the Administrative Procedure Act, 5 U. S. C. §§ 551, 553, the Trade Secrets Act, 18 U. S. C. § 1905, and the Freedom of Information Act, 5 U. S. C. § 552. In addition, it alleged that the rules were substantive, rather than procedural, and therefore exceeded the Commission’s statutory authority to issue rules of the latter type only. See 42 U. S. C. § 2000e-12. Neither the District Court nor the Court of Appeals addressed any of these allegations, and the issues they raise are not now before us.
In most cases, the Commission actually begins its attempt to achieve a negotiated settlement before it makes a reasonable-cause determination. 29 CFR § 1601.20 (1979); EEOC Compliance Manual §15. If it does achieve an early settlement, the agreement states that the Commission has made no judgment on the merits of the claim. Ibid. To investigate a charge as quickly as possible and to improve the chances of an early informal resolution, the Commission holds a factfinding conference well before it makes a reasonable-cause decision, with each party presenting its version of the facts. 29 CFR § 1601.15 (c) (1979).
Under Commission regulations, the employee may obtain a right-to-sue letter upon request once 180 days have passed from the filing of the charge, 29 CFR § 1601.28 (a) (1) (1979), but the Commission may issue a right-to-sue letter earlier if it finds that it cannot complete its consideration of a charge within 180 days of filing, § 1601.28 (a)(2). The statute gives the employee 90 days from the Commission's notice of right to sue to file a private lawsuit. 42 U. S. C. §2000e-5 (f)(1).
See n. 1, supra.
See n. 1, supra.
A charging party, however, cannot obtain information under these rules until his right to sue has attached, unless he can demonstrate a compelling need for earlier disclosure. EEOC Compliance Manual § 83.3 (a).
The Commission defines “relevant and material” as follows:
“Information in other case files is relevant or material when other case files contain charges, investigations or determinations involving the same basis (e. g., sex, religion, national origin, race) with limited exceptions such as when the private litigant’s case alleged discrimination in promotion against females and the other case file involved a male’s claim that he was not hired because of respondent’s policy of not hiring long haired males. Other case files may be relevant or material if they involve a different basis only when the treatment afforded one protected class is probative of treatment afforded the private litigant’s class (e. g., systemic discrimination against Spanish Sumamed Americans is often probative as to treatment accorded Blacks and vice versa).” EEOC Compliance Manual § 83.7(c) (2).
However, whenever the Commission discloses to a charging party information from other case files, it does not reveal the identity of the other employees who brought charges against the employer. § 83.7 (c) (4).
The Commission also expunges any records of or statements obtained in its informal settlement negotiations, except for information which the Commission can otherwise obtain under its statutory power to copy or subpoena evidence. See 42 U. S. C. §§2000e-8 (a), 2000e-9.
“Information in case files may be disclosed only on the condition that the person requesting disclosure agree in writing not to make the information obtained public except in the normal course of a civil action or other proceeding instituted under Title VII.” EEOC Compliance Manual §83.3 (b).
The statute also forbids public disclosure of any matters arising in informal conciliation “without the written consent of the persons concerned.” § 2000-e (5) (b). This phrase suggests that the parties, the “persons” whose consent would most obviously be necessary, are not members of the “public” to whom disclosure is forbidden.
The language in § 709 (e) forbidding disclosure “in any manner whatever,” seems clearly to refer to the means of publication, and not to the persons to whom disclosure is forbidden.
The House bill, however, did incorporate by reference the provisions of § 10 of the Federal Trade Commission Act, 38 Stat. 723, as amended, 15 U. S. C. § 50, which prohibit FTC employees from mating “public any information obtained from the Commission without its authority . . . See H. R. 7152, 88th Cong., 1st Sess., § 710 (a) (1963). Under FTC rules construing § 10, the ban on disclosure applies only to unauthorized release of information, and does not prevent disclosure to parties to FTC proceedings. 16 CFR §§ 1.41, 1.133, 1.134 (1964) (current version at 16 CFR §§3.36, 4.10 (c) (1980)). Thus, in passing the substitute bill without amendment, the House may well have assumed that the express disclosure provisions in the Senate bill gave the Commission powers of disclosure similar to those under the FTC Act.
The other cosponsor of the Senate bill, Senator Dirksen, explained § 706 (b) ’s prohibition of any “public” disclosure of matters' revealed during informal conciliation attempts as follows: “The maximum results from the voluntary approach will be achieved if the investigation and conciliation are carried on in privacy. If voluntary compliance with this title is not achieved, the dispute will be fully exposed to public view when a court suit is filed.” 110 Cong. Rec. 8193 (1964). Senator Dirksen’s explanation strongly suggests that the parties are considered part of the private efforts at conciliation, not members of the general public to whom the dispute will be “fully exposed” after litigation begins.
The principle that courts should respect an agency’s contemporaneous construction of its founding statute, Power Reactor Co. v. Electricians, 367 U. S. 396, 408, also supports this view of Title VII, since the Commission first issued its rule permitting disclosure to the charging party shortly after Congress created the EEOC in 1966. 30 Fed. Reg. 8407 (1965). Moreover, such a contemporaneous construction deserves special deference when it has remained consistent over a long period of time. See Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 210. The Commission’s current regulation permitting such disclosure, 29 CFR § 1601.22 (1979), reflects no significant change from the original regulation. The original regulation permitted disclosure to the charging party “as may be appropriate or necessary to the carrying out of the Commission’s functions . . . .” 30 Fed. Reg. 8409 (1965). The regulation was changed in 1977 to allow disclosure to the charging party’s attorney as well as to the party himself, and to rephrase the controlling condition for disclosure as “where such disclosure is deemed necessary for securing appropriate relief.” 42 Fed. Reg. 42024 (1977) (codified at 29 CFR § 1601.22 (1979)). In the 15 years during which the Commission has consistently allowed limited disclosure to the charging party, Congress has never expressed its disapproval, and its silence in this regard suggests its consent to the Commission’s practice. United States v. Jackson, 280 U. S. 183, 196-197. In 1972 Congress made major changes in Title VII, but the only change in the disclosure provisions was a very minor one in § 706 (b): Congress amended the provision requiring consent before disclosure of conciliation matters by replacing “consent of the parties” with “consent of the persons concerned.” Section 706 (b) was also amended to permit charges to be filed “on behalf of” as well as by aggrieved parties, and the new phrase “persons concerned” .was probably intended to conform to that change. See 118 Cong. Rec. 4941 (1972).
When the Commission issues its decision on whether there is probable cause to believe the charge is true, it explains the factual bases for its conclusion. EEOC Compliance Manual §40.7. A positive finding may thereby be a spur to settlement; a negative finding may deter the employee from filing a frivolous lawsuit. If the Commission were not allowed to disclose to the parties essential facts it obtained during its investigation, it would be able to announce no more than its bare conclusion on reasonable cause, and these important benefits of the reasonable-cause determination would be lost.
Moreover, a charging party who consents to a settlement negotiated by the Commission waives his right to file a civil action. 42 U. S. C. § 2000e-5 (f) (1); see Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 364. Of course, anyone who settles a case gives up the right to litigate it. But Title VII places employment discrimination claimants in an especially difficult position by forcing them to yield initial control of their potential lawsuits to the Commission, which, in reaching agreement with the employer, might have interests different from those of the employee. It seems unlikely that Congress would force a Title VII charging party, who would have difficulty resisting the opportunity to enter the agreement negotiated by the Commission, to waive his statutory right to litigate when he cannot know the essential facts obtained in the Commission’s investigations.
An impecunious employee would be unlikely to be able to conduct a thorough investigation of his own after he filed a charge, and therefore would be tempted to file a lawsuit so that he could request appointed counsel, 42 U. S. C. § 2000e-5 (f)(1), if the statute did not allow the Commission to give him essential investigative information before he filed suit.
The filing of a private lawsuit may actually encourage settlement. See Young v. International Telephone & Telegraph Co., 438 F. 2d 757, 764 (CA3).
The legislative history of the 1972 amendments to Title VII reflects a strong reaffirmation of the importance of the private right of action in the Title VII enforcement scheme:
“The retention of the private right of action , . is intended to make clear that an individual aggrieved by a violation of Title VII should not be forced to abandon the claim merely because of a decision by the Commission or the Attorney General as the case may be, that there are insufficient grounds for the Government to file a complaint. . . .
“It is hoped that recourse to the private lawsuit will be the exception and not the rule. . . . However, as the individual’s rights to redress are paramount under the provisions of Title VII it is necessary that all avenues be left open for quick and effective relief.” 118 Cong. Rec. 7565 (1972) (Section-by-Section analysis).
See n. 10, supra.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
A. E. STALEY MANUFACTURING COMPANY, Plaintiff-Appellant, v. HARVEST BRAND, INC., Defendant-Appellee.
No. 71-1049.
United States Court of Appeals, Tenth Circuit.
Dec. 2, 1971.
Rehearing Denied Feb. 4, 1972.
Pickett, Circuit Judge, dissented and filed opinion.
John W. Hofeldt, Chicago, Ill., for appellant.
Edmund C. Rogers and John M. Howell, Clayton, Mo., for appellee.
Before PICKETT, HILL and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
This is a patent infringement suit brought by the A. E. Staley Manufacturing Company against Harvest Brand, Incorporated, alleging an infringement of Staley’s patent No. 3,246,336 which Staley has owned since it was issued on April 12, 1966. The patent application was filed on April 8, 1963.
Staley’s patent describes a cattle feed block which combines dehydrated molasses, liquid molasses as a wet binder, significant amounts of salt, and some type of mineral oil or edible fat. The resulting product is a highly palatable feed block for cattle or sheep from which they will eat a surprisingly consistent amount each day. Two novel benefits are derived from this regulated consumption. First, although molasses is very beneficial to cattle, too large an intake can cause scouring or diarrhea. This problem has been eliminated in the Staley patent block. Second, because cattle like the taste of molasses, unpalatable medicines can be added to the Staley block and cattle will consume them in a controlled amount. The Staley patent feed block thus accomplished two new and novel results.
The lower court found that the patent was infringed but that it was not valid. The Court found that the patent had utility but that it did not have novelty as required by 35 U.S.C. § 102 and that it was not nonobvious as required by 35 U.S.C. § 103. From this decision Staley appeals.
The lower court made no findings of fact which would negate the claim of novelty. Novelty can be disproved by showing anticipation or aggregation. McCullough Tool Company v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965), cert. denied 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966). This court said in Griswold v. Oil Capital Valve Co., 375 F.2d 532 (10th Cir. 1966) at 537 that:
“The doctrine of anticipation by patents is a narrow and technical one. To come within it, all the elements of the invention, or comparable ones, must do substantially the same work in substantially the same way and be within one structure. (Citation omitted).
As to the matter of aggregation, the doctrine requires that the prior patents, or the art generally, demonstrate the segments or elements with substantially the same results and functions.”
The Court stated in its finding of fact No. 58 that a review of all evidence disclosed a lack of novelty and non-obviousness, both of which are requirements for a patentable product. We disagree. There were no findings of fact concerning anticipation or aggregation, notwithstanding the rule that the law presumes a patent valid. 35 U.S.C.A. § 282. The great weight of the evidence does not support the Court’s conclusion on the issue of novelty.
35 U.S.C.A. § 282 provide that one who seeks to have a patent declared invalid has the burden of establishing its invalidity by clear and convincing evidence. We have conducted a thorough review of the record. In our judgment, appellee Harvest Brand has failed to sustain this burden. [For a detailed discussion of the law concerning novelty in this Circuit see Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970)].
Turning now to the issue of obviousness prescribed under 35 U.S.C.A. § 103, we have reviewed the prior art in order to determine whether a person ordinarily skilled in the art would find it obvious to combine the same elements in the same manner as Staley’s patent teaches us.
The record reveals that a person ordinarily skilled in the art would know that:
1. Animal feed blocks had been made in the past such as salt blocks, mineral blocks, protein blocks and molasses blocks.
2. Molasses had been used as a feed supplement and a carrier of unpalatable medicines.
3. Mineral oils had been used to facilitate blocking and improve the weatherability of blocks.
4. Feed supplements had been used which had high levels of salt.
5. Blocks had been made which used wet molasses as a wet binder.
The trial court made detailed findings to the effect that each and all of the ingredients employed by Staley in its patented block were well known to a man of ordinary skill in the art. The Court did not, however, make any findings dictated by the great weight of the evidence in the record reflecting the failures and drawbacks of the prior art in accomplishing the novel result achieved through the Staley patent. Each of the prior arts above referred to were wrought with practical limitations :
1. Protein and mineral blocks were designed to fill a particular need not necessarily connected with the function of a molasses-salt block. As a carrier of medicines they were failures because they were not palatable enough to cattle to hide the taste of the medicines and their consumption was too variable.
2. Molasses has long been known to aid animals with rueminate digestive tracts in digesting roughage. It has also been known to cause scouring if taken in large amounts. No molasses product was ever made before Staley’s patent which allowed a livestock operator to place the medicine carrier unattended near his stock and be assured that his cattle were getting a proper amount of medicine. Protein and mineral blocks had too great a variation of daily intake to be successfully used. All previous molasses products were too palatable to use successfully as medicine carriers. The aggressive cattle would overfeed and the timid cattle would underfeed.
3. Mineral oils were a rather novel and effective addition to the prior art. However, the addition of oils in large amounts softened the blocks.
4. Large amounts of salt have been incorporated into mineral and protein blocks to control consumption. The amount of salt used normally in these blocks is roughly the same amount as Staley used. However, with the highly palatable molasses blocks the daily consumption is relatively stable while the less palatable mineral and protein blocks show a relatively high rate of daily variation.
The evidence proves that cattle develop a tolerance for salt which they like. This can eventually lead to salt poisoning. As a factor in determining the pri- or art, this would lead one to believe that a block with a high salt content, especially when mixed with the highly palatable molasses, would slowly cause cattle to consume an increasingly larger daily ration. However, this is not true of Staley’s block.
5. The use of a wet binder in molasses blocks was old in the art. Wet molasses had been used as a wet binder with dehydrated molasses to make the blocks easier to form. Wet molasses, however, causes blocking and storage problems.
Harvest Brand claimed that the prior art would teach one to mix salt, molasses (dehydrated and wet), and oil. Its own history belies this. In 1958 Harvest Brand made 100 non-infringing dehydrated molasses blocks with a wet binder for a customer. It claimed that these blocks were successful, yet several years later when it made blocks for public sale it sold blocks which the lower court found infringed on Staley’s patent.
Staley introduced evidence showing the state of the art when it put its product on the market. Within two months after Staley marketed its patented block, VyLactos Laboratories was selling a non-infringing block called “Kattle Kandy”. It contained molasses, a high protein level (22%) and salt (1%). A witness from VyLactos testified that the salt level was 1% because that is what the experts recommended at that time. He also stated that consumption was regulated by the block density, i. e., the harder the block, the less each animal consumed. He admitted that the block was too palatable and that one had to limit the number of blocks available to the cattle because they would overfeed. VyLactos also had trouble with weatherability. Its blocks did not hold up well in rain. After about a year, VyLactos stopped producing its “Kattle Kandy” and introduced a block which is almost identical to Staley’s block.
Harvest Brand’s expert witnesses testified that it would have been easy for anyone in the feed block business to come up with Staley’s block in 1962. A Staley expert in animal feeds had previously testified that in 1962 he would have been dubious about the success of any molasses blocks which contained high levels of salt. He stated that molasses and salt are hygroscopic, i. e., they both absorb large amounts of water. He also stated that they are water soluable. For these reasons, he and a Harvest Brand witness opined, one would expect serious weathering problems in a block containing salt and molasses. Another witness for Harvest Brand stated that since salt and molasses have different characteristics, one would expect problems during the blocking process. The witness testified that from his own tests in 1963 he found that molasses needs high pressure plus some water to block successfully. Salt, however, requires low pressure and an absence of water to block well. At the time these tests were conducted, Harvest Brand had not been able to make a successful block combining salt and molasses.
Harvest Brand points out that before 1962 there were many patents involving feed blocks, molasses products, molasses with medicine, and blocks with oil among others. However, most of these patented inventions had serious drawbacks. We said in McCullough Tool Company v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965), cert. denied 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966), supra, that:
“Rudimentary or unsuccessful experiments with isolated elements of a combination do not anticipate an invention which successfully combines those elements.” (Citations omitted.) 343 F.2d at 399.
Staley admits that all of the elements are old and known in the art. However, Staley argues that as it overcame all of the problems and went against the teachings of the prior art to develop the patented block, it qualifies for a patent. We agree. As we said in McCullough, supra:
“The general rule is that before a device may be patentable, the improvement over the prior art must involve more than would be obvious to one of ordinary skill in the art. (Citations omitted). If those skilled in the art are working in a given field and have failed after repeated efforts to discover a particular new and useful improvement, the person who first makes the discovery does more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.” (Citations omitted.) 343 F.2d at 399.
We feel that Staley has made such an improvement. In Bewal, Inc. v. Minnesota Mining and Manufacturing Company, 292 F.2d 159 (10th Cir. 1961), the test for determining whether a combination was patentable was stated. At 164 we said:
“When old elements are united in such a manner that the union accomplishes either a new result or an old result in a more facile, economical and efficient way in a particular environment which presented peculiar and difficult problems, it is a true combination and patentable.” (Citations omitted.)
Staley’s inventors overcame serious practical problems in arriving at their patent and advanced the art to a new level of achievement.
The invention requires only four ingredients. The amounts are not too critical. However, simplicity is not a bar to invention as long as the steps taken are not obvious to the ordinary mechanic. Blish, Mize and Silliman Hardware Company v. Time Saver Tools, Inc., 236 F.2d 913 (10th Cir. 1956), cert. denied 352 U.S. 1004, 77 S.Ct. 565, 1 L.Ed.2d 549 (1957); Goodyear Tire & Rubber Co., Inc. v. Ray-O-Vac Company, 321 U.S. 275, 64 S.Ct. 593, 88 L.Ed. 721 (1944).
We are mindful of the rule stated in Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970), supra, that the ultimate validity of a patent is a legal question for the trial court, based on findings of fact.
Staley’s contested patent recognized that the value of feeding molasses to livestock was old in the art. It recited, however, the nutritional values and drawbacks which had previously restricted the use of feeds containing a high percentage of molasses, i. e., excessive consumption had exceeded the most efficient feed utilization and could not be conveniently and economically fed in open range. The key claim, then, in the Staley block was the use of a high percentage of molasses with salt which proved (1) to be resistant to weathering in the open range; (2) to provide in a controlled manner a source of fermentable carbohydrates for ruminants; (3) to control consumption on an economical per unit basis ; and (4) to be a palatable feed block which could include a horn fly controlling amount of phenothiazine. Appellant argues that the product of these claims was entirely new and that the new product proved to have a different and surprising result. We agree. There was no contrary argument, and the lower court specifically found that the Staley feed block is useful and performs the beneficial functions claimed for it. The question of invention and thus, patentability, is one of fact involving consideration of novelty, utility, commercial success, satisfaction of long-felt want, unsuccessful efforts of others, public acquiescence in validity, imitation, experiments, and independent production by others. 69 C.J.S. Patents § 70 (1951).
Substantial evidence means evidence which affords a substantial basis of fact to support a conclusion. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In its Addendum Comment the trial court concluded that “There is no new co-operation among the ingredients that produces either a different product or a different result than is known in the prior art.” Having thus found, the Court specially concluded that the Staley patent lacks novelty and non-obviousness. This conclusion necessarily involved application of the fact-law process. We are persuaded, on the entire evidence, that a mistake has been committed. See United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). We hold that the district court erred in its conclusion that the Staley patent lacked novelty and non-obviousness. Therefore, we must reverse. We hold that the Staley patent is valid. We remand for further proceedings determinative of Staley’s prayer for injunctive relief and damage award.
Reversed and remanded.
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_trialpro
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
MAXWELL v. ENTERPRISE WALL PAPER MFG. CO. et al.
No. 8156.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 23, 1942,
Decided Nov. 4, 1942.
David Bortin, of Philadelphia, Pa., for appellants.
John D. M. Hamilton, of Philadelphia, Pa., for appellees.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
GOODRICH, Circuit Judge.
This is an appeal from an order appointing receivers for the Enterprise Wall Paper Mfg. Co. Plaintiff is a minority shareholder of the company. The complaint was filed on September 10, 1942. Application for the appointment of a receiver accompanied it and receivers were appointed by the District Court on the same day without notice to any of the defendants. While the defendants’ argument in this Court has raised a number of issues, we think the controlling question is whether the facts alleged in the verified complaint and supporting affidavit justified the exercise of discretion by the trial court in the appointment of the receivers. Defendants have filed no answer or other pleading which, by introducing questions of fact, has lost them their right to raise the question of the sufficiency of the plaintiff’s complaint and affidavit to support the appointment.
A preliminary point which we must consider, although not raised by either party, is whether the Court may entertain this appeal. Appellate jurisdiction in such cases is governed by § 129 of the Judicial Code, 2which provides that “Where, upon a hearing in a district court, * * * an interlocutory order or decree is made appointing a receiver, * * * an appeal may be taken from such interlocutory order or decree to the circuit court of appeals;”. Is an interlocutory order appointing a receiver one made “upon a hearing” within the meaning of § 129 when it is issued upon the complaint, affidavit, and argument of counsel for the plaintiff, without notice to his opponents? The authorities are sharply divided upon this question. Some maintain that the statute contemplates a hearing wherein both sides are present to plead, argue and present evidence upon the relief sought. The first and fifth circuits have held that less than this may constitute a hearing for the purposes of -appellate jurisdiction. The manifest purpose of the statute is to enable a litigant to seek prompt review in an appellate court from an order or decree which in most instances is effective upon its rendition and is drastic and far reaching in effect. With this as its basis, it is unlikely that Congress meant to exclude hearings where the order is granted by a court after reading the papers and listening to the arguments of the complainant. Although one-sided, we think that such proceedings are nevertheless a hearing within the meaning of § 129 for the purposes of appellate jurisdiction.
A second preliminary point, also not raised by the parties, is whether state or federal law governs their rights herein. The corporate defendant is a Pennsylvania corporation and the rights and duties of the shareholders among themselves and the corporation are measured by Pennsylvania law. Restatement, Conflict of Laws (1934) § 199, comment a; see also §§ 192-202. There is no suggestion that the acts which the defendants are alleged to have done would not, if proved, entitle plaintiff to relief. What form of equitable relief a plaintiff is to be given by a federal court for infringement of his rights, we have held to be a matter to be determined by federal law, not state decisions. Black & Yates, Inc., v. Mahogany Ass’n, Inc., 3 Cir., 1942, 129 F.2d 227, certiorari denied 1942, 63 S.Ct. 76, 87 L.Ed. -. In this case, however, we do not think that there is any difference between the principles determining the appointment of receivers as enunciated by Pennsylvania courts 5**and those found in the federal decisions cited below.
We start with the undisputed premise that the granting or refusal 'of the appointment of a receiver is, in the first instance, a matter of discretion for the lower court and that we are not to substitute our discretion for that of the trial judge. Equally undisputed, however, is the limitation that discretion is governed by legal principles applicable to the situation and if we deem them to have been departed from, it is our duty to correct the error. Likewise, it has been judicially noted almost innumerable times that the appointment of a receiver is an extraordinary, a drastic and, in the words of the Pennsylvania Court, an “heroic” remedy. It is not to be resorted to if milder measures will give the plaintiff, whether creditor or shareholder, adequate protection for his rights.
The caution which should surround the appointment of a receiver is heightened when such appointment is sought peremptorily in a proceeding in which the opposition has neither notice nor opportunity to be heard. In the case of “actual emergency” it may be done. Tennessee Pub. Co. v. Carpenter, 6 Cir., 1938, 100 F.2d 728, 732. It is to be “exercised sparingly and with great caution, and only under extreme and exceptional circumstances.” Central West Public Service Company v. Craig, 8 Cir., 1934, 70 F.2d 427, 429, 430. The courts speak of it as proper only in a case of “imperious necessity, when the right of the complainant, on the showing made by him, is undoubted, and when such relief and protection can be given in no other way.” Cabaniss v. Reco Min. Co., 5 Cir., 1902, 116 F. 318, 324; Joseph Dry Goods Co. v. Ilecht, S Cir., 1903, 120 F. 760; Mann v. Gaddie, 5 Cir., 1907, 158 F. 42. Similar language is found in Kolb Coal Co. v. Sauter, 7 Cir., 1924, 295 F. 690. Language to this general effect is found in the decisions of many courts, both state and federal. The phraseology may vary, but the enunciation of the general point of view is clear enough. Our immediate question is whether that point of view which may accurately be described as a controlling principle of law was observed in the instant case.
The plaintiff is a minority shareholder of the Enterprise Wall Paper Mfg. Co. He complains of mismanagement of the corporation by one of the individual defendants in ways to be noted presently. He does not allege that because of this mismanagement or otherwise the corporation is insolvent or is in danger of becoming so. Indeed, by the report of accountants, subsequently brought into the record by stipulation between the parties, it appears that far from being in danger of insolvency, the principal corporate defendant is a successful business enterprise and in a very sound financial position. This is not alone a conclusive ground for negativing a receivership for a receiver may, in an appropriate case, be appointed for a solvent concern. But certainly it is an item to be considered in determining the appropriateness of a receivership appointment. Major operations are seldom indicated for healthy patients.
The plaintiff in argument to this Court has summarized 'what he believes are the allegations in his complaint which entitle him to the relief granted. They are as follows:
1. Complete domination of the corporation by the defendant, Philip Isaacs, as a result of majority stock ownership and by the method in which he conducted its affairs. 2. The employment' by the .defendant, Philip Isaacs, of relatives at exorbitant salaries and the payment of salaries to other relatives who performed no services. 3. The use of fictitious expense accounts for non-existent employees in order that the defendants, Philip Isaacs and Julius Isaacs, might fraudulently appropriate the amount of such accounts. 4. The exploration of the New England field of business at the expense of the Enterprise Corporation for three years through the establishment there of a branch and, it having proved successful, the incorporation of a new 'company in which the individual defendants own practically all of the stock with the resultant profits to them and loss to the Enterprise Corporation. 5. The sale to certain corporations wholly owned by the individual defendants of merchandise at prices greatly reduced and below the normal market. 6. The unlawful diversion by the defendants, Philip Isaacs and Julius Isaacs, of money belonging to the Enterprise Corporation. 7. A loan by defendants, Philip Isaacs and Julius Isaacs, to the Enterprise Corporation of money which, in fact, belonged to the corporation by the representation that it was individual property and the repayment thereof by the Enterprise Corporation to the individual lenders. 8. The destruction of records and accounts by Philip Isaacs and Julius Isaacs with a fraudulent intent of hindering and defeating an accounting. 9. Allegations showing the necessity of an accounting.
Plaintiff contends that grounds 2, 4, 5 and 8 allege continuing acts by the defendants. We do not get this from the allegations found in the complaint. With regard to point 8, if the records are in fact destroyed they are gone and neither a receiver nor anyone else can get them back. The allegations of wrongful diversion of corporate funds are alleged to have occurred in 1936, 1937, and 1938. The date of the improper loan (point 7) is not specified. These allegations, while they state past misconduct, do not bring the case within the imperious necessity rule enunciated above.
We think that the'plaintiff’s complaint states a satisfactory reason why the action was brought in the name of an individual minority shareholder without an endeavor to get corporate action against individual defendants. We also think that it states facts which, if they are proved, call for an accounting. It also states facts which may call for ancillary protection by way of injunction, impounding of records or otherwise, if there appears danger that books or documents of the corporation are in danger of being mutilated or destroyed. Further protective measures may be availed of if the necessity arises. We do not find in the allegations, however, any such grounds of immediate emergency that call for the appointment of a receiver, characterized in the decisions as one of last resort, to the exclusion of other remedies. There is nothing to make it appear that the business is not being competently run; attention has already been called to the fact that it appears to be in a sound and prosperous condition. There are charges which, if substantiated, indicate that minority shareholders have not been receiving their share of the benefits of the enterprise. And if this appears to be the case, they are, of course, entitled to court help to secure them. But the help required falls far short in our judgment of the drastic remedy of receivership, certainly at this stage of the litigation. We conclude, therefore, that the appointment of the receivers in this case was beyond the discretion to be exercised by the trial judge. The order is, therefore, reversed and the case remanded to the District Court with directions to vacate the order appointing the receivers, and to retain the case for further proceedings not inconsistent with this opinion.
28 U.S.C.A. § 227.
Dreutzer v. Frankfort Land Co., 6 Cir., 1895, 65 F. 642, 646; Root v. Mills, 7 Cir., 1909, 168 F. 688, 690; Pacific Northwest Packing Co. v. Allen, 9 Cir., 1901, 109 F. 515,' 516.
Haight & Freese Co. v. Weiss, 1 Cir., 1907, 156 F. 328, 334, certiorari denied, 1907, 207 U.S. 594, 28 S.Ct. 260, 52 L. Ed. 356; Joseph Dry Goods Co. v. Hecht, 5 Cir., 1903, 120 F. 760. Two later cases in Üie Fifth Circuit have modified this ease, by deciding that whether an “ex parte” hearing is a hearing under § 129 depends upon the term of the receiver appointed, the sweeping effect of the order, and whether a hearing for the opponent within a reasonably short time is provided. In the absence of such ameliorating conditions the court has held the order appealable under § 129. Marion Mortgage Co. v. Edmunds, 5 Cir., 1933, 64 F.2d 248; Williams Holding Co. v. Pen-nell, 5 Cir., 1936, 86 F.2d 230. It seems doubtful to us that the order resulting from the purported “hearing” should determine whether it was a hearing under § 129 in the first instance. Be that as it may, the order issued in the case at bar is, in its terms, a general one appointing a receiver for the defendant com- ' pany without limitation as to time, and not providing for any hearing.
There is a comprehensive discussion of the law of receivers by the Supreme Court of Pennsylvania in McDougall v. Huntingdon & Broad Top R. & C. Co., 1928, 294 Pa. 108, 143 A. 574. Although, mismanagement, fraud, or misappropriation by the directors and officers of a corporation are recognized as grounds for the appointment of a receiver, the Court also states other controlling factors which are to be considered. Thus it states that “ * * * the conditions that call it into action should be such as would, if persisted in, ordinarily be fatal to corporate life. * * * The court, before any appointment is made, will act with the utmost caution. Receivers will not be appointed unless the chancellor is convinced the right is free from doubt, * * * the loss irreparable, with no adequate legal remedy, and the relief sought is necessary.” Page 117 of 294 Pa., page 577 of 143 A. * * * “As to the limitation on the exercise of the power in cases where there is any other adequate remedy, * * * the rule, while stated in general terms and never directly denied, is often disregarded, and this tendency is growing in some jurisdictions: * * Page 119 of 294 Pa., page 578 of 143 A. Prior to this, the Court noted that the courts have been liberal in appointing receivers to protect the interests of minority shareholders and that although this is “desirable, * * * there is danger of going too far.” Page 119 of 294 Pa., page 578 of 143 A.
While the Court did not discuss ex parte appointments of receivers, it seems unlikely that the Pennsylvania rule in this respect is any different from that prevailing in tlie overwhelming majority of jurisdictions. As evidence of this see Pennsylvania Rules of Equity Practice, Rule 41 (“Whenever the exigency of a case requires it, a temporary receiver may bo appointed, without notice to the parties interested, * * *. The appointment shall continue until a hearing can be had, which shall be fixed at as early a date as possible, * * ®.” See f. n. 3, supra, as to the terms of tlie order in the case at bar.) and ITagerman v. Street Ry. Co., 1906, 10 Northam.Law Rep., Pa., 243 (requiring, for an ex parte appointment of a receiver, a showing of the “gravest emergency and of peril immediately threatening the security and safety of property * * * ”). (Italics added.)
Milwaukee & Minnesota R. Co. v. Soutter, 3864, 154 U.S. 540, 14 S.Ct. 1158, 17 L.Ed. 604; Fosdick v. Schall, 1878, 99 U.S. 235, 253, 25 L.Ed. 339; Kingsport Press, Inc., v. Brief English Systems, Inc., 2 Cir., 1931, 54 F.2d 497, certiorari denied, Owen v. Kingsport Press, 1932, 286 U.S. 545, 52 S.Ct. 497, 76 L.Ed. 1282.
McDougall v. Huntingdon & Broad Top R. & C. Co., supra, 294 Pa. at page-117, 143 A. at page 577.
Collins v. Williamson, 6 Cir., 1915, 229 F. 59, 67; Smith v. Chase & Baker Piano Mfg. Co., D.C.E.D.Mich.1912, 397 F. 466, 472; Lowe v. Pioneer Threshing Co., C.C.D.Miim.lS95, 70 F. 646; United Electric Securities Co. v. Louisiana Electric Light Co., C.C.E.D.La.3.895, 68 F„ 673.
A. G. Col Co. v. Superior Court in and for Santa Clara County, 1925, 196. Cal. 604, 238 P. 926, 930; Simpson v. Adkins, 1941, 311 Ill.App. 543, 37 N.E. 2d 355, 358; Kent Avenue Grocery Co. v. George Hite & Co., 3918, 187 Ind. 606, 120 N.E. 659, 660; State Founders, Ine., v. Oliver, 1933, 165 Md. 360, 169 A. 59, 67; State ex rel. Claude v. District Court for Fourth Judicial Dist., 3939, 204 Minn. 415, 283 N.W. 738, 740; State ex rel. Thornton-Thomas Mercantile Co. v. Second Judicial District Court of Silver Bow County, 1897, 20 Mont. 284, 50 P. 852, 854; State ex rel. Schoenfelder v. Owen, 3941, 347 Mo. 3131, 152 S.W.2d 60, 65; Gossett v. First-Trust Joint Stock Land Bank of Chicago, Tex.Civ. App.1940, 138 S.W.2d 904, 906.
As to Pennsylvania, see f. n. 4, supra.
Annotations : 1926, 43 A.L.R. 242; 1929, 61 A.L.R. 1212; 1934, 91 A.L.R. 665.
A.L.R. annotations cited in the previous footnote.
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_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.
William Warren HASH, Appellant, v. Pat HENDERSON, United States Marshal for the Eastern District of Arkansas, Appellee.
No. 18845.
United States Court of Appeals Eighth Circuit.
Nov. 27, 1967.
William Warren Hash, pro se.
W. H. McClellan, U. S. Atty. for Eastern District of Arkansas, Little Rock, Ark., and William F. Sherman, Asst. U. S. Atty., for appellee.
Before VAN OOSTERHOUT, MEHAFFY and HEANEY, Circuit Judges.
HEANEY, Circuit Judge.
William Warren Hash was sentenced by an Arkansas State Court, on January 14, 1962, to serve a five-year term in the State Penitentiary of Arkansas. While still confined, he was indicted and charged with theft of a letter from the United States mails, 18 U.S.C.A. § 1702. He plead guilty to the charge in the United States District Court for the Eastern District of Arkansas on October 22, 1962, and was sentenced by that court to the custody of the Attorney General for a term of three-years. In passing sentence, the court said :
“The court recommends commitment to the Arkansas State Penitentiary so that sentence may run concurrently with the sentence said defendant is now serving in that institution.”
The Attorney General, acting through the Bureau of Prisons, Department of Justice, designated the Arkansas State Penitentiary as the place of Hash’s federal confinement. On March 7, 1964, the Arkansas State Parole Board paroled and released the prisoner. The United States Board of Parole took similar action on March 11, 1964.
Hash was arrested on August 5, 1964, as a state parole violator, and returned to the Arkansas State Penitentiary where his state parole was formally revoked on August 12, 1964.
On August 13, 1964, the Federal Parole Board issued a warrant charging Hash as a parole violator. It instructed the United States Marshal to place the warrant as a detainer with officials of the Arkansas State Penitentiary and to “assume custody if and when released by local authorities.”
On June 10, 1966, Hash was released from the state penitentiary and turned over to the United States Marshal for for the Eastern District of Arkansas. The marshal conveyed, him to the Federal Correctional Institution at Texarkana, Texas, where he was given a hearing by the Federal Parole Board on June 24, 1966. It revoked his federal parole but determined that he should be re-paroled effective August 17, 1966.
On October 25, 1966, a re-parole violator warrant for the arrest of Hash was issued by the Federal Parole Board. It was served on him November 17, 1966. He was immediately confined by the United States Marshal in Pulaski County Jail.
On December 21, 1966, while so confined, Hash petitioned the United States District Court for the Eastern District of Arkansas for a writ of habeas corpus. He alleged that he was being unlawfully confined by federal authorities as he had completed the service of his original three-year sentence during his second confinement in the Arkansas State Penitentiary from August of 1964 to June of 1966.
The District Court, after a hearing at which Hash was represented by counsel, denied his request for a writ of habeas corpus and remanded him for confinement to federal authorities. It held that his reconfinement in the Arkansas penitentiary did not amount to his return to federal custody under § 4205, 18 U.S. C.A., and that such custody was not reacquired until the federal parole violator warrant was executed on June 10, 1966. Hash v. Henderson, 262 F.Supp. 1016 (E.D. Ark. 1967). We agree.
Under the terms of § 4205, custody of a prisoner who has violated his parole can only be obtained by the execution of a parole violator warrant issued by the Board of Parole or a member thereof. The board is not obligated to instruct the United States Marshal to serve the warrant at the time of issuance, Maples v. United States, 360 F. 2d 155 (8th Cir. 1966); Avellino v. United States, 330 F.2d 490 (2d Cir. 1964); Melton v. Taylor, 276 F.2d 913 (10th Cir. 1960), nor is it unreasonable for it to delay taking custody of a prisoner until after he is released from a state penitentiary. Teague v. Looney, 268 F.2d 506 (10th Cir. 1959); Nave v. Bell, 180 F.2d 198 (6th Cir. 1950); Stockton v. Massey, 34 F.2d 96 (4th Cir. 1929). Cf., Saylor v. United States Board of Parole, 120 U.S.App.D.C. 206, 345 F.2d 100 (1965).
The appellant also contends that time served in the state prison after being re-confined as a state parole violator should count as time served under his federal sentence.
We do not agree.
It is established that if a federal prisoner on parole commits a second federal offense for which he is convicted and sentenced, that imprisonment under the second offense in a federal prison does not count as time served as part of his original sentence. Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938). The same rule applies if a federal parolee is convicted and sentenced for a state offense and is confined in a state penitentiary for such offense. Taylor v. United States Marshal for Eastern Dist. of Okl., 352 F.2d 232 (10th Cir. 1965); Letellier v. Taylor, 348 F.2d 893 (10th Cir. 1965); Morneau v. United States Board of Parole, 231 F.2d 829 (8th Cir. 1956), cert. denied, 351 U.S. 972, 76 S.Ct. 1037, 100 L.Ed. 1490; Jenkins v. Madigan, 211 F.2d 904 (7th Cir. 1954). In either event, a prisoner can be required to complete the service of his original federal sentence after completing the service for the second offense.
While the facts of Zerbst, Taylor, Letellier and Morneau, can be distinguished from those here, the same principles control our decision.
The second confinement of Hash in the Arkansas State Penitentiary was as a state parole violator. For the time served under this confinement to count as time served under the original sentence, two actions would have been required: (1) a revocation of Hash’s federal parole, and (2) a redesignation of the Arkansas State Penitentiary as the prison in which the remainder of the original sentence could be served. Neither step was taken.
The appellant further urges that the Attorney General was without power to change the original sentence imposed by the United States District Court, and that as the court had provided that the sentence was to be served concurrently with the state sentence in the Arkansas State Penitentiary, he completed the sentence by serving three years in the state prison.
We find no substance to this argument.
The Attorney General of the United States is given the right to designate where a sentence shall be served. 18 U.S.C.A. § 4082(a). Thus, the recommendation of the District Court that Hash’s original sentence run concurrently with the state sentence then being served in a state prison was surplusage and could have been disregarded by the Attorney General. Hamilton v. Salter, 361 F.2d 579 (4th Cir. 1966); Bateman v. United States, 277 F.2d 65 (8th Cir. 1960); Montos v. United States, 261 F.2d 39 (7th Cir. 1958); Bowen v. United States, 174 F.2d 323 (10th Cir. 1949); Cook v. United States, 171 F.2d 567 (1st Cir. 1948), cert. denied, 336 U.S. 926, 69 S.Ct. 647, 93 L.Ed. 1088 (1949).
The fact that the Attorney General chose initially to accept the court’s recommendation did not commit him to allow the prisoner, whatsoever the circumstances, to serve the full sentence concurrently. See, Rayborn v. Swope, 215 F.2d 604 (9th Cir. 1954); Banghart v. Swope, 175 F.2d 442 (9th Cir. 1949). Nor can it be inferred that he consented to the unexpired portion of the federal sentence being served concurrently with the state sentence by his failure to revoke his original designation. He was not obliged to designate where the prisoner should be confined for the balance of his federal sentence until he reacquired custody of him and a redesignation became necessary. Cf., McKinney v. Taylor, 358 F.2d 689 (10th Cir. 1966).
We have considered the other arguments raised by the appellant and find them to be without merit.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_treat
|
E
|
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.
Terry Lee STONEHOCKER, Appellee, v. GENERAL MOTORS CORPORATION, Appellant.
No. 76-1920.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 8, 1978.
Decided Nov. 17, 1978.
E. Milton Farley, III, Richmond, Va. (Joseph C. Kearfott, Christopher J. Habenight, Hunton & Williams, Richmond, Va., Frazer F. Hilder, Gen. Motors Corp., Detroit, Mich., Edward W. Laney, III, Turner, Padget, Graham & Laney, Columbia, S.C., on brief), for appellant.
David W. Goldman, Sumter, S.C. (Arthur S. Bahnmuller, Howard P. King, Bryan, Bahnmuller, King, Goldman & McElveen, Sumter, S.C., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.
WIDENER, Circuit Judge:
The plaintiff, Terry Lee Stonehocker, brought this action, charging negligence, against General Motors Corporation for injuries received when his car, a 1968 Chevrolet Camaro (manufactured by General Motors), rolled over in an accident. Jurisdiction was based on diversity of citizenship and the requisite amount in controversy. 28 U.S.C. § 1332(a)(1). The parties agree that General Motors’ negligence, if any, did not cause the accident itself, but the plaintiff alleges that General Motors’ negligent design of the car’s roof and negligent manufacture of the windshield combined to cause injuries which would not otherwise have occurred in an accident of this type or would have been substantially less. At trial, the jury found for the plaintiff and awarded compensatory and punitive damages.
On appeal, the defendant argues that the plaintiff presented no evidence of (1) negligent roof design, (2) negligent windshield manufacture, (3) causation between the alleged defects and plaintiff’s injury, and (4) willful, wanton, or conscious conduct; and that therefore the district court should have entered a directed verdict in General Motors’ favor on all issues. Further, the defendant argues that the district court charged the jury improperly, and that it erred by refusing to admit evidence that General Motors’ roof design complied with Federal Motor Vehicle Safety Standard 216. Based on these last two points, the defendant requests a new trial.
For reasons discussed below, we only reach the issues of the admissibility of the federal safety standard and the sufficiency of the jury instructions. We hold that the district court erred in refusing to admit General Motors’ compliance with the subsequently enacted safety standard as evidence of due care. Therefore, the case must be reversed and remanded for a new trial. We also discuss the objections to the jury instructions.
I
The accident occurred in Sumter County, South Carolina on July 25, 1972 at approximately 6:00 p. m. The plaintiff, Stonehocker, was driving west on Route 7&-378, a four-lane, limited access highway. The plaintiff testified that he was traveling approximately sixty-five miles per hour in the left or passing lane, with his seat belt fastened and the driver’s window rolled down. Another car entered the highway from his right via an access road. That car moved from the access road (acceleration lane) across the right lane and into the left lane directly in front of the plaintiff’s car. To avoid a collision, Stonehocker swerved to the right across the right hand lane and off the pavement. Plaintiff did not clearly remember what happened next, but an eyewitness testified that the plaintiff’s car went into a spin, slid off the road, went partially into a ditch, continued to slide, and finally rolled over on its top at a speed of approximately five to ten miles per hour. The roof of the car was crushed in (although there is a dispute as to how far), causing the windshield to break into a number of large jagged pieces. As a result of the accident, the plaintiff suffered severe injury to his left arm, although conflicting testimony was presented as to its exact cause.
The facts of this case fall into the category of what has come to be known as crashworthiness or second collision products liability cases. The initial issue in cases of this type is whether an automobile manufacturer owes its customers any duty to design or manufacture a crashworthy vehicle. There is a conflict of authority on the existence of such duties. Compare, e.g., Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966), cert. den., 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966) (no duty); McClung v. Ford Motor Co., 333 F.Supp. 17 (S.D.W.Va.1971), affirmed 472 F.2d 240 (4th Cir. 1973), cert. den., 412 U.S. 940, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973) (no duty); with Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968) (duty exists); Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737 (1974) (duty exists); Issacson v. Toyota Motor Sales, 438 F.Supp. 1 (E.D.N.C.1976) (duty exists); Dreisenstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974) (duty assumed to exist). However, South Carolina law governs on this point, and the Supreme Court of that State has imposed a duty on automobile manufacturers to use due care in car design in Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), and spoke favorably of a duty to so manufacture the cars with respect to crashworthiness. Mickle, 166 S.E.2d at 186. This duty is not absolute. No liability will attach unless the negligent design was unreasonably dangerous. Mickle, 166 S.E.2d at 192. Reasonableness in this context “. . . should be determined by general negligence principles, which involve a balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the precautions which would be effective to avoid the harm.” Dreisenstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1071 (4th Cir. 1974), quoting Larsen v. General Motors Corp., 391 F.2d 496, 498 (7th Cir. 1966); Mickle, 166 S.E.2d at 192. In applying this test, a wide variety of factors come into play. The intended use of the vehicle, styling, cost to change design, the obviousness of the defect, and the circumstances of the accident itself are all relevant. Dreisenstok, 489 F.2d at 1071-73.
Turning to the case at hand and the admissibility of the federal safety standard, it is clear that the issue of negligent roof design is central to this case. The plaintiff argues that if the roof had not been crushed in as it was, and the windshield had not been manufactured as it was, the windshield would not have broken as it did, and plaintiff’s arm would not have been cut, at least as badly as it was. In order to prevail, the plaintiff must show that the design of the roof was unreasonably dangerous. As part of his proof on this question, the plaintiff called an expert witness, Dr. Hanagud, who testified to design flaws in the roof. The plaintiff also introduced evidence showing that General Motors had not done any rollover testing on the 1968 Camaro.
General Motors countered with its own experts who testified to the strength of the roof design, attacked plaintiff’s testing techniques, and explained that rollover testing for each individual body style was not necessary. General Motors also offered evidence that the Camaro roof structure met and exceeded the requirements of Federal Motor Vehicle Safety Standard 216. 49 C.F.R. § 571.216. The district court excluded the evidence of compliance with the safety standard because the standard “was not in force at the time of the automobile’s construction or at the time of the accident.” Of course, if the evidence was otherwise inadmissible the district court’s ruling should be affirmed. SEC v. Chenery, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
In determining the admissibility of Standard 216, we must first determine if there is any conflict between federal and State law. This is a diversity case under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and federal courts are to apply the substantive law the State in which they are sitting would apply if the case had originated in a State court. Procedural rules, however, are generally not subject to Erie and federal law governs. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). This procedural as opposed to substantive distinction is not always easy to apply, and evidence law has caused particularly difficult problems.
While it is acknowledged that Erie and Hanna may govern the admissibility of evidence, there does not seem to be general agreement as to the effect Hanna had on the Erie decision with respect to leaving matters of substantive law to the rule in State courts. See Wright, Law of Federal Courts, (2d Ed. 1970) § 93; Wright, etc. (3d Ed. 1976) § 93; Advisory Committee’s Note to the proposed Federal Rules of Evidence, 46 F.R.D. 243; Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967); the editorial comment and parts of the various committee reports on Rule 501 contained in Redden & Saltzburg, Federal Rules of Evidence Manual. The gist of the discussions is that some authorities take the view that under Hanna Congress especially may validly enact any rule of evidence, not subject to Erie limitations, while others take the view that Erie limits rules of evidence to those matters not being in fact substantive law. A principal controversy over the new rules concerned privilege and burden of proof. In general terms, Congress left those matters, so far as presumption and privilege are concerned, to the rule in the State courts in diversity cases. Rules 302 and 501.
But we need not decide here any limitations of Erie on the Federal Rules of Evidence. Rule 402 provides that all relevant evidence is admissible except as provided by the Constitution, Act of Congress, the rules themselves, or other rules prescribed by the Supreme Court pursuant to statutory authority. It follows that under the new rules all relevant evidence is admissible subject to exceptions. The evidence with which we are dealing in this case is relevant. There is no doubt about that. Standard 216 is a federal regulation with force of law promulgated under the Traffic Vehicle and Motor Safety Code of 1966, 15 U.S.C. § 1381 et seq. Section 1392(a) directs the Secretary of Transportation to issue “appropriate Federal motor vehicle safety standards.” Section 1391(1) defines motor vehicle safety as including “the performance of motor vehicles or motor vehicle equipment in such a manner that the public is protected . . . against unreasonable risk of death or injury to persons in the event accidents do occur, and includes nonoperational safety of such vehicles.” Standard 216 in terms “establishes strength requirements for the passenger compartment roof,” and gives as its “purpose” “to reduce deaths and injuries due to the crushing of the roof onto the passenger compartment in rollover accidents.” 49 C.F.R. § 571.216, pars. S — 1, S-2. So the statute and the regulation literally address the same subject as a part of the theory upon which this case was brought, that the roof structure of the Camero was negligently designed.
The evidence being relevant, it should therefore be admissible unless some rule of law makes it inadmissible. The plaintiff relies on Shearer v. DeShon, 240 S.C. 472, 126 S.E.2d 514 (1962), as holding like evidence to be inadmissible. We do not agree that such is the holding of Shearer, which case merely held that at least a causative violation of an applicable statute constitutes actionable negligence. The statutes involved there were motor vehicle statutes concerning speed and keeping control of an automobile. If the Shearer case has any bearing on our case one way or the other, it would not seem to be persuasive toward denying the admissibility of the evidence presented here.
More importantly, there has not been presented to us, and we find no, South Carolina authority providing that a violation of a regulation, with or without the force of law, should or should not be admitted into evidence. There seems to be a dearth of authority on the question in South Carolina. That being so, we conclude there is no stated policy of South Carolina either favoring the admissibility of such evidence or disfavoring it. This discussion is relevant to the question before us because of cases such as Conway v. Chemical-Leaman Tank Lines, Inc., 540 F.2d 837 (5th Cir. 1976). That case, decided under the new Federal Rules of Evidence, held that there are State evidentiary rules so bound up with the substantive law of the State that a federal court sitting in that State should accord it the same treatment as the State courts in order to give effect to the State’s substantive policy. In Conway the court held admissible, in a wrongful death action by a widow for her husband’s death, the fact of her subsequent remarriage, apparently in mitigation of damages. The evidence admitted had nothing to do with burden of proof or presumption or privilege, and the Texas rule involved concerned the admissibility of evidence. Whether Conway might be considered to have been decided under Erie, the controversial evidence being a matter of substantive law, or in accordance with the reading of the tenor of the congressional history of the new Rules of Evidence that matters of basic State policy will be decided according to the State rule of decision, makes little difference, for the decision does stand for the proposition that there are some matters of State policy so basic that they should be accorded the same treatment they have in the State courts even under the new rules. The precise holding of the Fifth Circuit was that it would not say the exclusion of evidence under the Texas statute was harmless error since the Texas courts had said it could not be.
But, in the absence of any indication of any policy in South Carolina, we should be guided by the literal terms of the new rules and admit relevant evidence unless there is some reason not to do it. We do not imply that South Carolina can make no different rule; that is simply a question not before us for she has not done so.
Not only would a compliance with Standard 216 be relevant to the inquiry at hand according to the terms of the statute and the regulation itself, the congressional history of the statute found in United States Code, Congressional and Administrative News (1966), p. 2709, et seq., makes it clear that an object of the statute was to improve the safety of vehicles, and speaks in terms of collision protection, second collision, crashworthiness, etc., which seem to have become words of art as they relate to cases such as the one we have before us. The primary responsibility, says the report of the Senate Committee on Commerce, for regulating the national automotive manufacturing industry must fall squarely upon the federal government. P. 2712.
The statute was enacted in 1966. Standard 216 was last amended in 1973 and was first promulgated in 1971. The automobile involved in the accident was manufactured in 1967 and the accident occurred in 1972. The case was filed in 1974 and terminated in 1976.
It is seen that Standard 216 was not in effect at the time the automobile was manufactured, having been first promulgated some years later. Whether the regulation was in effect at the time of the accident we do not think has any relevance because, the case being based on negligence, the relevant time period involved would be at or prior to the manufacture of the vehicle in 1967. The regulation in terms applies only to motor vehicles the manufacture of which is completed on or after the effective date of the standard. 49 C.F.R. § 571.7.
But we are not here dealing with a claimed violation of the regulation as being either negligence itself or evidence of negligence; we are dealing with the question of whether or not to admit a claimed compliance with the regulation as evidence of due care.
There are many reasons why, if the vehicle manufactured in 1967 did not comply with a regulation later promulgated, as here finally in 1973, that the fact of noncompliance might be inadmissible. In the first place, the time frame of the standard of care must be 1967, not 1973. Further, perfectly valid policy reasons may dictate that such regulations not be made retroactive, and it is well known that retroactive application of statutes in general is not favored. No reason seems apparent to distinguish regulations.
But here General Motors takes the position that in 1967 it, ahead of its time, manufactured a vehicle which complied with safety requirements promulgated from 1971 through 1973. Conceding, as we must, that the statute, 15 U.S.C. § 1397(c), would prevent evidence of compliance with the standard from exempting General Motors from negligence for a vehicle subject to the terms of the regulation, nevertheless we believe that a compliance with the standard should have been admitted into evidence as evidence of due care in the design of the vehicle to be considered by the jury with the other evidence in the case.
It is general law that custom is admissible against which a finder of fact may measure a standard of care. Wigmore on Evidence, 3d Ed., § 461; Prosser on Torts, 4th Ed., § 33. Safety codes promulgated by an industry or trade or like regulations have similarly been admitted. E. g. Spurr v. LaSalle Construction Co., 385 F.2d 322 (7th Cir. 1967) (trade manual); Boston and Maine Railroad v. Talbert, 360 F.2d 286 (1st Cir. 1966) (nationally recognized standard for railway crossing); Fluor Corporation v. Black, 338 F.2d 830 (9th Cir. 1964) (Corps of Engineers safety program and manual and safety regulations of Arizona Industrial Commission); Merchants National Bank of Arizona v. Elgin J. & E. Ry. Co., 49 Ill.2d 118, 273 N.E.2d 809 (1971) (regulations of Department of Public Works and Buildings on grade crossings); Quinn v. United States, 312 F.Supp. 999 (D.Ark.1973) (regulations of the Corps of Engineers referring to traffic control standards); Stanley v. United States, 347 F.Supp. 1088 (D.Me.1972) (American Standard Safety Code for Floor and Wall Openings).
We think that Standard 216, the relevancy of which must be admitted, has at least as much probative value as custom, a trade manual, or the various regulations and standards mentioned above. Therefore, we are of opinion that if General Motors can prove a compliance with Standard 216, that fact should be admitted into evidence and the jury permitted to consider it. The plaintiff claims that General Motors did not comply with Standard 216 in all events. We express no opinion on that question. Whether or not General Motors complied with the standard will have to be ascertained on remand by a trier of fact.
The plaintiff argues that if the rule would permit General Motors to prove compliance with Standard 216, then the rule should also permit the plaintiff to prove non-compliance with Standard 216, so that, the argument goes, if compliance is evidence of due care, then non-compliance should be evidence of negligence. Quite possibly this might be true in some cases, but it is not necessarily true here, for there is a great deal of difference in failing to comply with a standard several years before it is enacted as tending to show negligence, and designing a car far enough in advance so that it does comply as tending to show due care. The difference is obvious. In all events that question is not now before us and it will have to await another day.
II
The defendant objects that the trial court instructed the jury before the evidence, before final argument, and after final argument, and that the jury was not fully instructed “after the arguments are completed,” which it says is required by FRCP 51. The plaintiff says the defendant was advised that the last two mentioned instruction sessions would be split and did not object until after final instructions were completed. While introductory instructions may serve a useful purpose and are often proper and helpful in acquainting the jury with the nature of the case, we think that when such instructions are used, it is better to instruct fully after arguments are completed in accordance with FRCP 51, even if the earlier instructions are repeated. We do not decide if the manner of instructing the jury was reversible error because we believe the trial court will correct this on remand. We realize, of course, that FRCP 51 does not contain the word “fully.”
The jury was charged, as a part of the instruction pertaining to damages, that “recklessness is consciously doing a negligent act, really, or doing a negligent act when an ordinary person would know it was negligent even though they didn’t know it consciously, or should know. So that’s a higher degree of failure to use due care.” The court later charged the jury that they were to return a verdict for punitive damages if the defendant were guilty of reckless and willful conduct. The parties agree that Rogers v. Florence Printing Co., 233 S.C. 567, 106 S.E.2d 258 (1968), sets out the rule for punitive damages. That case, while reciting that the standard had been variously referred to in South Carolina, held that “ ‘exemplary damages should not be awarded for mere gross negligence’,” and further held that the common denominator was “at the time of his act or omission to act the tort-feasor [must] be conscious, or chargeable with consciousness, of his wrongdoing.” The narrow holding of the case was that there was no distinction between holding a tortfeasor for “ ‘gross disregard of the rights of the person injured’ ” and “ ‘conscious indifference to the rights of the plaintiff’.” 106 S.E.2d at 264.
The instruction complained of does not meet these criteria; neither does it meet a standard of a “conscious failure to observe due care” or “present consciousness of wrongdoing,” earlier mentioned in the Rogers opinion.
The plaintiff argues that since the district court coupled its direction to award punitive damages for reckless conduct with a duty to award such for willful conduct, the defendant is reading the objectionable portions out of context. While this arguably may be so, the part objected to obviously does not comply with Rogers. While we do not decide whether the charge, read as a whole, constitutes reversible error, on remand any instruction on punitive damages should be within Rogers’ limits.
General Motors takes the position that the district court should have charged the jury that it was responsible only for any injuries suffered because of its negligence which enhanced the injuries Stonehocker would have received in any event. The plaintiff says the case was not tried on this theory, but on the theory that his injuries were all caused by the windshield breaking as it did, in turn caused by the faulty roof. He says that there was no evidence to support an instruction on enhanced injury, although the district court had so described the case in its preliminary charge. Again, we do not have to pass upon that claim. On retrial the defendant is entitled to such an instruction if supported by the evidence. Huddell v. Levin, 537 F.2d 726 (3rd Cir. 1976); see Dreisen-stok, p. 1076. We also think the burden is on the plaintiff either to establish that he would have suffered no injury or the extent of the injury he would have suffered, had the vehicle been properly designed. Hud-dell, pp. 737-739.
Ill
As has been noted, we are also asked to direct the entry of judgment for the defendant because of insufficient evidence both as to the cause of action and as to punitive damages.
A principal complaint is that the plaintiff’s expert witnesses, while they may have been otherwise qualified in other fields, got out of their fields in their testimony and did not sufficiently explain their conclusions.
Damning evidence, for example, was that General Motors should have designed the vehicle so that the roof would depress only 3 inches in a 55 mile per hour rollover. Unexplained in the testimony is how far the expert would expect the vehicle to travel while stopping in such a hypothetical rollover, at what speed the vehicle would be traveling when it so rolled over, and, most importantly, the manner in which the windshield would have broken had the roof depressed only as much as a properly designed roof should have. We suppose the inference the testimony seeks to draw is that the roof only should have depressed 3 inches instead of the various other distances testified to, otherwise its relevance is suspect. If that is true, absent from the record is any evidence as to the manner in which the windshield would have broken had the roof depressed only 3 inches, or any lesser distance than it did. Also, plaintiff’s experts testified the roof should have been designed for a 55 mile an hour rollover without explaining the details of exactly what a 55 mile per hour rollover consists of or what they had in mind. Unexplained is the ef-feet plaintiff’s 65 mile per hour speed just prior to the accident might have on a 55 mile per hour rollover.
Another example is that the record is not clear as to those parts of the windshield in question which were measured for thickness by plaintiff’s experts. If, in fact, plaintiff’s experts only measured those parts which had been exposed to the sun and weather for considerable periods of time, then the evidence seems fairly well uncontradicted that the plastic center part of the windshield when so exposed would deteriorate. Plaintiff’s experts seemed to be testifying that the plastic center layer of the windshield did not adhere to the glass or did not properly adhere because it was too thin. If it did not adhere at all, then the evidence shows that there would have been opaque spots in the windshield where the plastic center did not adhere. The very absence of any evidence of such opaque spots, if we construe plaintiff’s claim correctly, might lead some to believe that the evidence of plaintiff’s experts will respect to the windshield was in a field in which they had little knowledge, as they very nearly admitted.
Equally thin is the testimony as to punitive damages, but when the admissibility of evidence is controlled by Rogers, which we have previously cited, that matter will possibly be corrected on remand.
Despite this, as well as other deficiencies, a jury has heard the case and found for the plaintiff. Taking all the inferences from the testimony at face value, we are not presently so convinced that the verdict was without evidence to support it as to consider the merits of the argument and simply direct the entry of judgment for the defendant. Accordingly, since a district court on a motion for judgment notwithstanding the verdict in accordance with FRCP 50(b) may order a new trial in the interest of justice and fair play, and because other error requires a new trial in any event, we think a proper course here is to award a new trial without passing upon the sufficiency of the evidence, which we do not do. See Cone v. West Virginia Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Wright and Miller, Federal Practice and Procedure, §§ 2537-2538; Wright, Law of Federal Courts (2d Ed. 1976) § 95; Moore’s Federal Practice 2d Ed., para. 59.08[5].
VACATED AND REMANDED FOR A NEW TRIAL.
. The windshield was manufactured by Libby Owens Ford (LOF), but on plaintiffs theory of the case General Motors is liable for any negligence of LOF because it is claimed General Motors failed to further test any of the windshields it bought for 1968 Camaros.
. Wigmore, supra, § 462 takes the position that violation of an ordinance should not be evidence of negligence unless its violation is negligence per se.
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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songer_two_issues
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
UNITED STATES of America, Plaintiff-Appellee, v. Milton JOHNSON, Defendant-Appellant.
No. 17618.
United States Court of Appeals, Seventh Circuit.
May 20, 1970.
Rehearing Denied July 22, 1970.
Ronald P. Alwin, Federal Defender Program, Chicago, 111., for defendant-appellant.
Thomas A. Foran, U. S. Atty., Lawrence J. Cohen, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee; Michael B. Nash, Asst. U. S. Atty., of counsel.
Before DUFFY and HASTINGS, Senior Circuit Judges, and FAIRCHILD, Circuit Judge.
HASTINGS, Senior Circuit Judge.
A one count indictment charged that defendant Milton Johnson, on or about May 7, 1968, “fraudulently and knowingly did receive, conceal, buy, sell and facilitate the transportation, concealment and sale of approximately 10 grams of * * * heroin * * * ” in violation of Title 21, U.S.C.A. § 174. After a hearing before the court, defendant’s motion to suppress the evidence and testimony was denied. Defendant was represented at all times in the trial court by privately employed counsel. The record shows that defendant in open court knowingly and voluntarily waived a trial by jury. The issues were then tried to the court without a jury. Judgment of conviction was entered upon a finding of guilty. Defendant, having previously been convicted of violation of federal narcotic laws, was thereupon committed to the custody of the Attorney General for the minimum mandatory period of ten years. Defendant appeals from the judgment of conviction and sentence. We affirm.
Defendant asserts as reversible error the denial of his motion to suppress. Critical to this issue is whether the federal narcotics agents had probable cause for the warrantless arrest of defendant for possession of narcotics and the warrantless incident search which led to the discovery of the narcotics on his person.
We have read the entire transcript of the evidence introduced in the suppression hearing, as well as that introduced in the bench trial on the merits. From this the following seems clearly established.
Federal narcotics Agents Kukstra and Jackson had defendant’s place of residence in Chicago under surveillance about 9:45 a. m. on May 7, 1968. They had been prompted to do this because of information received from an informant “that Milton Johnson was again big in the narcotics traffic;” because they had been able to effect an arrest and conviction through the use of information secured from this informant in one other case; and because defendant was known to the Bureau of Narcotics in Chicago through his record.
At that time they saw defendant leave in a car in the company of Charles Ellis whom they recognized and knew was “of record” with the Bureau. The agents trailed them to 86th and Cottage Grove, where Agent Jackson followed Ellis into a National Tea Store and observed him making several telephone calls. Ellis then rejoined defendant and they drove to 86th and Drexel, where Ellis left defendant’s car and walked east on 86th Street and entered a north-south alley. About thirty-five minutes later, defendant drove his car around the block and parked. At that point the agents saw Ellis walk up to the car. Agent Jackson, using binoculars, saw Ellis hand defendant an aluminum foil package through the window on defendant’s side of the ear. At that time the agents moved to arrest defendant and Ellis. However, on reaching the corner where the suspects had been and after stopping their car, the agents saw that Ellis had disappeared through a gangway. They then lost sight of defendant after trying to catch up with his car. The agents gave up their attempt to make these arrests and resumed their surveillance of defendant’s residence.
About twenty minutes later they again saw defendant leave his house with one Alonzo Oliver. Defendant and Oliver were followed to 67th and Jeffrey, where defendant was seen to leave his car and converse with an unidentified man, return to his ear and drive to 43rd and Cottage Grove, where he met another unidentified man outside his car and talked with him. Defendant then drove to the Lake Meadows Shopping Center, arriving about 1:00 p. m. There defendant was seen making several telephone calls and receiving one call inside the Walgreen drugstore. He met Oliver outside the drugstore and together they returned inside for lunch. About forty-five minutes later, defendant and Oliver drove to 51st and King Drive where defendant talked to a third unidentified man. Defendant and Oliver then drove to near 60th and Stony Island, where defendant left his car and met Ellis again. While they were seen talking together, Agent Jackson, again using his binoculars, saw defendant hand a white envelope to Ellis and receive an aluminum foil package in exchange. Ellis entered a nearby hotel and defendant drove to Jeffery and Marquette Road where, with the assistance of other agents, defendant was arrested by Agents Jackson and Kukstra. The aluminum foil package was removed from his left inside coat pocket at that time.
At the conclusion of the evidence on the motion to suppress, the trial court stated the following conclusion on probable cause: “Well, the record shows that according to this agent, who has been in the Bureau for eight years, that he was aware of the narcotics background of both parties involved here. The court has seen enough of these silver packages here and on the west side [Cook County Criminal Courts Building] to realize this seems to be the standard method of wrapping contraband. Usually, there is an exchange of money for the contraband and that, of course, appeared to be what was going on at the time at 60th and Stony Island. The motion to suppress is denied.”
Thus, the issue before us is whether or not on the record of the hearing before the district court there was a sufficient showing of probable cause to justify the agents in making a warrantless arrest and incident search of defendant.
Defendant contends that the information the agents had, together with their personal observations, amounted to nothing more than a suspicion. The Government asserts a contrary view.
We first consider the informant’s tip. The Government does not argue that this information alone was sufficient to establish probable cause. We may assume arguendo that the informer’s tip in the instant case would not be sufficient due to its vague and general character. Nevertheless, in the words of the Supreme Court, “this is not to say that the tip was so insubstantial that it could not properly have counted in the [agents’] determination. Rather, it needed some further support.” Spinelli v. United States, 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969).
On the question of the existence of such further support, defendant contends that Spinelli requires a reversal of his conviction. We believe that a close reading of that case indicates an opposite conclusion. In Spinelli, the Court held that an informer’s tip, which standing alone did not meet the tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was not sufficiently supported by other factors present in that case to justify a magistrate’s finding probable cause to believe a crime was being committed.
The crime alleged there was interstate gambling activities. The additional factors relied upon to support the informant’s tip were: 1) An FBI surveillance that disclosed that the defendant on four of five days was seen going from Illinois to Missouri, parking his car in a certain lot and, on one occasion, going into a certain apartment; 2) a check with the telephone company which revealed that such apartment had two telephones; and 3) the fact that defendant was “known” to the FBI as a gambler. Given these factors, the Court concluded that “there can be no question that the * * * informant’s tip, has a fundamental place in this warrant application. Without it, probable cause could not be established.” Spinelli, supra, 393 U.S. at 414, 89 S.Ct. at 588. The Court specifically noted that the first two items were completely innocent and that the case would be different if there had been an unusual number of telephones or some abnormal activity. Id. The fact that Spinelli was “known” was no more than police suspicion entitled to no weight in these circumstances. Id.
If we apply this same technique of carefully assessing all facts known to the agents to ascertain what support they give each other in the determination of probable cause, the contrast between Spinelli and the instant case is compelling. Here the informant’s tip was not “fundamental” to a finding of probable cause. Rather, the information that defendant was again engaging in the narcotics business merely served to alert the agents to undertake a surveillance of the defendant to determine whether he was in fact so engaged.
That surveillance revealed • activities that cannot be justly characterized as “innocent-seeming.” Defendant was observed twice meeting the same known narcotics violator and twice obtaining from him a tinfoil packet. Both instances followed a series of telephone calls and trips to apparently pre-arranged meeting points. Defendant was seen delivering a white envelope in exchange for the second packet.
In Spinelli, the Court cited McCray v. Illinois, 386 U.S. 300, 302, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), as a case where, unlike Spinelli, a defendant’s “abnormal activity” served to buttress an informer’s tip. In that case narcotics agents, acting on a tip which was apparently more reliable than that in the instant case, saw the defendant talk briefly and separately with two persons and then walk “hurriedly” between two buildings after seeing the police car. It was at this point that the agents concluded they had probable cause. The Court agreed. While the tip in the instant case may be less reliable, the suspicious activity is far greater. Without doubt, it was sufficient to “permit the suspicions engendered by the informant’s report, to ripen into a judgment that a crime was probably being committed.” Spinelli, supra, 393 U.S. at 418, 89 S.Ct. at 590.
Above all else is the fact that the agents twice saw defendant receive an aluminum foil packet from a known narcotics violator. Such packages are well-known to experienced narcotics agents as a hallmark of the traffic in drugs. See Fisher v. United States, 92 U.S.App.D.C. 247, 205 F.2d 702 (1953), cert. den. 346 U.S. 872, 74 S.Ct. 122, 98 L.Ed. 381. Any contention that they could have contained innocent commodities is substantially overcome by the fact that they were passing between two known narcotics violators, that the incident occurred twice in the span of a few hours and that both incidents were surrounded by other suspicious activities.
Finally, whereas in Spinelli all the magistrate knew was that Spinelli was a “known” gambler, here the agents knew that not only defendant, but also the man from whom he was getting the suspicious packets, were “of record” with the narcotics bureau. This indicates more than “suspicion.” It indicates that both had prior convictions for violation of the narcotics laws. And most important is the fact that the agents were not simply giving weight to defendant’s reputation as a “bad man,” as was the case in Spinelli. Rather, they were giving weight to the fact that two prior offenders were twice seen engaging in conduct that gave strong indication they were again engaging in illegal activity. In Spinelli all that was shown was that a reputed “bad man” had done a number of perfectly normal and innocent things which an unproven informer alleged were evidence of illegal activity. Spinelli is clearly distinguishable from the instant case.
We are led to the firm conviction that the totality of the information possessed by the agents under the circumstances of this case was sufficient to establish probable cause.
In his brief defendant raises a second issue, the constitutional validity of the statute under which he was convicted, 21 U.S.C.A. § 174. However, after his brief was filed, the Supreme Court decided this issue adversely to defendant in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (January 20, 1970), and he abandoned it on oral argument.
Mr. Ronald P. Alwin, of the Chicago Bar, ably represented defendant on this appeal following our appointment pursuant to the Criminal Justice Act of 1964. He was assisted by Jean Kamp, of the University of Chicago Law School. We appreciate their services.
The judgment of conviction and sentence is affirmed.
Affirmed.
. Cf. Sibron v. United States, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). There the arresting officer saw defendant converse with known addicts over a period of time and subsequently meet with other addicts at a restaurant and hold a conversation. However, the officer had no information concerning defendant and was not acquainted with him. The Court then stated: “It must be emphasized that Patrolman Martin [the officer] * * * saw nothing pass between Sibron and the addicts. * * * Nothing resembling probable cause existed until after the search had turned up the [glassine] envelopes of heroin.” Id. at 62-63, 88 S.Ct. at 1902.
. Also distinguishable from the ease at bar is United States v. Burhannon, 7 Cir., 388 F.2d 961 (1968), heavily relied upon by defendant. There we were faced with an arrest based solely on observations and information so remote in time from the actual arrest as to be almost useless in the determination of probable cause to believe that the defendant had narcotics in his possession at the time of the arrest. The arresting officers there as much as admitted that they lacked probable cause at the time they made the arrest.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_counsel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine 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
Martin F. FEENEY, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
No. 7072.
United States Court of Appeals First Circuit.
April 18, 1968.
Martin F. Feeney, pro se.
Paul F. Markham, U. S. Atty., and Herbert N. Goodwin, Asst. U. S. Atty., on brief for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
In 1954 petitioner was charged" with four others in two indictments — kidnaping a prison guard in the course of a prison break and transporting him across state lines, and transporting a motor vehicle across state lines knowing the same to have been stolen. He was charged individually in a third indictment with unlawful flight with intent to avoid confinement after a state conviction for robbery. The three indictments were tried together and the jury found the defendant guilty as charged. Thereafter he was sentenced to fifteen years imprisonment on the kidnaping charge and to concurrent terms of five years on the other two convictions to begin on and after completion of the sentence in the kidnaping case. This court affirmed the convictions. Feeney v. United States, 221 F.2d 959 (1st Cir.), cert. denied, 350 U.S. 852, 76 S.Ct. 94, 100 L.Ed. 758 (1955).
In 1967 petitioner brought the instant motion, under 28 U.S.C. § 2255, to vacate the three sentences. The district court vacated the sentence imposed on the unlawful flight conviction but denied the motion as to the other two. On appeal petitioner complains that the district court erred in not vacating all three sentences. He asserts that prior to imposing sentence, the trial court did not offer him the right to allocution as required by Fed.R.Crim.P. 32(a) and secondly that the court’s charge was erroneous and prejudicial.
A § 2255 proceeding is a collateral remedy available to a petitioner only when some fundamental right is denied and not as a routine review at the behest of a defendant who is dissatisfied with his sentence. Dirring v. United States, 370 F.2d 862 (1st Cir. 1967). It is established that failure on the part of the trial court to follow the formal requirements of Rule 32(a) is not of itself an error that can be raised by collateral attack. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Petitioner alleges that the court’s failure to afford him an opportunity to make a statement in his own behalf before sentence was imposed occurred amid “aggravating circumstances” which take the case out of the holding in Hill. We do hot agree. A careful examination of the record on appeal does not reveal any such circumstances. The trial court did not affirmatively deny petitioner an opportunity to speak and it does not appear that the court was “either misinformed or uninformed as to any relevant circumstances.” See Hill, supra at 429, 82 S.Ct at 472.
Nor is petitioner’s claim that the trial court’s instructions to the jury were erroneous and prejudicial a basis for § 2255 relief. The issue of the trial court’s instructions is a matter for appeal and is not within the scope of § 2255. West v. United States, 117 U.S.App.D.C. 90, 326 F.2d 633 (1963). While it is true that the district court at the trial of this action, committed an unusual error, in that it directed the jury to find the defendant guilty on the third indictment, this conviction has now been set aside and we do not agree that the error warranted a § 2255 attack on the convictions under the other indictments.
Affirmed.
. In 1954 this rule provided in pertinent part: “Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.”
. There the Court stated at 429, 82 S.Ct. at 472: “Whether § 2255 relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances is a question we therefore do not consider.”
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:
|
songer_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Lowell BALDWIN et al., Appellants, v. G. W. WEBSTER et al.
No. 12706.
Circuit Court of Appeals, Eighth Circuit.
Sept. 7, 1943.
Edward Lamb, of Toledo, Ohio, for appellants.
James L. Hetland and Fordyce W. Crouch, both of Minneapolis, Minn., for appellees G. W. Webster et al.
Kenneth F. Burgess, of Chicago, 111., and Douglas F. Smith, of Omaha, Neb., for appellees Kenneth F. Burgess et al.
Fred N. Oliver and Willard P. Scott, both of New York City, for appellees Fred N. Oliver et al.
PER CURIAM.
Appeal from District Court dismissed with costs, on motion of appellees G. W. Webster et al., Kenneth F. Burgess et al., and Fred N. Oliver et al.
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES v. MINKOFF.
No. 310.
Circuit Court of Appeals, Second Circuit.
Aug. 2, 1943.
Joseph Leary Delaney, of New York City (Samuel W. Altman, of New York City, of counsel), for defendant-appellant.
Mathias F. Correa, U. S. Atty., of New York City (Edward C. Wallace, Asst. U. S. Atty., of New York City, of counsel), for appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
CHASE, Circuit Judge.
The appellant was tried in the District Court for the Southern District of New York on an indictment in one count charging him, in violation of 18 U.S.C.A. § 88, with conspiring with Anthony Barracato, two fictitious persons called John Doe and Richard Doé, as to which there was a severance before trial, and divers unknown persons to endeavor to obstruct or impede the due administration of justice. See 18 U.S.C.A. § 241. It was alleged that the unlawful agreement was to have Barracato undergo an abdominal operation while he was being tried with twenty-one other defendants on three indictments, consolidated for trial, in the Sortthern District of New York. The purpose of the conspiracy was to enable Barracato to avoid the consequences of that trial by having a severance or a mistrial declared as to him on the ground that his absence was involuntary because it was ostensibly caused by an operation whose performance could not safely be delayed.
The jury returned a verdict of guilty on which there was a judgment and sentence. The appellant now seeks a reversal on the grounds that the evidence does not show that Barracato participated in the conspiracy, and, without that, no one was proved to have conspired with the appellant; that it was not a crime for Barracato to remain away from the trial; and that errors committed during the trial were so prejudicial that a reversal should follow.
There was ample evidence to enable the jury to find that before Barracato had been indicted on December 4, 1941, he had consulted a doctor and had been told that an operation to remove a gall stone was advisable but that he knew that there was no emergency and shrank from such an operation. The appellant also knew that when Barracato and his co-defendants went to trial on the indictment on April 7, 1942. Both Barracato and the appellant then felt that it would be better for him to arrange in some way to have his trial, if and when it might come about later, before some judge other than the one then presiding; that the appellant and Barracato drove together to the court house the day they thought his trial would begin which was, as it happened, the day before it did; that at the end of the first day of the trial they called at the office of Barracato’s doctor and without telling him about the trial, made tentative arrangements for an early operation; that at the conclusion of the third day of trial appellant met Barracato at the court house and went with him, his attorney, and two other men to and into the Woolworth Building in New York where they remained about an hour and then all came out, got into the appellant’s car and were driven by him to his home. That evening the appellant telephoned Barracato’s doctor, who still was kept in ignorance of the trial, that Barracato was in great pain, much more agonizing than before, and that he wanted to go to the hospital. Barracato also then talked with the doctor by telephone and told him that his pain was worse than it had been and that he wanted an operation as soon as possible. The doctor then arranged with a surgeon to perform the operation the next day. That evening the appellant, with an unknown man, called upon the doctor who told him that the operation would be performed at ten thirty the next morning. On Saturday the eleventh the appellant called at the doctor’s office and was told that the doctor had been called to the district attorney’s office and questioned about the Barracato business. When asked to give the substance of his conversation with the appellant, he testified: “I said, ‘Look here, Mr. Minkoff, I was called to the District Attorney’s office, he was a star witness on a bootleg case, what is the whole thing about?’ He said, ‘Don’t worry about it, leave it to me. Mr. Barracato was a sick man and he needed the operation at once.’ I said he was a star witness on a case. He said ‘That don’t mean nothing and don’t you dare mention my name.’ ”
The operation was performed primarily in reliance upon the subjective symptoms Barracato saw fit to give the doctors. It disclosed that there were no gall stones and that there was “no evidence of acute inflammation of the gall bladder.” His temperature was normal or close to it before the operation and the “physical examinations that would indicate disease of the gall bladder were entirely negative.” Being asked, “When you found these symptoms did you still think you should go ahead ? ” the surgeon replied, “I did not think there was any necessity for an emergency operation, but in view of the evidence we had we knew an operation was indicated as a cure for that condition.” The gall bladder when exposed by the operation did show signs of chronic inflammation and was surrounded by adhesions which might well have caused pain. It was removed and so was the appendix which is usually taken out when such an operation is performed. The patient died after the operation from a cause — pulmonary embolism— not directly connected with his condition before he entered the hospital.
The appellant who went to the hospital with Barracato on the day of the operation returned the next day and asked how much the bill would be. After being told and trying unsuccessfully to get contributions from Barracato’s family he made a comparatively substantial partial payment out of his own money.
The appellant argues that there was no evidence that Barracato conspired with him and, a fortiori, none that anyone else did. He therefore insists that the proof of his guilt was insufficient since a man cannot conspire with himself alone. Bartkus v. United States, 7 Cir., 21 F.2d 425. The latter is, of course, so but whether there was a conspiracy in which Barracato participated with the appellant was on this evidence plainly for the jury. Barracato and the plaintiff might have been actuated solely by a sincere, though mistaken, belief that the operation was immediately necessary. They might on the other hand have agreed that what appeared to them to be necessary was to remove Barracato from the dangers they visualized in his trial and to postpone the evil day by hook or crook in the hope that delay would prove advantageous. The proof of what they did and how they did it supplied enough evidence of the unlawful agreement and of ample overt acts in consummation of it provided the jury believed it. See, Remus v. United States, 6 Cir., 291 F. 501.
By the same token it was for the jury to determine not alone whether Barracato did in fact voluntarily absent himself from the trial in such a way that it could have proceeded without his presence to a conviction, if one were had, but whether he did it in willing and understanding cooperation with the appellant in such a way that it would have appeared involuntary and made it seemingly unlawful to have tried him in his absence.
We will assume that a defendant not charged with a capital offense may waive his right to attend his trial and absent himself voluntarily without depriving the court of power to proceed as though he were present. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500, Ann. Cas.l913C, 1138. But that is clearly not the apparent situation which these conspirators in this instance planned to create. They planned, as the jury must have readily perceived and found, to have Barracato leave the trial under circumstances which seemed, contrary to the fact, to be beyond his control and against his will. They could then count confidently upon having a motion for a mistrial granted. To proceed against him in the absence of a waiver, if it was impossible to be present, would have been erroneous since it would have denied him his undoubted right to be present; to confront the witnesses produced against him; and to aid in his own defense. No more was needed to make out a conspiracy to obstruct and impede the due administration of justice. Samples v. United States, 5 Cir., 121 F.2d 263; United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553. The offense was complete, regardless of success, when the first overt act to carry it out was committed. United States v. Polakoff, 2 Cir., 121 F.2d 333.
The appellant argues that during the trial errors occurred which, though none “alone would probably have seriously biased the jury,” had the cumulative effeet of doing so. Appellant testified in his own behalf and during his cross-examination was asked if he had ever pleaded guilty to a crime, misdemeanor or other violation of law. He replied that he had pleaded guilty to a misdemeanor committed by infringing a label. There is considerable conflict in authority as to whether or not prior conviction for a misdemeanor may be shown in an attempt to impair the credibility of a defendant in a criminal case who elects to testify at his trial. In some states it is not allowed but in New York the statute permits it except where the offense is a violation of the traffic laws. New York Penal Law, § 2444, Consol.Laws, c. 40. The federal cases are not uniform on the subject and apparently in states where such inquiry is forbidden the federal courts are prone to follow suit. Where, as in New York, such examination is proper in the state courts there is ample authority for permitting it in the federal courts. Merrill v. United States, 9 Cir., 6 F.2d 120; United States v. Waldon, 7 Cir., 114 F.2d 982.
Also during the cross-examination of the defendant questions were asked to bring out the extent of his acquaintance with Barracato and whether he knew why Barracato went to Atlanta. He replied that he read in the paper that Barracato served in Atlanta penitentiary and “that’s about all I know.” This was admissible, if for no other reason, to show that appellant knew that if Barracato was convicted he would stand before the court for sentence as a second offender and that the danger of his position as such might well be an added incentive that made the consummation of the conspiracy more likely.
The remarks of the court during the trial to which the appellant has taken exception are hardly worth mentioning. In cautioning the prosecutor to be careful when he was examining a government witness whom he had asked about what was said when the appellant called Barracato’s doctor by telephone, the judge said it was a close question whether that came under the wire-tapping rule and added, “I do not want to spend two or three days trying this case and have it reversed for an error in it.” The question was then withdrawn. The other remark the appellant seems to think was harmful to him was made during appellant’s cross-examination. He had become somewhat evasive in his answers to questions concerning what he said when he was questioned in the district attorney s office on April 17th. The judge after saying that he was being asked simple questions, should make direct answers, and that he could make any explanation he wanted to, urged him to by asking, “Now won’t you do that and answer the question ? ” His counsel then objected to these instructions and when asked if he wanted to say anything said he wanted a question put. The last sentence in what the court then said is the remark now relied on. It was, “I want to be absolutely fair to him. If he wants to make a statement, I want him to make the statement to the jury. If you don’t want him to do it, that’s all right, but I don’t want him to go out of the court and then go outside and say he did not have a chance.” In thus making it plain to the witness, and to his attorney, that the requirement to answer a question directly was accompanied by the privilege to explain the answer there was, of course, no reversible error.
The remaining so-called trial errors consist of the failure to.charge appellant’s requests Nos. 5 and 6. The first was to ° the effect that Barracato could voluntarily absent himself from the trial after it had begun in his presence without preventing its completion and that his action in so doing “operates as a waiver of his right to be present.”
The court made this clear enough when, following the charge, the appellant’s attorney read the request in the presence of the jury in taking an exception based upon a refusal to comply with it; and also made it plain, as was proper in view of the evidence, that where a defendant on trial absents himself of his own motion and his own action in furtherance of such a conspiracy as was charged in this instance there would not be the kind of voluntary action which would make the law embodied in the request applicable.
In the other request reference was made to the testimony of Barracato’s doctor in which he accounted for statements he had made before trial which were inconsistent with his testimony on trial by saying that he did so because of threats made by the defendant. The request contained what was advanced as a statement of the law defining when an “act which would otherwise constitute a crime may also be excused on the ground that it was done under compulsion or duress.” That was clearly utterly foreign to any issue on triak The doctor was not being tried for perjury. Whether or not he had given an explanation of the conflict between his testimony and his prior statement which would have been a good defense on such a trial was quite beside the point. The question here as to his excuse was whether the reason he gave was correct in fact and it was for the jury, to determine that on the question of his credibility as a witness and to decide whether his excuse was sufficient to warrant reliance upon his testimony regardless of whether, under other circumstances, it would have been sufficient in law for other purposes.
Judgment affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_genresp2
|
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.
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.
Ernest BROOKS, Plaintiff-Appellant, v. CENTER TOWNSHIP, a municipality incorporated in Marion County, Indiana, and Benjamin A. Osborne, Center Township Trustee and Overseer of the Poor in Center Township, Defendants-Appellees.
No. 72-1921.
United States Court of Appeals, Seventh Circuit.
Argued May 22, 1973.
Decided Oct. 3, 1973.
John T. Manning, Louis F. Rosenberg, Indianapolis, Ind., for plaintiff-appellant.
Ernest P. Schnippel, Indianapolis, Ind., for defendants-appellees.
Before CLARK, Associate Justice, KILEY, Circuit Judge, and CAMPBELL, Senior District Judge.
The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States, Retired, is sitting by designation.
Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.
KILEY, Circuit Judge.
Plaintiff, Ernest Brooks, as representative of a class, filed this civil rights action alleging that defendants unconstitutionally terminated plaintiffs’ rent and food assistance.- On motion of defendants the district court dismissed the complaint. Brooks alone has appealed. We reverse.
The complaint was filed on June 3, 1971. The relief sought was for a declaratory judgment that defendants’ practice of terminating benefits and dispensing poor relief violated the Due Process Clause of the 14th Amendment, for an order restraining defendants from termination of assistance except under specific procedural substantive and constitutional steps, and for an order reinstating certain plaintiffs on its relief rolls. After receiving eight extensions of time to answer, defendants, on March 10, 1972, filed their motion to dismiss asserting that there was no diversity jurisdiction, insufficient service of process, failure to exhaust administrative remedies, and lack of a substantial federal question. In response to the motion plaintiffs, inter alia, asserted that the motion did not specify how service of process was insufficient under federal or Indiana law. In any event they asserted that the thrust of their action was to establish deprivation of constitutional rights by virtue of defendants’ pre-termination procedure under Indiana law, and that they were, not required to exhaust post-termination remedies before bringing suit. The district court dismissed the complaint for failure of plaintiffs to exhaust their state remedy. Ind.Code § 12-2-1-18 (1971).
We take the allegations well pleaded by Brooks as true, for purposes of this appeal. He began receiving rent and food assistance from defendants in February, 1969. In May, 1970 his rental benefits, and in February, 1971 his food benefits, were terminated without prior notice or hearing or notice of his right of post-termination administrative appeal under Indiana Statute. Ind.Code § 12-2-1-18 (1971).
Brooks contends that he was not required to exhaust the Indiana “remedy” before filing his civil rights complaint, especially where the provisions of § 12-2-1-18 do not satisfy the due process and equal protection clauses of the Fourteenth Amendment. He contends, and we agree, that § 12-2-1-18 is unconstitutional for lack of due process under Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
I
The district court’s application of the exhaustion rule was premised upon plaintiff’s failure to pursue the appellate remedy in Ind.Code § 12-2-1-18 (1971). That “poor relief” statute does not expressly deal with the termination process. Its provisions provide an appellate procedure to follow the decision of the “township trustee as overseer of the poor.” The statute contains no procedural requirements at the “trustee or overseer of the poor” level. Brooks’ claim of denial of due process is not aimed at the uneonstitutionality of the provisions of § 12-2-1-18, but rather at the lack of that statute, or any Indiana statute, to provide due process at the level of the initial termination of relief.
The provisions of § 12-2-1-18 provide an applicant for, or recipient of, poor relief an opportunity to object to a denial or termination decision by the “trustee as overseer.” The appeal is to the Board of County Commissioners, and on appeal the recipient is entitled to an opportunity to object orally or in writing, to be present at the appellate hearing and to receive notice of the decision. It is clear that the statute does not require a hearing for recipients before termination of relief. No claim is made by defendants that a pre-termination hearing is required or given.
We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
Defendants’ arguments are of no aid in our decision of the legal question presented. The arguments are reminiscent of a chorus in a Greek tragedy chanting lamentations. The substance of the arguments is the dire effects of continuing the trend of recent welfare decisions. Nevertheless, we recognize the importance of not imposing upon Indiana any procedural requirements beyond those of rudimentary due process. Goldberg v. Kelly, supra, at 267, 90 S.Ct. 1011. But rudimentary due process was denied Brooks, who had no notice of, or reasons for, termination of benefits, no hearing and no notice of his appeal right.
The Goldberg v. Kelly case involved a federally assisted program, not a completely state funded program. It is of no consequence constitutionally that Indiana’s “township poor relief program ... is not a federally governed or directed program under the Social Security Act of 1935 or any other federal act of welfare or relief assistance” but is supported solely by the state. Indiana is required by the Fourteenth Amendment to provide due process in its laws. See Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The Civil Rights Act was intended to “override certain kinds of state laws.” Id. at 173, 81 S.Ct. at 477. And if the state through its welfare program extends basic benefits to the needy, it must not take the benefits away in an arbitrary procedure. If it does so it has violated the constitutional right of the needy to due process and consequently violated the Civil Rights Act.
II
We hold that the district court erred in deciding that Brooks was required to pursue what benefit Ind.Code § 12-2-1-18 (1971) offers to welfare recipients before filing his civil rights action.
The Supreme Court has been careful to avoid trespassing upon state jurisdiction in the civil rights area. See McNeese v. Board of Education, 373 U.S. 668, 673, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). Beginning with Monroe v. Pape, however, the Court has persisted in holding that the civil rights remedy under 42 U.S.C. § 1983 is supplementary to any state administrative remedies and that federal jurisdiction may be invoked without exhaustion of state remedies. In Pape the remedy was used in a search and seizure framework. In Mc-Neese the holding in Pape was repeated in the context of alleged segregation of students in an Illinois school. The holding was reasserted in a per curiam opinion in Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), an action under § 1983 involving the California welfare laws. In Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), a per curiam opinion, where a prisoner claimed his civil rights were denied by state confiscation of legal materials, the Court stated that “resort to” remedies of state was unnecessary in the light of Pape, McNeese and Damico. Still another per curiam opinion, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972), held that a three-judge court improperly dismissed a complaint under § 1983 for failure to exhaust a state remedy. Carter involved aid to dependent children, and the court on authority of Damico, “an indistinguishable ease,” held “exhaustion” was not required. In a civil rights action by Illinois relief recipients this court in Metcalf v. Swank, 444 F.2d 1353 (7th Cir. 1971), affirmed dismissal for failure to exhaust state remedy. The Supreme Court vacated and remanded for further consideration in the light of Carter v. Stanton. Metcalf v. Swank, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 113 (1972).
In Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the court cited McNeese and Damico for the proposition that the court had “expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under 42 U.S.C. § 1983.” The court however qualified that statement by saying it need not decide “[wjhether this is invariably the case.” In a factual situation such as the one there, where the state remedy was initiated and pending and the individual would be deprived of nothing until completion of the state proceeding, the question of exhaustion “remains open.” Gibson is inapposite here because no Indiana state proceeding was or is pending with which a district court decision would interfere.
For the reasons given the district court judgment is reversed and the cause is remanded with directions to reinstate Brooks to the Center Township of Marion County, Indiana relief rolls from which he was unconstitutionally dropped; and for further proceedings with respect to what just compensation is due him from defendants for what injury the evidence shows he suffered as a result of the unconstitutional arbitrary termination of his “poor relief” benefits.
Reversed and remanded with directions.
. The court assumed jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4).
. The district court granted leave to appeal in forma pauperis.
. The assistance record of Brooks appended to defendants’ brief is not to be considered at this stage of the proceeding.
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_respond1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Richard J. BORCHERS; Jane E. Borchers, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 90-2724.
United States Court of Appeals, Eighth Circuit.
Submitted May 14, 1991.
Decided Aug. 23, 1991.
Bernie H. Beaver, Minneapolis, Minn., for appellants.
David A. Hubbert, argued, Washington, D.C. (Gary R. Allen and Richard Farber, on the brief), for appellee.
Before FAGG, Circuit Judge, and HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
FAGG, Circuit Judge.
Richard J. Borchers and Jane E. Borch-ers appeal the tax court’s decision denying them an investment tax credit on computer equipment Richard leased to the Borchers-es’ wholly-owned corporation, Decision Systems, Inc., in 1982. See 26 U.S.C. § 46(e)(3)(B) (1982) (amended 1988). We affirm.
This is the second time we have had this case before us. Initially the tax court held the Borcherses were entitled to an investment tax credit, Borchers v. Commissioner, 55 T.C.M. (CCH) 1469 (1988), and the Commissioner appealed. We could not effectively review the decision because the tax court’s failure to offer an analysis “[made] it impossible for us to determine the correctness of [its] decision.” Borchers v. Commissioner, 889 F.2d 790, 791 (8th Cir.1989). Thus, we vacated the tax court’s decision and remanded the case for further proceedings. Id. On remand the tax court engaged in a reasoned analysis changing the result and disallowing the credit. Borchers v. Commissioner, 95 T.C. 82 (1990). The Borcherses now appeal.
The Borcherses argue that after we vacated and remanded the tax court’s first decision, the tax court could only explain, not change, the initial result. We disagree. Although our mandate controls all matters within its scope, a court on remand is free to revisit any issue we did not expressly or impliedly decide. Newball v. Offshore Logistics Int'l, 803 F.2d 821, 826 (5th Cir.1986); see also Bethea v. Levi Strauss & Co., 916 F.2d 453, 456 (8th Cir.1990). In our earlier decision, we did not decide whether the Borcherses were entitled to an investment tax credit or confine the tax court to explaining its first decision. Accordingly, the tax court was free to change the result on remand.
We now turn to the merits of the case. A noncorporate lessor of property seeking an investment tax credit under 26 U.S.C. § 46(e)(3)(B) must show the property is leased for less than 50% of its useful life. Here, the leases’ terms are twelve months, and the computer equipment’s useful life is six years. Thus, the leases’ written terms are less than 50% of the equipment’s useful life. In determining the duration of the leases, however, the tax court used the “realistic contemplation” test. 95 T.C. at 88. Under this test, written lease terms are not dispositive. See Connor v. Commissioner, 847 F.2d 985, 988 (1st Cir.1988). Instead, all the facts and circumstances surrounding the lease are examined, see 95 T.C. at 89, to ascertain the realistic contemplation of the leasing parties when the property is first put into service, Owen v. Commissioner, 881 F.2d 832, 834 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990); Connor, 847 F.2d at 989; see also McEachron v. Commissioner, 873 F.2d 176, 177 (8th Cir.1988) (adopting realistic contemplation test when challenged lease contains no definite term). Because the Borcherses do not challenge the use of this test, we need not consider the test used in McNamara v. Commissioner, 827 F.2d 168, 172 (7th Cir.1987) (when lease not tax motivated, written term controls unless Commissioner shows lease is a sham).
The Borcherses had the burden to prove they realistically contemplated the leases would cover less than half of the equipment’s useful life. Connor, 847 F.2d at 989. The tax court determined the Borcherses failed to satisfy this burden of persuasion. 95 T.C. at 94. We review the tax court’s determination for clear error. Connor, 847 F.2d at 989.
Reviewing the stipulated record, we find no clear error. Although the Borcherses showed the leases’ written terms were less than 50% of the equipment’s useful life, the record reflects the Borcherses controlled Decision Systems, Richard leased only to Decision Systems in 1982, and in 1983, Richard again leased to Decision Systems all the equipment purchased and leased to the corporation in 1982. See 95 T.C. at 84-87, 90. The record also shows Richard leased other computer equipment to Decision Systems in 1981, renewed all these leases in 1982, and renewed some of the leases again in 1983. See id. at 85-86, 90. We believe the tax court’s analysis of the relevant factors and circumstances, id. at 89, 94, supports its conclusion that the Borcherses failed to prove the parties realistically contemplated the terms of the leases would be less than half of the equipment’s useful life, id. at 94.
Accordingly, we affirm the tax court’s decision.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Mauro GADALETA, Plaintiff-Appellant, v. NEDERLANDSCH-AMEREKAANSCHE STOOMVART, etc., a/k/a Holland America Line, Defendant-Respondent and Third-Party Plaintiff-Appellant, v. International Terminal Operating Co., Inc., Third-Party Defendant-Respondent.
No. 391, Docket 26874.
United States Court of Appeals Second Circuit.
Argued May 10, 1961.
Decided June 6, 1961.
Bernard Chazen, Hoboken, N. J. (Baker, Garber & Chazen, and Nathan Baker, Hoboken, N. J., on the brief), for plaintiff-appellant.
Edmund F. Lamb, New York City (William E. Fay III, Lawless & Lynch, Purdy, Lamb & Catoggio, New York City, on the brief), for defendant-respondent and third party plaintiff-appellant.
Nicholas Milano, New York City, for third party defendant-respondent.
Before FRIENDLY and SMITH, Circuit Judges, and WATKINS, District Judge.
U. S. District Judge for the Northern and Southern Districts of West Virginia, sitting by designation.
SMITH, Circuit Judge.
Plaintiff, a longshoreman, was injured August 31, 1956 while handling barrels •of pickled skins which had been unloaded from defendant’s vessel and stacked on defendant’s pier on August 23 and 24, 1956. Plaintiff’s claim was that he had .slipped on brine, which had leaked from broken barrels, while loading one of the heavy barrels on the plate of a hi-lo, and that he suffered a herniated intervertebral disc. Defendant introduced reports tending to show that plaintiff had •sprained his back while lifting a barrel, not because of having slipped, and some testimony that there was no brine on the pier.
The jury found for the defendant. The court dismissed the non-jury third party action over against the stevedore, plaintiff’s employer. Plaintiff appeals from judgment entered on the verdict, ■defendant, third party plaintiff, from the dismissal of the third party action.
Plaintiff bases his appeal on two grounds, exclusion from evidence of defendant’s answers to interrogatories propounded by the third party defendant, and refusal of the court to charge on a claim of negligence of defendant in unloading its vessel.
Answers to interrogatories clearly may be utilized as admissions. 4 Moore Fed.Prac. 2d Ed. p. 1190. F.R. Civ.P. Rule 33, Rule 26(d) (2), 28 U.S.C.A.; Lumbermen’s Mutual Ins. Co. of Mansfield, Ohio v. Cantex Mfg. Co., 5 Cir., 1958, 262 F.2d 63. The answers here, however, through the reference to the third party complaint in the interrogatories, were conditional on the prior establishment of the existence of the wet condition of the pier, which was not admitted by defendant. They would have been misleading to the jury under the circumstances. The court was therefore correct in excluding them.
Charge No. 3 rejected by the court was as follows:
“3. The defendant owed the duty to the plaintiff longshoreman to exercise reasonable care in discharging the cargo from the vessel to the pier and in stacking the cargo on the pier and in inspecting the cargo upon its discharge to the pier.”
If negligence in discharging or stacking or in failing to inspect created a condition which caused injury, the pier owner might well be liable under New Jersey law. The difficulty with plaintiff’s position here, however, is that the record reveals no evidence as to the manner of discharge, stacking or inspection from which a finding of negligence could have been made. There was therefore no error in refusing the charge. We need not determine whether the charge as given would have been sufficient had such evidence been presented.
Since judgment for defendant on the principal action must be affirmed, the appeal from the dismissal of the third party action becomes academic.
Judgment affirmed.
. The charge given included the following:
“The defendant owed the duty to plaintiff, as invitee upon the pier, to exercise reasonable care to provide him with a place to work which is safe.
“The defendant’s duty was not limited to warning plaintiff of dangers known to defendant, but included the affirmative duty to exercise reasonable care to make provision for the plaintiff’s safety even if the dangers were apparent.
“If you find that the defendant, in the exercise of reasonable care, knew or should have known that the cargo was ■defective or leaking so as to become unsafe to longshoremen handling the cargo on the pier, then you may find that it was the duty of the defendant to take measures to protect the longshoremen from the dangers. If it failed in that duty, you may find that defendant was negligent.
“If you find that the pier was in fact unreasonably slippery as plaintiff claims and if you find that the condition existed for a period of time sufficient for the defendant to have learned of and corrected it, you may find that the defendant had constructive knowledge that the pier was dangerously slippery due to the wetness on the pier. If you so find and if you find that defendant failed to use reasonable care to remedy the condition, you may then find that defendant was negligent.
“If you find that Holland-America Line was not thus actually or constructively notified of the condition complained of, you must find for the defendant, Holland-America Line.”
. Stark v. Great Atlantic & Pacific Tea Co., 1926, 102 N.J.L. 694, 133 A. 172 (failure to inspect).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_appel1_7_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
UNITED STATES of America, Plaintiff-Appellee, v. Frieda M. GROSSHANS, Defendant-Appellant.
No. 86-1727.
United States Court of Appeals, Sixth Circuit.
Argued May 14, 1987.
Decided June 30, 1987.
Rehearing and Rehearing En Banc Denied Aug. 13, 1987.
Arthur Jay Weiss (argued), Farmington Hills, Mich., for defendant-appellant.
Stephen Hiyama (argued), Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Before KEITH, KENNEDY and NORRIS, Circuit Judges.
CORNELIA G. KENNEDY, Circuit Judge.
Defendant-appellant Frieda M. Grosshans (“defendant”) appeals the District Court’s entry of judgment of conviction on five counts of tax evasion in violation of 26 U.S.C. § 7201. Defendant claims on appeal that a waiver of her right to counsel may not be inferred from the record and that she was forced to choose between proceeding with incompetent counsel or proceeding pro se. She also asserts that the District Court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), and erred in admitting evidence of defendant’s other crimes, bad acts and wrongs, for the purpose of proving propensity to commit the alleged crime. We find that a knowing and intelligent waiver by defendant can be inferred from the record. We further find that the District Court failed to comply with the Speedy Trial Act when it failed to secure an express waiver, but we hold that a new trial is not required because defendant was not prejudiced. Finally, we hold that the District Court did not err in admitting evidence of defendant’s prior acts.
In February of 1986, a grand jury in Detroit returned a five-count indictment charging defendant with tax evasion for the years 1980 through 1984, in violation of 26 U.S.C. § 7201. The indictment alleged that in each of those five years defendant filed a false W-4, claiming exemption from withholding; failed to file an income tax return; and failed to pay her income tax. The day after the indictment, the government sent a letter to defendant notifying her of the indictment and informing her that her arraignment would be held on February 19, 1986. The letter also stated that defendant could have an attorney present at the arraignment and that if she could not afford an attorney, she should contact the Federal Defenders Office. On February 19, defendant appeared before a federal magistrate. She had not retained an attorney and the arraignment was adjourned until February 28 so she could do so.
On February 28, defendant again appeared before a federal magistrate without counsel. She stated that she had been ill and had been unable to find an attorney. She asserted that she still wished to have an attorney. A deputy federal defender gave her the card of the Federal Defenders Office and defendant was told'that someone from that office could represent her if she could not find an attorney. The arraignment was adjourned until March 5 to allow defendant to retain counsel. On March 5, defendant appeared before the magistrate without counsel and explained that she had a meeting scheduled with an attorney two days later. The magistrate entered a plea of not guilty and the Assistant United States Attorney read the indictment aloud. Defendant stated that she had a copy of the indictment, but refused to sign an acknowledgment form. On March 11, defendant once again appeared before a federal magistrate without counsel, this time in chambers for a pretrial conference. She claimed that several attorneys had refused to represent her.
On March 24, defendant filed a motion entitled “Motion for Counsel or Co-Counsel of Choice.” Defendant requested representation by a non-member of the bar. At a hearing on April 10, the District Court informed defendant that she was not entitled to representation by a person who was not licensed to practice law. The court told defendant that either she must get an attorney herself or he would appoint a member of the Federal Defenders Office to represent her, but defendant said she would not agree to that. The court then stated that defendant was entitled to represent herself if she so chose, but that the court would appoint an attorney to be available to assist her. It concluded that “[w]e have done absolutely everything we could to get you to consider having an attorney who is licensed to practice law in the State of Michigan. You haven’t come up with one yet.” Joint Appendix at 253. Trial was set for May 19, 1986.
The Federal Defenders Office referred defendant’s case to a private attorney, Mr. Patrick Cleary. The District Court docket sheet does not indicate an appearance by Mr. Cleary, but shows that on May 12 he was allowed to withdraw from the case. Mr. Cleary later testified on the record that he had made several attempts to contact defendant soon after he was appointed. He stated that defendant did not return his calls. When he finally contacted her, she indicated to him that she intended to represent herself. Defendant apparently inquired about Mr. Cleary’s professional experience. He informed her that he was an experienced criminal attorney, although he had not tried a tax case before. He stated that he was prepared to try the case, but defendant insisted that she did not want counsel. Mr. Cleary then called the District Court and requested a meeting. At the meeting on May 12, the District Court apparently asked defendant if she wanted to represent herself and she answered affirmatively. Mr. Cleary was allowed to withdraw. Unfortunately, we have no transcript of that meeting.
On May 29, four days before the rescheduled trial date of June 2, defendant filed a “Motion for Court to Honor Accused’s Right to Proper Defense and Arrange Schedule to Allow Expert Summary Witness to be Present at Trial.” She claimed that she needed an “expert summary witness” present at trial in order to conduct a proper defense because Mr. Cleary “admitted he was incompetent to defend properly in this case.” Joint Appendix at 70. Defendant’s witness would apparently be present to take notes on the proceedings. The court denied defendant’s motion for a continuance but stated that defendant’s witness would be allowed to be available at trial. At this point in the proceedings, the court again noted that “defendant has been afforded the opportunity on many occasions to have counsel available for her defense. Defendant has consistently refused.” Joint Appendix at 72.
On June 2, the first day of trial, the government requested that the court make a finding on the record of waiver of counsel by defendant. The government stated that it was concerned that the record would not indicate waiver. It was particularly worried about the statement in defendant’s motion for continuance that defendant needed an expert summary witness present because she was forced to proceed pro se. At this point, Mr. Cleary testified regarding what had happened when he tried to assist defendant. The following interchange between defendant and the court then took place:
THE COURT: Ms. Grosshans, is it still your desire to represent yourself in this case?
MS. GROSSHANS: Your Honor, under the circumstances, since I have been refused counsel of my choice, I have no other choice but to represent myself because I have not found an attorney who can defend inalienable rights.
THE COURT: Well, I can hardly make somebody represent you. There is certainly no rhyme or reason why you should have someone forced upon you that you do not desire to have represent you.
You have asked at an earlier point in these proceedings to have a non-lawyer represent you. You absolutely do not have a right to have a non-lawyer represent you and the Court will not permit it and that is the end of the discussion. MS. GROSSHANS: I object to that, your Honor.
THE COURT: And so as I understand it, then, ... the position in which I find myself is that you have the right to proceed to represent yourself and you are prepared to do so here today.
It is my duty to make a determination that your waiver of counsel is knowingly made and voluntarily made. I am satisfied that it is; that there is no question in my mind from my association with you over the past few months and you appear to be mentally competent to make the decision to appear pro se.
We have had discussions earlier about the disadvantage of self-representation have we not?
MS. GROSSHANS: Yes.
Joint Appendix at 260-61. The court noted again that it had tried to get defendant to accept counsel and she had repeatedly refused. It stated that Mr. Cleary was a very experienced trial lawyer and that the court could appoint him to assist her in the trial, even if she insisted on representing herself. The court finally stressed that Mr. Cleary would be more aware of the possible defenses to the charges and the procedural aspects of the case. Defendant again stated that she wanted only counsel of her choice, a non-lawyer.
The evidence at trial indicated that defendant had worked for the United States Postal Service and that her wages during the tax years in question ranged from $15,-838.43 to $27,378.86. Before 1980, defendant had filed income tax returns and paid her federal taxes. Beginning in 1980, defendant declared herself exempt from withholding and failed to file an income tax return. She continued to make substantial wages and owed taxes for each year from 1980 to 1984. Defendant asserted at trial that she believed that wages were not income and that filing a tax return was a form of compelled self-incrimination. On June 23,1986, the jury convicted defendant of five counts of tax evasion. On August 7, the District Court sentenced defendant to five years imprisonment, five years probation, and a fine of $25,000. Defendant appeals this conviction.
I.
This Court recently addressed “the question of the type of record necessary to establish a defendant’s waiver of counsel is knowing and intelligent.” United States v. McDowell, 814 F.2d 245, 249 (6th Cir.1987). The record must show “that an accused was offered counsel but intelligently and understanding rejected the offer.” Id. at 248 (quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962)). It is impermissible to presume waiver from a silent record. The Court stressed the competing interests underlying the right to counsel and the right to self-representation:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forego [sic] those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
Id. at 249 (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)). This Court held that, based on a reading of the record as a whole, the defendant waived his right to counsel with his “eyes open.” It particularly stressed the findings that the defendant was “not a stranger to the courts, [ ] knew he was entitled to counsel, and [ ] was not faced with a situation of enduring representation by counsel he considered ineffective or being forced to proceed immediately on his own.” Id. at 249.
In the case before this Court, defendant claims that this Court cannot infer a knowing and voluntary waiver of her right to counsel because the record is silent. She also alleges that she was forced to choose between proceeding with incompetent counsel and proceeding pro se. In fact, there are several interchanges between the District Court and defendant on the record regarding her waiver of counsel. At each of the proceedings before a federal magistrate, defendant appeared without counsel. The magistrate informed her of her right to counsel, at one proceeding instructed her to contact the Federal Defenders Office, and adjourned the proceeding to allow her time to retain an attorney. Concerning her motion for representation by a layperson, the court informed defendant that she was not entitled to such representation and appointed a member of the Federal Defenders office. When defendant informed the appointed attorney that she desired to represent herself, the court asked defendant if this was the case before allowing the attorney to withdraw. The court repeatedly attempted to convince defendant to retain an attorney or to allow an attorney to assist her at trial. Finally, at the hearing conducted on the morning of trial, the court found on the record that defendant had refused for several months to obtain an attorney, that she was well aware of her rights regarding representation, that she knew of the disadvantages of self-representation, and that she nevertheless intended to represent herself. We find that the record supports the District Court’s finding that defendant knowingly and voluntarily waived her right to counsel and elected to proceed pro se.
Defendant’s argument that she was forced to choose between proceeding with incompetent counsel or proceeding pro se is without merit. The attorney referred to the case by the Federal Defenders Office was an experienced criminal trial attorney. He had not tried a case involving a tax protester, but as the court pointed out, few attorneys have tried such a case. His lack of experience in tax protester cases did not render him incompetent to represent defendant. Defendant apparently objected to Mr. Cleary because he did not share her beliefs regarding the legality of the tax system. Defendant does not, however, have a right to counsel who shares her political beliefs. See United States v. Udey, 748 F.2d 1231, 1242-43 (8th Cir.1984) (holding that the right to counsel does not imply the right to counsel who shares beliefs about the tax laws), cert. denied, 472 U.S. 1017, 105 S.Ct. 3477, 87 L.Ed.2d 613 (1985). Defendant was not in a position of being forced to represent herself because her appointed attorney was not competent to represent her.
II.
Defendant also argues on appeal that the District Court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), which provides in relevant part that “[ujnless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.” Defendant claims that there was no appearance by counsel nor did she ever expressly waive her right to counsel. She thus concludes that the thirty-day period provided for by section 3161(c)(2) was never triggered in her case and the court violated the Speedy Trial Act by commencing trial when it did.
In support of her argument that section 3161(c)(2) requires an express waiver of the right to counsel, defendant relies on a decision of the Fourth Circuit in which the court held that:
From the record and the findings of the district court, it is clear that there was in effect a waiver of the right to counsel by implication from the acts or failure to act of the defendants. However, the clear language of the statute requires an express waiver. To have an express waiver, there must be a voluntary, intentional relinquishment of a known right.
The present record will not support a finding of an express waiver by the defendants, and the trial judge did not find that there was an express waiver. Without such a finding and without an appearance through counsel, the thirty-day limitation contained in (c)(2) never began to run.
United States v. Wright, 797 F.2d 171, 175 (4th Cir.1986). The court found error warranting a new trial. Id. at 176. The court did recognize, however, the problem with its position. It noted that “[t]his is a difficult decision because the trial judge recognized that the defendants were intentionally trying to disrupt the calendar of the court, and if possible, to create error in the process.” Id. at 176. The court decided that when a trial court is faced with a defendant who refuses to either retain or expressly waive counsel, the court must
bring such defendant into court and make a finding on the record that the actions or lack of actions of the defendant are the voluntary and intentional relinquishment of his known right to be represented by an attorney____ The trial judge should then set a date for trial not less than thirty days in the future, and he should advise the defendant that his trial will commence on that date whether he is represented by an attorney or whether he appears pro se.
Id. at 176.
Although we hold that the record supports the District Court’s finding that defendant knowingly and intelligently waived her right to counsel, we are unable to find that defendant expressly waived the right more than thirty days prior to the commencement of trial. In fact, we do not know whether the District Court could have obtained an express waiver in view of defendant’s demand for representation by a layperson. We are also unable to determine from the record when Mr. Cleary began his representation of defendant. Although the May 12 meeting might be construed as an appearance through counsel, it did not take place thirty days before the commencement of trial. Because there was neither an express waiver nor an appearance through counsel more than thirty days earlier, we conclude that in commencing trial when it did, the District Court failed to comply with the Speedy Trial Act. We also hold, however, that the sanction of a new trial is not appropriate in the case before us.
Section 3161(c)(2) of the Speedy Trial Act was passed to address the concern that a defendant be allowed sufficient time to prepare for trial. The Speedy Trial Act does not provide a specific sanction for violations of this provision’s time requirements as it does for violations of other time provisions. We hold that, in light of Congress’ failure to provide a sanction and the purpose of section 3161(c)(2), defendant must demonstrate that she was prejudiced by the untimely commencement of trial in order to obtain a new trial. Cf. United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir.1985) (holding that a defendant must show prejudice in order to win reversal of a conviction for a violation of section 3161(j)). Defendant has not met this burden. She did not raise the Speedy Trial Act claim before the District Court. The Court of Appeals for the Eighth Circuit has held that where a defendant failed to raise the claim of violation of the thirty-day requirement at the trial level the defendant effectively waived the right to raise it on appeal. See United States v. Ferguson, 776 F.2d 217, 221-22 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). We agree. Had defendant raised the statutory violation, there is no reason to believe that the District Court would not have corrected any error. Defendant had several months in which to prepare her case. The pretrial proceedings and the trial itself were repeatedly postponed due to her refusal to obtain an attorney and her insistence on representation by a layperson. Finally, defendant has not claimed that she was in any way prejudiced by the commencement of trial on June 2. We hold that a new trial is not required in this case because there is no indication of prejudice.
III.
Defendant finally claims that the evidence of prior acts and wrongs allegedly committed by defendant was inadmissible because it was more prejudicial to defendant than probative. The evidence that she claims was inadmissible was evidence that she had attended “tax protestor” meetings and that she had attempted to satisfy financial obligations with two “Public Office Money Certificates.” Defendant claims that this evidence was admitted to prove propensity to commit the crimes with which she was charged, not to prove intent as the government claimed.
Defendant must establish that the admission of the evidence was plain error because she failed to object at the time of admission. Fed.R.Crim.P. 52(b). We find that it was not error for the District Court to admit the evidence. To prove tax evasion under 26 U.S.C. § 7201, the government must prove willfulness, or a specific intent to disregard a known legal duty. The government introduced the evidence to demonstrate willfulness on the part of defendant. We agree that defendant’s prior actions tend to demonstrate that she knew what she was doing and knew that she had an obligation to pay taxes.
IV.
We find that the record supports a knowing and voluntary waiver by defendant of her right to counsel. We also find that the record does not contain an express waiver of that right made more than thirty days prior to the commencement of trial as required by the Speedy Trial Act. We hold, however, that defendant did not prove that she was prejudiced by the commencement of trial on June 2 and is therefore not entitled to a new trial. Finally, we hold that the District Court did not err in admitting evidence of defendant’s prior acts to prove intent.
Accordingly, the judgment of the District Court is affirmed.
. The McDowell Court invoked its supervisory powers to set out a model inquiry to be made on the record in future cases involving a waiver of counsel. McDowell, at 249-50.
. In fact, during this period, defendant filed pro se at least twelve motions with supporting briefs, including a "Notice and Demand for Dismissal for Lack of Jurisdiction,” "Motion to Dismiss Indictment As There Is No Tax ‘Due and Owing,’ ” and "Motion for Order of Disclosure of Transcript of Grand Jury Proceedings."
. For example, section 3162(a)(1) requires dismissal of pending charges if the arrest-to-indictment time limit specified in section 3161(b) is violated. Section 3162(a)(2) requires dismissal of an indictment when a defendant is not brought to trial within the period established by section 3161(c)(1).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
songer_circuit
|
L
|
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.
CENTER FOR AUTO SAFETY, et al., Appellants, v. Elizabeth H. DOLE, Secretary, Department of Transportation, et al.
No. 86-5436.
United States Court of Appeals, District of Columbia Circuit.
Argued April 7, 1987.
Decided May 24, 1988.
Howard A. Heffron, with whom Clarence M. Ditlow III, Mary H. Dunlap and Evan W. Johnson, Washington, D.C., were on the brief for appellants. Messrs. Heffron, Dit-low and Johnson were on the supplemental brief on rehearing.
David W. Allen, Asst. Chief Counsel, Nat. Highway Traffic Safety Admin., Richard K. Willard, Asst. Atty. Gen. at the time of filing, Douglas Letter, Appellate Litigation Counsel, Dept, of Justice, Erika Z. Jones, Chief Counsel, Enid Rubenstein and Eileen T. Leahy, Attys., Nat. Highway Traffic Safety Admin., Washington, D.C., were on the brief for appellees. James M. Spears, Acting Asst. Atty. Gen., Allen, Letter and Jeffrey Clair, Atty., U.S. Dept, of Justice, and Jones, Leahy “and Ruben-stein”, Washington, D.C., were on the petition for rehearing and the supplemental brief on rehearing.
Before WALD, Chief Judge, MIKVA and EDWARDS, Circuit Judges.
Circuit Judge Edwards was randomly selected as a member of this panel following Judge Bork’s resignation from the Court.
Opinion PER CURIAM.
Dissenting opinion filed by Chief Judge WALD.
PER CURIAM:
This case concerns the reviewability of the Secretary of Transportation’s decision (through the Administrator of the National Highway Traffic Safety Administration) (“NHTSA”) not to reopen an investigation into alleged safety defects in Ford automobiles built between 1966 and 1979. The relevant statute provides that “[a]ny interested person may file with the Secretary a petition requesting [her]” to commence an investigation. 15 U.S.C. § 1410a(a) (1982). The NHTSA regulations direct the agency to grant the petition if, after a “technical review,” it finds that “there is a reasonable possibility that the requested order will be issued at the conclusion of the appropriate proceeding.” 49 C.F.R. §§ 552.6 and 552.8 (1987).
The case was originally decided by a sharply divided panel. The court reversed the decision of the district court denying and limiting review of the NHTSA’s order, and held that appellants were entitled to plenary review of the administrative decision. The majority concluded that the court should scrutinize “not merely the statement of reasons given by the Administrator, but the evidence compiled in the ‘technical review’ on which the agency relies in making its decision.” Center for Auto Safety v. Dole, 828 F.2d 799, 801 (D.C. Cir.1987). Judge Bork, who subsequently resigned from this court, dissented. While explaining his view that Congress intended to entirely preclude review of denials of citizen petitions, he rested on his conclusion that the scope of review should be limited to an examination of the agency’s statement of reasons.
NHTSA petitioned for rehearing by the panel. The panel, with another member replacing Judge Bork, agreed to reconsider the decision. The parties submitted requested briefing on a discrete issue that was not a matter of dispute among the original panel members-whether the NHTSA regulation at issue permitted agency consideration of non-safety factors in deciding whether to grant a petition to investigate. We now hold that the agency’s applicable regulation-49 C.F.R. § 552.8-fails to provide the court with a judicially manageable standard that would enable us to review the agency’s decision.
I.
We have previously held that regulations promulgated by an administrative agency in carrying out its statutory mandate can provide standards for judicial review of agency action. Such self-imposed constraints may supply the “law to apply” under Heckler v. Chaney, 470 U.S. 821,105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), to overcome the presumption against reviewing administrative agency inaction, including nonenforcement decisions. See Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987); Robbins v. Reagan, 780 F.2d 37 D.C.Cir.1985). NHTSA has not persuaded us that these previous holdings should be reexamined. Just as Congress can provide the basis for judicial review of nonenforcement decisions by spelling out statutory factors to be measured by the courts, so an agency can provide such factors by regulation. When an agency chooses to so fetter its discretion, the presumption against reviewability recognized in Chaney must give way. The Supreme Court has never deviated from the position it set forth in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957):
“While it is of course true that under [the relevant statute] the Secretary was not obliged to impose upon himself these more rigorous substantive and procedural standards, neither was he prohibited from doing so, ... and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them.”
Id. at 388, ’ll S.Ct. at 1165. In Service the Court scrutinized a decision that violated a self-imposed regulatory limitation superimposed on a broad statutory grant of discretion. The Service decision makes plain that an intent to proscribe judicial review of agency adherence to its own legally binding standards should not be inferred from a statute conferring broad discretion. Rather, there must be a much more definitive expression of Congress’ intent to immunize an administrative decision otherwise amenable to review.
II.
We thus adhere to our previous views that the Motor Vehicle Safety Act* (“the Act”) does not operate to preclude judicial review in this case. See Center for Auto Safety v. Dole, 828 F.2d at 804-05. At the outset, we stress that there is nothing in the Act remotely resembling an express preclusion of review of decisions not to grant citizen petitions. Compelling legislative history or a law’s own structure may manifest a Congressional intent to deny review when the statute itself is silent < on the matter. See Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). But appellees have pointed to no “clear and convincing’’^ evidence, see Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986), that Congress meant to take this unusual step with this Act.
The foregoing analysis, however, does not carry the day for appellants’ request for this court’s review. Other considerations bear on whether, notwithstanding the presumption of reviewability of agency compliance with legally binding regulations, this court may review the NHTSA’s decision to deny the citizen petition in this case. The rebriefing has persuaded us that the regulation to which appellants refer us for “law to apply” does not limit the agency’s discretion in a way that enables us to conduct a meaningful review of the agency’s compliance. While safety is an indispensable element of the decision not to investigate, NHTSA can and does consider such “nonsafety” factors as its available resources, enforcement priorities, the likelihood of uncovering sufficient evidence to establish the existence of a defect, and the prospect of ultimately succeeding in any necessary enforcement litigation. The regulation sub judice provides the court no way to second-guess the weight or priority to be assigned these elements. In particular, it would be unwise, and inconsistent with the broad mandate of the agency under the governing statute, to infer a mandatory allocation of the agency’s limited resources from the regulation at issue. We must thus conclude that NHTSA’s decision governed by this regulation is not reviewable.
III.
We find no need to further address the difficulties this Court previously encountered in delimiting the depth and scope of our review of the agency’s refusal to investigate. The earlier opinions in this case labored long and hard to determine whether the court’s review was confined solely to the reasons expressed by the agency or whether the whole administrative record was to be considered. The perplexities of whether and how to apply the teachings of Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), which divided the original panel in this case, are not relevant to our decision not to review.
The petition for rehearing is granted. The earlier decision of this court is vacated. For the reasons stated above the order of the district court denying review is affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO, LOCAL 31 and National. Association of Broadcast Employees and Technicians, AFL-CIO, Respondents.
No. 78-2045.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 15, 1979.
Decided July 23, 1980.
Jesse T. Etelson, Atty., N.L.R.B., a member of the Bar of the Supreme Court of New York, pro hac vice, by special leave of Court, Washington, D.C., John S. Irving, Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., were on brief, for petitioner.
Robert Kruger, Roger H. Madon, New York City, was on brief, for respondents.
Before McGOWAN and MacKINNON, Circuit Judges, and PRATT, United States District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinion for the Court filed by Circuit Judge MacKINNON.'
MacKINNON, Circuit Judge.
The National Labor Relations Board [NLRB or Board] found that various picketing and handbilling activities of the Local 81, National Association of Broadcast Employees and Technicians, AFL-CIO [Local 31], and the National Association of Broadcast Employees and Technicians, AFL-CIO [International] constituted unfair labor practices under § 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(i) and (ii)(B) (1976). The Board issued a cease and desist order, and required designated affirmative action. The case is before this Court upon the application of the NLRB pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1976) for enforcement of its order.
I.
Local 31 is the bargaining representative of ABC’s Washington News Bureau’s technicians, who operate electronic equipment in connection with ABC’s remote news “pickups” in the Washington area for radio and television broadcasts. The International is Local 31’s parent body. Recent bargaining negotiations were conducted on a nationwide basis by a negotiating committee consisting of a representative from Local 31 and from each of four other affiliated locals that similarly represent technicians at ABC’s facilities in other United States’ cities. Edward Lynch, the President of the International served as the coordinator and chief spokesman during the negotiations. The Committee called for a strike and economic action against ABC’s news coverage in Washington, D.C. on May 16,1977. It was arranged that the International would be the go-between for ABC and Local 31 for information as to where and when ABC would be covering news events for purposes of picketing. The International was also to outline the rules applicable to picketing at the various locations.
ABC adopted a plan whereby it would set up reserved gates at the news locations for ABC employees usage only. Neutral individuals were to enter other posted entrances at the locations. ABC would also inform the union of these gates. Signs at the reserved gate read;
This entrance is reserved for the employees of the American Broadcasting Company, its lessors-, subcontractors and vendors. All such persons working for, or doing business with the American Broadcasting Company must enter through this entrance only. This entrance is not to be used by anyone other than the above named persons.
The signs at the neutral gates read:
This entrance is not to be used by the employees of the American Broadcasting Company, its lessors, subcontractors and vendors. All such persons working for, or doing business with the American Broadcasting Company must enter only through the entrance specifically reserved for their use.
President Lynch notified ABC that it was the International’s position that the reserved gate procedure should not apply to news coverage at locations other than at news stations.
This case concerns picketing and handbill-ing away from ABC’s news stations at three separate events and locations: 1) coverage of Vice President Mondale’s speech at the Hyatt Regency Hotel in Washington; 2) coverage of Secretary of Transportation Brock Adams’ speech at the Mayflower Hotel in Washington; and 3) a speech made by Senator Edward Kennedy at the International Inn in Washington that ABC did not cover. The activity at each hotel will be discussed in detail.
A.
Hyatt Regency Hotel Activities
The day before Vice President Mondale was to speak at the Hyatt Regency, Kevin Delany, ABC’s Assistant Washington Bureau Chief and Director of Television News informed the hotel’s banquet manager of the strike and discussed with her the separate entrance plan. The Hyatt designated a side entrance that led into the ballroom where the speech would be held as a reserved gate for ABC employees. Delany then informed the International of the arrangements, concluding that ABC expected any picketing would be confined to the ABC reserved gate. International President Lynch passed this information on to Local 31.
The following morning Delany and Hyatt’s assistant banquet manager posted the entrance reserved for ABC. They also designated by posting as neutral entrances, barred to ABC personnel, the main hotel entrance on New Jersey Avenue and a nearby VIP entrance. There is no evidence that ABC personnel used any door but the reserved gate. However, neither ABC nor the union policed the entrances.
ABC striking employees commenced picketing their reserved gate at approximately 11:00 or 11:15 that same morning. One union member passed out handbills in front of the neutral main entrance to the Hyatt to anyone entering the hotel. The handbill had been prepared by President Lynch of the International and given to Local 31 for distribution. Lynch’s reasoning was that the handbills would counteract the fact that the reserved gate for ABC was away from the public eye. Neither the picket signs nor the handbills specifically addressed the speech being covered by ABC, and numerous functions were being held in the hotel.
Because of the union activity at the Hyatt, none of the CBS employees also present to cover the Mondale speech would enter the hotel, causing CBS to lose television and radio coverage of the event. Pursuant to a phone call from the hotel’s banquet manager, ABC’s Delany returned to the site and observed the handbilling at the main entrance. He entered the neutral main entrance to call his ABC superior, whereupon the union commenced picketing the main entrances in front of the hotel.
B.
Mayflower Hotel Activities
The circumstances of the union activity at this hotel were similar to those at the Hyatt. ABC decided to give television coverage to the speech Secretary of Transportation Brock Adams was scheduled to deliver at the Mayflower on June 16,1977. Kevin Delany arranged with the hotel’s Director of Security for the establishment of a reserved gate for exclusive use by ABC personnel. The Director of Security suggested a side entrance to the hotel that was also used as the entrance to the apartments in the hotel. They considered this entrance to be the least obstructive and obtrusive to Mayflower’s operations. Delany again informed International’s President Lynch, who explained the arrangements to Local 31. On the day of the speech, Delany and the Mayflower Director of Security posted the signs specifying the reserved gate, and then posted the neutral entrances at the main door and two other entrances. A number of entrances to the hotel were left unmarked.
Later that morning, ABC’s Delany observed union members picketing in front of the hotel’s main entrance, and in front of one of the unposted entrances, in addition to the ABC reserved gate. The signs were the same as those used in the Hyatt picketing. The evidence before the Administrative Law Judge at the Board hearing showed that the ABC employees used the reserved gate, along with other individuals. Once again, neither ABC nor the union policed the gates. One ABC employee testified that prior to the day presently in question he had used the main entrance on work assignments, and had never used the entrance presently posted as the reserved gate.
c.
International Inn Activities
ABC decided not to cover Senator Edward Kennedy’s speech scheduled for June 16, 1977, so no notice about the event was sent to the International. Nonetheless, Local 31 picketed the hotel, which resulted in a CBS employee delaying his entrance into the hotel.
II
The facts as described above are undisputed, and were adopted by the NLRB from the Administrative Law Judge’s opinion. The Board noted that § 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act are designed to cover secondary boycott activities. It applied the four tests of Sailors’ Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950) and the reserved gate doctrine from Local 761, International Union of Electrical Workers (General Electric Co.) v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961) to conclude that the object of the Hyatt Regency Hotel handbilling was to reach employers and persons other than ABC in order to force them not to enter or patronize the hotel. The activity was merely an extension and integral part of the picketing at the ABC reserved gate. Recipients of the handbills and observers of the picketing were unable to determine what event was being boycotted.
The Board did not consider the union’s disclaimer at the bottom of the handbill to be a serious plea by the union to persuade the public or other companies not to get involved. Since the handbilling was an extension of the picketing to the main entrance, and since it was intended thereby to bring economic pressure on the Hyatt Re-geney Hotel, CBS and others, to enmesh these neutrals in the union’s dispute with ABC, it constituted secondary activity in violation of the Act. The Board also held that the union’s activity was not protected consumer publicity. Finally, it held that the situs of the activity was not “primary”, which could have afforded the union more liberal picketing. Even though news broadcasting by its very nature involves roving assignments, the Board held that secondary activity at a common situs was involved and the union’s action was to be tested by the criteria enunciated in Moore Dry Dock, supra.
The Board applied its reasoning regarding the union’s attempt to enmesh neutrals in the union’s dispute with ABC with equal force to the picketing of neutral or unpost-ed gates at the Mayflower Hotel and found unpersuasive the union’s arguments that the gates were not proper “reserved gates” because some neutrals may have used them, or because they may never have been used before by ABC. No evidence was shown that ABC personnel used any entrance but the reserved gates on the days of the speeches. Thus the picketing, like the handbilling, constituted a violation of § 8(b)(4)(i) and (ii)(B).
Finally, the Board found, since ABC was not even covering the speech in question, that the union’s picketing at the International Inn was a blatant violation of § 8(b)(4)(i) and (ii)(B).
For all of the union activities described above, the Board held that both Local 31 and the International were liable in that their conduct was closely intertwined.
III.
The Supreme Court and this Court have emphasized that it is a primary function and responsibility of the Board “to resolve the conflicting interests that Congress has recognized in its labor legislation.” NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960); Retail Store Employees Union, Local 1001 v. NLRB, 627 F.2d 1133 at 1147 (D.C.Cir. 1979) (en banc) rev’d on other grounds, NLRB v. Retail Store Employees Union, - U.S. -, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980). For this reason, courts are to give deference to the Board’s statutory construction. NLRB v. Local 103, International Association of Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978). With these principles in mind, we affirm the Board’s decision in this case.
IV.
The first issue to be determined is whether the hotels were a primary or secondary situs for ABC employees on the day of the speeches. Generally speaking, union picketing occurring at the primary employer’s premises and seeking only the disruption of its normal operation is considered primary and thus protected activity, whereas picketing extending beyond the premises of the primary employer to those of a neutral employer and designed to disrupt the latter’s operations is secondary and prohibited. Compare NLRB v. International Rice Milling Co., 341 U.S. 665, 671, 71 S.Ct. 961, 964, 95 L.Ed. 1277 (1951), with NLRB v. United Brotherhood of Carpenters, 184 F.2d 60 (10th Cir. 1950), cert. denied, 341 U.S. 947, 71 S.Ct. 1011, 95 L.Ed. 1371.
Initial logic would lead to the conclusion that the hotels were not the primary situs for ABC. However, the union argues that traditional notions of situs should not apply to the broadcasting industry. Since news coverage is one of ABC’s main businesses, and since its employees who cover news events must travel to gather the news, the company does have a number of temporary situses that are ambulatory. In many instances, contrary to most industrial or construction site settings, there are no such things as entrances or gates to a situs for news coverage, i. e. fires, streetside crimes, parades, demonstrations. The coverage is often a one time event of short duration. Thus, the union maintains that since ABC’s primary business is conducted at these sites, each location should be considered the primary situs of the employer for union activity. However, while news gathering is an important segment of television and radio, so is entertainment and education and advertising.
We conclude that broadcasting should not be treated differently under this section of the Act. Once the news reporters and technicians are away from the news station, they are away from their employer’s primary situs. Nothing in the legislative history indicates broadcasters should warrant special treatment. And, as noted in the Board’s opinion in this case, the very broad language used in describing unfair labor practices in § 8(b)(4)(i) and (ii)(B) indicates that no industry exclusion was contemplated. Thus, we hold that the hotels in this instance were a secondary situs for union activity.
The union relies heavily on Local 25, National Association of Broadcast Employees (Taft Broadcasting Co.), 194 N.L.R.B. 162 (1971) to support its argument that the news locations are primary situses. In that case, the Board held that live coverage of a hockey game from a broadcasting booth within a stadium was primary activity for the television personnel working in the booth. Once the “microphones, and the transmission lines were activated during the hockey games”, id. at 165, the booth became an extension of the television station. However, live coverage involves a much closer connection with a television station than conventional filming of news events. There is nothing in this record to indicate that ABC was furnishing instantaneous live coverage as in Taft Broadcasting. The Court reserves the question of the correctness of the Taft Broadcasting for a case where facts similar to it are directly before us.
Finally, we acknowledge that even had we concluded that the news locations were primary situses, the activity could have been transformed into prohibited secondary activity because of the union’s noncompliance with the reserved gates. Courts recognize the establishment of reserved gates either on the primary employer’s property, or on common situses. Once a reserved gate is set up, the Court then needs to evaluate the facts under the Moore Dry Dock guidelines, as we do in V.
V.
The second issue before this Court is whether the union picketing and handbill-ing was lawful primary activity, .or illegal secondary activity. In Local 761, International Union of Electrical Workers (General Electric Co.) v. NLRB, 366 U.S. 667, 673, 81 S.Ct. 1285, 1289, 6 L.Ed.2d 592 (1961), the Supreme Court remarked that “[important as is the distinction between legitimate ‘primary activity’ and banned ‘secondary activity’, it does not present a glaringly bright line.” The key factor is whether the union activity is aimed at the primary employer or whether it is also aimed at pressuring the secondary employer. We focus, therefore, upon the union's objective. NLRB v. International Rice Milling Co., 341 U.S. 665, 672, 71 S.Ct. 961, 964, 95 L.Ed. 1277 (1951); International Brotherhood of Electrical Workers, Local 480 v. NLRB, 413 F.2d 1085, 1089 (D.C.Cir.1969). To aid in this determination, the Board developed guidelines in Moore Dry Dock. Compliance with the guidelines raises a presumption of valid primary activity. General Electric Co., 366 U.S. at 677, 81 S.Ct. at 1291. However, extrinsic evidence may also be used to establish that picketing has a secondary objective. Id. Ultimately, the Court must look to the totality of the circumstances to determine whether the activity was lawful. Helgesen, Inc. v. International Assoc. of Bridge, Structurai & Ornamental Ironworkers, Local 498, 548 F.2d 175, 183 (7th Cir. 1977).
In Moore Dry Dock the Board attempted to protect neutral employers from the economic effects of boycotting activities by employees of other employers located at a common worksite. The guidelines aid in determining whether the union’s object was primary and lawful, or secondary and calculated to enmesh neutral employers and employees in the union’s dispute with the primary employer. The guidelines require that 1) the picketing be strictly limited to times when the situs of the dispute is located on the secondary employer’s premises, 2) at the time of the picketing the primary employer is engaged in his normal business at the situs, 3) the picketing is limited to places reasonably close to the location of the situs, and 4) the picketing disclose clearly that the dispute is with the primary employer. 92 N.L.R.B. at 549.
Under the first test, it is undisputed that the picketing at the Hyatt Regency Hotel and the Mayflower Hotel was limited to times when the situs of the dispute was located on the secondary employers’ premises. The ABC technicians only picketed and passed out handbills the morning of the scheduled speeches. It is also undisputed that the primary employer was engaged in his normal business of covering news events at the time of the picketing and handbill-ing. Concerning the picketing at the International Inn, we fully agree with the Board that the union activity was a violation of § 8(b)(4Xi) and (ii)(B), since the primary employer had no intention of covering the Kennedy speech, and was in fact not present. The Union does not contest this finding.
Compliance with the third criterion presents the problem. Under Moore Dry Dock, the picketing must be limited to places reasonably close to the location of the situs. The union had ample opportunity to picket at the reserved gate. The Supreme Court and this Court have upheld the use of reserved gates under most circumstances. Local 761, International Union of Electrical Workers (General Electric Co.) v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961); United Ass’n of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry v. NLRB, 416 F.2d 1120, 1125 (D.C.Cir.1969). At the Hyatt, the picketing extended beyond the ABC reserved gate in the form of the hand-billing activity in front of the main entrance. The handbills specifically addressed the picketing in progress at the reserved gate, and offered the assistance of the union members to show the recipient the picketing. The handbills appealed to the recipient not to enter the hotel, without ever addressing the event being boycotted. We affirm the Board’s finding that the hand-billing was an extension of the picketing which was lawful at the reserved gate. However, since the handbilling was conducted away from the reserved gate and thus away from the situs that was lawful for primary activity, the union failed to comply with the third criteria of Moore Dry Dock. By its picketing at the Mayflower Hotel it also failed to comply. Very specific reserved gates had been established, but the union instead chose to picket at neutral and unposted entrances.
The union argues that the reserved gates were improper because they were at a distance from thé main entrance and were otherwise tainted. However, there is no basis for such claims. Since the objective of the picketing is to reach the ABC employer and employees it is irrelevant that the reserved gates were located away from the main entrance of the hotel. The fact that the employees of ABC may never have used these gates before is also irrelevant, since they had ample warning of the location of the gates that they were to use, and there is no evidence of employee confusion. Again, because there is no evidence of misuse of the entrances or confusion, and because of the ample warning, it is irrelevant that some of the entrances at the Mayflower were unmarked. Further, if neutral individuals had entered the reserved gate, as the union claims happened, this would not taint the reserved gate. Their use of such entrance would in fact help the union, which was purportedly trying to publicize the dispute. Finally, the fact that the gates were not policed is also irrelevant in the absence of evidence to show that ABC employees entered the neutral gates. Therefore, the establishment and use of the reserved gates in this case was proper and untainted.
The last test of Moore Dry Dock, whether the picketing discloses clearly that the dispute is with the primary employer, was also not met by the union in its activities at either the Hyatt or the Mayflower. Although the signs and handbills specified that the strike was against ABC, they urged individuals not to enter the hotel in its entirety. In addition, the union did not describe the event being covered by ABC, or where it was being held in the hotel. This failure to designate the event, and calling instead for a blanket boycott of the hotel, also supports the conclusion that under the totality of the circumstances test the union had a secondary objective. Indeed, they were trying to “induce or encourage” individuals other than ABC employees not to enter the hotels.
Therefore we conclude that the designation and use of the reserved gates were proper in the instant case. ABC management did all it was required to do, with the assistance of the hotel management, to properly post the gates, and to inform the union of times and places. Yet, the union disregarded these arrangements, and purposefully picketed and handbilled the entire hotel in order to influence neutral individuals not to enter the hotel. These actions constitute unlawful secondary boycotts in clear violation of § 8(b)(4)(i) and (ii)(B).
VI.
The union also maintains that its activity was lawful because it was advising the public concerning a product of an employer with whom the union had a primary dispute. The NLRA exempts such publicity, other than picketing, from the secondary boycott prohibitions under 29 U.S.C. § 158(b)(4). Thus, the union attempts to persuade this Court that the handbilling activity at the Hyatt Regency Hotel constituted lawful consumer publicity.
Consumer activity was evaluated and upheld by the Supreme Court in NLRB v. Fruit & Vegetable Packers Local 700 (Tree Fruits), 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964) and recently by this Court in Retail Store Employees Union, Local 1001 v. NLRB, 627 F.2d 1133 (1979) (en banc), rev’d on other grounds, NLRB v. Retail Store Employees Union, - U.S. -, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980). Although it is conceivable that ABC’s work could be considered a product capable of being the subject of consumer picketing, see Great Western Broadcasting Corp. v. NLRB, 356 F.2d 434 (9th Cir. 1966), Tree Fruits and Retail Store Employees preclude classification of the handbilling as such in this case. Contrary to the activity in Tree Fruits, the handbilling here was not meant to persuade customers of the hotel not to “buy”, “use” or “go to” the struck “product”. Instead, it appealed to all individuals not to enter the hotels.
When consumer picketing is employed only to persuade customers not to buy the struck product, the union’s appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer’s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally. In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer.
377 U.S. at 72, 84 S.Ct. at 1071. We conclude that the union’s dispute with ABC overflowed to the point of creating a separate dispute with the hotels.
VII.
The final issue is whether the International union should be held responsible for the prohibited secondary activities of Local 31. We hold that it should. It was involved in contract negotiations between the local and ABC, the local union is financially dependent on the International, the International administers a strike fund in which the local participates, the International informed the local of the picketing rules, its President informed ABC that it objected to the use of reserved gates in these instances, it drafted the handbills that specified that both the International and the local were on strike with ABC, its officials observed the picketing, and most importantly, it acted as a go-between with ABC and the local as to locations and times and gates at the hotels. This is simply too much involvement for the International now to say that it did not participate and should be shielded from responsibility.
For these reasons, we grant the Board’s application to enforce its order against Local 31 and the International.
Judgment accordingly.
. The applicable statutes provide:
(b) It shall be an unfair labor practice for a labor organization or its agents- .
(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is-
* * * * * *
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, 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;
* ⅜⅞ ⅝! * * *
Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution;
. The Board’s decision and order are reported at National Association of Broadcast Employees and Technicians, AFL-CIO, Local 31, 237 N.L.R.B. No. 222 (1978).
. Delany entered the main entrance of the hotel after observing the allegedly illegal handbilling in front of the hotel. All parties agree that this action tainted the reserved gate process. However, the challenge in this action addresses the activities of the union prior to Delany’s entrance at the neutral gate.
. The two kinds of picket signs read:
a) NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES &
TECHNICIANS ON STRIKE against
ABC
NABET, Local 31, AFL-CIO
b) NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES &
TECHNICIANS
ABC
UNFAIR
to
EMPLOYEES
NABET, Local 31, AFL-CIO
.These handbills read:
PLEASE DO NOT ENTER ! !
THIS EVENT IS APPEARING ON UNFAIR
ABC TELEVISION
NABET AFL-CIO is on STRIKE against ABC. NABET Local 31 Pickets have been Banished to the back alley, or, around the corner; out of sight. The person distributing this handbill can show you where NABET AFL-CIO is PICKETING ABC’s broadcast of THIS EVENT.
PLEASE DO NOT ENTER !!
This handbill is addressed exclusively to the individual members of the public and is not an appeal to employees to refuse to perform any service nor is it an appeal to other Companies to refuse to perform any service.
. The Supreme Court summarized these criteria as follows:
(1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer.
Local 761, International Union of Electrical Workers v. NLRB, 366 U.S. 667, 677, 81 S.Ct. 1285, 1291, 6 L.Ed.2d 592 (1961). If these four criteria are met, the union activity is held to be presumptively valid primary activity.
. See footnote 5 supra.
. See Section VI infra.
. Such activity is protected under the proviso of § 8(b)(4). Meter v. General Drivers Local 120, 329 F.Supp. 1348, 1352 (D.Minn.1971).
. The presence of reserved gates in the instant case also serves as a reason to distinguish this case from Taft Broadcasting, where there were none. The Board in the instant case used this distinction as a means of getting around Taft Broadcasting. It stated that “[wjhile there are some favorable statements made by the Trial Examiner in his decision adopted by the Board without comment, that case did not involve a ‘reserved gate’ and the picketing actually complied with Moore Dry Dock standards except for a short period of time.” 237 N.L.R.B. No. 222 at 15 n.29.
. In the General Electric case, the Court approved the use of reserved gates as long as the neutral individuals using the reserved gates are not entering to perform tasks related to the normal operations of the struck employer. 366 U.S. at 680-81, 81 S.Ct. at 1293. Since the task of those neutral individuals entering the hotel was unconnected with the normal operations of ABC, this caveat is inapplicable.
Various cases hold that if the neutral employees using the neutral reserved gate are making deliveries needed in the day-to-day operations of the primary employer, then picketing of these gates is considered primary activity. United Steelworkers v. NLRB (Carrier Corp.), 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964); Linbeck Const. Corp. v. NLRB, 550 F.2d 311 (5th Cir. 1977).
. See note 1, supra.
. This Court restated the Tree Fruits test:
The test of “threaten[ingj, coercfing], or restrain [ing]” which we thus distill from Tree Fruits is whether the challenged picketing confines its appeal to the struck product in order to reduce the primary employer’s market therefore, or whether the picketing projects its force beyond these boundaries.
Retail Store Employees Union, Local 1001 v. NLRB, 627 F.2d 1133 at 1144-1145 (1979) (en banc), rev’d on other grounds, - U.S. -, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980).
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Almon Boyd SMITH, Appellant, v. UNITED STATES of America, Appellee.
No. 18714.
United States Court of Appeals Eighth Circuit.
Nov. 13, 1967.
Asa A. Christensen, Lincoln, Neb., for appellant.
Duane L. Nelson, Asst. U. S. Atty., Omaha, Neb., for appellee, Theodore L. Richling, U. S. Atty., on the brief.
Before VOGEL, Chief Judge, and GIBSON and LAY, Circuit Judges.
LAY, Circuit Judge.
Appellant was convicted by a jury under the Dyer Act, Tit. 18 U.S.C. § 2312, on two separate counts of interstate transportation of a stolen motor vehicle. He brings this appeal on two grounds. First challenged is the sufficiency of the evidence to sustain the requisite intent to commit a violation of the Act under either count; secondly, appellant suggests error in the trial court’s refusal to admit certain conversations relating to his intent to steal. We affirm.
On the two occasions charged, appellant obtained automobiles from rental car agencies. On April 14,1966, he rented a vehicle in Bridgeport, Connecticut, and then after abandoning this car in Chadron, Nebraska, on April 27, 1966, he secured a vehicle in Chadron from another rental agency. He was arrested in Long Beach, California, on June 7, 1966, in possession of the latter car. In the first instance, he gave a check at a time when his account contained insufficient funds to cover it, and in Chadron, he gave a bad check for a deposit on the rented car. Without belaboring the facts involved, in each instance appellant flagrantly violated the rental agreements, converting the car to his own use beyond any reasonable period of time. After being notified that the second car was turned in as stolen, he nevertheless continued to drive it across state lines and use it as his own.
Evidence of larceny by false pretenses has long been held by this circuit to be evidence of guilt under the Dyer Act. See Stewart v. United States, 151 F.2d 386 (8 Cir. 1945). And we have held that giving of an insufficient funds check to obtain a motor vehicle will substantiate a charge of stealing under this Act. Landwehr v. United States, 304 F.2d 217 (8 Cir. 1962). Appellant, however, argues that he did not intend to take the cars permanently. But whether he formed a specific intent to permanently deprive the owner of his property, or intended simply to deprive him for so long as it suited appellant’s purposes, is immaterial. Either form of guilt is sufficient. Schwab v. United States, 327 F. 2d 11, 14 (8 Cir. 1964). See also United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957).
Appellant is not the first to challenge the applicability of the Dyer Act to conversions of rental cars. See United States v. Jones, 340 F.2d 599 (4 Cir. 1965); Dixon v. United States, 295 F.2d 396 (8 Cir. 1961); United States v. Dillinger, 341 F.2d 696 (4 Cir. 1965); United States v. Welborn, 322 F.2d 910 (4 Cir. 1963); Jarvis v. United States, 312 F.2d 563 (9 Cir. 1963). In Blum v. United States, 348 F.2d 141, 144 (5 Cir. 1965), the rule is well stated:
“Where a person lawfully obtains possession of an automobile by a rental arrangement, and later forms an intention to convert it to his own use, and in furtherance of that intention transports it across a state boundary, a Dyer Act violation has occurred.”
Without setting forth the detailed facts, we have read the record and find sufficient evidence to support the jury’s finding of the requisite criminal intent necessary for conviction as to either count.
Secondly, complaint is made that the district count refused to admit evidence of a conversation between appellant and his mother. It is contended that the evidence was admissible as an exception to the hearsay rule, in that it showed “the state of mind” of appellant as negativing the requisite intent to steal either car. See United States v. Annunziato, 293 F.2d 373, 377 (2 Cir. 1961); McCormick, Evidence, § 228, pp. 465-67 (1954). To simply exclude the testimony as self-serving declarations made by the accused is not sufficient. See Wigmore, § 1732, pp. 103-05 (3d ed. 1940); cf. United States v. Matot, 146 F. 2d 197 (2 Cir. 1944). And it is generally recognized that a trial court has broad discretion in allowing testimony which discloses the “purpose, knowledge, or design of a particular person.” Glasser v. United States, 315 U.S. 60, 81, 62 S.Ct. 457, 470, 86 L.Ed. 680 (1942); Blodgett v. United States, 161 F.2d 47, 51 (8 Cir. 1947). However, here the mother’s proffered testimony out of the presence of the jury, was in essence that appellant wanted to take the car back if there were to be no difficulties involved in doing it. This conversation, made some five weeks after he abandoned the first car and after he was told that the second car was reported as stolen, can hardly negative intent to convert after the conversion has taken place. In exercising his discretion, the trial court must weigh the probative value of the evidence, and if it has none, there can be no abuse excluding the offer. An offer to return the goods after the theft has taken place demonstrates at the very most a possible change of heart in view of his obvious wrong. Statements relating to the “state of mind” of a person are seldom admissible where they “face backward” to past occurrences. Cf. Shepard v. United States, 290 U.S. 96, 103-106, 54 S.Ct. 22, 78 L. Ed. 196 (1933).
But assuming for the moment that the trial court erred in refusing the testimony, which we do not find, the exclusion could hardly be considered more than harmless error. See Fed.R.Crim.P. 52(a). The testimony offered by the mother was simply repetitious of what the head of the finance company had previously stated concerning appellant’s credulous offer to him to have his mother or himself return the car to Chadron. After this conversation, appellant took off for California, using the car for several days before he was apprehended. At the time of his arrest, he told the police that he had an agreement with the owner to lease the car.
Judgment affirmed.
. Under certain circumstances declarations to prove a state of mind, although uttered after the particular time involved, may be admissible when “the stream of consciousness has enough continuity so that we may expect to find the same characteristics for some distance up or down the current.” See Chaffee, Progress of the Law-Evidence, 1919-1922, 35 Harv.L.Rev. 428, 444. Compare United States v. Matot, 146 E.2d 197 (2 Cir. 1944).
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_appel1_1_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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".
CLEVELAND TELEVISION CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Channel 19, Inc., Intervenor.
No. 83-1659.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 24, 1984.
Decided April 20, 1984.
David G. Rozzelle, Washington, D.C., with whom Robert L. Heald, Robert J. Rawson and Patricia A. Mahoney, Washington, D.C., were on brief, for appellant.
Sue Ann Preskill, Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for appellee.
David D. Oxenford, Jr., Washington, D.C., with whom Ben C. Fisher and Samuel Miller, Washington, D.C., were on brief, for intervenor.
Before WALD and MIKVA, Circuit Judges, and VAN DUSEN, Senior Circuit Judge for the United States Court of Appeals for the Third Circuit.
Opinion for the Court filed by Circuit Judge WALD.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
WALD, Circuit Judge.
Cleveland Television Corporation (CTC) challenges a Federal Communications Commission (FCC or Commission) decision to deny CTC’s application for a construction permit to establish a new UHF television broadcast station in the Cleveland, Ohio area, while granting the competing and mutually exclusive application of Channel 19, an intervenor in this appeal. CTC believes that it should have been granted the FCC permit because one group of Channel 19’s principal owners — the so-called “Malrite group” — also owns two radio stations in the Cleveland area as well as numerous other broadcast and cable stations elsewhere in the United States. CTC contends that the Channel 19 application should have been (1) disqualified under the FCC’s multiple ownership rule, (2) disqualified under the FCC’s cross-interest policy, or (3) denied on the basis of the FCC’s standard comparative criterion to promote diversification of control in the mass media.
We disagree. The interests held by the Malrite principals in Channel 19 do not rise to the level of controlling ownership. Channel 19 structured its financing in a way that significantly isolates the Malrite principals from working control of corporate affairs. Similarly, the Commission properly found that the Malrite holdings do not constitute a prohibited cross-interest. While we question other independent grounds offered by the Commission in support of its cross-interest determination, we find that the Commission reasonably concluded that the Malrite holdings do not represent the “meaningful relationship” with Channel 19 necessary to disqualify the Channel 19 application under the cross-interest policy. Finally, we approve the Commission’s application of its standard comparative criteria — integration of ownership with management and diversification of control — to this case. We therefore affirm the FCC order.
I. Background
CTC and Channel 19 both filed applications with the FCC to construct a UHF television station in the Cleveland area. In its original application, Channel 19 divided its common stock equally among its three principals, Metroplex Communications (Metroplex), Diamond Broadcasting, Inc. (Diamond), and the “Malrite group.”
Under FCC rules, applicants may amend their applications as a matter of right until the “cut off” date specified by the Commission. In this case, the FCC set July 31, 1979 as the cut off date. See J.A. at 246-47. On July 23, 1970, Channel 19 amended its application to reflect its altered corporate structure, in which the Malrite group would receive only nonvoting preferred stock, and would not occupy any corporate offices. See J.A. at 248-56. After the cut off date, Channel 19 twice attempted to make a further amendment including more elaborate changes in its Articles of Incorporation. On November 5, 1980, the AU accepted this additional amendment.
In April 1982, after evidentiary hearings, the AU issued his Initial Decision granting Channel 19’s application. See 91 F.C.C.2d 1148 (1982). As a result of his analysis of the terms of the Malrite preferred shares, the AU concluded that the Malrite holdings lacked the “contingent control rights” necessary to “invoke the strictures of the multiple ownership rules.” Id. at 1161. The AU also found that in the absence of significant control rights, the Malrite stock holdings did not constitute “an interest sufficient to warrant the disqualification of Channel 19” under the cross-interest policy because “the potential for influence on corporate management” was not strong. See id. Overall, however, due to the Malrite preferred stock holdings as well as Metroplex’s ownership of broadcast stations in communities far away from Cleveland, the AU accorded to CTC a moderate diversification preference. See id. at 1167.
The AU also considered the integration of ownership with management in CTC and Channel 19. He found that “[a]ll of Channel 19’s common (voting) stockholders will be involved on a day-to-day basis in the management of its proposed station,” while “CTC has shown 15% full-time integration and 20% part time.” Id. at 1164. Furthermore, numerous Channel 19 principals are Cleveland residents with considerable broadcast experience and strong community ties. The AU also noted that Hubert Payne, an owner of 50% of the common stock and the proposed general manager of Channel 19, is black — a fact “of particular significance in this case in light of the Cleveland area’s large minority population.” Id. at 1165. Accordingly, the AU awarded to Channel 19 a “decided preference” for integration. See id. at 1166. The AU therefore granted Channel 19 the permit because its superior integration sufficiently outweighed the “negative effects of its principals’ existing media interests.” Id. at 1169.
The Review Board affirmed the AU’s decision with some modifications. See 91 F.C.C.2d 1129 (Rev.Bd.1982). The Board agreed that the Malrite preferred stock “involves insufficient incidents of contingent control of Channel 19 to violate the multiple ownership rules.” Id. at 1132. In addition, the Board found that the Commission’s policy against cross-interests had not been transgressed because (1) the issue had not been properly raised, (2) no specific factual allegations had been made to show how the alleged cross-interest would be contrary to the public interest, and (3) the Malrite holdings did not create a sufficiently “meaningful relationship” with Channel 19 to give rise to a prohibited cross-interest. See id. at 1133-35. Finally, the Board reduced CTC’s diversification preference to a “slight preference” because it considered the Malrite preferred stock holdings to have no meaningful effect on the management of Channel 19, while it viewed CTC’s cross-ownership of another UHF station in Detroit, 100 miles from Cleveland, to be “more significant” than the Malrite’s Cleveland radio stations. See id. at 1139. Approving the AU’s finding of a substantial preference for integration, the Board concluded that the Channel 19 proposal would best serve the public interest. Id. at 1143.
CTC then sought review by the full Commission. On May 18, 1983, the Commission released an order denying review. See J.A. at 1-2. CTC now appeals to this court.
II. Multiple Ownership
CTC contends that the FCC departed from its own multiple ownership rule when it granted the UHF television permit to Channel 19 despite the Malrite principals’ ownership of two radio stations in the Cleveland area. By its terms, the multiple ownership rule disqualifies applicants who “own, operate, or control” overlapping broadcast facilities. See Radio Athens, Inc. v. FCC, 401 F.2d 398, 401 (D.C.Cir.1968).
The rule encompasses various forms of working control over a proposed broadcast facility, whether or not such control is manifested by a majority share of voting stock. See 47 C.F.R. § 73.636 note 1 (“The word ‘control’ as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.”). CTC argues that the Malrite principals possess such working control over the affairs of Channel 19 by virtue of (1) the Malrite group’s ownership of a one-third equity interest in Channel 19, (2) the group’s historical involvement in the formation of Channel 19, (3) a guarantee by Malrite’s majority stockholder of one-third of the bank loan used to finance Diamond Broadcasting’s purchase of fifty percent of Channel 19’s common stock, and (4) Channel 19’s close corporation status, which, according to CTC, permits the Malrite group to dominate the station’s affairs. The FCC, on the other hand, determined that the Malrite interests “involve[ ] insufficient incidents of contingent control of Channel 19 to violate the multiple ownership rules.” 91 F.C.C.2d at 1132. Because the FCC reasonably concluded on the basis of the relevant evidence that the Malrite group does not possess the requisite working control over Channel 19, we hold that the award of the construction permit to Channel 19 did not contravene the Commission’s multiple ownership rule.
To begin with, we note that the Malrite group owns only a one-third equity share in Channel 19. An owner of one-third of a corporation’s equity may, of course, exercise control in fact, especially if the one-third share represents the largest voting block in the corporation. Such an interest by itself, however, does not constitute working control as a matter of law. See Radio Athens, 401 F.2d at 401-02; see also United Community Enterprises, Inc., 37 F.C.C.2d 953, 957, 959 (Rev.Bd. 1972). Furthermore, the Malrite equity share is comprised solely of nonvoting preferred stock. By contrast, the multiple ownership rule expressly focuses attention upon ownership of “voting stock” as an indicator of control. See 47 C.F.R. § 73.-636 notes 2, 3, 4, 5, 6, 7; see also Evening Star Broadcasting Co., 67 F.C.C.2d 318, 323-25 (1978). In other circumstances, the ownership of a nonvoting stock might enable a party to control the destiny of the broadcast facility. In this case, however, the Commission reasonably determined that the Malrite group’s preferred stock holdings did not represent a controlling interest in Channel 19.
We also find that the Malrite group’s involvement in the pre-operational planning and financing of Channel 19 does not evidence working control, even when considered cumulatively along with the preferred stock ownership. First, we agree with the Commission that “CTC’s emphasis on the predictive implications of earlier activities of the Malrite principals in Channel 19 corporate planning and decision-making... is conjectural and does not itself establish any continuing involvement on their part.” 91 F.C.C.2d at 1132. In fact, Channel 19’s general manager in a sworn affidavit emphasized that “[i]t was [Channel 19’s] purpose... to insulate totally the [Malrite] group from any responsibility for or involvement in the operation of our Company.” J.A. at 127 (affidavit of Hubert B. Payne). CTC cites no evidence to refute this testimony. The AU thus had a sufficient basis for his finding of fact that Channel 19 intended to remove the Malrite group from all future participation in decision-making on matters concerning the station’s operations. See 91 F.C.C.2d at 1151. Accordingly, we will not disturb that finding. See, e.g., FCC v. WOKO, Inc., 329 U.S. 223, 226, 67 S.Ct. 213, 214, 91 L.Ed. 204 (1946); Faulkner Radio, Inc. v. FCC, 557 F.2d 866, 870 (D.C.Cir.1977).
Neither does the fact that Maltz guaranteed a bank loan, used to finance the Diamond common stock purchases, transform the interests of the Malrite group, which Maltz controls, into the requisite working control of Channel 19. After all, the Maltz guarantee covers only eleven percent of Channel 19’s total paid-in capital, and the benefits to Maltz in the event of a default are unclear. At the extreme, however, the Malrite financial involvement in Channel 19 could be seen to extend to 44 percent of the paid-in capital — the funds covered by the guarantee plus the preferred stock capital contribution. This financial interest, while substantial, is more than offset by Metroplex’s financial involvement, which at the extreme could be seen to include more than 55 percent of the paid-in capital. Metroplex guaranteed two-thirds of the Diamond loan, covering over 22 percent of the paid-in capital, and owns one-half of the common stock of Channel 19, representing another 33 percent of the paid-in capital. Thus, in any event the Malrite group could not control Channel 19 over the objections of Metroplex. Cf. WLOX Broadcasting Co. v. FCC, 260 F.2d 712, 715-16 (D.C.Cir.1958) (a lender of money needed to construct station, although only a small minority stockholder, “will be in a position to dictate the manner of operating the proposed station, and... probably will gain control of [the station]”). Accordingly, the FCC reasonably determined that the Malrite group’s purely financial interests in the loan and their preferred stock would not enable it to exercise control over the station’s operations. See 91 F.C.C.2d at 1133.
CTC also argues at length that this court should disregard the corporate structure of Channel 19 and attribute to it all the ownership interests of the Malrite group. See CTC Brief at 18-24. According to CTC, Channel 19’s corporate veil should be pierced simply because it is a closely-held corporation, and closely-held corporations often operate as if no corporate structure exists. See CTC Brief at 21-24. Moreover, CTC contends that the Malrite group and Channel 19 should be considered identical in interests because, under Ohio law, Channel 19, as a closely-held corporation, could abolish its board of directors and thereafter ignore corporate formalities, with the Malrite principals playing key roles. See Ohio Rev.Stats. § 1701.591.
In effect, CTC asks this court to hold that any closely-held corporation may be disregarded as a legal fiction, regardless whether sufficient proof has been adduced to show that corporate formalities and structure are in fact being disregarded. We decline to order the Commission to disregard an applicant’s corporate structure on the basis of a mere suspicion, unsupported by the evidence, that the applicant will operate as if no corporate structure existed. Furthermore, CTC’s reliance on Ohio’s close corporation statute is misplaced. Under the statute, to alter the corporate structure, every shareholder must assent in writing. See Ohio Rev. Stats. § 1701.591. The corporate structure of an Ohio close corporation is therefore malleable; it nevertheless remains a corporate structure, which will not be overlooked without an adequate showing that in practice the corporation is a sham. Such a showing has not been made in this case. Accordingly, we uphold the Commission’s determination that the Channel 19 application did not violate the multiple ownership rule.
III. Cross-Interests Policy
CTC further contends that the FCC decision to grant a permit to Channel 19 contravenes its longstanding cross-interests policy. While we agree that part of the Commission’s rationale does depart from established agency practice without adequate explanation, we find that another independent ground offered by the Commission adequately supports its decision. We therefore affirm the agency’s order.
The FCC’s cross-interest policy stems from its prohibitions on common ownership and control contained in its multiple ownership rule. The cross-interest policy extends this prohibition to individuals who are principals of an applicant and who have some meaningful relationship with an existing facility serving substantially the same area. See, e.g., Radio Athens, Inc. v. FCC, 401 F.2d 398, 402 (D.C. Cir.1968); Guy S. Erway, 90 F.C.C.2d 750, 752 (Rev.Bd.1980); K & M Broadcasters, Inc., 19 F.C.C.2d 947 (Rev.Bd.1969). The policy is therefore implicated “in any case of cross interest, whether or not the interest is tantamount to ownership, operation or control.” Radio Athens, 401 F.2d at 402. The objective of the policy is the promotion and maintenance of full competition within a given broadcast area. See Guy S. Erway, 90 F.C.C.2d at 752; Carolina Broadcast Service, 25 Rad.Reg. (P & F) 515, 515 (1963).
The Commission held that its cross-interest policy was not violated in this case. First, the Commission found that the cross-interest question had not been properly raised as an issue specifically designated for hearing. See 91 F.C.C.2d at 1134. However, as Board Member Blumenthal noted in his statement concurring dubitante, the Commission’s hearing designation order gave notice to the parties that the impending proceeding would:
determine with respect to Channel 19 the extent of common ownership, operation and control between stations WHK [AM] and WMMS (FM) [the two Malrite radio stations in the Cleveland area] and the proposed television station, and whether said ownership would be in the public interest.
Hearing Designation Order at 3 (July 29, 1980), reprinted in J.A. at 49, quoted in 91 F.C.C.2d at 1146 (Blumenthal, Board Member, concurring dubitante). This notice clearly opens the way for an examination of whether the Malrite interests would render Channel 19’s application contrary to the public interest. The public interest rubric is very broad, encompassing the multiple ownership rule, the cross-interest policy, and the various comparative criteria, including diversification of media interests. See FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 785-87, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978); Allied Broadcasting, Inc. v. FCC, 435 F.2d 68, 71 (D.C.Cir.1970). Consequently, the Commission had the cross-interest issue properly before it when it went on to discuss and dispose of the issue.
As a second ground for rejecting the cross-interest claim, the Commission found that CTC had failed to make “specific allegations of fact” to show how the relevant cross-interests would be contrary to the public interest. 91 F.C.C.2d at 1134 (quoting Atlantic Broadcasting Co. (WUST), 5 F.C.C.2d 717, 718 (1966)). Insofar as this passage articulates a requirement of specific proof that a given cross-interest will in practice result in anti-competitive effects, we think it runs counter to clearly articulated and well established principles underlying the cross-interests policy. In the past, the Commission has viewed the goal of the policy to be prevention of anti-competitive practices. Thus, specific showings of anti-competitive results were not required:
Because the Commission is unable to keep the changing personal relationships in each individual case under constant surveillance, the controlling factor in each situation must be the simple fact of the cross-interest itself____ While it may be true that, at a given time, no impairment of competition exists in fact, it is the potential of such impairment which the Commission’s policy is designed to guard against.
Carolina Broadcasting Service, Inc., 25 Rad.Reg. (P & F) at 515-16; see McGavren Guild, Inc., 80 F.C.C.2d 339, 349 (1980) (“[T]he cross-interest policy and the multiple ownership rules are based on the assumption that if the industry is structured so as to be owned and controlled by diverse entities, the desired program diversity and competition will ensue. In administering our policy, a structural approach does not involve us in business practices and interrelationships that can change rapidly over time.”). Moreover, evidence of specific abuses by common owners or cross-interested parties is at best difficult to compile, and, at the pre-permit stage, obviously impossible. Cf. FCC v. National Citizens Committee for Broadcasting, 436 U.S. at 797, 98 S.Ct. at 2113 (upholding multiple ownership rules despite lack of “detailed forecast” of competitive benefits). As a result, we do not endorse the FCC’s apparently sudden and unexplained departure from its usual practices in this field.
The Commission, however, also made the fundamental substantive judgment that the record showed “inadequate indicia of control to make the Malrite group’s ‘relationship’ with Channel 19 sufficiently ‘meaningful’ to raise a legally cognizable cross-interest inference.” 91 F.C.C.2d at 1134-35. CTC believes that this ruling was in error because, in its view, the Commission’s cross-interest policy generally prohibits “any degree of common ownership between stations” in the same broadcast area. CTC Brief at 34 (emphasis in original). Accordingly, CTC argues that the Malrite preferred stock ownership in Channel 19 constitutes an impermissible cross-interest.
We find untenable CTC’s position that “any degree of common ownership” creates a prohibited cross-interest. The FCC policy instead applies only when the principal or principals in question simultaneously maintain a meaningful relationship with the proposed and existing facilities. See, e.g., Guy S. Erway, 90 F.C.C.2d at 752; Morris, Pierce & Pierce, 88 F.C. C.2d 713, 716 n. 3 (Rev.Bd.1981). Obviously, an insignificantly small equity interest in a broadcast station — such as, for example, a 50-share block in RCA — does not give rise to a prohibited cross-interest. The relevant question accordingly may be framed: Did the FCC act reasonably when it determined that the Malrite preferred stock holdings in Channel 19 did not create a “meaningful relationship” with the proposed station? For the reasons set forth below, we conclude that it did.
As discussed supra at 967-968, the rights associated with the Malrite preferred stock are expressly limited to exclude control rights over the affairs of the station. These preferred shares have no associated voting rights, except in extraordinary circumstances on fundamental corporate questions, and they may not be converted into voting common shares unless such conversion would not violate Commission policies.
The preferred shares do, of course, represent a significant financial interest in Channel'19. Because the shares are “participating preferred,” the Malrite principals have a greater financial interest in the growth and success of Channel 19 than, for example, a mere lender would have. We therefore find, contrary to the Commission’s assertions in its brief, that the Malrite’s preferred stock ownership does not constitute a merely passive interest in Channel 19. Cf. FCC Brief at 27.
Nevertheless, in our judgment the FCC did not abuse its authority when it determined that its cross-interest policy does not apply to this case. CTC cites no judicial or administrative precedent to support its notion that a purely financial interest, unaccompanied by any managerial or voting control, should trigger disqualification of the applicant. Furthermore, we note that even if the Malrite principals were proposing to own Channel 19 outright — with 100% ownership of all voting stock — the resulting common ownership would not automatically disqualify Channel 19’s application under the Commission’s rules. Instead, “[s]uch UHF overlap... cases will be handled on a case-by-case basis in order to determine whether common ownership, operation, or control of the stations in question would be in the public interest.” 47 C.F.R. § 73.636 note 8. The regulations therefore manifest a judgment that UHF/radio combinations are not as generally harmful as other kinds of broadcast combinations. A fortiori, the Commission enjoys discretion to determine whether a nonvoting, noncontrolling and nonmanagerial interest in a UHF television station would be contrary to the public interest. The Commission did not abuse that discretion in this case.
IV. The Comparative Determination
In a comparative proceeding, such as the one now under review, the Commission’s task is to choose the contender best able to serve the public interest. See, e.g., Telocator Network of America v. FCC, 691 F.2d 525, 545 (D.C.Cir.1982). To structure this assessment, the Commission has set out standard criteria to be considered in every comparative proceeding. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965). Two primary factors determine the Commission’s decision: (1) diversification of control, and (2) best practicable service to the public. See id. at 394. The “best practicable service” rubric covers the integration of ownership with management, minority ownership, and the local residence, broadcast experience and civic activities of the owners. See id. at 395-99.
In this case, the Commission awarded to CTC a “slight diversification preference” due to the media interests held by the Channel 19 principals. See supra at 966. However, Channel 19 won a “substantial integration preference.” See supra at 966. The Board accordingly concluded that “Channel 19’s integration preference — and all it bodes for the ‘best practicable service’ to the public — is sufficiently substantial to overcome CTC’s slight diversification preference.” 91 F.C.C.2d at 1143. CTC now challenges this ruling in the belief that “the Commission erred as a matter of law in improperly weighing the diversification component in its analysis of the standard comparative criteria.” CTC Brief at 40.
In the review of a comparative determination, we must be assured that the agency “has given reasoned consideration to all the material facts and issues” Central Florida Enterprises, Inc. v. FCC, 598 F.2d 37, 49 (D.C.Cir.1978), cert. dismissed, 441 U.S. 957, 99 S.Ct. 2189, 60 L.Ed.2d 1062 (1979); see also Telocator Network of America, 691 F.2d at 537. Because we think the Commission provided an adequate articulation of its reasons for granting the permit to Channel 19, we reject CTC’s challenge.
The facts amply support the award of a “substantial integration preference” to Channel 19, and CTC does not question the validity of the award. Instead, CTC believes that it should have been awarded more than a “slight diversification preference” because of the media holdings of Channel 19’s Malrite and Metroplex principals.
We think that the Commission gave an adequate and reasoned basis for its evaluation of the slight diversification preference accorded to CTC. Because the Malrite preferred shares are substantially divested of control rights, the Commission reasonably concluded that “overall diversification of control of the mass media is [not] meaningfully affected by their nominal presence among Channel 19's owners.” 91 F.C.C.2d at 1139. Furthermore, the Commission expressly acknowledged the Metroplex holdings as a factor to be counted against Channel 19 in its diversification analysis, but found this adverse factor to be “significantly offset” by CTC's stockholder interest in a Detroit television station. See 91 F.C.C. at 1138-39. This comparative treatment of the CTC and Metroplex interests was not unreasonable, considering that CTC’s Detroit UHF television station is (1) “in the same type of service [as the proposed station]” and (2) “is more significant as a regional broadcast interest because Detroit is only 100 miles from Cleveland whereas the closest Channel 19 common stockholder-owner broadcast interests are in Virginia, some 400 miles away.” Id. at 1139. We therefore uphold the Commission’s judgment in its application of its standard comparative criteria.
V. Conclusion
For the reasons set forth above, the order of the Commission is
Affirmed.
. Metroplex is a partnership between Norman Wain and Robert Weiss. Wain and Weiss both are long-time residents of the Cleveland area and have substantial broadcasting experience. See 91 F.C.C.2d at 1157-58. Through other corporate enterprises, they also own substantial interests in a number of broadcast stations around the United States, none of which serves the Cleveland area. See id.
Diamond Broadcasting is a wholly owned subsidiary of Overlook TV Group, Inc., which is 90% owned by Overlook Communications Systems, which, in turn, is 83% owned by Hubert Payne and 5% owned by William Derrick. Payne has lived in the Cleveland area since 1946 and has substantial broadcasting experience; Derrick has lived there since 1970. Both Payne and Derrick are black, and Channel 19 plans to make Payne its General Manager.
The "Malrite group” — Milton Maltz, Carl E. Hirsch and John R. Wilson — owns an AM and an FM radio station in the Cleveland area, in addition to a large number of other TV, radio and cable stations throughout the country. Virtually all of Malrite’s stock is owned by Maltz. Hirsch and Wilson, who are both officers and directors of Malrite, hold small interests.
. Under the first amended application, the Malrite preferred shares would be converted to voting common shares only "in the event the Rules of the Federal Communications Commission permit ownership, in whole or in part, by the owner of an AM and/or FM station in the same market as the UHF station.” First Amended and Restated Articles of Incorporation of Channel 19, Inc. art. IV, reprinted in J.A. at 252. Under the second amended application, the Malrite preferred shares would be nonvoting shares that could be converted to voting common shares only (1) five years after their issuance, (2) if "conversion will not result in a violation of any federal statute administered by the Federal Communications Commission... or any valid regulation promulgated thereunder,” and (3) after approval by a vote of the common shareholders, if the preferred shares are held by persons other than the Malrite principals. Amended Articles of Incorporation of Channel 19, Inc. art. IV, para. 1, sec. 3, reprinted in J.A. at 317-18.
CTC objects to the ALJ's acceptance of the second amendment after the "cut off" date. Under the Commission’s rules, an amendment may be made after the cut off date (1) "only upon a showing of good cause for late filing” or (2) as a matter of right if the amendment "relate[es] to issues first raised in the [hearing] designation order.” See 47 CFR § 73.3522(b)(1), (2) (1982).
The Commission defends the acceptance of the amendment on two grounds. First, it argues that the amendment relates to an issue "first raised in the designation order,” i.e., the cross-ownership issue. As the ALJ explained, "While Channel 19 was undoubtedly cognizant of the cross ownership problem... the matter was not identified as one requiring an evidentiary hearing until the order of designation was issued.” J.A. at 46. This explanation, however, proves too much, for it would apparently permit fees amendment as to any issue set down for hearing by the designation order. After all, the purpose of the hearing designation order is to identify issues "requiring an evidentiary hearing.” By contrast, the regulations permit amendment as to "issues first raised" in the designation order, not issues first set down for hearing in the order.
However, as the Review Board noted, the particular amendment in question "merely clarified Channel 19’s pre-designation proposal.... it resulted in no comparative improvement because the comparative consequences of the preferred stock ownership in this case had already attached.” 91 F.C.C.2d at 1135 n. 3. The disputed amendment made no fundamental changes in Channel 19’s corporate structure; the basic contours of that structure had already been set out in the first amended application, which was clearly permissible as of right. Thus, CTC suffered no comparative harm due to the amendment. See Annax Broadcasting, Inc., 87 F.C. C.2d 483, 488 (1981). Finally, we note that the amendment related to the cross ownership and cross-interest issues — both potentially disqualifying issues — and the Commission has followed a liberal amendment policy "especially where a proffered amendment is intended to cure a disqualifying defect.” Id. at 489.
. Metroplex principals hold interests in broadcast stations in Virginia, Missouri, Texas, and Florida. See 91 F.C.C.2d at 1158; see also CTC Brief at 16 n. 12.
. Under 47 U.S.C. § 155(c)(1), the full Commission may delegate functions to “a panel of commissioners, an individual commissioner, an employee board, or an individual employee.” If the Commission chooses not to review an action taken pursuant to such a delegation, then that action has "the same force and effect” as an action by the full Commission. Id. § 155(c)(3). Accordingly, in this opinion the Review Board's decision is also referred to as an action by the Commission.
. See 47 C.F.R. § 73.636(a)(1) ("No license for a television broadcast station shall be granted to any party (including all parties under common control) if such party directly or indirectly owns, operates, or controls... one or more AM broadcast stations... or one or more FM broadcast stations” in the same broadcast area.). The multiple ownership rules, however, confer discretion upon the Commission to decide cases involving common ownership of a UHF television station and radio stations in the same area on a case-by-case basis. See id. § 73.636 note 8; infra at 972. The fact that the Malrite group owns two radio stations — one AM and one FM station — in the Cleveland area would not alter the Commission's discretion to decide whether ownership of the additional UHF station were in the public interest. See 47 CFR § 73.636 note 11 (“AM and FM broadcast stations licensed to communities... within the same urbanized areas... will be considered as a combination and counted as one station.’’).
. For example, greater control could be evidenced by the existence of an unconditional right to convert the nonvoting preferred shares into voting stock. In this case, however, the Malrite’s preferred shares may not be converted until after five years from their initial issuance, and then only if such conversion would not violate the Commission's rules. See Amended Articles of Incorporation of Channel 19, Inc. art. IV, para. 1, sec. 3, reprinted in J.A. at 317.
. Maltz guaranteed one-third of the Diamond bank loan, while Metroplex guaranteed the remaining two-thirds. The bank loan financed Diamond’s one-third equity share in Channel 19. Accordingly, Maltz guaranteed one-ninth (‘/3 X 'A) of the paid-in capital while Metroplex guaranteed two-ninths QA X A) of the paid-in capital.
. In his testimony, Mr. Payne of Diamond Broadcasting at one point said that "we really have not gone into detail as to what happens if Bill [Derrick] and I default.” J.A. at 149. This testimony is consistent with Payne's affidavit in which he explained:
We have no understandings or agreements whatsoever, either with the Bank or anyone else, regarding what would happen in the event that Diamond Broadcasting, Inc. is in default under its loan and the Bank is forced to turn to the guarantors for satisfaction. We have briefly discussed this situation with Messrs. Wain, Weiss and Maltz [the Malrite principals], but have not reached any understanding of how we would handle a default. We prefer instead to await future developments.
Affidavit of Hubert B. Payne at 9 (Nov.1980), reprinted in J.A. at 128. On cross-examination by CTC, however, Payne was asked to explain a letter to Diamond Broadcasting from Maltz of Malrite and Wayne of Metroplex:
Q: Have you had an opportunity to read that?
A: Yes.
Q: Now, under the terms of their agreeing to be guarantors, Mr
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_search
|
E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
NAYLOR v. CANTLEY et al.
No. 11024.
Circuit Court of Appeals, Eighth Circuit.
May 16, 1938.
Winstead Johnson, of Memphis, Tenn. (S. S. Hargraves, of Memphis, Tenn., on the brief), for appellant. i
R. B.- McCulloch, of Forrest City, Ark. (Ross Mathis, of Cotton Plant, Ark., and Burk Mann, of Forrest City, Ark., on the brief), for appellees.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
This controversy arises out of a refusal of the court below to administer in bankruptcy mortgaged lands belonging to the estate of a. farmer debtor who, prior to the sale of his lands under foreclosure, had filed a petition under section 75 of the Bankruptcy Act as amended August 28, 1935, c. 792, 49 Stat. 942-945, 11 U.S.C. § 203, 11 U.S.C.A. § 203.
John W. Naylor was, at all times which are here material, the owner of a well mortgaged farm of some 555 acres in St. Francis county, Ark. The first mortgage ran to St. Louis Joint Stock Land Bank, the second mortgage to Fussell-Graham-Alderson Company, and the third mortgage to National Bank of Eastern Arkansas. In 1933, S. L. Cantley, as receiver of St. Louis Joint Stock Land Bank, commenced a suit in equity in the United States District Court for the Eastern District of Arkansas to foreclose the first mortgage. Pending foreclosure, the court appointed John W. Naylor, the debtor,- and Paul H. Albers receivers of the mortgaged lands. On February 24, 1936, a decree was entered in the foreclosure suit adjudging that there was due upon the first mortgage $27,145.72 with interest and costs, ordering a sale of the land to satisfy this indebtedness, and appointing a special master to. execute the decree. The special master gave notice that a foreclosure sale would be held May 7, 1936. On May 6, 1936, Naylor, as a farmer debtor, filed in the United States District Court for the Eastern District of Arkansas a petition under section 75 of the Bankruptcy Act as amended August 28, 1935, 11 U.S.C.A. § 203. This petition was approved by the court and referred to the conciliation commissioner. Notwithstanding the filing of the petition, the special master held the foreclosure sale on May 7, 1936, and, for $24,000, sold the lands in question to John W. Alderson, Jr., who, ■evidently on behalf of the second mort-1 gagee, had purchased the rights of the first mortgagee. On May 22, 1936, the second mortgagee filed in the court of bankruptcy a petition asking that court to refuse to take jurisdiction of the mortgaged lands, on the ground that the debtor’s petition had not been filed in good faith, that rehabilitation of the debtor was not feasible, and that section 75 of the Bankruptcy Act as amended was unconstitutional. Apparently this petition was not ruled upon.
On or about September 7, 1936, the debtor filed a petition in the equity suit, asking that the sale of the mortgaged lands to John W. Alderson, Jr., be not confirmed, and that the sale be vacated. On October 29, 1936, the court, as á court of equity, confirmed the foreclosure sale, overruled the.debtor’s exceptions to confirmation, and denied the petition of the debtor to vacate the sale. On January 25, 1937, the court ordered the receivers, appointed in the foreclosure suit, to pay over funds in their hands to G. B. Fogg, clerk of the chancery court of St. Francis county, Ark., to “hold the same for the account of the cause of John W. Naylor, plaintiff, versus John W. Alderson and John W. Alderson, Jr., and Fussell-Graham-Alderson Company.” On March 6, 1937, P. H. Albers was discharged, as a receiver. The debtor was directed by the court of equity to continue as receiver for the sole purpose of receiving and paying a rental for the year 1936'.
On April 20, 1937, the debtor filed a petition in the bankruptcy proceedings, in which petition he asserted that all proceedings which had taken place in the foreclosure suit after the filing of his petition under section 75 were void. He prayed for an order directing S. L. Cantley, receiver, John W. Alderson, Jr., and the clerk of the chancery court of St. Francis county, Ark., to show cause why the foreclosure sale, the special master’s deed, and the order confirming sale should not be set side, and why the rents received by Alder-son and by the clerk of the chancery court should not be paid over to the conciliation commissioner. The debtor also prayed “that said estate be administered by said conciliation commissioner, and for all other proper relief.”
• The court of bankruptcy thereupon issued the show-cause order prayed for in the petition, returnable on April 30, 1937. The appellees filed a response entitled in the equity suit, which, in effect, asserted that, the foreclosure sale having been confirmed over the objections of the debtor, the entire matter was res judicata, that the debtor had not come into the court with clean hands, and that his rehabilitation was not feasible. On May 27, 1937, the court of bankruptcy entered an order denying the debtor’s petition of April 20, 1937, praying that his estate be administered in bankruptcy. This court allowed an appeal.
The single question presented is whether the United States District Court had jurisdiction to proceed in the foreclosure suit after the filing by the debtor of his petition under section 75 of the Bankruptcy Act as amended.
By the express provision of subsection (n) of section 75, 11 U.S.C.A. § 203(n), the filing of the petition subjected the debtor and all of his property to the exclusive jurisdiction of the court of bankruptcy, and, for the purposes of jurisdiction, was the equivalent of an adjudication in bankruptcy. By the provisions of subsection (<?) of section 75, 11 U.S.C.A. § 203(o), “proceedings for foreclosure of a mortgage on land,” if instituted prior to the filing of a petition, shall not be maintained in any court or otherwise against the farmer or his property after the filing of the petition, “except upon petition made to and granted by the judge after hearing and report by the conciliation commissioner.” In this case it is conceded that after the debtor filed his petition under section 75 no application to maintain the foreclosure proceedings was made to or granted by the judge of the court of bankruptcy in accordance with subsection (o).
The appellees contend that, since the bankruptcy proceedings and the foreclosure suit were both pending in the United States District Court for the Eastern District of Arkansas, and that since the same judge had both matters in charge, the orders .made and the things done by the court sitting as a court of equity are to be regarded as though made or sanctioned by the court of bankruptcy.
In Hanna v. Brictson Mfg. Co., 8 Cir., 62 F.2d 139, at page 145, this court pointed out that the equity jurisdiction of a federal court is something entirely separate and apart from its jurisdiction in bankruptcy; that the jurisdiction of a court of bankruptcy is exclusive with respect to all questions pertaining to bankruptcy and to the administration of insolvent estates in bankruptcy; .that courts of bankruptcy are separate and distinct courts; that the exclusive jurisdiction of a court of bankruptcy cannot be surrendered; that attempts of other courts to interfere with the jurisdiction of courts of bankruptcy have been consistently resisted; that an adjudication of bankruptcy made by the court having jurisdiction of the bankrupt cannot be impeached collaterally; and that an adjudication, until vacated, is binding upon all parties to it. See, also, Cornwall Press, Inc., v. Ray Long & Richard R. Smith, Inc., 2 Cir., 75 F.2d 276. That the judge of a federal court sitting in equity can protect the rights of all parties as well as if he was sitting in bankruptcy is entirely beside the question. Hanna v. Brictson Mfg. Co., supra, page 146; Moore v. Scott, 9 Cir., 55 F.2d 863, 865; Silberberg v. Ray Chain Stores, Inc., 3 Cir., 58 F.2d 766, certiorari denied Winne v. Siberberg, 287 U.S. 631, 53 S.Ct. 83, 77 L.Ed. 547.
Since, under the provisions of section 75 of the Bankruptcy Act as amended, the court of bankruptcy was, upon the filing of the petition, vested with the sole and exclusive jurisdiction of the debtor and his property, and since that court could not surrender its jurisdiction to any other court, it was incumbent upon the court of bankruptcy to administer the estate of the farmer debtor in accordance with section 75 of the Bankruptcy Act. Bradford v. Fahey, 4 Cir., 76 F.2d 628; In Re O’Brien 2 Cir., 78 F.2d 715; United States National Bank of Omaha, Neb. v. Pamp, 8 Cir., 83 F.2d 493; Hoyd v. Citizens Bank of Albany Co., 6 Cir., 89 F.2d 105.
The order appealed from is reversed, and the case is remanded to the court below with directions to procure, by appropriate orders, the vacation of all of the proceedings in the foreclosure suit subsequent to the filing of the debtor’s petition, and to require that all- rents and profits from the land which are properly a part of the estate in bankruptcy be paid over to the conciliation commissioner, and for further proceedings in accordance with section 75 of the Bankruptcy Act as amended.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
TADEMY v. SCOTT et al.
No. 11477.
Circuit Court of Appeals, Fifth Circuit.
Oct. 23, 1946.
J. F. Kemp and J. M. Johnson, both of Atlanta, Ga., Ross R. Barnett, P. Z. Jones, and John E. Stone, all of Jackson, Miss., for appellant.
W. Colquitt Carter and Shepard Bryan, both of Atlanta, Ga., for appellees.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
McCORD, Circuit Judge.
Edward Tademy, a resident of Mississippi, brought action for damages for libel against C. A. Scott, administrator, and others, residents of Georgia.' The two newspaper articles upon which action was predicated appeared on successive weeks in the Jackson Advocate, a paper for negroes, edited, circulated, and sold in Jackson, Mississippi, and vicinity by one Percy Green. The Jackson Advocate was listed and recognized by the Scotts as a member of their “Scott Newspaper Syndicate”, and the editions in question were printed at the Scott plant in Atlanta, Georgia.
Among other asserted defenses, the Scotts sought to have the action dismissed on the ground that notice and opportunity for retraction and apology had not been given by Tademy as required by the Georgia statute governing libel actions against newspapers. Georgia Code, Sections 105-712, 105-713. Decision on this point of law was reserved by the trial judge and the parties proceeded with the introduction of evidence. Trial was had without a jury, and at the conclusion of the trial the court entered findings of fact and conclusions of law, and entered judgment for the defendants. In addition to findings on the merits, the court concluded that the failure of Tademy to give notice as required by the Georgia statute precluded recovery by him.
We shall not discuss the evidence or the findings made on the merits, for we are of opinion that the issues could not be developed until decision was made as to the applicability of the Georgia notice statute.
It is clear that the libellous articles were prepared and written by Percy Green in Jackson, Mississippi; that the matter was printed by the Scotts in Atlanta, Georgia; and that circulation and distribution of the newspapers was made in Mississippi.
Jurisdiction of the federal court sitting in Georgia was obtained because of the diversity of citizenship of the parties. Is the Georgia notice statute applicable?
In diversity of citizenship cases the conflict of law rules applied by federal courts must conform to those prevailing in the state courts. “Otherwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side.” Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477. In actions such as this, the local policy of the state must be considered. Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481, 134 A.L.R. 1462. Certainly, the statutes of Georgia reflect the public policy of the state. Lott v. Board of Education, 164 Ga. 863, 139 S.E. 722, 723.
The Georgia statute governing the bringing of newspaper libel actions provides :
“Notice to defendant specifying libelous article, etc., as condition precedent to civil action. — Before any civil action shall be brought because of any publication of a libel in any newspaper, magazine or periodical, the plaintiff shall, within the period of the statute of limitations for such actions and at least five days before instituting such action, give notice in writing to the defendant specifying the article and the statements therein which he claims to be false and defamatory and further stating in said notice what the complaining party claims to be the true state of facts.” Georgia Acts 1939, p. 343, Georgia Code, Section 105-712.
Section 105-713 of the Georgia Code provides for the effect of retraction as to damages recoverable for libel, and outlines the circumstances under which a plaintiff “shall recover only such special or actual damages as the plaintiff shows he has sustained.”
In the only cases in which the cited notice statute has been considered by the Georgia appellate courts, it was held that the statute was constitutional and that an action filed without the giving of notice was premature. Hall v. Kelly, 61 Ga.App. 694, 7 S.E. 290; Kelly v. Hall, 191 Ga. 470, 12 S.E.2d 881.
The notice statute fixes and declares the policy of the State of Georgia in actions such as this, and it is clear that had this case been brought in the state court it would have been held to be prematurely brought. Hall v. Kelly and Kelly v. Hall, supra.; Cf. Obear v. First National Bank, 97 Ga. 587, 25 S.E. 335, 33 L.R.A. 384. A federal court sitting in Georgia should likewise hold that the action was prematurely brought.
The judgment for the defendants should not have been a general judgment of non-liability on the merits. The judgment should have been one of dismissal without prejudice because of the plaintiff’s failure to comply with the Georgia notice statute governing newspaper libel actions.
The judgment is modified accordingly, and as modified 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_casetyp1_7-2
|
B
|
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".
Mrs. Yvonne Reed LEGER, Individually and as tutrix of her minor children, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION and Liberty Mutual Insurance Company, Defendants-Third Party Plaintiffs-Appellees, v. CITIES SERVICE OIL COMPANY et al., Third Party Defendants-Appellees.
No. 72-3411.
United States Court of Appeals, Fifth Circuit.
July 25, 1973.
Rehearing Denied Aug.- 28, 1973.
W. D. Atkins, Jr., Lafayette, La., for plaintiffs-appellants.
W. R. Tete, Lake Charles, La., for Cities Service & Ins. Co. of N. A.
Meredith T. Holt, Edmund E. Wood-ley, Lake Charles, La., for Kellog.
A. Lane Plauche, Lake Charles, La., for Transformer.
James J. Davidson, Jr., Robert M. Ma-hony, Lafayette, La., for appellees.
Reginald W. Farrar, Jr., Lake Charles, La., for Westinghouse Elec. Corp. and Liberty Mutual Ins. Co.
Before THORNBERRY, AINS-WORTH and RONEY, Circuit Judges.
RONEY, Circuit Judge:
Conversations between a juror and the defendant insurance company’s representative during trial recess require this jury verdict to be set aside under United States v. Barfield, 359 F.2d 120 (5th Cir. 1966), unless the District Court was correct in holding that the evidence was insufficient to present a jury question. Holding that there was sufficient evidence for a jury issue, we reverse.
Joseph D. Leger was fatally burned on November 6, 1969, when a large high voltage switch manufactured by Westinghouse Electric Corporation exploded at the Cities Service Oil Company Refinery in Lake Charles, Louisiana, where he was employed by Sline Industrial Painters.
In this diversity action for wrongful death against Westinghouse and its insurer, the jury found no defect in the design of the switch and no negligence on the part of Westinghouse which was a proximate cause of Leger’s death.
On two or three occasions during the lengthy trial, however, a representative of Liberty Mutual Insurance Company conversed with a juror about the weather, antiques, and the insurance man’s father’s retirement. One conversation, in the coffee room, lasted some twenty-five minutes. The trial court denied plaintiffs’ motion to have the juror removed and replaced with an alternate juror on the basis that the subjects of the conversations apparently did not concern the case.
After the adverse jury verdict, plaintiffs filed motions for new trial and judgment notwithstanding the verdict based on several alleged errors, including the two involved in this appeal.
Although it thought the juror’s conversations harmless, the District Court, 54 F.R.D. 574, stated that, under United States v. Barfield, supra, it would grant a new trial unless it were clear that there was no substantial evidence which could have supported a contrary verdict. After further consideration, the Court concluded that there was insufficient evidence to support a verdict for plaintiffs and a new trial would be useless.
Plaintiffs’ multiple theory of recovery was comprised of the Louisiana doctrine of res ipsa loquitur-, Westinghouse’s negligence in manufacturing, failing to warn, and failing to instruct properly as to operation and maintenance; and strict products liability.
The evidence showed that Joseph Leger, a painter, was preparing'to work inside a transformer substation when the high voltage switch exploded and he was fatally burned by flaming oily material. The exact cause of the explosion could not be proved. One primary expert witness was called by each side, and several consultants gave peripheral testimony. Plaintiffs’ principal witness, a well qualified consulting engineer, pointed out several design weaknesses, about which the manufacturer should have provided warning. He explained that any of several technical external factors could have triggered one of these defects and caused the accident.
Westinghouse’s senior design engineer, although claiming that the devices were not defective, admitted in his testimony that the alleged weaknesses could have been avoided and that the equipment’s instructions did not warn of the dangers which could cause failure. The device’s twenty-six years of usage notwithstanding, no expert contended that the accident resulted from normal usage, except that natural factors, such as moisture and vibrations, likely triggered the flaw.
In considering the sufficiency of the evidence, we must consider all the evidence “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969). The explanation of the accident posed by plaintiffs’ expert — design defects, inadequate operation and maintenance instructions, triggering by natural, physical factors — is not implausible. The competence and credibility of the witnesses were challenged. The evidence was of “such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might [have reached] . . . different conclusions,” Boeing v. Shipman, supra, at 365, and the evidence, therefore, was sufficent to go to the jury.
Having found a jury issue, we agree with the District Court that this case is controlled by United States v. Barfield, supra, and that a new trial is required.
In Barfield, an action for federal income tax refund, this Court held that the elevator conversations between the president of the corporate taxpayer and the jurors about family relationships created such inherent harm that a new trial was necessary. Although' it was alleged that no harm was done, the Court reasoned that
[o]ur system of trial by jury presupposes that the jurors be accorded a virtual vacuum wherein they are exposed only to those matters which the presiding judge deems proper for their consideration. This protection and safeguard must remain inviolate if trial by jury is to remain a viable aspect of our system of jurisprudence. Any conduct which gives rise to an appearance of evil must be scrupulously avoided.
359 F.2d at 124.
In the case at bar, the exchanges between the juror and the litigants’ representative were deliberate conversations, not inadvertent exchanges or greetings. The insurance man was not a novice at personal injury litigation, and his failure to terminate the conversations immediately evidences his inclination to identify himself to the juror. Although their exchange did not broach upon the litigation, their discussion of common interests constituted the sort of personal involvement prohibited by Barfield, where the conversation was even more public than those in question. Barfield teaches that the harm is inherent in the deliberate contact or communication between juror and litigant.
This result necessarily requires the vacating of the ordered dismissal of the other defendants inasmuch as that order was based on the exoneration of Westinghouse.
Vacated, reversed and remanded.
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Kenneth M. COMEAUX, Edmund M. Reggie, Oscar W. Boswell, II, Defendants-Appellants.
No. 91-4194.
United States Court of Appeals, Fifth Circuit.
Feb. 7, 1992.
Rehearing Denied March 5, 1992.
C. Michael Hill, Juneau, Judice, Hill & Adley, Lafayette, La., for defendant-appellant Comeaux.
William H. Jeffress, Jr., D. Bradley Clements, Miller, Cassidy, Larroca & Lew-in, Washington, D.C., Camille F. Gravel, Jr., Gravel, Brady & Berrigan, Alexander, La., for defendant-appellant Reggie.
James E. Boren, Baton Rouge, La., for defendant-appellant Boswell.
Josette L. Cassiere, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellee.
Before THORNBERRY, GARWOOD, and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants Edmund M. Reggie (Reggie), Oscar W. Boswell (Boswell), and Kenneth M. Comeaux (Comeaux) appeal the denial of their motion to dismiss an indictment against them for bank fraud. Contending that the government’s dismissal of another, earlier indictment against them a year previously was in bad faith, they argue that the prior dismissal should be recharacterized as with prejudice, barring the present prosecution. We conclude that we lack jurisdiction, and dismiss the appeal.
Facts and Proceedings Below
On May 24, 1989, a federal grand jury in the Western District of Louisiana returned an eleven-count indictment charging Reggie, Boswell, and Comeaux with defrauding and conspiring to defraud two federally insured depository institutions, Acadia Savings & Loan (Acadia) and Louisiana Bank and Trust Company (Louisiana Bank). The indictment covered the period from January 1, 1985 to June 1, 1987, during which time Reggie was the chairman of Louisiana Bank and former chairman of Acadia, Co-meaux was the president and a member of the board of directors of Acadia, and Boswell was a law partner of Reggie’s and general counsel for Acadia and Louisiana Bank. The charges were based on three loans and two loan applications in June and July of 1985. The indictment alleged that the three defendants had diverted large sums of Acadia’s and Louisiana Bank’s funds to their personal use by procuring and attempting to procure these loans for certain unindicted coconspirators through inflated appraisals of collateral and other misrepresentations. Six of the counts named all three defendants, four named Reggie alone, and one named Reggie and Boswell.
The defendants-appellants were scheduled to be tried on September 12,1989. On August 9, 1989, as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Congress extended the statute of limitations for fraud and other criminal offenses affecting banking institutions from five to ten years. See 18 U.S.C. § 3293. On August 29,1989, the government filed a motion to dismiss the indictment without prejudice. The motion stated that during trial preparation the government had “formed the opinion that the foregoing enumerated transactions are a small part of a larger plan, scheme and design to defraud Acadia Savings & Loan, extending from 1983 to 1987, involving numerous other transactions ... and involving the same defendants herein indicted, and possibly others.” Averring that the alternative to dismissal was successive prosecutions that would thwart judicial economy and raise troublesome double jeopardy issues, the government requested dismissal so that it could seek a more comprehensive indictment.
Reggie opposed the government’s motion, arguing that it was merely an effort to gain a tactical advantage over the defendants, and that the government’s justifications were not given in good faith. More specifically, he noted that the United States Attorney’s office had been monitoring and investigating his activities since 1982, and the government’s claim to have recently discovered evidence was therefore dubious. He suggested that the government’s real motivations were to postpone a trial for which it was unprepared, to add further charges in the hope that the sheer weight and complexity of the allegations would bolster its case, and to advance the FSLIC’s interests in a pending civil suit by pursuing an indictment that more closely tracked the civil complaint. He argued that the “leave of court” required for dismissal under Federal Rule of Criminal Procedure 48(a) should therefore be withheld. Comeaux and Boswell joined in Reggie’s opposition to the government’s dismissal motion. In response to the defendants’ opposition, the U.S. Attorney and Assistant U.S. Attorney filed a joint affidavit stating that in the past two-and-a-half weeks, certain witnesses and documents had come to their attention for the first time. This evidence, they stated, “strongly indicates the existence of a larger conspiracy.”
Judging the motions according to our decision in United States v. Welborn, 849 F.2d 980 (5th Cir.1988) (per curiam), the district court found that the government had offered somewhat more than a bare conclusion (in Welborn, that a dismissal would “serve the ends of justice”), and granted the government’s motion.
On September 14, 1990, the grand jury returned a new indictment. The second indictment added three new loan transactions involving Reggie and two new defendants, but dropped the conspiracy count altogether. Reggie, Comeaux, and Boswell moved to dismiss the new indictment on principles of double jeopardy and estop-pel, arguing that under Welborn the dismissal of the first indictment should be recharacterized as with prejudice. Reggie alleged that the added transactions were unrelated to the ones charged in the first indictment and thus did not corroborate the government’s earlier explanation that it possessed new evidence showing a larger conspiracy. He further alleged that the added transactions were known to the government well prior to August 1989, and were a subject of the FSLIC’s 1988 civil suit. Reggie expressly requested an evi-dentiary hearing, which was granted by the magistrate and scheduled for December 18, 1990.
The defendants served subpoenas on three prosecutors, an FBI agent, and an FSLIC attorney. Shortly prior to the scheduled evidentiary hearing, the government moved to quash the subpoenas, again submitting a joint affidavit from its two prosecutors. This affidavit was more specific: it stated that they had learned for the first time in August 1989 that an individual named Ivy Randolph Creel (Creel) had been convicted in the Middle District of Louisiana and was cooperating with federal authorities there. Creel was assisting the authorities in investigating the roles of several institutions in some of the transactions that were ultimately added in the second indictment against Reggie, Comeaux, and Boswell. They also stated that they received several documents between August 15 and August 28, 1989 that indicated a continuing relationship between Reggie, Creel, and Thomas Keene (Keene) — who was added as a defendant in the second indictment — including payments by the latter two to Reggie in exchange for loans from Acadia. The government also submitted an affidavit from the Assistant U.S. Attorney from the Middle District of Louisiana confirming that the Western District prosecutors had first contacted him in August 1989, and had indicated to him that the information obtained from Creel influenced their decision to seek dismissal of the first indictment.
On December 18, 1990, at the scheduled hearing, the magistrate held that the government had given more than a conelu-sory reason when it had initially sought the dismissal, so under Welborn the defendants were not entitled to a hearing to further examine those reasons. See Welborn, 849 F.2d at 984. The magistrate held in the alternative that the recent affidavits from the prosecutors adequately fleshed out the reasons given in August 1989. The magistrate recommended that the government’s motion to quash the subpoenas be granted, and that the defendants’ motion for dismissal be denied.
On February 26, 1991, the district court adopted the magistrate’s recommendation, although it did not adopt the magistrate’s reasoning that under Welborn if the initial explanation given for seeking dismissal is not merely conclusory, no subsequent inquiry into the government’s reasons is permitted. The district court held instead that the government’s presumption of good faith had not been overcome by an “affirmative reason” to believe that the prosecutors were motivated by considerations contrary to the public interest. See id. All three defendants seek relief from the district court’s order, either through a reversal on the merits or through a writ of mandamus.
Discussion
The threshold question is whether under these circumstances this Court may entertain an appeal from the denial of a motion to dismiss an indictment. 28 U.S.C. § 1291 limits this Court’s jurisdiction to appeals from “final decisions” of the district courts. Defendants-appellants contend that the district court’s decision in this case, though plainly not “final” in the sense of terminating the proceedings in the district court, falls within the category of decisions that may be treated as final for purposes of section 1291 under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
The Supreme Court has held that the denial of a motion to dismiss an indictment on grounds of double jeopardy is immediately appealable under the collateral order doctrine. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 2040-42, 52 L.Ed.2d 651 (1977). The gist of the defendants-appellants’ argument is that their situation, although not technically one of double jeopardy or of the variety of double jeopardy called collateral estoppel, sufficiently implicates the same concerns to warrant application of the collateral order doctrine.
The Supreme Court has identified three conditions that a decision must meet to fall within the Cohen doctrine: (1) the district court’s decision should conclusively determine the disputed question and not leave it unresolved in any manner; (2) the decision should not be a step toward final disposition of the merits of the case, but should be completely collateral; and (3) the decision should involve an important right that will be irretrievably lost if an immediate appeal is not allowed. Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 1978, 104 L.Ed.2d 548 (1989); Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978); Abney, 97 S.Ct. at 2039.
The Court has also indicated, though, that the policy of efficient administration of justice embodied in the final judgment rule of section 1291, which minimizes appellate-court interference with trial courts’ prejudgment decisions and prevents parties from clogging the courts with piecemeal litigation and multiple appeals, “is at its strongest in the field of criminal law.” United States v. Hollywood Motor Car Co., 458 U.S. 263, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754 (1982) (per curiam). Accordingly, the collateral order exception has been interpreted “ ‘with the utmost strictness’ ” in criminal cases. Midland Asphalt Corp. v. United States, 489 U.S. 794, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989) (quoting Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984)).
This commitment to the rule of finality in criminal cases has been effectuated largely through a stringent application of the third Cohen requirement — that the right at stake be one which cannot be vindicated on an appeal from a final judgment. The Abney Court found that requirement to be satisfied because the protection offered by the Double Jeopardy Clause is against being twice put in jeopardy, i.e., against being forced to stand trial, and endure the attendant strain and public exposure, more than once for the same offense. Abney, 97 S.Ct. at 2041. A second trial itself offends this right, even if it ends in acquittal or in a conviction that is reversed on appeal.
The defendants-appellants argue that Rule 48(a) embodies a similar right because the proper remedy for a Rule 48(a) violation is recharacterization of the first dismissal as with prejudice, Welborn, 849 F.2d at 984, and because a dismissal with prejudice operates exactly as an acquittal. Thus, they argue, even forcing them to stand trial raises the equivalent of a double jeopardy concern. Their primary support for this argument is United States v. Castiglione, 876 F.2d 73 (9th Cir.1988), cert. denied, 493 U.S. 954, 110 S.Ct. 365, 107 L.Ed.2d 351 (1989). In Castiglione, as in this case, the government sought dismissal of an indictment without prejudice so that it could obtain a more comprehensive indictment in its place. However, in Casti-glione the district court denied the request to dismiss the indictment until the grand jury returned a superseding indictment, at which point the district court dismissed the first indictment with prejudice. Id. at 75. Castiglione then moved to dismiss the counts of the superseding indictment that duplicated counts in the original indictment, arguing that the dismissal with prejudice operated as an adjudication on the merits and barred further prosecution of those counts. The Ninth Circuit, though it ultimately rejected this argument, held that it had jurisdiction to hear Castiglione’s appeal from the denial of this motion, because he had raised a colorable claim of a right not to be tried on those counts. Id.
Castiglione is not controlling because in that case the first dismissal was with prejudice. The Ninth Circuit exercised jurisdiction only to determine whether the dismissal with prejudice represented “a resolution in favor of the defendant on some or all of the factual elements of the offense charged,” id. at 76, the test for double jeopardy or collateral estoppel. Concluding that it plainly did not, the court gave no indication that it would also have jurisdiction to assess the government’s good faith in seeking dismissal. In this case, by contrast, there is no dismissal with prejudice that could even theoretically represent a resolution in defendants-appellants’ favor. The injury from which defendants-appellants are seeking preventive relief is not relitigation of issues previously decided in their favor, but unfair tactical maneuvering by the prosecutor’s office that creates prejudicial delay. The fact that the remedy provided by Welbom is recharacterization of the prior dismissal as with prejudice does not convert the injury itself into the one addressed in Castiglione and Abney.
The Supreme Court has made this clear in its cases addressing claims more similar to the ones here, i.e., allegations of harassment by the prosecution and unreasonable delay in going to trial. In United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), the defendant contended that his indictment should have been dismissed because he had been denied his Sixth Amendment right to a speedy trial. The Court concluded that the denial of his motion for dismissal was not immediately appealable under Cohen, in part because the Sixth Amendment did not, like the Double Jeopardy Clause, embody a “right not to be tried.” Id. 98 S.Ct. at 1552-53. The Court noted that the fact that the appropriate remedy would be dismissal of the indictment did not mean the defendant enjoyed a right that substantively could only be safeguarded through interlocutory appeal. Id. at 1552 n. 7. Likewise, claims that an indictment should be dismissed because of prosecutorial misconduct or bad faith have been deemed effectively reviewable on appeal of a final judgment and thus outside the Cohen exception. See, e.g., Hollywood Motor Car Co., 102 S.Ct. at 3085 (defendant claimed that the decision to seek dismissal of an original indictment and secure a superseding indictment manifested prosecutorial vindictiveness); Midland Asphalt Corp., 109 S.Ct. at 1498 (defendant alleged a violation of Federal Rule of Criminal Procedure 6(e), prohibiting public disclosure of matters occurring before the grand jury). Indeed, in only one instance other than Abney has the Court indicated that an immediate appeal of a denial of a motion to dismiss an indictment would be available: a prosecution alleged to contravene the Speech or Debate Clause of Article I, which like the Double Jeopardy Clause contains an explicit textual guarantee against being forced to stand trial (Senators and Representatives “shall not be questioned in any other Place” about speech on the floor of Congress). Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979).
That a defendant’s interest in avoiding tactical dismissals by the government is vindicable on appeal from a final judgment is also strongly suggested by the Supreme Court’s decision in Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (1956). In Parr, after the defendant obtained a transfer of his case from Corpus Christi to Laredo, the government procured a second indictment for the same offense in Austin and obtained dismissal of the first indictment over Parr’s objection. The Supreme Court held that Cohen did not entitle Parr to appellate review of the dismissal of the first indictment prior to standing trial in Austin. Id. 76 S.Ct. at 916. To the extent that defendants-appellants’ argument in this case is that the district court erred in September 1989 by not refusing any dismissal or by not dismissing with prejudice, Parr indicates that appeal of a final judgment entered after reindictment is the only remedy.
Defendants-appellants also rely on United States v. Alessi, 536 F.2d 978 (2d Cir.1976), in which the Second Circuit permitted an appeal under the collateral order doctrine of a defendant’s claim that an indictment for tax evasion violated the government’s promise not to prosecute those charges in his previous plea bargain on narcotics charges. The Second Circuit noted that although it was not technically a double jeopardy case, “similar interests [were] at stake.” Id. at 980. However, the approach followed by the Alessi court, which two courts of appeals had already declined to follow, was called further into doubt by the Supreme Court’s statement in Midland Asphalt that “[a] right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur.” Midland Asphalt, 109 S.Ct. at 1499. Moreover, for the reasons previously stated, we do not believe that the defendants-appellants’ interests at stake here are similar to the interests protected by the Double Jeopardy Clause.
Therefore, we conclude that we have no jurisdiction under the Cohen collateral order doctrine to review the district court’s decision.
Defendants-appellants ask that if we decide that jurisdiction is lacking, we treat their appeal as a request for a supervisory writ of mandamus, .and direct that the district court grant them an evidentiary hearing. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 238-39, 13 L.Ed.2d 152 (1964); In re E.E.O.C., 709 F.2d 392, 394-95 (5th Cir.1983). Supervisory control of the district courts through mandamus is appropriate when there has been a “clear abuse of discretion,” a “usurpation of judicial power,” or an “abdication of the judicial function.” Schlagenhauf, 85 S.Ct. at 238; La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957). It is not appropriate when “the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.” Parr, 76 S.Ct. at 917. Such use of the writ would “thwart the congressional policy against piecemeal appeals,” id., which, again, carries added force in criminal cases. See Flanagan, 104 S.Ct. at 1054-55.
We do not find this to be an appropriate case for the extraordinary remedy of mandamus. The district court’s refusal to grant an evidentiary hearing was the type of discretionary decision for which mandamus is generally not used. Cf. Schlagenhauf, 85 S.Ct. at 239 (mandamus is typically inappropriate for “good cause” determinations). As the disagreement between the magistrate and the district judge shows, defendants-appellants’ right to a hearing is unclear under Welborn, so there was no “clear abuse of discretion.”
Conclusion
Because we conclude that we lack jurisdiction to review the district court’s order and that a writ of mandamus is not an appropriate remedy here, the appeal is dismissed and the application for a writ of mandamus is denied.
Appeal DISMISSED; Mandamus DENIED.
. A superseding indictment was later returned on November 29, 1990, adding an additional transaction and a sixth defendant.
. Reggie argued that Counts II through VI of the new indictment, which were based on the same transactions as the May 1989 indictment, should be dismissed on the grounds of double jeopardy and estoppel. The other counts, he argued, should be dismissed because they were the product of the invalid dismissal and of prejudicial preindictment delay. Boswell, who was not named in any of the new counts of the September 1990 indictment, sought dismissal of the entire indictment as to him, arguing that proceeding to trial on the second indictment would constitute double jeopardy, a violation of due process, and a violation of his Sixth Amendment right to a speedy trial.
. Generally, jeopardy attaches when a jury is empaneled and sworn. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). The defendants-appellants therefore have no claim that they have twice been placed in jeopardy in violation of the Fifth Amendment; their original prosecution was dismissed two weeks prior to trial.
. When a practical examination of a prior verdict of acquittal reveals that a jury has determined an issue of ultimate fact in favor of a defendant, the principle of collateral estoppel— grounded in the Fifth Amendment guarantee against double jeopardy — forbids relitigation of that issue in a subsequent prosecution of the defendant. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 1194-95, 25 L.Ed.2d 469 (1970). We have held that a denial of a motion to dismiss an indictment on such collateral estoppel grounds is appealable under the Cohen doctrine. United States v. Leach, 632 F.2d 1337, 1338 n. 1 (5th Cir. Unit A 1980). Again, though, the defendant-appellants cannot avail themselves of this rule; no jury has yet considered their case or decided any issue in their favor.
. The Welborn Court assumed the same result. Welborn, 849 F.2d at 984 n. 3.
. See John Doe Corp. v. United States, 714 F.2d 604, 606 (6th Cir.1983) (per curiam); United States v. Eggert, 624 F.2d 973, 975 (10th Cir.1980) (per curiam). In addition, the Alessi outcome would be difficult to reconcile with our holding in United States v. Bird, 709 F.2d 388 (5th Cir.1983).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_lcdisagreement
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES v. OLSON et al.
No. 04-759.
Argued October 12, 2005
Decided November 8, 2005
Breyer, J., delivered the opinion for a unanimous Court.
Deanne E. Maynard argued the cause for the United States. With her on the briefs were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Mark B. Stern, and Dana J. Martin.
Thomas G. Cotter argued the cause and filed a brief for respondents.
Justice Breyer
delivered the opinion of the Court.
The Federal Tort Claims Act (FTCA or Act) authorizes private tort actions against the United States “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346(b)(1). We here interpret these words to mean what they say, namely, that the United States waives sovereign immunity “under circumstances” where local law would make a “private person” liable in tort. (Emphasis added.) And we reverse a line of Ninth Circuit precedent permitting courts in certain circumstances to base a waiver simply upon a finding that local law would make a “state or municipal entit[y]” liable. See, e. g., Hines v. United States, 60 F. 3d 1442, 1448 (1995); Cimo v. INS, 16 F. 3d 1039, 1041 (1994); Cameron v. Janssen Bros. Nurseries, Ltd., 7 F. 3d 821, 825 (1993); Aguilar v. United States, 920 F. 2d 1475,1477 (1990); Doggett v. United States, 875 F. 2d 684, 689 (1989).
I
In this case, two injured mine workers (and a spouse) have sued the United States claiming that the negligence of federal mine inspectors helped bring about a serious accident at an Arizona mine. The Federal District Court dismissed the lawsuit- in part upon the ground that their allegations were insufficient to show that Arizona law would impose liability upon a private person in similar circumstances. The Ninth Circuit, in a brief per curiam opinion, reversed this determination. It reasoned from two premises. First, where “‘unique governmental functions’” are at issue, the Aet waives sovereign immunity if “ ‘a state or municipal entity would be [subject to liability] under the law [...] where the activity occurred.’” 362 F. 3d 1236, 1240 (2004) (citing Hines, supra, at 1448, and quoting Doggett, supra, at 689, and Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F. 3d 1368, 1371 (CA9 1997)). Second, federal mine inspections being regulatory in nature are such “ ‘unique governmental functions,’ ” since “there is no private-sector analogue for mine inspections.” 362 F. 3d, at 1240 (quoting in part Doggett, supra, at 689). The Circuit then held that Arizona law would make “state and municipal entities” liable in the circumstances alleged; hence the FTCA waives the United States’ sovereign immunity. 362 F. 3d, at 1240.
II
We disagree with both of the Ninth Circuit s legal premises.
A
The first premise is too broad, for it reads into the Act something that is not there. The Act says that it waives sovereign immunity “under circumstances where the United States, if a private person,” not “the United States, if a state or municipal entity,” would be liable. 28 U. S. C. § 1346(b)(1) (emphasis added). Our cases have consistently adhered to this “private- person” standard. In Indian Towing Co. v. United States, 350 U. S. 61, 64 (1955), this Court rejected the Government’s contention that there was “no liability for negligent performance of ‘uniquely governmental functions.’ ” It held that the Act requires a court to look to the state-law liability of private entities, not to that of public entities, when assessing the Government’s liability under the FTCA “in the performance of activities which private persons do not perform.” Ibid. In Rayonier Inc. v. United States, 352 U. S. 315, 318-319 (1957), the Court rejected a claim that the scope of FTCA liability for “ ‘uniquely governmental’” functions depends on whether state law “imposes liability on municipal or other local governments for the negligence of their agents acting in” similar circumstances. And even though both these cases involved Government efforts to escape liability by pointing to the absence of municipal entity liability, we are unaware of any reason for treating differently a plaintiff’s effort to base liability solely upon the fact that a State would impose liability upon a municipal (or other state governmental) entity. Indeed, we have found nothing in the Act’s context, history, or objectives or in the opinions of this Court suggesting a waiver of sovereign immunity solely upon that basis.
B
The Ninth Circuit’s second premise rests upon a reading of the Act that is too narrow. The Act makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U. S. C. § 2674 (emphasis added). As this Court said in Indian Towing, the words “ ‘like circumstances’ ” do not restrict a court’s inquiry to the same circumstances, but require it to look further afield. 350 U. S., at 64; see also S. Rep. No. 1400, 79th Cong., 2d Sess., 32 (1946) (purpose of FTCA was to make the tort liability of the United States “the same as that of a private person under like circumstance, in accordance with the local law”)- The Court there considered a claim that the Coast Guard, responsible for operating a lighthouse, had failed “to check” the light’s “battery and sun relay system,” had failed “to make a proper examination” of outside “connections,” had “fail[ed] to check the light” on a regular basis, and had failed to “repair the light or give warning that the light was not operating.” Indian Towing, 350 U. S., at 62. These allegations, the Court held, were analogous to allegations of negligence by a private person “who undertakes to warn the public of danger and thereby induces reliance.” Id., at 64-65. It is “hornbook tort law,” the Court added, that such a person “must perform his ‘good Samaritan’ task in a careful manner.” Ibid.
The Government in effect concedes that similar “good Samaritan” analogies exist for the conduct at issue here. It says that “there are private persons in ‘like circumstances’” to federal mine inspectors, namely, “private persons who conduct safety inspections.” Reply Brief for United States 3. And other Courts of Appeals have found ready private person analogies for Government tasks of this kind in FTCA cases. E.g., Dorking Genetics v. United States, 76 F. 3d 1261 (CA2 1996) (inspection of cattle); Florida Auto Auction of Orlando, Inc. v. United States, 74 F. 3d 498 (CA4 1996) (inspection of automobile titles); Ayala v. United States, 49 F. 3d 607 (CA10 1995) (mine inspections); Myers v. United States, 17 F. 3d 890 (CA6 1994) (same); Howell v. United States, 932 F. 2d 915 (CA11 1991) (inspection of airplanes). These cases all properly apply the logic of Indian Towing. Private individuals, who do not operate lighthouses, nonetheless may create a relationship with third parties that is similar to the relationship between a lighthouse operator and a ship dependent on the lighthouse’s beacon. Indian Towing, supra, at 64-65, 69. The Ninth Circuit should have looked for a similar analogy in this case.
III
Despite the Government’s concession that a private person analogy, exists in this case, the parties disagree about precisely which Arizona tort law doctrine applies here. We remand the case so that the lower courts can decide this matter in the first instance. The judgment of the Ninth Circuit is vacated, and the ease is remanded for proceedings consistent with this opinion.
It is so ordered.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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sc_casesource
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031
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
ALBERTSON et al. v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 3.
Argued October 18, 1965.
Decided November 15, 1965.
John J. Abt argued the cause for petitioners. With him on the briefs was Joseph Forer.
Kevin T. Maroney argued the cause for respondent. With him on the brief were Solicitor General Marshall, Assistant Attorney General Yeagley, Nathan Lewin, George B. Searls and Lee B. Anderson.
Briefs of amici curiae were filed by Osmond K. Fraenkel for the American Civil Liberties Union, and by Ernest Goodman for the National Lawyers Guild.
MR. Justice Brennan
delivered the opinion of the Court.
The Communist Party of the United States of America failed to register with the Attorney General as required by the order of the Subversive Activities Control Board sustained in Communist Party of the United States v. SACB, 367 U. S. I. Accordingly, no list of Party members was filed as required by § 7 (d) (4) of the Subversive Activities Control Act of 1950, 64 Stat. 993-994, 50 U. S. C. § 786 (d)(4) (1964 ed.). Sections 8(a) and (c) of the Act provide that, in that circumstance, each member of the organization must register and file a registration statement; in default thereof, § 13 (a) authorizes the Attorney General to petition the Board for an order requiring the member to register. The Attorney General invoked § 13 (a) against petitioners, and the Board, after evidentiary hearings, determined that petitioners were Party members and ordered each of them to register pursuant to §§ 8 (a) and (c). Review of the orders was sought by petitioners in the Court of Appeals for the District of Columbia Circuit under § 14 (a). The Court of Appeals affirmed the orders, 118 U. S. App. D. C. 117, 332 F. 2d 317. We granted certiorari, 381 U. S. 910. We reverse.
I.
Petitioners address several constitutional challenges to the validity of the orders, but we consider only the contention that the orders violate their Fifth Amendment privilege against self-incrimination.
The Court of Appeals affirmed the orders without deciding the privilege issue, expressing the view that under our decision in Communist Party, 367 U. S., at 105-110, the issue was not ripe for adjudication and would be ripe only in a prosecution for failure to register if the petitioners did not register. 118 U. S. App. D. C., at 121-123, 332 F. 2d, at 321-323. We disagree. In Communist Party the Party asserted the privilege on behalf of unnamed officers — those obliged to register the Party and those obliged “to register for” the Party if it failed to do so. The self-incrimination claim asserted on behalf of the latter officers was held premature because the Party might choose to register and thus the duty of those officers might never arise. Here, in contrast, the contingencies upon which the members’ duty to register arises have already matured; the Party did not register within 30 days after the order to register became final and the requisite 60 days since the order became final have elapsed. As to the officers obliged to register the Party, Communist Party held that the self-incrimination claim asserted on their behalf was not ripe for adjudication because it was not known whether they would ever claim the privilege or whether the claim, if asserted, would be honored by the Attorney General. But with respect to the orders in this case, addressed to named individuals, both these contingencies are foreclosed. Petitioners asserted the privilege in their answers to the Attorney General’s petitions; they did not testify at the Board hearings; they again asserted the privilege in the review proceedings in the Court of Appeals. In each instance the "Attorney General rejected their claims. Thus, the considerations which led the Court -in Communist Party to hold that the claims on behalf of unnamed officers were premature are not present in this case.
There are other reasons for holding that petitioners’ self-incrimination claims are ripe for decision. Specific orders requiring petitioners to register have been issued. The Attorney General has promulgated regulations requiring that registration shall be accomplished on Form IS-52a and that the accompanying registration statement shall be a completed Form IS-52, 28 CFR §§ 11.206, 11.207, and petitioners risk very heavy penalties if they fail to register by completing and filing these forms. Under § 15 (a)(2) of the Act, 64 Stat. 1002, 50 U. S. C. §794(a)(2), for example, each day of failure to register constitutes a separate offense punishable by a fine of up to $10,000 or imprisonment of up to five years, or both. Petitioners must either register without a decision on the merits of their privilege claims, or fail to register and risk onerous and rapidly mounting penalties while awaiting the Government’s pleasure whether to initiate a prosecution against them. To ask, in these circumstances, that petitioners await such a prosecution for an adjudication of their self-incrimination claims is, in effect, to contend that they should be denied the protection of the Fifth Amendment privilege intended to relieve claimants of the necessity of making a choice between incriminating themselves and risking serious punishments for refusing to do so.
Indeed the Government concedes in its brief in this Court that the Court of Appeals’ holding of prematurity was erroneous insofar as petitioners’ claims of privilege relate to the Board’s power to compel the act of registration and the submission of an accompanying registration statement. The brief candidly acknowledges that, since § 14 (b) provides for judicial review of a Board order to register, petitioners’ claims in that regard, like any other contention that an order is invalid, may be heard and determined by the reviewing court — thus distinguishing orders that are not similarly reviewable, see Alexander v. United States, 201 U. S. 117; Cobbledick v. United States, 309 U. S. 323. Nevertheless, the Government argues that petitioners’ claims are premature insofar as they relate to “any particular inquiry” on Forms IS-52a and IS-52. Two contingencies are hypothesized in support of this contention: (1) that the Attorney General might alter the present forms or (2) that he might accept less than fully completed forms.
The distinction upon which this argument is predicated is illusory. Neither the statute nor the regulations draw any distinction between the act of registering and the submission of a registration statement, on the one hand, and, on the other hand, the answering of the inquiries demanded by the forms; the statute and regulations contemplate rather that the questions asked on the forms are to be fully and completely answered. Morever, the contingencies hypothesized are irrelevant. Petitioners are obliged to register and to submit registration forms in accordance with presently existing regulations; the mere contingency that the Attorney General might revise the regulations at some future time does not render premature their challenge to the existing requirements. Nor can these requirements be viewed as requiring that petitioners answer — at the risk of criminal prosecution for error — only those items which will not incriminate petitioners; full compliance is required. Finally, the Government’s argument would do violence to the congressional scheme. The penalties are incurred only upon failure to register as required by final orders and, under § 14 (b), orders become final upon completion of judicial review. In so providing, Congress plainly manifested an intention to afford alleged members, prior to criminal prosecution for failure to register, an adjudication of all, not just some, of the claims addressed to the validity of the Board’s registration orders. We therefore proceed to a determination of the merits of petitioners’ self-incrimination claims.
II.
The risks of incrimination which the petitioners take in registering are obvious. Form IS-52a requires an admission of membership in the Communist Party. Such an admission of membership may be used to prosecute the registrant under the membership clause of the Smith Act, 18 U. S. C. § 2385 (1964 ed.), or under § 4 (a) of the Subversive Activities Control Act, 64 Stat. 991, 50 U. S. C. § 783 (a) (1964 ed.), to mention only two federal criminal statutes. Scales v. United States, 367 U. S. 203, 211. Accordingly, we have held that mere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege. Patricia Blau v. United States, 340 U. S. 159; Irving Blau v. United States, 340 U. S. 332; Brunner v. United States, 343 U. S. 918; Quinn v. United States, 349 U. S. 155. These cases involved questions to witnesses on the witness stand, but if the admission cannot be compelled in oral testimony, we do not see how compulsion in writing makes a difference for constitutional purposes. Cf. New York ex rel. Ferguson v. Reardon, 197 N. Y. 236, 243-244, 90 N. E. 829, 832. It follows that the requirement to accomplish registration by completing and filing Form IS-52a is inconsistent with the protection of the Self-Incrimination Clause.
The statutory scheme, in providing that registration “shall be accompanied” by a registration statement, clearly implies that there is a duty to file Form IS-52, the registration statement, only if there is an enforceable obligation to accomplish registration by completing and filing Form IS-52a. Yet, even if the statute and regulations required petitioners to complete and file Form IS-52 without regard to the validity of the order to register on Form IS-52a, the requirement to complete and file Form IS-52 would also invade the privilege. Like the admission of Party membership demanded by Form IS-52a, the information called for by Form IS-52— the organization of which the registrant is a member, his aliases, place and date of birth, a list of offices held in the organization and duties thereof — might be used as evidence in or at least supply investigatory leads to a criminal prosecution. The Government, relying on United States v. Sullivan, 274 U. S. 259, argues that petitioners might answer some questions and appropriately claim the privilege on the form as to others, but cannot fail to submit a registration statement altogether. Apart from our conclusion that nothing in the Act or regulations permits less than literal and full compliance with the requirements of the form, the reliance on Sulli van is misplaced. Sullivan upheld a conviction for failure to file an income tax return on the theory that “[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” 274 U. S., at 263. That declaration was based on the view, first, that a self-incrimination claim against every question on the tax return, or based on the mere submission of the return, would be virtually frivolous, and second, that to honor the claim of privilege not asserted at the time the return was due would make the taxpayer rather than a tribunal the final arbiter of the merits of the claim. But neither reason applies here. A tribunal, the Board, had an opportunity to pass upon the petitioners’ self-incrimination claims; and since, unlike a tax return, the pervasive effect of the information called for by Form IS-52 is incriminatory, their claims are substantial and far from frivolous. In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in context might involve the petitioners in the admission of a crucial element of a crime.
III.
Section 4 (f) of the Act, the purported immunity provision, does not save the registration orders from petitioners’ Fifth Amendment challenge. In Counselman v. Hitchcock, 142 U. S. 547, decided in 1892, the Court held “that no [immunity] statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have'the effect of supplanting the privilege . . . ,” and that such a statute is valid only if it supplies “a complete protection from all the perils against which the constitutional prohibition was designed to guard . . .” by affording “absolute immunity against future prosecution for the offence to which the question relates.” Id., at 585-586. Measured by these standards, the immunity granted by § 4 (f) is not complete. See Scales v. United States, 367 U. S., at 206-219. It does not preclude any use of the information called for by Form IS-52, either as evidence or as an investigatory lead. With regard to the act of registering on Form IS-52a, § 4 (f) provides only that the admission of Party membership thus required shall not per se constitute a violation of §§ 4 (a) and (c) or any other criminal statute, or “be received in evidence” against a registrant in any criminal prosecution; it does not preclude the use of the admission as an investigatory lead, a usé which is barred by the privilege. Counselman v. Hitchcock, 142 U. S., at 564-565, 585.
The Government does not contend that the shortcoming of § 4 (f) is remedied in regard to information called for on the registration statement, Form IS-52. With respect to Form IS-52a, however, the argument is made that, since an order to register is preceded by a Board finding of Party membership, the admission of membership required on that form would be of no investigatory value and thus is not “incriminatory” within the meaning of the Fifth Amendment privilege. On this view the incompleteness of the § 4 (f) grant of immunity would be rendered immaterial and the admission of Party membership could be compelled without violating the privilege. We disagree. The judgment as to whether a disclosure would be “incriminatory” has never been made dependent on an assessment of the information possessed by the Government at the time of interrogation; the protection of the privilege would be seriously impaired if the right to invoke it was dependent on such an assessment, with all its uncertainties. The threat to the privilege is no less present where it is proposed that this assessment be made in order to remedy a shortcoming in a statutory grant of immunity. The representation that the information demanded is of no utility is belied by the fact that the failure to make the disclosure is so severely sanctioned; and permitting the incompleteness of § 4 (f) to be cured by such a representation would render illusory the Counselman requirement that a statute, in order to supplant the privilege, must provide “complete protection from all the perils against which the constitutional prohibition was designed to guard.”
The judgment of the Court of Appeals is reversed and the Board’s orders are set aside.
It is so ordered.
The judgment of conviction of the Party for failure to register was reversed by the Court of Appeals for the District of Columbia Circuit, and the case remanded for a new trial. Communist Party of the United States v. United States, 118 U. S. App. D. C. 61, 331 F. 2d 807.
Under this section the registration statement which accompanies the registration of a Communist-action organization is required to include "the name and last-known address of each individual who was a member of the organization at any time during the period of twelve full calendar months preceding the filing of such statement.”
Sections 8(a) and (c), 64 Stat. 995, 50 U. S. C. §§ 787 (a) and (c) (1964 ed.), provide:
“(a) Any individual who is or becomes a member of any organization concerning which (1) there is in effect a final order of the Board requiring such organization to register under section 786 (a) of this title as a Communist-action organization, (2) more than thirty days have elapsed since such order has become final, and (3) such organization is not registered under section 786 of this title as a Communist-action organization, shall within sixty days after said order has become final, or within thirty days after becoming a member of such organization, whichever is later, register with the Attorney General as a member of such organization.
“(c) The registration made by any individual under subsection (a) or (b) of this section shall be accompanied by a registration statement to be prepared and filed in such manner and form, and containing such information, as the Attorney General shall by regulations prescribe.”
Section 13 (a), 64 Stat. 998, 50 U. S. C. § 792 (a) (1964 ed.), provides:
“Whenever the Attorney General shall have reason to believe that . . . any individual who has not registered under section 787 of this title is in fact required to register under such section, he shall file with the Board and serve upon such . . . individual a petition for an order requiring such . . . individual to register pursuant to such subsection or section, as the case may be. Each such petition shall be verified under oath, and shall contain a statement of the facts upon which the Attorney General relies in support of his prayer for the issuance of such order.”
Section 14 (a), 64 Stat. 1001, 50 U. S. C. §793 (a) (1964 ed.), provides:
“The party aggrieved by any order entered by the Board . . . may obtain a review of such order by filing in the United States Court of Appeals for the District of Columbia, within sixty days from the date of service upon it of such order, a written petition praying that the order of the Board be set aside. . . . Upon the filing of such petition the court shall have jurisdiction of the proceeding and shall have power to affirm or set aside the order of the Board .... The findings of the Board as to the facts, if supported by the preponderance of the evidence, shall be conclusive. . . . The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari . . . .”
The Government’s opposition to the petition for certiorari suggested that the case is moot as to petitioner Albertson by reason of his alleged expulsion from the Party. Albertson, however, challenges the suggestion of mootness. There is no occasion to decide the question since, in any event, we must reach the merits of the issues in respect of an identical order issued against petitioner Proctor.
Petitioners’ other challenges assailed the Act and registration orders as denying substantive due process (because they allegedly serve no governmental purpose), as abridging First Amendment freedoms, as violating procedural due process and constituting bills of attainder (because they made the Board’s 1953 determination that the Communist Party was a Communist-action organization conclusive upon petitioners), and finally, as denying petitioners the safeguards of grand jury indictment, judicial trial and trial by jury.
The regulations governing Party registration pursuant, to § 7 (d), 50 U. S. C. § 786 (d), are 28 CFR §§ 11.200 and 11.201, and the forms are IS-51a. and IS — 51. The regulation governing officers obliged by §7 (h), 50 U. S. C. §786 (h) “to register for” the Party if it failed to register is 28 CFR § 11.205. See Communist Party, 367 U. S., at 105-110.
Copies of Form IS-52a and Form IS-52 are reproduced in the Appendix to this opinion.
The case was argued orally by both sides on the premise that the penalty for failure to complete arid file Form IS-52 constituted a separate offense punishable by fine of up to $10,000 or imprisonment of up to five years, or both, but that each day of failure to file the form did not constitute a separate offense. We have no occasion, however, to decide the question, and intimate no view upon it. See § 15 (b), 50 U. S. C. § 794 (b).
Section 4 (f), 64 Stat. 992, 50 U. S. C. §783 (f) provides:
“Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 787 or section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.”
The legislative history includes several expressions of doubt that the immunity granted was coextensive with the privilege. See S. Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12-13 (Sen. Kilgore) (Minority Report); 96 Cong. Rec. 14479 (Sen. Humphrey); 96 Cong. Rec. 15199 and 15554 (Sen. Kefauver); see also 96 Cong. Rec. 13739-13740 (Rep. Celler), dealing with a more modified immunity grant in H. R. 9400. See generally Scales v. United States, 307 U. S., at 212-219 (Court opinion), 282-287 (dissenting opinion).
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
In the Matter of CINTRA REALTY CORPORATION, Alleged Bankrupt.
No. 310, Docket 30969.
United States Court of Appeals Second Circuit.
Argued Jan. 18, 1967.
Decided Feb. 21, 1967.
James O. Porter, Buffalo, N. Y., for appellant Cintra Realty Ccrp.
Alexander C. Cordes, Buffalo, N. Y. (John R. Lytle and Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N. Y., on the brief), for appellee Fleet-Wing Corp.
Before MEDINA, ANDERSON and FEINBERG, Circuit Judges.
MEDINA, Circuit Judge:
On July 14, 1966, a petition in bankruptcy was filed against the Cintra Realty Corporation by Fleet-Wing Corporation, an unsatisfied judgment creditor. When the initial attempt to serve an actual agent of Cintra failed, Fleet-Wing obtained an order extending the time for service and for service on the Secretary of State of the State of New York. Service pursuant to this order was not timely and on August 24th, a second extension was obtained. This second order set the return date as September 13th and service was completed on August 29th. The mode of service was specified as follows:
Ordered, that said Phillips, Lytle, Yorkey, Letchworth, Hitchcock & Blaine, as attorneys for said Fleet-Wing Corporation, give notice to said Cintra Realty Corporation by directing the U. S. Marshal to serve said Petition and subpoena upon Cintra Realty Corporation by delivering a copy of said subpoena and Petition to the Secretary of State of the State of New York, who is duly authorized by the Laws of the State of New York to accept service on behalf of said Cintra Realty Corporation, and by mailing a copy of said subpoena and Petition to ■the corporation at its last known address.
The Secretary of State mailed a copy of the petition to Cintra but it was returned marked “address unknown.” Cintra had moved its office but had failed to notify the Secretary of State. The attorneys for Fleet-Wing did nothing further to give Cintra notice of the proceeding.
The principal point made by Cintra as appellant here is that the District Court had no jurisdiction to make the adjudication of bankruptcy because service of process, while it would have been sufficient under the New York State and federal rules, N.Y.C.P.L.R., Section 311 (1), N.Y. Business Corporation Law, McKinney’s Consol.Laws, c. 4, Section 306, Fed.Rules of Civ.Proc. 4(d) (3) and (7), was not in strict compliance with the order made by Judge Henderson. The claim is that the order requires two mailings, one by the Secretary of State and another by the attorneys for Fleet-Wing. Even if the order be deemed ambiguous, we are satisfied with Judge Henderson’s interpretation of his own order, to the effect that a single mailing was sufficient.
Various other contentions require no discussion. The notice was timely, despite appellant’s claim to the contrary. In view of the concession that Cintra was “defunct” and “insolvent,” and that “no hardship would result to Cintra from a continuance of the bankruptcy proceedings,” it was not an abuse of discretion to deny the motion to open the default.
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
WATERMAN S. S. CORPORATION v. DEAN et al.
No. 5781.
United States Court of Appeals Fourth Circuit.
Dec. 27, 1948.
Eugene F. Gilligan, of New York City (Kirlin, Campbell, Hickox & Keating, of New York City, and Ober, Williams, Grimes & Stinson, and Southgate L. Morison, all of Baltimore, Md., on the brief), for appellant and cross-appellee.
I Duke Avnet, of Baltimore, Md. (Edgar Paul Boyko, of Baltimore, Md., and John P. McKinley, of Savannah, Ga., on the brief), for appellees and cross-appellants.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
The sole controversy on this appeal concerns the amount to be allowed to four officers and twenty-seven men of the Furnifold M. Simmons for their successful salvage services to the S/S Fairisle, which was floated through the efforts of the Simmons after having been stranded in the Bay of Bengal off the east coast of India near a point called Bavanapadu. Neither the master nor five other members of the crew, nor the owners of the Simmons joined in the suit.
The Fairisle is a turbine driven, single screw, steel cargo steamer, length 468 feet, 6165 gross tons, 15Vá knots, with a crew complement of forty-four men. Her fair salvage value was $943,875. The Simmons is a 2500 h.p. Liberty ship, owned by the United States through the War Shipping Administration, 441 feet long, 7,170 gross tons, 11 knots, and a total crew of thirty-seven. Her value was $544,506. Both vessels were without cargo or freight at the time the services in question were performed.
On August 28, 1946, while discharging cargo in Calcutta, the Simmons received a message that the Fairisle had run aground at a point 250 to 300 miles away. No standard salvage equipment was available. The Simmons, hastening to the rescue, reached Bavanapadu at 11 p.m. on August 29. She found the Fairisle lying about 50 to 75 yards from the, beach, her bow facing the shore. There were rocks 10 tol2 feet high at the shore line between one-half mile and a mile to the southwest, and a little way into the water at this distance were rocks projecting just above the surface. At the point where the Fairisle was stranded the bottom was hard sand of uneven depth. The water was 3 to 4 feet deep at the Fairisle’s bow, but the ship lay in a “coffin” so that the water was a little deeper immediately under it than around it. The current flowed northeasterly at about 2%j knots. The sea was calm except for a long southeasterly swell and a heavy surf close to the Fairisle, and all during the operation the weather remained favorable. In this neighborhood tropical cyclonic storms occur occasionally in August and September, and become more frequent and more violent in October. Except for the possibility of such a storm the Fairisle was in no immediate danger. The rocks presented no threat as long as the weather was favorable.
On arrival, the Simmons found that the Royal Indian Navy had sent in response to the Fairisle’s plea three small craft, one comparable to a destroyer escort, and the two others less powerful than qur PT boats which had tried unsuccessfully to tow the Fairisle off the sand, and finally left after their towing line parted. The Simmons undertook to tow the Fairisle off the bottom by means of a heavy, inflexible wire insurance cable, about an inch and a half in diameter, which could be brought to the Fairisle only by the prior use of smaller lines, the first of which, a small messenger line was carried to her by a life boat, since the distance was too great to shoot the line. The Simmons, fearful of being stranded herself, anchored about a quarter mile off the Fairisle. On August 31, when the first effort to secure lines between the ships was made, the small messenger line parted. On the same day, the Azaleia City, owned by the Waterman S/S Co., which also owned the Fair-isle, stood by for about six hours and finally left because she was fully laden and could not come in close enough to be of any help. She did radio the Fairisle that “in your position I don’t think the Simmons or myself can render you much assistance at this time” and her master ventured the opinion that there was no chance of re-floating until the next spring tides which would not occur until September 18.
On September 1, the Simmons was successful, after two lifeboat trips to the Fairisle, in securing an 8 inch mooring line between the ships, but once again the lines parted. The next day the Simmons sent a motor lifeboat to take over the messenger line and start over again. The lifeboat’s motor went dead close to the stern of the Fairisle, so that there was danger of her being dashed against the Fairisle by the sea; and since it was impossible to row back out, the lifeboat was beached. Another lifeboat was dispatched to bring back the men on the beach, but the surf was so rough that the men on both lifeboats, numbering about fourteen, had to spend the night on shore where it was cold, damp and uncomfortable.
After the failure of the attempt of September 2, the Fairisle sent the following message to the Simmons: “We cannot see how you can lift this ship from 3 to 4 feet at high tide. Sandbar has formed all around this vessel. We are as disappointed as you, too, are, but we cannot be pulled off by your cable.” The Fairisle also radioed her owners that there was no hope of success for the Simmons’ efforts. The Simmons replied: “How do you know we cannot tow you off? We haven’t tried yet. Tomorrow I am maneuvering this vessel closer to you in order to get towing wire to you.”
In accordance with this message, the Simmons moved in closer on September 3, and dropped her kedge anchor to keep her from swinging. On this, her fourth attempt, she was successful in securing the insurance wire by 8:30 P.M.; but in order to do this her original plan had to be modified. The surf was so heavy that it was dangerous for a lifeboat to try to get close to the stern of the Fairisle, and it was necessary to run the messenger line to the beach and connect it with a line run from the beach to the Fairisle. Even the trip from the beach to the Fairisle was not without hazard, and once the motor lifeboat making the trip filled with water and spilled the men in it.
The Simmons’ chief engineer, who had spent the previous night on the beach, had observed contrary to the information in the marine charts and books for the region, that the tide at night was higher than at any other time. The Simmons, therefore, decided to make the next attempt at night. From 12:54 to 2:44 A.M. the night of September 3-4, the Fairisle was pulled out 40 feet, but slipped back into her coffin. Finally, on the night of September 4-5, after being towed from 3:24 to 5:21 A.M., and working her own engines astern, the Fair-isle came clear. Thereafter she proceeded under her own power to Vizagapatam where she loaded a cargo and carried it to Baltimore without incident. Her total repair bill for damages caused by the stranding was said to be $114,000.
The entire crew of the Simmons participated at one time or another in the salvage operation, in handling the lines and manning the lifeboats, although about half of them had had no previous experience in the work of the deck department, or in the night towing. The crew received their regular wages but regular hours were, of course, impossible, and the men were called on for services whenever there'was work to be done. The master of the Fairisle characterized the salvage as “difficult and hard work”.
The crew of the Simmons have stressed the potential danger from storms and rocks, the long and irregular hours, the difficulty of the work, the danger to the lives of the men in the small boats, the discovery of the chief engineer which was responsible for the decision to attempt the towing at night, the discomfort to the men on the beach, and the persistence and resourcefulness of the Simmons- crew in the face of what appeared even to the masters of the Fairisle and the Azaleia City to be insuperable obstacles. On the basis of these considerations they claim $300,000 as a suitable award for their services. The owners of the Fairisle, on the other hand, point to the favorable weather conditions during the operation, the likelihood that the Simmons would have had warning of any. bad weather in time to put to sea and escape stranding, the comparatively short duration of the actual work, the sound condition of the Fairisle and her assistance in the project, and the-failure of the Simmons to come in closer at the outset of the operations. They urge that an award of $10,900 would be quite reasonable under the circumstances. The District Judge awarded the sum of $45,100, to be distributed as follows: $1000 as a flat sum to each of the twenty-seven members of thei crew, an additional $500 to each man who served in the lifeboats, and $200 for each man who had spent a night on the beach. To the officers he awarded a flat sum of $1500, an additional sum of $1000 for the officers engaged in the small boat service, and $400 to each of the officers who were stranded on the beach. The amount of his award was “influenced to a considerable extent by the present depreciated value of the dollar, and by the fact that in considering and applying as precedent the early decisions, it would be appropriate, if given precisely the same circumstances today as are disclosed in those cases, to make a considerable increase in the awards there made.” Both parties have appealed from the decree.
We are of the opinion that the decision of the District -Court should not be disturbed. The trial court is given wide discretion in fixing the amount of a salvage award, and appeals questioning only the amount awarded are not encouraged. Oelwerke Teutonia v. Erlanger & Galinger, 248 U.S. 521, 39 S.Ct. 180, 63 L.Ed. 399; Cape Fear Towing & Transportation v. Pearsall, 4 Cir., 90 F. 435; 1 Benedict on Admiralty, (6th Ed. 1940), 340-41. The amount of the award is primarily a matter of judgment to be exercised by the trial court and beyond a careful examination of the facts little remains for the appellate court except to determine whether the judgment has been exercised in accordance with the general principles respecting salvage laid down by the decisions of the courts. In The Kia Ora, 4 Cir., 252 F. 507, 508, it was said:
“The elements which enter in the estimate of salvage are: (1) The value of the property in peril and the proportion of the value lost and saved; (2) the degree of peril from which lives and property are rescued; (3) the value of the property employed by the salvor, and the risk of life and property incurred; (4) the skill and dispatch shown in rendering the service together with the foresight and skill exercised in the preparation to render it; (5) the time consumed and the labor performed by the salvor. The Blackwall, 10 Wall. 1, 19 L.Ed. 870. The consideration of all of these elements should result in an award which will express reasonable actual compensation for the labor, risk, and skill of the salvor and the use of his vessel and appliances, and an added amount based on the degree of peril of property and life and the value of the property saved and lost sufficient, to promote the highest degree of readiness and efficiency for the relief of vessels in distress.”
In The Blackwall, 10 Wall. 1, 14, 19 L.Ed. 870, it was said:
“Compensation as salvage is not viewed by the admiralty courts merely as pay, on the principle of a quantum meruit, or as a remuneration pro opere et labore, but as as reward given for perilous services, voluntarily rendered, and as an inducement to seamen and others to embark in such undertakings to save life and property. * * *
“Public policy encourages the hardy and adventurous mariner to engage in these laborious and sometimes dangerous enterprises, and with a view to withdraw from him every temptation to embezzlement and dishonesty, the law allows him, in case he is successful, a liberal compensation.”
The libelants urge that the total award should be $450,000, or about one half of the salvage value of the Fairisle, to be apportioned two-thirds .to the crew, and one-third to the owners of the Simmons if they should ever make a claim. We agree with the District Judge that such an award would be absurdly excessive. Although courts have sometimes awarded 50 per cent, of the property saved in derelict cases, where the award is usually highest, there is no hard and fast rule as to the percentage to be awarded, and the modern tendency is to award less than 50 per cent, even in cases of derelict. 1 Benedict on Admiralty 340. Even the older cases are by no means so liberal as libelants are asking us here to be. An exhaustive note to The Lamington, 2 Cir., 86 F. 675, 685-696, collected 125 cases from 1797 to 1896. In only 41 of them was the award said to be 50 per cent, and over, and these cases involved derelicts, extreme difficulty or danger, or comparatively small total value saved. Moreover, several of them did not award 50 per cent, of net value saved, but only 50 per cent, of certain classes of property saved. Thirty-nine cases awarded between 25 and 50 per cent, and 45 cases awarded less than 25 per cent. In general, the higher the value of'the property saved, the lower the percentage of the award, and most of the cases involving $100,000 and more awarded less than 25 per cent. Secondly, insofar as libelants’ computation is based on apportioning two-thirds of the award to the crew, it is contrary to the tendency of the authorities. Although there is,- of course, no fixed rule, the salvor ship generally receives a greater proportion of the total award than its crew. Robinson on Admiralty, (1939), 746-7. In the instant case, the Simmons, which was not a professional salvage craft, ran a considerable risk of stranding; and there was no other vessel nearby that could have done the job. Even where the crew was exposed to considerable danger and showed unusual skill, and the salvor ship was in actual operation for only a short time and without much danger, the crew has been awarded only somewhat more than 50 per cent. The Shreveport, D.C.E.D.S.C., 42 F.2d 524.
While precedents are not strictly controlling in salvage cases, we think that considering the amount yet to be paid to crew members who are not libelants, and to the ship, whatever its precise proportion may be determined to be, the award of $45,-100 is well within the permissible limits marked out by the decided cases. It would not be profitable to spell out in detail the comparison between the case at bar and some of the authorities dealing with similar facts, but we think that reference to the cases listed in the margin, all of which dealt with refloating stranded vessels, will indicate the reasonableness of the District Judge’s decision.
The owners of the Fairisle contend that it was error to give weight to the depreciated value of the dollar in fixing the amount of the award. They argue that the amount of a salvage award is essentially a fraction of the value of the ship saved, and since changes in the price level affect numerator and denominator alike, the awards in the older cases truly reflect the proper percentage to award in the case at bar. This court, however, has already decided the point. It was noted in The Kia Ora, 4 Cir., 252 F. 507, 509, that whatever may have been the rule in the past, the salvage award is no longer computed on a percentage basis; and the court stressed the rise in the general price level as one of its reasons for increasing the award of the District Court. The Kia Ora, supra, 252 F. at page 511.
Affirmed.
ln Cape Fear Towing & Transportation v. Pearsall, 4 Cir., 90 F. 435, this court allowed an apportionment of two-thirds to owners and one-third to crew, commenting on the increasing ten&ency to he more liberal to the owners. In Rivers v. Lockwood, D.C.E.D.S.C., 239 F. 380, where the services lasted only a short while, the crew received only 10-20 per cent, of the total award. See also The Morzhovoi, D.C.W.D.Wash., 20 F.2d 265 (services primarily towing, no special skill required); Societa Commerciale Italiana di Nav. v. Maru Nav. Co., 4 Cir., 280 F. 334.
Th® Kia Ora, 4 Cir., 252 F. 507 (total saved about $3,900,000, possible danger from storms, about one week’s work, salvor ship $450,000, work skillfully performed, award $150,‘000); The Noelle, D.C.E.D.Va., 263 F. 590 ($1,625,000 saved value, salvor a wrecking tug, six hours’ work, no peril to salvor, $35,000 award); The Teresa Aceama, D.C.E.D. Va., 254 F. 637, ($2,000,000 saved, salvor ship $250,000, no peril, two hours’ work, $12,000 award); The Bretanier, 4 Cir., 267 F. 178 ($500,000 saved value, no peril, two and a half day operation, $12,000 award).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_circuit
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America v. James LEFTWICH et al. Appeal of Clarence Frederick WRIGHT, No. 71-1283. Appeal of Charles CARPENTER, No. 71-1284.
Nos. 71-1283, 71-1284.
United States Court of Appeals, Third Circuit.
No. 71-1283 submitted Feb. 11, 1972.
No. 71-1284 argued Feb. 11, 1972.
Decided May 31, 1972.
Clarence F. Wright, pro se.
Harold Chipperson, East Orange, N. J., for appellant Carpenter.
James D. Fornari, Asst. U. S. Atty., Newark, N. J., for appellee.
Before MARIS and MAX ROSENN, Circuit Judges and VAN ARTSDALEN, District Judge.
OPINION OF THE COURT
MARIS, Circuit Judge.
These are appeals from judgments of conviction entered in the District Court for the. District of New Jersey pursuant to jury verdicts finding Clarence Frederick Wright and Charles Carpenter, co-defendants in a bank robbery case, guilty on the two counts of an indictment charging violations of 18 U.S.C. §§ 2113(a) and (d). The defendants Wright and Carpenter were charged, jointly with James Leftwich, Lawrence Pierce, John Sloan, Edmond Louis Carter, Jr., and Seaborn Drew Howell, with robbing a federally insured savings and loan association of the sum of $5,734.00, using dangerous weapons, and putting in jeopardy the lives of certain individuals. Prior to trial, the indictment was dismissed as to defendant Leftwich who had died. The trial was severed as to defendant Sloan, who had entered a plea of guilty to count one of the indictment and who later testified as a Government witness. During the trial the Government informed the trial judge that it would call defendant Pierce as a witness. Pierce was thereupon severed as a defendant and, subsequently, the indictment was dismissed as to him. At the close of the Government’s case the trial judge granted a motion of the defendant Carter for a judgment of acquittal. The jury returned verdicts of guilty on both counts against defendants Wright, Carpenter and Howell. The trial judge set aside the verdict against defendant Howell and entered a judgment of acquittal as to him. The defendants Wright and Carpenter were each sentenced to 15 years imprisonment and judgments were entered accordingly. From these judgments the defendants Wright and Carpenter took the appeals now before us. The two appeals were consolidated for the purpose of consideration. The appellants each raise a number of identical questions. In addition, the defendant Wright raises further questions.
We first address ourselves to the issues which have been raised by both defendants.
I
They contend that the trial judge committed reversible error in failing on voir dire examination, to ask the prospective jurors the question: “Does the fact that the defendants are all colored prevent the jury from fairly and impartially deciding the case?” This was one of a number of written questions which the defendant Wright submitted to the trial judge. All the defendants were black and all were represented by counsel. The record discloses that the trial judge went to considerable length in examining the prospective jurors in an effort to secure an impartial jury which would decide fairly as between the Government and the defendants, but he did not ask the specific question submitted by defendant Wright as above quoted. However, at the close of the voir dire examination of the twelve jurors initially selected he stated that he had substantially covered the written requests for supplementation of his interrogation. At this statement and at his question whether they were content counsel remained silent, raising no objection to the trial judge’s failure to propound the question in the specific language requested. Thrice thereafter during the proceedings counsel stated that the jury was satisfactory and after alternate jurors had been drawn again stated, in response to a question from the trial judge, that the jury was “Eminently satisfactory.” The jury was then sworn and instructed to appear for the trial on the following Monday morning and the remaining prospective jurors were excused. On the following Monday morning counsel for the defendants informed the trial judge that they now objected to his failure on the preceding Friday to interrogate the prospective jurors with respect to “the treatment of the defendants, be they black or white, in the same manner, and the fact that the jury would not, because of their color alone, find them to be telling truths or lies on that basis.” The trial judge did not sustain the objection but proceeded with the trial.
In support of their contention that the trial judge erred in failing to make the requested inquiry of the jurors as to racial prejudice, they cite Aldridge v. United States, 1931, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054; Frasier v. United States, 1 Cir. 1959, 267 F.2d 62; King v. United States, 1966, 124 U.S.App.D.C. 138, 362 F.2d 968; United States v. Gore, 4 Cir. 1970, 435 F.2d 1110, and United States v. Carter, 6 Cir. 1971, 440 F.2d 1132. It is true that in those cases it was held reversible error to refuse to interrogate the jurors as to possible racial prejudice. But we do not think that they are applicable to the facts of this case. For here the trial judge went to pains to instruct the jurors that impartiality was required and to inquire of them whether they would be completely impartial as between the Government and the defendants and whether they “could decide the ease fairly and without prejudice,” and, although counsel for defendant Wright had requested the trial judge to inquire as to racial prejudice, this request was not pressed on the day the jury was empanelled but, on the contrary, as we have seen, counsel remained silent when the trial judge stated his belief that he had covered the substance of all their requests and they thereafter stated repeatedly that the jury was satisfactory and that they were content. The voir dire examination had been completed, the selected jurors sworn and the other prospective jurors excused on a Friday. It was not, as we have seen, until the following Monday that defendants raised the objection which they now press. We think that the objection came too late and that under the circumstances the trial judge’s instructions to and in interrogation of the jurors on Friday, when they were being selected, adequately covered the matter of prejudice, racial or other, as counsel after hearing the judge’s statements on that day obviously believed that they did.
II
The defendants contend that the district court erred in admitting evidence that three of the defendants had stolen an automobile three days before the robbery, arguing that this evidence was so prejudicial as to deny them a fair trial. It is, of course, the rule that evidence of other offenses wholly independent of the one charged is inadmissible when offered merely to show character or proclivity toward criminal eon-duct. But this rule is subject to the exception that such evidence is admissible when offered for another proper purpose, such as preparation for the crime charged. United States v. Persico, 2 Cir. 1970, 425 F.2d 1375, 1384, cert. den. 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108; Ignacio v. People of Territory of Guam, 9 Cir. 1969, 413 F.2d 513, 519-520, cert. den. 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124; Rule 404(b), Proposed Rules of Evidence for the United States District Courts and Magistrates. Here the evidence indicated that the automobile stolen was used by the defendants as a getaway car and was found parked close to the apartment where the defendants gathered after the robbery. We think that the trial judge did not err in admitting evidence of the automobile theft thus shown to have been committed in preparation for the commission of the crime with which the defendants are here charged.
Ill
The defendants contend that it was error to permit a codefendant, Pierce, to testify as a witness for the Government when he had been present in the courtroom during a period of time during which an order had been in effect excluding all witnesses from the courtroom other than the witness actually testifying. There are two answers to this contention. The first is that Pierce as a defendant had a constitutional right to be present in the courtroom during the trial so long as he was one of the defendants then on trial, as he continued to be until his case was severed which took place after the immediately preceding witness had finished his direct testimony and nearly all of his testimony on cross-examination. And the second answer is that a witness is not disqualified from testifying merely because of a violation of a sequestration order but may nonetheless be permitted to testify in the sound discretion of the court. Holder v. United States, 1893, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010. Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, upon which the defendants rely, is wholly distinguishable on its facts. There was no abuse of discretion in permitting Pierce to testify for the Government.
IV
The defendants contend that the district court erred in denying their motion for a new trial based on after discovered evidence which, they assert, established that they were denied a fair trial by reason of perjured testimony of defendant Pierce knowingly offered by the Government. They claimed that defendant Pierce in an affidavit recanted a part of his testimony at trial and indicated that he was coerced into giving it by his counsel and counsel for the Government. The district court held three hearings on the motion, taking the testimony of Pierce, of his counsel, of Government counsel and of an FBI agent. The court found that the testimony thus adduced did not support the allegations of the motion and accordingly denied it. It is settled that such a factual determination by the district court in passing upon a motion for a new trial based upon after discovered evidence will not be set aside unless it clearly appears that the findings are wholly unsupported by the evidence. United States v. Johnson, 1946, 327 U.S. 106, 111-113, 66 S.Ct. 464, 90 L.Ed. 562. We have examined the evidence here. No useful purpose would be served by recounting it. Suffice it to say that it amply supports the court’s findings. There is no merit in this contention of the defendants.
V
The defendants contend that they were prejudiced by improper remarks by Government counsel. They allege that Government counsel in addressing the jury usurped the functions of the trial judge in defining the law, made allegations which were not proved during the trial and gave the defendants “a criminal record by characterization and association.” All this, they urge, was prejudicial within the rule of Berger v. United States, 1935, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. We cannot agree that the remarks of Government counsel, read in their proper context, were “foul blows” within the meaning of the Berger rule. Trials are rarely, if ever, perfect and improprieties of argument by counsel to the jury do not call for a new trial unless they are so gross as probably to prejudice the defendant and the prejudice has not been neutralized by the trial judge before submission of the case to the jury. Keeble v. United States, 8 Cir. 1965, 347 F.2d 951, 956. In this regard the trial judge who heard the argument has considerable discretion in determining whether lasting prejudice to a defendant has resulted. Cline v. United States, 8 Cir. 1968, 395 F.2d 138, 141-142. Here the trial judge carefully instructed the jury that the arguments of counsel were not evidence. Under all the circumstances we are not persuaded that counsel’s statements had any prejudicial effect upon the jury.
VI
The defendants object to the trial judge’s telling the jury at the close of counsels’ summations late in the afternoon that he would not charge the jury “tonight for the reason that I don’t like to have Jurors, particularly lady Jurors, going home in the darkness in this city.” Defendants’ counsel excepted to this statement as prejudicial for the reason, as they asserted, that “the obvious implication behind that is that crime in the City of Newark ... is generally depicted as being attributable to Negro citizens,” that this was the inference conveyed to the jury and that since some of the defendants came from Newark the comment was prejudicial to them. The contention is ingenious but in our opinion wholly without merit.
VII
Finally the defendants join in asserting that since the trial judge granted a motion to dismiss the indictment as to defendant Carter following the Government’s case in chief the jury should have found the remaining defendants not guilty since the evidence as to them was identical. Their position is buttressed, they argue, by the fact that the trial judge, after the verdict of guilty was rendered, granted defendant Howell’s motion for an acquittal. The argument ignores the fact, however, that the defendants Wright and Carpenter were different individuals from Carter and Howell, and played different roles in the action involved. It was, therefore, quite possible that evidence which failed to establish the connection of Carter and Howell with the robbery did satisfy the judge and jury that Wright and Carpenter were participants. In any event, it is not for this court on appeal to weigh the evidence. The verdicts of the jury must be sustained if there is substantial evidence to support them, taking the view most favorable to the Government. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680. We are satisfied that there was substantial evidence in this case to support the verdicts against defendants Wright and Carpenter.
We turn, then, to the additional claims which defendant Wright makes on his own behalf.
VIII
Wright asserts that the Government deliberately withheld favorable information which revealed that defendant Sloan, and not he, had stolen the getaway car. This contention is, however, wholly based upon an inadvertent misstatement by Government counsel in his opening to the jury in which, as the context clearly shows, the word “car” was erroneously used for “apartment.” It has no merit.
IX
Wright contends that the Government knew that the owner of the stolen getaway car had positively identified defendant Sloan as one of the individuals who robbed him and took his car but suppressed this evidence to Wright’s prejudice. The short answer to this contention is that as the result of defendants’ counsel’s objections evidence as to the men who took the car was rejected, the owner’s testimony being limited solely to the fact that his automobile and registration were stolen. While prosecuting officers have an obligation to disclose material exculpatory evidence there must be some evidence to support a charge of suppression of such evidence. There was none here.
X
Wright next contends that since, as he alleges, he was arrested without a warrant and without probable cause, the search incidental to the arrest was unlawful and the district court, therefore, erred in refusing to suppress the automobile registration found in a search of his clothes following his arrest.
At the hearing on the motion to suppress, Government counsel informed the district court that the automobile registration alone was material to the ease and that all other things taken during the search would be returned to Wright. At the hearing Keogh, an agent of the FBI, testified that he, together with agents Genakos, Frank and Gerrity, went to Wright’s residence on April 18, 1969, about 10:20 A.M., that a warrant for the arrest of Wright had been issued and was in the file of the FBI in Newark but the agents did not have the warrant with them; that Wright was dressed in pajamas; that he was advised that he was under arrest and was searched. Agent Gerrity testified that Wright requested clothing before being taken to 'the FBI office in Newark; that he was brought upstairs to his room and the clothes taken from the closet were searched; that in the pocket of a jacket Gerrity found a New Jersey motor vehicle registration in the name of the individual whose car had been stolen and used as a getaway car in the bank robbery for which Wright was being arrested, and that as a result of the search other items were seized also. Wright’s motion to suppress the automobile registration was based on the ground that no evidence was produced to support any of the facts set forth in the affidavit upon which the warrant was issued; that the affidavit was based upon a statement made by defendant Leftwich, the validity of which was attacked as procured under duress and promises of benefit. Agent Keogh testified as to his familiarity with the bank robbery here involved, that he had arrested defendants Leftwich and Pierce and thereafter Leftwich was interrogated and furnished a statement, that he was familiar with the contents of the affidavit used in support of the complaint and warrant filed in this case, and that he had knowledge of defendant Wright’s involvement in the bank robbery before he went to Wright’s home. After hearing the evidence, the district judge orally found that the arrest warrant which was dated April 18, 1969, was in effect at the time of the arrest and that the warrant was supported by an affidavit which established probable cause and, concluding that the arrest was lawful and that any search that was conducted was incidental to a lawful arrest, the motion to suppress the evidence obtained by the search was denied.
Wright says that no warrant was issued or obtained until the motion •to suppress the evidence was filed. The district court, however, found that the warrant was issued on April 18th, the day of Wright’s arrest and we are satisfied that the finding was correct. While it is true that the arresting agents did not have the warrant with them at the time of arrest, they were not required to have it in their possession if it was outstanding at that time. Rule 4(c) (3), F.R.Crim.P., Gill v. United States, 5 Cir. 1970, 421 F.2d 1353, 1355.
The defendant Wright challenges the sufficiency of the affidavit used in obtaining the search warrant in this case. The testimony presented at the hearing on the motion to suppress showed that the facts were based on the statements of defendant Leftwich, who implicated Wright and others, as well as himself, in the commission of the bank robbery. The district court found the information obtained by the FBI was sufficient to establish probable cause for defendant’s arrest and we agree. See United States v. Ventresca, 1965, 380 U.S. 102, 107-108, 85 S.Ct. 741, 13 L.Ed.2d 684, and United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723.
This brings us to the question whether the search conducted by the agents was reasonable. It is undisputed that Wright required street clothes in order to accompany the FBI Agents to the Newark office and that, in his presence but prior to handing it to him, the agent searched the jacket in which the New Jersey motor vehicle registration was found. The defendant Wright does not here contend that this search was unreasonable and we are clear that it was entirely reasonable. His claim is that the search of his entire house was unreasonable. However, the only evidence which was admitted against the defendant Wright was the motor vehicle registration and the search for and seizure of that is, as we have said, not claimed to be violative of his constitutional rights. All the other items seized by the agents were returned to the defendant and whether they were or were not lawfully seized was not before the district court nor is that question before this court on this appeal. We conclude that the district court did not err in holding that the search for and seizure of the registration was valid. The motion to suppress that evidence was properly denied.
XI
Wright further contends that cruel and unusual punishments were inflicted upon him during his pretrial detention and prior to sentencing. These, however, are matters which are not before us on this appeal.
XII
Wright also contends that an illegal sentence was imposed upon him. We find, however, that the length of the term of his imprisonment is within that authorized by law. 18 U.S.C. § 2113(d).
XIII
And, finally, Wright claims that he was denied an adequate record to make a full showing on appeal. Our review of the record and the numerous objections of the defendant satisfies us that there is very little, if any, of the record which was not available to him and that he was not prejudiced in this regard.
Finding no error in the record in this ease the judgments of conviction entered in the district court against defendants Clarence Frederick Wright and Charles Carpenter will be affirmed.
. “The reason why I am putting these questions or why I will put these questions is because we want to find, if possible, a completely impartial jury to try this, and, for that matter, any other case in which a jury is selected.” [Tr. 25-26]
“¡Slow we are in the course of selecting an impartial jury. We believe that that is important . . . ” [Tr. 47]
“Do you understand we are selecting a jury for the purpose of achieving complete impartiality as between the Government on the one hand and the defendants on the other?” [Tr. 59]
“Do you believe you can serve as a completely impartial juror in a case of the nature which I have disclosed?” [Tr. 67]
“You think you could decide the case fairly and without prejudice as between the Government and the defendants?” [Tr. 76]
“Do you believe that in the light of your past experience and your husband’s business that you would have any difficulty in deciding such a case as between the Government and the defendants with complete impartiality?” [Tr. 77]
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
FREYTAG et al. v. COMMISSIONER OF INTERNAL REVENUE
No. 90-762.
Argued April 23, 1991
Decided June 27, 1991
Kathleen M. Sullivan argued the cause for petitioners. With her on the briefs were Brian Stuart Koukoutchos and Richard J. Sideman.
Deputy Solicitor General Roberts argued the cause for respondent. With him on the briefs were Solicitor General Starr, Assistant Attorney General Peterson, Stephen J. Marzen, Gary R. Allen, and Steven W. Parks
Erwin N. Griswold, pro se, and Patricia A. Dunn filed a brief of ami-cus curiae.
Justice Blackmun
delivered the opinion of the Court.
The leading Framers of our Constitution viewed the principle of separation of powers as the central guarantee of a just government. James Madison put it this way: “No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961). In this litigation, we must decide whether the authority that Congress has granted the Chief Judge of the United States Tax Court to appoint special trial judges transgresses our structure of separated powers. We answer that inquiry in the negative.
r — i
By the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U. S. C. § 7441, Congress “established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court.” It also empowered the Tax Court to appoint commissioners to assist its judges. § 958, 83 Stat. 734. By the Tax Reform Act of 1984, § 464(a), 98 Stat. 824, the title “commissioner” was changed to “special trial judge.” By § 463(a) of that Act, 98 Stat. 824, and by § 1556(a) of the Tax Reform Act of 1986, 100 Stat. 2754, Congress authorized the Chief Judge of the Tax Court to appoint and assign these special trial judges to hear certain specifically described proceedings and “any other proceeding which the chief judge may designate.” 26 U. S. C. §§ 7443A(a) and (b). The Tax Court presently consists of 19 judges appointed to 15-year terms by the President, by and with the advice and consent of the Senate. §§ 7443(a), (b), and (e).
H
This complex litigation began with determinations of federal income tax deficiencies against the several petitioners, who had deducted on their returns approximately $1.5 billion in losses allegedly realized in a tax shelter scheme. When petitioners sought review in the Tax Court in March 1982, their cases were assigned to Tax Court Judge Richard C. Wilbur. Trial began in 1984. Judge Wilbur became ill in November 1985, and the Chief Judge of the Tax Court assigned Special Trial Judge Carleton D. Powell to preside over the trial as evidentiary referee, with the proceedings videotaped. App. 2. When Judge Wilbur’s illness forced his retirement and assumption of senior status effective April 1, 1986, the cases were reassigned, with petitioners’ specified consent, Brief for Petitioners 8; Tr. of Oral Arg. 10, to Judge Powell for preparation of written findings and an opinion. App. 8, 12-14. The judge concluded that petitioners’ tax shelter scheme consisted of sham transactions and that peti-
HH tioners owed additional taxes. The Chief Judge adopted Judge Powell’s opinion as that of the Tax Court. 89 T. C. 849 (1987).
Petitioners took an appeal to the Court of Appeals for the Fifth Circuit. It affirmed. 904 F. 2d 1011 (1990). Petitioners did not argue to the Court of Appeals, nor do they argue here, that the Tax Court is not a legitimate body. Rather, they contended that the assignment of cases as complex as theirs to a special trial judge was not authorized by § 7443A, and that this violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2. The Court of Appeals ruled that because the question of the Special Trial Judge’s authority was “in essence, an attack upon the subject matter jurisdiction of the special trial judge, it may be raised for the first time on appeal.” 904 F. 2d, at 1015 (footnote omitted). The court then went on to reject petitioners’ claims on the merits. It concluded that the Code authorized the Chief Judge of the Tax Court to assign a special trial judge to hear petitioners’ cases and that petitioners had waived any constitutional challenge to this appointment by consenting to a trial before Judge Powell. Id., at 1015, n. 9.
We granted certiorari, 498 U. S. 1066 (1991), to resolve the important questions the litigation raises about the Constitution’s structural separation of powers.
h — l ► — (
Section 7443A(b) of the Internal Revenue Code specifically authorizes the Chief Judge of the Tax Court to assign four categories of cases to special trial judges: “(1) any declaratory judgment proceeding,” “(2) any proceeding under section 7463,” “(3) any proceeding” in which the deficiency or claimed overpayment does not exceed $10,000, and “(4) any other proceeding which the chief judge may designate.” In the first three categories, the Chief Judge may assign the special trial judge not only to hear and report on a case but also to decide it. §7443A(c). In the fourth category, the Chief Judge may authorize the special trial judge only to hear the case and prepare proposed findings and an opinion. The actual decision then is rendered by a regular judge of the Tax Court.
Petitioners argue that adjudication by the Special Trial Judge in this litigation exceeded the bounds of the statutory authority that Congress has conferred upon the Tax Court. Despite what they concede to be the “sweeping language” of subsection (b)(4), Brief for Petitioners 6, petitioners claim that Congress intended special trial judges to preside over only the comparatively narrow and minor matters covered by subsections (b)(1), (2), and (3).
The plain language of § 7443A(b)(4) surely authorizes the Chief Judge’s assignment of petitioners’ cases to a special trial judge. When we find the terms of a statute unambiguous, judicial inquiry should be complete except in rare and exceptional circumstances. Demarest v. Manspeaker, 498 U. S. 184, 190 (1991). Subsection (b)(4) could not be more clear. It states that the Chief Judge may assign “any other proceeding” to a special trial judge for duties short of “mak[ing] the decision.” The subsection’s text contains no limiting term that restricts its reach to cases that are minor, simple, or narrow, as petitioners urge. We have stated that courts “are not at liberty to create an exception where Congress has declined to do so.” Hallstrom v. Tillamook County, 493 U. S. 20, 27 (1989).
Nothing in the legislative history contradicts the broad sweep of subsection (b)(4)’s language. In proposing to authorize the Chief Judge to assign “any other proceeding” to the special trial judges, the Committee on Ways and Means stated that it intended “to clarify” that any other proceeding could be assigned to special trial judges “so long as a Tax Court judge must enter the decision.” H. R. Rep. No. 98-432, pt. 2, p. 1568 (1984). The Report goes on to explain:
“A technical change is made to allow the Chief Judge of the Tax Court to assign any proceeding to a special trial judge for hearing and to writé proposed opinions, subject to review and final decision by a Tax Court judge, regardless of the amount in issue. However, special trial judges will not be authorized to enter decisions in this latter category of cases.” Ibid.
The Conference Report “follows the House Bill,” H. R. Conf. Rep. No. 98-861, p. 1127 (1984), and, like the House Report, indicates that Congress knowingly removed the jurisdictional requirement of a maximum amount in dispute in order to expand the authority of special trial judges to hear, but not to decide, cases covered by subsection (b)(4).
Petitioners appear not to appreciate the distinction between the special trial judges’ authority to hear cases and prepare proposed findings and opinions under subsection (b)(4) and their lack of authority actually to decide those cases, which is reserved exclusively for judges of the Tax Court. Because they do not distinguish between hearing a case and deciding it, petitioners advance two arguments that, it seems to us, miss the mark.
Petitioners first argue that the legislative history notes that the amendment to what is now § 7443A was merely a “technical” change and cannot be read to transfer dispositive power to special trial judges. Petitioners are correct that the 1984 amendment neither transferred decisional power nor altered the substantive duties of the special trial judges. Congress has limited the authority of special trial judges to enter decisions to the narrow category of cases set forth in subsections (b)(1), (2), and (3). The scope of the special trial judges’ authority to hear and decide cases, however, has little, if any, relevance to the category of cases that the special trial judges may hear but not decide.
Since the enactment of the Revenue Act of 1943, § 503, 58 Stat. 72, the Tax Court has possessed authority to appoint commissioners to assist it in particular cases. Special trial judges and their predecessors, the commissioners, have been authorized for almost a half century to hear any case before the Tax Court in the discretion of its Chief Judge. In practice, before 1984, special trial judges often heard and reported on large and complex cases. Accordingly, when Congress adopted subsection (b)(4), it codified the Chief Judge’s discretion to assign cases like petitioners’ to a special trial judge for hearing and preparation of a report. The 1984 amendment was “technical” in light of the historical development of the special trial judges’ role; the technical nature of the amendment, however, does not alter the wide-ranging effect of the statutory text’s grant of authority to the Chief Judge to assign “any other proceeding” within the Tax Court’s jurisdiction to a special trial judge.
Petitioners also argue that the phrase “any other proceeding” is a general grant of authority to fill unintended gaps left by subsections (b)(1), (2), and (3). Reading subsection (b)(4) as a catchall provision, petitioners argue that its meaning must be limited to cases involving a small amount of money because any other interpretation would render the limitations imposed by subsections (b)(1), (2), and (3) a nullity. In support of this argument, petitioners rely on this Court’s decision in Gomez v. United States, 490 U. S. 858 (1989).
We held in Gomez that the Federal Magistrates Act’s general grant of authority allowing magistrates to “be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States,” 28 U. S. C. § 636(b)(3), did not permit a magistrate to supervise juror voir dire in a felony trial over a defendant’s objection. In so holding, we explained:
“When a statute creates an office to which it assigns specific duties, those duties outline the attributes of the office. Any additional duties performed pursuant to a general authorization in the statute reasonably should bear some relation to the specified duties.” 490 U. S., at 864.
In the Magistrates Act, the list of specifically enumerated duties followed the general grant of authority and provided the outlines for the scope of the general grant. Unlike the Magistrates Act, §7443A explicitly distinguishes between the categories of cases enumerated in subsections (b)(1), (2), and (3), which are declaratory judgment proceedings and cases involving $10,000 or less, and the category of “any other proceeding” found in subsection (b)(4).
The lesser authority exercised by special trial judges in proceedings under subsection (b)(4) also prevents that subsection from serving as a grant of general authority to fill any gaps left in the three preceding subsections. Special trial judges may hear and decide declaratory judgment proceedings and the limited-amount cases. A special trial judge, however, cannot render the final decision of the Tax Court in a case assigned under subsection (b)(4). If the cases that special trial judges may hear, but not decide, under subsection (b)(4) are limited to the same kind of cases they could hear and decide under the three preceding subsections, then subsection (b)(4) would be superfluous. Our cases consistently have expressed “a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.” Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 562 (1990). See also Automobile Workers v. Johnson Controls, Inc., 499 U. S. 187, 201 (1991). The scope of subsection (b)(4) must be greater than that of subsections (b)(1), (2), and (3).
We conclude that subsection (b)(4) permits the Chief Judge to assign any Tax Court proceeding, regardless of complexity or amount, to a special trial judge for hearing and the preparation of proposed findings and written opinion. The statute’s language, structure, and history permit no other conclusion.
IV
This construction of § 7443A raises a constitutional issue to which we now must turn. Petitioners submit that if subsection (b)(4) permits a special trial judge to preside over the trial of any Tax Court case, then the statute violates the Appointments Clause of the Constitution, Art. II, §2, cl. 2. According to petitioners, a special trial judge is an “Office[r]” of the United States who must be appointed in compliance with the Clause. The Clause reads:
“He [the President]... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Thus, the Constitution limits congressional discretion to vest power to appoint “inferior Officers” to three sources: “the President alone,” “the Heads of Departments,” and “the Courts of Law.” Petitioners argue that a special trial judge is an “inferior Office[r],” and also contend that the Chief Judge of the Tax Court does not fall within any of the Constitution’s three repositories of the appointment power.
A
We first address the Commissioner’s argument that petitioners have waived their right to challenge the constitutional propriety of § 7443A. The Commissioner contends that petitioners waived this right not only by failing to raise a timely objection to the assignment of their cases to a special trial judge, but also by consenting to the assignment.
The roots of the separation-of-powers concept embedded in the Appointments Clause are structural and political. Our separation-of-powers jurisprudence generally focuses on the danger of one branch’s aggrandizing its power at the expense of another branch. See Mistretta v. United States, 488 U. S. 361, 382 (1989). The Appointments Clause not only guards against this encroachment but also preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power.
The Commissioner correctly notes that petitioners gave their consent to trial before the Special Trial Judge. This Court in the past, however, has exercised its discretion to consider nonjurisdictional claims that had not been raised below. See Grosso v. United States, 390 U. S. 62, 71-72 (1968); Glidden Co. v. Zdanok, 370 U. S. 530, 535-536 (1962); Hormel v. Helvering, 312 U. S. 552, 556-560 (1941). Glidden expressly included Appointments Clause objections to judicial officers in the category of nonjurisdictional structural constitutional objections that could be considered on appeal whether or not they were ruled upon below:
"And in Lamar v. United States, 241 U. S. 103, 117-118, the claim that an intercircuit assignment... usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review.” Glidden, 370 U. S., at 536 (Harlan, J., announcing the judgment of the Court).
Like the Court in Glidden, we are faced with a constitutional challenge that is neither frivolous nor disingenuous. The alleged defect in the appointment of the Special Trial Judge goes to the validity of the Tax Court proceeding that is the basis for this litigation. It is true that, as a general matter, a litigant must raise all issues and objections at trial. But the disruption to sound appellate process entailed by entertaining objections not raised below does not always overcome what Justice Harlan called “the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers.” Ibid. We conclude that this is one of those rare cases in which we should exercise our discretion to hear petitioners’ challenge to the constitutional authority of the Special Trial Judge.
In reaching this conclusion, we note that we are not persuaded by the Commissioner’s request that this Court defer to the Executive Branch’s decision that there has been no legislative encroachment on Presidential prerogatives under the Appointments Clause in connection with §7443A. According to the Commissioner, the structural interests implicated in this litigation are those of the Executive Branch, which can be expected to look out for itself. It is claimed, accordingly, that there is no need for this Court to be concerned about protecting the separation-of-powers interests at stake here.
We are not persuaded by this approach. The Commissioner, we believe, is in error when he assumes that the interest at stake is the Executive’s own appointment power. The structural principles embodied in the Appointments Clause do not speak only, or even primarily, of Executive prerogatives simply because they are located in Article II. The Appointments Clause prevents Congress from dispensing power too freely; it limits the universe of eligible recipients of the power to appoint. Because it articulates a limiting principle, the Appointments Clause does not always serve the Executive’s interests. For example, the Clause forbids Congress to grant the appointment power to inappropriate members of the Executive Branch. Neither Congress nor the Executive can agree to waive this structural protection. “The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review.” INS v. Chadha, 462 U. S. 919, 942, n. 13 (1983). The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic.
B
We turn to another preliminary issue in petitioners’ Appointments Clause challenge. Petitioners argue that a special trial judge is an “inferior Office[r]” of the United States. If we disagree, and conclude that a special trial judge is only an employee, petitioners’ challenge fails, for such “lesser functionaries” need not be selected in compliance with the strict requirements of Article II. Buckley v. Valeo, 424 U. S. 1, 126, n. 162 (1976).
The Commissioner, in contrast to petitioners, argues that a special trial judge assigned under § 7443A(b)(4) acts only as an aide to the Tax Court judge responsible for deciding the case. The special trial judge, as the Commissioner characterizes his work, does no more than assist the Tax Court judge in taking the evidence and preparing the proposed findings and opinion. Thus, the Commissioner concludes, special trial judges acting pursuant to § 7443A(b)(4) are employees rather than “Officers of the United States.”
“[A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States/ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of [Article II].” Buckley, 424 U. S., at 126. The two courts that have addressed the issue have held that special trial judges are “inferior Officers.” The Tax Court so concluded in First Western Govt. Securities, Inc. v. Commissioner, 94 T. C. 549, 557-559 (1990), and the Court of Appeals for the Second Circuit in Samuels, Kramer & Co. v. Commissioner, 930 F. 2d 975, 985 (1991), agreed. Both courts considered the degree of authority exercised by the special trial judges to be so “significant” that it was inconsistent with the classifications of “lesser functionaries” or employees. Cf. Go-Bart Importing Co. v. United States, 282 U. S. 344, 352-353 (1931) (United States commissioners are inferior officers). We agree with the Tax Court and the Second Circuit that a special trial judge is an “inferior Office[r]” whose appointment must conform to the Appointments Clause.
The Commissioner reasons that special trial judges may be deemed employees in subsection (b)(4) cases because they lack authority to enter a final decision. But this argument ignores the significance of the duties and discretion that special trial judges possess. The office of special trial judge is “established by Law,” Art. II, § 2, cl. 2, and the duties, salary, and means of appointment for that office are specified by statute. See Burnap v. United States, 252 U. S. 512, 516-517 (1920); United States v. Germaine, 99 U. S. 508, 511-512 (1879). These characteristics distinguish special trial judges from special masters, who are hired by Article III courts on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute. Furthermore, special trial judges perform more than ministerial tasks. They take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. In the course of carrying out these important functions, the special trial judges exercise significant discretion.
Even if the duties of special trial judges under subsection (b)(4) were not as significant as we and the two courts have found them to be, our conclusion would be unchanged. Under §§7443A(b)(l), (2), and (3), and (c), the Chief Judge may assign special trial judges to render the decisions of the Tax Court in declaratory judgment proceedings and limited-amount tax cases. The Commissioner concedes that in cases governed by subsections (b)(1), (2), and (3), special trial judges act as inferior officers who exercise independent authority. But the Commissioner urges that petitioners may not rely on the extensive power wielded by the special trial judges in declaratory judgment proceedings and limited-amount tax cases because petitioners lack standing to assert the rights of taxpayers whose cases are assigned to special trial judges under subsections (b)(1), (2), and (3).
This standing argument seems to us to be beside the point. Special trial judges are not inferior officers for purposes of some of their duties under § 7443A, but mere employees with respect to other responsibilities. The fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status under the Constitution. If a special trial judge is an inferior officer for purposes of subsections (b)(1), (2), and (3), he is an inferior officer within the meaning of the Appointments Clause and he must be properly appointed.
C
Having concluded that the special trial judges are “inferior Officers,” we consider the substantive aspect of petitioners’ Appointments Clause challenge. The principle of separation of powers is embedded in the Appointments Clause. Its relevant language bears repeating: “[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Congress clearly vested the Chief Judge of the Tax Court with the power to appoint special trial judges. An important fact about the appointment in this case should not be overlooked. This case does not involve an “interbranch” appointment. Cf. Morrison v. Olson, 487 U. S. 654, 675-677 (1988). However one might classify the Chief Judge of the Tax Court, there surely is nothing incongruous about giving him the authority to appoint the clerk or an assistant judge for that court. See id., at 676. We do not consider here an appointment by some officer of inferior officers in, for example, the Department of Commerce or Department of State. The appointment in this case is so obviously appropriate that petitioners’ burden of persuading us that it violates the Appointments Clause is indeed heavy.
Although petitioners bear a heavy burden, their challenge is a serious one. Despite Congress’ authority to create offices and to provide for the method of appointment to those offices, “Congress’ power... is inevitably bounded by the express language of Article II, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be ‘Officers of the United States.’” Buckley, 424 U. S., at 138-139 (discussing Congress’ power under the Necessary and Proper Clause).
The “manipulation of official appointments” had long been one of the American revolutionary generation’s greatest grievances against executive power, see G. Wood, The Creation of The American Republic 1776-1787, p. 79 (1969) (Wood), because “the power of appointment to offices” was deemed “the most insidious and powerful weapon of eighteenth century despotism.” Id., at 143. Those who framed our Constitution addressed these concerns by carefully husbanding the appointment power to limit its diffusion. Although the debate on the Appointments Clause was brief, the sparse record indicates the Framers’ determination to limit the distribution of the power of appointment. The Constitutional Convention rejected Madison’s complaint that the Appointments Clause did “not go far enough if it be necessary at all”: Madison argued that “Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.” 2 Records of the Federal Convention of 1787, pp. 627-628 (M. Farrand rev. 1966). The Framers understood, however, that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people. Thus, the Clause bespeaks a principle of limitation by dividing the power to appoint the principal federal officers — ambassadors, ministers, heads of departments, and judges — between the Executive and Legislative Branches. See Buckley, 424 U. S., at 129-131. Even with respect to “inferior Officers,” the Clause allows Congress only limited authority to devolve appointment power on the President, his heads of departments, and the courts of law.
With this concern in mind, we repeat petitioners’ central challenge: Can the Chief Judge of the Tax Court constitutionally be vested by Congress with the power to appoint? The Appointments Clause names the possible repositories for the appointment power. It is beyond question in this litigation that Congress did not intend to grant to the President the power to appoint special trial judges. We therefore are left with three other possibilities. First, as the Commissioner urges, the Tax Court could be treated as a department with the Chief Judge as its head. Second, as the amicus suggests, the Tax Court could be considered one of “the Courts of Law.” Third, we could agree with petitioners that the Tax Court is neither a “Departmen[t]” nor a “Cour[t] of Law.” Should we agree with petitioners, it would follow that the appointment power could not be vested in the Chief Judge of the Tax Court.
We first consider the Commissioner’s argument. According to the Commissioner, the Tax Court is a department because for 45 years before Congress designated that court as a “court of record” under Article I, see § 7441, the body was an independent agency (the predecessor Board of Tax Appeals) within the Executive Branch. Furthermore, the Commissioner argues that §7441 simply changed the status of the Tax Court within that branch. It did not remove the body to a different branch or change its substantive duties.
The Commissioner “readily” acknowledges that “the Tax Court’s fit within the Executive Branch may not be a perfect one.” Brief for Respondent 41. But he argues that the Tax Court must fall within one of the three branches and that the Executive Branch provides its best home. The reasoning of the Commissioner may be summarized as follows: (1) The Tax Court must fit into one of the three branches; (2) it does not fit into either the Legislative Branch or the Judicial Branch; (3) at one time it was an independent agency and therefore it must fit into the Executive Branch; and (4) every component of the Executive Branch is a department.
We cannot accept the Commissioner’s assumption that every part of the Executive Branch is a department, the head of which is eligible to receive the appointment power. The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers’ conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presence of the administrative state, a holding that every organ in the Executive Branch is a department would multiply indefinitely the number of actors eligible to appoint. The Framers recognized the dangers posed by an excessively diffuse appointment power and rejected efforts to expand that power. See Wood 79-80. So do we. For the Chief Judge of the Tax Court to qualify as a “Hea[d] of [a] Department],” the Commissioner must demonstrate not only that the Tax Court is a part of the Executive Branch but also that it is a department.
We are not so persuaded. This Court for more than a century has held that the term “Department” refers only to “ ‘a part or division of the executive government, as the Department of State, or of the Treasury,’ ” expressly “creat[ed]” and “giv[en]... the name of a department” by Congress. Germaine, 99 U. S., at 510-511. See also Burnap, 252 U. S., at 515 (“The term head of a Department means... the Secretary in charge of a great division of the executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet”). Accordingly, the term “Heads of Departments” does not embrace “inferior commissioners and bureau officers.” Germaine, 99 U. S., at 511.
Confining the term “Heads of Departments” in the Appointments Clause to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power just as the Commissioner’s interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. Their heads are subject to the exercise of political oversight and share the President’s accountability to the people.
Such a limiting construction also ensures that we interpret that term in the Appointments Clause consistently with its interpretation in other constitutional provisions. In Ger-maine, see 99 U. S., at 511, this Court noted that the phrase “Heads of Departments” in the Appointments Clause must be read in conjunction with the Opinion Clause of Art. II, § 2, cl. 1. The Opinion Clause provides that the President “may require the Opinion, in writing, of the principal Officer in each of the Executive Departments,” and Germaine limited the meaning of “Executive Department” to the Cabinet members.
The phrase “executive departments” also appears in § 4 of the Twenty-fifth Amendment, which empowers the Vice President, together with a majority of the “principal officers of the executive departments,” to declare the President “unable to discharge the powers and duties of his office.” The Amendment was ratified February 10, 1967, and its language, of course, does not control our interpretation of a prior constitutional provision, such as the Appointments Clause. Nevertheless, it is instructive that the hearings on the Twenty-fifth Amendment confirm that the term “department” refers to. Cabinet-level entities:
“[O]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists.... The intent... is that the Presidential appointees who direct the 10 executive departments named in 5 U. S. C. 1 [now codified as § 101], or any executive department established in the future, generally considered to comprise the President’s Cabinet, would participate... in determining inability.” H. R. Rep. No. 203, 89th Cong., 1st Sess., 3 (1965).
Even if we were not persuaded that the Commissioner’s view threatened to diffuse the appointment power and was contrary to the meaning of “Department” in the Constitution, we still could not accept his treatment of the intent of Congress, which enacted legislation in 1969 with the express purpose of “making the Tax Court an Article I court rather than an executive agency.” S. Rep. No. 91-552, p. 303 (1969). Congress deemed it “anomalous to continue to classify” the Tax Court with executive agencies, id., at 302, and questioned whether it was “appropriate for one executive agency [the pre-1969 tribunal] to be sitting in judgment on the determinations of another executive agency [the IRS].” Ibid.
Treating the Tax Court as a “Department” and its Chief Judge as its “Hea[d]” would defy the purpose of the Appointments Clause, the meaning of the Constitution’s text, and the clear intent of Congress to transform the Tax Court into an Article I legislative court. The Tax Court is not a “Departmen[t].”
Having so concluded, we now must determine whether it is one of the “Courts of Law,” as amicus suggests. Petitioners and the Commissioner both take the position that the Tax Court cannot be a “Cour[t] of Law” within the meaning of the Appointments Clause because, they say, that term is limited to Article III courts.
The text of the Clause does not limit the “Courts of Law” to those courts established under Article III of the Constitution. The Appointments Clause does not provide that Congress can vest appointment power only in “one supreme Court” and other courts established under Article III, or only in tribunals that exercise broad common-law jurisdiction. Petitioners argue that Article IPs reference to the “Courts of Law” must be limited to Article III courts because Article III courts are the only courts mentioned in the Constitution. It of course is true that the Constitution “nowhere makes reference to ‘legislative courts.’” See Glidden, 370 U. S., at 543. But petitioners’ argument fails nevertheless. We agree with petitioners that the Constitution’s terms are illuminated by their cognate provisions. This analytic method contributed to our conclusion that the Tax Court could not be a department. Petitioners, however, underestimate the importance of this Court’s time-honored reading of the Constitution as giving Congress wide discretion to assign the task of adjudication in cases arising under federal law to legislative tribunals. See, e. g., American Insurance Co. v. Canter, 1 Pet. 511, 546 (1828) (the judicial power of the United States is not limited to the judicial power defined under Article III and may be exercised by legislative courts); Williams v. United States, 289 U. S. 553, 565-567 (1933) (same).
Our cases involving non-Article III tribunals have held that these courts exercise the judicial power of the United States. In both Canter and Williams, this Court rejected arguments similar to the literalistic one now advanced by petitioners, that only Article III courts could exercise the judicial power because the term “judicial Power” appears only in Article III. In Williams, this Court explained that the power exercised by some non-Article III tribunals is judicial power:
“The Court of Claims... undoubtedly... exercises judicial power, but the question still remains — and is the vital question — whether it is the judicial power defined by Art. Ill of the Constitution.
“That judicial power apart from that article may be conferred by Congress upon legislative courts... is plainly apparent from the opinion of Chief Justice Marshall in American Insurance Co. v. Canter... dealing with the territorial courts.... [T]he legislative courts
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_appbus
|
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 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.
Jean H. PRANDINI, Individually, and on behalf of all other persons similarly situated v. NATIONAL TEA COMPANY and the Amalgamated Food Employees Union Local 590. Appeal of Jean H. PRANDINI, Individually, and on behalf of all other persons similarly situated, the representative Plaintiffs, and class Plaintiffs, above named, and their counsel, Michael P. Malakoff, Louise R. Malakoff, and Berger, Kapetan & Malakoff.
No. 77-2261.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) on Appellant’s Brief Only June 7, 1978.
Decided July 19, 1978.
Michael P. Malakoff, Louise Reiber Mala-koff, Berger, Kapetan & Malakoff, Pittsburgh, Pa., for appellant.
Joseph M. Maurizi, Balzarini, Walsh & Maurizi, Jerome B. Lieber, Berkman, Rus-lander, Pohl, Lieber & Engel, Jack J. Rosenberg, Raphael, Sheinberg & Barmen, P. A., Martin Lubow, Pittsburgh, Pa., for appel-lee.
Before ADAMS, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
This case, involving an award of attorneys’ fees in a Title VII class action settlement, is before us for a second time. Although we conclude that the district court did not err in many aspects of its fee award order, a recent decision of this court, filed after the district court’s order, and the district court’s misconception of Lindy II with respect to compensation for time spent litigating the issue of attorneys’ fees, require us reluctantly to vacate the district court’s order and remand for redetermination of the proper fee award.
I
The defendant National Tea Co. (National) had settled the plaintiff’s claims by agreeing to pay the plaintiff class approximately $100,000, plus expenses (calculated at $18,000). The settlement also provided that National would pay reasonable attorneys’ fees as awarded by the district court, up to $50,000. Thus two “funds” were created, a “damages fund” payable in full to the plaintiffs, and an “attorneys’ fees fund” payable as approved by the court to the attorneys. To the extent the “attorneys’ fees fund” exceeded the amount awarded as reasonable by the district court, that excess would revert to the defendants.
After a hearing on attorneys’ fees, the district court awarded a total of $35,000 in fees. On appeal, this court vacated the district court judgment and remanded for further proceedings, holding that the district court had not made the findings required by Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I) and Lindy Brothers Builders Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II). Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977) (Prandini I).
On remand, the district court made findings required by Lindy I and Lindy II. In fixing the lodestar, the district court judge reduced attorneys Lubow’s and Michael Ma-lakoff’s hourly rate from the $60 claimed to $40. The court reasoned that because Ma-lakoff and Lubow had initially agreed to pay one-third of their fee to attorney Roberts (see note 1 supra), with no understanding that she was to do any work, they in effect had agreed to provide legal services at no more than a net return of $40 per hour.
The district court also reduced the “number of hours” (a component of the lodestar) by 10% for all attorneys except Roberts. In Lubow’s case, this reduction was based on the duplication of work involved when he turned the case over to new counsel. In Michael Malakoff’s case, the 10% reduction was based on a purported overlapping of work with prior counsel, and evidence of overlapping work in the parallel and nearly identical case of Vallo v. The Great Atlantic and Pacific Tea Co., Civil No. 72-871 (W.D. Pa.), which was before the same district judge. In Louise Malakoff’s case, the reduction was due to “considerable duplication in the work descriptions of Michael P. and Louise R. Malakoff. . Dist. Ct.Op. of Aug. 18, 1977 at 3, App. at 268a.
The district court in accordance with Lindy I then allowed a contingency factor increase of 25%, and a quality factor increase of 25%, for both Malakoffs. The court allowed only 12 of the 22.75 hours claimed by Roberts, finding that only 12 hours of her time contributed to the advancement of the case.
Finally, the district court refused to award any attorneys’ fees for the time spent in successfully appealing the first fee award (i. e., in Prandini I), and in preparing the fee petitions.
The final district court award was as follows:
Berger, Kapetan & Malakoff $26,797.50
Rosenberg & Lubow $11,920.00
Sylvia Roberts $1,200.00
The remainder of the $50,000, i.e. $10,-082.50, as well as all accumulated interest (over $3,000), was to be returned to the defendant National. The firm of Berger, Kapetan & Malakoff has appealed. As in Prandini I, Lubow and Roberts have not appealed.
II
With respect to the $20 hourly rate reduction, the appellant attorneys contend that it was in reality a penalty for what the district court viewed as an unethical fee-splitting arrangement. They argue that a fee award may not be reduced because the trial judge finds that some of their conduct was unethical, that in any case their conduct was not unethical, and that the Disciplinary Rule which allegedly proscribes such conduct is inconsistent with the policy of Fed. R.Civ.P. 23 and is an unconstitutional abridgement of the fee petitioners’ first amendment associational rights and the litigants’ right to petition for redress of grievances.
We need not pass upon these arguments, however. Instead, we regard the district court’s determination in this respect as no more than a finding that the actual value that Lubow and Malakoff had assigned to their services (subject to eventual victory in the litigation) was $40 per hour, since they had agreed to pay one-third of their fee (i. e., one-third of $60 per hour, or $20 per hour) to Roberts without requiring that Roberts perform any services. Based on the evidence in the record, we cannot say that such a factual finding as to “hourly rate” is clearly erroneous. It will therefore be upheld. See Lindy II, supra, 540 F.2d at 109.
Ill
Appellants next challenge the district court’s 10% reduction based on alleged duplication of services between this case and Vallo. The court based this determination on the similarity of briefs and papers filed in the two cases.
As noted in Prandini I, we agree with the district court that “double payment for the same effort should be avoided by some apportionment of the fee between the two cases.” 557 F.2d at 1091 n.3. Accordingly, if the evidence in the record supported a finding that time charged in Prandini had previously been charged in Vallo for the exact same work, the district court would not have abused its discretion if it had rejected the duplicated hours in Prandini. By the same token-, if evidence in the record supported a finding that certain hours benefited both cases equally (as, for example, might well be the case where common legal research is incorporated into briefs in both cases), the district court would not have abused its discretion if it had prorated the. hours between the two cases. Neither of these two situations is presented by the record in this case.
Here, although the same district court judge passed upon the fee applications in Vallo and Prandini, there is no evidence in the record before this court that the hours attributed by Malakoff to his work in Prandini were the same hours for which charges were made in Vallo. (To the contrary, the evidence in this record indicates that Malakoff had not duplicated charges, but rather had charged either Prandini or Vallo for his time.) Similarly, there is no evidence, nor are there any findings, as to which hours benefited both cases equally. Absent evidence to support the district court’s finding of duplication or overlap, we cannot sustain the 10% fee reduction imposed by the district court.
We also recognize that the district court’s method of proration — viz a reduction of 10% “across the board” — is in general inconsistent with the requirement of Lindy I and Lindy II that fee awards must be based upon record evidence, and in particular does not comport with our recent case of Hughes v. Repko, 483 F.2d 578 (3d Cir. 1978).
In Hughes, which involved an award of attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, the district court had reduced the lodestar (number of hours X hourly rate) by 66%% because the plaintiffs had not prevailed on two-thirds of their claims. This court, in Chief Judge Seitz’s majority opinion, rejected the district court’s approach and held that “an unanalyzed allocation of hours will not be permissible in arriving at the lodestar.” Hughes v. Repko, supra, at 487. Instead, we required that the district court make findings as to the number of hours reasonably necessary to litigate the claims on which plaintiffs prevailed.
The clear thrust of Hughes is that district courts, in awarding attorneys’ fees, may not reduce an award by a particular percentage or amount (albeit for justifiable reasons) in an arbitrary or indiscriminate fashion. If the court believes that a fee reduction in the lodestar is indicated, it must analyze the circumstance requiring the reduction and its relation to the fee, and it must make specific findings to support its action. See also In the Matter of Meade Land and Development Co., Inc., 577 F.2d 858 (3d Cir. 1978).
Thus, in the case sub judice, if the district court judge is of the opinion that the “number of hours” to be compensated must be reduced because some of those hours were charged to or directly benefited a parallel case, the overlapping hours must be identified in the record, and the district court must make findings as to the number of hours of duplication. Here, since the district court made no such findings, we must reverse that part of the district court determination which reduced Malakoff’s award by an overall 10% because of alleged duplication of work.
As we have previously indicated, the district court could not have been aware of the importance which this Circuit has placed upon the need to identify specifically the lodestar components, because our decision in Hughes v. Repko, supra, was not rendered until nine months after the distinguished district court judge filed the order presently on appeal. It is true that our decisions concerning attorneys’ fees have in each instance required an analysis to be made of hours and rates. Yet until Hughes we had not clearly required that the allocation of hours for the purpose of determining the lodestar be analyzed so precisely, nor had we held that an automatic percentage reduction in the lodestar is “legally impermissible.” Hughes v. Repko, supra, at 486. Just as the district court judge in Merola v. Atlantic Richfield Co., 493 F.2d 292, 298 (3d Cir. 1974) (Merola I), had been in no position to foresee the application of the subsequently filed case of Lindy I to the facts of Merola, so too we appreciate that the district court judge in this case could not have foreseen our decision in Hughes. See also Gibson v. United States, 567 F.2d 1237, 1240, 1246 n.23 (3d Cir. 1977), cert. denied, 436 U.S. 925, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978).
IV
Appellant attorneys’ last contention is that the district court erred by refusing to award a fee for the successful appeal of the first fee award and for the time spent in the preparation of the fee petition. The district court had concluded (see Dist.Ct. Op., supra, at'5-7, App. at 270a-271a) that this case was controlled by Lindy II, wherein it was held that “[t]here being no benefit to the fund from services performed by [attorneys] in connection with their fee application, there should be no attorneys’ fee award from the fund for these services.” 540 F.2d at 111.
The district court erred in equating the situation in Lindy II with the fee application and “attorneys’ fees fund” in this case. Lindy II is an equitable common fund case. As such, attorneys’ fees are paid out of the one overall fund, and any increase in the attorneys’ fee award must necessarily result in a decrease in the plaintiffs’ actual recovery. The rationale behind the rule permitting awards of attorneys’ fees out of the fund in such cases is that the attorney’s services benefit the fund by creating, increasing or preserving it. See Lindy II, supra, 540 F.2d at 11. However, as the court in Lindy II reasoned, an attorney’s time expended in connection with the fee application or a fee appeal does not benefit the fund and hence does not benefit the plaintiff class. See id. In fact, it is at that point that the attorney’s interest becomes adverse to the interest of the class which he represents, see Prandini I, supra, 557 F.2d at 1020. To award attorneys’ fees for services which do not benefit the fund would no longer comport with the policy of the equitable fund doctrine, and we so held in Lindy II.
This case is not an equitable fund case. The award here was statutorily authorized, and was made pursuant to 42 U.S.C. § 2000e-5(k). Prandini I, supra, 557 F.2d at 1017. The fact that the parties agreed to a $50,000 ceiling on the ultimate fees which could be awarded does not, in our opinion, implicate Lindy II. That circumstance — the $50,000 ceiling — means only that any award approved by the court must be prorated to the extent it may exceed $50,000. See id. at 1018-19 & n.2.
While it is possible to characterize this $50,000 ceiling as a “fund”, that characterization has little analytical value, for in this case, the “attorneys’ fees fund” is separate from and independent of the plaintiffs’ “damages fund”. Here, the attorneys’ fees do not come out of, nor do they reduce, the plaintiffs’ recovery. Hence, the award in this case is unlike a common fund award, which does reduce the plaintiffs’ recovery. The fee award made here may be analyzed on the same terms as a statutory fee award, which the defendant would pay, and which would not in any way affect or reduce the plaintiffs’ award.
It is no answer to say that the attorneys’ fee in this case in effect reduced the plaintiffs’ recovery because the $100,000/$50,000 arrangement was made at the outset, and was an apportionment between the plaintiffs and their attorneys of the amount the defendants Were willing to pay in settlement. The fact is that any of the $50,000 which is not awarded to plaintiffs’ attorneys will not be paid to the plaintiffs to augment their settlement fund, as is the case in the normal common fund situation. See Lindy II. Rather, any such excess will be returned to the defendant National. App. at 132a. It is this fact which ultimately makes this case distinguishable from Lindy II, and requires a different result.
Thus, we hold that this case must be treated as one involving a statutorily authorized attorneys’ fee award. In" statutory fee award cases, the considerations of Lindy II and the equitable fund cases do not apply. Statutorily authorized fees are not paid out of the plaintiffs’ recovery, and the attorney in seeking his fee is not acting in any sense adversely to the plaintiffs’ interest. Hence, the time expended by attorneys in obtaining a reasonable fee is justifiably included in the attorneys’ fee application, and in the court’s fee award. If an attorney is required to expend time litigating his fee claim, yet may not be compensated for that time, the attorney’s effective rate for all the hours expended on the case will be correspondingly decreased. Recognizing this fact, attorneys may become wary about taking Title VII cases, civil rights cases, or other cases for which attorneys’ fees are statutorily authorized. Such a result would not comport with the purpose behind most statutory fee authorizations, viz, the encouragement of attorneys to represent indigent clients and to act as private attorneys general in vindicating congressional policies. See, e. g., Hughes v. Repko, supra, at 489 (opinion of Seitz, C. J.), 490 (Rosenn, J., concurring), 491-492 & n.5 (Garth, J., concurring). Indeed, courts have consistently held that attorneys may be awarded, under statutory fee authorizations, compensation for the expenses of and time spent litigating the issue of a reasonable fee — i. e. for time spent on the fee application and successful fee appeals. See, e. g., Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977); Panior v. Iberville Parish School Board, 543 F.2d 1117 (5th Cir. 1976); Hairston v. R & R Apartments, 510 F.2d 1090 (7th Cir. 1975); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Parker v. Matthews, 411 F.Supp. 1059 (D.D.C.1976), aff’d, 182 U.S. App.D.C. 322, 561 F.2d 320 (1977); Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal. 1974), aff’d, 550 F.2d 464 (9th Cir. 1977), rev’d on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (The Supreme Court specifically declined to consider the propriety of the fee award, 436 U.S. at 553, n.3, 98 S.Ct. 1975); Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y.1975), aff’d, 538 F.2d 10 (2d Cir. 1976).
We hold therefore that the appellant attorneys are entitled to be compensated for time spent successfully appealing the first fee award, and in preparing the fee petition, to the extent that time was reasonably necessary to obtaining a reasonable fee award, see Hughes v. Repko, supra, at 487 — a determination to be made in the first instance by the district court. Accordingly, we reverse that part of the district court’s order which did not include such time in its fee award.
V
We conclude that, while the opinion of the district court dated August 18,1977 was correct in most aspects, it was in error insofar as it (1) reduced without appropriate findings the fee allowed to Berger, Kap-etan & Malakoff by 10% because of alleged duplication of attorneys’ services with the Vallo case, and (2) declined to award the firm of Berger, Kapetan & Malakoff a fee for time spent in preparing and presenting the fee petition, and in successfully appealing the first fee award. Thus the district court’s order of August 18, 1977, granting an award of attorneys’ fees, will be vacated to the extent it grants a fee award of $26,797.50 to Berger, Kapetan & Malakoff and will be remanded for further proceedings consistent with this opinion and our opinion in Hughes v. Repko, supra.
. In Prandini I we announced a supervisory rule requiring that, in settlements of cases involving statutorily authorized attorneys’ fees, the damage settlement in favor of the plaintiffs should be made first and separate from the award of attorneys’ fees. Only after court approval of the damage settlement should negotiation for appropriate attorneys’ fees begin. 557 F.2d at 1021.
We also held in Prandini I that the district court had erred by reducing the fund available for attorneys’ fees by $10,000, the amount originally sought by attorney Sylvia Roberts. Ms. Roberts had agreed with the law firm of Berger and Kapetan that she would receive one-third, later reduced to 20% of the total attorneys’ fees awarded as a Sort of “referral fee”. The district court found this arrangement to be unethical under the Code of Professional Responsibility. We held that Ms. Roberts’s fee should be determined as any other, and, after proration, was to be paid from the $50,000 available fund.
. The district court believed that the fee arrangement violated DR 2-107(A)(2), which provides:
(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
(2) The division is made in proportion to the services performed and responsibility assumed by each.
. Without deciding this issue, we are nevertheless inclined toward the view that a district court, in awarding attorneys’ fees may consider an attorney’s unethical conduct as a factor in its determination of a “reasonable” fee. See Hughes v. Repko, 578 F.2d 483, at 491-493 & nn.5 & 6 (3d Cir. 1978) (Garth, J., concurring). We know of no reason why a court must “reward” a lawyer for improper conduct; concomitantly, it is surely within a district court’s discretion to take such conduct into account in the awarding of attorneys’ fees. Of course, the court in so doing must afford the attorney an opportunity to refute the charge of unethical conduct.
. Additionally, the original attorney in this case, Lubow, testified as to the similarity of the Prandini and Vallo cases, and that he had “received those [two] cases in the same interview.” App. at 152a-154a. Lubow admitted that “there were many issues where I could do research for both cases simultaneously”, but he stated that in such instances he “marked it in [his] book and charged only one-half of that time in [his] affidavit” submitted in support of the Prandini fee petition. App. at 153a. Also, see Lubow’s testimony at 168a-171a.
When the district court at the fee hearing noted that Malakoff had not “given any credit for the time which was equally devoted to Val-ió and Prandini," Malakoff replied that there was no “double billing” and that “time was charged to one case and not the other. . . ” App. at 177a-178a. Malakoff testified that when a common problem was researched, and was billed to Prandini, it would not be billed to Vallo. Id.
. If the district court had accepted Malakoff’s method of charging “common time” to one case or the other (see note 4 supra), it most likely would not have been an abuse of discretion. Similarly, as we note in the text, it would not be an abuse of discretion for the court to require that Malakoff use Lubow’s method, viz, prorate “common time” between the two cases (see note 4 supra). But to determine or to reduce the fee award on this basis would require further submissions by Malakoff and additional findings by the district court.
. We recognized in Prandini I that this case involved a statutorily authorized fee award. See 557 F.2d at 1017, 1020-21.
. We observe as well that the $100,000 settlement represents approximately 90% of the plaintiffs’ total estimated back pay loss. See App. at 31a-33a.
. The district court attempted to distinguish the cases cited by the fee petitioners on the ground, inter alia, that the fee award was contested by the losing party. In this case, on the other hand, the award is uncontested and the appeal is ex parte. It is true that the case is stronger for awarding compensation for time spent litigating the issue of a reasonable fee when that litigation is required because of opposition by an adversary. It is obviously fair to grant a fee for time spent litigating the fee issue, at least if the fee petitioner is successful and his claim as to a reasonable fee is vindicated, since it is the adversary who made the additional work necessary. Nonetheless, where it is the defendant, and not the plaintiff class, which will pay the fee, even if the fee application is uncontested by the defendant, it is reasonable to include in the award the time spent on the fee petition and on a successful fee appeal — i. e. time reasonably necessary to obtain a reasonable fee.
. The order of August 18, 1977 — the order appealed from — awarded $29,797.50 to Berger, Kapetan & Malakoff. This figure included attorneys’ fees of $26,797.50 and reimbursement for direct costs advanced of $3,000. By order entered August 25, 1977, after the notice of appeal was filed, the district court amended the August 18th order such that only the $26,-797.50 in attorneys’ fees was awarded to Berger, Kapetan & Malakoff. This amendment was entered to reflect the fact that the $3,000 costs had already been paid under a prior order of the district court. No issue has been raised on this appeal respecting the payment of costs.
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:
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songer_applfrom
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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 of America ex rel. David DARCY, Appellant, v. Earl D. HANDY, Warden of Bucks County Prison, Dr. Fred S. Baldi, Warden of the Western State Penitentiary, Rockview, and Carl H. Fleckenstine, United States Marshal for the Middle District of Pennsylvania.
No. 11564.
United States Court of Appeals Third Circuit.
Argued April 4, 1955.
Decided June 9, 1955.
Rehearing Denied July 11, 1955.
Biggs, Chief Judge, and Kalodner and McLaughlin, Circuit Judges, dissented.
J. Dress Pannell, Harrisburg, Pa. (Charles J. Margiotti, Morton Witkin, Philadelphia, Pa., on the brief), for appellant.
Frank P. Lawley, Jr., Deputy Atty. Gen. of Pennsylvania (Donald W. Van-Artsdalen, Dist. Atty., Doylestown, Pa., Herbert B. Cohen, Atty. Gen., on the brief), for appellees.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
HASTIE, Circuit Judge.
In this habeas corpus proceeding the relator, a Pennsylvania state prisoner under sentence of death for murder, is contending that he was tried under such prejudicial circumstances and improper influences that it becomes the duty of a federal court to invalidate the state conviction as a denial of due process of law and to order a new trial.
The district court originally dismissed the petition without permitting relator to introduce evidence in support of his contentions. 97 F.Supp. 930. But on appeal this court ruled “that the relator must be afforded the opportunity to prove the allegations set out in his petition for habeas corpus insofar as they relate to the alleged atmosphere of hysteria and prejudice prevailing at his trial, including any issues raised by Judge Boyer’s asserted visits to the courtroom during Darcy’s trial, since the undisputed and incontrovertible facts as shown by the record do not countervail the allegations of hysteria and prejudice.” 3 Cir., 203 F.2d 407, 409. Accordingly, the case was remanded to the district court for a full hearing on the indicated issues.
In compliance with our mandate the district court permitted the parties to make an elaborate showing of the circumstances under which the relator was tried in Bucks County, Pennsylvania, for felonious homicide in the commission of an armed robbery. Although the relator had been contesting his conviction for more than six years, this was the first opportunity given him to introduce evidence to establish facts not apparent on the face of the original trial record which, in his view, would make clear that the trial was fundamentally unfair. In affording this opportunity, the district court devoted eight days to the testimony of more than thirty witnesses and the introduction of much documentary evidence. As a result, that court and this reviewing court now for the first time have been able to exercise fully informed judgment as to the essential fairness of the murder trial. It was specially important that this be done because there had been no taking of testimony on the relevant circumstances of the trial before any Pennsylvania state court in which the conduct of relator’s trial had been challenged as essentially unfair. We emphasize this because we believe it is a virtue of our system of justice, as implemented by the due process clause of the Fourteenth Amendment, that it does not send a convicted person to his death without according him one full opportunity to prove charges of unfair trial which are not patently frivolous. The important thing here is that relator has now had that chance.
After full hearing and consideration of all of the evidence the district court was satisfied that relator's new proof was insufficient to establish that his trial had been fundamentally unfair. 130 F.Supp. 270. We agree with that conclusion.
Relator has attempted to show that he was tried in a community so aroused against him that a fair trial was impossible, or at best so unlikely that a decent legal system must permit a second trial. Such a conclusion has been reached where the physical presence of a mob or a threat of mob violence has dominated a criminal trial. Frank v. Mangum, 1915, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. But on the evidence adduced in the district court it is clear, as that court found, that relator’s trial was conducted with dignity and decorum and without any hostile congregation or demonstration at or near the place of trial. Indeed, during much of the trial the courtroom was not crowded. Certainly, the trial was not attended by any threat of violence or manifestation of mass hysteria. Moreover, a clear and elaborate showing was made to the district court that throughout relator’s trial the jury was kept under strict guard, apart from other persons and without access to newspapers, radio, television or any other source of news or opinion.
However, the relator suggests that even though the jury was segregated and the community was outwardly calm during the trial, antagonism and hostility toward him were so great and widespread ■ during thé period immediately preceding the trial, that the probability of a prejudiced verdict from any jury of the vicinage was a greater risk than a society which insists upon equal justice under law can take. A combination of unchallenged facts has made it very difficult for the relator to establish such extreme and pervasive hostility. The record of the original trial, which is before the court in this collateral proceeding, shows that each of the prospective jurors was subjected to a searching voir dire examination. The questioning of the fourteen persons who became the jurors and alternates for this trial takes up some seventy pages of the typewritten record. Their responses indicated that they were capable of making and disposed to make a fair and objective evaluation of the evidence. Beyond that, original counsel for the relator was sufficiently satisfied with the responses of these veniremen so that he used less than half of the peremptory challenges available to him. And he did not at any time ask for a change of venue. Concerning the significance of this, see Stroble v. State of California, 1952, 343 U.S. 181, 194, 72 S.Ct. 599, 96 L.Ed. 872; United States v. Rosenberg, 2 Cir., 1953, 200 F.2d 666, 669. While to a majority of this court these facts alone have not seemed so compelling as to preclude an independent showing that the trial was dominated by prejudice and hostility, they certainly make the undertaking very difficult. To meet this difficult burden of proof relator has relied largely upon the daily newspaper accounts and editorial comments published in the community during the trial of two of relator’s alleged confederates, which ended only three days before he himself was required to stand trial. We have examined all of this material. The evidence does not indicate, as relator would infer, that the jurors who tried relator were waiting in or near the courtroom during the period of the trial of his confederates. At most it indicates that during the two weeks immediately preceding relator’s trial the community in general had experienced a revival and quickening of interest in the homicide attended by many expressions of indignation against its perpetrators. But it does not appear that feeling ran so high or that hostility toward the relator was so intense and so general as to make it seem incredible that the search for a satisfactory jury would yield twelve persons as open minded about this case as the jurors here claimed to have been. The situation certainly would have justified a decision to wait a while before trying the relator, or else to try him in another community if trial immediately after the conviction of his confederates was deemed important. We may be persuaded that in the circumstances it would have been wise to take such precautions, yet not be convinced that failure to follow the wiser course was a denial of the essence of fair trial. The due process concept does not embrace all that a very careful and perceptive judge might do to protect a trial against emotional factors. It covers no more than the minimum protection which, consistent with our present ideas of justice, every court must afford. In this view of the reach of due process, we can not say that trial of relator at the time and place in question was a denial of constitutionally required protection.
Relator makes a second contention. Judge Hiram Keller presided over relator’s trial. But another judge of the same court, Honorable Calvin Boyer, was much in and about the courtroom during the course of this trial. Judge Boyer had just completed a trial at which relator’s confederates had been convicted of first degree murder without recommendation of mercy and, according to the press, he had commended the jury for its verdict. It is relator’s contention that Judge Boyer’s participation in and influence upon the trial were so unfair and prejudicial as to amount to a denial of due process of law. Here too the facts are now for the first time fully disclosed in the record. Relator’s trial began June 7 and he was convicted June 14. There were daily morning and afternoon sessions. It now appears that every day of this trial Judge Boyer spent some time, on occasions several hours, in the courtroom. He even attended an evening session. At times during the trial Judge Boyer joined Judge Keller on the bench for whispered consultations within view of the jury, although there is nothing to suggest that the jury could hear what was being said. It is also admitted that at least one such consultation was designed for the guidance of Judge Keller in the making of a trial ruling. However, there is no claim that any erroneous or prejudicial ruling resulted from consultation between the presiding judge and his colleague. Finally, during Judge Keller’s charge to the jury, Judge Boyer sat facing the jurors within the enclosure reserved for members of the bar and participants in the trial.
It seems to be agreed that the jurors knew who Judge Boyer was. The evidence makes it very probable that they also knew that he had just completed the trial at which relator’s co-defendants had been convicted and sentenced to death. Moreover, it had been reported in the press that' Judge Boyer had commended the jury for the first degree verdict against the co-defendants with its mandatory death penalty. Relator also makes the point that, while his trial was in progress, the press quoted statements of Judge Boyer in another case reasonably calculated to indicate that the jurist was engaged in an effort to make it clear that the community would deal very sternly with wrongdoers from Philadelphia, a category which included the relator. But this last incident could not have affected the jury in relator’s case, because the jurors had no access to any source of news. Nevertheless, relator argues that the overall effect of this situation was to make Judge Boyer’s impressive record of attendance at this trial an intolerably coercive influence upon the trial jury. But we think this is attaching too much significance to the jury’s observation that a judge other than the trial judge was showing much interest in the ease. Certainly Judge Boyer was privileged to attend and observe proceedings of the court of which he was a judge. His presence in itself was not an impropriety. Even if the jurors identified him as an official who was hostile to the relator, we think it would be necessary to show that he had said or done something prejudicial to the defendant during his stay in the courtroom before the fact of his presence and manifest interest could raise a substantial due process question.
The present petition charges one such act and this allegation has given us great concern. The relator alleged and attempted to prove that during the trial Judge Boyer actively helped the prosecutor. Specifically, there wasi testimony from witnesses who may well not have been unbiased that on one occasion Judge Boyer passed a written message to the prosecutor with the result that the prosecutor made a point to the presiding judge about an item in the charge. The government introduced evidence for the purpose of disproving this contention. The government’s showing was less than overwhelming. Yet it was not unsubstantial. There was a sufficient conflict of testimony to make it necessary for the district court as the trier of facts in this habeas corpus proceeding to resolve the factual question whether Judge Boyer did or did not coach and advise the prosecutor as alleged. The district court made a specific finding that this alleged occurrence 'did not take place. On the record we think that we are not justified in disturbing that finding. And absent some • such improper partisan participation by Judge Boyer in the trial, we cannot say that his rather striking manifestation of extraordinary interest in the proceedings constituted a denial of due process of law. It is established constitutional doctrine that our limited function in correcting fundamental impropriety in state trials challenged under the due process clause makes it necessary that we leave alone many dubious occurrences in state procedure which we would proscribe if they should happen in a federal court. With Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, contrast Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.
No other point urged by relator warrants appellate interference with the decision of the district court or requires particular comment.
The judgment will be 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_direct2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
SMITH v. KING.
No. 4564.
Circuit Court of Appeals, Seventh Circuit.
June 14, 1932.
E. E. Brindley and F. L. Brewer, both of Richland Center, Wis., for appellant.
O. D. Black, of Richland Center, Wis., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
EVANS, Circuit Judge.
Appellant brought this suit to set aside the transfer of two notes aggregating $1,500, secured by real estate mortgage, because made in violation of section 91, title 12, US CA. Other appropriate relief, ancillary in character, was sought. Appellee denied the existence of any knowledge that the First National Bank of Richland Center was in an insolvent or financially embarrassed condition on the tw’enty-third of November, 1928, when the notes were by her purchased, and asserted the bank’s sale of the notes to her and her payment therefor out of monies on deposit in said bank were in good faith and in the usual course of business.
The court found in favor of appellee on the controverted issues and dismissed the suit. A memorandum accompanied the special findings of fact, which indicated that Judge Luse considered the determining fact issue a close one. He said:
“It may be that these transfers were made to the defendant with intent to prefer her and in contemplation of insolvency. The court would hesitate long before it would find affirmatively that they were not. It is clear that there was little or no change in the information whieh the directors and officers possessed between Friday and Sunday evening. They apparently had no intention of assessing the stockholders and were looking around for some method of temporizing with the necessity therefor placed upon them by the notice of the Comptroller, and delayed formally deciding that the notice meant what it said until Sunday, and then passed the resolution closing the bank. If the evidence disclosed the actual condition of the bank, with which the directors and officers were chargeable with knowledge, probably little difficulty would be encountered in confidently finding the intent with whieh these transfers were made, but in the state of the evidence, after careful consideration of the whole thereof, the court has concluded that an affirmative finding on the'issues requires the indulgence in speculation and suspicion, and the conclusion is that this is one of the eases requiring a so-called “Scotch” verdict of “not proven.” In other words, the evidence falls short df meeting the burden of proof which the law lays upon the plaintiff.”
In reviewing the conclusion thus frankly expressed and the findings of fact whieh the court concurrently made, we shall assume that knowledge on the part of appellee of the insolvency of the bank, or of the intent with which the payment was made, was unnecessary. In other words, if the payment of the money on deposit, or the transaction whereby the bank’s securities were transferred to the depositor in cancellation of a deposit, was in contemplation of insolvency or made with a view to prevent the application of its assets in the manner prescribed by the statute, or with a view to the preference of one creditor over another, it is voidable. This issue the district judge met squarely. No useful purpose would be served in relating all of the evidence or in discussing all of the inferences whieh logically flowed therefrom. While the facts are not greatly in dispute, they give rise to various deductions, some of which are conflicting, and they vary in their persuasiveness.
In view of the testimony of both appellee and the president of the bank to the effect that the sale of the notes by the bank to ap-pellee was in the ordinary course of business and was not in contemplation of insolvency, and in view of the further testimony given by appellee to the effect that she did not know the bank was insolvent, or even embarrassed financially, our duty to affirm is rather clear. The finding of the trial judge will not be disturbed under such circumstances. Uihlein v. General Electric Co. (C. C. A.) 47 F.(2d) 997, 1001.
The decree is therefore affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_casetyp1_7-3-3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
OBER et al. v. WHITE (two cases).
(Circuit Court of Appeals, Third Circuit.
March 3, 1926.
Rehearing Denied April 7, 1926.)
Nos. 3394, 3395.
1. Corporations <@=560(4) — Receivers of mortgage company, creature of Ohio corporation, held not entitled to recover from receivers of Pennsylvania corporation, another creature of Ohio corporation, for stock of mortgage company sold hy Pennsylvania corporation, which had made full accounting to Ohio corporation.
“Where, in pursuance of operations defrauding public in sale of stock, Ohio corporation had its creature, a Pennsylvania corporation, unload stock of mortgage company, another of its creatures, held, that receivers of mortgage company, after appointment of receivers for all companies, have no right to fund in hands of receivers of Pennsylvania corporation, with whom it had no contractual or trust relation, which cannot be traced to stock subscriptions, particularly since Pennsylvania corporation had more than fully accounted to Ohio corporation for all moneys received by it from sale of such stock.
2. Corporations <©=560(4) — Mortgage company’s receivers were entitled to return of fund forwarded to corporation selling its stock for purpose of paying dividends thereon; such fund having been deposited in special fund, and so remaining until receivership of both companies.
Where fund for.warded to Pennsylvania corporation engaged in selling stock of mortgage company, for specific purpose of paying dividends on mortgage company’s stock was deposited in special fund, so remaining until receivership of both companies, mortgage company’s receivers were entitled to such fund.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Separate suits by Franklin S. Zelly and others against the R. L. Dollings Company of Pennsylvania and others for the appointment of a receiver, wherein Thomas Raeburn “White was appointed receiver, and by the Crane Ice Cream Company against Thomas Raeburn White, receiver of the R. L. Dollings Company of Pennsylvania to reclaim moneys, wherein cross-bill was filed on behalf of the International Note & Mortgage Company also asserting a reclamation claim, for whom Thomas K. Ober, Jr., and another, were substituted as plaintiffs in cross-bill, on their appointment as ancillary receivers of the International Note & Mortgage Company. From decrees in each ease denying the claims of Thomas K. Ober, Jr., and another, ancillary receivers of the International Note & Mortgage Company, they appeal.
Affirmed in part, and reversed in part.
Ulric J. Mengert, William E. Mikell, Jr., Albert Smith Faught, and J. Hector MeNeal, all of Philadelphia, Pa., Henry A. Williams, of Columbus, Ohio, and Maurice B. Saul and Owen J. Roberts, both of Philadelphia, Pa., for appellants.
Francis F. Burch, Percival H. Granger, and Thos. Raeburn White, all of Philadelphia, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges.
Certiorari denied 46 S. Ct. 630, 70 L. Ed. —.
BUFFINGTON, Circuit Judge.
This case involves the distribution of two different funds in the hands of the receivers of the R. L. Dollings Company, a corporation of Pennsylvania. The first fund, some $500,-000, is the proceeds of the assets of that company, and was in no way earmarked or connected with any trust. Without entering into a detailed description of the Dollings operations, it suffices to say that all the companies here involved were links in a chain of corporations whose purpose and successful sphere of operations was defrauding the public in the sale of stocks. In the course of these fraudulent operations, the Dollings Company of Ohio had its corporate creature, the Dollings Company of Pennsylvania, unload on the public the stock of the International Note & Mortgage Company of Ohio, another of its corporate creatures. The Pennsylvania Company so sold, and thereby became accountable to the Dollings Company of Ohio for some $500,000, when the receivership of all these companies came about. But it also appeared that during these transactions the Dollings Company of Ohio had received advances,, or otherwise become accountable to the Pennsylvania Dollings Company, to an amount largely in excess of this $500,000. The situation is summarized by the court below as follows:
“The basis of the claim in either of its -aspects is a fact. The master disposes of the fact respecting the trust fund by finding that there is no fund earmarked or otherwise which can be traced to these stock subscriptions. He disposes of the debt claim by his finding that the Pennsylvania Dollings Company had no contractual or trust relations or relations of any kind with the International Company. The only dealings it had and the only relations it sustained were with the Dollings Company of Ohio. For the latter company the Pennsylvania Company, it is true, sold stock, but it had not only fully but had overaccounted for all moneys received, so that when the crash cama the state of accounts between them stood in favor of the Pennsylvania Company in a sum of approximately $1,000,000. It is likewise true that moneys which represented proceeds from the sale of the International Company stock were included in what the Pennsylvania Company received. These moneys, however, belonged, so far as concerned the Pennsylvania Company, to the Ohio Company, to which they were not only paid, but overpaid. There was in consequence no indebtedness of the Pennsylvania Company to the International Company, or to any one, for that matter, which arose. The transaction was that of an underwri.tr ing of an issue of stock of the International Company by the Ohio Company, the issue of the stock to the latter company for the purposes of the underwriting 'agreement, the sale of shares to investors, who thereby became stockholders of the International, the deposit with the Pennsylvania Company of some of the money from these sales to the credit and order of the Ohio Company, and the overpayment of the moneys to the Ohio Company.”
Without entering into further details, we limit ourselves to saying that we agree with the findings of fact, concurred in by court and master, and with the conclusion drawn therefrom, that the International Note & Mortgage Company has -shown no right to the sum in question. We therefore dismiss its appeal, and affirm the decree below, in so far as it disallows the claim of the receivers of the International Note & Mortgage Company to $501,676, the balance alleged to be due on account of stock of the International Note & Mortgage Company sold by the Pennsylvania Dollings Company.
We next consider the claim of the receivers of the International Note & Mortgage Company to a fund of $17,707, which the court below disallowed. In this we are of opinion the court erred, and its decree in that respect must be reversed, and the fund ordered paid to said receivers. Our reasons therefor are that the money was sent by the Dollings Company of Ohio to the Dollings Company of Pennsylvania, for the specific purpose of paying a dividend which it was intended to make on the stock of the International Note & Mortgage Company. When received by the Pennsylvania Company, it was not mingled with its funds, but was deposited in a special fund, and so remained until the receivership. Not having been applied to its designated purpose when the receivership came, we are unable to see by what means or in what manner any ownership of this trust fund accrued to the Pennsylvania Company. It came into the possession of the court, through its receiver, as an earmarked fund, which the court, on it being impossible to carry out the trust, should return to the source from which it came. Having been designated, when sent, as applicable to the affairs of the International Note & Mortgage Company, and there is no one else claiming or showing a title to it, we are of opinion that this court should carry out, as far as now possible, the trust under which it was received, by now ordering it paid to the receivers of the International Note & Mortgage Company.
The decree below will therefore be modified, by the approval of the claim of the International Note & Mortgage Company to this $17,707-, and directing the receivers of the Pennsylvania Company to transfer and pay the same to the receivers of the International Note & Mortgage Company.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
sc_respondent
|
055
|
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.
BREWER, WARDEN v. WILLIAMS
No. 74-1263.
Argued October 4, 1976
Decided March 23, 1977
Stewart, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Marshall, J., post, p. 406, Powell, J., post, p. 409, and Stevens, J., post, p. 414, filed concurring opinions. Burger, C. J., filed a dissenting opinion, post, p. 415. White, J., filed a dissenting opinion, in which Blackmun and Rehnquist, JJ., joined, post, p. 429. Blackmun, J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, post, p. 438.
Richard C. Turner, Attorney General of Iowa, and Richard N. Winders, Assistant Attorney General, argued the cause and filed briefs for petitioner.
Robert Bartels by appointment of the Court, 423 U. S. 1044, argued the cause and filed a brief for respondent.
William J. Guste, Jr., Attorney General, and Walter L. Smith, Jr., Assistant Attorney General, filed a brief for the State of Louisiana as amicus curiae.
Fred E. Inbau filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal, joined by Wayne W. Schmidt and by officials for their respective States as follows: William J. Baxley, Attorney General of Alabama; Bruce E. Babbitt, Attorney General of Arizona, and Frank T. Galati, Assistant Attorney General; James Guy Tucker, Attorney General of Arkansas; Evelle J. Younger, Attorney General of California, and William E. James, Senior Assistant Attorney General; Robert L. Shevin, Attorney General of Florida, and E. J. Salcines, Jr.; Wayne L. Kidwell, Attorney General of Idaho, and Christopher D. Bray, Deputy Attorney General; William J. Scott, Attorney General of Illinois, and James B. Zagel, Assistant Attorney General; Theodore L. Sendak, Attorney General of Indiana, and Donald P. Bogard, Executive Assistant Attorney General; Francis B. Burch, Attorney General of Maryland; A. F. Summer, Attorney General of Mississippi, and Karen Gilfoy, Assistant Attorney General; Paul L. Douglas, Attorney General of Nebraska, and Melvin K. Kamerlohr, Assistant Attorney General; Robert List, Attorney General of Nevada; William F. Hyland, Attorney General of New Jersey, and Robert Del Tufo, First Assistant Attorney General; Louis J. Lefkowitz, Attorney General of New York, and Samuel A. Hirshowitz, First Assistant Attorney General; Allen I. Olson, Attorney General of North Dakota; Larry Derryberry, Attorney General of Oklahoma, and Robert McDonald; Daniel R. McLeod, Attorney General of South Carolina; Vernon B. Romney, Attorney General of Utah, and William W. Barrett, Assistant Attorney General; Andrew P. Miller, Attorney General of Virginia, and Reno S. Harp III, Deputy Attorney General; Chauncey H. Browning, Jr., Attorney General of West Virginia, and David P. Cleek, Assistant Attorney General; and V. Frank Mendicino, Attorney General of Wyoming, and Gerald A. Stack, Deputy Attorney General.
Mr. Justice Stewart
delivered the opinion of the Court.
An Iowa trial jury found the respondent, Robert Williams, guilty of murder. The judgment of conviction was affirmed in the Iowa Supreme Court by a closely divided vote. In a subsequent habeas corpus proceeding a Federal District Court ruled that under the United States Constitution Williams is entitled to a new trial, and a divided Court of Appeals for the Eighth Circuit agreed. The question before us is whether the District Court and the Court of Appeals were wrong.
I
On the afternoon of December 24, 1968, a 10-year-old girl named Pamela Powers went with her family to the YMCA in Des Moines, Iowa, to watch a wrestling tournament in which her brother was participating. When she failed to return from a trip to the washroom, a search for her began. The search was unsuccessful.
Robert Williams, who had recently escaped from a mental hospital, was a resident of the YMCA. Soon after the girl’s disappearance Williams was seen in the YMCA lobby carrying some clothing and a large bundle wrapped in a blanket. He obtained help from a 14-year-old boy in opening the street door of the YMCA and the door to his automobile parked outside. When Williams placed the bundle in the front seat of his car the boy “saw two legs in it and they were skinny and white.” Before anyone could see what was in the bundle Williams drove away. His abandoned car was found the following day in Davenport, Iowa, roughly 160 miles east of Des Moines. A warrant was then issued in Des Moines for his arrest on a charge of abduction.
On the morning of December 26, a Des Moines lawyer named Henry McKnight went to the Des Moines police station and informed the officers present that he had just received a long-distance call from Williams, and that he had advised Williams to turn himself in to the Davenport police. Williams did surrender that morning to the police in Davenport, and they booked him on the charge specified in the arrest warrant and gave him the warnings required by Miranda v. Arizona, 384 U. S. 436. The Davenport police then telephoned their counterparts in Des Moines to inform them that Williams had surrendered. McKnight, the lawyer, was still at the Des Moines police headquarters, and Williams conversed with McKnight on the telephone. In the presence of the Des Moines chief of police and a police detective named Leaming, McKnight advised Williams that Des Moines police officers would be driving to Davenport to pick him up, that the officers would not interrogate him or mistreat him, and that Williams was not to talk to the officers about Pamela Powers until after consulting with McKnight upon his return to Des Moines. As a result of these conversations, it was agreed between McKnight and the Des Moines police officials that Detective Leaming and a fellow officer would drive to Davenport to pick up Williams, that they would bring him directly back to Des Moines, and that they would not question him during the trip.
In the meantime Williams was arraigned before a judge in Davenport on the outstanding arrest warrant. The judge advised him of his Miranda rights and committed him to jail. Before leaving the courtroom, Williams conferred with a lawyer named Kelly, who advised him not to make any statements until consulting with McKnight back in Des Moines.
Detective Leaming and his fellow officer arrived in Davenport about noon to pick up Williams and return him to Des Moines. Soon after their arrival they met with Williams and Kelly, who, they understood, was acting as Williams’ lawyer. Detective Leaming repeated the Miranda warnings, and told Williams:
“[W]e both know that you’re being represented here by Mr. Kelly and you’re being represented by Mr. McKnight in Des Moines, and... I want you to remember this because we’ll be visiting between here and Des Moines.”
Williams then conferred again with Kelly alone, and after this conference Kelly reiterated to Detective Leaming that Williams was not to be questioned about the disappearance of Pamela Powers until after he had consulted with McKnight back in Des Moines. When Leaming expressed some reservations, Kelly firmly stated that the agreement with McKnight was to be carried out—that there was to be no interrogation of Williams during the automobile journey to Des Moines. Kelly was denied permission to ride in the police car back to Des Moines with Williams and the two officers.
The two detectives, with Williams in their charge, then set out on the 160-mile drive. At no time during the trip did Williams express a willingness to be interrogated in the absence of an attorney. Instead, he stated several times that “[w]hen I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story.” Detective Leaming knew that Williams was a former mental patient, and knew also that he was deeply religious.
The detective and his prisoner soon embarked on a wideranging conversation covering a variety of topics, including the subject of religion. Then, not long after leaving Davenport and reaching the interstate highway, Detective Leaming delivered what has been referred to in the briefs and oral arguments as the “Christian burial speech.” Addressing Williams as “Reverend,” the detective said:
“I want to give you something to think about while we’re traveling down the road.... Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor, it’s going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.”
Williams asked Detective Leaming why he thought their route to Des Moines would be taking them past the girl’s body, and Leaming responded that he knew the body was in the area of Mitchellville—a town they would be passing on the way to Des Moines. Leaming then stated: “I do not want you to answer me. I don’t want to discuss it any further. Just think about it as we’re riding down the road.”
As the car approached Grinnell, a town approximately 100 miles west of Davenport, Williams asked whether the police had found the victim’s shoes. When Detective Leaming replied that he was unsure, Williams directed the officers to a service station where he said he had left the shoes; a search for them proved unsuccessful. As they continued towards Des Moines, Williams asked whether the police had found the blanket, and directed the officers to a rest area where he said he had disposed of the blanket. Nothing was found. The car continued towards Des Moines, and as it approached Mitchellville, Williams said that he would show the officers where the body was. He then directed the police to the body of Pamela Powers.
Williams was indicted for first-degree murder. Before trial, his counsel moved to suppress all evidence relating to or resulting from any statements Williams had made during the automobile ride from Davenport to Des Moines. After an evidentiary hearing the trial judge denied the motion. He found that “an agreement was made between defense counsel and the police officials to the effect that the Defendant was not to be questioned on the return trip to Des Moines,” and that the evidence in question had been elicited from Williams during “a critical stage in the proceedings requiring the presence of counsel on his request.” The judge ruled, however, that Williams had “waived his right to have an attorney present during the giving of such information.”
The evidence in question was introduced over counsel’s continuing objection at the subsequent trial. The jury found Williams guilty of murder, and the judgment of conviction was affirmed by the Iowa Supreme Court, a bare majority of whose members agreed with the trial court that Williams had “waived his right to the presence of his counsel” on the automobile ride from Davenport to Des Moines. State v. Williams, 182 N. W. 2d 396, 402. The four dissenting justices expressed the view that “when counsel and police have agreed defendant is not to be questioned until counsel is present and defendant has been advised not to talk and repeatedly has stated he will tell the whole story after he talks with counsel, the state should be required to make a stronger showing of intentional voluntary waiver than was made here.” Id., at 408.
Williams then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. Counsel for the State and for Williams stipulated that “the case would be submitted on the record of facts and proceedings in the trial court, without taking of further testimony.” The District Court made findings of fact as summarized above, and concluded as a matter of law that the evidence in question had been wrongly admitted at Williams’ trial. This conclusion was based on three alternative and independent grounds: (1) that Williams had been denied his constitutional right to the assistance of counsel; (2) that he had been denied the constitutional protections defined by this Court’s decisions in Escobedo v. Illinois, 378 U. S. 478, and Miranda v. Arizona, 384 U. S. 436; and (3) that in any event, his self-incriminatory statements on the automobile trip from Davenport to Des Moines had been involuntarily made. Further, the District Court ruled that there had been no waiver by Williams of the constitutional protections in question. 375 F. Supp. 170.
The Court of Appeals for the Eighth Circuit, with one judge dissenting, affirmed this judgment, 509 F. 2d 227, and denied a petition for rehearing en banc. We granted certiorari to consider the constitutional issues presented. 423 U. S. 1031.
II
A
Before turning to those issues, we must consider the petitioner’s threshold claim that the District Court disregarded the provisions of 28 U. S. C. § 2254 (d) in making its findings of fact in this case. That statute, which codifies most of the criteria set out in Townsend v. Sain, 372 U. S. 293, provides that, subject to enumerated exceptions, federal habeas corpus courts shall accept as correct the factual determinations made by the courts of the States.
We conclude that there was no disregard of § 2254 (d) in this case. Although either of the parties might well have requested an evidentiary hearing in the federal habeas corpus proceedings, Townsend v. Sain, supra, at 322, they both instead voluntarily agreed in advance that the federal court should decide the case on the record made in the courts of the State. In so proceeding, the District Court made no findings of fact in conflict with those of the Iowa courts. The District Court did make some additional findings of fact based upon its examination of the state-court record, among them the findings that Kelly, the Davenport lawyer, had requested permission to ride in the police car from Davenport to Des Moines and that Detective Leaming had refused this request. But the additional findings were conscientiously and carefully explained by the District Court, 375 F. Supp., at 175-176, and were reviewed and approved by the Court of Appeals, which expressly held that “the District Court correctly applied 28 U. S. C. § 2254 in its resolution of the disputed evidentiary facts, and that the facts as found by the District Court had substantial basis in the record,” 509 F. 2d, at 231. The strictures of 28 U. S. C. § 2254 (d) require no more.
B
As stated above, the District Court based its judgment in this case on three independent grounds. The Court of Appeals appears to have affirmed the judgment on two of those grounds. We have concluded that only one of them need be considered here.
Specifically, there is no need to review in this case the doctrine of Miranda v. Arizona, a doctrine designed to secure the constitutional privilege against compulsory self-incrimination, Michigan v. Tucker, 417 U. S. 433, 438-439. It is equally unnecessary to evaluate the ruling of the District Court that Williams’ self-incriminating statements were, indeed, involuntarily made. Cf. Spano v. New York, 360 U. S. 315. For it is clear that the judgment before us must in any event be affirmed upon the ground that Williams was deprived of a different right—constitutional right—the right to the assistance of counsel.
This right, guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice. Its vital need at the pretrial stage has perhaps nowhere been more succinctly explained than in Mr. Justice Sutherland’s memorable words for the Court 44 years ago in Powell v. Alabama, 287 U. S. 45, 57:
“[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”
There has occasionally been a difference of opinion within the Court as to the peripheral scope of this constitutional right. See Kirby v. Illinois, 406 U. S. 682; Coleman v. Alabama, 399 U. S. 1. But its basic contours, which are identical in state and federal contexts, Gideon v. Wainwright, 372 U. S. 335; Argersinger v. Hamlin, 407 U. S. 25, are too well established to require extensive elaboration here. Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him—“whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, supra, at 689. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U. S. 458; Hamilton v. Alabama, 368 U. S. 52; Gideon v. Wainwright, supra; White v. Maryland, 373 U. S. 59; Massiah v. United States, 377 U. S. 201; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Coleman v. Alabama, supra.
There can be no doubt in the present case that judicial proceedings had been initiated against Williams before the start of the automobile ride from Davenport to Des Moines. A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail. The State does not contend otherwise.
There can be no serious doubt, either, that Detective Leaming deliberately and designedly set out to elicit information from Williams just as surely as—and perhaps more effectively than—if he had formally interrogated him. Detective Leaming was fully aware before departing for Des Moines that Williams was being represented in Davenport by Kelly and in Des Moines by McKnight. Yet he purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible. Indeed, Detective Leaming conceded as much when he testified at Williams’ trial:
“Q. In fact, Captain, whether he was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren’t you?
“A. I was sure hoping to find out where that little girl was, yes, sir.
“Q. Well, I’ll put it this way: You was [sic] hoping to get all the information you could before Williams got back to McKnight, weren’t you?
“A. Yes, sir.”
The state courts clearly proceeded upon the hypothesis that Detective Leaming’s “Christian burial speech” had been tantamount to interrogation. Both courts recognized that Williams had been entitled to the assistance of counsel at the time he made the incriminating statements. Yet no such constitutional protection would have come into play if there had been no interrogation.
The circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States, supra. The petitioner in that case was indicted for violating the federal narcotics law. He retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. Evidence of these statements was introduced against the petitioner at his trial, and he was convicted. This Court reversed the conviction, holding “that the petitioner was denied the basic protections of that guarantee [the right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U. S., at 206.
That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. See ibid.; McLeod v. Ohio, 381 U. S. 356; United States v. Crisp, 435 F. 2d 354, 358 (CA7); United States ex rel. O’Connor v. New Jersey, 405 F. 2d 632, 636 (CA3); Hancock v. White, 378 F. 2d 479 (CA1). Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him. It thus requires no wooden or technical application of the Massiah doctrine to conclude that Williams was entitled to the assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments.
III
The Iowa courts recognized that Williams had been denied the constitutional right to the assistance of counsel. They held, however, that he had waived that right during the course of the automobile trip from Davenport to Des Moines. The state trial court explained its determination of waiver as follows:
“The time element involved on the trip, the general circumstances of it, and more importantly the absence on the Defendant’s part of any assertion of his right or desire not to give information absent the presence of his attorney, are the main foundations for the Court’s conclusion that he voluntarily waived such right.”
In its lengthy opinion affirming this determination, the Iowa Supreme Court applied “the totality-of-circumstances test for a showing of waiver of constitutionally-protected rights in the absence of an express waiver,” and concluded that “evidence of the time element involved on the trip, the general circumstances of it, and the absence of any request or expressed desire for the aid of counsel before or at the time of giving information, were sufficient to sustain a conclusion that defendant did waive his constitutional rights as alleged.” 182 N. W. 2d, at 401, 402.
In the federal habeas corpus proceeding the District Court, believing that the issue of waiver was not one of fact but of federal law, held that the Iowa courts had “applied the wrong constitutional standards” in ruling that Williams had waived the protections that were his under the Constitution. 375 F. Supp., at 182. The court held “that it is the government which bears a heavy burden... but that is the burden which explicitly was placed on [Williams] by the state courts.” Ibid. (emphasis in original). After carefully reviewing the evidence, the District Court concluded:
“[U]nder the proper standards for determining waiver, there simply is no evidence to support a waiver.... [T]
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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sc_issue_1
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58
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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.
LANGENKAMP, successor trustee of the bankruptcy estates of REPUBLIC TRUST & SAVINGS CO. et al. v. CULP et al.
No. 90-93.
Decided November 13, 1990
Per Curiam.
This case presents the question whether creditors who submit a claim against a bankruptcy estate and are then sued by the trustee in bankruptcy to recover allegedly preferential monetary transfers are entitled to jury trial under the Seventh Amendment. This action was brought by petitioner Langenkamp, successor trustee to Republic Trust & Savings Company and Republic Financial Corporation (collectively debtors). Debtors were uninsured, nonbank financial institutions doing business in Oklahoma. Debtors filed Chapter 11 bankruptcy petitions on September 24, 1984. At the time of the bankruptcy filings, respondents held thrift and passbook savings certificates issued by debtors, which represented debtors’ promise to repay moneys the respondents had invested.
Within the 90-day period immediately preceding debtors’ Chapter 11 filing, respondents redeemed some, but not all, of debtors’ certificates which they held. Thus, upon the bankruptcy filing, respondents became creditors of the now-bankrupt corporations. Respondents timely filed proofs of claim against the bankruptcy estates. Approximately one year after the bankruptcy filing, the trustee instituted adversary proceedings under 11 U. S. C. § 547(b) to recover, as avoidable preferences, the payments which respondents had received immediately prior to the September 24 filing. A bench trial was held, and the Bankruptcy Court found that the money received by respondents did in fact constitute avoidable preferences. In re Republic Trust & Savings Co., No. 84C-01461, Adversary No. 85-0337 (ND Okla., June 26, 1987), App. to Pet. for Cert. A-45; In re Republic Trust & Savings Co., No. 84-01461, Adversary No. 85-0319 (ND Okla., June 26, 1987), App. to Pet. for Cert. A-64. The United States District Court for the Northern District of Oklahoma affirmed. Republic Financial Corp. v. Langenkamp, Nos. 87-C-616-C, 87-C-618-C, 87-C-619-C (June 30, 1988), App. to Pet. for Cert. A-67. On appeal, the United States Court of Appeals for the Tenth Circuit upheld the District Court’s judgment on three grounds, but reversed on the issue of the holders’ entitlement to a jury trial on the trustee’s preference claims. In re Republic Trust & Savings Co., 897 F. 2d 1041 (1990). Relying on our decisions in Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 (1989), and Katchen v. Landy, 382 U. S. 323 (1966), the Tenth Circuit correctly held that “those appellants that did not have or file claims against the debtors’ estates undoubtedly [were] entitled to a jury trial on the issue whether the payments they received from the debtors within ninety days of the latter’s bankruptcy constitute^] avoidable preferences.” 897 F. 2d, at 1046. The Court of Appeals went further, however, concluding:
“Although some of the appellants did file claims against the estates because they continued to have monies invested in the debtors at the time of bankruptcy, ... we believe they likewise are entitled to a jury trial under the rationale of Granfinanciera and Katchen. Despite these appellants’ claims, the trustee’s actions to avoid the transfers, consolidated by the bankruptcy court, were plenary rather than a part of the bankruptcy court’s summary proceedings involving the ‘process of allowance and disallowance of claims.’” Id., at 1046-1047.
Petitioner contends that the Tenth Circuit erred in holding that those creditors of the debtors who had filed claims against the estate were entitled to a jury trial. We agree.
In Granfinanciera we recognized that by filing a claim against a bankruptcy estate the creditor triggers the process of “allowance and disallowance of claims,” thereby subjecting himself to the bankruptcy court’s equitable power. 492 U. S., at 58-59, and n. 14 (citing Katchen, supra, at 336). If the creditor is met, in turn, with a preference action from the trustee, that action becomes part of the claims-allowance process which is triable only in equity. Ibid. In other words, the creditor’s claim and the ensuing preference action by the trustee become integral to the restructuring of the debtor-creditor relationship through the bankruptcy court’s equity jurisdiction. Granfinanciera, supra, at 57-58. As such, there is no Seventh Amendment right to a jury trial. If a party does not submit a claim against the bankruptcy estate, however, the trustee can recover allegedly preferential transfers only by filing what amounts to a legal action to recover a monetary transfer. In those circumstances the preference defendant is entitled to a jury trial. 492 U. S., at 58-59.
Accordingly, “a creditor’s right to a jury trial on a bankruptcy trustee’s preference claim depends upon whether the creditor has submitted a claim against the estate.” Id., at 58. Respondents filed claims against the bankruptcy estate, thereby bringing themselves within the equitable jurisdiction of the Bankruptcy Court. Consequently, they were not entitled to a jury trial on the trustee’s preference action. The decision by the Court of Appeals overlooked the clear distinction which our cases have drawn and in so doing created a conflict among the Circuits on this issue. For this reason we grant the petition for certiorari, reverse the judgment of the Court of Appeals for the Tenth Circuit, and remand for further proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
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_genapel1
|
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 first listed appellant.
BIG LAKE OIL CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6449.
Circuit Court of Appeals, Third Circuit.
Feb. 18, 1938.
Rehearing Denied April 19, 1938.
Edgar J. Goodrich, of Washington, D. C., and S. Leo Ruslander, of Pittsburgh, Pa., for petitioner.
James W. Morris, Asst. Atty. Gen., and Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen., for respondent.
Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.
THOMPSON, Circuit Judge.
This is a petition for review of a decision of the Board of Tax Appeals determining a deficiency in the petitioner’s income tax for 1927. The issue is whether the amount of $598,571.01, the agreed fair market value of certain shares of common stock received by the petitioner, should be included in the petitioner’s taxable income for 1927. The determination of this issue is dependent upon whether the shares were received by the petitioner in 1927 or in some prior year.
The shares of stock were acquired by the petitioner under the following circumstances: The petitioner and others, hereinafter referred to as the producers, were engaged in producing and selling petroleum oil from wells in Reagan county, Texas. In prder to procure access to pipe lines by which to transport the oil to market, the petitioner and the producers, in a contract dated October 22, 1924, agreed to sell to Marland Oil Company, hereinafter referred to as Marland, or its nominee, all the oil they should produce up to an agreed maximum amount. Marland agreed to organize Reagan County Purchasing Company, Inc., hereinafter referred to as Reagan, and to provide the necessary working capital for Reagan by the purchase of its preferred stock at par. This stock was to be retired out of the profits of the company. Marland was to receive 51 per cent, of the common stock. The petitioner and the producers were to share the remaining 49 per cent, temporary certificates for which were to be issued in the name of the petitioner for one-half and in the names of the producers jointly for the other half. The final several ownership of the 49 per cent, was to be determined in accordance with the terms of a separate agreement between the petitioner and the producers. This agreement was evidenced by a letter dated October 19, 1924, in which it was agreed that the division be made among the petitioner and the producers as soon after December 1, 1926, as convenient, based proportionately upon the amount of oil which each should deliver towards the daily quota of 20,000 barrels during a test period from December, 1925, to December, 1926. In a contract dated November 24, 1924, the petitioner and the producers agreed to sell to Reagan, and Reagan agreed to purchase, a maximum of 20,000 barrels of oil daily. Reagan likewise agreed to provide the necessary pipe lines. On January 2, 1926, an escrow agreement was executed which provided that the temporary certificates issued in the names of the petitioner and the producers be deposited with the escrow agent, and that the shares of stock represented by the certificates could not be sold, assigned, or transferred (except to Marland, the petitioner, or to the producers) so long as any of the preferred stock had not been retired. The certificates were deposited with the escrow agent on March 12, 1926.
During the test period the petitioner and •the producers each delivered more than 10,--000 barrels of oil daily; thus entitling the petitioner to one-half of the 49 per cent, of common stock and the producers to one-half. The- last remaining preferred stock was retired and the escrow was terminated in January, 1927. The petitioner received a certificate for 2,450 shares, free of restrictions in March, 1927; the shares having an agreed fair market value of $598,-571.01. The petitioner did not report any income from the receipt of these shares for 1927 or for any prior year. The Commissioner determined that the petitioner received the shares in 1927.
Section 213 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 23, requires that all items of gross income shall be included for the taxable year in which received by the taxpayer. Stoner v. Commissioner of Internal Revenue, 3 Cir., 79 F.2d 75, certiorari denied Helvering v. Stoner, 296 U.S. 650, 56 S.Ct. 309, 80 L.Ed. 462; Taylor v. Commissioner of Internal Revenue, 7 Cir., 89 F.2d 465; United States v. Safety Car Heating Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. Until 1927, when the escrow was terminated, the petitioner not only lacked either actual possession or control, but the number of shares to which it would ultimately be entitled was dependent upon future tests and the shares themselves were burdened with restrictions until and if Reagan earned sufficient profits to retire the preferred shares. It is our opinion that the petitioner realized no income pending determination of the true and ultimate ownership and that this did not occur until 1927.
The decision of the Board of Tax Appeals is 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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sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
EVANS et al. v. NEWTON et al.
No. 61.
Argued November 9-10, 1965.
Decided January 17, 1966.
Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Michael Meltsner, Donald L. Hollowell and Charles L. Black, Jr.
C. Baxter Jones and Frank C. Jones argued the cause for respondents. With them on the brief were A. O. B. Sparks, Jr., and Willis B. Sparks III.
Louis F. Claiborne, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. On the brief were Solicitor General Marshall, Assistant Attorney General Doar, Ralph S. Spritzer, David Rubin and James L. Kelley.
Mr. Justice Douglas
delivered the opinion of the Court.
In 1911 United States Senator Augustus O. Bacon executed a will that devised to the Mayor and Council of the City of Macon, Georgia, a tract of land which, after the death of the Senator’s wife and daughters, was to be used as “a park and pleasure ground” for white people only, the Senator stating in the will that while he had only the kindest feeling for the Negroes he was of the opinion that “in their social relations the two races (white and negro) should be forever separate.” The will provided that the park should be under the control of a Board of Managers of seven persons, all of whom were to be white. The city kept the park segregated for some years but in time let Negroes use it, taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.
Thereupon, individual members of the Board of Managers of the park brought this suit in a state court against the City of Macon and the trustees of certain residuary beneficiaries of Senator Bacon’s estate, asking that the city be removed as trustee and that the court appoint new trustees, to whom title to the park would be transferred. The city answered, alleging it could not legally enforce racial segregation in the park. The other defendants admitted the allegation and requested that the city be removed as trustee.
Several Negro citizens of Macon intervened, alleging that the racial limitation was contrary to the laws and public policy of the United States, and asking that the court refuse to appoint private trustees. Thereafter the city resigned as trustee and amended its answer accordingly. Moreover, other heirs of Senator Bacon intervened and they and the defendants other than the city asked for reversion of the trust property to the Bacon estate in the event that the prayer of the petition were denied.
The Georgia court accepted the resignation of the city as trustee and appointed three individuals as new trustees, finding it unnecessary to pass on the other claims of the heirs. On appeal by the Negro intervenors, the Supreme Court of Georgia affirmed, holding that Senator Bacon had the right to give and bequeath his property to a limited class, that charitable trusts are subject to supervision of a court of equity, and that the power to appoint new trustees so that the purpose of the trust would not fail was clear. 220 Ga. 280, 138 S. E. 2d 573. The case is here on a writ of certiorari. 380 U. S. 971.
There are two complementary principles to be reconciled in this case. One is the right of the individual to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses. The other is the constitutional ban in the Equal Protection Clause of the Fourteenth Amendment against state-sponsored racial inequality, which of course bars a city from acting as trustee under a private will that serves the racial segregation cause. Pennsylvania v. Board of Trusts, 353 U. S. 230. A private golf club, however, restricted to either Negro or white membership is one expression of freedom of association. But a municipal golf course that serves only one race is state activity indicating a preference on a matter as to which the State must be neutral. What is “private” action and what is “state” action is not always easy to determine. See Burton v. Wilmington Parking Authority, 365 U. S. 715. Conduct that is formally “private” may bec'ome so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action. The action of a city in serving as trustee of property under a private will serving the segregated cause is an obvious example. See Pennsylvania v. Board of Trusts, supra. A town may be privately owned and managed, but that does not necessarily allow the company to treat it as if it were wholly in the private sector. Thus we held in Marsh v. Alabama, 326 U. S. 501, that the exercise of constitutionally protected rights on the public streets of a company town could not be denied by the owner. A State is not justified, we said, in “permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties Id., at 509. We have also held that where a State delegates an aspect of the elective process to private groups, they become subject to the same restraints as the State. Terry v. Adams, 345 U. S. 461. That is to say, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instru-mentalities of the State and subject to its constitutional limitations.
Yet generalizations do not decide concrete cases. “Only by sifting facts and weighing circumstances” (Burton v. Wilmington Parking Authority, supra, at 722) can we determine whether the reach of the Fourteenth Amendment extends to a particular case. The range of governmental activities is broad and varied, and the fact that government has engaged in a particular activity does not necessarily mean that an individual entrepreneur or manager of the same kind of undertaking suffers the same constitutional inhibitions. While a State may not segregate public schools so as to exclude one or more religious groups, those sects may maintain their own parochial educational systems. Pierce v. Society of Sisters, 268 U. S. 510.
If a testator wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered.
This park, however, is in a different posture. For years it was an integral part of the City of Macon’s activities. From the pleadings we assume it was swept, manicured, watered, patrolled, and maintained by the city as a public facility for whites only, as well as granted tax exemption under Ga. Code Ann. § 92-201. The momentum it acquired as a public facility is certainly not dissipated ipso facto by the appointment of “private” trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will in time be dissipated is wholly conjectural. If the municipality remains entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment just as the private utility in Public Utilities Comm’n v. Pollak, 343 U. S. 451, 462, remained subject to the Fifth Amendment because of the surveillance which federal agencies had over its affairs. We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.
This conclusion is buttressed by the nature of the service rendered the community by a park. The service rendered even by a private park of this character is municipal in nature. It is open to every white person, there being no selective element other than race. Golf clubs, social centers, luncheon clubs, schools such as Tuskegee was at least in origin, and other like organizations in the private sector are often racially oriented. A park, on the other hand, is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, Watson v. Memphis, 373 U. S. 526; and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment. Like the streets of the company town in Marsh v. Alabama, supra, the elective process of Terry v. Adams, supra, and the transit system of Public Utilities Comm’n v. Pollak, supra, the predominant character and purpose of this park are municipal.
Under the circumstances of this case, we cannot but conclude that the public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law. We may fairly assume that had the Georgia courts been of the view that even in private hands the park may not be operated for the public on a segregated basis, the resignation would not have been approved and private trustees appointed. We put the matter that way because on this record we cannot say that the transfer of title per se disentangled the park from segregation under the municipal regime that long controlled it.
Since the judgment below gives effect to that purpose, it must be and is
Reversed.
Mr. Justice White.
As Mr. Justice Black
emphasizes, this case comes to us in the very narrow context of a state court judgment accepting the resignation of a trustee and appointing successor trustees. The lower court judgment does not enjoin the new trustees to comply with the racial restriction in the trust, and there is therefore not presented for decision the question whether, should the trustees fail to exclude Negroes from the park, state judicial enforcement of the racial restriction would constitute discriminatory state action forbidden by the Equal Protection Clause of the Fourteenth Amendment. See Bell v. Maryland, 378 U. S. 226, 328-331 (dissenting opinion). But we do have properly before us, in my opinion, the question of whether the Fourteenth Amendment prohibits the new trustees from voluntarily excluding Negroes. This is so because decision of the state law questions in this case was not independent of that federal question. The city’s resignation, its acceptance by the state courts, and the appointment of new trustees were all based on the premise that the city could not, but private trustees could, obey the racial restriction in the trust without violation of the Federal Constitution. If that premise was incorrect, this Court should vacate the judgment below and remand for further consideration of the state law issues free from the compulsion of an erroneous view of federal law. Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5; Minnesota v. National Tea Co., 309 U. S. 551; State Tax Comm’n v. Van Cott, 306 U. S. 511.
That the Fourteenth Amendment prohibits operation of the park on a segregated basis so long as the city is trustee is of course not disputed. See cases cited by the majority, ante, n. 1. Whether the successor trustees may themselves operate the park on a segregated basis is the question. The majority holds that they may not. I agree, but for different reasons.
To a large extent the majority grounds its conclusion that exclusion of Negroes from the park after the change in trustees would be state action and thus violative of the Fourteenth Amendment on the existence of prior municipal involvement in the operation of the park.
“The momentum [the park] acquired as a public facility is certainly not dissipated ipso facto by the appointment of ‘private’ trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will in time be dissipated is wholly conjectural. . . . We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.” Ante, at 301.
It is equally evident that the record does not show continued involvement of the city in the operation of the park — the record is silent on this point. On the contrary, the city’s interest would seem to lead it to cut all ties with the operation of the park. It must be as clear to the city as to this Court that if the city remains “entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment,” ante, p. 301; and should segregation in the park be barred, the residuary beneficiaries would undoubtedly press their claim that failure of the trust purpose expressed in the racial restriction results in reversion of the park property. It seems unlikely that the city would act so as unnecessarily to jeopardize the continued existence of this centrally located park, which comprises about 100 acres and is one of the city’s largest parks.
That the city’s own interest might lead it to extricate itself at once from operation of the park does not, of course, necessarily mean that it has done so; and I am no more inclined than the majority to resolve this question by conjecture. I refer to possible inferences from the city’s self-interest solely to emphasize that the record affords absolutely no basis for inferring continued involvement of the city in the management and control of the park. What the majority has done is to raise a presumption of one fact by showing the absence of proof of the converse. To postulate in this manner that the city’s involvement has not been dissipated is simply a disguised form of conjecture and, I submit, is an insufficient basis for decision of this case.
I would nevertheless hold that the racial condition in the trust may not be given effect by the new trustees because, in my view, it is incurably tainted by discriminatory state legislation validating such a condition under state law. The state legislation to which I refer is §§ 69-504 and 69-505 of the Georgia Code, which were adopted in 1905, just six years before Senator Bacon’s will was executed. Sections 69-504 and 69-505 make lawful charitable trusts “dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose” and provide that “the use of said park, pleasure ground, or other property so conveyed to said municipality [may] be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only . ...”
As this legislation does not compel a trust settlor to condition his grant upon use only by a racially designated class, the State cannot be said to have directly coerced private discrimination. Nevertheless, if the validity of the racial condition in Senator Bacon’s trust would have been in doubt but for the 1905 statute and if the statute removed such doubt only for racial restrictions, leaving the validity of nonracial restrictions still in question, the absence of coercive language in the legislation would not prevent application of the Fourteenth Amendment. For such a statute would depart from a policy of strict neutrality in matters of private discrimination by enlisting the State’s assistance only in aid of racial discrimination and would so involve the State in the private choice as to convert the infected private discrimination into state action subject to the Fourteenth Amendment. Compare Robinson v. Florida, 378 U. S. 153; Lombard v. Louisiana, 373 U. S. 267; Peterson v. City of Greenville, 373 U. S. 244. Although there are no Georgia decisions directly on the point and the question is therefore not free from doubt, the available authorities have led me to conclude that §§ 69-504 and 69-505 did involve the State in the private choice by favoring private racial discrimination over private discrimination based on grounds other than race.
Apart from §§ 69-504 and 69-505, the Georgia statute governing the determination of permissible objects of charitable trusts is § 108-203. This statute “almost copies the statute of 43d Elizabeth,” Newson v. Starke, 46 Ga. 88, 92 (1872), and has the effect of fully adopting in Georgia the common law of charities, Jones v. Habersham, 107 U. S. 174, 180. We may therefore expect general charitable trust principles to be as fully applicable in Georgia as elsewhere in the several States. Under such principles, there is grave doubt concerning whether a charitable trust for a park could be limited to the use of less than the whole public.
In the leading case of Commissioners for Special Purposes of Income Tax v. Pemsel, [1891] A. C. 531, 583, Lord Macnaghten established the classification of charitable trusts that, with some modifications, has since prevailed:
“ ‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.”
See also Restatement (Second), Trusts § 368 (1959). A more general test of what is charitable is whether the accomplishment of the trust purpose “is of such social interest to the community as to justify permitting property to be devoted to the purpose in perpetuity.” IV Scott on Trusts § 368, at 2629-2630 (2d ed. 1956). The first three categories identified by Lord Macnaghten designate trust purposes that have long been recognized as beneficial to the community as a whole — whether or not immediate benefit is restricted to a relatively small group — -and that therefore satisfy the general test stated by Professor Scott. See Restatement (Second), Trusts § 374, comment a (1959). But the present trust falls under the fourth category and can therefore be sustained as charitable only because the generality of user beneficiaries establishes that it is beneficial to the community. Otherwise a trust to establish a country club for the use of the residents of the wealthiest part of town would be charitable. Professor Scott states this principle as follows:
“As we have seen, a trust to promote the happiness or well-being of members of the community is charitable, although it is not a trust to relieve poverty, advance education, promote religion or protect health. In such a case, however, the trust must be for the benefit of the members of the community generally and not merely for the benefit of a class of persons.” IV Scott on Trusts § 375.2, at 2715 (2d ed. 1956). (Emphasis added.)
Accord, Trustees of New Castle Common v. Megginson, 1 Boyce 361, 376, 77 A. 565, 571 (Sup. Ct. Del. 1910) (trust for town common was charitable; “[i]t is public, because it relates to all the inhabitants of a particular community and not to any classification of such inhabitants, or to any group thereof separately from the other inhabitants by any distinction of race, creed, social rank, wealth, poverty, occupation, or business . . .”); Restatement, Trusts § 375, comments a and c (1935); Restatement (Second), Trusts § 375, comment.» (1959); see also Bogert on Trusts § 378 (2d ed. 1964). Apart from the present case, no Georgia cases dealing with trusts for general community purposes have been found, see Smith, The Validity of Charitable Gifts in Georgia, 1 Ga. B. J. 16, 26-27 (Feb. 1939), but the available Georgia authorities are consistent with the rule enunciated by Scott. Compare Bramblett v. Trust Co. of Georgia, 182 Ga. 87, 185 S. E. 72 (1936) (trust to establish “home for gentlewomen” not charitable), with Houston v. Mills Memorial Home, 202 Ga. 540, 43 S. E. 2d 680 (1947) (trust for Negro old folks’ home is charitable). On the whole, therefore, I conclude that prior to the 1905 legislation it would have been extremely doubtful whether § 108-203 authorized a trust for park purposes when a portion of the public was to be excluded from the park.
Sections 69-504 and 69-505 clearly permit exclusion of a portion of the public if such exclusion is on racial grounds. At the same time, those sections appear to make nonracial restrictions on the user of a park created by trust even more doubtful. Section 69-504 authorizes the conveyance of land “dedicated in perpetuity to the public use as a park” and also provides that such a conveyance may limit user on racial grounds. The natural construction of this provision would be that it authorizes a trust only for the use of the whole public or for the use of a racially designated subpart of the public, but not for the use of some other portion of the public such as men only or Irish persons only. Such an interpretation follows from the maxim expressio unius est exclusio alterius and from the dedication cases to which the majority refers, ante, at 300-301, n. 3, which indicate that the expression “dedicated in perpetuity to the public use as a park” means dedication to the public as a whole and not some portion of the public. See also Western Union Telegraph Co. v. Georgia R. & Banking Co., 227 F. 276, 285 (D. C. S. D. Ga. 1915). (“‘There can be no dedication, strictly speaking, to private uses, nor even to uses public in their nature, but the enjoyment of which is restricted to a limited part of the public.’ ”) One commentator has suggested that § 69-504 was intended to expand clause 4 of § 108-203, see note 2, supra, i. e., “to enlarge ‘public works’ or ‘public conveniences’ to include public parks or pleasure grounds . . . .” Smith, The Validity of Charitable Gifts in Georgia, 1 Ga. B. J. 16, 27 (Feb. 1939). On that assumption, the sole authority for holding gifts in trust for park purposes to be charitable would be § 69-504, and that section clearly makes nonracial restrictions on use of such parks more doubtful than racial restrictions. Even if § 69-504 is regarded as a clarification of prior law, rather than an addition to it, it has the same effect of casting doubt on the validity of nonracial restrictions.
This case must accordingly be viewed as one where the State has forbidden all private discrimination except racial discrimination. As a result, “the State through its regulations has become involved to such a significant extent” in bringing about the discriminatory provision in Senator Bacon’s trust that the racial restriction “must be held to reflect . . . state policy and therefore to violate the Fourteenth Amendment.” Robinson v. Florida, 378 U. S. 153, 156-157. For the reasons stated, I would vacate the judgment of the Georgia court and remand the case for further proceedings.
Watson v. Memphis, 373 U. S. 526. And see Mayor & City Council of Baltimore v. Dawson, 350 U. S. 877 (beaches and bathhouses) .
Holmes v. City of Atlanta, 350 U. S. 879; New Orleans Park Assn. v. Detiege, 358 U. S. 54.
It is argued that this park was a product of Georgia’s policy to allow charitable trusts of public facilities to be segregated. A Georgia statute permitted any person to grant a municipal corporation land in trust to the public use as a park on a racially segregated basis. Ga. Code Ann. § 69-504. And a companion measure authorized municipal corporations to accept such grants and to enforce the racial limitations. Id., § 69-505. This policy, it is urged, had a “coercive effect” (Lombard v. Louisiana, 373 U. S. 267, 273) implicating Georgia in racial discrimination, for without that legislative pattern for segregation a testator would have had to travel an uncertain course to reach that end. Before § 69-504 was enacted in 1905, an attempt to establish a trust such as this would have faced numerous difficulties. The pre-1905 statutory law did not expressly include parks as a proper subject of charitable trusts, although it was specific in other regards. See Ga. Code §4008 (1895). And Georgia’s public parks were conceived of as “dedicated” commons with an easement in favor of the general public. See Mayor & Council of Macon v. Franklin, 12 Ga. 239. The concept of dedication meant that the property was to benefit the public as a whole. Ford v. Harris, 95 Ga. 97, 101, 22 S. E. 144, 145; East Atlanta Land Co. v. Mower, 138 Ga. 380, 388, 75 S. E. 418, 422. It would have posed conceptual difficulties, to say the least, to dedicate land to the public as a whole, at the same time excluding the members of the Negro race. Cf. Brown v. Gunn, 75 Ga. 441, in which this point was disposed of only by finding that, on the particular facts of that case, there was no “dedication.” We think it likely that it was the very difficulties discussed here that § 69-504 was intended to eliminate. We do not, however, reach the question whether the State facilitated, through this legislative action, the establishment of segregated parks.
Ala. Laws 1880-1881, pp. 395-396; Ala. Laws, 1882-1883, pp. 392-393.
“69-504. Gifts for 'public parks or pleasure grounds. — Any person may, by appropriate conveyance, devise, give, or grant to any municipal corporation of this State, in fee simple or in trust, or to other persons as trustees, lands by said conveyance dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose, and in said conveyance, by appropriate limitations and conditions, provide that the use of said park, pleasure ground, or other property so conveyed to said municipality shall be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only, that may be designated by said devisor or grantor; and any person may also, by such conveyance, devise, give, or grant in perpetuity to such corporations or persons other property, real or personal, for the development, improvement, and maintenance of said property.
“69-505. Municipality authorized to accept. — Any municipal corporation, or other persons natural or artificial, as trustees, to whom such devise, gift, or grant is made, may accept the same in behalf of and for the benefit of the class of persons named in the conveyance, and for their exclusive use and enjoyment; with the right to the municipality or trustees to improve, embellish, and ornament the land so granted as a public park, or for other public use as herein specified, and every municipal corporation to which such conveyance shall be made shall have power, by appropriate police provision, to protect the class of persons for whose benefit the devise or grant is made, in the exclusive used [sic] and enjoyment thereof.” Ga. Code Ann. §§69-504 and 69-505 (1957).
“108-203. Subjects of charity. — The following subjects are proper matters of charity for the jurisdiction of equity:
“1. Relief of aged, impotent, diseased, or poor people.
“2.'Every educational purpose.
“3. Religious instruction or worship.
“4. Construction or repair of public works, or highways, or other public conveniences.
“5. Promotion of any craft or persons engaging therein.
“6. Redemption or relief of prisoners or captives.
“7. Improvement or repair of cemeteries or tombstones.
“8. Other similar subjects, having for their object the relief of human suffering or the promotion of human civilization.” Ga. Code Ann. §108-203 (1959)..
This precise question had been mooted in England a few years before the 1905 Georgia enactment in the case of In re Christchurch Inclosure Act, 38 Ch. D. 520 (1888), aff’d, [1893] A. C. 1, and it appears the English rule may differ from the American rule. The Christchurch Inclosure Act gave tenants in certain cottages the right in a designated common to cut turf for fuel. In the case before the court, it was clear the act had to be given effect in some manner, but the court expressed great difficulty in giving it effect as creating a charitable trust. “For, although the occupiers of these cottages may have been, and perhaps were, poor people, the trust is not for the poor occupiers, but for all the then and future occupiers, whether poor or not. Moreover, the trust is not for the inhabitants of a parish or district, but only for some of such persons.” Id., at 530. Nevertheless, the court felt bound to hold such a trust was charitable on the authority of a dictum by Lord Selborne in Goodman v. Mayor of Saltash, 7 App. Cas. 633, 642 (1882) (trust for a fishery for the use of all “free inhabitants of ancient tenements” held charitable), that “[a] gift subject to a condition or trust for the benefit of the inhabitants of a parish or town, or of any particular class of such inhabitants, is (as I understand the law) a charitable trust ...” Lord Blackburn dissented in Goodman v. Mayor of Saltash, saying that “though there are many cases to the effect that a trust for public purposes, not confined to the poor, may be considered charitable for many purposes, I do not know of any that say that such a trust as is now supposed would be taken out of the rule against perpetuities . . . .” Id., at 662. No doubt Lord Sel-borne’s view of what constituted a trust for the benefit of the public generally was colored by feudal traditions and the long history of royal charters to the burghers, or “free inhabitants” of a town (in fact, the trust in Goodman v. Mayor of Saltash was a fictional one created by supposing the prior existence of such a charter, now lost), while the American rule enunciated by Scott is in keeping with the American democratic tradition, which in turn is reflected by the Georgia cases regarding dedication of land to public use discussed by the majority, ante, at 300-301, n. 3.
The trust in Mills Memorial Home was specifically recognized as charitable by § 108-203 (1) (“Relief of aged, impotent, diseased, or poor people”), see note 2, supra, while the trust in Bramblett would be classifiable as one to promote the happiness or well-being of members of the community at large and would thus be tested by the standard of generality stated by Professor Scott.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
Earl CUTHBERTSON, Appellant, v. Dr. C. G. UHLEY, Individually, the Northwestern Clinic, a partnership, and the Bethesda Hospital Association, a corporation, now known as the Riverview Hospital Association, Appellees.
No. 74-1603.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 7, 1975.
Decided Feb. 3, 1975.
Raymond A. Lamb, Moorhead, Minn., for appellant.
Edmund M. Odland, Erickson, Erie & Odland, Crookston, Minn., for appellee, Bethesda Hospital.
Gerald S. Rufer, Rufer, Hefte, Pemberton, Schulze & Sorlie, Fergus Falls, Minn., for appellees, Uhley and Northwestern Clinic.
Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
HEANEY, Circuit Judge.
The sole issue on appeal is whether the Minnesota statute of limitations or the North Dakota statute of limitations applies to this medical malpractice suit brought in the United States District Court for the District of Minnesota. The District Court, in an unpublished decision, applied the Minnesota statute and dismissed the action. It held that the Minnesota Supreme Court would, under its better-law methodology adopted in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973), find the Minnesota statute to be the better law and bar the action. We affirm on different grounds.
Earl Cuthbertson, a North Dakota resident, brought this action against Dr. E. G. Uhley, a Minnesota resident, Northwestern Clinic, a Minnesota partnership, and Bethesda Hospital, a Minnesota corporation, now known as Riverview Hospital Association, alleging negligent treatment of a laceration to his right arm. Jurisdiction was based on diversity-
The statute of limitations for medical malpractice is two years in both Minnesota and North Dakota. The Minnesota statute, however, begins to run from the termination of the treatment, Johnson v. Winthrop Laboratories Division of Sterling Drug, Inc., 291 Minn. 145, 190 N.W.2d 77 (1971), while the North Dakota statute begins to run from the discovery of the cause of action, Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1968). The action here is not barred under the North Dakota statute. The appellant argues that the Minnesota Supreme Court would apply the North Dakota statute here because it is the better law.
We must follow the choice-of-law rules of the forum state in resolving the issue presented. Klaxon v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The appellant’s reliance on the better-law analysis announced in Milkovich v. Saari, supra, is misplaced. That case adopted a choice-of-law methodology to be applied to conflicts between substantive law; it did not address the issue here. When the conflict is between the procedural law, Minnesota follows the general rule that procedural law of the forum applies and that statutes of limitations are procedural. See American Mutual Liability Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178, 180, n. 1 (1963); Allen v. Nessler, 247 Minn. 230, 76 N.W.2d 793, 798-799 (1956); Knipfer v. Buhler, 227 Minn. 334, 35 N.W.2d 425, 426 (1948); In Re Daniel’s Estate, 208 Minn. 420, 294 N.W. 465, 469 (1940); Weston v. Jones, 160 Minn. 32, 199 N.W. 431, 432-433 (1924); Restatement, Second, Conflict of Laws § 142; Leflar, American Conflicts Law 303-305 (1968). That rule governs the disposition of the issue presented here.
The decision of the District Court is
Affirmed.
. The Minnesota statute, M.S.A. § 541.07, provides in pertinent part:
Except where the uniform commercial code otherwise prescribes, the following actions shall be commenced within two years:
(1) * * * all actions against physicians, surgeons, dentists, hospitals [and] sanitoriums, for malpractice, error, mistake or failure to cure, whether based on contract or tort; * * *
The North Dakota statute, N.D.C.C. § 28-01-18, provides in pertinent part:
* * * The following actions must be commenced within two years after the cause of action has accrued:
******
3. An action for 'the recovery of damages resulting from malpractice.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
COMMISSIONER OF INTERNAL REVENUE v. THOMAS FLEXIBLE COUPLING CO.
Nos. 10415, 10416, 10417 and 10418.
United States Court of Appeals Third Circuit.
Argued April 7, 1952.
Decided Aug. 5, 1952.
Carlton Fox, Washington, D. C. (Ellis N. Slack, Acting Asst. Atty. Gen., Lee A. Jackson, Special Asst, to the Atty. Gen., on the brief), for petitioner.
Frank A. Moorshead, Philadelphia, Pa. (John P. Hilferty, H. E. Potter, Philadelphia, Pa., on the brief), for respondent-ap-pellee.
Before MARIS, GOODRICH and HASTIE, Circuit Judges.
MARIS, Circuit Judge.
This is a petition by the Commissioner of Internal Revenue to review a decision of the Tax Court holding that in determining the taxpayer’s income, excess profits and declared value excess profits tax liability for the years 1942, 1943 and 1944 certain royalty payments made by the taxpayer to Mrs. Bertha E. Thomas during those years were ordinary and necessary business expenses deductible under Section 23(a)(1) (A) of the Internal Revenue Code, 26 U.S.C. The principal question presented to us on review is whether the taxpayer was estopped ¡by a prior adverse decision of the Tax Court filed May 31, 1944, and affirmed by this court, 158 F.2d 828, which involved the tax years 1939, 1940 and 1941, from claiming that the royalty payments in question were deductible as ordinary and necessary business expenses.
The basis of the Tax Court’s 1944 decision denying the deductions for the earlier years may be summarized as follows: By virtue of certain agreements of January 6, 1920 and March 20, 1920 entered into between the taxpayer, a manufacturer of flexible couplings, and Mrs. Thomas whereby she had assigned to the taxpayer certain patents on coupling devices which she then owned, as well as all improvements upon the inventions therein described, the taxpayer was already the owner of the two improvements on coupling devices when Mrs. Thomas on October 26, 1939 assigned her patent applications on those improvements to it. Accordingly the .royalties in question which the taxpayer paid to Mrs. Thomas during 1939, 1940 and 1941, as the consideration for the assignment of the patent applications pursuant to an agreement between them of November 26, 1939 were merely voluntary payments and, therefore, not deductible for federal tax purposes as ordinary and necessary business expenses. 3 T.C.M. 620.
On November 26, 1943, a few months after the hearing by the Tax Court of the merits of the prior proceeding Mrs. Thomas and the taxpayer entered into a contract which was entitled a “Supplemental Agreement”, effective retroactively as of July 1, 1943. By this agreement the taxpayer reassigned to Mrs. Thomas its rights in the improvement Patents Nos. 2,182,711 and 2,251,722 which had been assigned to it by her on October 26, 1939. In turn, Mrs. Thomas granted an exclusive license to the taxpayer to manufacture and sell flexible couplings under these patents. The parties furthermore agreed that the royalties provided for in the agreement of November 26, 1939 had proved to be greater in amount than they had contemplated and they provided for a lower basis of royalty payments, the minimum royalty provisions of the November 26, 1939 agreement to continue in effect and the maximum royalties not to exceed $80,000 per year.
In April, 1945 Mrs. Thomas filed a petition for a declaratory judgment in the Court of Common Pleas of Warren County, Pennsylvania, to determine the rights and obligations of the parties under the agreements of November 26, 1939 and November 26, 1943. In the petition Mrs. Thomas alleged that on March 21, 1945 the taxpayer advised her that because of the Tax Court’s decision it would refuse to pay further royalties under the agreements of November 26, 1939 and November 26, 1943 and demanded return of all royalties paid since-May 1, 1939 and a reassignment to the taxpayer of the patents it had assigned pursuant to the agreement of November 26, 1943. The Court of Common Pleas sustained the claims of Mrs. Thomas, holding that the agreements of 1939 and 1943 were supported by valid, adequate and legal consideration, that Mrs. Thomas was the owner of the improvement patents in question and that she was entitled to judgment against the taxpayer for the amounts due her under the agreements. On appeal to the Pennsylvania Supreme Court, the judgment was affirmed, one justice dissenting on the ground that there was no real controversy between the parties. Thomas v. Thomas Flexible Coupling Co., 1946, 353 Pa. 591, 46 A.2d 212.
On the subsequent review of the Tax Court’s 1944 decision by this court, this judgment of the Pennsylvania state courts was brought to our attention at argument. This court, nonetheless affirmed the Tax Court’s decision. 158 F.2d 828, certiorari denied 329 U.S. 810, 67 S.Ct. 624, 91 L.Ed. 691.
We come then to the facts of the case before us: Pursuant to the terms of the agreement of November 26, 1939 the taxpayer paid Mrs. Thomas $170,833.16 in royalties for 1942 and $236,323.73 for the first half of 1943. Under that agreement, as modified fby the agreement of November 26, 1943 royalty payments of $40,000 were paid for the second half of 1943 and $80,000 for the year 1944. The Commissioner disallowed the deduction of these payments from the taxpayer’s gross income as ordinary and necessary business expenses under Section 23(a)(1)(A) of the Internal Revenue Code on the ground that the prior decision denying such deductions to the taxpayer for the tax years 1939, 1940 and 1941 estopped it from making the claimed deductions for the tax years here involved. On appeal the Tax Court reached the contrary conclusion, holding that its former decision was not res judicata as to the present proceeding. The court held that the royalty payments made during' the tax years 1942, 1943 and 1944 pursuant to the agreements of 1939 and 1943 were deductible as ordinary and necessary business expenses, limited, however, to the gross amount of $80,-000 a year. Five members of the court dissented on the ground that the doctrine of res.judicata should have been applied. 14 T.C. 802.
On this petition the Commissioner contends that it was error on the part of the Tax Court to hold that the taxpayer was not estopped from deducting the payments to Mrs. Thomas as ordinary and necessary business expenses. He points out that the court, contrary to its findings in these proceedings, had found in the prior proceedings that the assignment of October 26, 1939 by Mrs. Thomas of the two improvement patents, Nos. 2,182,711 and 2,251,722, was in fulfillment of an obligation on her part to do so under the terms of the 1920 agreements, and, therefore, did not afford a basis for her receipt under the November 26, 1939 agreement of new compensation for the transfer in the form of the royalty which that agreement provided for. He contends that it was error for the Tax Court to hold that under the 1939 agreement Mrs. Thomas was entitled to royalties for the tax years involved contrary to the decision of the Tax Court, affirmed by this court, in the prior proceedings. Although the Commissioner concedes that the 1943 agreement was not involved in the prior proceedings, he contends that no different conclusion is required with regard to that contract because it was before the Pennsylvania state courts and this court during the prior proceedings and was, therefore, ruled upon in those proceedings.
On the other hand the taxpayer strongly urges that the Tax Court in the present proceeding rightly held that the decision of the Pennsylvania Supreme Court has authoritatively determined that Mrs. Thomas was not legally obligated in 1939 to assign the patents in question to the petitioner, that the assignment which she made in that year was, therefore, a legal consideration for the taxpayer’s promise to pay the royalties provided under the contract of November 26, 1939 and that the taxpayer was accordingly legally obligated to make the royalty payments which it did make during the years 1942, 1943 and 1944.
The royalty payments which are involved in this case fall, as we have seen, into two groups — those paid under the contract of November 26, 1939 for the year 1942 and the first half of the year 1943, the first 18 months of the period of three years in question, and those paid under that contract as modified by the contract of November 26, 1943 for the second half of the year 1943 and all of 1944, the last 18 months of the period. The impact of the doctrine of res judicata is not the same with respect to the payments for these two periods and we shall accordingly consider them separately, considering first the payments for the last 18 months which were made under the 1943 agreement.
Since tax claims for successive years do not involve the same cause of action the aspect of res judicata which is' applicable is that known as collateral estoppel. In such cases the judgment in a suit with respect to tax liability for one year is conclusive between the parties to the suit with respect to similar tax liability for a later year only as to those matters in issue and points controverted which were actually litigated and decided in the prior suit. Tait v. Western Md. Ry. Co., 1933, 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405. In Commissioner v. Sunnen, 1948, 333 U.S. 591, 599-600, 68 S.Ct. 715, 720, 92 L.Ed. 898, the Supreme Court stated the rule as follows:
“And so where two cases involve income taxes in different taxable years, collateral estoppel must be used with its limitations carefully in mind so as to avoid injustice. It must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged. Tait v. Western Md. Ry. Co., supra. If the legal matters determined in the earlier case differ from those raised in the second case, collateral estoppel has no bearing on the situation.”
Applying this rule the Supreme Court in the Sunnen case said, 333 U.S. at page 602, 68 S.Ct. at page 72T:
“For income fax purposes, what is decided as to one contract is not conclusive as to any other contract which is not then in issue, however similar or identical it may be.”
The court accordingly held in that case that the tax status of royalty payments growing out of certain license contracts was not settled, under the doctrine of collateral estop-pel, by a prior decision of the Board of Tax Appeals involving similar royalty payments made under similar but earlier royalty contracts.
We think that the doctrine of the Sunnen case clearly supports the conclusion of the Tax Court here so far as it relates to the royalty payments for the last 18 months period. For these payments were made under the contract of November 26, 1943 which was not and could not have been involved in the litigation covering the years 1939, 1940 and 1941, which culminated in the 1944 decision. Since the 1943 agreement made very substantial changes in the rights and obligations of the parties it necessarily involved a change in the controlling facts which prevents the application of the doctrine of res judicata.
It remains for us to consider on this branch of the case whether the Tax Court nonetheless erred in holding on the merits that the royalty payments in question constituted ordinary and necessary business expenses which were deductible for income tax purposes. Two separate questions were here presented to the Tax Court for decision. The first was whether the taxpayer was under a legal obligation to Mrs. Thomas to make the royalty payments in question, since if not they could hardly be regarded as .“ordinary and necessary.” This was purely a matter of state law involving the validity and obligatory character of a contract made and to be performed in Pennsylvania between residents of that state. In the solution of a local law question of this sort Pennsylvania law is controlling. Blair v. Commissioner, 1937, 300 U.S. 5, 9, 10, 57 S.Ct. 330, 81 L.Ed. 465; Morgan v. Commissioner, 1940, 309 U.S. 78, 80, 626, 60 S.Ct. 424, 84 L.Ed. 585, 1035; Dayton & Michigan R. Co. v. Commissioner of Int. Rev., 4 Cir., 1940, 112 F.2d 627, 630.
The second question was whether the royalty payments, assuming that there was a legal obligation to make them under the state law, were deductible, as ordinary and necessary business expenses, for income tax purposes under the Internal Revenue Code. This question was solely one of federal income tax law. Blair v. Commissioner, 1937, 300 U.S. 5, 11, 57 S.Ct. 330, 81 L.Ed. 465. In its solution state law has no application.
Considering first the question whether the taxpayer was legally obligated to make these royalty payments we are met at the outset, as was the Tax Court, by the fact that the Supreme Court of Pennsylvania has held in a declaratory judgment suit between Mrs. Thomas and the taxpayer that the agreement of 1939 as modified by the agreement of 1943 imposed a binding legal obligation upon the taxpayer to make the royalty payments for which those agreements provided. Following the 1944 decision of the Tax Court the taxpayer had discontinued making royalty payments and in the Pennsylvania litigation a judgment was entered in favor of Mrs Thomas for the accumulated and unpaid royalties due her under the agreements. This judgment having been affirmed by the Supreme Court of Pennsylvania on an appeal taken by the taxpayer, it settled the proposition that under the law of Pennsylvania the agreements imposed a binding obligation to make the royalty payments to Mrs. Thomas. The Commissioner urges that the litigation was nonadversary in nature and that there was in fact no real controversy between the parties. Accordingly, he argues, the decision, under the doctrine of Freuler v. Helvering, 1934, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634, was not binding on the Tax Court. The dissenting justice in the Supreme Court of Pennsylvania thought that the suit was nonadversary but the majority ruled otherwise and since the question involved is wholly one of state law and has been reviewed on appeal by the highest court of the state we are bound to accept its conclusion. See Kelly’s Trust No. 2 v. Commissioner, 2 Cir., 1948, 168 F.2d 198. We conclude, therefore, that the Tax Court rightly held as to the last 18 months period that the royalty payments were made pursuant to a binding, legal obligation of the taxpayer.
The question remains as to whether the court erred in holding as a matter of federal income tax law that these payments were deductible by the taxpayer as ordinary and necessary business expenses. This was largely a question of fact in the determination of which the Tax Court is particularly competent. It found these royalty payments to be ordinary and necessary business expenses to the extent of $80,-000 per year based upon the court’s conclusion that these payments were ordinary and necessary because they were required to be made under binding agreements. This finding of fact is clearly supported by the record and we cannot hold it to be erroneous. The conclusion necessarily follows as a matter of federal tax law that the payments made during the 18 months period comprising the last half of 1942 and the year 1943 were deductible for income tax purposes from the taxpayer’s gross income.
We turn then to consider the Tax Court’s decision insofar as it held that the royalty payments for the first 18 months period here in question were also ordinary and necessary business expenses to the extent of $80,000 per year and deductible as such. These payments were made solely under the 1939 agreement which was before the Tax Court when it made its 1944 decision. Accordingly, unless some legally significant event had intervened to prevent the application of the doctrine of collateral estoppel, the taxpayer was bound under that doctrine as to the 'first 18 months period by the 1944 decision of the Tax Court which held the royalty payments made under the agreement of 1939 for the years 1939, 1940 and 1941 not to be deductible because they were made without legal consideration. The taxpayer contends that such an event did intervene, namely, the decision of the Pennsylvania courts to which we have already referred which held both 1939 and 1943 agreements to be valid and enforceable. It relies upon Blair v. Commissioner, 1937, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465, which held that an intervening state court decision upon a question of local law involved in the determination of the taxpayer’s income tax liability created a new situation which could not justly be ignored and which, therefore, prevented the operation of the doctrine of res judicata, and upon Commissioner v. Sunnen, 1948, 333 U.S. 591, at page 600, 68 S.Ct. at page 720, in which case the court said:
“As demonstrated by Blair v. Commissioner, 300 U.S. 5, 9, 57 S.Ct. 330, 331, 81 L.Ed. 465, a judicial declaration intervening between the two proceedings may so change the legal atmosphere as to render the rule of collateral estoppel inapplicable.”
It is true that the Pennsylvania judgment was rendered and affirmed after the 1944 decision of the Tax Court. It was undoubtedly an intervening decision of a state court deciding a matter of local law which was involved in the taxpayer’s case in the Tax Court. It was rendered and affirmed, however, before the review of the Tax Court’s decision was argued in this court and it was referred to by counsel in their briefs and oral argument in this court and by us in our opinion. The Commissioner strongly urges that the rule of the Blair case is inapplicable under the circumstances since in that case the state court’s decision came down after the Board of Tax Appeals decision had been reviewed by the Circuit Court of Appeals, whereas here the intervening state court decision was considered by our court upon our review of the first Tax Court decision and must, therefore, be regarded as having been applied in that case to the extent required by law. The taxpayer on the contrary urges that the Pennsylvania Supreme Court decision was not and could not have been fully considered in the first case because it was not in the record before the Tax Court and cites Masterson v. Commissioner of Internal Revenue, 5 Cir., 1944, 141 F.2d 391, as authority for that proposition. The Commissioner criticizes the Masterson-case and asserts that it was wrongly decided.
We might agree with the Commissioner’s criticism of the Masterson case if it were sought to be applied to the normal appellate situation. For ordinarily if upon appeal from the judgment of a district court the court of appeals learns of a subsequent state court decision which modifies a rule of law applicable to the decision of the case, the appellate court is bound to apply the changed rule of law to the decision on appeal even though the state decision was not and could not have been before the district court. Vandenbark v. Owens-Illinois Glass Co., 1941, 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327. In the present case, however, as in the Masterson case, this court did not have the normal scope of review at the time we reviewed the 1944 decision of the Tax Court. For at that time the extent of our review was severely limited by the rule laid down in Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. In the case of Commissioner v Heininger, 1943, 320 U.S. 467, 475, 64 S.Ct. 249, 254, 88 L.Ed. 171, decided on the same day as the Dobson case, the Supreme Court said:
“Whether an expenditure is directly related to a business and whether it is ordinary and necessary are doubtless pure questions of fact in most instances. Except where a question of law is unmistakably involved a decision of the Board of Tax Appeals on these issues, having taken into account the presumption supporting the Commissioner’s ruling, should not be reversed by the federal appellate courts.”
And in Trust of Bingham v. Comm’r, 1945, 325 U.S. 365, 370, 65 S.Ct. 1232, 1235, 89 L.Ed. 1670, the Court said:
“Ordinarily questions of reasonableness and proximity are for the trier of fact, here the Tax Court. Commissioner v. Heininger, supra, 320 U.S. at page 475, 64 S.Ct. [249] 254, 88 L.Ed. 171; McDonald v. Commissioner, 323 U.S. 57, 64, 65, 65 S.Ct. 96, 99 [89 L.Ed. 68]; see Commissioner v. Scottish American Investment Co., 323 U.S. 119, 65 S.Ct. 169 [89 L.Ed. 113]. And even when they are hybrid questions of ‘mixed law and fact/ their resolution, because of the fact element involved, will usually afford little concrete guidance for future cases, and reviewing courts will set aside the decisions of the Tax Court only when they announce a rule of general applicability, that the facts found fall short of meeting statutory requirements. Dobson v. Commissioner, supra, 320 U.S. [489] at page 502, 64 S.Ct. [239] 247, 88 L.Ed. 248; Commissioner v. Estate of Bedford, ante, 325 U.S. at page 283, 65 S.Ct. 1157 [89 L.Ed. 1611] ; cf. Paul, ‘Dobson v. Commissioner,' 57 Harv. Law Rev. 753, at 828-832, 836, 837. But whether the applicable statutes and regulations are such as to preclude the decision which the Tax Court has rendered, is, as was recognized in Dobson v. Commissioner, supra, 320 U.S. 492, 493, 64 S.Ct. [239] 242, 88 L.Ed. 248, a question of law reviewable on appeal. See also Commissioner v. Heininger, supra, 320 U.S. 475, 64 S.Ct. [249] 254, 88 L.Ed. 171.”
We think that it may fairly be said that under the Dobson rule of review questions of the deductibility of payments as ordinary and necessary business expenses were either regarded as pure questions of fact or as mixed questions of law and fact the decision of which by the Tax Court was reviewable only for plain errors in the application of the federal tax law, that is, in laying down “a rule of general applicability.” Alleged errors of the Tax Court in appraising the effect of state law with respect to the character of such payments were beyond the reach of the courts of appeals. Indeed we said as much in our opinion affirming the 1944 decision of the Tax Court. For although we discussed the Pennsylvania Supreme Court decision we concluded our opinion by saying, 158 F.2d at page 832:
“And the decision of the Tax Court under all the circumstances and predicated on the mixed questions of law and fact involved is final. Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; John Kelley Co. v. Commissioner, 326 U.S. 521, 66 S.Ct. 299 [90 L.Ed. 278].”
It is thus quite clear that our review of the Tax Court’s 1944 decision was necessarily made on the record before the Tax Court and that we were without power to give effect to the Pennsylvania judgment in reaching our decision. Indeed it would seem that we could not even have remanded the case to the Tax Court to reconsider its decision in the light of the state court case. Sewell v. Commissioner of Internal Revenue, 5 Cir., 1945, 151 F.2d 765, certiorari denied 327 U.S. 783, 66 S.Ct. 683, 90 L.Ed. 1010. Under the circumstances it appears that the taxpayer did not in the prior proceeding have its day in court upon the applicability of the Pennsylvania state court judgment to the question of the deductibility, for federal tax purposes, of its royalty payments to Mrs. Thomas. Accordingly we think that it would be unjust and improper to apply the doctrine of collateral estoppel here. For there has truly been an intervening state decision upon a relevant question of local law which has created a new situation within the meaning of the Blair case.
This leaves for our consideration only the question whether as to the royalty payments for the first 18 months period the Tax Court erred in reaching its conclusion in this case that they were made pursuant to a legal obligation of the taxpayer and were ordinary and necessary business expenses and deductible as such. In this connection the Tax Court disallowed as deductions so much of these royalty payments as were in excess of $80,000 per year. The courts of Pennsylvania in the declaratory judgment proceeding between Mrs. Thomas and the taxpayer upheld the 1939 agreement as a valid enforceable contract. We are of opinion that the Tax Court did not err in holding that that judgment settled the question of local law as to whether the taxpayer was legally obligated to make the royalty payments for the period now under discussion. For the reasons already stated with respect to the later period we cannot say that the court erred in concluding that these royalty payments were ordinary and necessary business expenses within the meaning of Section 23(a)(1)(A) of the Internal Revenue Code and as such deductible for income tax purposes.
The decisions of the Tax Court will be affirmed.
HASTIE, J., concurs in the result.
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_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
UNITED STATES v. NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., et al.
No. 73-1701.
Argued March 17, 1975 —
Decided June 26, 1975
Gerald P. Norton argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Kauper, Howard E. Shapiro, and Daniel R. Hunter.
Lee Loevinger argued the cause for appellees. With him on the brief for appellees Bache & Co., Inc., et al., were Owen M. Johnson, Jr., and David J. Saylor. Briefs were filed by Joseph B. Levin, Lloyd J. Derrickson, and Dennis C. Hensley for appellee National Association of Securities Dealers, Inc.; by Robert E. Jensen and Richard M. Phillips for appellees Wellington Management Co. et al.; by William R. Meagher for appellees Fidelity Fund, Inc., et al.; by Herbert J. Miller, Jr., for appellee Vance, Sanders & Co., Inc.; and by Marvin Schwartz and Mark I. Fishman for appellee Massachusetts Investors Growth Stock Fund, Inc.
Walter P. North argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief was Lawrence E. Nerheim.
Opinion of the Court by
Mr. Justice Powell,
announced by Mr. Justice Blackmun.
This appeal requires the Court to determine the extent to which the regulatory authority conferred upon the Securities and Exchange Commission by the Maloney Act, 52 Stat. 1070, as amended, 15 U. S. C. § 78o-3, and the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U. S. C. § 80a-l et seq., displaces the strong antitrust policy embodied in § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1. At issue is whether certain sales and distribution practices employed in marketing securities of open-end management companies, popularly referred to as “mutual funds,” are immune from antitrust liability. We conclude that they are, and accordingly affirm the judgment of the District Court.
I
An “investment company” invests in the securities of other corporations and issues securities of its own. Shares in an investment company thus represent proportionate interests in its investment portfolio, and their value fluctuates in relation to the changes in the value of the securities it owns. The most common form of investment company, the “open end” company or mutual fund, is required by law to redeem its securities on demand at a price approximating their proportionate share of the fund’s net asset value at the time of redemption. In order to avoid liquidation through redemption, mutual funds continuously issue and sell new shares. These features — continuous and unlimited distribution and compulsory redemption — are, as the Court recently recognized, “unique characteristic [s]” of this form of investment. United States v. Cartwright, 411 U. S. 546, 547 (1973).
The initial distribution of mutual-fund shares is conducted by a principal underwriter, often an affiliate of the fund, and by broker-dealers who contract with that underwriter to sell the securities to the public. The sales price commonly consists of two components, a sum calculated from the net asset value of the fund at the time of purchase, and a “load,” a sales charge representing a fixed percentage of the net asset value. The load is divided between the principal underwriter and the broker-dealers, compensating them for their sales efforts.
The distribution-redemption system constitutes the primary market in mutual-fund shares, the operation of which is not questioned in this litigation. The parties agree that § 22 (d) of the Investment Company Act requires broker-dealers to maintain a uniform price in sales in this primary market to all purchasers except the fund, its underwriters, and other dealers. And in view of this express requirement no question exists that antitrust immunity must be afforded these sales. This case focuses, rather, on the potential secondary market in mutual-fund shares.
Although a significant secondary market existed prior to enactment of the Investment Company Act, little presently remains. The United States agrees that the Act was designed to restrict most of secondary market trading, but nonetheless contends that certain industry practices have extended the statutory limitation beyond its proper boundaries. The complaint in this action alleges that the defendants, appellees herein, combined and agreed to restrict the sale and fix the resale prices of mutual-fund shares in secondary market transactions between dealers, from an investor to a dealer, and between investors through brokered transactions. Named as defendants are the National Association of Securities Dealers (NASD), and certain mutual funds, mutual-fund underwriters, and securities broker-dealers.
The United States charges that these agreements violate § 1 of the Sherman Act, 15 U. S. C. § l, and prays that they be enjoined under § 4 of that Act.
Count I charges a horizontal combination and conspiracy among the members of appellee NASD to prevent the growth of a secondary dealer market in the purchase and sale of mutual-fund shares. See n. 42, infra. Counts II-VIII, by contrast, allege various vertical restrictions on secondary market activities. In Counts II, IV, and VI the United States charges that the principal underwriters and broker-dealers entered into agreements that compel the maintenance of the public offering price in brokerage transactions of specified mutual-fund shares, and that prohibit interdealer transactions by allowing each broker-dealer to sell and purchase shares only to or from investors. Count VIII alleges that the broker-dealers entered into other, similar contracts and combinations with numerous principal underwriters. Counts III, V, and VII allege violations on the part of the principal underwriters and the funds themselves. In Counts III and VII the various defendants are charged with entering into contracts requiring the restrictive underwriter-dealer agreements challenged in Counts II and VI. Count V charges that the agreement between one fund and its underwriter restricted the latter to serving as a principal for its own account in all transactions with the public, thereby prohibiting brokerage transactions in the fund’s shares. App. 14.
After carefully examining the structure, purpose, and history of the Investment Company Act, 15 U. S. C. § 80a-l et seq., and the Maloney Act, 15 U. S. C. § 78o-3, the District Court held that this statutory scheme was “ ‘incompatible with the maintenance of (an) antitrust action,’ ” 374 F. Supp. 95, 109 (DC 1973), quoting Silver v. New York Stock Exchange, 373 U. S. 341, 358 (1963). The court concluded that §§22 (d) and (f) of the Investment Company Act, when read in conjunction with the Maloney Act, afford antitrust immunity for all of the practices here challenged. The court further held that apart from this explicit statutory immunity, the pervasive regulatory scheme established by these statutes confers an implied immunity from antitrust sanction in the “narrow area of distribution and sale of mutual fund shares.” 374 F. Supp., at 114. The court accordingly dismissed the complaint, and the United States appealed to this Court.
The position of the United States in this appeal can be summarized briefly. Noting that implied repeals of the antitrust laws are not favored, see, e. g., United States v. Philadelphia National Bank, 374 U. S. 321, 348 (1963), the United States urges that the antitrust immunity conferred by § 22 of the Investment Company Act should not extend beyond its precise terms, none of which, it maintains, requires or authorizes the practices here challenged. The United States maintains, moreover, that the District Court expanded the limits of the implied-immunity doctrine beyond those recognized by decisions of this Court. In response, appellees advance all of the positions relied on by the District Court. They are joined by the Securities and Exchange Commission (hereinafter SEC or Commission), which asserts as amicus curiae that the regulatory authority conferred upon it by § 22 (f) of the Investment Company Act displaces § 1 of the Sherman Act. The SEC contends, therefore, that the District Court properly dismissed Counts II-VIII but takes no position with respect to Count I.
II
A
The Investment Company Act of 1940 originated in congressional concern that the Securities Act of 1933, 48 Stat. 74, 15 U. S. C. § 77a et seq., and tne Securities Exchange Act of 1934, 48 Stat. 881, 15 U. S. C. § 78a et seq., were inadequate to protect the purchasers of investment company securities. Thus, in § 30 of the Public Utility Holding Company Act, 49 Stat. 837, 15 U. S. C. § 79z-4, Congress directed the SEC to study the structures, practices, and problems of investment companies with a view toward proposing further legislation. Four years of intensive scrutiny of the industry culminated in the publication of the Investment Trust Study and the recommendation of legislation to rectify the problems and abuses it identified. After extensive congressional consideration, the Investment Company Act of 1940 was adopted.
The Act vests in the SEC broad regulatory authority over the business practices of investment companies. We are concerned on this appeal with § 22 of the Act, 15 U. S. C. § 80a-22, which controls the sales and distribution of mutual-fund shares. The questions presented require us to determine whether § 22 (d) obligates appellees to engage in the practices challenged in Counts II-VIII and thus necessarily confers antitrust immunity on them. If not, we must determine whether such practices are authorized by § 22 (f) and, if so, whether they are immune from antitrust sanction. Resolution of these issues will be facilitated by examining the nature of the problems and abuses to which § 22 is addressed, a matter to which we now turn.
B
The most thorough description of the sales and distribution practices of mutual funds prior to passage of the Investment Company Act may be found in Part III of the Investment Trust Study. That Study, as Congress has recognized, see 15 U. S. C. § 80a-l, forms the initial basis for any evaluation of the Act.
Prior to 1940 the basic framework for the primary distribution of mutual-fund shares was similar to that existing today. The fund normally retained a principal underwriter to serve as a wholesaler of its shares. The principal underwriter in turn contracted with a number of broker-dealers to sell the fund’s shares to the investing public. The price of the shares was based on the fund’s net asset value at the approximate time of sale, and a sales commission or load was added to that price.
Although prior to 1940 the primary distribution system for mutual-fund shares was similar to the present one, a number of conditions then existed that largely disappeared following passage of the Act. The most prominently discussed characteristic was the “two-price system,” which encouraged an active secondary market under conditions that tolerated disruptive and discriminatory trading practices. The two-price system reflected the relationship between the commonly used method of computing the daily net asset value of mutual-fund shares and the manner in which the price for the following day was established. The net asset value of mutual funds, which depends on the market quotations of the stocks in their investment portfolios, fluctuates constantly. Most funds computed their net asset values daily on the basis of the fund’s portfolio value at the close of exchange trading, and that figure established the sales price that would go into effect at a specified hour on the following day. During this interim period two prices were known: the present day’s trading price based on the portfolio value established the previous day; and the following day’s price, which was based on the net asset value computed at the close of exchange trading on the present day. One aware of both prices could engage in “riskless trading” during this interim period. See Investment Trust Study pt. Ill, pp. 851-852.
The two-price system did not benefit the investing public generally. Some of the mutual funds did not explain the system thoroughly, and unsophisticated investors probably were unaware of its existence. See id., at 867. Even investors who knew of the two-price system and understood its operation were rarely in a position to exploit it fully. It was possible, however, for a knowledgeable investor to purchase shares in a rising market at the current price with the advance information that the next day’s price would be higher. He thus could be guaranteed an immediate appreciation in the market value of his investment, although this advantage was obtained at the expense of the existing shareholders, whose equity interests were diluted by a corresponding amount. The load fee that was charged in the sale of mutual funds to the investing public made it difficult for these investors to realize the “paper gain” obtained in such trading. Because the daily fluctuation in net asset value rarely exceeded the load, public investors generally were unable to realize immediate profits from the two-price system by engaging in rapid in-and-out trading. But insiders, who often were able to purchase shares without paying the load, did not operate under this constraint. Thus insiders could, and sometimes did, purchase shares for immediate redemption at the appreciated value. See n. 24, infra, and sources cited therein.
The two-price system often afforded other advantages to underwriters and broker-dealers. In a falling market they could enhance profits by waiting to fill orders with shares purchased from the fund at the next day’s anticipated lower price. In a similar fashion, in a rising market they could take a “long position” in mutual-fund shares by establishing an inventory in order to satisfy anticipated purchases with securities previously obtained at a lower price. Investment Trust Study pt. Ill, pp. 854-855. In each case the investment company would receive the lower of the two prevailing prices for its shares, id., at 854, and the equity interests of shareholders would suffer a corresponding dilution.
As a result, an active secondary market in mutual-fund shares existed. Id., at 865-867. Principal underwriters and contract broker-dealers often maintained inventory positions established by purchasing shares through the primary distribution system and by buying from other dealers and retiring shareholders. Additionally, a “bootleg market” sprang up, consisting of broker-dealers having no contractual relationship with the fund or its principal underwriter. These bootleg dealers purchased shares at a discount from contract dealers or bought them from retiring shareholders at a price slightly higher than the redemption price. Bootleg dealers would then offer the shares at a price slightly lower than that required in the primary distribution system, thus “initiating a small scale price war between retailers and tend[ing] generally to disrupt the established offering price.” Id., at 865.
Section 22 of the Investment Company Act of 1940 was enacted with these abuses in mind. Sections 22 (a) and (c) were designed to “eliminat[e] or reduc[e] so far as reasonably practicable any dilution of the value of other outstanding securities... or any other result of [the] purchase, redemption or sale [of mutual fund securities] which is unfair to holders of such other outstanding securities,” 15 U. S. C. § 80a-22 (a). They authorize the NASD and the SEC to regulate certain pricing and trading practices in order to effectuate that goal. Section 22 (b) authorizes registered securities associations and the SEC to prescribe the maximum sales commissions or loads that can be charged in connection with a primary distribution; and § 22 (e) protects the right of redemption by restricting mutual funds’ power to suspend redemption or postpone the date of payment.
The issues presented in this litigation revolve around subsections (d) and (f) of § 22. Bearing in mind the history and purposes of the Investment Company Act, we now consider the effect of these subsections on the question of potential antitrust liability for the practices here challenged.
Ill
Section 22 (d) prohibits mutual funds from selling shares at other than the current public offering price to any person except either to or through a principal underwriter for distribution. It further commands that “no dealer shall sell [mutual-fund shares] to any person except a dealer, a principal underwriter, or the issuer, except at a current public offering price described in the prospectus.” 15 U. S. C. § 80a-22 (d). By its terms, § 22 (d) excepts inter dealer sales from its price maintenance requirement. Accordingly, this section cannot be relied upon by appellees as justification for the restrictions imposed upon interdealer transactions. At issue, rather, is the narrower question whether the § 22 (d) price maintenance mandate for sales by “dealers” applies to transactions in which a broker-dealer acts as a statutory “broker” rather than a statutory “dealer.” The District Court concluded that it does, and thus that § 22 (d) governs transactions in which the broker-dealer acts as an agent for an investor as well as those in which he acts as a principal selling shares for his own account.
A
The District Court’s decision reflects an expansive view of § 22(d). The Investment Company Act specifically defines "broker” and “dealer” and uses the terms distinctively throughout. Appellees maintain, however, that the definition of “dealer” is sufficiently broad to require price maintenance in brokerage transactions. In support of this position appellees assert that the critical elements of the dealer definition are that the term relates to a “person” rather than to a transaction and that the person must engage “regularly” in the sale and purchase of securities to qualify as a dealer. It is argued, therefore, that any person who purchases and sells securities with sufficient regularity to qualify as a statutory dealer is thereafter bound by all dealer restrictions, regardless of the nature of the particular transaction in question. We do not find this argument persuasive.
Appellees’ reliance on the statutory reference to “person” in defining dealer adds little to the analysis, for the Act defines “broker,” “investment banker,” “issuer,” “underwriter,” and others to be “persons” as well. See 15 U. S. C. §§ 80a-2 (a)(6), (21), (22), and (40). In each instance, the critical distinction relates to their transactional capacity. Moreover, wre think that appellees’ reliance on the regularity requirement in the dealer definition places undue emphasis on that element at the expense of the remainder of the provision. On the face of the statute the most apparent distinction between a broker and a dealer is that the former effects transactions for the account of others and the latter buys and sells securities for his own account. We therefore cannot agree that the terms of the Act compel the conclusion that a broker-dealer acting in a brokerage capacity would be bound by the § 22 (d) dealer mandate. Indeed, the language of the Act suggests the opposite result.
Even if we assume, arguendo, that the statutory definition is ambiguous, we find nothing in the contemporaneous legislative history of the Investment Company Act to justify interpreting § 22 (d) to encompass brokered transactions. That history is sparse, and suggests only that § 22 (d) was considered necessary to curb abuses that had arisen in the sales of securities to insiders.
The prohibition against insider trading would seem adequately served by the first clause of § 22 (d), which prevents mutual funds from selling shares at other than the public offering price to any person except a principal underwriter or dealer. See n. 20, supra The further restriction on dealer sales bears little relation to insider trading, however, and logically would be thought to serve some other purpose. The obvious effect of the dealer prohibition is to shield the primary distribution system from the competitive impact of unrestricted dealer trading in the secondary markets, a concern that was reflected in the Study, see Investment Trust Study pt. Ill, p. 865. The SEC perceives this to be one of the purposes of this provision.
But concluding that protection of the primary distribution system is a purpose of § 22 (d) does little to resolve the question whether Congress intended to require strict price maintenance in all broker-dealer transactions with the investing public. By its terms, § 22 (d) protects only against the possibly disruptive effects of secondary dealer sales which, as statutorily defined, constituted the most active secondary market existing prior to the Act’s passage. Nothing in the contemporary history suggests that Congress was equally concerned with possible disruption from investor transactions in outstanding shares conducted through statutory brokers.
Nor do we think that the history attending subsequent congressional consideration of the Act provides adequate support for appellees’ contention that § 22 (d) requires strict price maintenance in all broker-dealer transactions in mutual-fund shares. To be sure, portions of the testimony of SEC Chairman Cohen before the House Subcommittee on Commerce and Finance in 1967 suggested that the price maintenance requirement of § 22 (d) encompassed all broker-dealers, irrespective of how they obtained the traded shares, and on other occasions the Chairman referred to sales by brokers when discussing mutual-fund transactions. Appellees also can point to congressional characterizations of § 22 (d) that suggest that some members of Congress understood the reach of that provision to be as broad as the District Court thought.
Appellees maintain that this history indicates that Congress always intended § 22 (d) to control broker as well as dealer transactions, and that it re-enacted the amended § 22 with that purpose in mind. The District Court accepted this position, and it is not without some support in this historical record. But impressive evidence to the contrary is found in the position consistently maintained by the SEC. Responding to an inquiry in 1941, the SEC General Counsel stated that § 22 (d) did not bar brokerage transactions in mutual-fund shares:
“In my opinion the term 'dealer/ as used in section 22 (d), refers to the capacity in which a broker-dealer is acting in a particular transaction. It follows, therefore, that if a broker-dealer in a particular transaction is acting solely in the capacity of agent for a selling investor, or for both a selling investor and a purchasing investor, the sale may be made at a price other than the current offering price described in the prospectus....
“On the other hand, if a broker-dealer is acting for his own account in a transaction and as principal sells a redeemable security to an investor, the public offering price must be maintained, even though the sale is made through another broker who acts as agent for the seller, the investor, or both.
“As section 22 (d) itself states, the offering price is not required to be maintained in the case of sales in which both the buyer and the seller are dealers acting as principals in the transaction.” Investment Company Act, Rel. No. 78, Mar. 4, 1941, 11 Fed. Reg. 10992 (1941).
This substantially contemporaneous interpretation of the Act has consistently been maintained in subsequent SEC opinions, see Oxford Co., Inc., 21 S. E. C. 681, 690 (1946); Mutual Funds Advisory, Inc., Investment Company Act Rel. No. 6932, p. 3 (1972). The same position was asserted in a recent staff report, see 1974 Staff Report 105 n. 2, 107 n. 2, and 109, was relied on by the SEC in its subsequent decision to encourage limited price competition in brokered transactions, and is advanced by it as amicus curiae in this Court. This consistent and longstanding interpretation by the agency charged with administration of the Act, while not controlling, is entitled to considerable weight. See, e. g., Saxbe v. Bustos, 419 U. S. 65 (1974); Investment Co. Institute v. Camp, 401 U. S. 617, 626-627 (1971); Udall v. Tallman, 380 U. S. 1, 16 (1965).
Jl>
The substance of appellees’ position is that the dealer prohibition of § 22 (d) should be interpreted in generic rather than statutory terms. The price maintenance requirement of that section accordingly would encompass all broker-dealer transactions with the investing public and would shelter them from antitrust sanction. But such an expansion of § 22 (d) beyond its terms would not only displace the antitrust laws by implication, it also would impinge seriously on the SEC’s more flexible regulatory authority under § 22 (f).
Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system. See, e. g., United States v. Philadelphia National Bank, 374 U. S., at 348; United States v. Borden Co., 308 U. S. 188, 197-206 (1939). We think no such showing has been made. Moreover, in addition to satisfying our responsibility to reconcile the antitrust and regulatory statutes where feasible, Silver v. New York Stock Exchange, 373 U. S., at 356-357, we must interpret the Investment Company Act in a manner most conducive to the effectuation of its goals. We conclude that appellees’ interpretation of § 22 (d) serves neither purpose, and cannot be justified by the language or history of that section.
We therefore hold that the price maintenance mandate of § 22 (d) cannot be stretched beyond its literal terms to encompass transactions by broker-dealers acting as statutory “brokers.” Congress defined the limitations for the mandatory price maintenance requirement of the Investment Company Act. “We are not only bound by those limitations but we are bound to construe them strictly, since resale price maintenance is a privilege restrictive of a free economy.” United States v. McKesson & Bobbins, 351 U. S. 305, 316 (1956). Accordingly, we hold that the District Court erred in relying on § 22 (d) in determining that the activities here questioned are immune from antitrust liability.
IV
Our determination that the restrictions on the secondary market are not immunized by § 22 (d) does not end the inquiry, for the District Court also found them sheltered from antitrust liability by § 22 (f). Appellees, joined by the SEC, defend this ruling and urge that it requires dismissal of the challenge to the vertical restrictions sought to be enjoined in Counts II-VIII.
Section 22 (f) authorizes mutual funds to impose restrictions on the negotiability and transferability of their shares, provided they conform with the fund’s registration statement and do not contravene any rules and regulations the Commission may prescribe in the interests of the holders of all of the outstanding securities. The Government does not contend that the vertical restrictions are not disclosed in the registration statements of the funds in question. Nor does it assert that the agreements imposing such restrictions violate Commission rules and regulations. Indeed, it could not do so, because to date the SEC has prescribed no such standards. Instead the Government maintains that the contractual restrictions do not come within the meaning of the Act, asserting that § 22 (f) does not authorize the imposition of restraints on the distribution system rather than on the shares themselves. The Government thus apparently urges that the only limitations contemplated by this section are those that appear on the face of the certificate itself. The Government also urges that the SEC’s unexercised power to prescribe rules and regulations is insufficient to create repugnancy between its regulatory authority and the antitrust laws.
Our examination of the language and history of § 22 (f) persuades us,, however, that the agreements challenged in Counts II-VIII are among the kinds of restrictions Congress contemplated when it enacted that section. And this conclusion necessarily leads to a determination that they are immune from liability under the Sherman Act, for we see no way to reconcile the Commission’s power to authorize these restrictions with the competing mandate of the antitrust laws.
A
Unlike § 22 (d), § 22 (f) originated in the Commission-sponsored bill considered in the Senate subcommittee hearings that preceded introduction of the compromise proposal later enacted into law. The Commission-sponsored provision authorized the SEC to promulgate rules, regulations, or orders prohibiting restrictions on the transferability or negotiability of mutual-fund shares, S. 3580, § 22 (d) (2), 76th Cong., 3d Sess. (1940). Commission testimony indicates that it considered this authority necessary to allow regulatory control of industry measures designed to deal with the disruptive effects of “bootleg market” trading and with other detrimental trading practices identified in the Investment Trust Study.
The Study indicates, moreover, that a number of funds had begun to deal with these problems prior to passage of the Act. And while their methods may have included the imposition of restrictive legends on the face of the certificate, see n. 35, supra, they were by no means confined to such narrow limits. A number of funds imposed controls on the activities of their principal underwriters, see Investment Trust Study pt. Ill, pp. 868-869; and in some instances the funds required the underwriters to impose similar restrictions on the dealers, see id., at 869, or entered into these restrictive agreements with the dealers themselves, id., at 870-871.
In view of the history of the Investment Company Act, we find no justification for limiting the range of possible transfer restrictions to those that appear on the face of the certificate. The bootleg market was primarily a problem of the distribution system, and bootleg dealers found a source of supply in the contract dealers as well as in retiring shareholders. See id., at 865. Moreover, the Study indicates that part of the bootleg distribution system consisted of “trading firms” that served as wholesalers of mutual-fund securities in much the same fashion as the principal underwriters. These trading firms primarily purchased and sold shares to and from other dealers, Investment Trust Study pt. II, p. 327, frequently offering them at a price slightly lower than the discounted rate charged to dealers in the primary-distribution system. Id., at 327-328. Thus trading firms not only helped supply the bootleg dealers whose sales undercut those of the contract dealers, they competed with the principal underwriters by offering a source for lower cost shares that inevitably discouraged participation in the primary distribution system. See id., at 328 n. 85.
The bootleg market was a complex phenomenon whose principal origins lay in the distribution system itself. In view of this history, limitation of the industry’s ability, subject of course to SEC regulation, to reach these problems at their source would constitute an inappropriate contraction of the remedial function of the statute. Indeed, in view of the role of trading firms and interdealer transactions in the maintenance of the bootleg market, the narrow interpretation of § 22 (f) urged by the Government would seem to afford inadequate authority to deal with the problem.
Together, §§22 (d) and 22 (f) protect the primary distribution system for mutual-fund securities. Section 22 (d), by eliminating price competition in dealer sales, inhibits the most disruptive factor in the pre-1940’s mutual market and thus assures the maintenance of a viable sales system. Section 22 (f) complements this protection by authorizing the funds and the SEC to deal more flexibly with other detrimental trading practices by imposing SEC-approved restrictions on transferability and negotiability. The Government’s limiting interpretation of § 22 (f) compromises this flexible mandate, and cannot be accepted.
We find support for our interpretation of § 22 (f) in the views expressed by the SEC shortly after the passage of the Act. Rule 26 (j) (2), proposed by the NASD to curb abuses identified in the Study and the congressional hearings, provided limitations on underwriter sales and redemptions to or from dealers who are not parties to sales agreements. In commenting on this proposed rule, the SEC characterized it as a “restriction on the transferability of securities,” and specifically adverted to its power to regulate such restrictions under § 22 (f). National Association of Securities Dealers, Inc., 9 S. E. C. 38, 44-45 and n. 10 (1941). As indicated above, see supra, at 719, and sources there cited, this contemporaneous interpretation by the responsible agency is entitled to considerable weight. We therefore conclude that the restrictions on transferability and negotiability contemplated by § 22 (f) include restrictions on the distribution system for mutual-fund shares as well as limitations on the face of the shares themselves. The narrower interpretation of this provision advanced by the Government would disserve the broad remedial function of the statute.
The Government’s additional contention that the SEC’s exercise of regulatory authority has been insufficient to give rise to an implied immunity for agreements conforming with § 22 (f) misconceives the intended operation of the statute. By its terms, § 22 (f) authorizes properly disclosed restrictions unless they are inconsistent with SEC rules or regulations. The provision thus authorizes funds to impose transferability or negotiability restrictions, subject to Commission disapproval. In view of the evolution of this provision, there can be no doubt that this is precisely what Congress intended.
Section 22 (f) as originally introduced would have authorized the SEC to promulgate rules, regulations, or orders prohibiting restrictions on the redeemability or transferability of mutual-fund shares. Congressional consideration of that provision raised some question whether existing restrictions on transferability and negotiability would remain valid unless specifically disapproved by the SEC. The compromise provision, which subsequently was enacted into law, eliminated this uncertainty, however, and manifested a more positive attitude toward self-regulation.
Thus § 22 (f) specifically recognizes that mutual funds can impose such restrictions on the distribution system provided they are disclosed in the registration statement and conform to any rules and regulations that the SEC might adopt. In addition, § 22 (f) alters the focus of Commission scrutiny. Whereas the original provision allowed the SEC to make rules that serve “the public interest or... the' protection of investors,” S. 3580, §22 (d)(2), supra, § 22 (f) as enacted limits the Commission’s rulemaking authority to the protection of the “interests of the holders of all of the outstanding securities of such investment company.” 15 U. S. C. §80a-22(f). Viewed in this historical context, the statute reflects a clear congressional determination that, subject to Commission oversight, mutual funds should be allowed to retain the initiative in dealing with the potentially adverse effects of disruptive trading practices.
The Commission repeatedly has recognized the role of private agreements in the control of trading practices in the mutual-fund industry. For example, in First Multifund of America, Inc., Investment Company Act Rel. No. 6700 (1971), [1970-1971 Transfer Binder] CCH Fed. Sec. L. Rep. ¶ 78,209, p. 80,602, it looked to restrictive agreements similar to those challenged in this litigation to ascertain an investment advisor’s capacity in a particular transaction. At no point did it intimate that those agreements were not legitimate. Likewise, Commission reports repeatedly have acknowledged the significant role that private agreements have played in restricting the growth of a secondary market in mutual-fund shares. Until recently the Commission has allowed the industry to control the secondary market through contractual restrictions duly filed and publicly disclosed. Even the SEC’s recently expressed intention to introduce an element of competition in brokered transactions reflects measured caution as to the possibly adverse impact of a totally unregulated and restrained brokerage market on the primary distribution system. See n. 31, supra. The Commission’s acceptance of fund-initiated restrictions for more than three decades hardly represents abdication of its regulatory responsibilities. Rather, we think it manifests an informed administrative judgment that the contractual restrictions employed by the funds to protect their shareholders were appropriate means for combating the problems of the industry. The SEC’s election not to initiate restrictive rules or regulations is precisely the kind of administrative oversight of private practices that Congress contemplated when it enacted §22 (f).
We conclude, therefore, that the vertical restrictions sought to be enjoined in Counts II-VIII are among the kinds of agreements authorized by § 22 (f) of the Investment Company Act.
B
The agreements questioned by the United States restrict the terms under which the appellee underwriters and broker-dealers may trade in shares of mutual funds. Such restrictions, effecting resale price maintenance and concerted refusals to deal, normally would constitute per se violations of § 1 of the Sherman Act. See, e. g., Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, 211-213 (1959); Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457, 465-468 (1941). Here, however, Congress has made a judgment that these restrictions on competition might be necessitated by the unique problems of the mutual-fund industry, and has vested in the SEC final authority to determine whether and to what extent they should be tolerated “in the interests of the holders of all the outstanding securities” of mutual funds. 15 U. S. C. § 80a-22 (f).
The SEC, the federal agency responsible for regulating the conduct of the mutual-fund industry, urges that its authority will be compromised seriously if these agreements are deemed actionable under the Sherman Act. We agree. There can be no reconciliation of its authority under § 22 (f) to permit these and similar restrictive agreements with the Sherman Act's declaration that they are illegal per se. In this instance the antitrust laws must
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_state
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14
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
ASSOCIATES DISCOUNT CORPORATION, an Indiana corporation, Plaintiff-Appellant, v. ELGIN ORGAN CENTER, INC., an Illinois corporation, Walter E. Hein, Gertrude M. Hein, James T. Nicoll, James F. Nicoll, Dan Mueller, and Walter Stroup, Defendants-Appellees.
No. 15662.
United States Court of Appeals Seventh Circuit.
Jan. 18, 1967.
Donald S. Manion, Chicago, 111., for appellant.
Gates W. Clancy, Chicago, 111., for appellees.
Before DUFFY, Senior Circuit Judge, SCHNACKENBERG and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Associates Discount Corporation, an Indiana corporation, plaintiff, has appealed from a part of a judgment order of October 13, 1965 in favor of Walter E. Hein and Gertrude M. Hein, defendants, following a trial by jury, and from a part of an order of December 30, 1965 denying plaintiff’s motion under rule 50(b) to set aside verdict and judgment.
Plaintiff in 1962 was a finance company and Elgin Organ Center, Inc., defendant, an Illinois corporation, was engaged in the retail sale of musical instruments at Elgin, Illinois. Under date of August 30, 1962, plaintiff, in supplying financial assistance to Elgin, acquired and relied on four written instruments concerning Elgin’s payment of its obligations to plaintiff, which were furnished by Walter E. Hein and Gertrude M. Hein, his wife, James T. Nicoll, James F. Nicoll, and Dan Mueller, and personal financial statements of Mr. Hein and James T. Nicoll. Contemporaneously Mr. Hein signed and delivered to plaintiff a written “Standby Agreement” which subordinated his claim against El-gin and its assets to the interest of plaintiff.
On plaintiff’s exhibits 1007-B and 1007-C, it appears that each of the Heins signed as guarantors. However, it also appears that Mr. Hein on plaintiff’s exhibit 1007-B included before the writing of his name the abbreviation “Pres.” and on exhibit 1007-C he included after the writing of his name the abbreviation “Pres.”. Furthermore, it appears that Mrs. Hein on both said exhibits, after signing her name, included the abbreviation “Sec’ry”. It also appears that both the abbreviated words “Pres.” and “Sec’ry” were partially obliterated on both exhibits by ink lines drawn through them. Plaintiff’s agent, Zolin, who signed as a witness to all the signatures on both exhibits, testified that, after submitting them to plaintiff he was told to request that the “various titles * * be removed”, and that in compliance therewith he delivered all the forms to James Nicoll (who appears from the record in this case to be either James T. or James F. Nicoll, both of whom were vice-presidents of Elgin), who took them and a couple of days later returned them with the alterations made as he had requested. Zolin further testified that he never saw the changing in any form of the documents in question.
Counsel for the Heins points out that these alleged facts which the testimony of Zolin tends to establish, are in conflict with certain testimony given on cross-examination by James F. Nicoll, called as an adverse witness by plaintiff.
In March 1963, plaintiff demanded of Elgin’s alleged guarantors payment of the amount then due. Its demand having proved futile, it filed this action.
The Heins by their answer, as amended after verdict, denied that there was any consideration for their alleged execution of the guaranties, and also denied the existence of any guaranty or that there was any balance due and owing to plaintiff from them. They also by counterclaim charged that plaintiff, by its agent, one Zolin, conspired with James F. Nicoll, James T. Nicoll, and Walter Stroup to defraud Elgin, and that, in pursuance of the conspiracy, they fraudulently converted (sold) the stock of goods, thus subjecting the Heins and Dan Mueller, an officer of Elgin, to liability for default on the alleged fraudulent sales financing arrangements. The counterclaim alleged that, as a result of the conspiracy, the Heins became “purportedly” liable to plaintiff on their guarantees.
The jury returned a verdict in favor of plaintiff and against Elgin in the amount of $27,472.79 and a separate verdict against each of the Heins as to the counterclaim, but in favor of the Heins (and Mueller and James T. Nicoll) as to the complaint of plaintiff.
Thus, the effect of these verdicts is that (aside from determining the liability of Elgin to plaintiff) the jury found (1) against the charge of conspiracy made by the Heins and (2) that plaintiff had failed to prove the alleged contracts of guaranty upon which it had sued the Heins.
1. Plaintiffs counsel urges that the interpretation and construction of plaintiff’s exhibits 1007-B through 1007-E was a matter of law and that the district court erroneously submitted this “issue” to the jury “as a matter of fact”. He asserts that the construction of written contracts, including those of guaranty, does not come within the province of a jury but is a function of the court. On the other hand, counsel for defendants points to the disputed factual situation appearing in this ease as to the execution by the Heins of the documents of guaranty.
We are satisfied that, upon all the, evidence presented in the record, a question of fact emerged as to whether the Heins, the Nicolls and Mueller signed and delivered said guaranties, knowing and intending to be personally bound thereby, thus resulting in a contract. Consequently it was not a question of law which the district court submitted to the jury. It was a question of fact and was within the historic scope of the jury’s role to determine. The following cases support that conclusion.
In Monarch Electric & Wire Co. v. National Conduit & Cable Co., 138 F. 18 (7 Cir. 1905), we approved this practice. There the question involved was whether certain telephone conversations between representatives of the parties constituted a contract. Proof was offered as to the customs of the trade and the previous dealing between the parties. We said, at 21:
“ * * * The evidence tending to establish these facts should have gone to the jury; for from such evidence, in connection with the other facts shown, the jury would have been warranted in finding that the telephone conversations constituted a complete understanding not varied by the confirmatory notes.”
In Fisk Tire Co., Inc. v. Burmeister, 252 Ill.App. 545 (1929), appellee was sued upon a written guaranty bearing her signature. In a trial by jury, she testified that she signed the instrument (upon which suit was later brought), when Fisk’s agent presented to her a printed form with blank spaces and said he would fill in the blanks so that her liability would be limited to $400. However, in its opinion, the Illinois court pointed out that the blank printed form was left unlimited as to the amount of liability. It said, at 549:
“ * * * While appellant’s agent testified that the blanks in the printed form were filled in as they now appear before appellee signed the instrument, yet it was a question of fact for the jury to decide as to who was telling the truth about that matter. * * * ” (Italics supplied.)
The court had said, ibid:
“ * * * According to the testimony of appellee the writing she signed, in the condition it then was, was not a contract. It was intended to become a contract, so far as she was concerned, when appellant’s agent had written in such language as would limit her liability to $400.”
2. Counsel for plaintiff here asserts that, regardless of who appended the alterations to the contracts of guaranty, such alterations are no more than “spoilage”, which would merely have rendered the parties liable under the said contracts of guaranty as originally executed. In support thereof, he cites Ill.Rev.Stat. Ch. 26, § 3-403(2) (b) (1965), which is a part of the Uniform Commercial Code respecting negotiable instruments. This term “instrument” is expressly defined in that act in § 3-102 (1) (e). Clearly plaintiff’s exhibits 1007-B and 1007-C in this case (the alleged contracts of guaranty) are not negotiable instruments.
We therefore find no merit in this contention of plaintiff.
For the foregoing reasons, the judgment of the district court in favor of the Heins is affirmed and that part of the order of the district court, with respect to Walter E. Hein - and Gertrude M. Hein, denying plaintiff’s motion to set aside the verdict and judgment under rule 50(b) of the Federal Rules of Civil Procedure, is affirmed.
3. On September 8, 1966, we reserved the determination of who should be taxed with the payment of the costs of additional parts of the transcript of proceedings filed in the district court.
On May 2, 1966 plaintiff moved this court for the entry of an order (1) directing the district court to vacate or modify its order of April 21, 1966, which directed plaintiff to furnish such additional parts of the transcript, and (2) directing that court to enter an order denying defendants Heins’ motion requiring plaintiff to furnish additional parts of the transcript. We have examined all of the transcripts relevant to this question.
On May 31, 1966, counsel for plaintiff by motion asked us to declare that its motion had become moot. Thereupon, counsel for the Heins objected and denied mootness, adding that the filing of additional parts of the transcript by the official court reporter in the district court had not been done at the direction of appellees, but was apparently done as the custom of said reporter’s office, and that a statement for services rendered in preparing said transcript had been presented by the reporter to plaintiff’s attorney, who had refused to pay any part thereof.
In view of the foregoing proceedings to which reference is made in paragraph 3 and the result reached generally upon the merits of this appeal, we hold that the obligation to pay for the additional parts of transcripts of proceedings herein referred to should be taxed by the district court against plaintiff, and for that purpose only, this cause is remanded to the district court.
Judgment and Part of Order Affirmed and Cause Remanded for Taxation of Certain Costs Against Plaintiff.
. 28 U.S.C.A. rule 50(b).
. Plaintiff’s exhibits 1007-B to 1007-E inclusive.
. Plaintiff’s exhibits 56, 58 and 304.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_appel2_7_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
NORTH AMERICAN INDUSTRIES, INC., et al., Plaintiffs, Appellants, v. Sam I. FELDMAN, District Director, Immigration and Naturalization Service, Defendant, Appellee.
No. 83-1135.
United States Court of Appeals, First Circuit.
Argued Aug. 3, 1983.
Decided Dec. 5, 1983.
Marshall D. Stein, Boston, Mass., on brief for plaintiffs, appellants.
Joan I. Milstein, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, District Judge.
Of the District of Puerto Rico, sitting by designation.
PEREZ-GIMENEZ, District Judge.
We review here a decision of the United States District Court for the District of Massachusetts, affirming the Immigration and Naturalization Service’s (hereinafter “INS” or the “Agency”) denial of appellant North American Industries, Inc.’s (hereinafter “North American”) petition on behalf of Hernán Guerrero for a sixth-preference classification under Section 203(a)(6) of the Immigration and Nationality Act (hereinafter “the Act”), 8 U.S.C. § 1153(a)(6). The question on appeal is whether INS abused its discretion in denying North American’s petition to classify Guerrero as a sixth-preference immigrant under Section 1153(a)(6). Because we believe that the I-NS’ interpretation of Section 1153(a)(6) runs counter to the purpose that Congress sought to serve by its enactment, and since the INS denied . North American’s petition based on that interpretation, we hold that the INS abused : its discretion. Therefore, we reverse the decision of the District Court granting summary judgment in favor of the District Director of INS, appellee herein, and remand with instructions that the case be, remanded to the District Director for the granting of North American’s sixth-preference petition.
I.
Appellant North American Industries, Inc., is engaged in the manufacture of cranes and has its principal place of business in Everett, Massachusetts. Appellant Guerrero is a 42-year-old native and citizen of Chile who has been employed by North American since April 1972.
In the manufacture of cranes, North American utilizes computerized lathes and high-speed gear cutters. Guerrero has been programing and operating these machines for North American for several years. Besides Guerrero, North American has been, unable to find other persons willing and capable of operating or of learning how to operate the computerized lathes and the gear cutters despite repeated attempts to find and train an American citizen or a permanent resident to fill Guerrero’s position.
In view of its failure to find a replacement for Guerrero and the pressing need for someone to operate the lathes and gear cutters in order to keep its business going, North American petitioned the Immigration and Naturalization Service to classify Guerrero as a temporary worker and to grant him an H-2 nonimmigrant visa, pursuant to Section 101(a)(15)(H)(ii) of the Act, 8 U.S.C. § 1101(a)(15)(H)(ii).
North American’s petition was supported by the required temporary labor certification issued by the United States Department of Labor. North American wanted Guerrero to train new employees in the operation and programming of the lathes and gear cutters and hoped “that during [Guerrero’s] tenure in the United States as an H-2, it would be able to find and train” an American employee or a permanent resident to replace Guerrero upon his departure from the United States. Affidavit of James Dossett, Appendix, at 9 & 30. The Immigration and Naturalization Service granted North American’s petition and issued an H-2 temporary visa for Guerrero on February 8, 1977. Guerrero’s visa was to expire on November 14, 1977, at which time Guerrero was to leave the United States.
After obtaining the readmission to the United States of Hernán Guerrero as a temporary employee, North American continued to seek for a replacement for Guerrero by advertising in the local newspapers and contacting employment agencies. Again, North American’s efforts were unsuccessful. Between October 1976 and November 1978, North American attempted to train several persons, but was unable to find anybody willing to complete the required training and capable of learning both how to operate and program the lathes and gear cutters. Only one man finished the training satisfactorily, but he left the company upon completion of his training to start his own business. North American maintains that unless it is able to find a replacement for Guerrero or to keep him as a permanent employee, it will be forced to shut down its operations.
Faced with the possibility of having to close its business if it lost Guerrero, and the fact that Guerrero’s temporary visa was about to expire, North American sought to obtain permanent employment status for Guerrero. On November 10, 1977, four days short of the expiration of Guerrero’s H-2 visa, North American applied for a permanent labor certification from the United States Department of Labor to the effect that the employment of Guerrero will not displace a United States worker nor adversely affect the wages or working conditions of other workers in the United States similarly employed. The Department of Labor issued a permanent labor certification on October 17, 1978.
Once North American obtained the required labor certification, it proceeded to file a “Petition to Classify Preference Status of [Guerrero] on Basis of Profession or Occupation (INS Form 1-140)” on November 2, 1978. The approved permanent labor certification was submitted together with the petition. North American sought to have Guerrero classified as a sixth-preference immigrant pursuant to Section 203(a)(6) of the Act, 8 U.S.C. § 1153(a)(6), since its need for Guerrero had become permanent.
The District Director of INS (hereinafter “Director”) denied North American’s sixth-preference petition on December 27, 1978, because North American had failed to establish to his satisfaction that the position offered Guerrero was of a permanent nature. Based on a review of the permanent labor certification supporting the sixth-preference petition and the temporary labor certification submitted with the prior petition for a temporary H-2 visa, the Director concluded that the duties to be performed by Guerrero were identical and that therefore the position now being offered was the same as the one which previously had been certified as temporary. Thus, the Director denied the sixth-preference petition since a position which previously had been certified as temporary could not now be certified as permanent.
The decision of the District Director was certified for review to the Regional Commissioner of INS (hereinafter “Commissioner”). On review before the Commissioner, North American argued that although Guerrero’s position had previously been certified as temporary, its inability to find a suitable replacement for Guerrero, coupled with the likelihood of having to shut down its business if Guerrero were forced to leave the United States, had changed the position from one of a temporary nature to one of a permanent nature. The Commissioner compared the two positions as these were described in the respective job offers (DOL Form MA 7-50B), and concluded, like the District Director, that Guerrero would be engaged in the same job for which he had been accorded H-2 status. Thus, on October 12,1979, the Commissioner affirmed the decision of the District Director.
Subsequently, North American and Guerrero filed their complaint in the United States District Court for the District of Massachusetts seeking reversal of INS’ denial of the sixth-preference petition. North American and Guerrero challenged INS’ interpretation of Section 203(a)(6) of the Act, 8 U.S.C. § 1153(a)(6), as that interpretation is embodied in INS’ Operations Instruction 204.4(b)(2). Said Operations Instruction requires that a sixth-preference petition be denied if the position being offered is the same as that for which the beneficiary had been granted an H-2 visa. The reason for denying the petition is that the position previously had been certified as temporary and, as such, does not qualify the beneficiary for a sixth-preference classification since 8 U.S.C. § 1153(a)(6) requires that the position offered be of a permanent nature. Again, North American and Guerrero argued that although the nature of the two positions may be the same with respect to the duties required of Guerrero, the positions were in fact different from the point of view of the employer’s needs because that which Guerrero filled as an H-2 nonimmigrant was a temporary position, but had become permanent due to North American’s inability to find a replacement for Guerrero.
However, the District Court rejected appellants’ arguments because of the “great weight” which should be given to the interpretation of a statute by the agency charged with administering it and the “controlling weight” which should be given to an agency’s interpretation of its own regulations. The Court held that the Operations Instruction was consistent with and advanced the purposes of the statute and that “its application by [INS] in this case was reasonable and in no sense arbitrary or capricious.” North American Industries, Inc. v. Feldman, No. 79-2147 (D.Mass. January 17, 1983) (Memorandum and Order Granting Defendant’s Motion for Summary Judgment). The District Court approved of INS’ use of the test embodied in O.I. 204.-4(b)(2) — the “same-position” test — in denying appellant’s petition, stating:
We disagree with [North American’s and Guerrero’s] argument that [INS’] rejection of the sixth preference visa application was automatic. [INS] ... relied upon a careful comparison of the two jobs. To require the INS to accept [North American’s] characterization of the position as permanent or temporary would ... defeat the purpose of the statutory scheme. It would establish a subjective standard within the control of the applicant employer and replace the objective standard provided by the statute and Operating Instruction.
Thus, on January 17, 1983, the District Court entered judgment granting INS’ Motion for Summary Judgment and dismissing the case. North American and Guerrero then appealed to this Court.
II.
On appeal, North American and Guerrero again challenge the validity of Operations Instruction 204.4(b)(2) on the same ground advanced before the District Court — that the O.I. is out of harmony with the Congressional intent behind 8 U.S.C. § 1153(a)(6) in that Congress intended that a position be temporary or permanent in light of the employer’s needs. INS counters by arguing that the denial of a preference petition has to be affirmed unless it constitutes an abuse of discretion. The Agency then maintains that because it did not abuse its discretion in denying the sixth-preference petition — since its decision was not based on an improper understanding of the law and there was evidence in the administrative record supporting the denial — the District Court properly affirmed its decision by granting INS’ motion for summary judgment. The crux of INS’ argument is that there is evidence in the administrative record supporting the INS’ finding that the position described in North American’s sixth-preference petition was identical to the one which North American had previously characterized as temporary in nature and for which INS had granted Guerrero a temporary-worker (H-2) visa. Since the two positions were found to be identical with respect to the duties required of the beneficiary, and since North American had previously characterized the position as temporary, INS’ determination that North American failed to establish that the position offered Guerrero was not of a permanent nature, as is required by 8 U.S.C. § 1153(a)(6), was said not to constitute an abuse of discretion.
We agree with the appellee that the decision to grant or deny a petition to obtain a preferential immigration classification is one that is within the discretion of INS, and thus, a federal court may reverse an INS denial of a preference classification only if the INS abused its discretion. INS abuses its discretion if it bases its decision upon an improper understanding of the law or if there is no evidence to support the decision. See, Mila. v. District Director of Denver, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Kaliski v. District Director of INS, 620 F.2d 214, 216 n. 1 (9th Cir.1980).
However, it is also true that federal courts may engage in a plenary review of questions of law, including questions of statutory construction and interpretation. Tovar v. INS, 612 F.2d 794, 797 (3rd Cir.1980); De Los Santos v. INS, 525 F.Supp. 655, 660 (S.D.N.Y.1981) (citing Tovar), aff’d, 690 F.2d 56 (2nd Cir.1982). While it is true that an appellate court must give great deference to the construction accorded a statute by the agency charged with its administration, deference to an agency’s interpretation of the law does not equate with blind faith. Committee for an Independent P-I v. Hearst Corp., 704 F.2d 467, 473 (9th Cir.1983). A court is obliged to accept the administrative construction of a statute only so far as it is reasonable, Columbia Basin Land Protection Ass’n. v. Schlesinger, 643 F.2d 585, 600 (9th Cir.1981), and consistent with the intent of Congress in adopting the statute. Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94-95, 94 S.Ct. 334, 339-340, 38 L.Ed.2d 287 (1973). Thus, if the Agency’s interpretation of the statute is, found to be inconsistent with the statutory language, legislative history, or purpose of the statute, it must be invalidated. Moreover, an administrative decision based on erroneous legal standards cannot stand.; SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943); Kovac v. INS, 407 F.2d 102, 104 (9th Cir.1969). See also, Wheatley v. Adler, 407 F.2d 307 (D.C.Cir.1968) (Administrative order must be set1 aside if agency’s underlying standards are not in accord with law).
We would be forced to agree with INS and to affirm the District Court’s decision if we believed that the Agency’s interpretation of 8 U.S.C. § 1153(a)(6) were consistent with the intent of Congress in enacting the; statute. It seems clear from the administrative record that in determining whether to classify Guerrero under 8 U.S.C. § 1153(a)(6), INS guided its inquiry by the standard embodied in O.I. 204.4(b)(2): whether the petition indicates the beneficiary (Guerrero) will be engaged in the same job for which he had been accorded H-2 status. Under the standard used by INS it is the nature of the duties to be performed, rather than the nature of the employer’s need, that determines whether a position is temporary or permanent. Because we believe that the test used by INS runs counter to the Congressional intent behind 8 U.S.C. § 1153(a)(6), we reverse the District Court’s decision affirming INS’ denial of the sixth-preference status for Guerrero. Moreover, because the evidence of North American’s need for Guerrero’s services on a permanent basis was undisputed, we hold that Guerrero is entitled to sixth-preference status and that North American’s petition should be approved.
The legislative history reveals that Congress, in imposing the requirement that the labor to be performed by an alien be of a permanent nature in order to qualify for a sixth-preference visa under Section 1153(a)(6), intended that an employer’s need should determine whether a position is permanent or temporary. The original draft of Section 1153(a)(6) did not contain the requirement that the labor to be performed be of a permanent nature, i.e., that it be labor “not of a temporary or seasonal nature.” This requirement was suggested as an amendment to the proposed bill by organized labor. In the hearings before the House Subcommittee on H.R. 2580 to amend the Immigration and Nationality Act, Congressman Moore, the ranking minority member of the Subcommittee, was interested in determining the scope of the amendment proposed by organized labor. Specifically, Congressman Moore wanted to know what was intended by the phrase “labor, not of a temporary or seasonal nature”. The following colloquy was held between Congressman Moore and the spokesmen for the AFL-CIO, Mr. Meiklejohn and Mr. Biemiller:
MR. MEIKLEJOHN. We say the jobs must be permanent in nature.
MR. MOORE. Yes.
MR. BIEMILLER. I think possibly we can clarify this Congressman, by pointing out that what we are talking about, and I am just using an arbitrary skill at the moment, is this: If we are to admit 100 tailors we want to be sure that there is a shortage of 100 tailors on a permanent basis and not that this is a shortage for 6 months of 100 tailors.
MR. MOORE. I would certainly agree with that.
It seems clear that what the proponents of the amendment had in mind was that the need for specified skilled or unskilled labor in short supply in the United States would determine whether an alien would qualify for a sixth-preference classification. The Subcommittee indicated agreement with organized labor’s intention and incorporated the proposed amendment into the final draft of the bill. The emphasis, thus, was placed on the prospective employer’s need for laborers. If this need was determined to be on a permanent basis — because of a permanent shortage of employable persons — then the position would qualify for a sixth-preference classification under 8 U.S.C. § 1153(a)(6). Throughout the Subcommittee hearings on the proposed bill and the floor debates numerous references were made to the fact that those who would be admitted under the sixth preference would be persons capable of performing labor, not of a temporary or seasonal nature, for which there is a demonstrated shortage —and, thus, a need — of employable and willing workers in the United States.
In fact, the INS has conceded that the needs of an employer should determine whether a position offered an alien is temporary or permanent. In its brief, appellee District Director stated that:
INS does not dispute that an employer’s needs determine the classification of employment as “temporary” or “permanent”. Indeed, in Matter of Artee Corporation, Interim Decision # 2934 (November 24, 1982), INS held that “[i]t is the nature of the need for the duties to be performed which determines the temporariness of the position.”
Brief for Appellee, at p. 15 (emphasis added). The case of Matter of Artee Corporation, cited in appellee’s brief, represents the INS’ current interpretation of the statutory requirement that in order to qualify for a visa under 8 U.S.C. § 1153(a)(6) the labor to be performed by an alien be “not of a temporary or seasonal nature.” Before the decision in Matter of Artee, the INS’ interpretation of the statutory requirement was that the nature of the duties to be performed were controlling, not the intent of the petitioner and the beneficiary concerning the time that the individual beneficiary would be employed in that position. Matter of Contopoulos, 10 I & N Dec. 654 (1964). This interpretation seems also to be the basis for the “same-position” test embodied in Operations Instruction 204.4(b)(2). However, in Matter of Artee, the INS expressly overruled its decision in Matter of Conto-poulus stating that it viewed its prior interpretation of the Act as incorrect:
The Service now views this interpretation as incorrect. It is not the nature or the duties of the position which must be examined to determine the temporary need. It is the nature of the need for the duties to be performed which determines the temporariness of the position.
Throughout the proceedings in this case, and until the filing of appellee’s brief, the INS’ position has been that the nature of the duties, rather than the needs of the employer, determines the temporariness of a position. On the contrary, North American’s and Guerrero’s position has consistently been to the effect that the employer’s needs should determine whether a position is temporary or permanent. With its decision in Matter of Artee the INS has brought its interpretation of 8 U.S.C. § 1153(a)(6) into conformity with the position advocated by North American and Guerrero throughout the proceedings in this case. More important, the Agency has brought its interpretation of Section 1153(a)(6) into conformity with Congress’ intent in enacting the statute. It is clear that under the standard promulgated by the INS in Matter of Artee, the position offered Guerrero is of a permanent nature —i.e., “not of a temporary or seasonal nature”. North American submitted two affidavits by its manufacturing manager stating that the company has been unable to find persons capable of operating and programming, or of learning how to operate and program, the computerized lathes and gear cutters, and that North American would have to shut down its operations if Guerrero were not granted an immigrant visa and were forced to leave the United States. This evidence appears to be uncon-troverted and is supported by Guerrero’s receipt of a Department of Labor permanent labor certification. Since the standard employed by the INS in denying North American’s petition is not consistent with Congress’ intent and does not serve the purposes of the Act, the Agency’s action cannot stand. While normally we would remand to the agency for further consideration of Guerrero’s status in light of the standard set out herein, the absence of a factual controversy under the proposed standard for granting sixth preference status leads us to direct the granting of North American’s petition to classify Guerrero as a sixth preference immigrant.
For the foregoing reasons, the judgment of the District Court is reversed, and the case is remanded to the District Court with instructions that it remand to the District Director of INS for him to grant North American’s sixth-preference petition.
. It appears that Guerrero had been in the United States illegally since 1972 and until February 1977, when INS granted him an H-2 visa. The government in its brief argues that:
... the INS policy outlined in Operations Instruction 204.4(b)(2) is consistent with INS’ duty to make its own investigation of facts alleged in a petition and to consider a petitioner’s good faith. Indeed, a finding of lack of good faith would not have been capricious in this instance.
Brief for Appellee, p. 17 (emphasis added). However, the government admitted that INS did not address the issue of appellant’s good faith. Brief for Appellee, p. 17, footnote 11. Instead, the District Director and the Regional Commissioner of INS concluded that Guerrero would be engaged in the same job for which he had been accorded H-2 status and denied North American’s petition for a sixth-preference classification for Guerrero based on that conclusion. Appendix, pp. 3 and 5.
The government cannot inject the issue of appellant’s bad faith — if indeed they acted in bad faith — at this stage of the proceedings in this case. If appellant’s good faith was not questioned by INS when it was reviewing their petition, and it was not an issue raised before the District Court, it cannot be questioned now. Greenwich Fed. S. & L. Assoc. v. Fidelity Bond & Mortgage Co., 714 F.2d 183, 184 (1st Cir. 1983) (“a legal theory not presented to the trial court cannot be raised for the first time on appeal”). See also: Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979); Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir.1974); Roto-Lith, Ltd. v. F.P. Bariett & Co., 297 F.2d 497, 500 (1st Cir.1962).
. 8 U.S.C. § 1101(a)(15)(H)(ii) provides, in pertinent part, as follows:
The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—
(H) an alien having a residence in a foreign country which he has no intention of abandoning ... (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.... (emphasis added).
. In order to be eligible for an H-2 temporary nonimmigrant visa Guerrero had to return to his home country of Chile. Guerrero’s H-2 visa was issued on February 8, 1977, and subsequently, he was readmitted to the United States on February 17, 1977.
. Possession of a labor certification from the Department of Labor is a prerequisite to obtaining permanent residence as a sixth-preference immigrant. Section 212(a)(14) of the Act, 8 U.S.C. § 1182(a)(14).
. The filing of such a petition by the employer is customarily a preliminary step in applying for permanent residence. Once the petition is approved, the alien may file an application for permanent residence (or for an immigrant visa) —either within the United States through adjustment of status, pursuant to Section 245 of the Act, 8 U.S.C. § 1255, or by applying to a United States Consul abroad for an immigrant visa.
. 8 U.S.C. § 1153(a)(6) provides for the granting of preference status to
. . . qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States, (emphasis added)
. The District Director stated:
A review of the permanent labor certification issued by the Department of Labor on October 17, 1978 indicates that the proposed duties of the beneficiary are identical to those stipulated on the temporary labor certification.
In view of the fact that the petitioner had previously submitted satisfactory representations that the beneficiary’s position was of a temporary nature and obtained temporary certification for such, and that the documents submitted in support of the instant petition do not establish any difference in the position now certified as permanent, the petition is hereby denied since the petitioner has failed to establish that the position offered is of a permanent nature.
Appendix, at p. 5 (emphasis added). There is no indication whether in making his decision the Director considered North American’s need for Guerrero’s services.
. See supra note 6.
. The Operations Instruction provides, in pertinent part, that:
... a sixth-preference petition filed on behalf of an alien in the United States as an H-2 nonimmigrant by the same employer who had filed the H-2 petition shall be denied if the new petition indicates the beneficiary will be engaged in the same job for which he had been accorded H-2 status. The ground for denial shall be that the employer previously had submitted satisfactory representations that the job was of a temporary nature and, as such, does not qualify the beneficiary for classification under section 203(a)(6).
When the petitioner establishes that the beneficiary will be employed in a job which differs from the one for which an H-2 petition by the same employer had previously been approved, the new petition may be approved for sixth-preference classification if otherwise approvable. (emphasis added)
In the current version of the Operations Instructions, O.I. 204.4(b)(2) was renumbered O.I. 204.4(b)(7).
. When the proposed bills (H.R. 2580 and S. 500) were referred to the House and Senate Subcommittees on Immigration and Nationality for their consideration and recommendations, what was to become the sixth preference did not contain language about the non-temporary nature of the labor. In both bills the requirements for the fourth preference (sixth preference in the statute as enacted) were (I) that the immigrants could perform specified functions (2) for which a shortage of employable and willing persons exists in the United States. See, Hearings on H.R. 2580 Before the Subcommittee on Immigration and Nationality of the House Committee on the Judiciary, 89th Cong., 1st Sess. 5 (1965); Hearings on S. 500 Before the Subcommittee on Immigration and Nationality of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. 88 (1965).
. The formal statement submitted by the AFL-CIO contained the recommended language, which is very similar to that in the statute as enacted:
Therefore, we urge an amendment to the provisions which would require the jobs to be filled to be permanent in nature, and not merely seasonal or otherwise temporary.
House Subcommittee Hearings, supra note 10, at 340; Senate Subcommittee Hearings, supra note 10, at 642.
. House Subcommittee Hearings, supra note 10, at 327 (emphasis added).
. During the Senate debates on the proposed bill, Senator Saltonstall made the following remarks:
The bill’s preference system also gives priority to persons capable of performing jobs, either in our national interest or for which there is a labor shortage in the domestic labor market. Many of our hospitals, educational institutions, industrial firms, and even our own Government agencies need qualified people to assume important positions from which they could contribute significantly to the national prosperity and growth, and more importantly, to advances of international significance in their fields. The present quota system, however, prevents many qualified and needed people from gaining prompt entry.
These people should not be required to experience long waiting periods on the quota lists when there are employment opportunities available to them in the United States. It should be emphasized that this particular group of workers is not in competition with American workers. They would be filling jobs which presently go unfilled because there are not sufficient workers in the United States to fill them. Requiring these individuals to wait serves no real purpose. By admitting them, and filling these vacant positions, the domestic economy will be enhanced, and in addition, employment opportunities will be created for domestic workers.
Ill Cong.Rec. 24,442 (1965) (emphasis added). See also, 111 Cong.Rec. 24,239, 24,441, 24,261 (Senate debates on H.R. 2580).
In the House debates, similar statements were made. Congressman Donohue’s remark is representative of what many other congressmen stated:
Limited preferences are further provided for professional qualified people, and some semiskilled people, whose services are urgently needed here and who will contribute the most to the national economy, welfare and cultural interests of the United States.
Ill Cong.Rec. 21,791 (1965) (emphasis added). See also 111 Cong.Rec. 21,593, 21,767, 21,769, 21,770, 21,791 (House debates on H.R. 2580).
. In effect, this was the INS’ position even before the District Court, regardless of the fact that the Agency had changed its interpretation of the statute as of November 24, 1982 — in Matter of Artee — almost two months before the District Court’s ruling.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
IOWA STATE UNIVERSITY RESEARCH FOUNDATION, INC., Intervenor-Appellant, v. HONEYWELL, INC., Plaintiff-Appellee, v. SPERRY RAND CORPORATION et al., Defendants-Appellees.
No. 71-1531.
United States Court of Appeals, Eighth Circuit.
Submitted April 11,1972.
Decided May 3, 1972.
Jerome F. Fallon, Timothy L. Tilton, Dawson, Tilton, Fallon & Lungmus, Chicago, Ill., for intervenor-appellant.
Frank Claybourne, Doherty, Rumble & Butler, St. Paul, Minn., H. Francis DeLone, Harvey Bartle, III, Dechert, Price & Rhoads, Philadelphia, Pa., Thomas M. Ferrill, Jr., Blue Bell, Pa., for appellees, Sperry Rand Corp. and Ill. Scientific Developments, Inc.
Before VAN OOSTERHOUT, ME-HAFFY and STEPHENSON, Circuit Judges.
PER CURIAM.
This is a timely appeal by Iowa State University Research Foundation, Inc. (ISURF) from an order, 54 F.R.D. 594, denying it a right to intervene in litigation pending between Honeywell, Inc., and Sperry Rand Corporation, et ah, relating to the validity and infringement of Patent No. 3,120,606 issued to Eckert and Mauehly, inventors, and assigned to Illinois Scientific Developments, Inc., a wholly owned subsidiary of Sperry Rand.
The patent, issued February 4, 1964, involves a high speed, large scale digital computer known as the ENIAC computer. The Honeywell suit was commenced on May 26, 1967. Extensive discovery proceedings were engaged in during the next three and one-half years. Many depositions were taken; over 30,000 exhibits were identified. Honeywell’s brief, setting forth its factual and legal claims, contains 1,167 pages. Trial commenced on June 1, 1971.
ISURF on July 21, 1971, a month and one-half after the commencement of the trial on the merits, filed a motion for leave to intervene under Rule 24(a), Fed.R.Civ.P., tendering a petition raising the issue that John V. Atanasoff was a joint inventor of Patent No. 3,120,606 (along with Eckert and Mauehly) and seeking an order to correct the patent record under 35 U.S.C.A. § 256 to show Atanasoff to be a joint inventor. ISURF is assignee of Atana-soff’s rights in the patent. ISURF and its assignor have been aware of this litigation since shortly after the inception of this action in 1967.
Sperry Rand vigorously opposed the intervention, asserting that the intervention raises an entirely new issue, to wit, that Atanasoff was a co-inventor and that to fairly investigate and present evidence on this issue will acquire investigation, discovery and a considerable amount of time and will disrupt the complex and lengthy trial in progress and cause indeterminable delay. Honeywell employed Atanasoff to assist it in a defense that the patent was derived from Atanasoff. Honeywell made no contention that the patent was a joint one of Atanasoff, Eckert and Mauehly. Honeywell took a neutral position on the intervention.
Judge Larson, after affording the parties a full hearing on the motion for leave to intervene, on August 4, 1971, entered an order denying leave to intervene. The unreported memorandum opinion properly sets out the applicable law and the findings upon which the denial is based. Included in such opinion is the following:
“In the instant case intervenor knew about the lawsuit long before it made any effort to intervene. Intervention has been requested after all discovery is complete and, indeed, after Mr. Atanasoff has testified. It seems unwise to this Court in a case of this magnitude to permit at such a late date the intrusion of additional issues. It would be difficult, if not impossible, for counsel to modify the conduct of the trial to encompass the additional issues. Any efforts to conduct additional discovery and to recall witnesses would result in substantial delay and might very well interfere with the orderly presentation of evidence in the present parties’ primary cases. Under such circumstances it is the opinion of this Court that the motion by Iowa State University Research Foundation to intervene in this matter must be denied.”
The opening clause of Rule 24(a) dealing with intervention of right reads “Upon timely application. . ” An application for intervention whether asserted as a matter of right or judicial discretion must be timely. Lumbermens Mutual Cas. Co. v. Rhodes, 10 Cir., 403 F.2d 2, 5; Janousek v. Wells, 8 Cir., 303 F.2d 118, 122; Kap-lan v. Guardian Life Ins. Co. of America, W.D.Mo., 231 F.Supp. 874, 876-877.
As stated in Kozak v. Wells, 8 Cir., 278 F.2d 104, 109, “Timeliness is to be determined from all the circumstances shown.”
The application for leave to intervene was filed more than four years after the commencement of the action and after extensive discovery had been completed, and after the trial on the merits had proceeded for one and one-half months. The reason asserted by ISURF for its belated effort to intervene is that its right to relief is based on the decision of the Fourth Circuit in Iowa State University Research Foundation, Inc., v. Sperry Rand Corp., 444 F.2d 406, decided June 22, 1971. That case involves a separate and distinct patent from the one here involved, but presents a claim for the same basic relief here sought by the intervenor. No issue of timeliness of the intervention is raised in the Fourth Circuit case. The reported opinion reflects that ISURF raised by intervention in the trial court the same basic issue it raises in its proposed intervention here. It is apparent from the Fourth Circuit case that ISURF knew of its potential rights here asserted long before the present trial on the merits commenced. No valid reason appears why ISURF could not have asserted its right to intervene at a much earlier time.
We are abundantly satisfied that the trial court did not abuse its discretion in denying ISURF’s untimely application for leave to intervene. The judgment is affirmed upon the basis stated by Judge Larson in his well-considered memorandum opinion, 54 F.R.D. 593.
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_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
BELK-LINDSEY COMPANY OF ORLANDO, FLORIDA, Inc., Appellant, v. ALTHEIMER & BAER, INC., Appellee.
No. 19152.
United States Court oi Appeals Fifth Circuit.
March 20, 1962.
Wm. O. Mehrtens, James E. Glass, Miami, Fla., for appellant; Mershons, Sawyer, Johnston, Simmons & Dunwody, Miami, Fla., of counsel.
Ernest J. London, Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.
PER CURIAM.
Appellant appeals from a final judgment entered upon findings of fact and conclusions of law of the District Court sitting without a jury voiding as to appellee only the sale of a stock of goods to appellant by a debtor of appellee, impressing the stock with an equitable lien in favor of appellee for the amount due, and making appellant a constructive trustee of the assets for the benefit of appellee to the extent of the lien. The findings that seller was insolvent at the time of the conveyance, that it was made to hinder and delay the collection of the claim of appellee then in pending litigation, and to give preference over appellee to other creditors, that appellant had knowledge of such facts and circumstances as would have induced an ordinary prudent person to make inquiry, which inquiry would have led to the discovery of such purpose of seller and that the inquiry was not made, and also that the notice to creditors required under the Florida Bulk Sales statute was not given are not clearly erroneous. Rule 52(a), Fed.R.Civ.P., 28 U.S.C.A., James v. United States, 5 Cir., 1958, 252 F.2d 687. The conclusions drawn from the findings having adequate support and no prejudicial error appearing, we AFFIRM. F. S.A. §§ 608, 55, 726.01, 726.02, 726.03 and 726.04; Jackson v. Citizen’s Bank & Trust Co., 1907, 53 Fla. 265, 44 So. 516; Williams v. American Crafts Inc., Fla.App., 1961, 129 So.2d 165; Fla.Jur., Fraudulent Conveyances, § 8.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_respondent
|
100
|
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.
HARDT v. RELIANCE STANDARD LIFE INSURANCE CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 09-448.
Argued April 26, 2010 —
Decided May 24, 2010
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scaxja, Kennedy, Ginsburg, Breyer, Auto, and Sotomayor, JJ., joined, and in which Stevens, J., joined as to Parts I and II. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 257.
John R. Ates argued the cause for petitioner. With him on the briefs were Ann K. Sullivan and Elaine Inman Hogan.
Pratik A. Shah argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Kagan, Deputy Solicitor General Kneed-ler, M. Patricia Smith, and Elizabeth Hopkins.
Nicholas Quinn Rosenkranz argued the cause for respondent. With him on the brief were R. Ted Cruz and Howard M. Radzely.
Briefs of amici curiae urging reversal were filed for AARP et al. by Mary Ellen Signorille, Jay E. Sushelsky, Melvin R. Radowitz, and Terisa E. Chaw; and for United Policyholders by Mark D. DeBofsky and Donald Bogan.
Mark E. Schmidtke and John R. Kouris filed a brief for DRI — The Voice of the Defense Bar as amicus curiae urging affirmance.
Justice Thomas
delivered the opinion of the Court.
In most lawsuits seeking relief under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq., “a reasonable attorney’s fee and costs” are available “to either party” at the court’s “discretion.” § 1132(g)(1). The Court of Appeals for the Fourth Circuit has interpreted § 1132(g)(1) to require that a fee claimant be a “prevailing party” before he may seek a fees award. We reject this interpretation as contrary to § 1132(g)(l)’s plain text. We hold instead that a court “in its discretion” may award fees and costs “to either party,” ibid., as long as the fee claimant has achieved “some degree of success on the merits,” Ruckelshaus v. Sierra Club, 463 U. S. 680, 694 (1983).
I
In 2000, while working as an executive assistant to the president of textile manufacturer Dan River, Inc., petitioner Bridget Hardt began experiencing neck and shoulder pain. Her doctors eventually diagnosed her with carpal tunnel syndrome. Because surgeries on both her wrists failed to alleviate her pain, Hardt stopped working in January 2003.
In August 2003, Hardt sought long-term disability benefits from Dan River’s Group Long-Term Disability Insurance Program Plan (Plan). Dan River administers the Plan, which is subject to ERISA, but respondent Reliance Standard Life Insurance Company decides whether a claimant qualifies for benefits under the Plan and underwrites any benefits awarded. Reliance provisionally approved Hardt’s claim, telling her that final approval hinged on her performance in a functional capacities evaluation intended to assess the impact of her carpal tunnel syndrome and neck pain on her ability to work.
Hardt completed the functional capacities evaluation in October 2003. The evaluator summarized Hardt’s medical history, observed her resulting physical limitations, and ultimately found that Hardt could perform some amount of sedentary work. Based on this finding, Reliance concluded that Hardt was not totally disabled within the meaning of the Plan and denied her claim for disability benefits. Hardt filed an administrative appeal. Reliance reversed itself in part, finding that Hardt was totally disabled from her regular occupation, and was therefore entitled to temporary disability benefits for 24 months.
While her administrative appeal was pending, Hardt began experiencing new symptoms in her feet and calves, including tingling, pain, and numbness. One of her physicians diagnosed her with small-fiber neuropathy, a condition that increased her pain and decreased her physical capabilities over the ensuing months.
Hardt eventually applied to the Social Security Administration for disability benefits under the Social Security Act. Her application included questionnaires completed by two of her treating physicians, which described Hardt’s symptoms and stated the doctors’ conclusion that Hardt could not return to full gainful employment because of her neuropathy and other ailments. In February 2005, the Social Security Administration granted Hardt’s application and awarded her disability benefits.
About two months later, Reliance told Hardt that her Plan benefits would expire at the end of the 24-month period. Reliance explained that under the Plan’s terms, only individuals who are “totally disabled from all occupations” were eligible for benefits beyond that period, App. to Pet. for Cert. 36a, and adhered to its conclusion that, based on its review of Hardt’s records, Hardt was not “totally disabled” as defined by the Plan. Reliance also demanded that Hardt pay Reliance $14,913.23 to offset the disability benefits she had received from the Social Security Administration. (The Plan contains a provision coordinating benefits with Social Security payments.) Hardt paid Reliance the offset.
Hardt then filed another administrative appeal. She gave Reliance all of her medical records, the questionnaires she had submitted to the Social Security Administration, and an updated questionnaire from one of her physicians. Reliance asked Hardt to supplement this material with another functional capacities evaluation. When Reliance referred Hardt for the updated evaluation, it did not ask the evaluator to review Hardt for neuropathic pain, even though it knew that Hardt had been diagnosed with neuropathy after her first evaluation.
Hardt appeared for the updated evaluation in December 2005, and appeared for another evaluation in January 2006. The evaluators deemed both evaluations invalid because Hardt’s efforts were “submaximal.” Id., at 37a. One evaluator recorded that Hardt “refused multiple tests... for fear of nausea/illness/further pain complaints.” Ibid, (internal quotation marks omitted).
Lacking an updated functional capacities evaluation, Reliance hired a physician and a vocation rehabilitation counselor to help it resolve Hardt’s administrative appeal. The physician did not examine Hardt; instead, he reviewed some, but not all, of Hardt's medical records. Based on that review, the physician produced a report in which he opined that Hardt’s health was expected to improve. His report, however, did not mention Hardt’s pain medications or the questionnaires that Hardt’s attending physicians had completed as part of her application for Social Security benefits. The vocational rehabilitation counselor, in turn, performed a labor market study (based on Hardt’s health in 2003) that identified eight employment opportunities suitable for Hardt. After reviewing the physician’s report, the labor market study, and the results of the 2003 functional capacities evaluation, Reliance concluded that its decision to terminate Hardt’s benefits was correct. It advised Hardt of this decision in March 2006.
After exhausting her administrative remedies, Hardt sued Reliance in the United States District Court for the Eastern District of Virginia. She alleged that Reliance violated ERISA by wrongfully denying her claim for long-term disability benefits. See § 1132(a)(1)(B). The parties filed cross-motions for summary judgment, both of which the District Court denied.
The court first rejected Reliance’s request for summary judgment affirming the denial of benefits, finding that “Reliance’s decision to deny benefits was based on incomplete information.” App. to Pet. for Cert. 42a. Most prominently, none of the functional capacities evaluations to which Hardt had submitted had “assessed the impact of neuropathy and neuropathic pain on Ms. Hardt.” Ibid. In addition, the reviewing physician’s report “was itself incomplete”; the basis for the physician’s “medical conclusions [wa]s extremely vague and conelusory," ibid., and the physician had “failed to cite any medical evidence to support his conclusions,” id., at 43a, or “to address the treating physicians’ contradictory medical findings,” id., at 44a. The court also found that Reliance had “improperly rejected much of the evidence that Ms. Hardt submitted,” id., at 45a, and had “further ignored the substantial amount of pain medication Ms. Hardt’s treating physicians had prescribed to her,” id., at 46a. Accordingly, the court thought it “clear that Reliance’s decision to deny Ms. Hardt long-term disability benefits was not based on substantial evidence.” Id., at 47a.
The District Court then denied Hardt's motion for summary judgment, which contended that Reliance’s decision to deny benefits was unreasonable as a matter of law. In so doing, however, the court found “compelling evidence” in the record that “Ms. Hardt [wa]s totally disabled due to her neu-ropathy.” Id., at 48a. Although it was “inclined to rule in Ms. Hardt’s favor,” the court concluded that “it would be unwise to take this step without first giving Reliance the chance to address the deficiencies in its approach.” Ibid. In the District Court’s view, a remand to Reliance was warranted because “[t]his case presents one of those scenarios where the plan administrator has failed to comply with the ERISA guidelines,” meaning “Ms. Hardt did not get the kind of review to which she was entitled under applicable law.” Ibid. Accordingly, the court instructed “Reliance to act on Ms. Hardt’s application by adequately considering all the evidence” within 30 days; “[otherwise, ” it warned, “judgment will be issued in favor of Ms. Hardt.” Id., at 49a.
Reliance did as instructed. After conducting that review, Reliance found Hardt eligible for long-term disability benefits and paid her $55,250 in accrued, past-due benefits.
Hardt then moved for attorney’s fees and costs under § 1132(g)(1). The District Court assessed her motion under the three-step framework that governed fee requests in ERISA cases under Circuit precedent. At step one of that framework, a district court asks whether the fee claimant is a “‘prevailing party.’” Id., at 15a-16a (quoting Martin v. Blue Cross & Blue Shield of Virginia, Inc., 115 F. 3d 1201, 1210 (CA4 1997), and citing Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 603 (2001)). If the fee claimant qualifies as a prevailing party, the court proceeds to step two and “determin[es] whether an award of attorneys’ fees is appropriate” by examining “five factors.” App. to Pet. for Cert. 16a. Finally, if those five factors suggest that a fees award is appropriate, the court “must review the attorneys’ fees and costs requested and limit them to a reasonable amount.” Id., at 17a (citing Hensley v. Eckerhart, 461 U. S. 424, 433 (1983)).
Applying that framework, the District Court granted Hardt’s motion. It first concluded that Hardt was a prevailing party because the court’s remand order “sanctioned a material change in the legal relationship of the parties by ordering [Reliance] to conduct the type of review to which [Hardt] was entitled.” App. to Pet. for Cert. 22a. The court recognized that the order did not “sanctio[n] a certain result on remand,” but found that it “quite clearly expressed the consequences to [Reliance] were it to fail to complete its reconsideration in an expeditious manner.” Id., at 19a. Accordingly, the remand order “signif [ied] that the court was displeased with the cursory review that [Reliance] had initially given to [Hardt’s] claim, but was inclined to reserve judgment and permit [Reliance] to conduct a proper review of all of the medical evidence.” Ibid. The court next concluded that a fees award was appropriate under the five-factor test, see id., at 22a-25a, and awarded $39,149 in fees and costs, id., at 25a-30a.
Reliance appealed the fees award, and the Court of Appeals vacated the District Court’s order. According to the Court of Appeals, Hardt failed to satisfy the step-one inquiry — i. e., she failed to establish that she was a “prevailing party.” In reaching that conclusion, the Court of Appeals relied on this Court’s decision in Buckhannon, under which a fee claimant qualifies as a “prevailing party” only if he has obtained an “‘enforceable judgmen[t] on the merits’” or a “ ‘court-ordered consent decre[e].’ ” 336 Fed. Appx. 332, 335 (CA4 2009) (per curiam) (quoting 532 U. S., at 604). The Court of Appeals reasoned that because the remand order “did not require Reliance to award benefits to Hardt,” it did “not constitute an ‘enforceable judgment on the merits’ as Buckhannon requires,” thus precluding Hardt from establishing prevailing party status. 336 Fed. Appx., at 336 (brackets omitted).
Hardt filed a petition for a writ of certiorari seeking review of two aspects of the Court of Appeals’ judgment. First, did the Court of Appeals correctly conclude that § 1132(g)(1) permits courts to award attorney’s fees only to a “prevailing party”? Second, did the Court of Appeals correctly identify the circumstances under which a fee claimant is entitled to attorney’s fees under § 1132(g)(1)? We granted certiorari. 558 U. S. 1142 (2010).
II
Whether § 1132(g)(1) limits the availability of attorney’s fees to a “prevailing party” is a question of statutory construction. As in all such cases, we begin by analyzing the statutory language, “assuming] that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Financial Services, Inc., 557 U. S. 167, 175 (2009) (internal quotation marks omitted). We must enforce plain and unambiguous statutory language according to its terms. Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Jimenez v. Quarterman, 555 U. S. 113, 118 (2009).
Section 1132(g)(1) provides:
“In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.”
The words “prevailing party” do not appear in this provision. Nor does anything else in § 1132(g)(l)’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, § 1132(g)(1) expressly grants district courts “discretion” to award attorney’s fees “to either party.” (Emphasis added.)
That language contrasts sharply with § 1132(g)(2), which governs the availability of attorney’s fees in ERISA actions under § 1145 (actions to recover delinquent employer contributions to a multiemployer plan). In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees. § 1132(g)(2)(D). The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in § 1132(g)(1) an express “prevailing party” limit on the availability of attorney’s fees, the Court of Appeals’ decision adding that term of art to a fee-shifting statute from which it is conspicuously absent more closely resembles “inventing] a statute rather than interpreting] one.” Pasquantino v. United States, 544 U. S. 349, 359 (2005) (internal quotation marks omitted).
We see no reason to dwell any longer on this question, particularly given Reliance’s concessions. See Brief for Respondent 9-10 (“On its face,” § 1132(g)(1) “does not expressly demand, like so many statutes, that a claimant be a ‘prevailing party' before receiving attorney’s fees”). We therefore hold that a fee claimant need not be a “prevailing party” to be eligible for an attorney’s fees award under § 1132(g)(1).
Ill
We next consider the circumstances under which a court may award attorney’s fees pursuant to § 1132(g)(1). “Our basic point of reference” when considering the award of attorney’s fees is the bedrock principle known as the “ ‘American Rule’ Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise. Ruckelshaus, 463 U. S., at 683; see id., at 683-686; Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975); Buckhannon, 532 U. S., at 602-603; see also Perdue v. Kenny A., 559 U. S. 542, 550 (2010). Statutory changes to this rule take various forms. Most fee-shifting provisions permit a court to award attorney’s fees only to a “prevailing party.”* * Others permit a “substantially prevailing” party or a “successful” litigant to obtain fees. Still others authorize district courts to award attorney’s fees where “appropriate,” or simply vest district courts with “discretion” to award fees.
Of those statutory deviations from the American Rule, we have most often considered statutes containing an express “prevailing party” requirement. See, e. g., Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792-793 (1989); Farrar v. Hobby, 506 U. S. 103, 109-114 (1992); Buckhannon, supra, at 602-606; Sole v. Wyner, 551 U. S. 74, 82-86 (2007). Our “prevailing party” precedents, however, do not govern the availability of fees awards under § 1132(g)(1), because this provision does not limit the availability of attorney’s fees to the “prevailing party.” Supra, at 252; see also Gross, supra, at 174 (cautioning courts “conducting statutory interpretation... ‘not to apply rules applicable under one statute to a different statute without careful and critical examination’ ” (quoting Federal Express Corp. v. Holowecki, 552 U. S. 389, 393 (2008))).
Instead, we interpret § 1132(g)(1) in light of our precedents addressing statutory deviations from the American Rule that do not limit attorney’s fees awards to the “prevailing party.” In that line of precedents, Ruckelshaus is the principal case. There, the Court interpreted § 307(f) of the Clean Air Act, which authorizes a court to award fees “whenever it determines that such an award is appropriate.” 42 U. S. C. § 7607(f). We began by noting that because nothing in §307(f)’s text “clear[ly] show[ed]” that Congress meant to abandon the American Rule, 463 U. S., at 685, fee claimants must have achieved some litigating success to be eligible for a fees award under that section, id., at 686. We then concluded that by using the less stringent “whenever... appropriate” standard instead of the traditional “prevailing party” standard, Congress had “expand[ed] the class of parties eligible for fees awards from prevailing parties to partially prevailing parties — parties achieving some success, even if not major success.” Id., at 688. We thus held “that, absent some degree of success on the merits by the claimant, it is not ‘appropriate’ for a federal court to award attorney’s fees under § 307(f).” Id., at 694.
Applying the interpretive approach we employed in Ruck-elshaus to § 1132(g)(1), we first look to “the language of the section,” id., at 682, which unambiguously allows a court to award attorney’s fees “in its discretion... to either party,” § 1132(g)(1). Statutes vesting judges with such broad discretion are well known in the law, particularly in the attorney’s fees context. See, e. g., n. 7, supra; see also Perdue, 559 U. S., at 558.
Equally well known, however, is the fact that a “judge’s discretion is not unlimited.” Ibid. Consistent with Circuit precedent, the District Court applied five factors to guide its discretion in deciding whether to award attorney’s fees under § 1132(g)(1). See supra, at 249, and n. 1. Because these five factors bear no obvious relation to § 1132(g)(l)’s text or to our fee-shifting jurisprudence, they are not required for channeling a court’s discretion when awarding fees under this section.
Instead, Ruckelskaus lays down the proper markers to guide a court in exercising the discretion that § 1132(g)(1) grants. As in the statute at issue in Ruckelskaus, Congress failed to indicate clearly in § 1132(g)(1) that it “meant to abandon historic fee-shifting principles and intuitive notions of fairness.” 463 U. S., at 686. Accordingly, a fees claimant must show “some degree of success on the merits” before a court may award attorney’s fees under § 1132(g)(1), id., at 694. A claimant does not satisfy that requirement by achieving “trivial success on the merits” or a “purely procedural victor[y],” but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a “lengthy inquir[y] into the question whether a particular party’s success was ‘substantial’ or occurred on a ‘central issue.’ ” Id., at 688, n. 9.
Reliance essentially agrees that this standard should govern fee requests under § 1132(g)(1), see Brief for Respondent 13-31, but argues that Hardt has not satisfied it. Specifically, Reliance contends that a court order remanding an ERISA claim for further consideration can never constitute “some success on the merits,” even if such a remand results in an award of benefits. See id., at 34-50.
Reliance’s argument misses the point, given the facts of this case. Hardt persuaded the
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_jurisdiction
|
A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court 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".
The ELMO DIVISION OF DRIVE-X COMPANY, Inc., et al., Appellants, v. Paul Rand DIXON, The Federal Trade Commission, et al., Appellees.
No. 18559.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 24, 1964.
Decided Feb. 11, 1965.
Petition for Rehearing En Banc Denied May 6, 1965.
Fahy, Circuit Judge, dissented.
Mr. Geo. Stephen Leonard, Washington, D. C., for appellants. Mr. Richard L. Hirshberg, Washington, D. C., also entered an appearance for appellants.
Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Miss Sylvia A. Bacon, Asst. U. S. Attys., were on the brief, for appellees. Mr. Harold D. Rhynedance, Jr., Atty., Federal Trade Commission, also entered an appearance for appellees.
Before Prettyman, Senior Circuit Judge, and Fahy and Burger, Circuit Judges.
PER CURIAM:
Appellant sought declaratory and injunctive relief to stop the Federal Trade Commission from continuing with a complaint proceeding on the ground that a consent decree in an earlier proceeding requires the Commission to proceed by way of reopening that case. The District Court dismissed for want of jurisdiction; we must accordingly assume, for the purposes of the appeal, the truth of facts well pleaded. They are essentially the following: that appellant at all relevant times advertised and sold proprietary medicines; that in 1952 the Commission and appellant’s predecessor in interest entered into a consent settlement with respect to certain advertising practices the Commission found objectionable ; that the settlement of that complaint proceeding provided that it could be set aside “in whole or in part under the conditions and in the manner provided in paragraph (f) of Rule V of the Commission’s Rules of Practice; that Rule V provided for a reopening procedure whereby the Commission could set aside the consent settlement or any sever-able part thereof on finding a change of law or fact or that the public interest so required, and could thereafter undertake corrective action by adversary proceedings under the original or a new complaint as to any acts or practices not prohibited by any remaining provisions of the settlement; that the Commission over appellant’s objections has sidestepped the stipulated reopening procedure and instituted a new complaint dealing with substantially the same matters covered by the consent decree; that the Commission’s actions have caused and will cause substantial prejudice to appellant in its business and reputation, would subject it to full scale trial twice upon the same charges and would constitute a continuing forfeiture of its property resulting in irreparable injury; that appellant has exhausted its administrative remedies, since no order has been issued by the Commission which is appealable directly to the Court of Appeals.
We hold that this complaint states a claim for relief and that the action is within the subject-matter jurisdiction of the District Court.
Statutory provisions concerning review of agency action by the Courts of Appeals do not in and of themselves, as the dissent seems to imply, preclude District Court jurisdiction. A. F. of L. v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940), makes this clear. There the Supreme Court held Wagner Act' provisions for Court of Appeals review foreclosed appellate review of § 9 (c) certifications except as incidental to review of orders restraining unfair labor practices. The Court went on to point out that whether District Courts could “review” certification proceedings was another question entirely, a question which was later resolved in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), discussed infra.
The question we must resolve under A. F. of L. v. NLRB, supra, is thus whether Congress intended to foreclose District Court jurisdiction in the present case, given that its provision for Court of Appeals review does not per se preclude all District Court jurisdiction. Absent any clear directive in the statute itself or in the legislative history, it would seem necessary to decide this question on principle and by analogy to previous cases.
So proceeding, we see no reason to bar District Court jurisdiction here, for relief in that court is appellant’s only effective remedy, as we will demonstrate. The prospect of ultimate appellate review of any final order issuing out of the new complaint proceeding is not adequate. The type of procedural error appellant asserts is not of a kind which affects the Commission’s substantive findings; no one suggests that the Commission’s complaint procedure is unreliable as a fact-finding mechanism. The dissent concedes that the propriety of the Commission’s choice of procedure is not per se unsuited for judicial review. Once the feasibility of review is admitted, our inquiry should be directed to the appropriate time for such review.
Appellant does not seek review of any substantive determination made by the Commission; on the contrary, appellant concedes the Commission’s right initially to pass on the legality of appellant’s practices. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), is thus not in point. In Myers, the petitioner had sought an injunction against an NLRB hearing claiming the Board lacked jurisdiction because the employer’s business did not affect interstate commerce. In order for the District Court to grant the relief petitioner sought it would have had to determine an issue allocated for initial determination to the agency. The Supreme Court observed that to allow the petitioner’s suit would “in effect substitute the District Court for the Board as the tribunal to hear and determine what Congress declared the Board exclusively should hear and determine in the first instance.” Id. at 50, 58 S.Ct. at 463. Appellant here, unliké the petitioner in Myers, objects not to the fact of the Commission’s making an initial substantive determination but rather to the process by which it has chosen to do so. And there would seem to be no such basis here to defer to any procedural “expertise” the Commission may have as there was to defer to the Labor Board’s ability to decide what “affects interstate commerce” in Myers.
We see no ground on which we can distinguish the present case from B. F. Goodrich Co. v. FTC, 93 U.S.App.D.C. 50, 208 F.2d 829 (1953), appeal after remand, 100 U.S.App.D.C. 58, 242 F.2d 31 (1957). That case sustained the jurisdiction of the District Court to enjoin enforcement of the Commission’s Quantity-Limit Rule 203-1 on the ground that the Commission had promulgated the rule without first making the findings on which Congress had expressly conditioned its statutory grant of authority to make such rules. Cf. Leedom v. Kyne, 101 U.S.App.D.C. 398, 249 F.2d 490 (1957), aff’d, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (District Court has jurisdiction where Board violates express condition of its authority to determine appropriate bargaining units); Skinner & Eddy Corp. v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772 (1919) (Brandeis, J.) (District Court has jurisdiction where ICC permits new rate filing without hearing required by statute).
In Goodrich, supra, Kyne, supra, and Skinner & Eddy, supra, the agency’s action violated express statutory conditions of its authority which were found to give rise to enforceable rights in the parties for whose protection they existed. In the present case, appellant’s rights are not spelled out so explicitly in the statute itself. 15 U.S.C. § 45(b) provides:
“ * * * [T]he Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require : Provided, however, That the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States * *
(Initial emphasis added.) We need not decide whether this language in the abstract amounts to the kind of “plain statutory command” on which District Court jurisdiction was premised in Leedora v. Kyne, supra. Here the parties themselves by the consent decree have put a construction upon the statute which renders its directive of such a nature. The Commission promulgated Rule V (f) to implement § 45(b), and entered a consent order incorporating that Rule.
We hold merely that the incorporation of Rule V(f) into the consent decree which is binding on appellant and is equally binding on the Commission gives rise to an enforceable right in appellant to require the Commission to abide by the Rule.
In our view it is not controlling that the terms of Rule V(f) do not themselves appear in the statute; such terms do not lend themselves to the rigidities of a statute and would not likely be found in the statute; rather they implement the basic statutory scheme. It is the Commission, not Congress, which has the task of shaping the general statutory directive of § 45(b) into workable procedural rules consistent with the congressional intent. The Commission can best judge which procedures are feasible; statutory rules of practice might not be sufficiently flexible to adapt to changing needs. But where, as here, the Commission promulgates a Rule filling in the statute’s interstices, as Congress contemplated, and incorporates such a Rule into a consent settlement, we see no reason to distinguish between such a Rule and the statutory jurisdictional predicates involved in Goodrich, Kyne, and Skinner & Eddy. 3 ?
The District Court, then, has jurisdiction to entertain appellant’s complaint. In answering the question whether that complaint states a claim for relief which will support an injunction we need not inquire whether the statutory language alone or taken together with the promulgation of the implementing Rule, would give rise to an enforceable right. The incorporation of that Rule into the consent order “vested” appellant with a right to a reopening hearing.
The Commission’s authority to promulgate the Rule and to incorporate it into consent agreements is unquestioned; it cannot and does not assert that it may avoid the obligation it here undertook because of “incapacity.” And of course the Commission is free to alter its Rules of Practice as it sees fit, provided it does not contravene the statute. But it may not unilaterally obliterate a part of the consideration — indeed an important part —by which it secured appellant’s assent to be bound by a cease and desist order.
Appellant does not ask us for an injunction against an abuse of discretion. It contends rather that the Commission’s duty to proceed against it, if at all, according to Rule V(f) was “ministerial.” We agree. When the thrust of a statutory command addressed to a public official is unmistakable, his duty to comply with it is “ministerial.” This we believe to be the essence of Goodrich, Kyne, and Skinner & Eddy.
We have said that we can see no significant difference, in the context of this case, between the commands addressed by statute to the agency officials in those cases and the command of the Rule here adopted to implement § 45(b) and written into the consent agreement. Of course, the Commission, and only it, had discretion whether to proceed at all against appellant in relation to the advertising practices which were the subject of the agreement. But once the discretionary decision to act was taken, the choice of procedure was prescribed by § 45(b) of the statute as implemented by the parties by incorporating the Commission’s own Rule into the consent decree. In sum, given that the Rule was a term of the agreement, the duty to proceed according to its unambiguous provision was clear.
Were this an action between private parties, appellant would be hard pressed to demonstrate absence of an adequate remedy at law and this would ordinarily render specific relief inappropriate. Here, however, the injury which appellant asserts is one for which any adequate legal remedy is very remote.
Indiana & Michigan Elec. Co. v. FPC, 224 F.Supp. 166 (N.D.Ind.1963), cited by the dissent to show the availability of other adequate relief to appellant, is in-apposite. The premise of that case is that procedural errors committed by the Commission in the course of an otherwise lawful proceeding can be remedied by the grant of a new hearing by a Court of Appeals reviewing a final order if they appear to prejudice the reliability of the Commission’s fact findings. And indeed the remand envisioned would be adequate to remedy the wrong claimed in the Indiana case — denial of a fair hearing. As we have pointed out above, however, such a remand would serve no purpose here, since appellant concedes the reliability of the Commission’s complaint procedure. The gist of appellant’s complaint is rather that the Commission may not institute any complaint proceeding against it in relation to matters covered by the consent order until the necessary preliminary findings have been made at a reopening hearing reviewable by a Court of Appeals. Given the nature of the injury claimed, an appellate court reviewing an order resulting from the new complaint proceeding can afford appellant no meaningful remedy.
We hold that the unavailability of other adequate relief justifies the issuance of an injunction against the new complaint proceeding upon a proper showing. Appellant’s complaint thus states a claim for relief which the District Court must entertain. That court on remand may of course explore any factual issues tendered concerning the identity of the practices subject to the consent order and those here proceeded against, and any effects on such practices which appellant’s intervening change of corporate form may have had. We have not dealt with these matters, urged upon us by the Commission, since they were not raised in the District Court, which found only that it lacked jurisdiction to proceed. If it shall appear that the practices now complained of by the Commission vary significantly from those governed by the consent settlement, appellant cannot object to a new complaint directed at new conduct.
Reversed and remanded for further proceedings.
. Compare American Drug Corp. v. FTC, 149 F.2d 608 (8th Cir. 1945), remanded to the Commission, 160 F.2d 103 (1947), holding that a Court of Appeals has jurisdiction to review an order of the FTC setting aside a consent order without the hearing contemplated by 15 U.S.C. § 45 (b), discussed infra. Here, in contrast, the Commission has entered no order purporting to set aside the existing consent order. See also n. 7 infra.
. The decision was not premised, as the dissent implies, on the unavailability of judicial review at a later stage. A Court of Appeals reviewing a cease and desist order invoking the Quantity-Limit Rule to negative a cost-justification defense presumably could consider the validity of that rule.
. Skinner & Eddy is especially pertinent, since the statute there provided that the Commission might allow the new filing only after a hearing had established changed conditions. The Supreme Court sustained District Court jurisdiction to enjoin the filing though the petitioner had not sought relief within the Commission, since the complaint alleged that the Commission had exceeded its powers and, like appellant’s complaint here, made no claim that the Commission had erred in consideration of the merits of a substantive issue consigned to it for initial determination.
. The Commission argues that since the statute says the Commission “may” reopen, no such mandatory language appears as supported District Court jurisdiction in Kyne. While not reaching the question of the sufficiency of the statutory language alone to support jurisdiction, we note in passing that the Commission’s argument is not weighty. A provision that the Commission “shall” reopen would make no sense at all: reopening is meant to be discretionary with the Commission, and reopenings the exception rather than the rule. We think it more likely that the language means the Commission may reopen any order if it chooses, and if it does so, it shall proceed in the manner detailed in the statute.
. Even when not commanded by statute, the institution by an agency of regulations governing procedure may prevent deviation from them as long as they remain in effect. Cf. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).
. As noted supra, the present case does not present the questions whether § 45(b) ly itself requires the type of hearing afforded under Rule V (f), and if so whether that section itself confers a right enforceable in a District Court action.
. The Rule V (f) procedure requires a determination that there has been a change of law or fact — or that there is some public interest consideration — which justifies setting aside a consent order. Only after a hearing on these preliminary issues is the order to be disturbed at all under the Rule, and only after there has been such a setting aside is the Commission free under the Rule to bring a new complaint proceeding against any practice not governed by such parts of the consent order as remain in force.
Section 45(b) itself provides for direct Court of Appeals review of the outcome of reopening hearings. Congress thus apparently sought to insure that new complaint proceedings would not be instituted concerning practices subject to existing consent orders unless the prospective respondents first had a chance for judicial review of the necessity for disturbing such orders. This is some evidence that Congress, at least, considers the finality of consent orders to be of more than trivial concern.
By failing to hold the hearing contemplated by the statute and by not entering an order setting aside the existing consent order, the Commission subverts the opportunity for Court of Appeals review given by the statute. See n.l, supra.
. The Supreme Court long ago indicated that mandamus would lie in such a case:
“Unless * * * mandamus is to become practically valueless, and is to be refused even where a public officer is commanded to do a particular act by * * • * a particular statute, * * * [the writ] should be granted. Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore * * * construe it * * *. But that does not necessarily * * * make the duty * * * anything other than a purely ministerial one.”
Roberts v. United States, 176 U.S. 221, 231, 20 S.Ct. 376, 379, 44 L.Ed. 443 (1900).
. See McKay v. Wahlenmaier, 96 U.S.App. D.C. 313, 226 F.2d 35 (1955) (District Court has power to set aside “patently erroneous” application by Secretary of Interior of own regulation); Local Union No. 112, Int’l Union Allied Indus. Workers v. Rothman, 209 F.Supp. 295 (D.D.C. 1962) (District Court compels NLRB General Counsel to proceed to hearing at instance of charging party, since neither the statute nor the Board’s regulátions give General Counsel authority to settle complaints after issuance absent agreement of all parties).
. The need to insulate public officials from damage claims has led courts to find them immune from damage liability for failure to perform duties of the kind we find “ministerial” for the purposes of this action. The threat of liability in damages is likely to inhibit an official from “zealous and fearless administration of the law,” Cooper v. O’Connor, 69 App.D.C. 100, 105, 99 F.2d 135, 140, 118 A.L.R. 1440, cert. denied, 305 U.S. 643, 59 S. Ct. 146, 83 L.Ed. 414 (1938), as the threat of an injunction is not. This immunity extends to erroneous construction and application of statutes. See, e.g., Taylor v. McGrath, 90 U.S.App.D.C. 201, 194 F.2d 883 (1952). See generally Commercial State Bank of Roseville v. Gidney, 174 F.Supp. 770 (D.D.C.1959), aff’d, 108 U.S.App.D.C. 37, 278 F.2d 871 (1960); Davis, Administrative Officers’ Tort Liability, 55 Mich.L.Rev. 201 (1956).
Nor would appellant’s.likelihood of success be greater in a suit against the United States under the Tort Claims Act. Even if the official conduct here involved would be found for the purposes of that Act to be the violation of a ministerial duty rather than the irremediable abuse of a discretionary one, the Act excepts interference with contract rights — the essence of appellant’s claim — from its purview. 28 U.S.C. § 2680(h).
. Even if an appellate court could devise effective relief at this stage, the litigant who has failed first to seek relief in a District Court runs the risk of being es-topped to complain under the principle of St. Regis Paper Co. v. United States, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1962).
. We do not think the procedure now directed by this court, i.e., a remand to the District Court for limited purposes, is so “cumbersome” that it should divert us from requiring the Commission to adhere to its own Rules and its own explicit consent decree. Procedural safeguards are often cumbersome in a relative sense, but short cuts and cutting of procedural corners by a regulatory body are pregnant with mischief.
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:
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songer_genapel2
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
Peter PERANZO, Isadore Felix, Oscar Roman, Ferdinand Fritando, Robert Lawrence, Marcella Phipps, James Boyd, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants. v. Thomas A. COUGHLIN, III, Commissioner, New York State Department of Correctional Services, and Ramon Rodriguez, Chairman of the New York State Board of Parole, Gerald M. Burke, Joseph V. Salo, William J. Barnwell, Maurice Dean, Theodore Kirkland, Manuel Perron, Irving Greenberg, Maria Buchanan, Samuel D. Sherrid, Joseph Mulholland, Barbara Treen, and J. Kevin McNiff, Commissioners of New York State Board of Parole, in their Official Capacities, Defendants-Appellees.
No. 1269, Docket 88-2030.
United States Court of Appeals, Second Circuit.
Argued June 24, 1988.
Decided June 27, 1988.
John A. Gresham, New York City (David C. Leven, Robert Selcov, William D. Gib-ney, Prisoners’ Legal Services of N.Y., New York City, on the brief), for plaintiffs-appellants.
Maryellen Chomsky, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., New York City, on the brief), for defendants-appellees.
Before NEWMAN, KEARSE, and CARDAMONE, Circuit Judges.
PER CURIAM:
This is an appeal by New York State prisoners from a judgment of the District Court for the Southern District of New York (Leonard B. Sand, Judge) granting summary judgment in favor of New York corrections officials in the prisoners’ suit challenging the reliability of urinalysis drug test results for use as evidence sufficient to warrant prison discipline. The tests are performed by State officials using the Syva Company’s EMIT-st urinalysis drug detection kits. Evidence before Judge Sand established that the testing procedure — an initial test and a subsequent confirming test — has an accuracy of at least 98%. Though the risk of false positives has not been entirely eliminated, we agree with Judge Sand that use of the test results may be relied upon as sufficient evidence to warrant prison discipline under the standards of Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). We also agree that the detention prior to the disciplinary hearings was administrative and conformed to the requirements of due process. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Bolden v. Alston, 810 F.2d 353 (2d Cir.), cert. denied, — U.S. -, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987).
On the basis of Judge Sand’s well-reasoned opinion, reported at 675 F. Supp. 102, we affirm the judgment of the District Court.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_certreason
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L
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
METROPOLITAN EDISON CO. et al. v. PEOPLE AGAINST NUCLEAR ENERGY et al.
No. 81-2399.
Argued March 1, 1983
Decided April 19, 1983
Rehnquist, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, post, p. 779.
Deputy Solicitor General Bator argued the cause for petitioners in both cases. With him on the briefs in No. 82-358 were Solicitor General Lee, Assistant Attorney General Dinkins, Deputy Solicitor General Claiborne, Joshua I. Schwartz, James M. Spears, Jacques B. Gelin, Peter G. Crane, and Herzel Plaine. James B. Hamlin, George F. Trowbridge, John B. Rhinelander, Deborah B. Bauser, and James B. Liberman filed briefs for petitioners in No. 81-2399.
William S. Jordan III argued the cause and filed a brief for respondents in both cases.
Together with No. 82-358, United States Nuclear Regulatory Commission et al. v. People Against Nuclear Energy et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed by Michael I. Miller and Linda L. Hodge for the Atomic Industrial Forum; by Robert L. Baum, Peter B. Kelsey, Edward H. Comer, and William L. Fang for the Edison Electric Institute; by William E. Blaster and Jan S. Amundson for the National Association of Manufacturers; and by James P. McGranery, Jr., and William A. Carnahan for Scientists and Engineers for Secure Energy, Inc.
Briefs of amici curiae urging affirmance were filed by Margaret Farrell Ewing and Bruce J. Ennis for the American Psychological Association; and by Ellyn R. Weiss for the Union of Concerned Scientists.
Bruce J. Terris and Phillip G. Sunderland filed a brief for the American Sociological Association as amicus curiae.
Justice Rehnquist
delivered the opinion of the Court.
The issue in these cases is whether petitioner Nuclear Regulatory Commission (NRC) complied with the National Environmental Policy Act of 1969, 83 Stat. 852, as amended, 42 U. S. C. § 4321 et seq. (1976 ed. and Supp. V) (NEPA), when it considered whether to permit petitioner Metropolitan Edison Co. to resume operation of the Three Mile Island Unit 1 nuclear powerplant (TMI-1). The Court of Appeals for the District of Columbia Circuit held that the NRC improperly failed to consider whether the risk of an accident at TMI-1 might cause harm to the psychological health and community well-being of residents of the surrounding area. 219 U. S. App. D. C. 358, 678 F. 2d 222 (1982). We reverse.
Metropolitan owns two nuclear powerplants at Three Mile Island near Harrisburg, Pa. Both of these plants were licensed by the NRC after extensive proceedings, which included preparation of Environmental Impact Statements (EIS’s). On March 28, 1979, TMI-1 was not operating; it had been shut down for refueling. TMI-2 was operating, and it suffered a serious accident that damaged the reactor. Although, as it turned out, no dangerous radiation was released, the accident caused widespread concern. The Governor of Pennsylvania recommended an evacuation of all pregnant women and small children, and many area residents did leave their homes for several days.
After the accident, the NRC ordered Metropolitan to keep TMI-1 shut down until it had an opportunity to determine whether the plant could be operated safely. 44 Fed. Reg. 40461 (1979). The NRC then published a notice of hearing specifying several safety-related issues for consideration. Metropolitan Edison Co., 10 N. R. C. 141 (1979). The notice stated that the Commission had not determined whether to consider psychological harm or other indirect effects of the accident or of renewed operation of TMI-1. It invited interested parties to submit briefs on this issue. Id., at 148.
Respondent People Against Nuclear Energy (PANE) intervened and responded to this invitation. PANE is an association of residents of the Harrisburg area who are opposed to further operation of either TMI reactor. PANE contended that restarting TMI-1 would cause both severe psychological health damage to persons living in the vicinity, and serious damage to the stability, cohesiveness, and well-being of the neighboring communities.
The NRC decided not to take evidence concerning PANE’S contentions. Metropolitan Edison Co., 12 N. R. C. 607 (1980); Metropolitan Edison Co., 14 N. R. C. 593 (1981). PANE filed a petition for review in the Court of Appeals, contending that both NEPA and the Atomic Energy Act of 1954, 68 Stat. 921, as amended, 42 U. S. C. §2011 et seq. (1976 ed. and Supp. V), require the NRC to address its contentions. Metropolitan intervened on the side of the NRC.
The Court of Appeals concluded that the Atomic Energy-Act does not require the NRC to address PANE’S contentions. 219 U. S. App. D. C., at 385-389, 678 F. 2d, at 249-253. It did find, however, that NEPA requires the NRC to evaluate “the potential psychological health effects of operating” TMI-1 which have arisen since the original EIS was prepared. Id., at 371, 678 F. 2d, at 235. It also held that, if the NRC finds that significant new circumstances or information exist on this subject, it shall prepare a “supplemental [EIS] which considers not only the effects on psychological health but also effects on the well-being of the communities surrounding Three Mile Island.” Id., at 371-372, 678 F. 2d, at 235-236. We granted certiorari. 459 U. S. 966 (1982).
All the parties agree that effects on human health can be cognizable under NEPA, and that human health may include psychological health. The Court of Appeals thought these propositions were enough to complete a syllogism that disposes of the case: NEPA requires agencies to consider effects on health. An effect on psychological health is an effect on health. Therefore, NEPA requires agencies to consider the effects on psychological health asserted by PANE. See 219 U. S. App. D. C., at 364, 678 F. 2d, at 228. PANE, using similar reasoning, contends that because the psychological health damage to its members would be caused by a change in the environment (renewed operation of TMI-1), NEPA requires the NRC to consider that damage. See Brief for Respondents 23. Although these arguments are appealing at first glance, we believe they skip over an essential step in the analysis. They do not consider the closeness of the relationship between the change in the environment and the “effect” at issue.
Section 102(C) of NEPA, 83 Stat. 853,42 U. S. C. § 4332(C), directs all federal agencies to
“include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
“(i) the environmental impact of the proposed action, [and]
“(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented . . . .”
To paraphrase the statutory language in light of the facts of this case, where an agency action significantly affects the quality of the human environment, the agency must evaluate the “environmental impact” and any unavoidable adverse environmental effects of its proposal. The theme of § 102 is sounded by the adjective “environmental”: NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment. If we were to seize the word “environmental” out of its context and give it the broadest possible definition, the words “adverse environmental effects” might embrace virtually any consequence of a governmental action that someone thought “adverse.” But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.
The statements of two principal sponsors of NEPA, explaining to their colleagues the Conference Report on the bill that was ultimately enacted, illustrate this point:
“What is involved [in NEPA] is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence'or the health of mankind: That we will not intentionally initiate actions which do irreparable damage to the air, land and water which support life on earth.” 115 Cong. Rec. 40416 (1969) (remarks of Sen. Jackson) (emphasis supplied).
“[W]e can now move forward to preserve and enhance our air, aquatic, and terrestrial environments ... to carry out the policies and goals set forth in the bill to provide each citizen of this great country a healthful environment.” Id., at 40924 (remarks of Rep. Dingell) (emphasis supplied).
Thus, although NEPA states its goals in sweeping terms of human health and welfare, these goals are ends that Congress has chosen to pursue by means of protecting the physical environment.
To determine whether §102 requires consideration of a particular effect, we must look at the relationship between that effect and the change in the physical environment caused by the major federal action at issue. For example, if the Department of Health and Human Services were to implement extremely stringent requirements for hospitals and nursing homes receiving federal funds, many perfectly adequate hospitals and homes might be forced out of existence. The remaining facilities might be so limited or so expensive that many ill people would be unable to afford medical care and would suffer severe health damage. Nonetheless, NEPA would not require the Department to prepare an EIS evaluating that health damage because it would not be proximately related to a change in the physical environment.
Some effects that are “caused by” a change in the physical environment in the sense of “but for” causation, will nonetheless not fall within § 102 because the causal chain is too attenuated. For example, residents of the Harrisburg area have relatives in other parts of the country. Renewed operation of TMI-1 may well cause psychological health problems for these people. They may suffer “anxiety, tension and fear, a sense of helplessness,” and accompanying physical disorders, n. 2, supra, because of the risk that their relatives may be harmed in a nuclear accident. However, this harm is simply too remote from the physical environment to justify requiring the NRC to evaluate the psychological health damage to these people that may be caused by renewed operation of TMI-1.
Our understanding of the congressional concerns that led to the enactment of NEPA suggests that the terms “environmental effect” and “environmental impact” in § 102 be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue. This requirement is like the familiar doctrine of proximate cause from tort law. See generally W. Prosser, Law of Torts, ch. 7 (4th ed. 1971). The issue before us, then, is how to give content to this requirement. This is a question of first impression in this Court.
The federal action that affects the environment in this case is permitting renewed operation of TMI-1. The direct effects on the environment of this action include release of low-level radiation, increased fog in the Harrisburg area (caused by operation of the plant’s cooling towers), and the release of warm water into the Susquehanna River. The NRC has considered each of these effects in its EIS, and again in the EIA. See App. 51-58. Another effect of renewed operation is a risk of a nuclear accident. The NRC has also considered this effect. See id., at 58-60.
PANE argues that the psychological health damage it alleges “will flow directly from the risk of [a nuclear] accident.” Brief for Respondents 23. But a risk of an accident is not an effect on the physical environment. A risk is, by definition, unrealized in the physical world. In a causal chain from renewed operation of TMI-1 to psychological health damage, the element of risk and its perception by PANE’S members are necessary middle links. We believe that the element of risk lengthens the causal chain beyond the reach of NEPA.
Risk is a pervasive element of modern life; to say more would belabor the obvious. Many of the risks we face are generated by modern technology, which brings both the possibility of major accidents and opportunities for tremendous achievements. Medical experts apparently agree that risk can generate stress in human beings, which in turn may rise to the level of serious health damage. For this reason, among many others, the question whether the gains from any technological advance are worth its attendant risks may be an important public policy issue. Nonetheless, it is quite different from the question whether the same gains are worth a given level of alteration of our physical environment or depletion of our natural resources. The latter question rather than the former is the central concern» of NEPA.
Time and resources are simply too limited for us to believe that Congress intended to extend NEPA as far as the Court of Appeals has taken it. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). The scope of the agency’s inquiries must remain manageable if NEPA’s goal of “insuring] a fully informed and well-considered decision,” id., at 558, is to be accomplished.
If contentions of psychological health damage caused by risk were cognizable under NEPA, agencies would, at the very least, be obliged to expend considerable resources developing psychiatric expertise that is not otherwise relevant to their congressionally assigned functions. The available resources may be spread so thin that agencies are unable adequately to pursue protection of the physical environment and natural resources. As we said in another context in United States v. Dow, 357 U. S. 17, 25 (1958), “[w]e cannot attribute to Congress the intention to . . . open the door to such obvious incongruities and undesirable possibilities.”
This case bears strong resemblance to other cases in which plaintiffs have sought to require agencies to evaluate the risk of crime from the operation of a jail or other public facility in their neighborhood. See, e. g., Como-Falcon Coalition, Inc. v. Department of Labor, 609 F. 2d 342 (CA8 1979) (Job Corps Center); Nucleus of Chicago Homeowners Assn. v. Lynn, 524 F. 2d 225 (CA7 1975) (low-income housing); First National Bank of Chicago v. Richardson, 484 F. 2d 1369 (CA7 1973) (jail). The plaintiffs in these cases could have alleged that the risk of crime (or their dislike of the occupants of the facility) would cause severe psychological health damage. The operation of the facility is an event in the physical environment, but the psychological health damage to neighboring residents resulting from unrealized risks of crime is too far removed from that event to be covered by NEPA. The psychological health damage alleged by PANE is no closer to an event in the environment or to environmental concerns.
The Court of Appeals thought that PANE’S contentions are qualitatively different from the harm at issue in the cases just described. It thought PANE raised an issue of health damage, while those cases presented questions of fear or policy disagreement. We do not believe this line is so easily drawn. Anyone who fears or dislikes a project may find himself suffering from “anxiety, tension[,] fear, [and] a sense of helplessness.” N. 2, supra. Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.
We do not mean to denigrate the fears of PANE’S members, or to suggest that the psychological health damage they fear could not, in fact, occur. Nonetheless, it is difficult for us to see the differences between someone who dislikes a government decision so much that he suffers anxiety and stress, someone who fears the effects of that decision so much that he suffers similar anxiety and stress, and someone who suffers anxiety and stress that “flow directly,” Brief for Respondents 23, from the risks associated with the same decision. It would be extraordinarily difficult for agencies to differentiate between “genuine” claims of psychological health damage and claims that are grounded solely in disagreement with a democratically adopted policy. Until Congress provides a more explicit statutory instruction than NEPA now contains, we do not think agencies are obliged to undertake the inquiry. See Maryland National Capital Park & Planning Comm’n v. U. S. Postal Service, 159 U. S. App. D. C. 158, 166, 487 F. 2d 1029, 1037 (1973).
The Court of Appeals’ opinion seems at one point to acknowledge the force of these arguments, 219 U. S. App. D. C., at 365, 678 F. 2d, at 229, but seeks to distinguish the situation suggested by the related cases. First, the Court of Appeals thought the harm alleged by PANE is far more severe than the harm alleged in other cases. Ibid. It thought the severity of the harm is relevant to whether NEPA requires consideration of an effect. This cannot be the case. NEPA addresses environmental effects of federal actions. The gravity of harm does not change its character. If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply.
Second, the Court of Appeals noted that PANE’S claim was made “in the wake of a unique and traumatic nuclear accident.” Ibid. We do not understand how the accident at TMI-2 transforms PANE’S contentions into “environmental effects.” The Court of Appeals “cannot believe that the psychological aftermath of the March 1979 accident falls outside” NEPA. Id., at 366, 678 F. 2d, at 230. On the contrary, NEPA is not directed at the effects of past accidents and does not create a remedial scheme for past federal actions. It was enacted to require agencies to assess the future effects of future actions. There is nothing in the language or the history of NEPA to suggest that its scope should be expanded “in the wake of” any kind of accident.
For these reasons, we hold that the NRC need not consider PANE’S contentions. NEPA does not require agencies to evaluate the effects of risk qua risk. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to dismiss the petition for review.
It is so ordered.
See generally Report of the President’s Commission on the Accident at Three Mile Island (1979).
Specifically, PANE contended, App. to Pet. for Cert. 115a-116a:
“1.) Renewed operation of [TMI-1] would cause severe psychological distress to PANE’S members and other persons living in the vicinity of the reactor. The accident at [TMI-2] has already impaired the health and sense of well being of these individuals, as evidenced by their feelings of increased anxiety, tension and fear, a sense of helplessness and such physical disorders as skin rashes, aggravated ulcers, and skeletal and muscular problems. Such manifestations of psychological distress have been seen in the aftermath of other disasters. The possibility that [TMI-1] will reopen severely aggravates these problems. As long as this possibility exists, PANE’S members and other persons living in the communities around the plánt will be unable to resolve and recover from the trauma which they have suffered. Operation of [TMI-1] would be a constant reminder of the terror which they felt during the accident, and of the possibility that it will happen again. The distress caused by this ever present spectre of disaster makes it impossible ... to operate TMI 1 without endangering the public health and safety.
“2.) Renewed operation of TMI 1 would cause severe harm to the stability, cohesiveness and well being of the communities in the vicinity of the reactor. Community institutions have already been weakened as a result of a loss of citizen confidence in the ability of these institutions to function properly and in a helpful manner during a crisis. The potential for a re-occurrence of the accident will further stress the community infrastructure, causing increased loss of confidence and a breakdown of the social and political order. Sociologists such as Kai Erikson have documented similar phenomena in other communities following disasters.
“The perception, created by the accident, that the communities near Three Mile Island are undesirable locations for business and industry, or for the establishment of law or medical practice, or homes compounds the damage to the viability of the communities. Community vitality depends upon the ability to attract and keep persons, such as teachers, doctors, lawyers, and businesses critical to economic and social health. The potential for another accident, should TMI 1 be allowed to operate, would compound and make permanent the damage, trapping the residents in disintegrating and dying communities and discouraging . . . essential growth.”
Four members of the Commission filed individual opinions. There was no majority opinion.
While the petition for review was pending, the NRC staff prepared an environmental impact assessment (EIA) to determine whether a full EIS is required before TMI-1 could be permitted to renew operation. The NRC’s Licensing Board has ruled that the EIA was adequate and that no EIS is required. This ruling was upheld by the Atomic Safety and Licensing Appeal Board. In re Metropolitan Edison Co., Docket No. 50-289 (ALAB-705) (Dec. 10, 1982). Several additional steps, including repairs to a steam generator and NRC approval of those repairs, are necessary before Metropolitan actually resumes operation of TMI-1. Brief for Petitioners in No. 82-358, p. 18, and n. 13.
In the Court of Appeals the NRC argued that there is no “major Federal action” involved in permitting TMI-1 to renew operations because TMI-1 already has an operating license and an EIS was prepared before that license was issued. The Court of Appeals rejected this contention, stating that the “ ‘major federal action’ in the case of TMI-1 is . . . the Commission’s continued exercise of supervisory responsibility over its operation and maintenance.” 219 U. S. App. D. C., at 394, 678 F. 2d, at 231. No party has sought review of this holding, and we intimate no view as to its correctness. Similarly, no party has sought review of the Court of Appeals’ Atomic Energy Act holding.
For example, § 2 of NEPA, 83 Stat. 852, as set forth in 42 U. S. C. § 4321, provides:
“The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”
In drawing this analogy, we do not mean to suggest that any cause-effect relation too attenuated to merit damages in a tort suit would also be too attenuated to merit notice in an EIS; nor do we mean to suggest the converse. In the context of both tort law and NEPA, courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.
See n. 5, supra.
The NRC concluded that the risk of an accident had not changed significantly since the EIS for TMI-1 was prepared in 1972.
We emphasize that in this case we are considering effects caused by the risk of an accident. The situation where an agency is asked to consider effects that will occur if a risk is realized, for example, if an accident occurs at TMI-1, is an entirely different case. The NRC considered, in the original EIS and in the most recent EIA for TMI-1, the possible effects of a number of accidents that might occur at TMI-1.
This risk can be perceived differently by different people. Indeed, it appears that the members of PANE perceive a much greater risk of another nuclear accident at Three Mile Island than is perceived by the NRC and its staff.
Although these cases involved similar facts, they presented different legal issues. They did not consider allegations that risk of crime would lead to psychological health damage. They did hold that the risk of crime, or the plaintiffs’ concern about crime, do not constitute environmental effects. Of course, these holdings are not at issue in this litigation.
PANE’S original contention seems to be addressed as much to the symbolic significance of continued operation of TMI-1 as to the risk of an accident. See n. 2, supra. NEPA does not require consideration of stress caused by the symbolic significance individuals attach to federal actions. Psychological health damage caused by a symbol is even farther removed from the physical environment, and more closely connected with the broader political process, than psychological health damage caused by risk.
For example, the hospital regulations contemplated in the hypothetical, supra, at 773-774, might cause many deaths. But despite the severity of that harm, the deaths would not by any stretch of the imagination be “environmental effects.”
The Court of Appeals held that the NRC need not consider PANE’S contentions of community damage unless it found that the contentions of psychological health damage warrant preparation of an EIS. Since we decide that the NRC need not consider the contentions of psychological health damage at all, it follows that the contentions of community damage need not be considered.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GARDNER CONSTRUCTION COMPANY, Respondent.
No. 6753.
United States Court of Appeals Tenth Circuit.
Oct. 31, 1961.
Samuel M. Singer, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost and Judith Bleich Kahn, Washington, D. C., on the brief), for petitioner.
Harold B. Wagner, Denver, Colo, (Raymond A. Wagner and Carl A. Wyers, Denver, Colo., on the brief), for respond-en^-
Before LEWIS and BREITENSTEIN, Circuit Judges, and CHILSON, District Judge.
LEWIS Circuit Judge. ’
. .. i The National Labor Relations Board , as petitioner seeks enforcement of a ^ -.X Board order directed to the respondent ^ Company and entered after a finding , ■, that respondent had discharged one Moore for protected union activities m violation of Sec. 8(a) (1,3) of the Labor ,, , A . -tr\An Management Relations Act 1947 as amended, 29 U.S.C.A. § 158(a) (1 3). The order of enforcement is resisted by the contention that there is insufficient competent evidence to support the Board s finding that Moore s discharge was discriminatorily motivated. The charging party is Local No. 13, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
~ t ~ « n u y ’ ’. ® resPon en om pany was engaged m building a part of the Interstate Highway System on Highway 87 in Colorado. The job was nonunion. Part of the construction work consisted of hauling mixed dry aggregate from a plant to that portion of the highway then being paved, dumping the load into a hopper of the paving train and then laying the finished mix. The respondent Company had contracted with Giffin Bros., Inc., whereby the latter company made the haul at an agreed unit price. Giffin Bros., Inc. furnished both trucks and drivers including Moore, whose discharge triggered this proceeding, and Scales, a truck foreman, whose testimony is now asserted to be incompetent and an improper basis for the Board’s action.
Although Moore and Scales were hired by Giffin Bros., complete and absolute control of the men’s activities was thereafter at least shared by the respondent Company. Both men, indeed all men hired by Giffin Bros., were paid directly through the respondent Company's payroll with all required withholdings and , , , ,, , , , employees records handled by respond- , „ • . , ~ ,, ent. Supervisory control of the men , , rested with respondent and disciplinary ,. . , , action, including discharge, was exercised by ndent Under these circum_ stanceg it ig dear tbat both Moore and 0 , i( , „ « ,, , Scales were “employees” of the respondent Company within ^ purview of the Labor Management Act. In fact tbe angwer of ^ ndent admits that „ * * * tbe Re dent discharged itg ]oyee Robert Duane Moore,,
The testimony regarding incidents leading to Moore’s discharge is in sharp and irreconcilable conflict. The testimony of Harry Gardner, respondent’s vice president, indicated that the state resident engineer had issued an ultimatum that sloppy truck driving on thg projgct bad to fee gtopped and that ^ mee^. ^bjg complaint Gardner had decjded to fire the first driver who spilled his load; that Moore was the first driver to do so and he was fired for that reason; that the discharge was by truck number and that Gardner had no knowledge of the identity of the driver. Had this version of the incident been accepted as credible by the Board it would clearly negative the existence of an unfair labor practice. N. L. R. B. v. National Paper Co., 5 Cir., 216 F.2d 859; N. L. R. B. v. Whitin Machine Works, 1 Cir., 204 F.2d 883. But Gardner’s testimony was in effect rejected in toto by the Board.1 And although we are now urged to deny enforcement because respondent’s evidence gives a complete and satisfactory explanation of the incident we cannot set aside the Board order unless the supporting evidence is insufficient when viewed from that aspect found to be credible by the fact finder. We deem such evidence to be wholly sufficient when so premised. The Board relied upon testimony establishing the following background for Moore’s discharge.
Moore was a member of the Teamsters Local No. 13 and wore a union button pinned prominently upon his cap. On July 5, during the lunch period, representatives of the Teamsters were talking to a group of drivers and, at Moore’s request, explained the benefits of unionism. Gardner came upon the meeting, brusquely ordered the Union agents off the job-site and told Moore that if he was the one doing the talking he (Moore) was dissatisfied with his job. Moore was given his closing check in midafternoon at Gardner’s direction but by the foreman Scales who told Moore that the discharge was occasioned by the noon incident.
No complaint had been made of Moore’s driving and prior to the incident he had been used to instruct others in the technique of the work.
Seales’ statement that Moore was discharged for union activity was clearly an admission by respondent. Scales was both an employee of the respondent and an agent to effectuate Moore’s discharge. The statement was made in the course of his employment and was directly connected with his assigned responsibility. The Board could properly consider the statement as indicative of the reason for Moore’s discharge. N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, 138. The record will also support a finding that respondent knew Moore’s identity when his discharge was ordered. Gardner had talked face to face with Moore at noon and a few hours later personally pointed him out as the driver to be fired. He was then within 75 feet of him.
The order must be enforced.
It is so ordered.
. In this Gardner was corroborated by the resident engineer.
. The trial examiner’s report, adopted by the Board, stated:
“Gardner’s version of this incident, which the undersigned has read and carefully considered, is at variance with that of Salter. In the light of the entire record, the undersigned accepts as substantially correct Salter’s version and rejects Gardner’s version..
“The undersigned accepts Moore’s testimony regarding what transpired on the ■ afternoon of July 5, after the Union representatives and their companions left the job site, as substantially in accord with . the facts, and rejects Gardner’s testimony with respect to the events of that afternoon mainly on (1) a careful scrutiny of the entire record in the case, all of which has been carefully read, and parts of which have been reread and rechecked several times; (2) the candor with which Moore admitted that he could not be certain as to the dates or the exact words used by Gardner and others; and (3) the fact that Moore particularly impressed the undersigned as being a person who is careful with the truth and meticulous in not enlarging his testimony beyond his actual memory of what occurred or what was said. On the other hand, Gardner gave the undersigned the impression that he was studiously attempting to conform his testimony to what he considered to be the best interest of Respondent.”
. The testimony of Gardner contrasted sharply with the testimony of Moore and the union agent Salter as to what transpired at this time.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_state
|
02
|
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".
Fred BROWN, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC., et al., Defendants-Appellees.
No. 89-7151.
United States Court of Appeals, Eleventh Circuit.
April 25, 1990.
Leo E. Costello, Costello & Stott, Birmingham, Ala., for plaintiff-appellant.
Lawrence B. Clark, Lange, Simpson, Robinson & Somerville, Sally S. Reilly, Timothy A. Palmer, Charles C. Pinckney, Birmingham, Ala., for defendants-appellees.
Before JOHNSON, Circuit Judge, RONEY, Senior Circuit Judge, and MELTON, District Judge.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Howell W. Melton, U.S. District Judge for the Middle District of Florida, sitting by designation.
MELTON, District Judge:
Fred Brown (“Brown”) was denied hospitalization benefits under a group health plan because he had not obtained a precer-tification of the hospital admission. The district court held that the decision to deny benefits under this ERISA plan was not arbitrary and capricious and entered summary judgment for defendants. Brown argues on appeal that there were material issues of fact and that the district court failed to apply the governing law. We reverse and remand for further proceedings.
Brown, an employee of Truck Rentals of Alabama, Inc., was a participant in Truck Rentals’ group health care plan established pursuant -to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Blue Cross and Blue Shield of Alabama, Inc. (“Blue Cross”), provides insurance coverage under the plan for a monthly premium.
The plan automatically covers the cost of in-patient hospital care arising from a medical emergency but provides coverage in other cases only when Blue Cross has “approved and precertified the admission and stay” before the participant’s admission to the hospital. Brown was in the hospital twice for the same condition. The first visit was covered as a medical emergency; the second was not.
Brown was admitted to St. Charles General Hospital in New Orleans, Louisiana, because of a sinus condition. The first hospitalization lasted from September 21 through September 26, 1987. The second began on September 29 and ended on October 6, 1987. During the second stay, Brown underwent surgery for his sinus condition. The trial court found that no preadmission certification was obtained for either period of hospitalization. Without a preadmission certification, coverage for hospital expenses depends upon whether a hospitalization was compelled by a “medical emergency.”
When claims were filed for plan benefits, Blue Cross initially denied all coverage. The company later extended coverage to the first hospitalization as a medical emergency, but refused coverage for the second. Brown filed suit to compel payment for the second period of hospitalization. He urged two theories favoring coverage, one in which the second period is treated as a continuation of the first and another in which the second period is treated as an independent emergency situation.
The district court reviewed the denial of benefits under an arbitrary and capricious standard, consistent with the law in this Circuit at the time of the decision. See, e.g., Hoover v. Blue Cross & Blue Shield of Ala., 855 F.2d 1538, 1541 (11th Cir.1988); Griffis v. Delta Family-Care Disability & Survivorship Plan, 723 F.2d 822, 825 (11th Cir.) (adopting district court opinion), cert. denied, 467 U.S. 1242, 104 S.Ct. 3514, 82 L.Ed.2d 823 (1984). Brown asserts that the Supreme Court’s recent decision of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. -, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), decided after this case was before the district court, requires a de novo standard of review. That case, to the contrary, demonstrates that an arbitrary and capricious standard continues to be applicable here.
Although Firestone does not alter in form the standard applied to review of the fiduciary’s decision, the substance of review was subtly altered by the opinion. We examine herein the impact of this change. Our application of the Firestone opinion yields the conclusion that the decision of the district court must be reversed and remanded.
SCOPE OF REVIEW
Our review of the district court’s grant of summary judgment begins with a brief statement of its scope. Judge Johnson has identified an ambiguity in our prior statements of the scope of review in ERISA benefit denial review cases. See Jett v. Blue Cross & Blue Shield of Ala., 890 F.2d 1137, 1140-41 (11th Cir.1989) (Johnson, J., concurring and dissenting). The issue arises from the statement in Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989), that “[i]n assessing Guy’s contention that the Fund improperly denied him benefits, therefore, we must determine whether the district court’s finding that the Fund’s decision was arbitrary and capricious is clearly erroneous.” Id. at 39. Read literally, this statement apparently conflicts with our precedents that have uniformly treated the conclusion that an action is arbitrary and capricious as a matter of law subject to de novo review. See, e.g., Harris v. Pullman Standard, Inc., 809 F.2d 1495, 1499 (11th Cir.1987); Anderson v. Ciba-Geigy Corp., 759 F.2d 1518, 1522 (11th Cir.), cert. denied, 474 U.S. 995, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985); McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566, 1569 (11th Cir.1985); Helms v. Monsanto Co., 728 F.2d 1416 (11th Cir.1984). But Guy should not be read so literally. The discussion following the statement of the scope of review considers the district court’s factual findings under the clearly erroneous standard but visits relevant legal principles anew. See Guy, 877 F.2d at 39-40. The actual exercise of de novo review over the legal conclusion belies any misconception otherwise suggested by the opinion.
This appeal from grant of summary judgment is subject to plenary review. See, e.g., Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). We therefore apply the same legal standards that bound the district court. Id. The standard governing the grant of summary judgment is well-known and well expressed elsewhere, see id. at 933-34, so it will not be repeated here.
In our review of the substantive issue whether Blue Cross was arbitrary and capricious in its denial of Brown’s claim for benefits, we “determine whether there was a reasonable basis for the decision [to deny benefits], based on the facts as known to the [fiduciary] at the time the decision was made.” Jett, 890 F.2d at 1139. The concept of “reasonable basis,” however, must be modified consistent with the following discussion of the application of the arbitrary and capricious standard in the present context.
STANDARD OF REVIEW FOR FIDUCIARY DECISIONS
In Firestone, the Court established de novo judicial review of an ERISA benefits denial decision “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” 109 S.Ct. at 956. Appellant does not argue that this principle would not apply to Blue Cross in this case. The Group Hospital and Major Medical Contract between Baggett Transportation Company and Blue Cross, which we take to be the ERISA benefit plan document (hereinafter “Contract Plan”), confers discretion on Blue Cross in the matter of benefits determinations. The provision states:
As a condition precedent to coverage, it is agreed that whenever [Blue Cross] makes reasonable determinations which are not arbitrary and capricious in the administration of the [plan] (including, without limitation, determinations whether services, care, treatment or supplies are Medically Necessary...), such determinations shall be final and conclusive.
Contract Plan, § IX(K). Notably, the division of ERISA duties between Baggett Transportation Company and Blue Cross provides:
It is expressly understood and agreed by the parties to the Contract that any and all duties assigned by ERISA to the “plan administrator” shall be deemed for purposes of this Contract as duties of the Employer and not those of [Blue Cross].
Id., § XIII(D)(1). Thus, Blue Cross exercises its discretion as a fiduciary, not as plan administrator. For our purposes, however, this distinction is not of consequence because Firestone applies equally to the decisions of fiduciaries and the plan administrator.
Before Firestone, several circuits undertook to vary the deference accorded trustee or fiduciary decisions, within the framework of the arbitrary and capricious standard, in reaction to the presence or absence of conflicting interests on the part of the decisionmaker. See, e.g., Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 895 (10th Cir.1988); Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1052-53 (7th Cir.1987); Holland v. Burlington Indus., Inc., 712 F.2d 1140, 1149 (4th Cir.1985), sum. aff'd, 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Gilbert v. Burlington Indus., Inc., 765 F.2d 320, 328-29 (2d Cir.1985), sum. aff'd, 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986); Jung v. FMC Corp., 755 F.2d 708, 711-12 (9th Cir.1985); Dennard v. Richards Group, Inc., 681 F.2d 306, 314 (5th Cir.1982); Maggard v. O’Connell, 671 F.2d 568, 571 (D.C.Cir.1982); see also Gesina v. General Elec. Co., 162 Ariz. 39, 780 P.2d 1380, 1383-85 (App.) (adopting variable deference in original opinion decided before Firestone and adhering thereto in post-Firestone opinion on reconsideration), rev. denied, 162 Ariz. 39, 780 P.2d 1380 (1989). The Court’s opinion in Firestone serves to underscore the perceptiveness of these cases. In the same paragraph in which the Court gave its approval to plans that confer discretion on benefits decisionmakers, the Court added, “Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factor[] in determining whether there is an abuse of discretion.’ ” Firestone, 109 S.Ct. at 956 (quoting Restatement (Second) of Trusts § 187, Comment d (1959)).
Our task is to develop a coherent method for integrating factors such as self-interest into the legal standard for reviewing benefits determinations. This task reaches the height of difficulty in a case such as the one before us, where an insurance company serves as the decisionmaking fiduciary for benefits that are paid out of the insurance company’s assets. Several features distinguish insurance policy plans from other forms of ERISA plans.
The most familiar distinction lies in the application of certain state laws to ERISA plans. Although other forms of ERISA plans may offer the same kinds of health or other benefits that insurance policy plans offer, only insurance policy plans are subject to “any law of any State which regulates insurance.” See 29 U.S.C. § 1144(b)(2)(A) (savings clause); see also id. § 1144(b)(2)(B) (so-called deemer clause, which exempts employee welfare plans from insurance regulation). Congress intended a distinction between insured and uninsured plans such that the former are subject to state regulations, for example, mandated-benefit laws, that have the effect of transferring or spreading a policyholder’s risk, that are an integral part of the policy relationship between the insurer and the insured, and that are limited to entities within the insurance industry. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738-47, 105 S.Ct. 2380, 2388-93, 85 L.Ed.2d 728 (1985) (applying mandated-benefit law to group health insurance ERISA plan); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (refusing to apply general contract law causes of action against group insurance policy).
Another, more important distinction derives from the trust aspect of ERISA plans. The trust nature of employee benefit plans is fundamental to ERISA. The statute provides, with enumerated exceptions, “all assets of an employee benefit plan shall be held in trust by one or more trustees.” 29 U.S.C. § 1103(a). Insurance policy plans fall within the exceptions. The policy is an asset of the plan, but the insurer’s assets are not thereby included in the plan. Id. § 1101(b)(2). Moreover, this asset of the plan, the insurance policy, is not an asset held in trust for the beneficiaries of the plan because the trust requirements of section 1103(a) do not apply “to assets of a plan which consist of insurance contracts or policies issued by an insurance company qualified to do business in a State.” Id. § 1103(b)(1). Inasmuch as “[t]he basis for the deferential standard of review in the first place was the trust nature of most ERISA plans,” Moon v. American Home Assurance Co., 888 F.2d 86, 89 (11th Cir.1989), the most important reason for deferential review is lacking.
A final distinction involves the inherent conflict between the roles assumed by an insurance company that administers claims under a policy it issued. When vested with discretion to interpret the insurance policy qua ERISA benefits plan, the insurance company qua fiduciary is measured by a standard of loyalty, see 29 U.S.C. § 1104(a)(1)(A), and a standard of care, see id. § 1104(a)(1)(B), in the exercise of its duties, see Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 570-72, 105 S.Ct. 2833, 2840-41, 86 L.Ed.2d 447 (1985); Local Union 2134, U.M.W. of Am. v. Powhatan Fuel, Inc., 828 F.2d 710, 713 (11th Cir.1987). Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business. That is, when an insurance company serves as ERISA fiduciary to a plan composed solely of a policy or contract issued by that company, it is exercising discretion over a situation for which it incurs “direct, immediate expense as a result of benefit determinations favorable to [pjlan participants.” De Nobel v. Vitro Corp., 885 F.2d 1180, 1191 (4th Cir.1989) (explaining threshold for economic conflict of interest by fiduciary); see also Slover v. Boral Henderson Clay Prod. Inc., 714 F.Supp. 825, 833-34 (E.D.Tex.1989); Gesina, 780 P.2d at 1383. We conclude, then, as has one district judge in an opinion since Firestone, that a “strong conflict of interest [exists] when the fiduciary making a discretionary decision is also the insurance company responsible for paying the claims_” Jader v. Principal Mutual Life Ins. Co., 723 F.Supp. 1338, 1343 (D.Minn.1989).
The inherent conflict between the fiduciary role and the profit-making objective of an insurance company makes a highly deferential standard of review inappropriate. (The common-law basis for this proposition is developed infra.) Since the Firestone decision we have not considered any comparable situation. Four cases have been decided in this Circuit thus far. We briefly review each.
In Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989), we affirmed the district court’s conclusion that the trustees of a self-funded' employee benefit plan acted in an arbitrary and capricious manner by refusing to pay a beneficiary’s medical bills. We did not reach any issue related to conflicting interests because the trustees’ decision did not survive the most deferential standard of review. See id. at 39.
In Moon v. American Home Assurance Co., 888 F.2d 86 (11th Cir.1989), we applied the de novo standard of review to the denial of benefits by an insurance company on a death benefits policy. An individual, not the insurance company, was the administrator of the plan and no discretionary authority was vested in the company (thus precluding it from gaining fiduciary status). Id. at 88. We naturally had no occasion to examine the arbitrary and capricious standard.
Similarly, in Baker v. Big Star Div. of the Grand Union Co., 893 F.2d 288 (11th Cir.1989) (as amended), we remanded a case for application of the de novo standard to the denial of a claim for disability benefits by an insurance company that acted as claims administrator for a self-insured plan. We absolved the insurance company of either ERISA plan administrator or fiduciary status based on its purely ministerial role as an administrative servicing agent for claims processing. Id. at 290. Because the insurance company did not pay the benefits from its coffers and did not exercise discretion under the employee benefit plan, Baker does not shed light on the issues that presently concern us.
Finally, in Jett v. Blue Cross & Blue Shield of Alabama, 890 F.2d 1137 (11th Cir.1989), we applied the arbitrary and capricious standard to the benefits determination made by an insurance company pursuant to a clause conferring discretionary authority in nearly the same terms as the ERISA plan in this case. The crucial difference in Jett, however, is the lack of any conflicting interest on the part of the insurance company. The plan was self-insured, with the insurance company acting as administrator and receiving full reimbursement from the plan sponsor for covered medical claims. Id. at 1138. The insurance company would not suffer any direct, immediate expense as a result of benefit determinations favorable to plan participants. Consequently, the insurance company qua plan administrator deserved and was accorded the highest deference in review of its claims denial decision. Cf. Bali v. Blue Cross & Blue Shield Ass’n, 873 F.2d 1043, 1047 n. 5 (7th Cir.1989) (no conflict of interest implicated where third party made determinations on benefits).
In summary, we face for the first time (since Firestone) how to reconcile the inherent conflict posed by benefits determinations made by an insurance company administering its own policy. While de novo review is an attractive avenue for controlling the exercise of discretion contrary to the interests of the beneficiaries, the application of this strict standard would deny Blue Cross the benefit of the bargain it made in the insurance contract. See Firestone, 109 S.Ct. at 954. The Firestone Court firmly endorsed the ability of parties to “agree[] upon a narrower standard of review.” Id. at 956. At the same time, we must control the tension between contractual standards of review and an interpretation of ERISA that “would afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted.” Id. We therefore hold that the abuse of discretion, or arbitrary and capricious, standard applies to cases such as this one, but the application of the standard is shaped by the circumstances of the inherent conflict of interest.
In saying that Blue Cross’ benefits determinations are subject to review by the arbitrary and capricious standard, we recognize that the concept of arbitrary and capricious “must be contextually tailored.” Maggard, 671 F.2d at 571. The degree of deference exercised in review of a fiduciary’s decision ranges from slight to great, depending upon the dynamics of the decisionmaking process. See Van Boxel, 836 F.2d at 1052-53. In Posnerian terms, “the arbitrary and capricious standard may be a range, not a point.” Id. at 1052; accord Lowry v. Bankers Life & Casualty Retirement Plan, 871 F.2d 522, 525 n. 6 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 152, 107 L.Ed.2d 111 (1989).
The disinterested, impartial decisionmaker deserves the greatest deference. “Where... the claimant does not argue or is unable to show that the trustees had a significant conflict of interest, we reverse the denial of benefits only if the denial is completely unreasonable.” Van Boxel, 836 F.2d at 1053. Compare De Nobel, 885 F.2d at 1191-92 (no evidence to suggest decision was tainted by conflict of interest and explanation of denial was reasonable) with Guy, 877 F.2d at 39-40 (conflict of interest issue not raised, but trustees acted unreasonably by denying benefits, without affording claimant notice or right of appeal, on basis of uncertain equitable right of recovery through subrogation). Correspondingly, “[w]hen the members of a tribunal — for example, the trustees of a pension fund — have a serious conflict of interest, the proper deference to give may be slight, even zero; the decision if wrong may be unreasonable.” Van Boxel, 836 F.2d at 1052.
By describing this range we have drawn merely the outer boundaries of our inquiry. We now must fix more precisely the method for evaluating the abuse of discretion. The Firestone Court has directed us to consult common law principles of trusts and has facilitated the task further by mentioning a particularly illuminating source by name.
Comment d to section 187 of the Restatement (Second) of Trusts lists six factors to consult to determine the question whether a trustee is guilty of abuse of discretion in exercising or failing to exercise a power. These factors are:
(1) the extent of the discretion conferred upon the trustee by the terms of the trust; (2) the purposes of the trust; (3) the nature of the power; (4) the existence or non-existence, the definiteness or indefiniteness, of an external standard by which the reasonableness of the trustee’s conduct can be judged; (5) the motives of the trustee in exercising the power; (6) the existence or nonexistence of an interest in the trustee conflicting with that of the beneficiaries.
Restatement (Second) of Trusts § 187, Comment d. The first factor is essentially considered in deciding that the arbitrary and capricious standard applies. The second and third factors have a constant quality dictated by ERISA. Adaptation of the remaining principles to the ERISA context is our next step.
The sixth factor is the most significant in this case. (We have set forth supra the analysis of the conflict of interest present in this case.) A finding of a conflicting interest has a tremendous impact on the evaluation of the fiduciary’s actions.
[T]he beneficiary need only show that the fiduciary allowed himself to be placed in a position where his personal interest might conflict with the interest of the beneficiary. It is unnecessary to show that the fiduciary succumbed to this temptation, that he acted in bad faith, that he gained an advantage, fair or unfair, that the beneficiary was harmed. Indeed, the law presumes that the fiduciary acted disloyally, and inquiry into such matters is foreclosed. The rule is not intended to compensate the beneficiary for any loss he may have sustained or to deprive the fiduciary of any unjust enrichment. Its sole purpose and effect is prophylactic....
Fulton Nat’l Bank v. Tate, 363 F.2d 562, 571-72 (5th Cir.1966) (emphasis in original). In other words, one reason for limiting the deference when the fiduciary suffers a conflict of interest is to discourage arrangements where a conflict arises. Cf. Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 142-43, 105 S.Ct. 3085, 3091, 87 L.Ed.2d 96 (1985) (“the avoidance of conflicts of interest” is among the primary statutory duties imposed by ERISA on fiduciaries); Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.) (fiduciaries must “avoid placing themselves in a position where their acts [in their other roles] will prevent their functioning with the complete loyalty to participants demanded of them as [fiduciaries]”), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982).
The matter of conflicting interests touches on the fifth factor, improper motive, as well.
Although ordinarily the court will not inquire into the motives of the trustee, yet if it is shown that his motives were improper or that he could not have acted from a proper motive, the court will interpose. In the determination of the question whether the trustee in the exercise of a power is acting from an improper motive the fact that the trustee has an interest conflicting with that of the beneficiary is to be considered.
Restatement (Second) of Trusts § 187, Comment g; accord 3 A. Scott & W. Fratcher, The Law of Trusts § 187.5, at 47 (4th ed. 1988) [hereinafter “Scott on Trusts ”]. The rationale for this approach is clear. A conflicted fiduciary may favor, consciously or unconsciously, its interests over the interests of the plan beneficiaries. See Tate, 363 F.2d at 571. The judicial hesitation to inquire into the fiduciary’s motives will leave the beneficiaries unprotected unless the existence of a substantial conflicting interest shifts the burden to the fiduciary to demonstrate that its decision is not infected with self-interest. See id. at 569-79; see also Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939) (director of corporation stands in fiduciary relationship so that self-dealings with corporation must meet standards of good faith and inherent fairness from viewpoint of corporation); Phelan v. Middle States Oil Corp., 220 F.2d 593, 600 (2d Cir.1955) (burden on beneficiary to prove conflict of interest, then burden shifts to trustee to show no loss to beneficiaries resulting from conflict), cert. denied, 349 U.S. 929, 75 S.Ct. 772, 99 L.Ed. 1260 (1955); Gilliam v. Edwards, 492 F.Supp. 1255, 1263-64 (D.N.J.1980) (applying Tate to ERISA context); Blankenship v. Boyle, 329 F.Supp. 1089, 1096 (D.D.C.1971) (pre-ERISA case in which Pepper was applied to fiduciaries of pension fund to require explanation why cash surpluses were accumulated contrary to duty to maximize trust income by prudent investment); see generally 6. Bogert & G. Bogert, The Law of Trusts & Trustees § 543, at 40-42 (rev. 2d ed. Supp.1989).
Improper motive encompasses something different from dishonesty or bad faith. See 3 Scott on Trusts § 187.5, at 46-47. Even the broadest delegation of discretion to a trustee or fiduciary is bounded by the limitation that the fiduciary cannot act from a motive other than the accomplishment of the purposes of the trust. See, e.g., Funk v. Commissioner, 185 F.2d 127, 130 (3d Cir.1950); McDonald v. McDonald, 92 Ala. 537, 9 So. 195, 196-97 (1890); In re Estate of Smith, 117 Cal.App.3d 511, 172 Cal.Rptr. 788, 794 (1981); Mesler v. Holly, 318 So.2d 530, 533 (Fla.Dist.Ct.App.1975); Lyter v. Vestal, 355 Mo. 457, 196 S.W.2d 769, 773 (1946); In re Alpert, 129 A.D.2d 444, 514 N.Y.S.2d 16, 17, appeal denied, 70 N.Y.2d 603, 518 N.Y.S.2d 1026, 512 N.E.2d 552 (1987); In re Bruches, 67 A.D.2d 456, 415 N.Y.S.2d 664, 668 (1979). For example, where a trustee appears to be motivated by a desire to terminate the trust, the motive is improper and the trustee’s discretionary determinations are scrutinized closely. See Colket v. St. Louis Union Trust Co., 52 F.2d 390, 395-96 (8th Cir.1931), cert. denied, 285 U.S. 543, 52 S.Ct. 393, 76 L.Ed. 935 (1932). ERISA’s standard of loyalty constitutes statutory recognition of the bar on improper motivation. See Central States, 472 U.S. at 571 n. 12, 105 S.Ct. at 2840 n. 12. We have found improper motive in ERISA cases where fiduciaries or trustees failed to act in the sole interests of the beneficiaries by acting to advance the interests of the sponsoring union, Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572, 579-81 (11th Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988), or by acting to advance their personal interests, Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1261 (5th Cir.1980).
In accordance with the foregoing common law principles, we hold that when a plan beneficiary demonstrates a substantial conflict of interest on the part of the fiduciary responsible for benefits determinations, the burden shifts to the fiduciary to prove that its interpretation of plan provisions committed to its discretion was not tainted by self-interest. That is, a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries. This rule, we note, is an extension of the settled federal common law rule developed under the Labor Management Relations Act and subsequently applied in another context under ERISA. See, e.g., Marshall v. Snyder, 572 F.2d 894, 900-01 (2d Cir.1978); Nedd v. United Mine Workers, 556 F.2d 190, 210-11 (3d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 757 (1978); Kaszuk v. Bakery & Confectionery Union, 638 F.Supp. 365, 373 (N.D.Ill.1985); Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 636 (W.D.Wis.1979).
We have engaged in burden shifting of this type for similar reasons in ERISA suits. In Fine v. Semet, 699 F.2d 1091 (11th Cir.1983), the plan committed benefits determinations to the sole discretion of the trustees. We found that “after [the beneficiary] met his initial burden of offering evidence of facially inconsistent treatment, the burden shifted to the trustees to show why they acted as they did.” Id. at 1095. We focused on the articulated reasons given by the trustees and, given the absence of any argument or indicia of conflicting interests or improper motives, we noted that “[t]he reasons need not be compelling, only sufficient to take them out of the arbitrary mold.” Id. The trustees stated they were concerned with the impact of the beneficiary’s request on the financial status of the fund generally and other beneficiaries specifically. We accepted their rationale as a judgment on their part designed to implement the statutory “duty [imposed] on fiduciaries to act solely in the interest of plan participants and beneficiaries.” Id.
In Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572 (11th Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988), we expressly reconciled this kind of burden shifting with the arbitrary and capricious standard in the context of improperly motivated trustees. The district court had found that the trustees of the plan amended it for the primary benefit of the sponsoring union and not for the plan beneficiaries. Id. at 576. On the heels of this finding, the district court rejected other apparently reasonable justifications for the plan amendment because they “ ‘[did] not withstand the careful scrutiny with which they must be analyzed.’ ” Id. at 577 (quoting district court slip opinion). On appeal we found no inconsistency between the terminology of the district court and the traditional deference involved in the application of the arbitrary and capricious standard. Id. Indeed, we went further and laid the burden at the feet of conflicted fiduciaries to demonstrate their loyalty to the plan. We cautioned,
We do not hold, however, that in all circumstances a provision similar to, or even identical with, Amendment 46 would violate ERISA. If the Trustees of a plan demonstrate that a provision is rationally related to the financial integrity of the Plan and is adopted absent from or insulated from any conflict of interest, consistent with their fiduciary duties, ERISA’s protections of the participants and beneficiaries could be satisfied.
Id. at 581.
The burden of demonstrating the reasons for a challenged plan interpretation will, by and large, draw a distinction between plans that are truly trusts and plans that are based solely on contracts or policies for insurance. Decisions on behalf of a plan in the form of a trust lend themselves less readily to the accusation of conflicting interests and are more easily justified.
That plan administrators’ decisions have had a favorable impact on the balance sheet of the trust itself, however, suggests no “conflict of interest.” Fiduciaries are obligated to act not only in the best interests of beneficiaries, but with due regard for the preservation of trust assets. Adverse benefits determinations may well have saved considerable sums, but that may simply reflect that the trustees, bearing in mind the interests of all participants and beneficiaries, 29 U.S.C. § 1104(a)(1), made a considered decision to preserve the corpus of the trust, rather than grant a doubtful claim.
De Nobel, 885 F.2d at 1191 (emphasis in original). The Fine case illustrates this principle. Decisions made by
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
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08. Connecticut
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12. Hawaii
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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
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57. Panama
Answer:
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songer_r_natpr
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
UNITED STATES of America, Plaintiff-Appellee, v. $26,660 IN U.S. CURRENCY (Vincent Caci, Claimant), Defendant-Appellant.
No. 198, Docket 85-6154.
United States Court of Appeals, Second Circuit.
Argued Oct. 4, 1985.
Decided Nov. 21, 1985.
Michael H. Ranzenhofer, Buffalo, N.Y. (Mattar, D’Agostino, Kogler & Runfola, of counsel), for defendant-appellant.
Martin Littlefield, (Asst. U.S. Atty. for the W.D.N.Y., Buffalo N.Y., Salvatore R. Martoche, U.S. Atty. for the W.D.N.Y., Joseph M. Guerra, III, Asst. U.S. Atty., of counsel), for plaintiff-appellee.
Before FEINBERG, Chief Judge, LUM-BARD and WINTER, Circuit Judges.
PER CURIAM:
Vincent Caci, appellant-claimant in this in rem forfeiture action, appeals from an order of Chief Judge John T. Curtin of the United States District Court for the Western District of New York ordering the forfeiture of $26,660 to the United States government. In 1983, Caci crossed the Canadian border into the United States carrying that amount in American currency. At the border, officers of the United States Customs Service requested that Caci complete a form that asked whether he was carrying over $5,000 in currency. He filled out the form, answering this question in the negative. Customs officers then searched Caci, discovered the $26,660 on his person and seized the money. Caci was indicted and convicted under 18 U.S.C. § 1001 for willfully making false statements in completing the Customs form. This Court affirmed the conviction by order, and the Supreme Court denied appellant’s petition for certiorari. 751 F.2d 372, (2nd Cir.) cert. denied, — U.S. —, 105 S.Ct. 594, 83 L.Ed.2d 703 (1984). The government subsequently sought civil forfeiture of the currency pursuant to 31 U.S.C. § 5317(b) (now § 5317(c)). In the district court, Caci admitted that he had transported money from Canada into the United States. He attempted' to show, however, that at the time he entered the United States he had been unaware of his obligation to report the currency. Judge Curtin nevertheless granted the government summary judgment and ordered the currency forfeited. This appeal followed.
At the time Caci crossed the border, 31 U.S.C. § 5316(a) provided that any person who “knowingly” transports currency in excess of $5,000 into the United States must file a report with the Secretary of the Treasury, and 31 U.S.C. § 5317(b) provided for forfeiture of such currency when the person importing it failed to file the required report. The parties dispute whether awareness of the reporting requirement is an element of a civil forfeiture action brought under section 5317. Authority exists on both sides of this question, which is as yet undecided by this court. Compare United States v. $5393, 583 F.Supp. 1447 (E.D.N.Y.1984) (awareness not required) and United States v. $4,255,625.39, 528 F.Supp. 969 (S.D.Fla.1981) (same) with United States v. $24,900, 770 F.2d 1530 (11th Cir.1985) (awareness required). Cf. United States v. $6,700, 615 F.2d 1, 3 (1st Cir.1980) (noting in context of estate’s claim to currency carried into United States by administrator that “[t]he forfeiture provisions here are straightforward ... forfeiture is not tied to or dependent upon the wrongdoing of the owner of the monetary instruments.”)
We find it unnecessary to decide this question. Appellant has admitted that he knew he was carrying over $5,000 into the United States and that he read the Customs form. However, he claims that he erroneously, but in good faith, thought that the question put to him was whether he was carrying over $50,000. But that factual issue was litigated in his criminal trial. The closing argument of appellant’s counsel in that case, of which we may take judicial notice, was that Caci signed the form “believing that it said fifty thousand dollars.” By its verdict, the jury decided the factual issue against him. Appellant is estopped from relitigating the same question in this action. See Emich v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 413, 95 L.Ed. 534 (1951); United States v. $31,679.59 Cash, 665 F.2d 903 (9th Cir.1982). Accordingly, the government has demonstrated every element needed for forfeiture of the currency under section 5317.
The judgment of the district court is affirmed.
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_respond2_7_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Albert R. VARHOLA; Joseph Bradshaw; Curtis Darnell; Carlos E. Elrod; Frank P. Iovino; E. Jack Maynard; Curtis W. Phipps; Teresa Price, Executrix of the Estate of Earl Price, deceased; Stephen E. Sexton; William Vanderpool; Leslie L. Wilson; Claude Wright, PlaintiffsAppellees, Cross-Appellants, v. John DOE, et al., Defendants, Cyclops Corporation; Pension Plan for Salaried Employees of Cyclops Corporation; William D. Dickey; Robert A. Kushner; Donald E. Mitchell; Program of Hospital Medical Benefits for Eligible Pensioners and Surviving Spouses of Cyclops Corporation — Salaried Employees, Defendants-Appellants, Cross-Appellees.
Nos. 85-4057, 86-3021.
United States Court of Appeals, Sixth Circuit.
Argued March 31, 1987.
Decided June 22, 1987.
Jack F. Fuchs, Daniel O. Berger, Paxton & Seasongood, Cincinnati, Ohio, Donald E. Seymour, argued, Kirkpatrick & Lockhart, Pittsburgh, Pa., for defendants-appellants, cross-appellees.
Don Aspaugh, Columbus, Ohio, Richard C. Graham, argued, Isaac, Brant, Ledman & Becker, Paul H. Tobias, Tobias & Kraus, Cincinnati, Ohio, for plaintiffs-appellees, cross-appellants.
Pension Benefit Guar. Corp., Edward R. Mackiewicz, Robert Furst, Roger J. Lerner, Legal Dept., Washington, D.C., Chamber of Commerce of the United States, William F. Hanrahan, E. Calvin Golumbic, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., amicus curiae in support of defendants-appellants.
United Steelworkers of America, William T. Payne, Asst. Gen. Counsel, Pittsburgh, Pa., amicus curiae in support of plaintiffsappellees.
Before KEITH, KENNEDY and RYAN, Circuit Judges.
CORNELIA G. KENNEDY, Circuit Judge.
Defendants appeal and plaintiffs cross-appeal the summary judgment for plaintiffs in this action involving pension liability under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. We hold that the “arbitrary and capricious” standard of review applies to decisions by plan administrators to deny benefits to particular claimants. Because we find that there are factual issues which need to be resolved, we remand this case to the District Court for determination as to whether the plan administrator in this case acted arbitrarily and capriciously in denying “shutdown pensions” to plaintiffs. We affirm the District Court’s rulings that there is no evidence that defendants engaged in unlawful discrimination in violation of 29 U.S.C. § 1140 and that plaintiffs are not entitled to punitive or compensatory damages. We express no opinion on the other issues raised by the parties, but rather remand those issues to the District Court for further proceedings.
I.
Cyclops Corporation (“Cyclops”) is engaged, among other things, in the production of steel. Before November 22, 1980, Cyclops owned and operated steel-making and related production facilities near Portsmouth, Ohio (“the Portsmouth facility”). This facility included an operating coke plant, blast furnace, and open hearth furnaces. The twelve plaintiffs in this case were salaried employees of Cyclops and worked at the Portsmouth facility.
In early 1980, Cyclops decided to close down its operations at the Portsmouth facility. After failing to sell the entire facility as a “going concern,” it shut down the blast furnace and open hearth furnaces completely, but continued the coke plant operations until August while attempting to find a buyer for the coke plant as a “going concern.” On August 25, 1980, the coke ovens were put into a “hot idle” condition, which means that production was stopped but that the temperature of the ovens , was maintained, since cooling would damage the refractory lining of the ovens. Although Cyclops ceased producing coke at the coke plant on this date, plaintiffs’ employment with Cyclops was not interrupted. On November 21, 1980, Cyclops sold the coke plant assets to New Boston Coke Corporation (“New Boston”), which was then a wholly-owned subsidiary of McLouth Steel Corporation. (The remaining land and buildings at the Portsmouth facility were sold to an unrelated purchaser.) All of the stock of New Boston is now held by a Trustee in Bankruptcy appointed by the United States Bankruptcy Court for the Eastern District of Michigan.
Cyclops had a pension plan in effect for its salaried employees as of November, 1980 (“the Salaried Plan”). Among the special retirement benefits were the “70/80 Retirement” and the “Rule of 65 Retirement” provisions, which provide accelerated pension benefits to participants whose continuous service is broken because of certain events, including “a permanent shutdown of a division, plant, office or department, or subdivision of any of them,” provided that their years of service and age meet the requirements of the Plan (“shutdown pensions”). These provisions allow an eligible participant to receive a full retirement benefit, payable immediately upon the shutdown. The parties do not dispute that each of the twelve plaintiffs would qualify for one of the two retirement plans if his continuous service had been broken by a permanent shutdown of a division, plant, office, or department. Eligible Cyclops employees whose employment with Cyclops was terminated because of the shutdown of the open hearth and the blast furnace operations were granted plant shutdown pensions.
However, New Boston wanted experienced workers to run the coke operations. Cyclops provided it with a list of twenty-eight salaried employees, who were designated to work for New Boston following the sale. Each of the plaintiffs was on this list. Plaintiffs were told that if they refused to work for New Boston they would not receive shutdown pensions, but would be eligible only for deferred vested pensions upon reaching normal retirement age. Each of the plaintiffs went to work for New Boston.
As part of the sales agreement, New Boston agreed to assume all accrued (vested and unvested) pension liabilities of the twenty-eight employees, and Cyclops agreed to transfer $60,521 in trust assets from the Salaried Plan to the trustee of the plan which New Boston agreed to develop.
After the Pension Board denied plaintiffs’ applications for shutdown pensions, plaintiffs filed suit in the United States District Court for the Southern District of Ohio, alleging sixteen counts in their Amended Complaint. Five counts were dismissed by a Joint Stipulation of the parties on July 29, 1985. The remaining eleven counts were submitted to the court below on cross-motions for summary judgment after the parties entered into a Fact Stipulation and separate Document Stipulations. The District Court issued an Order on November 26, 1985, granting plaintiffs’ motion with respect to Count Two (entitlement to shutdown pensions) and Count Ten (entitlement to participation in the Medical Program coinciding with the Count Two pension benefits). The Order granted defendants summary judgment on all remaining counts.
Defendants appeal the District Court’s Order with respect to Counts Two and Ten. Defendants concede that the result in Count Ten follows necessarily from the result in Count Two, and so present only Count Two for review. Plaintiffs cross-appeal from the District Court’s judgment for defendants on the remaining nine counts.
II.
The first issue raised by the parties on appeal is a procedural one: what is the standard of review applicable under ERISA to decisions by plan administrators to deny benefits to particular claimants? Defendants argue that the court can look only to see whether the administrator’s decision was “arbitrary and capricious.” Plaintiffs contend that a stricter standard of review should be applied. They argue that it is inconsistent to apply the arbitrary and capricious standard when ERISA specifically imposes upon plan administrators a fiduciary duty to act “solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits” to such parties “in accordance with the documents and instruments governing the plan....” 29 U.S.C. § 1104(1)(A) and (D). Plaintiffs contend that where, as here, they are essentially suing on a contract they should not have to overcome the heavy burden imposed upon them by the use of such a deferential standard. Further, they argue, the arbitrary and capricious standard is particularly inappropriate to the Salaried Plan because the plan administrator — the Pension Board — consists of three Cyclops executives. Plaintiffs assert that Cyclops will benefit from the denial of retirement benefits to plaintiffs, and that the Board thus suffers from an inherent conflict of interest.
This Court has in the past applied an “arbitrary and capricious” standard to the review of decisions by plan administrators under ERISA to deny benefits to particular claimants. See Moore v. Reynolds Metals Co. Retirement Program for Salaried Employees, 740 F.2d 454, 457 (6th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985) (“[R]eview ... is limited to a determination of whether the trustees’ actions in administering or interpreting a plan’s provisions are arbitrary and capricious.”); Van Gunten v. Central States, Southeast & Southwest Areas Pension Fund, 672 F.2d 586, 587 (6th Cir.1982). In fact, this Court has already applied this standard of review to this very Plan. See Cook v. Pension Plan for Salaried Employees of Cyclops Corp., 801 F.2d 865, 869-870 (6th Cir.1986).
Plaintiffs argue that In re White Farm Equip. Co., 788 F.2d 1186 (6th Cir.1986), overruled sub silencio earlier cases employing the arbitrary and capricious standard. This assertion is incorrect. White Farm involved an employer in bankruptcy who, under the process of reorganization in bankruptcy, attempted to terminate certain insurance benefits under a welfare benefit plan for retired employees. The issue presented on appeal was “whether under ERISA an employer may lawfully exercise a reserved power to terminate an employee welfare benefit plan for retired nonunion employees.” 788 F.2d at 1190. The Court looked to rules of contract construction in resolving this issue. It did not decide what standard of review would apply to a decision by a plan administrator to deny benefits to employees who allegedly were qualified.
Thus, our earlier decisions establishing the arbitrary and capricious standard still control. This standard derives from the standard of review applied to union-negotiated pension trusts under section 302(c)(5) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 186(c)(5).
That section imposes a duty of loyalty on section 302 trustees by permitting employer contributions to a welfare trust fund only if the contributions are used “for the sole and exclusive benefit of the employees____” Section 1104 of ERISA imposes a similar duty of loyalty and not surprisingly the courts have applied the “arbitrary and capricious” standard under ERISA as well.
Struble v. New Jersey Brewery Employees’ Welfare Trust Fund, 732 F.2d 325, 333 (3d Cir.1984) (citation omitted).
Unlike ERISA, however, section 302 mandates that the pension fund be administered jointly by an equal number of employer- and employee-appointed trustees. See 29 U.S.C. § 186(c)(5)(B). Were we writing on a clean slate, we might well be persuaded that stricter standard of review should apply to decisions by plan administrators of employer-controlled plans established under ERISA to deny benefits to particular claimants than to similar decisions by administrators of pension funds under section 302 of the LMRA. However, despite the many arguments that can be made about the inappropriateness of applying the arbitrary and capricious standard to ERISA plans, the law is well-settled. We can find no law to support the distinction plaintiffs urge upon us. Thus, we hold that the arbitrary and capricious standard applies to decisions by plan administrators under ERISA to deny benefits to particular claimants.
III.
On the merits, defendants contend that the District Court erred in finding that plaintiffs were entitled to shutdown pensions as a result of a “permanent shutdown” of the coke plant. We find that although the District Court articulated the correct standard of review, it applied the standard incorrectly. Because there are factual issues unsuitable for summary judgment involved, we remand this issue to the District Court for further proceedings.
Sections 4.7 and 4.8 of the Salaried Plan provide for accelerated retirement benefits to employees whose continuous service is broken by reason of a permanent shutdown. Section 10.1 of the Plan provides that: “The term ‘continuous service’ as used in the Plan means service with the Company ..., whether on a salaried or hourly basis____” Joint Appendix at 139. As defined in section 10.1(e), “[a]n Employee shall incur a break in continuous service upon: ... (4) termination due to permanent shutdown of a division, plant, office or department, or subdivision of any of them____” Joint Appendix at 139. “Company” is defined in section 1.1(f) of the Plan as “Cyclops Corporation, a Pennsylvania corporation, and any successor to it in ownership of substantially all its assets____” Joint Appendix at 119. (New Boston was not a “successor” to Cyclops within the meaning of the Plan, since it purchased only the coke ovens, not “substantially all” of Cyclops’ assets.)
None of the parties dispute that the plaintiffs have suffered a break in continuous employment. Rather, they are arguing over whether this break resulted from a “permanent shutdown” of the coke plant so as to trigger the accelerated benefit provisions.
The District Court began by articulating the correct standard of review. Rather than examining the administrator’s interpretation of the Plan provisions to see whether that interpretation was arbitrary and capricious, however, the District Court interpreted the provisions itself:
The Court finds that the pension board’s interpretation of the plan was arbitrary and capricious in finding that plaintiffs were not entitled to “shutdown benefits.” The Salaried Pension Plan is clear and unambiguous. The plain and unambiguous language of the plan results in a mandated determination that the plaintiffs have met the conditions of eligibility to retire under Section 4.7 and/or 4.8 of the Plan.
The stipulated facts disclose that plaintiffs have the requisite ages and years of service with Cyclops, and that the coke works was permanently shutdown by Cyclops. It is the opinion of this Court that by the sale of the coke works to a stranger who is not a successor corporation under the terms of Sec. 1.1(f), Cyclops permanently shutdown the coke works as contemplated in the Salaried pension plan, particularly, as plaintiffs were not offered a transfer to another location owned and operated by Cyclops or its wholly-owned subsidiary or were not given the opportunity to consent to the new plan with the stranger employer. The plaintiffs have thus met the qualifications necessary to retire under the plan.
The unambiguous terms of the Salaried Plan provide that any participant is entitled to retire if there is a permanent shutdown by Cyclops, and the participant meets the other requirements of the Plan. Here, there was a permanent shutdown of the coke works by Cyclops. Cyclops, from its point of view, permanently shutdown the coke plant by selling the plant. Cyclops no longer owns the plant, and therefore it can no longer operate or run the plant. Additionally, plaintiffs were not offered a transfer to another location within Cyclops. Finally, no attempt was made to secure the voluntary agreement of the plaintiffs to transfer to the stranger company. Rather, they were forced to transfer or face economic disaster. The plan paragraphs in issue only involve the relationship of Cyclops to its salaried employees, and when Cyclops permanently shutdown its facility, the clauses protected the plaintiffs.
Joint Appendix at 402-03 (emphasis in original).
The parties present numerous arguments to us as to whether or not the sale of the coke ovens to New Boston constituted a “permanent shutdown” so as to trigger the provisions in the Salaried Plan for shutdown pensions. Defendants argue that while part of the Portsmouth facility (the blast furnace and open hearth furnaces) was shut down, the coke ovens were not, and that plaintiffs therefore were not entitled to shutdown pensions. They contend that “shutdown” must be given its literal, dictionary definition, and so must refer to an absolute “closing” of the plant, and not to a “sale.” Plaintiffs, on the other hand, contend that the plant cannot be “shut down” as to some employees, but not as to others. They assert that the District Court was correct in finding that “permanent shutdown” must be defined in terms of Cyclops’ operation of the coke works, rather than in terms of the physical operation of the works.
This Court’s duty is not to evaluate the merits of the parties’ opposing interpretations of the Salaried Plan’s provisions. Rather, we must determine whether the plan administrator acted arbitrarily and capriciously in denying plaintiffs shutdown pensions. We find, however, that the record is virtually silent as to the plan administrator’s reasons for denying plaintiffs these benefits. We have no evidence of any formal decision reached by the Pension Board regarding this matter or the interpretation it applied in making its decision. We cannot tell whether the Board’s determination resulted from a deliberate, principled reasoning process on its part, or whether the denial of shutdown pensions to plaintiffs resulted from the Board’s inaction or failure to expressly consider whether plaintiffs’ status was different from that of other Portsmouth employees granted such pensions. Therefore, we have no basis for determining whether the Board acted arbitrarily and capriciously in denying plaintiffs shutdown pensions.
In seeking summary judgment, defendants argued that the Pension Board’s decision to deny shutdown pensions to plaintiffs “reflected a deliberative process” which led to a determination “that the sale of the Portsmouth coke plant and concomitant transfer of the Plaintiffs to New Boston without interruption of their performance of work duties did not constitute a break in continuous service by reason of a permanent shutdown.” Brief in Support of Defendants’ Motion for Summary Judgment at 14. Defendants cited three documents in support of this assertion. The first, Document No. 633, is a September 29, 1982 letter from the personnel manager, Doyle E. Mutti, to plaintiff Darnell. Leaving aside the question of the relevancy of the statements of a non-member of the Board on the issue at hand, Mutti’s letter does not reveal the Board’s thinking on the matter, but simply states that because the New Boston plan was considered to be a successor to the Salaried Plan, Darnell’s “continuous service with Cyclops was not deemed to be broken upon [his] transfer.” Joint Appendix at 293. Defendants have since conceded that the termination of plaintiffs’ employment with Cyclops did constitute a break in continuous service, however. Defendants’ Memorandum Contra Plaintiffs’ Cross-Motion for Summary Judgment at 9. Document No. 636 is a letter from Cyclops’ attorney to Robert Kushner, a member of the Pension Board, dated December 20, 1982. This letter does interpret the Salaried Plan’s shutdown provisions, and concludes that plaintiffs are not entitled to shutdown benefits. We do not know whether the Board adopted the interpretation set forth in this letter. Moreover, it appears that the Board received this letter after it made its original decision to deny shutdown pensions to plaintiffs. Document No. 635 is a letter from Kushner to plaintiffs’ attorney, dated December 21, 1982. This letter contains only the curt statement that plaintiffs were denied shutdown pensions because the coke battery was not shut down, citing sections 4.7(a) and 4.8(a) of the Plan. Joint Appendix at 297.
The question of the Board’s interpretation of the shutdown provisions of the Salaried Plan is made even more cogent by plaintiffs’ allegation that they were treated differently than other similarly-situated workers. According to the parties’ stipulations, plaintiffs Sexton, Elrod, and Maynard were employed by Cyclops as Superintendent, Assistant Superintendent, and Mobile Equipment Repair Foreman, respectively, in the Yard and Transportation Department. Plaintiff Price was a Maintenance Foreman and plaintiff Varhola was Manager of Industrial Relations. Joint Appendix at 61. Thus, these plaintiffs were not formally assigned to the coke ovens, although they apparently performed most, if not all, of their duties there. Plaintiff Varhola alleged in an affidavit that three other employees who performed functions similar to those of plaintiffs were granted shutdown pensions. Two of these employees — Allard Lawson, who had been a Turn Foreman in the Maintenance Department, and John R. Dalton, who had been a General Foreman in the Maintenance Department — allegedly performed all of their duties solely in the coke plant. The third, Donald Pitts, had been a Foreman over Fuel and Utilities in the Maintenance Department, and allegedly worked solely in the steam plant, which was sold with the coke plant to New Boston. Joint Appendix at 75.
We cannot determine from the record whether these three employees were indeed similarly-situated to at least some of the plaintiffs. If they were, however, absent some reasonable explanation for the differing treatment, we believe that it would be arbitrary and capricious to grant these workers shutdown pensions, but not grant plaintiffs the same.
Because we are uncertain as to what the Board actually decided, what the Board’s motivation for its decision was, and why it granted some workers shutdown pensions while denying others similarly-situated the same benefits, we cannot tell whether the Board’s decision was arbitrary and capricious. Therefore, we remand this issue to the District Court for further proceedings.
IV.
Plaintiffs raise several issues on cross-appeal, which we now address.
First, plaintiffs alleged in their Amended Complaint that defendants were guilty of discrimination and interference with rights protected under ERISA, in violation of 29 U.S.C. § 1140, because they denied pensions to plaintiffs, but granted them to other workers similarly-situated. The District Court granted summary judgment to defendants on this issue, stating: “The record contains no material facts to support a finding that any unlawful discrimination took place.” Joint Appendix at 404.
Plaintiffs offer little support for their contention that the District Court erred. They argue solely that while other Portsmouth employees, including coke oven employees, were allowed to retire with shutdown pensions, plaintiffs were required to work for New Boston and were denied such benefits. While that may not be fair we do not believe that it constitutes a discriminatory action under section 1140. This Court discussed the meaning and legislative history of the prohibitions in section 1140 in West v. Butler, 621 F.2d 240, 245 (6th Cir.1980), noting that: “The legislative history reveals that the prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.” Plaintiffs can point to no evidence that Cyclops deliberately discriminated against these employees for the purpose of interfering with their rights under the Salaried Plan. Thus, we affirm the District Court’s judgment on this issue.
Second, plaintiffs argue that the District Court erroneously granted summary judgment to defendants with regard to plaintiffs’ request for punitive and compensatory damages. The District Court stated: “Plaintiffs’ request for compensatory damages and punitive damages is not supported. The record reveals that plaintiffs are entitled to ‘shutdown’ pensions and medical benefits flowing therefrom. Plaintiffs are not otherwise damaged.” Joint Appendix at 404-05. The District Court further found that “[njowhere in the record is there any evidence which could reasonably be found to be outrageous conduct on the part of defendants,” Joint Appendix at 405, so as to warrant imposition of punitive damages.
Although on remand plaintiffs might show that they are entitled to shutdown pensions, they have not alleged any fact which would entitle them to other compensatory damages. We need not address the District Court’s finding that defendants’ conduct did not warrant imposition of punitive damages, since we find that, as a legal matter, punitive damages are unavailable to plaintiffs.
To the extent, if any, that plaintiffs base their claim on state law, they clearly are not entitled to such damages. The Supreme Court recently held in Pilot Life Ins. Co. v. Dedeaux, — U.S. -, 107 S.Ct. 1549, 1555, 95 L.Ed.2d 39 (1987), that ERISA’s civil enforcement remedies are exclusive and so preempt state law remedies.
Nor are plaintiffs entitled to punitive damages under ERISA. In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), the Supreme Court held that section 409(a) of ERISA, 29 U.S.C. § 1109(a) (establishing liability for breach of fiduciary duty by plan administrators), does not permit recovery of extra-contractual damages by a beneficiary of a plan. Although the Court specifically declined to decide whether punitive damages are recoverable under section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3) (permitting a plaintiff to obtain “other appropriate equitable relief”), see 473 U.S. at 139 n. 5, 105 S.Ct. at 3089 n. 5, its statements in Pilot Life persuade us that it will hold they are not. It treats the statutory scheme of ERISA as one which does not intend to provide for punitive damages.
This Circuit has not yet addressed this issue. However, the Courts of Appeals which have passed on it have concluded that the statutory language and legislative history of section 502(a)(3) of ERISA prohibit recovery of punitive damages. See Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F.2d 618 (7th Cir.1987); Sommers Drug Stores Co. Employees Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1464-65 (5th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 884, 93 L.Ed.2d 837, and — U.S.-, 107 S.Ct. 1298, 94 L.Ed.2d 154 (1987); Powell v. Chesapeake & Potomac Tele. Co., 780 F.2d 419, 424 (4th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 2892, 90 L.Ed.2d 980 (1986), Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1216 (8th Cir.) (dictum), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384, and 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981). As the Sommers court noted, punitive damages ordinarily are not available under trust law in an action for a breach of a trustee’s fiduciary duty. Sommers, 793 F.2d at 1463. “Because Congress intended the interpretation of ERISA to be guided by principles developed under the law of trusts, absent express language to the contrary in the statute, we will not interpret ERISA to provide punitive damages for breach of a trustee’s fiduciary obligations where such damages are not generally available under the law of trusts.” Kleinhans, 810 F.2d at 627. We agree with the Fourth, Fifth, Seventh, and Eighth Circuits, and hold that punitive damages are not recoverable under section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3).
Third, plaintiffs contend that the District Court erred in finding that defendants did not violate 29 U.S.C. § 1106 when they transferred trust assets from the Salaried Plan to New Boston’s plan. Section 1106(a)(1)(D) prohibits a plan fiduciary from causing the plan to engage in a transaction which he knows or should know constitutes a direct or indirect use of the plan assets for the benefit of a party in interest. If on remand the District Court determines that plaintiffs were entitled to shutdown pensions, this issue will be resolved. If the Court finds that plaintiffs were not entitled to such pensions, however, then defendants’ transfer of the assets was a purely ministerial act which would not give rise to liability under this section.
In view of our remand for factual determinations, we express no opinion on plaintiffs’ two remaining allegations of error. The District Court granted summary judgment to defendants on plaintiffs’ request for severance pay, noting that “plaintiffs admit in their Brief in Opposition to Defendants’ Motion for Summary Judgment at 26, that if they prevail on their claims for Rule of 65 and 70/80 benefits, they are not entitled to severance pay.” Joint Appendix at 404. It thus did not pass on whether plaintiffs were entitled to severance pay if they did not receive shutdown pensions. If it is determined on remand that plaintiffs are entitled to plan shutdown pensions, the District Court will not need to address this issue. If plaintiffs are not entitled to such benefits, however, the District Court should pass on this issue in the first instance.
Plaintiffs also alleged that Cyclops’ Director of Corporate Insurance represented to them that if McLouth went bankrupt within five years after the sale, all of them would revert to the Salaried Plan. The District Court granted summary judgment to defendants on this issue, noting:
Cyclops is obligated under the Salaried Plan to plaintiffs for full immediate pension benefits on a plant shutdown basis as of November 21, 1980, which includes medical insurance benefits. Consequently, defendants will have discharged their duties under ERISA. Cyclops’ guarantee of benefits is therefore fulfilled by payment of the pension.
Joint Appendix at 406. If on remand it is decided that plaintiffs are not entitled to shutdown pensions, this factual dispute will have to be resolved.
V.
Accordingly, we AFFIRM the District Court’s judgment in part, and REMAND the case for further proceedings consistent with this opinion.
. The defendants in the court below were the Pension Plan for Salaried Employees of Cyclops Corporation, the three individual members of the Plan’s Pension Board, which is the "plan administrator” under ERISA, the Program of Hospital-Medical Benefits for Eligible Pensioners and Surviving Spouses of Cyclops Corporation, and Cyclops Corporation. All but Cyclops Corporation are appellants in this matter. Cyclops Corporation is the cross-appellee in the cross-appeal.
. These provisions provide, in pertinent part:
4.7 70/80 Retirement
Any Participant who has at least 15 years of continuous service and has not attained age 62 but (i) has attained age 55 and whose combined age and years of continuous service equal 70 or more, or (ii) whose combined age and years of continuous service equal 80 or more, and
(a) whose continuous service is broken by reason of a permanent shutdown of a division, plant, office or department, or subdivision of any of them ...
shall be eligible to retire on or after the Effective Date [January 1, 1976] and shall upon his retirement ... be eligible for a pension.
Joint Appendix at 122-23.
4.8 Rule of 65 Retirement
Any participant (i) who has at least 20 years of continuous service as of his last day worked (provided said last day worked is on or after January 1,1978), (ii) whose combined age and years of continuous service equal 65 or more, and (iii) whose continuous service is broken because of
(a) a permanent shutdown of a division, plant, office or department, or subdivision of any of them,
and who has not been offered a transfer to another location, shall be eligible to retire on or after January 1, 1978, and shall upon his retirement ... be eligible for a pension.
Joint Appendix at 123.
. See generally Note, Judicial Review of Fiduciary Claim Denials Under ERISA: An Alternative to the Arbitrary and Capricious Test, 71 Cornell L.Rev. 986 (1986).
. In reaching our decision, we disregard the extensive discussion by Amicus Curiae United Steelworkers of America, AFL-CIO: CLC, of the bargaining history of the "permanent shutdown" provision in its union contracts. This theory was not presented to the District Court and so is not properly made to this Court on appeal. Cf. Wright v. Holbrook, 794 F.2d 1152, 1157 (6th Cir.1986) (citation omitted) ("It is fundamental that 'parties cannot ... advance new theories or raise new issues in order to secure a reversal of the lower court’s grant of summary judgment."); Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 217 (6th Cir.1985) (citation omitted) ("The rule that this Court will not consider questions not presented below ‘applies with particular force when the new issue requires development of additional facts.’ ”).
. This section provides in pertinent part:
It shall be unlawful for any person to ... discriminate against a participant or a beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan____
29 U.S.C. § 1140.
. Under Cyclops’ severance pay policy:
1.2 An employee is not eligible for a severance allowance if he is terminated under any of the following conditions:
1.2.3 Retirement under company plan other than a deferred vested pension.
Joint Appendix at 155.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_appel1_3_2
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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 appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES v. MANN. SAME v. SIEGEL.
Nos. 6951, 6956.
Circuit Court of Appeals, Seventh Circuit.
Oct. 30, 1939.
Rehearing Denied Dec. 5, 1939, Jan. 9, 1940.
Owen A. West, of Chicago, 111., for appellant. Mann.
Jacob S. Rothstein, of Milwaukee, Wis., for appellant Siegel.
Val Nolan, U. S. Atty., B. Howard Caughran, Asst. U. S. Atty., and Paul A. Pfister, all of Indianapolis, Ind.
Before EVANS, SPARKS, and KERNER, Circuit Judges.
EVANS, Circuit Judge.
The appellants, Mann and Siegel, were indicted and tried together on charges set forth in an indictment which contained three counts, only two (one and three) of which are here involved. The third count charged a conspiracy to violate the revenue law and the first, the unlawful possession of a still set up in violation of the revenue act. Upon conviction each defendant was sentenced to the penitentiary. Each has appealed. Their appeals were heard at one time and will be disposed of in one opinion.
Upon failure of counsel for Mann to file a brief and upon Mann’s request, as an alleged pauper, this court appointed Attorney Owen West to represent him. We are indebted to him for a clear and able presentation of defendant Mann’s case.
The first count of the indictment charged unlawful and knowing possession, custody, and control of a still set up and suitable for the manufacture of intoxicating liquor, said still not being registered as required by law. Sec. 1162, 26 U.S.C.A. The third count charged conspiracy to defraud the United States of revenue, etc. Both defendants were acquitted on the second count and convicted on the first and third counts. The court set aside the conviction of Siegel on the first count, but on the third count sentenced him to imprisonment for two years and to pay a fine of $1,000. The verdict of guilty on both counts against defendant Mann was allowed to stand, and he was sentenced to three years’ imprisonment and to pay a fine of $1,000.
On these appeals, defendant Siegel challenges the sufficiency of the evidence to support his conviction on count three. He also charges a prejudicial interruption of the cross-examination of a witness by the court. In addition to the errors assigned by Siegel, counsel for Mann challenges the sufficiency of the evidence to sustain conviction on either count.
Mann was sentenced to the penitentiary for three years. The maximum imprisonment penalty which could be imposed on each of counts one and three is two years. Inasmuch as the sentence was for three years, counsel argue, and logically, that failure ' of evidence to support conviction on either count must result in a reversal of the judgment against Mann.
Is the evidence sufficient to sustain the verdict of guilt against both Siegel and Mann on count three and to sustain Mann’s conviction on count one ? Our study of. the evidence leads us to make an affirmative answer.
In reaching this conclusion and in making the following fact statement, we have accepted the Government’s version of contradicted statements, for we are under obligation to accept the jury’s judgment where veracity is in issue. Accepting this well-settled rule of law, we can only look to the record to see if any substantial testimony, not inherently unbelievable, appears, which supports the verdict.
Appellant Mann argues that inasmuch as the court set aside the verdict against Siegel on count one on evidence almost similar to that on which he was convicted, he, too, should have been freed of the charge found in this first count. The answer to this contention is — The conviction of Siegel on count one may also have been supported by competent evidence, and furthermore Mann may not complain because his confederate received a more favorable sentence than he. Mann’s guilt and sentence are not to be determined by the court’s or jury’s estimate, false or sound, of a confederate’s character or by the extent of a coconspirator’s guilty participation in the substantive offense.
Nine defendants were indicted. One was not apprehended, although his guilt was clear. He was too fleet of foot when the raid on the still was made, and he has been successful in concealing himself since. Of the remaining eight defendants, five pleaded guilty. Siegel and Mann have consistently asserted their innocence.
Mann testified in his own defense. Siegel did not. Mann’s testimony was flatly contradicted on material facts by ten witnesses. These ten witnesses were disinterested. Uncontradicted and undisputable facts also placed Mann in an embarrassing position, which necessitated explications. His attempted explanations were rather sorry and the jury may have reached the conviction that he was either a stranger to, or hardly on speaking terms with, a character called truth.
Inferences from facts may be quite as persuasive as direct or positive testimony. A jury might well have asked of Mann— Why tell so many falsehoods? Why carry title to a truck in another’s name? Why carry a false telephone number on the truck ? Why, a false business address ? Why adopt a fictitious name with a false residence on the body of your track?
Nor is direct evidence of guilt lacking. Mann left Chicago about midnight and with another party (a defendant, a Mr. Wasielewski, who pleaded guilty but who did not testify on the trial) traveled for one hundred and fifty miles on Sunday night to the location of the still. Reaching the destination about 3:30 A. M., his truck turned off the road, went through a small corn field, then over an untraveled field to “a woods.” His truck carried a valuable load of still equipment and supplies. Mann says he went solely to drive the truck back, that he was ignorant of the contents of the load, or of the purpose of the trip and of its destination. The truck load consisted of a 75 horse power boiler, two electric motors, and three water pumps, 300 pounds of cement, 200 pounds of asbestos and boiler bases, etc., and this material was hauled to its destination to repair and increase the capacity of a 1500 gallon a day still which had been operated until its boiler had blown up a few days previously.
One of the defendants said he was waiting the arrival of a truck with the new boiler and was to give warnings to the truck driver, if necessary. While thus waiting and watching, he was seized by revenue agents shortly before the truck and the defendant appeared. Another witness testified that codefendant W, who was driving the truck when the arrest was made, said he had been sent “to show Mann where to take the stuff down to the still site.” This and other statements made at this time by W in Mann’s presence, in response to pertinent inquiries as to how and why they were bringing a truck loaded (but concealed by tarpaulin) with still supplies to an out of the way place — off the road— behind a corn field — in the woods — at 3 A. M. Sunday night — were not satisfactorily explained.
As to Siegel’s participation in the conspiracy, little need be said. It may be conceded that the direct testimony connecting him with the offense is not so clear or persuasive as the testimony against Mann. There was, however, testimony showing both Siegel’s and Mann’s participation in the business of hauling sugar by trucks owned and operated by them. A jury could have found that they were both interested in the truck that carried the load of still equipment on the night in question. Siegel made the down payment of $100 when this truck was purchased. He paid for the repair to the body of the old truck which was placed on the chassis of the new truck. He paid garage bills, gas and oil charges for this and other trucks in the garage.
Of significance was a circumstance which occurred when Mann was in jail shortly after his arrest. He was endeavoring to get released on bail. He communicated with his wife, he says, but not directly. He sent a telegram to his mother-in-law, copy of which was in the Government’s possession. Therein he said, “Unable to understand delay. Ask Phil to lend money. Will pay upon release.” Defendant Siegel’s first name was Phil. Not long after sard wire was sent, Phil Siegel’s nephew, a Chicago lawyer,' put up $10,000 as bail to obtain Mann’s release. Mann explained that he meant another Phil when his attention was called to the name “Phil.” However, he had already disputed ten other witnesses on material facts and the jury was justified in assuming that Attorney Siegel of Chicago, nephew of defendant, Philip Siegel, was not acting as a volunteer in putting up $10,000 of securities to obtain Mann’s release.
The fact which is the hardest to explain to a stranger to the trial who reads the records without the trial court’s advantage of seeing and hearing the witnesses, is the presence of Mann in an out of the way place on Sunday morning at 3:30 A. M., in a truck carrying a large load of valuable still equipment, off the road, a few rods from the location of a 1500 gallon a day still.
The difficult position which defendant was in may account for his strained efforts to prove his innocence and his willingness to dispute the testimony of any one.
One fellow, a Mr. Slesur, testified that he, not Mann, was the party guilty on count one. He said he purchased the supplies and he owned the still for which the new boiler was purchased. His testimony was not persuasive. It was wholly uncorroborated. Although the material sent down was expensive, he was unable to tell from whom the boiler was purchased.
Mr. Slesur said:
“I bought those things on Ogden Avenue and the pumps I bought on Lake Street at some dealers. * * * The still cost me $3300. I borrowed the money from some friends. I'bought the boiler on credit. I don’t know the name from whom I bought the boiler. * * * I got my sugar from some friends, some Italian fellows in Chicago. I got it in Chicago at the freight yard where I picked' it up.”
A kinship apparently exists between certain crimes as it does in the conduct of criminals participating in certain crimes. Detection of such perpetrators may follow familiar lines. Conduct of a party when apprehended in the act or arrested in the vicinity of the crime is often indicative of a guilty or innocent state of mind. False statements at such time (as here made by Mann) might well be expected of a guilty party while truthful statements, even though embarrassing, will come from the lips of the innocent. Mann said, when arrested and within a few rods of the still, he knew nothing of the nature of the equipment he was hauling, thus disputing his own subsequent statement as well as that of the defendant S. He also professed innocence of the existence or location of the illicit still. He thereby disputed W who was present at that time and said, “I was along on the truck to show Mann the location of the still site.”
Night and darkness often are chosen for the commission of crime. Selection of Sunday from about midnight to 3 A. M. is in harmony with the conveyance of still equipment to the place of crime. Difficulty in locating or getting to a still (here present) is suggestive of the operation of an illicit still. The ease with which one finds his way to or from a hidden, off-the-road spot on a big truck is one of many straws which helps point the way to truth.
Possession of stolen goods gives rise to a presumption of guilt in theft cases under certain conditions. Presence near a large still in a hidden spot with a truck loaded with still accessories of large value at 3 A. M. in the morning also creates presumptions and calls for explanations. Explanations are generally matters for juries to analyze and weigh. Credibility of witnesses bears on acceptability of explanations. Here, the jury rejected defendant’s professions of innocence in the face of stubborn facts plainly pointing to his guilt. It was another case so common in criminal trials — professions of innocence by the accused opposed by indisputable facts pointing to guilt.
It is self-evident that someone supplied the money and the enterprise necessary to purchase equipment and set up and operate the still with a 1,500 gallon a day capacity. Moreover, it was no dumb clod such as fired the engine, mixed the mash, and acted as look-out for revenue agents, who conceived and executed this illegal enterprise. The jury must have realized that the execution of this enterprise necessitated the possession and delivery of large quantities of sugar, yeast, and other ingredients that make up “mash.” It necessitated the sale of liquor in violation of law — slyly, secretly, and clandestinely. All these facts the jury must have weighed, although no direct testimony established them.
Counsel for defense correctly rely upon the presumption of innocence that attends their clients throughout the trial. They properly rely heavily upon the burden of proof which rests upon the Government to establish guilt beyond a reasonable doubt by evidence which is clear and which is not as consistent with the theory of innocence. They ignore, however, the fact that evidence, and most persuasive evidence, may be other than the spoken word. Physical facts do not bend nor yield to personal interest or to selfish or interested motives. Credibility is not involved when an illicit still, secreted in an out-of-the-way place, speaks. One who asks jurors to accept his assertion of innocence in the face of the fact that he was at the site of a large illegal still at 3:30 A. M. in the morning in a truck owned by him, with hundreds of dollars of equipment therein, sent to repair a large illegal still, which had broken down, and which truck and repairs were awaited expectantly that night, by those whose task was to keep the fires burning and a sharp look-out for revenue agents, may not be disappointed if the jury accepts the physical facts and their strong inlerences instead of the words — the professions of innocence of the accused. And moreover, once they are convinced on a material fact issue that the accused spoke falsehoods, the said jury might well have rejected other testimony by the same party given, unless supported by corroborative evidence.
Nor can this — an appellate court — overestimate the advantages which the jury enjoyed in seeing and hearing the defendant Slesur. So far as direct testimony is concerned, Slesur absolved Mann from liability on count one. But in cases where there is much conflicting evidence the spoken word may not be conclusive. A witness speaks to the jury not alone through his lips. His story may be so ridiculously unbelievable, so contrary to physical facts, so imaginative as to out-fable fairy lore. If Slesur owned and operated the still, then surely the jury must have found that he falsified when he said he bought the boiler (shortly before) on credit but from one he knew not; that he bought sugar from some Italians of South Chicago whom he did not know— down “in the yards of South Chicago”— that he purchased pumps from someone unknown, but on credit — without a word of this improbable story corroborated when all could have been supported by other testimony. Well might the jury have doubted and rejected the balance of this man’s story unless corroborated. In fact, it was not merely uncorroborated, the motive for its falsity was not absent.
The trial judge in our opinion properly left both defendants’ guilt to the jury. Two cases which we have read with interest are Barton v. United States, 4 Cir., 267 F. 174; and Girgenti v. United States, 3 Cir., 81 F.2d 741. The former supports the Government’s position. The defendant may well urge the reading of the latter case. The facts in a broad sense are not dissimilar to our case. Yet there are differences, and it is the differences in each case which determine which case should be taken from the jury.
Other assignments of error, we have examined. They are not properly preserved. Neither do they impress us as substantial or prejudicial even if we agreed that the rulings were erroneous, which we do not.
The judgments are affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_summary
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED OF OMAHA LIFE INSURANCE COMPANY, Plaintiff-Counter-Defendant-Appellee, v. SUN LIFE INSURANCE COMPANY OF AMERICA, Defendant-Counter-Claimant-Appellant.
No. 89-8218.
United States Court of Appeals, Eleventh Circuit.
March 1, 1990.
Michael A. Dailey, Phears & Dailey, Nor-cross, Ga., for defendant-counter claimant-appellant.
Ben Kingree, III, Carter & Ansley, Atlanta, Ga., for plaintiff-counter defendant-appellee.
Before VANCE and KRAVITCH, Circuit Judges, and LYNNE, Senior District Judge.
Judge Robert S, Vance was a member of the panel which heard oral argument but due to his death on December 16, 1989 did not participate in this decision. This case is decided by a quorum. See 28 U.S.C. § 46(d).
Honorable Seybourn H. Lynne, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
KRAVITCH, Circuit Judge:
United of Omaha Life Insurance Company (“United”) brought an action against Sun Life Insurance Company (“Sun Life”) to recover certain insurance benefits paid to a Sun Life employee under a group insurance policy issued by United to Sun Life and its employees. In a counterclaim, Sun Life sued to recover benefits that United denied to a different employee. Both parties moved for summary judgment on both claims. Sun Life appeals from the grant of summary judgment to United and from the denial of its motion for summary judgment. Because we find that United’s claim for reimbursement presents genuine issues of materia] fact, we reverse the grant of summary judgment on that claim. We also reverse the district court’s grant of summary judgment in favor of United on Sun Life’s counterclaim and direct the court to enter summary judgment in favor of Sun Life on that claim.
I. BACKGROUND
Until January of 1986, Sun Life had maintained a group life insurance policy with Life Insurance Company of Georgia (“Life of Georgia”) covering its employees. For two years prior to January 1986, negotiations were conducted between Sun Life and United’s Sales Manager, Donald Nelson, regarding the possibility of United replacing Life of Georgia as the provider of Sun Life’s group policy. After Sun Life refused United’s 1984 proposal, United submitted another proposal in August 1985 in an attempt to duplicate as closely as possible the benefits that were provided by Life of Georgia.
Under the proposal, premiums for basic life insurance coverage for all employees were to be paid for entirely by Sun Life, and the benefits were to be based upon an employee’s salary. Supplemental coverage could be purchased separately with premiums to be paid by individual employees electing this option.
When the policy went into effect on January 1, 1986, Sun Life had only the 1985 proposal before it. It did not receive United’s Master Policy and accompanying Certificate-Booklets spelling out the terms of the policy until several months later.
II. DISCUSSION
The instant case involves a dispute over the claims of two employees, Frank Wells and James Del Guidice. The district court found that there were no material facts in dispute regarding either claim and that United was entitled to summary judgment in its favor on both. We find that the district court erred in both cases and review each in turn.
A. The Wells Claim
1. Background
Frank Wells, an employee in Sun Life’s Home Office Division, enrolled for supplemental insurance on January 4, 1986. Premiums for supplemental coverage were deducted from his paycheck by Sun Life and remitted to United. At the time he enrolled, Wells was on short-term disability leave, which had begun on November 22, 1985 and continued until his death on February 27, 1986. After Wells’ death, his widow submitted a claim to United which United honored by paying the basic benefits in the amount of $36,300 plus $53,-306.47 for supplemental death benefits plus interest. After payment, United filed this action alleging that Sun Life, acting as its agent, knowingly or negligently enrolled an ineligible employee for supplemental benefits. United claims indemnification from Sun Life for the violation of the latter’s duty to enroll only eligible employees for coverage.
2. Standards for Summary Judgment
Under Fed.R.Civ.P. 56(c), summary judgment is proper when the court determines, on the basis of materials submitted by both parties, “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The burden of establishing the absence of a genuine issue of material fact is on the party seeking summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
Once the moving party has come forward with materials in support of its motion, the party opposing the motion must demonstrate the existence of evidence that would support a verdict in its favor. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. The court must view all evidence in the light most favorable to the non-movant and must resolve all reasonable doubts about the facts in favor of the non-movant. Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). In addition, the Eleventh Circuit held in Washington v. Dugger that "if reasonable minds might differ on the inferences arising from undisputed facts, then a court should deny summary judgment." 860 F.2d 1018, 1020 (11th Cir.1988) (quoting Mercantile Bank & Trust Co. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985)). If a review of the evidence presented reveals that the non-movant has failed to produce evidence sufficient to support a jury verdict in his favor, then summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). We review the trial court's summary judgment decision de novo. See Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1508, 1513 (11th Cir.1989); Clemons v. Dougherty, 684 F.2d 1365, 1368 (11th Cir.1982).
With these standards in mind, we turn to the issues surrounding Wells' claim for supplemental benefits.
3. Agency
United contends that Sun Life's negligence in enrolling Wells for supplemental coverage for which he allegedly was ineligible is the basis of United's liability to the beneficiary. United can prevail on its claim for indemnification from Sun Life for the payment of supplemental benefits only if it can show that Sun Life was acting as its agent at the time that it enrolled Wells for this coverage.
The district court found that the question of agency was "easily answered" in the affirmative by the Georgia Supreme Court's decision in Dawes Mining Company, Inc. v. Callahan, 246 Ga. 531, 272 S.E.2d 267 (1980). In Dawes, the court had to decide whether an employer acts as the agent of the employee or of the insurance company when changing a group policy. The court noted that the agency relationship may change depending on the circumstances:
Once the group policy has been issued, the employer is the agent of the insurer in determining which persons are its employees and are thereby eligible to participate as a member of the group, Equitable Life v. Florence [47 Ga.App. 711, 171 S.E. 317 (1933)], supra, in determining which of its employees are regularly performing their duties and are thereby eligible to receive certificates of increased insurance, Cason v. Aetna Life [91 Ga.App. 323, 85 S.E.2d 568 (1954)], supra, and in determining which of its employees are employed full time, Pilot Life v. McCrary [103 Ga.App. 549, 120 S.E.2d 134 (1961)], supra. These cases are governed by the rule that the employer who obtains a group insurance policy covering its employees is the agent of the insurance company for every purpose necessary to make effective the group policy, and thus the insurance company has imputed knowledge of facts which the employer knows. Cason v. Aetna Life, supra; Piedmont Southern Life v. Gunter [108 Ga.App. 236, 132 S.E.2d 527 (1963)], supra.
However, in selecting a group insurer, in selecting a policy, in selecting coverages to be afforded by the insurer, the employer is negotiating with the prospective insurer; there is no contract in force; and the employer cannot be the agent of the insurer. It has been said that "`When procuring the policy [and] obtaining applications of employees... employers act not as agents of the insurer but for their employees or for themselves.'" Thigpen v. Metropolitan Life [57 Ga.App. 405, 195 S.E. 591 (1938)], supra; Blaylock v. Prudential [84 Ga.App. 641, 67 S.E.2d 173 (1951)], supra. Hence, we find that the relationship which is decisive in this case is that in procuring the group policy and obtaining employee applications, the employer acts as an agent of the employees where the employees will be contributing toward payment of the premium.
Id. at 533-34, 272 S.E.2d 267.
We agree with the district court that Dawes is controlling. At the time it enrolled Frank Wells for supplemental coverage, Sun Life was no longer in the process of selecting a group insurer or negotiating over types of coverage; it was clear that United would be its insurer as of January 1, 1986. Instead, when enrolling Wells for one of the types of coverage offered by United, it was implicitly determining that Wells was eligible for that insurance.
In support of its contention that it was acting as Wells’ agent and not the insurers’, Sun Life points to the language in Dawes stating that when “obtaining applications of employees” an employer acts as an agent of the employees. We agree with United that the process of obtaining applications is distinct from the process of enrolling employees for supplemental coverage. Because Wells was automatically covered by the basic insurance of the group policy, no application was necessary. Consequently, this language in Dawes is inap-posite.
Sun Life also points to the fact that it sent the memorandum sheet on which the employee was to indicate his desire for supplemental coverage in December, before coverage began. This, we find, is irrelevant. At the time the memorandum was sent, it was already clear that United would be providing coverage as of January 1, 1986. In fact, the memorandum refers to “The new Supplemental Life Rates to be effective January 1, 1986.” Thus, it is clear that United was not engaged in the process of negotiating the contract, but was rather involved in carrying it out.
For the foregoing reasons, we find that the district court was correct in determining that under Dawes, as a matter of law, Sun Life was acting as United’s agent when it enrolled Wells for supplemental coverage.
4. Negligence of Sun Life
Although we find that Sun Life was acting as United’s agent, United can only prevail on its motion for summary judgment if it shows that there are no material facts in dispute as to whether Sun Life was negligent in enrolling Frank Wells for supplemental coverage and that it is entitled to judgment as a matter of law. We do not find that United has made such a showing.
United’s policy went into effect on January 1, 1986. It is undisputed that when Wells enrolled on January 4, Sun Life had United’s 1985 proposal in its possession. It is also undisputed that United’s Master Policy as well as the Certificate-Booklets that set forth the terms and conditions of the actual agreement were not delivered to Sun Life until some time after Wells’ death.
Under the subject heading “General Information,” the 1985 proposal contained the following language:
All persons actively working a minimum of 30 hours a week on a full-time basis who have completed the prescribed qualifying period will be eligible for insurance.
The proposal did not contain a definition of the term “actively working” as used to determine eligibility. In contrast, the Certificate-Booklets, that arrived some months later, make clear that an “active employee” is a person who is working at his regular job at his place of employment. Furthermore, and central to this case, the booklets specify that only “eligible employees,” that is, employees actively at work, may be enrolled for supplemental coverage. They contain the following language:
Eligible Employees
You are eligible on January 1, 1986, if you were hired on or before January 1, 1986. If you are hired after January 1, 1986, you are eligible on the day you begin active employment with the Policyholder.
You are eligible as long as:
(a) you are a permanent full-time employee of the Policyholder; and
(b) you are and continue to be actively employed.
Active employment and actively employed means working 32 hours a week at your:
(a) regular job; and
(b) customary place of employment.
When Your Insurance Begins (Supplemental Life Insurance)
If you make a written request before, on or within 90 days from the day you become eligible, you will become insured on the later of:
(a) the day you become eligible; or
(b) the day we receive your request, provided you are actively at work on that day. If you are not actively at work, your insurance will begin on the day you return to active work.
The language of the policy is clear, and had the booklet with this language been available to Sun Life at the time it enrolled Wells for supplemental coverage we would have no difficulty in concluding that Sun Life was negligent in enrolling Wells for supplemental coverage. See Smith v. Founders Life Assurance Company of Florida, 175 Ga.App. 262, 333 S.E.2d 5, 6 (1985). The crux of this dispute is what the parties should have understood the term “active employment” to mean between the time the policy took effect and the time that the booklets defining that language were received by Sun Life.
The district court found that the non-delivery of the booklets was irrelevant. It stated that Sun Life should have known, based on the language in the 1985 proposal, that an employee must be actually at work in order to be eligible for supplemental coverage. It stated that “ ‘[ajctively working’ means what it says. Someone on disability leave is not actively working thirty hours a week. Whether Sun Life considered Mr. Wells to be an active employee and continued to pay him full salary is irrelevant.” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of America, No. 1:87-CV-1272-JTC, slip op. at 6 (N.D.Ga.1989).
We find, however, that Sun Life has presented evidence from which a jury could find that at the time Wells enrolled, Sun Life could reasonably have been confused as to the eligibility of its employees for supplemental coverage. During negotiations preceding January of 1986, the parties had an understanding that the United policy would replicate Sun Life’s current policy with Life of Georgia as closely as possible. The Life of Georgia policy defined an “employee” as follows:
“Employee” means
(a) a person working for the Employer on a regular full-time permanent basis for thirty (30) hours or more per week and who is compensated by the Employer for such work
(c)a person who is an Employee as defined in (a) except for being temporarily unable to work 30 hours per week because of Injury or Illness. This [exception] applies only if the Employer continues such person as a full-time employee in Your payroll records.
Life of Georgia’s summary plan description states that:
[i]f your employer grants you a temporary leave of absence, insurance may be continued for a maximum of three months, if premiums are paid and the group policy remains in force. Insurance may be continued beyond three months in the case of illness or injury. If the sick leave plan established by your employer exceeds three months [sic],
Karen Supthin, Sun Life’s Personnel Manager, testified that sick leave or “short term disability” could extend up to six months without jeopardizing an employee’s “active status.” She stated that Sun Life employees on short-term disability are treated “as an active employee in that they remain on our payroll, and their benefits remain the same.” Only after six months is the employee converted from short-term to long-term disability status. At this point, the employee is no longer considered active and his eligibility for the group plan changes.
Gloria Van Dyke Lee, former Personnel Director at Sun Life, stated that it was her understanding that under the Life of Georgia policy, an employee with basic insurance could apply for supplemental benefits even after he became disabled or was on sick leave “because they were continued as an active employee. Everything continued whether it was employee paid or company paid.”
According to Sun Life, its understanding of the requirements for supplemental coverage was based on representations made by Donald Nelson, the Sales Manager negotiating the contract for United. Deposition testimony from Nelson provides evidence from which a jury could conclude that Sun Life’s construction of the term “actively working” was justified by Nelson’s representations. For instance, Nelson testified that United’s practice is to ask what the prospective insured’s employment policies are with regard to active and inactive employees. He also stated that United would accept Sun Life’s test for determining when an active employee’s sick leave had extended so long that he or she was no longer regarded as active.
United argues that Sun Life confuses the right of employees such as Wells, who were on short-term disability, to be enrolled under United’s policy for a continuation of their Life of Georgia basic coverage and the right of such employees to enroll for supplemental benefits which were not offered by Life of Georgia. United states that the only reason Wells, though not at work, was eligible for basic coverage was because United was required by Georgia Insurance Department Regulation Section 120-2-10.10 to provide Wells with the same coverage that he received under Sun Life’s prior group plan with Life of Georgia. It contends that at no time did it waive the requirement that an employee be “actively working” to be eligible for coverage.
Although United may have had no intention of offering supplemental coverage to employees in Wells’ position, we note that no distinction was made in the 1985 proposal between basic and supplemental insurance and that testimony from Sun Life personnel officers concerning the availability of supplemental coverage under the Life of Georgia plan demonstrated confusion as to what their employees’ coverage had been under that plan.
The parties dispute at length the meaning of Nelson’s statement in his deposition that “all active full-time employees would be given an opportunity to enroll for their basic amount of life insurance and a supplemental amount of insurance.” Sun Life contends that this statement leaves the distinct impression that Wells was eligible for supplemental insurance, as he was still considered “active” in their books. The district court agreed with United, however, that the statement supports United’s position. It found that Nelson was implying that active employees would be able to enroll for supplemental coverage in the future, after they met the eligibility requirements set out in the policy. It further stated that the word “active” in Nelson’s mind “may connote an employee who is actually working full time.” United of Omaha, slip op. at 8 (emphasis added). While we do not pass judgment on the import of Nelson’s statement, we are convinced that it is ambiguous and points to the confusion surrounding the parties’ understanding of employee eligibility for supplemental coverage.
In granting summary judgment in United’s favor, the district court found that the language setting forth eligibility requirements in the 1985 proposal was unambiguous and that Nelson had never suggested that a disabled non-working employee could enroll for supplemental coverage. We find that in so concluding, the court was forced to rely heavily on its own interpretation of what the parties must have agreed to. Our own review of the evidence convinces us that genuine issues of fact remain as to whether Sun Life’s belief in Wells’ eligibility for supplemental coverage was a reasonable one given the nature of the negotiations between the parties and the absence of a written policy. This determination, requiring the weighing of evidence and decisions regarding credibility, is one that should be left to a jury. Accordingly, we reverse the grant of summary judgment in favor of United on the question of Sun Life’s negligence in enrolling Wells for coverage and remand for further proceedings consistent with this opinion.
B. The Del Guidice Claim
The Del Guidice claim does not concern the difference between the parties’ understanding of the policy provisions before the booklets arrived, but rather points up a distressing lack of clarity in the policy as printed.
Del Guidice was an employee in Sun Life’s Career Division. Although he was covered by the same Master Policy as Wells, the terms of that policy, as it applied to him, were set out in the Certificate-Booklet covering employees in the Career Division. There is no dispute that Del Guidice was an active Sun Life employee at the time that United’s policy went into effect on January 1, 1986, and that he was covered by the basic life insurance plan. Del Guidice went on short-term disability leave in February 1986. He turned 60 in March 1986. Del Guidice returned to work in August and again went on disability in September 1986. He died in January 1987, less than six months after commencing his September leave.
United refused to honor Del Guidice’s widow’s claim for benefits. In a letter to Mrs. Del Guidice, it explained its reasons as follows:
Information in file shows your husband last worked on 9-26-86 due to disability. Under the group policy it states in part under the When Your Insurance Ends Provision of the policy, “coverage would end at midnight on the earliest of the day in which you are no longer eligible under the policy. You are no longer eligible when you are disabled.”
Your husband’s coverage terminated on September 30, 1986. Since he was over age 60 at the time he became disabled he would not be eligible under the continuance of life insurance if you become totally disabled provision of the policy. Since he was no longer eligible under the policy when he died, we are unable to provide the life benefits.
When United refused to pay the claim of $35,254.15 following Del Guidice’s death, Sun Life paid it in accordance with its obligation under a union collective bargaining agreement. Sun Life then filed a counterclaim against United to recover the money-
1. Policy Provisions
The policy provisions in the Career Employees booklet referred to in United’s letter refusing the Del Guidice claim are as follows:
When Your Insurance Ends
Your insurance will end at midnight on the earliest of:
(a) the day the policy ends;
(b) the day any premium for your insurance is due and unpaid;
(d) the day in which you are no longer eligible under the policy.
If you are eligible because of your employment, you will no longer be eligible when:
(a) you resign or retire;
(b) you go on leave of absence or strike;
(c) you are dismissed, disabled, suspended, laid off, locked out or are not working due to work stoppage;
(d) you are no longer in an eligible class; or
(e) you do not satisfy:
(1) the requirement for hours worked; or
(2) any other eligibility conditions in the policy.
The booklet’s definition of “eligibility” was identical to the definition in the Home Office employee’s booklet and is set out above in our discussion of the Wells claim.
The booklet covering Del Guidice also contained the following language:
Continuance of Life Insurance If You Become Totally Disabled
If you become totally disabled, your life insurance will not end in accord with the When Your Insurance Ends provision, but will be continued without payment of premium provided:
(a) the disability began while you were insured under this provision;
(b) the disability began before you reach [sic] age 60; and
(c) proof of the disability is given to us as described in the following paragraph.
The meaning of the letter sent to Mrs. Del Guidice and the policy provisions it refers to are the subject of this dispute. Specifically, the parties disagree on the reason for United’s refusal of benefits. Discerning that reason proves to be no easy task.
The district court stated that “Del Guid-ice’s coverage ended when he failed to be ‘actively employed ’ as that term was defined in the Policy.” United of Omaha, slip op. at 14 (emphasis added). However, it also stated that “United refused payment on the grounds that Mr. Del Guidice had become totally disabled on the date his leave began and that he was then over the age of 60.” Id. at 13 (emphasis added). Elsewhere, the court states that when he “became disabled in September of 1986, [his] coverage ended and he was ineligible for continuation of coverage.” Id. at 15 (emphasis added).
Confusion over the exact grounds for termination of coverage is also evident in United’s brief before this court, where United offers a variety of reasons for its denial of coverage. Contrary to its letter to Mrs. Del Guidice, in which it indicates that her husband’s coverage was stopped because he was disabled, United states in its brief that Del Guidice’s coverage was terminated when he “failed to meet the active work requirement.” It thus suggests that there is no distinction between “disability” and “failure to meet the active work requirement.” It then suggests that there is no distinction between “disabled” and “totally disabled” when it states that Del Guidice was not covered under the continuation of coverage provision because “the policy provided for a continuation of coverage in the event the employee became disabled provided the disability began before the employee reached age 60.” Finally, it states that the only exception to the termination of insurance for an employee “is when the employee is totally disabled.” This conflation of the terms “disabled” and “totally disabled” is particularly troubling given that “totally disabled” is a term of art, defined in the policy to mean “a disability which completely and continuously keeps you from performing any work or engaging in any occupation.” The term “disability” is not defined.
Sun Life claims that United refused to pay Del Guidice’s claim on the grounds that he had become totally disabled on September 29, 1986 and was at that time over the age of 60. It then argues that United did not demonstrate that Del Guidice was totally disabled within the meaning of the policy. Under the policy, proof of total disability is required in the form of initial notice of total disability by the insured within twelve months followed by physician certification.
2. Interpreting the Policy Provisions
Because this case is a diversity action governed by Georgia law, we apply principles of that state’s law to interpret the provisions of the insurance contract covering Del Guidice. See Georgia R.R. Bank & Trust Co. v. Fed. Deposit. Ins. Corp., 758 F.2d 1548, 1551 (11th Cir.1985). Under Georgia law, construction of an insurance contract is a question of law for the court. Giles v. National Union Fire Ins. Co. of Pittsburgh, Pa., 578 F.Supp. 376, 378 (D.C.Ga.1984); O.C.G.A. 13-2-1 (1982). Georgia law also makes clear that “the process of contract construction... is composed of three steps.” Travelers Ins. Co. v. Blakey, 255 Ga. 699, 342 S.E.2d 308, 309, on remand, 180 Ga.App. 520, 349 S.E.2d 474 (1986). First, the court must decide whether the contract is ambiguous. Then, where ambiguity exists, the court must apply the rules of construction governing interpretation of insurance contracts. Finally, if ambiguity still remains, the court must submit the issue to the jury. United States Fire Ins. Co. v. Cowley & Associates, 183 Ga.App. 478, 359 S.E.2d 160, 162 (Ga.App.1987); Travelers, 349 S.E.2d at 476.
On close examination, we find that the provisions of the contract that United relies on to deny coverage to Del Guidice are ambiguous. Our construction of the contract resolves the ambiguity, however, and leaves no question requiring submission to a jury.
а. Disability
The principal reason given by United for terminating Del Guidice’s coverage is that he was disabled. The meaning of the word “disability” as it is used in the provision for “When Your Insurance Ends” is not defined in the policy. United appears to equate disability with failure to meet the “actively at work” requirement. Under this reading of the term, the first day an employee stays home from work because of sickness, United would consider him “disabled” within the meaning of the policy, and accordingly, coverage would end. That is, there is no coverage for any employee who does not die at work or before missing any days of work. At oral argument, United was unable to explain any way in which its policy differentiates between sick leave and disability.
Sun Life contends that under United’s policy, “disability” is not equivalent to sick leave, but means “total disability,” a condition in which an individual is unable to perform any work or engage in any occupation. Sun Life equates total disability with long-term disability and argues that because Del Guidice was ill for less than six months, he was, by definition, not totally disabled.
In deciding which party’s interpretation is correct, we are guided by principles of construction that Georgia applies to insurance contracts. This court has held that in Georgia, “construction of insurance contracts begins with the premise that the policy must ‘be construed so as to give effect to the intentions of the parties. All other rules of contract interpretation and construction are subservient to that principle.... ’” National Hills Shopping Ctr., Inc. v. Liberty Mut. Ins. Co., 551 F.2d 655, 657 (5th Cir.1977) (quoting Tennessee Corp. v. Hartford Accident and Indemnity Co., 463 F.2d 548, 551 (5th Cir.1972)). In addition, it is an established rule of Georgia law that, with respect to insurance contracts, “ambiguities... must be construed strongly against the carrier, and an insurance policy must be construed to provide coverage unless the contrary clearly appears.” Garmany v. Mission Ins. Co., 785 F.2d 941, 945 (11th Cir.1986) (summarizing Georgia cases so holding). In particular, exclusions from coverage sought to be invoked by the insurer are to be strictly construed against the insurer unless they are clear and unequivocal. First Georgia Ins. Co. v. Goodrum, 187 Ga.App. 314, 370 S.E.2d 162, 163 (1988).
We find it inconceivable that Sun Life would have agreed to a policy whereby an individual, who remains an employee of the company, loses coverage as soon as he is not at his place of employment. We agree with Sun Life that “disabled” must be read to mean “totally disabled,” that is, a disability which completely and continuously prevents the employee from engaging in any occupation. We find that it is reasonable to construe the contract such that an employee’s coverage ceases when he is no longer physically able to engage in his occupation. It is not unusual for group policies to link extension of coverage to the insured’s continued employment with the employer offering the policy. Indeed, “[n]early all group insurance contracts provide either that at the termination of the employment or at a certain fixed period of time thereafter the insurance will automatically cease to be effective.” 1 J. Appleman, Insurance Law and Practice § 121 at 375 (1981); see also Shands v. Nationwide Life Insurance Co., 250 F.Supp. 627, 629 (N.D.Ga.1965), aff'd, 355 F.2d 103 (5th Cir.1966) (referring to general rule that coverage under group policy terminates automatically with the termination of employment).
b. The “actively at work” requirement
The eligibility requirements for Career Division employees state that to be eligible for insurance, an employee must be working 32 hours a week at his regular job and customary place of employment. According to United, coverage for Del Guidice terminated when he was no longer “actively employed.” We find that the requirement of “active employment” as used for purposes of termination of coverage is ambiguous. It does not distinguish between those parties who fail to meet the “active work” requirement because they are on vacation and those parties who fail to meet the requirement because they are working only part-time or have permanently left work. As with disability, United appears to argue that the “active work” requirement disqualifies an employee as soon as he does not show up at his place of business. Sun Life argues, on the other hand, that the “active employment” requirement is superseded when an employee is on short-term disability, and that this is defined by Sun Life to begin five days after an employee is out sick and to extend for six months. It is undisputed that Sun Life has an internal policy of continuing existing coverage for employees who are on short-term disability.
As noted above, where provisions of an insurance contract are ambiguous or subject to doubt, the interpretation most favorable to coverage of the insured will prevail. We agree with Sun Life that the “active work” requirement cannot be construed to terminate coverage for employees who are out on short-term sick leave. As the court stated in Morris v. Mutual Benefit Life Insurance Company, 258 F.Supp. 186, 190 (N.D.Ga.1966), “it would be unreasonable to assume that the parties intended a contract whereby any regular employee would be excluded during any week in which he did not work 30 hours because of illness, vacation, etc.”
Having held that the contract covering Del Guidice allows for termination of coverage due to disability only in the event that the disability is total, we must now decide whether this case should go to trial on the question of whether Del Guidice was totally disabled when he ceased work in September of 1986.
We decline to remand the case for trial because we find that United has not put the extent of Del Guidice’s disability at issue as a disputed question of fact. Sun Life has offered evidence to show that at the time Del Guidice died, he had been out of work for less than six months and was thus on short-term disability leave. He had not been terminated from employment, but remained listed as an active employee of Sun Life, was on its payroll, and received his paycheck. Not only has United offered no evidence to show that Del Guidice was totally disabled when he went on sick-leave in September of 1986, but United has made it clear that under its interpretation of the contract, the extent of Del Guidice’s disability is irrelevant.
United had an opportunity to offer proof on the issue of Del Guidice’s disability in response to Sun Life’s motion for summary judgment and it declined to do so. Because United has come forth with no proof of Del Guidice’s total disability, we reverse the grant of summary judgment in favor of United on the Del Guidice claim and direct the district court to enter summary judgment in favor of Sun Life in the amount of $35,254.15.
REVERSED and REMANDED.
. United initially refused to pay Wells' claim for supplemental benefits, but later reconsidered its position,
. The parties dispute the exact date of arrival. United contends that the booklets were distributed in the Spring of 1986. Sun Life contends that they received the booklets in September of 1986.
. Despite United's contention that the proposal was a "sample booklet containing the material terms and conditions of the policy,” it is clear that the proposal differed from the booklets. For instance, the number of hours that constituted full-time employment was changed from 30 in the proposal to 32 in the booklets.
. Regulation § 120-2-10.10 entitled “Group Coverage Discontinuation and Replacement” mandates that every employee validly covered under a prior plan on the date of discontinuance be covered by the succeeding carrier. These regulations also spell out the method for determining the scope of the prior carrier’s benefits.
. For instance, Gloria Van Dyke Lee testified that the employees under the Life of Georgia plan "always had the
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_typeiss
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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. George Kaithovalappil LOUIS, Defendant-Appellant.
No. 70, Docket 86-1210.
United States Court of Appeals, Second Circuit.
Argued Sept. 17, 1986.
Decided March 11, 1987.
David Eames, New York City (Kotite Kaplan Bodian & Eames, New York City, of counsel) for defendant-appellant.
Michael Bromwich, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., Warren Neil Eggleston, Asst. U.S. Atty., New York City, of counsel) for appellee.
Before OAKES, MINER and MAHONEY, Circuit Judges.
MINER, Circuit Judge:
George Kaithovalappil Louis appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Duffy, J.) following a jury trial. Louis was convicted of conspiracy to import heroin, 21 U.S.C. §§ 846, 963 (Count One); importing heroin, 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(A) and 18 U.S.C. § 2 (Count Two); and attempting to distribute heroin, 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count Three). Louis contends that the trial court erroneously admitted into evidence a co-conspirator’s conviction and two tape-recorded conversations, that he was not brought to trial within the time required by the Speedy Trial Act, and that he was improperly sentenced under standards applicable to those convicted of drug trafficking in Hong Kong.
I. BACKGROUND
The events giving rise to the conviction and sentence subject of this appeal had their genesis in Hong Kong in late 1984, when defendant-appellant Louis struck up a friendship there with one Nuri Lama. The two men developed a close relationship and, when Louis indicated a need for money, Nuri Lama made him the following proposition: “If you are interested, then you have to get me some people for me to smuggle drugs for me in the United States.” Transcript at 95. Nuri Lama described the drugs as “illegal medicine,” and his proposition included the caveat, “if you get caught you might go to jail.”
Louis, a citizen of India, thereafter attempted to recruit couriers for the enterprise by posting a notice on the bulletin board in the lobby of the Hong Kong hotel in which he was living. The notice offered a round trip to New York to anyone having a valid United States visa. Garden Lawson, a Canadian national on a business trip to the Orient, responded to the invitation in March of 1985. Louis told him that he would be paid for smuggling “cancer medicine,” which had not been approved by the U.S. Food and Drug Administration, to New York. Reassured that no narcotics would be involved, Lawson agreed to make the trip.
At a meeting on March 27, 1985, at his hotel, Louis gave Lawson four closed cannisters containing almost six and one-half ounces of heroin together with several condoms he had received from Nuri Lama. In accordance with Lama’s instructions, Louis directed Lawson to place the cannisters in the condoms and insert them in his rectum. Stepping into a nearby bathroom, Lawson ignored the direction, placed the cannisters inside his underwear and then proceeded with Louis to the Hong Kong airport. At the airport, they were met by Nuri Lama, who gave Louis some cash and an airline ticket for delivery to Lawson. After he received these items, Lawson boarded an airplane, bound for New York City, where he was to check into a hotel and await further instructions.
When Lawson left the airplane during a stopover in Seattle, Washington on March 27, 1985, he was detained by a Customs Inspector, whose suspicions led to the search of his person and the inevitable seizure of the heroin he was carrying. Following his arrest, Lawson revealed the details of the smuggling scheme to agents of the Drug Enforcement Administration (“DEA”) and agreed to make a controlled delivery of the heroin in New York City.
Upon his arrival in New York on March 28 in the custody of the DEA, Lawson called Hong Kong as directed and left a message for Louis that he soon would be checking into one of the hotels named in a list Louis had given him. After he arrived at the hotel, Lawson received a call from Louis, who told him that he would be contacted shortly. Later that evening, he was called by Milan Lama, who subsequently came to the hotel at the request of Nuri Lama to pick up the heroin. The encounter between Lawson and Milan Lama at the hotel was monitored and recorded by DEA agents, who arrested Milan after he accepted the heroin package and paid the $1,500 balance due Lawson for smuggling services rendered.
Milan Lama and Garden Lawson were convicted after a jury trial in late May and early June of 1985 before Judge Weinfeld in the Southern District of New York. Nuri Lama entered the United States in June 1985 and was arrested on a charge arising from an unrelated heroin transaction. His plea of guilty in the Northern District of Iowa was accepted in satisfaction of all pending charges, including those arising from the courier scheme in which Louis was involved. Louis was arrested in Hong Kong on an extradition warrant, waived extradition and arrived in New York on September 7, 1985. He entered a plea of not guilty on September 9, 1985.
Apparently dissatisfied with his then-assigned counsel, Louis forwarded a pro se motion for the substitution of counsel to Magistrate Buchwald on October 18, 1985. Although Louis certified that he had sent copies of the motion to his counsel and to the United States Attorney’s office, the copies were not received by the addressees. The original motion papers were not received in Judge Duffy’s chambers until November 19, 1985, and the government did not learn of the motion until advised by the Judge’s chambers in mid-January. A hearing on the issue of new counsel was held on January 23, 1986, and the court thereafter excluded from Speedy Trial Act time requirements the entire period commencing with the filing of the motion.
The trial began on March 25, 1986 and concluded on April 1, 1986, with a verdict of guilty on all three counts. The government’s witnesses were Athal Williams, a United States Customs Inspector at the Seattle airport; Arthur Hubbard, a DEA agent; Nuri Lama; and Garden Lawson. Lawson testified on direct examination that he had been tried, convicted and sentenced to a three-year term for the same offenses with which Louis was charged. Louis rested without calling any witnesses or offering any evidence. The government then introduced two tape recordings of telephone calls from Louis to Thomas Sage, a heroin dealer. Nuri Lama identified the voices on the recordings and testified that the calls were placed at his request to determine whether Sage desired to purchase heroin, referred to as “carpets” in the telephone conversations.
Prior to imposing sentence, the trial judge undertook an extended discussion of his social meeting with a judge of the High Court of Hong Kong. He explained that the Hong Kong judge had given him a “feel” for the kinds of sentences imposed for drug trafficking in Hong Kong and had advised him that the minimum sentence there for “anything over a minor amount” is twenty years. The trial judge observed that the information he received during the social meeting made it “obvious” to him why Louis had waived extradition.
II. DISCUSSION
A. The Evidentiary Challenges
Lawson testified on direct examination that he was tried, convicted and sentenced for the same offenses for which Louis was on trial. Louis argues that this testimony enabled the jury to infer that his defense of lack of knowledge of the nature of the contraband was rejected by another jury. Relying on United States v. Miranda, 593 F.2d 590 (5th Cir.1979), and United States v. Fleetwood, 528 F.2d 528 (5th Cir.1976), Louis contends that it was improper and prejudicial to place evidence of the conviction of his co-conspirator before the jury.
While it is impermissible for a prosecutor to suggest to a jury that the conviction of a testifying co-conspirator is evidence that a defendant on trial is guilty, Miranda, 593 F.2d at 593-94, or to emphasize, through repetitive and cumulative questioning, the guilty pleas of witnesses as substantive evidence of the guilt of a defendant charged with similar crimes, Fleetwood, 528 F.2d at 533-35, it is acceptable for the government to elicit, for proper purposes and in a proper manner, an accomplice witness’ testimony regarding his conviction, United States v. Aronson, 319 F.2d 48, 51-52 (2d Cir.), cert. denied, 375 U.S. 920, 84 S.Ct. 264, 11 L.Ed.2d 164 (1963). Proper purposes include disclosure of matters damaging to the credibility of a witness and contradiction of any inference that the government is concealing a witness’ bias. United States v. Borello, 766 F.2d 46, 57 (2d Cir.1985); United States v. Edwards, 631 F.2d 1049, 1051 (2d Cir.1980); United States v. Singh, 628 F.2d 758, 761 (2d Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 609, 66 L.Ed.2d 496 (1980).
The testimony of Garden Lawson regarding his conviction and sentence was elicited in a proper manner and for proper purposes. It was given in response to four brief questions and permitted the jury to make an informed assessment of the witness’ credibility. It also served to apprise the jury of derogatory information in the possession of the government. With regard to the claim that the jury could infer that the defense of lack of knowledge was rejected previously, it is sufficient to note that Lawson’s testimony included no mention of that defense.
Louis’ challenge to the admissibility of his two tape-recorded conversations with Sage concerning the sale of heroin (“carpets”) rests on the grounds that the tapes were: (1) improperly authenticated; (2) erroneously admitted as similar act evidence; and, (3) the subject of misleading instructions by the court.
The tapes were properly authenticated by Lama, who identified the voices of both Louis and Sage. Fed.R.Evid. 901(a). In the absence of any other specific challenge, see United States v. Fuentes, 563 F.2d 527, 535 (2d Cir.1977), this evidence of authentication was sufficient. Although Louis concedes that similar act evidence would be admissible in light of his defense of lack of knowledge, Fed.R.Evid. 404(b), he contends that the tape recordings of his conversations with Thomas Sage do not constitute such evidence. This contention is predicated upon his assertion that the “carpets” offered for sale were not known to Louis to be heroin. Indeed, Nuri Lama testified only that he asked Louis to place the telephone call to offer “carpets” for sale to Mr. Sage. He admitted, however, that he used “carpets” as a code name for heroin. Louis obviously knew that Nuri Lama was not in the carpet business, and it is significant that he expressed concern that Sage speak to him over a secure telephone line. The inference is inescapable that Louis was offering Sage drugs on behalf of Lama. This inference is bolstered by the jurors’ conclusion that Louis imported drugs into the United States on behalf of Lama, a conclusion they were required to reach before turning to the similar act evidence. Transcript at 372. Finally, the judge’s standard charge regarding similar act proof clearly was adequate, and Louis waived any challenge to it by failing to object to the charge when given. United States v. Sun Myung Moon, 718 F.2d 1210, 1226 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984).
B. The Speedy Trial Act
Louis’ contention that he was not brought to trial within the time mandated by the Speedy Trial Act, 18 U.S.C. § 3161 et. seq., is predicated upon his claim that the district court improperly excluded from the time requirements the entire period that elapsed between the time he filed the motion for substitution of counsel with Magistrate Buchwald — October 18, 1985— and the time of the hearing on the motion — January 23, 1986. Other than his challenge to this exclusion, Louis apparently concedes that he was brought to trial in a timely fashion.
Although the Speedy Trial Act requires that a defendant be tried within seventy days of the filing of an indictment or of a defendant’s first appearance in court, 18 U.S.C. § 3161(c), various exclusions from the seventy-day calculation are permitted. Among these are periods of “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h) (1)(F). Louis asserts that his “effort” to substitute counsel was not a motion because of irregularities in the service and filing of the papers. He contends that, since the papers were improperly filed with the Magistrate and not received by the government, there is no basis upon which to determine that there was a pending motion in the Speedy Trial Act sense.
The district court’s determination that a motion was pending has ample support in the record. A motion can be “filed” with a judge, Fed.R.Civ.P. 5(e), and even an oral motion is sufficient to invoke the time exclusion provided by the Speedy Trial Act. United States v. Nixon, 779 F.2d 126, 130-31 (2d Cir.1985); United States v. Cobb, 697 F.2d 38, 43 (2d Cir.1982). Despite the informality of the motion and Louis’ failure to serve it on the government, the district court entertained the application and gave Louis the benefit of a hearing. In point of fact, the motion was successful; new counsel entered the case on behalf of Louis, filed pretrial motions to dismiss and conducted the trial. All delay between the filing of the motion to substitute counsel and the conclusion of the hearing on that motion properly was excluded from the Speedy Trial Act’s seventy-day limitation. Henderson v. United States,—U.S.-, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986).
C. Improper Considerations in Sentencing
The following extensive quotation is taken from the sentencing minutes:
THE COURT: Call it chance, or whatever you want to call it, about three weeks ago I had a phone call from some folks I had not seen in 13 or 14 years. They invited me to their home because they were having as a houseguest a judge from overseas. It turned out to be a judge from the High Court in Hong Kong. I discussed this case with him without knowing, George Louis, that you had been arrested in Hong Kong for distribution, or, how do they phrase it, trafficking in a dangerous drug, and that you had waived extradition to this country so as to avoid prosecution for the Hong Kong offense. I didn’t know that. In fact, I didn’t know that until the presentence report was given to me two or three days ago.
In connection with the discussion of your case with this Hong Kong judge — I never mentioned your name or the exact facts of the case — all I wanted to do was get a “feel” as to what kind of sentences the Hong Kong courts were handing out for trafficking in dangerous drugs — the judge was good enough in giving me that “feel.” He stated to me that, unlike other crimes where the sentence is directed at the criminal, in Hong Kong trafficking in drugs is directed at the crime, and for a first offense, for a minor amount of narcotics, the defendant will get three years; for a first offense there, for anything over a minor amount, such as the amount involved in this case, a defendant will get a minimum of 20 years.
The reason that you waived extradition is pretty obvious, became obvious to me at that point. I asked why and he told me why. The authorities in Hong Kong recognize that there is a certain amount of shipment worldwide of narcotic drugs from Hong Kong. They consider it to be a nefarious business. They are right, it is. It is the heroin that comes from Hong Kong that ends up in some junkie’s veins here in the streets of New York. Right now some young man or worn an is dying right here in the City of New York, dying from heroin that came from the same source as the heroin in this case.
Unlike the Hong Kong authorities, who just think it is a nefarious business, here the impact of heroin smuggling from Hong Kong is far greater and has to be treated more severely than situations where people who might be junkies are dealing in small amounts. You were dealing in a major amount of narcotics; you were actually facilitating the pipeline of heroin into this country and you were doing it for one thing — greed.
Sentencing Hearing Transcript at 6-8.
Immediately following the above statement, the district court sentenced Louis to a term of imprisonment of twenty years on Count One, twenty years on Count Two and fifteen years on Count Three. The court directed that the sentence imposed on Counts Two and Three run concurrently with the sentence imposed on Count One. In addition, Louis was sentenced to special parole for life on Count Two, to commence upon expiration of the prison sentence. 21 U.S.C. § 960. The maximum sentence on each count was imprisonment for twenty years. Garden Lawson and Milan Lama had been sentenced to prison terms of three years and five years respectively.
It has long been established that an appellate court has no control over a sentence that is within the limits imposed by statute, unless the sentence is informed by improper or inaccurate information. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); United States v. Harris, 558 F.2d 366 (7th Cir.1977). Although the sentence imposed by the district court judge was within statutory bounds, Louis had no opportunity to challenge the accuracy of the information furnished to the district judge by an unknown judicial officer from Hong Kong. Aside from the fact that the district judge appeared to rely almost entirely on sentencing standards established in a different jurisdiction, there was no opportunity for the defendant to determine whether those standards applied to him or whether they existed at all. “Ex parte conversations or correspondence with experts, law teachers or otherwise, is unfair and can be misleading. The facts given may be incomplete or inaccurate, the problem can be incorrectly stated or other matters can be incorrectly stated.” Denecke, The Judiciary Needs Your Help, Teachers, 22 J. Legal Educ. 197, 203 (1969), quoted in Matter of Fuchsberg, 426 N.Y.S.2d 639, 648 (N.Y.Ct.Jud.1978). While consulting an outside expert regarding matters sub judice is not entirely prohibited, “[t]he interests of all parties are protected if, in each case where an expert is consulted, the parties are informed of his identity, the substance of his advice and allowed an opportunity to respond. Failure to observe such safeguards creates the possibility of unfairness.” Matter of Fuchsberg, 426 N.Y.S.2d at 648. This, in fact, is the rationale behind Fed.R.Crim.P. 32(c)(3) relating to disclosure of information in presentence reports and the right to challenge inaccuracies contained therein. Fed.R. Crim.P. 32(c)(3)(D).
In view of the foregoing and of all the circumstances, we deem it best that the matter be remanded for sentencing before another judge.
CONCLUSION
We affirm Louis’ conviction, vacate his sentence on all counts and remand the matter for resentencing before another district judge.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
HERMINIO MADERA, Inc., et al. v. MADERA.
No. 3183.
Circuit Court of; Appeals, First Circuit.
March 15, 1937.
Enrique Tgaravidez, of San Juan, P. R. (Juan B. Soto, of San Juan, P. R., and John W. Blakeney, Jr., of Boston, Mass., on the brief), for appellants.
L. E. Dubon, of San Juan, P. R. (B. F. Sanchez and Dubon & Ochoteco, all of San Juan, P. R., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
This is a suit to recover on a promissory note and foreclose a mortgage on real estate by which the note is secured. The District. Court of San Juan gave judgment for the "defendant; on appeal the Supreme Court of Puerto Rico held that the plaintiff was entitled to recover; and the defendant has appealed. We shall refer to the parties plaintiff and defendant as they appeared in the trial court.
The essential fact’s are not in controversy. The defendant and his three brothers, Jose, Manuel, and Bautista, were in business together as partners, and also through three corporations which they controlled. The business appears to have been of rather extensive character. Controversies arose between them and several lawsuits were instituted. There were many points of disagreement. The parties got together and made an agreement of complete settlement dated March 3, 1931. It is a rather elaborate multilateral contract executed by each of them individually, by the partnership, and by each of the three corporations. The present controversy involves the construction of this agreement, the defendant’s contention being that the plaintiff has no right to enforce the note and mortgage because he and his assignor are themselves in default under the agreement.
The agreement contains five preliminary clauses which state the parties and the circumstances which have led to the making of it, and that it is the intention to settle all matters in dispute. Then follow twelve clauses stating what is agreed. In the first of these clauses disposition is made of certain shares of stock of the Combate Tobacco Corporation, and the dismissal of certain suits is provided for. In the second clause Jose Madera in consideration of $12,000 relinquishes to the present defendants all his rights in Riera & Co., Inc., and in the partnership of Herminio Madera and Hermano (brother), this relinquishment not to be effective until the consideration shall have been paid. The third clause specifies the manner in which this payment shall be made, viz., $2,000 by a contemporaneous transfer of certain tobacco, the receipt of which is acknowledged, and-$10,000 to be paid in gold on January 1, 1936, with interest at 8 per cent, per annum. The fourth clause relates to the security for the postponed payment, that it shall be secured by a mortgage on certain real estate, the title to which stood in the name of one of the corporations, and by an assignment from Herminio Madera of a contract which he held to purchase other real estate. This clause also contains provisions requiring Herminio to reduce prior incumbrances on the mortgaged . property to specified amounts. The fifth clause requires Herminio Madera to pay interest and taxes on the mortgaged property and to keep it insured; and the sixth clause provides that on his failure to do so the principal sum shall forthwith become due, and the mortgagee shall be entitled to proceed to the collection of it. In the seventh clause Herminio Madera agrees to obtain the execution and registration of the mortgage “to secure Mr. J-ose Madera the $10,000 agreed upon under the terms above mentioned” etc. (Italics supplied.) The eighth clause requires Jose Madera and Manuel Madera, the plaintiff, upon execution and registration of the mortgage to dismiss all law suits in which they were plaintiffs and provides for the exchange of mutual releases between all parties. The final paragraph of this clause is what has led to the present controversy. It reads as follows:
“It is mutually agreed between Jose Madera, Manuel Madera and Herminio Madera that upon the execution of the mortgage in the Registry of Property in favor of Jose Madera on the Tobacco Palace-Bldg., subject to the terms of this covenant, and the inscription of the said mortgage without defects and as provided for in this clause that Jose Madera and Manuel Madera will deliver to Herminio Madera duly endorsed in blank the shares of stock that they may now hold of the corporation Alonso Riera & Co., Inc.”
The ninth clause provides for the dissolution of the partnership, Herminio Madera assuming all its debts. By the tenth clause the name of a corporation, having the same name as the partnership, is to be changed so that it shall not appear that Jose Madera is associated with it. By the eleventh clause Herminio Madera agrees not to use the words “and Hermano” in such a way as to indicate that Jose is associated with him. The twelfth and last clause reads as follows:
“Twelfth: That the defaulting party shall forfe'it and pay to the other of them the sum of $2,000.00 as liquidated damages ; and then that these presents shall become void.”
The mortgage was duly executed and registered by the defendants about two weeks after the contract of settlement; it is dated March 16, 1931. The note reads in part as follows:
“We will severally pay to Jose Madera Rivero, or to his order, on the first day of January One Thousand Nine Hundred Thirty-Six, at the Royal Bank of Canada (San Juan, Porto Rico Branch), the sum of Ten Thousand Dollars ($10,000.00) in gold of the legal tender of the United States of America, which sum shall bear interest, from this date, and up to the date of payment in full thereof, at the rate of eight per cent (8%) per annum, which interest we severally oblige ourselves to pay monthly on the first day of every month at the Royal Bank of Canada (San Juan, Porto Rico Branch) or at stích other place in Porto Rico which the holder of this note may designate. This note is executed by us, for value received; and in further consideration of the stipulation contained in an agreement executed by us and other persons, on the third of March, One Thous- and Nine Hundred and Thirty-One, before the notary of San Juan, Puerto Rico, Mr. Luis E. Dubon, recorded under the number 3,505 of the Registry of Affidavits of the said notary.
“This note is secured by a mortgage executed by the maker herein Tetuan Tobacco Leaf, Inc., on the Property known as the Tobacco Palace Building, situated at numbers 58, 60 and 62 on Tetuan Street, in the City of San Juan, Puerto Rico, as it appears by the Deed of Mortgage authorized on this date before the Notary of San Juan, Puerto Rico, Mr. Luis E. Dubon, and which Deed is number 22 of the Protocol of Deeds of said notary, corresponding to the present year, and this note is executed and delivered by us subject also to all terms stipulated in the aforesaid Deed of Mortgage.” .
“Default in the payment of the interests agreed upon and as provided herein as well as noncompliance with any of the conditions stipulated in the Deed of Mortgage referred to in the foregoing paragraph, shall produce the maturity of this obligation, and the holder thereof may proceed to its collection without previous demand or notice.” (Italics supplied.)
The various dismissals, releases, transfers, etc., called for by the agreement appear to have been, for the most part, at least, duly performed, though it is claimed that Herminio failed to reduce the prior obligations on the mortgaged property in accordance with his agreement to do so. The shares of stock in Riera & Co., Inc., which were to have been delivered by Jose Madera and Manuel Madera have never been delivered; they are in default under that clause of the agreement. The original mortgagee, Jose, assigned his interest in the mortgage and note to Manuel. For default in payment of interest and other defaults Manuel brought suit to collect the note and foreclose the mortgage. The defendant alleged that he was not entitled to do so because of the breach of the agreement by himself and Jose in failing to deliver the Riera stock.
The case is governed by the Civil Code of Puerto Rico, § 1053: “In mutual obligations none of the persons bound shall incur default if the other does not fulfill or does not submit to properly fulfill what is incumbent upon him. From the time one of the persons obligated fulfills his obligation the default begins for the other party.”
The District Judge held that the provisions of the agreement relating to the giving of the mortgage by Herminio, and the delivering of the stock by Jose and Manuel, constituted mutual obligations; that this mutuality extended to the mortgage and note while in the hands of the original parties or persons taking with notice, as Manuel clearly did; and that the plaintiff was not entitled to foreclose the mortgage or collect the note because of his own and his assignor’s breach of the agreement. The Supreme Court of Puerto Rico held that the agreements, relating to the giving of the mortgage and note, and to the transfer of the stock, were not “mutual obligations,” under section 1053. It also held that, “The covenant, on the part of Jose Madera as to the endorsement and delivery of stock was, at most, a negligible part of the consideration and his failure to endorse and deliver the stock was but a partial and immaterial failure of consideration.” It accordingly held that the failure of the plaintiff or his assignor to deliver the Riera stock did not bar enforcement by them of the mortgage and note.
■ The note and mortgage were given in performance of the fourth clause of the agreement. When executed and delivered they constituted independent agreements by the makers of them, and were not “mutual obligations” with any other clause of the contract, under section 1053, unless made so by express terms. The recital in the note that it was given in consideration of the agreement of settlement did not tie the two together so as to condition the note and mortgage on performance by payee of all his obligations under the settlement agreement. Explicit language or very unusual circumstances would be required to show such an intention with respect to an agreement as inherently independent as a promissory note and a mortgage securing it A recital that a mortgage and note are made in consideration of an agreement does not have that effect. See Powell & Powell v. Greenleaf & Currier, 104 Vt. 480, 162 A. 377, collecting cases.
There was ample consideration for the mortgage and note aside from the transfer of the Riera stock, viz., releases, dismissals of suits, transfers of property rights, etc., were involved. These are specified in the agreement preceding the provision relating to the note and mortgage. The agreement refers to them when it explicitly states that the note and mortgage are given “upon the terms above mentioned” which terms did not include the transfer of t-he Riera stock. It is clear, we think, that the plaintiff’s failure to transfer the stock was only a partial failure of consideration, and did not make the note and mortgage unenforceable at common law. No authorities have been cited which indicate that a different result would be reached under the Puerto Rico Code. There is no reason to suppose that the Supreme Court of Puerto Rico was in error on this point. The citations from the commentators relied on by the appellant do not apply where a clause in a bilateral contract has been performed and has resulted in the creation of an independent obligation.
The purpose and effect of the twelfth clause of the contract are hot entirely clear; but we think it was intended to provide against a breach' in limine, if one of the parties should refuse to make the settlement which had been agreed upon. The provision “and then that these present shall become void” would hardly be applicable to any other situation.
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs.
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_casetyp1_7-2
|
E
|
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".
UNITED STATES v. HOBAKER.
No. 6111.
Circuit Court of Appeals, Seventh Circuit.
June 12, 1937.
Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst, to Atty. Gen., Keith L. Seegmiller, Atty., Department of Justice, of Washington, D. C., and Howard L. Doyle, U. S. Atty., and James P. Dillie, Asst. U. S. Atty., both of Springfield, 111., for the United. States.
Joseph O. McKiernan, of Chicago, 111., and Howard C. Knotts, of Springfield, 111., for appellee.
Before EVANS and SPARKS, Circuit . Judges, and LINDLEY, District Judge.
EVANS, Circuit Judge.
Does the evidence support the finding which the District Court made, that appellee was totally and permanently disabled June 3, 1919, when he was honorably discharged from the United States military service ? This is our only question.
Appellee, a young man of health and strength, enlisted in 1917, saw service, contracted amoebic dysentery, was discharged in 1919, failed thereafter to pay his insurance premiums, grew physically worse from the aforementioned disease, and finally became permanently and totally disabled. These facts are not seriously disputed.
Neither he, nor the medical men who treated him, realized for years that he was suffering from amoebic dysentery, when he was in the service or when he was discharged. His work record after his discharge is that of a worthy, ambitious youth, who made a distinctly commendable effort to earn a living. The same record discloses blind and unintelligent groping by the medical practitioners who failed to diagnose or properly treat the veteran for the illness from which he suffered. There is no conflict over most of the facts, and we may assume as conclusively established, that appellee’s physical troubles are traceable to amoebic dysentery contracted while he was in the service. Such conflict as exists arises over the extent of his disability when he ceased to pay premiums back in 1919.
Each side has advanced rather strong and persuasive facts to support its position. If this fact issue were one for us to determine as an original proposition,' we could readily justify a finding that appellee was not totally disabled when discharged from the service. But the District Court found otherwise — found that he was totally and permanently disabled June 3, 1919. His hospital record rather persuasively supports this finding. He was in the hospital much of the time after 1921.
March, 1922 — Hospital in Chicago —remained 2 months.
July, 1922— “ —remained until June, 1923 — approximately a year.
July, 1923 — Hines Hospital • — a month. Operated on.
Sept., 1923 — Chicago Hospital —remained until December, 1923.
April, 1924 — Hines Hospital —remained a year.
July, 1925 — Hines Hospital —remained until October, 1925.
April, 1926 — Hines Hospital —remained the rest of the year.
Oct., 1928 — Hines Hospital —remained until Jan., 1929.
Oct., 1932 — Hines Hospital —for month of October.
There is, in addition, support for the court’s findings in the opinion of at least one doctor.
On the other hand, the evidence shows that for two or three years after his discharge, appellee worked and earned a living from his labors. It is fairly inferable, however, that he did so at the sacrifice of his health. The record rather strongly supports the view that appellee struggled worthily, and in fact nobly, in a losing fight against a disease that grew worse each year, and, partly at least, because he was too game to give up. The volumes of the Federal Reporter and Federal Supplement, are replete with cases quite similar, although differing slightly in their facts. It would serve no useful purpose to add to the many reported cases to set forth all the evidence upon which our conclusion is based. Suffice it to say that each case must stand upon its own facts; that precedent can hardly be controlling where our study is confined to the ascertainment of the facts. Our disposition of the appeal turns upon the weight of the trial judge’s finding. Although appellee’s work record for three years after his discharge is against him and would well have supported a contrary finding, we are not prepared to say that it is here conclusive and there was no substantial evidence to support the District Court’s finding.
The refusal of the trial court to receive certain record evidence was not, in view of the other evidence, prejudicial.
The judgment is affirmed.
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_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
DOHERTY, CLIFFORD, STEERS & SHENFIELD, INC., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. MERCK & CO., Inc., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
Nos. 17295, 17296.
United States Court of Appeals Sixth Circuit.
April 4, 1968.
James H. McGlothlin, Washington, D. C., Charles E. Buffon, Washington, D. C., John M. Stocker, Rahway, N. J., on brief, for Merck.
Philip K. Schwartz, New York City, Davis, Gilbert, Levine & Schwartz, New York City, on brief; Philip K. Schwartz, Paul B. Gibney, Jr., New York City, of counsel, for Doherty, etc.
Miles J. Brown, Federal Trade Commission, Washington, D. C., James Mcl. Henderson, General Counsel, J. B. Truly, Asst. Gen. Counsel, Frank Gregory, Attorney, Federal Trade Commission, Washington, D. C., on brief, for respondent.
Before O’SULLIVAN, PHILLIPS and CELEBREZZE, Circuit Judges.
PHILLIPS, Circuit Judge.
The Federal Trade Commission held that the manufacturer of Sucrets, a throat lozenge, and its advertising agency disseminated false advertisements in violation of Sections 5 and 12 of the Federal Trade Commission Act. The manufacturer, Merck & Co., and the advertising agency, Doherty, Clifford, Steers & Shenfield, Inc., have filed petitions to review the cease and desist order issued by the Commission.
We affirm and enforce the final order of the Commission in its entirety.
1) The Order Against Merck
Merck manufactures and sells Sucrets and Children’s Sucrets. The Commission found that there is no substantial difference between these two products insofar as medical usefulness is concerned. Children’s Sucrets have a wild cherry flavor designed to appeal to children.
Merck sponsored television commercials which were created by Doherty. The visual sequence depicted silhouettes of a man’s or child’s head with a flame in the throat. The flame was shown starting low in the neck and flaring up into the throat. Each commercial showed the word “Sucret” or “Children’s Sucret” entering the mouth and going down the throat as the flame flickered and was extinguished. The “Children’s Sucret” commercial depicted a “recovered” child, who had been in severe pain before taking the lozenge, playing normally after having consumed the lozenge.
Accompanying the visual sequence of the adult’s flaming throat was the following oral representation concerning Sucrets :
“When sore throat strikes and brings fiery pain, what do you do for relief? Millions of people depend on Sucrets for relief of minor sore throat pain. Individually foil wrapped, remarkable Sucrets lozenges relieve sore throat pain fast and kill even Staph and Strep germs with a special pain relieving antiseptic, Hexylresorcinol. So, when minor sore throat strikes and brings fiery pain, Sucrets relieve sore throat pain and kill even Staph and Strep germs. Sucrets are fast. Within' minutes you can talk, swallow, even smoke in comfort. So, when sore throat strikes, relieve pain fast and kill even Staph and Strep germs.”
The following oral representation accompanied the picture of the extinguishment of the flame in the child’s throat:
“When your child has a sore throat. * * * It can make you feel helpless. What do you do to relieve the pain? If he’s too young to gargle * * * and you want something more effective than candy cough drops * * * try new Children’s Sucrets * * * specially flavored for youngsters * * * by the makers of regular Sucrets. Children’s Sucrets contain hexylresoreinol — the gentle antiseptic. And, Children’s Sucrets relieve pain fast and help fight infection. These lozenges are made especially for children. Look: When minor sore throat strikes and brings burning pain * * * Children’s Sucrets gently * * * safely * * * take care of the pain * * * and help fight infection. In no time at all * * * your child’s like himself again. So next time your child has sore throat * * * if he’s too young to gargle * * * and you want something more effective than candy cough drops * * * Relieve pain fast * * * help fight infection. Get new Children’s Sucrets!”
The Commission found these commercials to be misleading in material respects and held that they constituted false advertisements within the meaning of the Federal Trade Commission Act. The Commission adopted in substantial part the findings of fact of its hearing examiner, but made certain modifications. Excerpts from these findings, as modified, are set forth as Appendix A.
We hold that these findings of fact are supported by substantial evidence on the record considered as a whole and that the inferences drawn by the Commission are reasonable and permissible.
The final order of the Commission, which is somewhat broader than the order proposed in the initial decision of the hearing examiner, contains the following directions against Merck:
“It is ORDERED that respondent Merck & Co., Inc., a corporation trading as Quinton Company or under any other name, and its officers, agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of throat lozenges or any similar preparation, do forthwith cease and desist from, directly or indirectly:
“1. Disseminating, or causing to be disseminated, by means of the United States mails or by any means in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, any advertisement which represents directly or by implication that ‘Sucrets’ or ‘Children’s Sucrets’, or any other preparation of similar chemical composition or properties, by virtue of their hexylresorcinol content, or otherwise:
“(a) Will reach, kill or have any effect upon germs contributing to an existing throat infection, or otherwise that they are effective in the treatment of throat infection.
“(b) Will provide relief of the pain of sore throat in excess of temporary relief of minor pain.
“2. Disseminating, or causing to be disseminated, by the United States mails or by any means in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, any advertisement which misrepresents directly or by implication the efficacy or therapeutic value of any throat lozenge or similar preparation.
“3. Disseminating, or causing to be disseminated, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of any such preparation, in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, any advertisement which contains any of the representations prohibited by Paragraphs 1 and 2 hereof.”
Merck attacks this order as being broader than warranted by the facts and urges that in no event should the Commission’s order be broader than that recommended by the hearing examiner. The order proposed by the hearing examiner sought only to prohibit Merck from representing that its throat lozenges “(a) [w]ill kill or render ineffectual germs in the throat tissues that are contributing to an existing throat infection; (b) [w]ill afford permanent or long lasting relief of sore throat pain.”
Merck asks the Court to substitute the examiner’s order for that of the Commission. As said by the Supreme Court of another litigant: “Respondents made no appeal here from some of the findings as to their guilt. Having lost the battle on the facts, they hope to win the war on the type of decree.” Federal Trade Commission v. National Lead Co., 352 U.S. 419, 429, 77 S.Ct. 502, 509, 1 L.Ed.2d 438.
The rule is well established that the Commission’s findings of fact in the area of trade and commerce are entitled to be given great weight. The Commission is permitted to draw reasonable inferences from the evidence and its findings are conclusive if supported by substantial evidence. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; J. B. Williams Co. v. Federal Trade Commission, 381 F.2d 884 (6th Cir.); Libbey-Owens-Ford Glass Co. v. Federal Trade Commission, 352 F.2d 415 (6th Cir.).
Reviewing courts are admonished that in cases involving allegedly deceptive advertising the Commission’s judgment is to be accorded especial deference. Federal Trade Commission v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 13 L.Ed.2d 904; Libbey-Owens-Ford Glass Co. v. Federal Trade Commission, supra, 352 F.2d 415, 417 (6th Cir.).
It is the function of the Commission to determine “[t]he meaning of advertisements or other respresentations to the public, and their tendency or capacity to mislead or deceive, * * * ” Carter Products, Inc. v. Federal Trade Commission, 323 F.2d 523, 528 (5th Cir.). This Court has said that “[t]he Commission is not bound to the literal meaning of the words, nor must the Commission take a random sample to determine the meaning and impact of the advertisements.” J. B. Williams Co. v. Federal Trade Commission, supra, 381 F.2d 884, 890 (6th Cir.). The fact that an advertiser made its representations in good or bad faith is not determinative of whether such statements are deceptive and misleading. Koch v. Federal Trade Commission, 206 F.2d 311 (6th Cir.).
The reviewing court’s limited scope of inquiry in false advertising cases is particularly appropriate when dealing with representations of the effectiveness of proprietary drugs. Substantial deference to the Commission’s findings is required not only by the agency’s expertise in interpreting advertisements but also by the great interest in protecting and informing the self-medicating consumer. “Fraudulent misrepresentations of the curative value of nostrums not only operate to defraud purchasers but are a distinct menace to the public health. There are none so credulous as sufferers from disease.” In evaluating the tendency of advertising to deceive, the Commission is bound to protect the public in general, the unsuspecting as well as the skeptical. Exposition Press, Inc. v. Federal Trade Commission, 295 F.2d 869, 872 (2d Cir.), cert. denied, 370 U.S. 917, 82 S.Ct. 1554, 8 L.Ed.2d 497.
Both the hearing examiner and the Commission found that Sucrets can kill some bacteria in the saliva in the mouth and throat. Yet, they were in agreement that notwithstanding the ability of this product to kill some germs on contact, Merck’s advertising claims were highly deceptive, because Sucrets are not of any substantial medical benefit in curing an existing sore throat. Thus, the ability to kill germs on the surface of the throat lacks real significance.
The Commission was well supported in its determination that the implication of the advertising was that Sucrets will cure existing sore throats, including “strep” throat.
The evidence supports the following conclusions by the Commission: (1) that, regardless of whether Sucrets can kill germs on the surface of the throat, they will not kill such bacteria in a manner that is medically significant; (2) that Sucrets cannot effectively attack viruses which cause a viral sore throat; and (3) that Sucrets do not cure or help to cure an existing throat infection.
Contrary to the obvious implications of the misleading advertisement that Sucrets will “kill even Staph and Strep germs,” the evidence supports the Commission’s conclusion that Sucrets will not cure “strep” throat. Streptoecal throat infections are regarded as a major illness because of the serious consequences that may ensue in the absence of effective treatment. Evidence was introduced showing that a primary hazard of a child’s “strep” throat is the subsequent development of acute rheumatic fever or acute nephritis.
In Colgate the Supreme Court reiterated that the Commission has wide discretion in remedying unfair or misleading commercial practices:
“It has been repeatedly held that the Commission has wide discretion in determining the type of order that is necessary to cope with the unfair practices found, e. g., Jacob Siegel Co. v. Federal Trade Comm’n, 327 U.S. 608, 611, 66 S.Ct. 758, 759, 90 L.Ed. 888, and that Congress has placed the primary responsibility for fashioning orders upon the Commission, Federal Trade Comm’n v. National Lead Co., 352 U.S. 419, 429, 77 S.Ct. 502, 509, 1 L.Ed.2d 438. For these reasons the courts should not ‘lightly modify’ the Commission’s orders. Federal Trade Comm’n v. Cement Institute, 333 U.S. 683, 726, 68 S.Ct. 793, 815, 92 L.Ed. 1010.” 380 U.S. at 392, 85 S.Ct. at 1046.
Where the Commission’s order is attacked as overly broad, the question on review is whether the Commission chose a remedy “reasonably related” to the violations which it found. Sandura Co. v. Federal Trade Commission, 339 F.2d 847, 860 (6th Cir.). We hold that the Commission’s order is reasonably related to Merck’s misleading representations of both the therapeutic efficacy of Sucrets as well as Sucrets’ capacity to relieve pain.
While the manufacturer complains of the order’s breadth, it is noteworthy that the cease and desist order is confined to misrepresentations concerning throat lozenges or similar preparations. An order of the Federal Trade Commission must be sufficient in its terms to prevent harmful and misleading practices in the future. Only the least sophisticated offender would be deterred by an order limited to the precise illegal practice as it existed in the past. “If the Commission is to attain the objectives Congress envisioned, it cannot be required to confine its roadblock to the narrow lane the transgressor has traveled; it must be allowed effectively to close all roads to the prohibited goal, so that its order may not be by-passed with impunity.” Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081.
Merck further contends that since its use of the “flame in throat” commercial was discontinued before the complaint was filed, the order should be set aside or modified. “Abandonment of the illegal conduct does not render the controversy moot.” Carter Products, Inc. v. Federal Trade Commission, supra, 323 F.2d 523, 531 (5th Cir.).
In short, we hold that the Commission chose a remedy as to Merck which is reasonably related to the violations it found. Sandura Co. v. Federal Trade Commission, supra, 339 F.2d 847, 860 (6th Cir.). We hold that the Commission did not abuse its discretion in the fashioning of its cease and desist order against Merck.
2) The Order Against the Advertising Agency
The final order of the Commission contains the following provisions directed against Doherty, Merck’s advertising agency:
“It Is Further Ordered that respondent Doherty, Clifford, Steers & Shenfield, Inc., a corporation, and its officers, agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of throat lozenges or any similar preparation, do forthwith cease and desist from, directly or indirectly:
“1. Disseminating, or causing to be disseminated, by means of the United States mails or by any means in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, any advertisement which represents directly or by implication that ‘Sucrets’ or ‘Children’s Sucrets,’ or any other preparation of similar chemical composition or properties, by virtue of their hexylresorcinol content, or otherwise:
“(a) Will reach, kill or have any effect upon germs contributing to an existing throat infection, or otherwise that they are effective in the treatment of throat infection.
“(b) Will provide relief of the pain of sore throat in excess of temporary relief of minor pain.
“2. Disseminating, or causing to be disseminated, by the United States mails or by any means in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, any advertisement which misrepresents directly or by implication the efficacy or therapeutic value of any throat lozenge or similar preparation: provided, however, that it shall be a defense hereunder that respondent neither knew nor had reason to know of the falsity or deceptive capacity of such advertisement.
“3. Disseminating, or causing to be disseminated, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase of any such preparation, in commerce, as ‘commerce’ is defined in the Federal Trade Commission Act, any advertisement which contains any of the representation prohibited by Paragraphs 1 and 2 hereof.” (Footnotes omitted.)
The Commission held that the advertising agency was an active participant in the preparation of the advertisements and that the agency knew or had reason to know that Merck’s claims were false or deceptive.
Doherty urges that it acted only as agent for its client, relying in good faith on the information furnished by Merck. Doherty asserts that having used every available source to assure itself of the accuracy of Merck’s claims, there was nothing else the advertising agency could have done. In substance, Doherty contends that there is no substantial evidence from which the Commission could have found that the agency knew or should have known that Merck’s claims were false or deceptive. For these reasons Doherty seeks to have the Commission’s order set aside and the complaint dismissed as to the agency.
The proper criterion in deciding in a case of this kind as to whether a cease and desist order should issue against the advertising agency is “the extent to which the advertising agency actually participated in the deception. This is essentially a problem of fact for the Commission." In order to be held to be a participant in such deception, the agency must know or have reason to know of the falsity of the advertising. Carter Products, Inc. v. F. T. C., supra, 323 F.2d 523, 534 (5th Cir.).
The commission held that among the obligations of Doherty as an advertising agency under its agreement with Merck, Doherty was to “offer general marketing consultation for both new and existing products,” “formulate advertising Plans” and “prepare layouts and copy for advertisementsthat Doherty’s function was to “originate advertising ideas that “the advertising at issue, therefore, is the product of both respondents jointly”; that the advertising agency “developed and put into final form the commercials involved in this proceeding”; and that “it is the final form of these commercials from which the falsity of the advertising may reasonably be imputed.”
We hold that the record in this case demonstrates that the advertising agency participated actively in the deception; Carter Products, Inc. v. F. T. C., supra, 323 F.2d 513, 534 (5th Cir.); and the Commission’s findings of fact to this effect are supported by substantial evidence.
To be aware of the true extent of the therapeutic qualities of Sucrets and Children’s Sucrets, the advertising agency needed to do nothing more than to read the packaging labels and instructions for use, which are set forth as Appendix B to this opinion. The advertising prepared by Doherty went far beyond the more modest claim appearing on the labels and instructions.
The protestations of innocence on the part of the advertising agency are refuted convincingly by a document in the record described as “Proposed 1962 Marketing Plan Sucrets Antiseptic Lozenges” prepared by Doherty. This document outlines an ambitious advertising program aimed at selling Sucrets directly to the “self-medicating” market, described as “the middle-lower socio-economic group,” and designed to encourage mothers to buy Children’s Sucrets for their children. In Appendix C to this opinion appear selected quotations demonstrating the affirmative role of the advertising agency in promoting a program to create in the minds of the “self-medicating” consumer the impression that Sucrets will kill germs, cure sore throat, including “strep” throat, and alleviate “fiery” throat pain.
We find substantial evidence in the record to support the Commission’s conclusion that the advertising agency knew or should have known the falsity of these claims.
Doherty challenges paragraph two of the Commission’s order directing that it cease and desist from disseminating any advertisement which misrepresents directly or by implication the efficacy or therapeutic value of any throat lozenge or similar preparation. We find that the advertising agency is protected adequately by the closing proviso of this paragraph: “provided, however, that it shall be a defense hereunder that respondent neither knew or had reason to know of the falsity or deceptive capacity of such advertisement.”
The order of the Commission is affirmed and enforced.
APPENDIX A
EXCERPTS FROM COMMISSION’S FINDINGS OF FACT
“21. Through the use of said advertisements, respondents have represented, directly and by implication, that ‘Sucrets’ and ‘Children’s Sucrets’, by virtue of their hexylresorcinol content, will unqualifiedly reach, kill, or render ineffectual, germs, including streptococci and staphylococci in the throat tissues, that are contributing to an existing throat infection, and that said products are effective in relieving severe sore throat pain.
“22. Hexylresorcinol is the principal active ingredient in both products. Each lozenge has 2.4 mgs. in a 2.5 gram tablet. The concentration is thus approximately one part hexylresorcinol to 1,000 parts of other ingredients. Experiments performed at the Merck Institute of Therapeutic Research established that the concentration of ‘Sucrets’ ingredients in saliva during normal use is between 5 and 20 percent, with the average being close to 10 percent. The concentration of hexylresorcinol in the saliva during normal use is, therefore, approximately one part hexylresorcinol to 10,000 parts other material.
“23. Hexylresorcinol in 1 to 10,000 concentration is highly bactericidal against organisms known to be pathogenic, including betahemolytic streptococci and staphylococcus aureus, and has antibacterial effects on other bacteria.
“24. Other ingredients in the products, such as menthol, anise oil and methyl salicylate, also have antibacterial effects but not as extensively as the hexylresorcinol.
“25. Consistent with the experiments performed with hexylresorcinol, and experience with other of the ingredients found in the products, laboratory tests performed at the Merck Institute of Therapeutic Research using concentrations encountered in use established that on contact the products will kill known pathogenic organisms, including betahemolytic streptococci aureus, and have antibacterial effects upon other bacteria. Experiments performed by the Commission’s witness, Dr. Ortenzio, support the same conclusion. The ability of the products to kill germs is confirmed by antibacterial tests performed on each lot of ‘Sucrets’ or ‘Children’s Sucrets’ before it is released for sale.
“26. Human saliva normally contains.2% organic matter. The ability of hexylresorcinol and the products to kill germs is not affected by the presence of organic matter in more than twice the normal concentration.
“27. The products retain their antibacterial power when dissolved in saliva. This power exists even when abnormally large numbers of pathogenic organisms are used.
“28. Hexylresorcinol and the products retain their antibacterial activity when in contact with living animal and human tissue. This fact has been verified on the peritoneal lining of living rabbits and guinea pigs, and in the peritoneal and oral cavities of human beings.
“29. Although ‘Sucrets’ and ‘Children’s Sucrets’ will, by virtue of their hexylresorcinol content, kill germs, including staphylococci and streptococci, on contact therewith, they will not normally reach, kill or render ineffectual, germs, including streptococci and staphylococci in the throat tissues, that are contributing to an existing throat infection.
“30. Streptococcal and staphylococcal infections of the throat may be precursors of infections of the heart, kidney, blood, bones and other structures, and the failure to institute promptly adequate treatment of streptococcal and staphylcoccal throat infections may seriously imperil health. A special hazard of inadequate treatment of streptococcal sore throat is the subsequent development in certain persons, particularly children, of acute rheumatic fever or acute nephritis.
“31. ‘Sucrets’ and ‘Children’s Sucrets' have no beneficial effect on severe pain of sore throat, nor will they provide relief of the pain of sore throat in excess of temporary relief of minor pain.
“32. The aforesaid advertisements were and are misleading in material respects and constituted, and now constitute, ‘false advertisements’ as that term is defined in the Federal Trade Commission Act.”
APPENDIX B
MANUFACTURER’S DIRECTIONS FOR USE OF SUCRETS AND CHILDREN’S SUCRETS
The designations used by respondent Merck & Co., Inc., for said preparations thereof and directions for use are as follows:
A. Designation: “Sucrets” throat lozenges.
Directions: “Use SUCRETS for minor sore throat and mouth irritations and smoker’s throat. For best results let SUCRETS dissolve slowly — do not chew. SUCRETS bathe irritated tissue with hexylresorcinol, the antiseptic that relieves pain fast as it kills germs on contact.
Note: Persistent sore throat or sore throat accompanied by high fever, headache, nausea or vomiting usually indicates a severe infection and may be serious. Consult a physician promptly if sore throat persists more than 2 days. Do not administer to children under 3 years of age unless directed by physician. Keep all medications out of the reach of children.”
B. Designation: “Children’s Sucrets” throat lozenges.
FORMULA: Each lozenge contains 2.4 mg. hexylresorcinol in a cherry flavored glucose-sucrose hard candy base.
Directions: “Give Children’s Antiseptic ‘Sucrets’ for minor sore throat and mouth irritation. For best results tell child to let ‘Sucrets’ dissolve slowly without chewing. ‘Sucrets’ bathe irritated tissues with Hexylresorcinol, the antiseptic that relieves pain fast as it kills germs on contact. These ‘Sucrets’ contain a special cherry flavor which children love.
NOTE: Persistent sore throat or sore throat accompanied by high fever, headache, nausea or vomiting usually indicates a severe infection and may be serious. Consult a physician promptly if sore throat persists more than 2 days. Do not administer to children under 3 years of age unless directed by a physician. Keep all medications out of the reach of children.”
APPENDIX C
EXTRACTS FROM “PROPOSED 1962 MARKETING PLAN SUCRETS ANTISEPTIC LOZENGES,” PREPARED BY DOHERTY, CLIFFORD, STEERS & SHENFIELD ADVERTISING AGENCY
“MERCK & CO., INC.’s entry into the proprietary drug market with SUCRETS — a well-established OTC ethical —is a natural extension of its current activity.
“But, natural as it may be, the marketing problems and opportunities facing proprietaries are different than those facing pharmaceutical specialties and OTC ethicals. The significance of these differences should be placed in perspective.
“As a preface to the SUCRETS Marketing Plan, which will recommend how we propose to transfer SUCRETS — as the lead item for a new MERCK division — into the propriety market, we would like to discuss briefly these differences.
“More specifically, this preface reviews
“1. The difference between OTC ethical and proprietary drugs.
“2. The self-medicating market.
“3. The product characteristics which we believe are important in proprietary medicines.
“4. The marketing plan itself — its purpose, its organization, and its scope.
******
“To date, MERCK has focused its development, production, and marketing attention against pharmaceutical specialties — with OTC ethicals as natural adjuncts to this effort. By definition, the ethical OTC products differ from proprietaries in the way that they are marketed. Ethical OTC brands use marketing tools that are designed to gain cooperation and brand recommendation from physicians and pharmacists. Proprietaries, by definition, use marketing tools —led by advertising — aimed directly at the consumer to create consumer brand demand.
******
“[I]n proprietary marketing the focal point is neither the physician nor the druggist — it is the consumer. And the consumer is neither well-informed nor well-trained. They do not understand the reasons for pharmaceutical excellence.
******
“Products heavily promoted to the consumer must be acceptable to the self-medicating market. And, this market is different than the segment of the market which uses non-prescription medicines on the basis of either physician or druggist recommendation.
******
“The Self-Medicating Market
“From our experience, we have learned that there are many characteristics that are almost universal to the self-medicating market.
“1. It is a market with high brand loyalties.
“Quick success is frequently difficult. Unless the product represents a major breakthrough which promised relief never before offered by proprietary items, it is difficult to switch a customer.
As you well know, the medical profession readily accepts important product improvements because they are influenced rationally by product superiority. They have a responsibility to their patients to provide the best.
“The consumer — due to lack of training and knowledge — cannot share this responsibility. Use and habit create their standard of best.
“ * * * Consumers’ loyalties are difficult to break down since the habit has been created over many, many years with constant promotional pressure.
“2. The loyalties in the self-medicating market have been created directly in the consumer’s mind by strong, continuous advertising support.
“A new product, therefore, must build consumer demand and must obviously also win the battle at the retail shelf.
“3. The self-medicating market is most loyal to products which offer demonstrable relief.
“Consumers, to be loyal, must be able to measure and readily understand product effect and superiority.
“4. In those categories within the proprietary market in which the self-medicating consumer has not really been satisfied with the relief which has been offered, brand loyalties are lower and new products have a greater opportunity for quick success.
“A product classification as a case in point is the cold remedy market. If a product can deliver noticeable relief in this market and if it is presented forcefully as superior to existing products, it can broaden its volume base quickly.
“5. The self-medicating market primarily is a distaff market.
“Promotions should be aimed at influencing the women. If possible, products should not only assure her of protection of her own health, but also protection of her entire family’s health.
“6. The self-medicating market is the middle-lower socio-economic group.
“They can most easily be influenced if they are given a comparative point of reference from their past experience. It is difficult to sell a ‘preventive’ to these people —they have a problem and need relief. Except at the moment of need, they are difficult to reach by the printed message. “Proprietaries are relatively low-interest products. As an example, they are much less important to the consumer than pharmaceutical specialties and OTC ethicals are to the physician or the druggist.
"We must all realize that proprietary medicines must appeal to an entirely different segment of our market than the segment which uses the physician and pharmacist for their medical advice. They also have a different need. Self-medicating people have both a psychological and real need for relief. They respond to persuasive selling, but the advantages must be clearly and concisely stated in terms of relief to them — and these advantages, ideally, must be compared to points of references in their own life — the ‘gold standard’ therapy or relief of their experience.
******
“Consumers of proprietaries (the self-medicating group) have different motives and attitudes toward drug products than consumers of OTC ethical drug products. The self-medicator depends heavily upon advertising for product advice rather than upon the counsel of the druggist or physician.
“Unaided by professional advice, the consumer’s decision to medicate himself fills both psychological and physical needs. The brand selection decision, while it has emotional overtones, is a response to rational selling arguments.
******
“Throat lozenges cannot become mass volume products without tapping the mass market — the self-medicating market.
“The self-medicating market cannot be reached effectively without mass consumer promotion.
“Self-medicating consumers depend upon advertising for product information, not upon the druggist or the physician. These consumers must be told through advertising:
“1- the potential seriousness of throat ailments, and
“2- the reasons for lozenge superiority.
“Sore throat is a common and bothersome problem to cold sufferers.
“A ‘sore throat’ is a real disease to consumers. It exists — the potential seriousness should be exploitable.
“SUCRETS offers demonstrable relief for throat irritations. We believe that it is therefore important that SUCRETS be positioned in the marketplace as a remedy for throat irritations.
******
“All developments in the drug market indicate that OTC ethicals cannot expect that dramatic new attention will be devoted to their products in the years ahead. The consumer and the physician today have so many alternative choices available that direct support for an OTC ethical is difficult to achieve among either group.
******
“[T]he primary appeal is to the self-medicating family unit. The Mother is offered the opportunity to guard the health of her child. Television is used as the primary medium to break through the barrier of consumer indifference and preoccupation.
******
“The respiratory ailment market is expansible and is expanding.
“New marketing techniques and products which offer effective demonstrable relief can lead this expansion and build stronger franchises.
“SUCRETS can be positioned to compete and draw business from any different types of products used as treatments for sore-throat-irritations.
******
“SUCRETS product qualities have never been fully exposed to the mass self-medicating market nor as a product suitable for children.
“Proprietaries depend upon advertising to generate volume. SUCRETS is no exception. Advertising must play a major part in broadening the market for SUCRETS.
“PROPOSED SUCRETS MARKETING STRATEGY
******
“As a ‘sore-throat specialty’ *'* “Appealing to the self-medicating family unit.”
“This family unit believes in self-medication. This group represents the largest additional potential for SUCRETS. “Advertising can dramatize the real and potential danger in a sore throat and the importance of effective treatment. The self-medicating family unit protects its health through the use of proprietaries. It can only be reached by mass consumer promotion.
******
“SUCRETS should be marketed to influence the public without the intermediary of physician and/or druggist endorsement.
******
“The advertising should dramatize the potential seriousness of the sore throat and related irritations and indicate the importance of treating the symptoms with a fast-acting, effective medicine. “The advertising should present SUCRETS as the medicine for sore-throat relief with unique efficacy — implied or indicated — due to the action of hexylresorcinol and the form of the product.
******
“The advertising should build upon the existing attitudes toward SUCRETS, presenting it as a quasi-ethical medicinal specialty.”
. These sections of the statute provide in relevant part as follows:
15 U.S.C. § 45(a) (1). “Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.”
15 U.S.C. § 45(a) (6). “The Commission is empowered and directed to prevent persons, partnerships, or corporations * * *, from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.”
15 U.S.C. ■§. 52. “Dissemination of false advertisements — Unlawfulness
“(a) It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement—
“(1) By United States mails, or in commerce by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices, or cosmetics ; or
“(2) By any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in commerce of food, drugs, devices, or cosmetics.
“Unfair or deceptive act or practice
“(b) The dissemination or the causing to be disseminated of any false advertisement within the provisions of subsection (a) of this section shall be an unfair or deceptive act or practice in commerce within the meaning of Section 45 of this title
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_trialpro
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Hedwig POKRINCHAK, Mary Pokrinchak, and Jordan Pokrinchak, Appellants, v. HOLIDAY HOUSE MOTEL, INC., Appellee.
No. 9978.
United States Court of Appeals Fourth Circuit.
Argued Nov. 5, 1965.
Decided Nov. 17, 1965.
Edwin B. Fockler, III, Elkton, Md., (Roney & Fockler, Elkton, Md., on the brief), for appellants.
Alleck A. Resnick, Baltimore, Md., (Kartman & Resnick, Baltimore, Md., on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and ALBERT V. BRYAN and J. SPENCER BELL, Circuit Judges.
HAYNSWORTH, Chief Judge:
The plaintiff sought to recover damages consequent upon an alleged deceit perpetrated by the sellers of a motel which' she purchased at public auction. After a verdict of a jury for the defendant, she brought the case here complaining of the Court’s instructions. We affirm, for we find the submission fair and complete.
In response to advertisements she had seen in the New York Times plaintiff, with an adviser or male companion, went to a motel in Maryland on the morning of the afternoon when it was to be put up for public sale. The plaintiff testified that she and her adviser went to the motel office, whereupon they were taken by the manager’s wife into three rooms in one wing of the motel. She did not enter other open rooms in the vicinity of those she saw, but she testified that after her return to the office, she asked to see more of the rooms. The manager’s wife, in his presence, so the plaintiff stated, responded that when she had seen three rooms she had seen them all. Later the manager did show her the heating plant and other facilities.
The plaintiff’s testimony about the alleged statement of the manager’s wife was contradicted by the defendant’s evidence.
Testimony on behalf of the plaintiff indicated that after she purchased the motel at auction, she visited it on several occasions before the final closing and that, the day after she actually took possession, she discovered for the first time that some of the rooms in a wing which she had not inspected were uninhabitable because of severe termite infestation.
The Court submitted the case to the jury on the theory that under the laws of Maryland, recovery for deceit might be had if the manager’s wife made the statement attributed to her by the plaintiff and if it was reasonably understood as a representation that all the other rooms were in comparable condition to that of those she had seen, or if it was-intended to, and did, effectively divert the plaintiff from inspecting other rooms. In either event, however, the jury was told the plaintiff could recover only if the manager’s wife had apparent authority to show the rooms and to speak for the defendant, that is, if the plaintiff reasonably understood that the manager’s wife was acting for and in the interest of the sellers, and only if the jury found that the manager’s wife actually made the statement the plaintiff attributed to her.
The plaintiff contends that she is entitled to recover if the sellers affirmatively misrepresented the condition of the motel or if they obstructed or prevented her discovery of its defects through an inspection of the affected rooms. The Court clearly informed the jury, however, that it might find a verdict for the plaintiff if it found the underlying facts to support either theory of the plaintiff’s claim. In either event, the plaintiff’s case was dependent upon a finding that the wife of the motel manager made the statement attributed to her by the plaintiff. There was no other evidence of an effective misrepresentation or of an obstruction of an inspection. The Court properly instructed the jury that if it found that the manager’s wife made no such statement, they must find for the defendant.
The instruction about the apparent authority of the wife to speak for the sellers was essential and as favorable to the plaintiff as she had any reason to expect. Such a statement in private to the plaintiff by her own adviser or by an obvious interloper in the absence of the sellers or any of their representatives would give rise to no cause of action against the sellers. It is only if the manager’s wife spoke for the sellers or was reasonably understood by the plaintiff to speak for them, that the sellers could be held responsible for her conduct. Indeed, on this phase of the case, the Court’s instructions approached a requirement that the jury find that the sellers were responsible for whatever the wife said; the verdict for the defendant is understandable only in terms of a finding by the jury that the alleged statement was not made, or, if made, that it did not affect the scope of the plaintiff’s inspection.
We conclude that the plaintiff’s criticisms of the Court’s instructions to the jury are unfounded.
Affirmed.
. The plaintiff testified that some of the damaged areas had been covered over with fresh plaster. She did not see the fresh plaster until after she took possession of the motel, however, and, when she did see it, she recognized it as camouflage. Application of the plaster may have been an attempted misrepresentation, but it was not effective, for it did not mislead the plaintiff.
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:
|
sc_respondent
|
135
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
ROTELLA v. WOOD et al.
No. 98-896.
Argued November 3, 1999
Decided February 23, 2000
SOUTER, J., delivered the opinion for a unanimous Court.
Richard P. Hogan, Jr., argued the cause for petitioner. With him on the briefs were Kevin Dubose, Richard W. Mithoff, Tommy Jacks, and Robert F. Andrews.
Charles T. Frazier, Jr., argued the cause for respondents. With him on the brief were Debora B. Alsup, John H. Martin, Tom Renfro, and Joseph R. Cleveland, Jr.
Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging affirmance.
Philip Allen Lacovara, Evan M. Tager, and Gary E. Hughes filed a brief for the American Council of Life Insurance as amicus curiae.
Justice Souter
delivered the opinion of the Court.
The commencement of petitioner’s civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act (RICO) was timely only if the so-called “injury and pattern discovery” rule governs the start of the 4-year limitations period. We hold that it does not.
I
In February 1985, petitioner, Mark Rotella, was admitted to the Brookhaven Psychiatric Pavilion with a diagnosis of major depression. Rotella v. Pederson, 144 F. 3d 892, 894 (CA5 1998). He was discharged in 1986. In 1994, Brook-haven’s parent company and one of its directors pleaded guilty to charges of criminal fraud perpetrated through improper relationships and illegal agreements between the company and its doctors. Rotella learned of the plea agreement that same year, and in 1997 he filed a civil RICO claim against respondents, a group of doctors and related business entities, in Federal District Court.
RICO, 18 U.S.C. §§ 1961-1968 (1994 ed. and Supp. III), makes it criminal “to conduct” an “enterprise's affairs through a pattern of racketeering activity,” 18 U.S.C. § 1962(e), defined as behavior that violates certain other laws, either enumerated federal statutes or state laws addressing specified topics and bearing specified penalties, 18 U. S. C. § 1961(1) (Supp. III). “Pattern” is also a defined term requiring “at least two acts of racketeering activity..., the last of which occurred within ten years... after the commission of a prior act of racketeering activity.” 18 U. S. C. § 1961(5).
RICO provides for civil actions (like this one) by which “[a]ny person injured in his business or property” by a RICO violation may seek treble damages and attorney’s fees. 18 U. S. C. § 1964(c) (Supp. III). Rotella alleged such injury, in that respondents had conspired to admit, treat, and retain him at Brookhaven not for any medical reason but simply to maximize their profits. Respondents raised the statute of limitations as a defense and sought summary judgment on the ground that the period for bringing the civil action had expired before Rotella sued.
Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 156 (1987), established a 4-year limitations period for civil RICO claims. The District Court held that the period began when Rotella discovered his injury, which he concedes he did in 1986 at the latest. 147 F. 3d 438, 439 (CA5 1998). Under this “injury discovery” rule, the limitations period expired in 1990, and the District Court accordingly ordered summary judgment for respondents. Rotella appealed to the Fifth Circuit, arguing that the RICO limitations period does not begin to run until the plaintiff discovers (or should have discovered) both the injury and the pattern of racketeering activity. After the Fifth Circuit ruled against him, ibid., we granted certiorari to address a split of authority among the Courts of Appeals on whether the limitations period is triggered in accordance with the “injury and pattern discovery” rule invoked by Rotella. 526 U. S. 1003 (1999). We now affirm.
> — i H-Í
Given civil RICO’s want of any express limitations provision for civil enforcement actions, in Malley-Duff we undertook to derive one and determined that the limitations period should take no account of differences among the multifarious predicate acts of racketeering activity covered by the statute. Although we chose a uniform 4-year period on a Clayton Act analogy, §4B, as added, 69 Stat. 283, 15 U. S. C. § 15b, we did not decide when the period began to run, and the question has divided the Courts of Appeals.
Three distinct approaches emerged in the wake of Malley-Duff. Some Circuits, like the Fifth in this case, applied an injury discovery accrual rule starting the clock when a plaintiff knew or should have known of his injury. See, e. g., Grimmett v. Brown, 75 F. 3d 506, 511 (CA9 1996); McCool v. Strata Oil Co., 972 F. 2d 1452, 1464-1465 (CA7 1992); Rodriguez v. Banco Central Corp., 917 F. 2d 664, 665-666 (CA1 1990); Bankers Trust Co. v. Rhoades, 859 F. 2d 1096, 1102 (CA2 1988); Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F. 2d 211, 220 (CA4 1987).
Some applied the injury and pattern discovery rule that Rotella seeks, under which a civil RICO claim accrues only when the claimant discovers, or should discover, both an injury and a pattern of RICO activity. See, e. g., Caproni v. Prudential Securities, Inc., 15 F. 3d 614, 619-620 (CA6 1994); Granite Falls Bank v. Henrikson, 924 F. 2d 150, 154 (CA8 1991); Bath v. Bushkin, Gaims, Gaines & Jonas, 913 F. 2d 817, 820-821 (CA10 1990); Bivens Gardens Office Building, Inc. v. Barnett Bank, 906 F. 2d 1546, 1554-1555 (CA11 1990).
The Third Circuit applied a “last predicate act” rule, see Keystone Ins. Co. v. Houghton, 863 F. 2d 1125, 1130 (CA3 1988). Under this rule, the period began to run as soon as the plaintiff knew or should have known of the injury and the pattern of racketeering activity, but began to run anew upon each predicate act forming part of the same pattern.
In Klehr v. A. O. Smith Corp., 521 U. S. 179 (1997), we cut the possibilities by one in rejecting the last predicate act rule. Since a pattern of predicate acts can continue indefinitely, with each separated by as many as 10 years, that rule might have extended the limitations period to many decades, and so beyond any limit that Congress could have contemplated. See ibid. Preserving a right of action for such a vast stretch of time would have thwarted the basic objective of repose underlying the very notion of a limitations period. See id., at 189. The last predicate act rule was likewise at odds with the model for civil RICO, the Clayton Act, under which “[generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S. 321, 338 (1971); Klehr, supra, at 188.
The decision in Klehr left two candidates favored by various Courts of Appeals: some form of the injury discovery rule (preferred by a majority of Circuits to have considered it), and the injury and pattern discovery rule. Today, guided by principles enunciated in Klehr, we eliminate the latter.
h-i HH h — {
We think the minority injury and pattern discovery rule unsound for a number of reasons. We start with the realization that under the provision recognizing the possibility of finding a pattern of racketeering in predicate acts 10 years apart, even an injury occurrence rule unsoftened by a discovery feature could in theory open the door to proof of predicate acts occurring 10 years before injury and 14 before commencement of litigation. A pattern discovery rule would allow proof of a defendant’s acts even more remote from time of trial and, hence, litigation even more at odds with the basic policies of all limitations provisions: repose, elimination of stale claims, and certainty about a plaintiff’s opportunity for recovery and a defendant’s potential liabilities. See, e. g., Klehr, supra, at 187; Malley-Duff, 483 U. S., at 150, 156; Wilson v. Garcia, 471 U. S. 261, 270, 271 (1985).
How long is too long is, of course, a matter of judgment based on experience, and it gives us great pause that the injury and pattern discovery rule is an extension of the traditional federal accrual rule of injury discovery, and unwarranted by the injury discovery rule’s rationale. Federal courts, to be sure, generally apply a discovery accrual rule when a statute is silent on the issue, as civil RICO is here. Klehr, supra, at 191 (citing Connors v. Hallmark & Son Coal Co., 935 F. 2d 336, 342 (CADC 1991), and 1 C. Corman, Limitation of Actions § 6.5.5.1, p. 449 (1991)). But in applying a discovery accrual rule, we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock. In the circumstance of medical malpractice, where the cry for a discovery rule is loudest, we have been emphatic that the justification for a discovery rule does not extend beyond the injury:
“We are unconvinced that for statute of limitations purposes a plaintiff’s ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask.” United States v. Kubrick, 444 U. S. 111, 122 (1979).
A person suffering from inadequate treatment is thus responsible for determining within the limitations period then running whether the inadequacy was malpractice.
We see no good reason for accepting a lesser degree of responsibility on the part of a RICO plaintiff. It is true, of course, as Rotella points out, that RICO has a unique pattern requirement, see Malley-Duff, supra, at 154 (“[T]he heart of any RICO complaint is the allegation of a pattern of racketeering”); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 236 (1989) (referring to “RICQ’s key requirement of a pattern of racketeering”). And it is true as well that a pattern of predicate acts may well be complex, concealed, or fraudulent. But identifying professional negligence may also be a matter of real complexity, and its discovery is not required before the statute starts running. Kubrick, supra, at 122, 124. Although we said that the potential malpractice plaintiff “need only ask” if he has been wronged by a doctor, considerable enquiry and investigation may be necessary before he can make a responsible judgment about the action-ability of the unsuccessful treatment he received. The fact, then, that a considerable effort may be required before a RICO plaintiff can tell whether a pattern of racketeering is demonstrable does not place him in a significantly different position from the malpractice victim. A RICO plaintiff's ability to investigate the cause of his injuries is no more impaired by his ignorance of the underlying RICO pattern than a malpractice plaintiff is thwarted by ignorance of the details of treatment decisions or of prevailing standards of medical practice.
Nor does Rotella’s argument gain strength from the fact that some patterns of racketeering will include fraud, which is generally associated with a different accrual rule; we have already found the connection between civil RICO and fraud to be an insufficient ground for recognizing a limitations period beyond four years, Malley-Duff, supra, at 149, and the lenient rule Rotella seeks would amount to backsliding from Malley-Duff.
What is equally bad is that a less demanding basic discovery rule than federal law generally applies would clash with the limitations imposed on Clayton Act suits. This is important because, as we have previously noted, there is a clear legislative record of congressional reliance on the Clayton Act when RICO was under consideration, see Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985), and we have recognized before that the Clayton Act’s injury-focused accrual rule was well established by the time civil RICO was enacted. Klehr, 521 U. S., at 189. In rejecting a significantly different focus under RICO, therefore, we are honoring an analogy that Congress itself accepted and relied upon, and one that promotes the objectives of civil RICO as readily as it furthers the objects of the Clayton Act. Both statutes share a common congressional objective of encouraging civil litigation to supplement Government efforts to deter and penalize the respectively prohibited practices. The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, “private attorneys general,” dedicated to eliminating racketeering activity. Id., at 187 (citing Malley-Duff, 483 U. S., at 151) (civil RICO specifically has a “further purpose [of] encouraging potential private plaintiffs diligently to investigate”). The provision for treble damages is accordingly justified by the expected benefit of suppressing racketeering activity, an object pursued the sooner the better. It would, accordingly, be strange to provide an unusually long basic limitations period that could only have the effect of postponing whatever public benefit civil RICO might realize. The Clayton Act avoids any such policy conflict by its accrual rule that “[generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business,” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S., at 338, and the Clayton Act analogy reflects the clear intent of Congress to reject a potentially longer basic rule under RICO.
In sum, any accrual rule softened by a pattern discovery feature would, undercut every single policy we have mentioned. By tying the start of the limitations period to a plaintiff’s reasonable discovery of a pattern rather than to the point of injury or its reasonable discovery, the rule would extend the potential limitations period for most civil RICO cases well beyond the time when a plaintiff’s cause of action is complete, as this ease shows. Rotella does not deny that he knew of his injury in 1986 when it occurred, or that his civil RICO claim was complete and subject to suit at that time. But under Rotella’s rule, the clock would have started only in 1994, when he discovered the pattern of predicate acts (his assumption being that he could not reasonably have been expected to discover them sooner). A limitations period that would have begun to run only eight years after a claim became ripe would bar repose, prove a godsend to stale claims, and doom any hope of certainty in identifying potential liability. Whatever disputes may arise about pinpointing the moment a plaintiff should have discovered an injury to himself would be dwarfed by the controversy inherent in divining when a plaintiff should have discovered a racketeering pattern that might well be complex, concealed or fraudulent, and involve harm to parties wholly unrelated to an injured plaintiff. The fact, as Rotella notes, that difficulty in identifying a pattern is inherent in civil RICO, see H. J. Inc., 492 U. S., at 235, n. 2 (collecting cases), only reinforces our reluctance to parlay the necessary complexity of RICO into worse trouble in applying its limitations rule. Cf. Wilson, 471 U. S., at 270 (discussing need for firmly defined, easily applied rules). A pattern discovery rule would patently disserve the congressional objective of a civil enforcement scheme parallel to the Clayton Act regime, aimed at rewarding the swift who undertake litigation in the public good.
Rotella has two remaining points about which a word should be said. We have already encountered his argument that differences between RICO and the Clayton Act render their analogy inapt, and we have explained why neither the RICO pattern requirement nor the occurrence of fraud in RICO patterns is a good reason to ignore the Clayton Act model, see supra, at 556-557. Here it remains only to respond to Rotella’s argument that we ourselves undercut the force of the Clayton Act analogy when we held that RICO had no racketeering injury requirement comparable to the antitrust injury requirement under the Clayton Act, see Sedima, 473 U. S., at 495. This point not only fails to support but even cuts against Rotella’s position. By eliminating the complication of anything like an antitrust injury element we have, to that extent, recognized a simpler RICO cause of action than its Clayton Act counterpart, and RICO’s comparative simplicity in this respect surely does not support the adoption of a more protracted basic limitations period.
Finally, Rotella returns to his point that RICO patterns will involve fraud in many eases, when he argues that unless a pattern discovery rule is recognized, a RICO plaintiff will sometimes be barred from suit by Federal Rule of Civil Procedure 9(b), which provides that fraud must be pleaded with particularity. While we will assume that Rule 9(b) will exact some cost, we are wary of allowing speculation about that cost to control the resolution of the issue here. Rotella has presented no case in which Rule 9(b) has effectively barred a claim like his, and he ignores the flexibility provided by Rule 11(b)(3), allowing pleadings based on evidence reasonably anticipated after further, investigation or discovery. See, e. g., Corley v. Rosewood Care Center, Inc. of Peoria, 142 F. 3d 1041, 1050-1051 (CA7 1998) (relaxing particularity requirements of Rule 9(b) where RICO plaintiff lacks access to all facts necessary to detail claim). It is not that we mean to reject Rotella’s concern about allowing “blameless ignorance” to defeat a claim, Urie v. Thompson, 337 U. S. 163, 170 (1949); we simply do not think such a concern should control the decision about the basic limitations rule. In rejecting pattern discovery as a basic rule, we do not unsettle the understanding that federal statutes of limitations are generally subject to equitable principles of tolling, see Holm berg v. Armbrecht, 327 U. S. 392, 397 (1946), and where a pattern remains obscure in the face of a plaintiff’s diligence in seeking to identify it, equitable tolling may be one answer to the plaintiff’s difficulty, complementing Federal Rule of Civil Procedure 11(b)(3). See ibid.; see generally Klehr, 521 U. S., at 192-193 (noting distinctions between different equitable devices). The virtue of relying on equitable tolling lies in the very nature of such tolling as the exception, not the rule.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Rotella alleged that “a group of doctors and their related business entities... improperly conspir[ed] to admit, treat, and retain him at Brookhaven Psychiatric Pavilion for reasons related to their own financial interests rather than the patient’s psychiatric condition.” 147 F. 3d 438, 439 (CA5 1998). As injuries, he alleged, among other things, confinement for an excessive period because of the conspiracy to draw down his and other patients’ insurance coverage, loss of a number of personal items, and fraudulent charges for unnecessary treatment. Brief for Petitioner 3; App. 20-24.
We do not, however, settle upon a final rule. In addition to the possibilities entertained in the Courts of Appeals, Justice Scaiia has espoused an “injury occurrence” rule, under which discovery would be irrelevant, Klehr v. A. O. Smith Corp., 521 U. S. 179, 198 (1997) (opinion concurring in part and concurring in judgment), and our decision in Klehr leaves open the possibility of a straight injury occurrence rule. Amicus American Council of Life Insurance urges us to adopt this injury occurrence rule in this case, see Brief for American Council of Life Insurance as Amicus Curiae 5-14, but the parties have not focused on this option, and we would not pass upon it without more attentive advocacy.
This objective of encouraging prompt litigation to combat racketeering is the most obvious answer to Rotella’s argument that the injury and pattern discovery rule should be adopted because “RICO is to be read broadly” and “‘liberally construed to effectuate its remedial purposes,”' Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 497-498 (1985) (quoting Pub. L. 91-452, § 904(a), 84 Stat. 947).
Some Circuits apply injury and pattern discovery out of fear that when the injury precedes a second predicate act, the limitations period might otherwise expire before the pattern is created. E. g., Granite Falls Bank v. Henrikson, 924 P. 2d 150, 154 (CA8 1991). Respondents argue that this overlooks the cardinal principle that a limitations period does not begin to run until the cause of action is complete. Rawlings v. Ray, 312 U. S. 96, 98 (1941); see also United States v. Lindsay, 346 U. S. 568, 569 (1954); Clark v. Iowa City, 20 Wall. 583, 589 (1875).
The quandary is hypothetical here; Rotella does not dispute that his injury in 1986 completed the elements of his cause of action. Hence, we need not and do not decide whether civil RICO allows for a cause of action when a second predicate act follows the injury,
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_dueproc
|
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 interpretation of the requirements of due process by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Randolph W. COPELAND, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
No. 20130.
United States Court of Appeals Fifth Circuit.
Jan. 29, 1964.
Thomas N. Crawford, Jr., Birmingham, Ala., for petitioner.
Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, Chicago, 111., David B. Schreiber, Associate General; Counsel, Railroad Retirement Board, Edward E. Reilly, David M. Goldman, Railroad Retirement Board, Chicago, 111., of counsel, for respondent.
Before CAMERON and WISDOM,. Circuit Judges, and DeVANE, District. Judge.
CAMERON, Circuit Judge.
This appeal involves the question of whether there was substantial evidence to support the Railroad Retirement Board’s finding that the petitioner’s physical or mental condition was not such that he was unable to engage in any regular employment.
Petitioner, a forty-six year old railroad laborer, applied for an annuity under § 2(a) (5) of the Railroad Retirement Act, on the ground that his “permanent physical or mental condition” was such that he was “unable to engage in any regular employment.” He worked for the Alabama Great Southern Railroad Company as a “bridge builder,” from October 6, 1941 to September 19, 1958, having been disqualified for service by a medical officer of the Railroad. Petitioner has a fifth grade education, and has a history of only menial arduous work. Since petitioner is less than sixty years of age and is credited with less than twenty years of service as an employee under the Railroad Retirement Act, it is impossible for him to be eligible for any type of annuity other than the one under § 2(a) (5) of the Act.
Application for an annuity was filed on November 14, 1958. A succession of doctors employed by both the Board and the petitioner found that he was highly nervous, underweight, arthritic, deaf in left ear, and had several other physical disabilities. Psychiatric tests revealed a congenital low intelligence, but no markedly identifiable mental disorders other than extreme apathy. Several doctors expressed an opinion that the petitioner was unfit to continue performing heavy manual labor.
The test here is whether the claimant is capable of engaging in “any” gainful employment. Subsequent to the filing of the application petitioner was accorded a general physical examination by a designated Board examiner, Dr. M. P. Hughes. Dr. Hughes reported his diagnosis as “arthritis right elbow, shoulder and spine,” and a loss of hearing in the left ear; on this medical evidence he concluded that petitioner was not then able to work at his last occupation or some other type of work, and that it was questionable whether his condition could be expected to improve, or that he would be able in the future to do any type of work.
The Director of Retirement Claims arranged for petitioner to undergo an orth-opaedic examination at the V. A. Hospital in Birmingham on December 23, 1958, where it was concluded that petitioner was not permanently disabled from work in all regular employment. The report of the examination by Dr. Cas Reagan stated that the petitioner was a “small, slender fellow, who weighed 122 pounds;” that petitioner stated his weight had been between 136 and 140 pounds a year earlier; that petitioner had many complaints, especially with respect to the right shoulder, right elbow and lower back; and that “ * * * there is no acute joint tenderness today. However, he is unable to elevate his right arm above the level of his right shoulder, due to arthritis, which he claims in his right shoulder. There is no periarticular tenderness but definite limitation of motion. The lumbo-sacral region, bending forward he can reach about 6" below the knees and there is a slight amount of muscle-rigidity in the lower lumbar region. The lateral movements are limited and so are the backward movements. He cannot flex his right elbow due to pain. He complains considerably of the right knee and says one week ago it was swollen but apparently today there is no swelling but there is limitation of movement and pain on extension and flexion of the right knee * * The X-rays taken at the V. A. Hospital of the right elbow, right shoulder and spine revealed general normality in the bones, joints and interspaces with changes only minimal where they occurred.
Petitioner’s family physician, Dr. C. D. Killian, stated: “This man will not be able to return to his employment nor will he be able to do any type of manual labor again and, as I understand it, this is his only qualification. In my professional judgment I would classify him as being totally and permanently disabled.”
Dr. A. I. Chenoweth stated, “Mr. Copeland is totally and permanently disqualified- for any gainful employment by reason of arthritis and anxiety tension state with an inadequate personality and an inactive duodenal ulcer.”
Nearly a year after petitioner’s application had been filed he underwent a neuropsychiatric examination which showed a mental age of eight years with final diagnosis of (1) mental deficiency and (2) chronic anxiety reaction. On January 12, 1960, Dr. John N. Chit-wood of Birmingham, Alabama examined petitioner and concluded, “In my opinion this man is permanently and totally disabled to perform any type of work.” Dr. Glenn Barnes was of the opinion that “Mr. Copeland does have osteoarthritis but not of sufficient degree to totally incapacitate him. A psychiatric evaluation is, however, suggested, as I feel that he probably has a personality defect.” A general and neuropsychiatric examination was conducted by Dr. Henry Spira on November 24, 1959. Dr. Spira reported, “There is no objective evidence of swelling, edema, deformity, ankylosis, or any muscular atrophy * * *. There is no objective evidence of any arthritic change or any muscular weakness or atrophy. Subjectively, however, the patient complains of severe pain on flexion of the trunk and he is hardly able to make a fist or stand on his heels or his toes. There is a marked difference’ between subjective complaints and objective findings. * * * The only abnormality found with respect to the nervous system was complete deafness of the left ear. * * * ” Dr. Spira further stated “Perhaps the most outstanding factor in the patient’s general attitude was the fact that he exaggerated his symptoms.”
After a psychiatric evaluation on July 18, 1961, Dr. James Sussex summarized that “this man is considered to show impairment of intellectual functions and of general adjustment to a degree inconsistent with any mental, emotional or other psychiatric disorder, disease or defect which can be demonstrated in this single examination.”
Petitioner, citing decisions under the Social Security Act, and contending that the standards which the courts have applied in interpreting the disability provisions under that Act apply also in the interpretation of the disability provisions of the Railroad Retirement Act, argues that there was not substantial evidence to support the Railroad Retirement Board’s finding that petitioner’s physical and mental condition was not such that he was unable to engage in any regular employment. It is claimed on behalf of the Board that the tests provided by the two Acts are not identical. § 11 of the Railroad Retirement Act, under which this action was brought, incorporates by reference the judicial review provisions of the Railroad Unemployment Insurance Act, 45 U.S.C. § 355(f), which provides that: “The findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive.”
The standards prescribed in the Social Security Act are of like import: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * *
A painstaking examination of the evidence, some of which has been discussed supra, leads us to the conclusion that the finding of the Board was not supported by substantial evidence. The decision of the Railroad Retirement Board is, therefore, reversed and the case remanded for such proceedings as are consistent with this opinion.
Reversed and remanded.
[Judge DeVANE participated in the hearing and decision of this case, but died before the foregoing opinion was written.]
. 45 U.S.C.A. § 228b (a) (5).
. E.g., Butler v. Fleming, 5 Cir., 1961, 288 F.2d 591; Ferran v. Flemming, 5 Cir., 1961, 293 F.2d 568; and cf. the opinion of Judge Rives, sitting as District Judge of the Middle District of Alabama, in Aaron v. Fleming, 1958, 168 F.Supp. 291.
. 45 U.S.C. § 228 (k).
. 42 U.S.C. § 405(g).
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_applfrom
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L
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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).
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL WAREHOUSE CORPORATION, Respondent.
No. 80-1472.
United States Court of Appeals, Third Circuit.
Argued Dec. 1, 1980.
Decided March 10, 1981.
Joseph Schwachter (argued), Elliott Moore, Paul J. Spielberg, William A. Lubbers, John E. Higgins, Jr., Robert E. Allen, Washington, D.C., for petitioner.
Herbert New (argued), Brenner, New & Brenner, Livingston, N.J., for respondent.
Before ALDISERT, HUNTER and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
The National Labor Relations Board (hereinafter the “Board”) petitions this court for enforcement of its February 14, 1980 order against General Warehouse Corporation (hereinafter the “Company”). The Board found General Warehouse in violation of sections 8(a)(1) and (3) of the National Labor Relations Act (hereinafter the “Act”) for retaliating against its employee, John Coon, for engaging in protected union activities. It therefore ordered respondent, General Warehouse, to cease and desist from its unfair labor practices and to reinstate Coon with back pay. Respondent contends that the Board’s order should not be enforced because the Board failed to defer to an arbitrator’s award that ruled that there was “just cause” for Coon’s dismissal; alternatively, respondent argues that there is insufficient evidence on the record to support the Board’s findings. We hold that because the arbitrator’s decision addressed only the contractual questions in the dispute and not the statutory issues brought before the Board, it was not an abuse of discretion for the Board to refuse to defer to the arbitrator. We also conclude that there is substantial evidence on the record to support the Board’s unfair labor practices findings. Accordingly, we will enforce the Board’s order.
FACTS
The events leading to the unfair labor practices in this case began in January, 1978. At that time, General Warehouse’s Executive Vice-President, Philip Fine, held a meeting with the Company’s employees. He asked the employees to waive their contractual right to bid on work to be performed in a new warehouse. John Coon, a warehouseman for General Warehouse, attended the meeting but did not participate in the discussion. After the meeting, Fine approached Coon and asked him to “speak to the men and try to get across to them how important it was that [they] agree to [give] up the bid.” Coon declined. He had battled with the Company before in a 1976 campaign to collect contractual wage increases that the employees had been persuaded to waive. When he told Fine that he would again oppose the Company, Fine informed Coon that the Company considered him to be a “troublemaker” and “instigator.”
Soon thereafter, in March, 1978, the President of General Warehouse, Michael Goldfarb, called another meeting of the warehouse employees. He told them that due to the high cost of energy and the Company’s poor financial condition, he could not afford to pay the 38-cent-an-hour cost of living increase provided for under the collective bargaining agreement. He asked the employees to waive the increase due to take effect on April 1, 1978. Goldfarb said he had owned a company in the past where he had labor trouble, that he had closed the business, and that he could do it again. He also told the employees that if they did not waive the cost of living increase due to them, he would close down the Company and open elsewhere.
At least five employees, including Coon, spoke out against waiving the increase. Coon said that the employees were also suffering from inflation and that they were not to be blamed for the Company’s unfavorable position with its competitors. He insisted that Goldfarb live up to the contract he had signed.
Coon continued to voice his opposition to a waiver of the cost of living increase through the end of March. On March 30 or 31, the Company polled the employee units on their position. The waiver proposal was defeated.
Immediately upon the defeat of the waiver issue, General Warehouse changed its work assignment policy. Ordinarily, General Warehouse would assign employees to unload Wrigley freight cars, an arduous job described as the “least desirable assignment at the plant,” on a rotational basis. After its waiver issue was defeated, the Company arbitrarily selected the employees for the job. It assigned Coon to the Wrigley work on April 3,1978 and April 4,1978. On April 5, 1978, Coon called in sick. He was discharged that same day for excessive absenteeism.
The evidence shows that Coon did not have a model attendance record. At one time, he had been absent 18% of his working days; at another, he was sent a warning that his absence five Fridays out of seven was unsatisfactory. The ALJ in his opinion carefully details Coon’s attendance record. We agree with his conclusion that “[the fact that Coon] was absent a considerable number of times is amply supported by the record.” AU’s Decision at 7, reprinted in Appendix at 224. We also agree, however, and will discuss below, that merely “because justifiable grounds for discharge existed, it does not necessarily follow [that] such was the motivating reason [for the dismissal].” Id.
PROCEDURAL HISTORY
The Union filed a grievance with General Warehouse on behalf of Coon, alleging that his discharge had been in retaliation for his union activities and did not constitute “just cause” under the collective bargaining agreement. In accordance with the collective bargaining agreement, the parties submitted their dispute to arbitration. The arbitrator heard argument on the possible motives for Coon’s discharge, but made no finding on whether the discharge was based, even in part, on General Warehouse’s hostility toward Coon’s union activities. Rather, the arbitrator focused only on Coon’s behavior and found that his excessive absenteeism was “just cause” under the collective bargaining agreement for his dismissal.
After the arbitrator’s decision, Coon filed a complaint with the Board alleging that respondent interfered with the exercise of his section 7 rights (a section 8(a)(1) violation) and discriminated against him in his tenure and condition of employment (a section 8(a)(3) violation). A hearing was held before an Administrative Law Judge (hereinafter “AU”) on February 21, 1979. The ALJ, declining to defer to the arbitrator’s decision, concluded that Respondent had engaged in the alleged unfair labor practices. Accordingly, he recommended that General Warehouse be ordered to cease and desist from its discriminatory acts and reinstate Coon with backpay. The Board summarily adopted the ALJ’s order.
DISCUSSION
Our decision on whether to enforce the Board’s order turns on two important issues. First, we must decide whether the Board properly refused to defer to the arbitrator’s decision in this case. Second, if we hold that the Board did not abuse its discretion in refusing to defer, NLRB v. Pincus Bros., Inc.—Maxwell, 620 F.2d 367, 372 (3d Cir. 1980), we must determine whether there is substantial evidence on the record to support the Board’s finding that respondent violated sections 8(a)(1) and (3) of the Act. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 491, 492-96, 71 S.Ct. 456, 464, 466, 467-68, 95 L.Ed. 456 (1951).
I.
In Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), the Board set forth its standards for deferring to arbitrators’ awards. It stated that it would defer to an arbitrator’s award if: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision was not “clearly rfepugnant” to the purposes and policies of the Act. Spielberg, 112 N.L.R.B. at 1082. The parties have stipulated to the first two of these requirements. The Board refused to defer because it found that the third requirement had not been met. Although we agree with the Board’s conclusion that it was not required to defer in this case, we choose to base our decision on a fourth requirement — a prerequisite to the Spielberg standards — articulated by the Board in Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir. 1964).
In Raytheon Co., the Board held that it would not defer to an arbitrator’s decision if the arbitrator failed to consider .and rule on the unfair labor practice issue. See also Max Factor & Co., 239 N.L.R.B. 804 n.3 (1978) (noting that both the Board and the courts have taken the position that the Board should not defer when the arbitrator has not considered the statutory issues). The Board found that
It manifestly could not encourage the voluntary settlement of disputes or effectuate the policies and purposes of the Act to give binding effect in an unfair labor practice proceeding to an arbitration award which does not purport to resolve the unfair labor practice issue which was before the arbitrator and which is the very issue the Board is called upon to decide in the proceeding before it.
Raytheon, 140 N.L.R.B. at 884, quoting Monsanto Chemical, 130 N.L.R.B. 1097, 1099 (1961). We agree with the Ninth Circuit that
It is illogical for the Board, which is responsible for resolving the unfair labor practice issue, to defer to a decision by an arbitrator, who is under no duty and indeed may not be particularly predisposed to consider the statutory issue, solely on the basis of a factually unfounded presumption that the arbitrator had considered the issue.
Stephenson v. NLRB, 550 F.2d 535, 540 (9th Cir. 1977). Rather, in order for the Board’s deferral policy riot to be one of abdication, the Board must be presented with some evidence that the statutory issue has actually been decided.
In applying the fourth deferral requirement — that the arbitrator consider the statutory issue and rule on it or all the facts required to decide it — to the facts of the instant case, we find that the Board refused to defer to the arbitrator’s decision, not because it disagreed with the arbitrator’s finding that excessive absenteeism constituted “just cause” under the collective bargaining agreement for discharge, but because the arbitrator did not rule on whether there may have been other grounds for the discharge. The arbitrator’s decision only discussed Coon’s poor attendance record and whether his excessive absenteeism constituted “just cause” under the collective bargaining agreement for his discharge. The arbitrator could, and apparently did, make his decision without considering the Company’s other possible motives for discharging Coon. These other motives, if found to be discriminatory and the “real cause” of Coon’s dismissal, could form the basis of an unfair labor practices charge.
Therefore, we cannot find that the Board abused its discretion by refusing to defer to the arbitrator’s award. Since the Board did not have the aid of an arbitrator's decision addressing the alleged discriminatory motive, it was required to make a determination itself. We now examine its decision.
II.
The Board found that General Warehouse violated sections 8(a)(1) and (3) of the Act by assigning Coon to the “Wrigley work” in retaliation for his protests against the Company’s waiver proposal. Coon’s protests at the March, 1978 meeting were protected as concerted activity, see Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1348 (3d Cir.), cert. denied, 397 U.S. 935, 90 S.Ct. 943, 25 L.Ed.2d 115 (1969), under section 7 of the Act. Section 8(a)(1), 29 U.S.C. § 158(a)(1) (1976), of the Act safeguards Section 7’s guarantee by providing that “It shall be an unfair labor practice for an employer — to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7] of this title.. .. ” Section 8(a)(3) adds to this protection by holding that: “It shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment or any term or condition of employment to ... discourage membership in any labor organization.. .. ” 29 U.S.C. § 158(a)(3) (1976). The Board found General Warehouse in violation of both of these provisions.
We are limited in our review of National Labor Relations Board decisions. If the Board’s findings are supported by substantial evidence on the record, we are obliged to enforce them. Universal Camera, 340 U.S. at 488, 491, 492-96, 71 S.Ct. at 464, 466, 467-68. We are also bound to respect the Board’s conclusions on credibility and conflicting evidence if they take into account all relevant factors and are sufficiently explained. NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962); NLRB v. New York — Keansburgh Long Branch Bus Co., Inc., 578 F.2d 472, 478 n.15 (3d Cir. 1978). Bound by this standard, and based upon our independent review of the record, we conclude that there is substantial evidence to support the Board’s order.
The record shows that in January, 1978 a Company representative warned Coon that he was considered to be an “instigator” and “troublemaker” because of his 1976 efforts to secure employee benefits. In March, 1978, when Coon had an opportunity to redeem himself with the Company, he instead chose to fight its cost of living increase waiver proposal. On March 30, immediately after its waiver proposal had been defeated, the Company announced that employees would no longer be granted working time to cash paychecks and that the rotation system for “Wrigley work” assignments would be changed to one in which the employer could arbitrarily pick employees to be saddled with the unpleasant task.
Considering this setting, the Board found that the mood and timing of Coon’s assignment to “Wrigley work” supported the charges of discrimination. The ALJ wrote:
[Coon] had been a vociferous opponent to waiving the cost of living increase at the meeting conducted by Goldfarb in early March. The Respondent also was aware he had been instrumental in retaining an attorney about 2 years before to attempt to collect wages due to the employees under the collective bargaining contract. Although not exempt from Wrigley assignments, I am of the view the assignment of the Wrigley work to Coon on the heels of the employees’ rejection of the Respondent’s request they waive the cost of living increase was in retaliation for such rejection.
ALJ’s Decision at 6-7, reprinted in Appendix at 223-224.
Although we might make a different decision if we were to decide the case de novo, as stated earlier, we must defer to the Board’s decision if it is substantially supported by the record. Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464. As described above, there is such support. The ALJ could reasonably infer from the evidence that Coon was assigned to the Wrigley work, three days in a row, because of his opposition to the Company’s waiver proposal. He was further justified in finding that the Company’s action was designed to coerce Coon and the other employees into accepting future waiver proposals. Accordingly, we hold that there is substantial evidence on the record to find that Coon’s assignment to the Wrigley work was a violation of sections 8(a)(1) and 8(a)(3) of the Act.
The Board also found that General Warehouse violated section 8(a)(1) and 8(a)(3) of the Act by discharging Coon in retaliation for his opposition to the waiver proposal. As this Court wrote in Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978): “Whether the employer’s discharge of an employee violates section 8(a)(1) and 8(a)(3) of the Act depends on the employer’s motive. N. L. R. B. v. Brown, 380 U.S. 278, 283, 85 S.Ct. 980 [983] 13 L.Ed.2d 839 (1965); N. L. R. B. v. Eagle Material Handling, Inc., 558 F.2d 160, 169 (3d Cir. 1977).”
General Warehouse contends that Coon was discharged because of his excessive absenteeism. The Board takes the position that Coon was discharged because of his opposition to the Company’s waiver proposal.
Our goal is to find the “real motive,” NLRB v. Brown, 380 U.S. at 287, 85 S.Ct. at 985; NLRB v. Gentithes, 463 F.2d 557, 560 (3d Cir. 1972) or “real cause,” NLRB v. Rubber Rolls, Inc., 388 F.2d 71, 74 (3d Cir. 1967) for Coon’s dismissal. In Edgewood Nursing, we were faced with a similar problem. The Board contended that the employee had been unlawfully discharged because of her union activities. The employer, on the other hand, alleged that its nurse had been dismissed because she had made serious medication errors. In deciding which explanation to accept, this court proposed the following test for dealing with “dual-motive” cases:
If two or more motives are behind a discharge, the action is an unfair labor practice if it is partly motivated by reactions to the employee’s protected activity.... On the other hand, if the employee would have been fired for cause irrespective of the employer’s attitude toward the union, the real reason for the discharge is non-discriminatory. In that circumstance there is no causal connection of any anti-union bias and the loss of the job.... Thus, if the employer puts forward a justifiable cause for discharge of the employee, the Board must find that the reason was a pretext, and that anti-union sentiment played a part in the decision to terminate the employee’s job.
Edgewood Nursing, 581 F.2d at 368 (citations omitted).
The Edgewood standard is designed to be applied on a case-by-case basis. While in several of our recent cases we have applied this standard and found that there is not substantial evidence to support the unfair labor charge, we cannot come to the same conclusion here. In the case before us, the ALJ details why he found Coon’s excessive absenteeism to be a mere pretext for his dismissal. Although the pressure against Coon to improve his attendance record had been mounting for a while, General Warehouse chose to dismiss Coon at the very moment when his discharge would have the maximum coercive and punitive effect. The Company took absences that had previously been condoned and used them as a reason for dismissing Coon. When General Warehouse finally “lowered the boom” on Coon, it did not give him a chance to explain his absences. If it had, it would have found evidence of a possible legitimate excuse for his absence on the day he was discharged.
Once again, although we might have decided the case differently de novo, there is substantial evidence on the record to support the Board’s finding that the Company’s hostility towards Coon’s protected activities was the “real cause” for his dismissal. The timing of Coon’s discharge, the Company’s previous attitude toward him and his union efforts, and the almost reflexive resort by the Company to Coon’s past attendance record all support the Board’s conclusion.
There will necessarily be “close calls” in cases involving a discharge alleged to be in violation of section 8(a)(1) and 8(a)(3). This case is one of them. However, in light of the extensive record compiled by the Board, its credibility findings and our own reading of the evidence, we find that General Warehouse would not have discharged Coon when it did if it were not for his opposition to their waiver proposal.
Accordingly, we will enforce the Board’s decision ordering General Warehouse to cease and desist from its unfair labor practices and to reinstate John Coon with back pay.
. The Board’s order is reported at 247 NLRB No. 142 (1980), reprinted in Appellant’s Appendix at 231-33.
. 29 U.S.C. § 158(a)(1), (3) (1976).
. Under a collective bargaining agreement between General Warehouse and the warehouse employees, employees were entitled to bid for transfers to different warehouses according to their seniority. At the January, 1978 meeting Fine informed the employees that a prospective customer wanted to “hand pick” his warehouse workers and would be more likely to lease the warehouse from General Warehouse if the Company were to release him, with the approval of the employees, from the terms of the collective bargaining agreement.
. The ALJ was unclear on whether the stewards’ poll was conducted on March 30 or 31. See ALJ’s Decision at 6 n. 14, reprinted in Appendix at 223.
. ALJ’s Decision at 6, reprinted in Appendix at 223. See also Transcript of ALJ proceedings, reprinted in Appendix at 101-02. Prior to 1976, the Company had used this assignment as a form of punishment for employees who, for one reason or another, had fallen into disfavor with the Company. Transcript of ALJ proceedings, reprinted in Appendix at 41, 78. In 1976, upon the Union’s request, the Company agreed to rotate this work among the ware-housemen. See ALJ’s Decision at 6, reprinted in Appendix at 223.
. ALJ’s Decision at 7-8, reprinted in Appendix at 224-25.
. See Arbitrator’s decision, reprinted in Appendix at 181(b)-181(e) & note 19 infra.
. 29 U.S.C. § 157 (1976). See note 22 infra.
. See also Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 676 (9th Cir.), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1061 (1976) (“abuse of discretion” standard of review).
. These standards bind the Board and this court. Although the Board’s policy of deferral is a “discretionary administrative doctrine,” see Pincus, 620 F.2d at 372 n.8, once the Board “announce(s) a policy regarding deference to arbitration, (it cannot) blithely ignore it, thereby leading astray litigants who depended on it.” NLRB v. Horn & Hardart Co., 439 F.2d 674, 679 (2d Cir. 1971). Accordingly, we believe it proper to use the Board’s own standards to gauge whether it abused its discretion in refusing to defer. See Hawaiian Hauling, 545 F.2d at 676.
. The Spielberg requirements were designed to achieve the “desirable objective of encouraging the voluntary settlement of labor disputes....” Spielberg, 112 N.L.R.B. at 1082. Since its introduction, arbitration has served to promote industrial peace and stability by encouraging the private resolution of disputes. See generally. International Harvester, 138 N.L. R.B. 923 (1962); Murphy & Sterlacci, A Review of the National Labor Relations Board’s Deferral Policy, 42 Ford L.Rev. 291 (19.73). Correspondingly, the courts continue to support the Board’s deferral policy. See Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1963); NLRB v. Pincus Bros., Inc.—Maxwell, 620 F.2d 367, 372-74 (3d Cir. 1980).
. Several courts have chosen to integrate this fourth requirement from Raytheon into their analysis of whether the third Spielberg requirement has been met. These courts hold that the arbitrator’s failure to consider and rule on the statutory issue actually leads to a decision clearly repugnant to the Act and thus a failure to meet the third Spielberg requirement. See, e. g., Bloom v. NLRB, 603 F.2d 1015 (D.C.Cir. 1979); Dreis & Krump Mfg. Co., Inc., 544 F.2d 320 (7th Cir. 1976); Banyard v. NLRB, 505 F.2d 342 (D.C.Cir. 1974). We decline to follow this mode of analysis both because we want to emphasize the importance of this separate requirement, see Pincus, 620 F.2d at 372 n.7 (Raytheon requirement noted as an added requirement to those in Spielberg) and because the history of the third Spielberg requirement suggests that it was intended to cover the more specific situation where the arbitrator’s decision, on its face, conflicts with the Act. See generally R. Gorman, Basic Text On Labor Law 736-37 (1976).
. The Board has recently reaffirmed this requirement in Suburban Motor Freight, Inc., 247 N.L.R.B. No. 2 (Jan. 8, 1980), eliminating any doubt that a finding of just cause does not automatically dispose of a claim of discriminatory motive.
. See note 16 infra.
. Regardless of its deferral policy, the Board retains the primary responsibility and power to adjudge unfair labor practices. Section 10(a) of the Act, 29 U.S.C. § 160(a) (1976). See also Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964).
. The Board’s fourth requirement will be deemed met “[i]f there is substantial and definite proof that the unfair labor practice issue and evidence were expressly presented to the arbitrator and [that] the arbitrator’s decision indisputably resolve[d] the [unfair labor practice] issue....” Stephenson, 550 F.2d at 538 n.4 (emphasis added). If “the arbitrator’s decision is ambiguous as to the resolution of the statutory issue, [we must hold that] the ‘clearly decided requirement has not been met.’ ” Id.
. See Pincus, 620 F.2d at 372 n.7. See also St. Luke’s Memorial Hospital, Inc. v. NLRB, 623 F.2d 1173, 1178-79 (7th Cir. 1980) (finding of “just cause” for discharge does not dispose of issue of discriminatory motive); Bloom v. NLRB, 603 F.2d 1015, 1020 (D.C.Cir. 1979) (“pT]he record must yield clear indication that the arbitration panel specifically dealt with the issues underlying the unfair labor charge.... ”); Stephenson, 550 F.2d at 538 ([B]efore deferral can be held proper ... the arbitral tribunal must have clearly decided the unfair labor practice issue which the Board is later urged to give deference.... ”).
. The arbitrator wrote:
ISSUE SUBMITTED
Was there just cause under the terms and conditions of the collective bargaining agreement for the discharge of John Coon? If not, what shall the remedy be?
NATURE OF THE CASE
. The grievant was terminated by the Company on the grounds of excessive absenteeism following a progression of discipline which included a written warning and a suspension for absenteeism. The Union grieved the termination, and the parties being unable to resolve their dispute, the Union sought arbitration.
DISCUSSION
Among the primary obligations of an employee is the duty to present himself for work on a reliable, dependable basis. Although every worker falls prey to illnesses which make occasional absences unavoidable, excessive absenteeism disrupts the ability of the Company to function effectively and thereby reduces the job security of all employees. Although it is unfortunate indeed that the grievant experienced debilitating back problems after a few difficult assignments, his record reflects many more absences than could reasonably be tolerated. The impact of this level of absenteeism was compounded by the failure of the grievant on many occasions to reach the proper Company official in order to report his absence in a timely manner.
The Company had alerted the grievant to its dissatisfaction with his attendance record through a series of increasingly severe disciplinary sanctions in keeping with the well-accepted tenets of progressive discipline which endeavor to make employees more secure in their jobs by alerting them to their employer’s dissatisfaction in time to correct their behavior and avoid being discharged.
Several warning letters followed by a suspension served without appeal after it had been reduced in length through Union intervention gave the grievant ample warning of the imminence, of termination unless his attendance record improved. There is no record of such improvement. Therefore, based on the clear thrust of the facts in evidence and the credible testimony, there was just cause for the discharge of John Coon. The grievance is denied.
. We are also concerned that even if the arbitrator did implicitly decide the statutory issue, . he did so by using the wrong legal standard. “Just cause” is to be determined by the terms of the collective bargaining agreement. The arbitrator may or may not take into account all motives for the discharge. Section 8(a)(1) and (3) violations, on the other hand, are to be adjudged in accordance with judicial standards and must take into account both the employer’s justifiable cause to discharge the employee and its possible discriminatory motive. See text accompanying notes 24-27 infra. See also Banyard v. NLRB, 505 F.2d 342, 348 (D.C.Cir. 1974); Note, 88 Harv.L.Rev. 804, 808 (1975). Without a specific mention in the arbitrator’s decision to the other possible motives for Coon’s discharge, this court must assume, as did the Board, that the arbitrator’s decision was based on the narrow, one-sided focus of the contract’s “just cause” standard. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 56-57, 94 S.Ct. 1011, 1023-24, 39 L.Ed.2d 147 (1974) (The court noted that the arbitrator’s primary duty is to effectuate the intent of the parties to the contract rather than the requirements of law).
. Our decision in the instant case is consistent with this court’s recent holding in NLRB v. Pincus, 620 F.2d 367 (3d Cir. 1980). In Pincus, this court held that the Board was required to defer because the arbitrator’s decision was arguably consistent with the Act. In that case, the statutory issues were whether an employee was terminated for writing and distributing a leaflet and whether that activity was protected under the Act. The arbitrator discussed all the facts relevant to these issues, found that the leaflet activity was one cause of the employee’s discharge, but found that the conduct fell outside the limits of the Act’s protection; he therefore upheld the discharge. The Board, relying on the same facts as did the arbitrator, concluded that the employee’s leaflet activity was protected and thus refused to defer.
By contrast, in the instant case there was neither a ruling on the unfair labor practice issue nor any indication in the arbitrator’s decision that he even considered the statutory issue. Rather, it appears from the arbitrator’s opinion that his decision on the contractual issue was based solely on Coon’s conduct, without reference to the employer’s other possible motives for the discharge.
Furthermore, contrary to respondent’s suggestion, our decision does not conflict with the Ninth Circuit’s judgment in Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979). As distinguished from the arbitrator’s decision in Douglas, the arbitrator’s decision in the instant case did not refer to all of the employer’s possible motives for the discharge. Consequently, there is no reasonable basis for holding that the arbitrator must have implicitly found them to be the “real cause” and not pretexts for Coon’s dismissal.
. Section 7 of the Act, 29 U.S.C. § 157 (1976) provides, “Employees shall have the right ... to engage in other concerted activities for the purposes of collective bargaining or [their] other mutual aid or protection. .. . ”
. Coon was assigned to the “Wrigley work” just two working days after the steward’s poll.
. See, e.g., Stein Seal Co. v. NLRB, 605 F.2d 703, 709 (3d Cir. 1979); Edgewood, 581 F.2d at 366-71.
. ALJ’s Decision at 7, reprinted in Appendix at 225. Although the ALJ does not use the term “pretext,” his statement, “I am convinced Coon was discharged, not for his absences, but in retaliation for the opposition by the employees to waive the cost of living increase and Coon’s known participation in such rejection” may be considered an equivalent statement.
. See ALJ’s Decision at 7, reprinted in Appendix at 224.
. See ALJ Decision at 8, reprinted in Appendix at 225 (ALJ, crediting Mrs. Coon’s credibility over that of respondent’s warehouse manager, found that the Company had been informed of Coon’s medical excuse for being absent on the day he was discharged). See also General Counsel Exhibit 11, reprinted in Appendix at 214. Respondent’s January 4, 1977 letter acknowledging that Coon had been under a doctor’s order not to work.
. See ALJ’s Decision at 8, reprinted in Appendix at 225.
. See complete text of ALJ’s Recommended Order, adopted by the Board, reprinted in Appendix at 228-29.
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_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.
WAYNE TITLE & TRUST CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 10541.
United States Court of Appeals Third Circuit.
Argued Jan. 10, 1952.
Filed March 17, 1952.
Charles S. Jacobs, Philadelphia, Pa. (William R. Spofford, Robert R. Batt, Philadelphia, Pa., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., on the brief), for petitioner.
Harry Marselli, Washington, D. C. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Special Assts. to the Atty. Gen., on the brief), for respondent.
Before GOODRICH and HASTIE, Circuit Judges, and BURNS, District Judge.
HASTIE, Circuit Judge.
In issue here is the status for income tax purposes of a percentage of title insurance premiums received by the taxpayer, an insurer, and set aside by it during the taxable year, in a “reinsurance reserve fund” in compliance with a state statute.
The taxpayer is a Pennsylvania corporation authorized to engage in a general banking, trust and title insurance business. A Pennsylvania statute regarding title insurance provides, among other things, that one engaging in the title insurance business must establish and maintain a reinsurance reserve fund so long as any policies shall be outstanding; that sums not less than stated percentages of all premiums received shall be set aside in this fund until the accumulation shall reach a certain amount; that the custody of the fund shall be retained by the title insuring company; that the fund shall be earmarked and kept separate and apart from other assets of the company; that the fund shall be under the supervision of the Insurance Commissioner; that the income from the fund shall become a part of the general assets of the company and that the principal of the fund “shall be a trust for the protection of the policyholders, and shall be applied only for the benefit of the holders of policies of title insurance.” Penn.Stat. Ann., Title 40, §§ 900, 901, 903, 904.
In compliance with this statute, petitioner set aside in its “reinsurance reserve fund”- during the taxable year 1946, an amount of money equal to 10% of all title insurance premiums collected during the year. This amount was not included in its gross income for federal income tax purposes. The Commissioner assessed a deficiency which the Tax Court upheld. The matter is before us on petition for review.
Preliminarily, it is clear, as was recognized by the Tax Court, that, because insurance constitutes only a small part of taxpayer’s business, its gross income is determinable under the general provisions of Section 22(a) of the Internal Revenue Code rather than other special provisions applicable to insurance companies. But in applying Section 22(a) to the facts of this case it is important that the money in question was received in payment for title insurance.
Normally, title insurance premiums are regarded as fully earned when received. And this characteristic is not destroyed by the requirement of Pennsylvania law that a portion of such premiums, or an equivalent sum, be set aside and retained in a reinsurance reserve fund. This court so ruled in American Title Co. v. Commissioner, 3 Cir., 1935, 76 F.2d 332, and that ruling is not challenged here. Rather, taxpayer argues that though the premiums paid to it were fully earned by it, the portion in dispute was received in trust for the insured so as not to be income to the insurer. Whether the concept of trust for the benefit of the insured can ever be used to prevent fully earned premiums from being income to the insurer we need not consider. It is enough that in the circumstances of this case the premiums clearly were income.
Since taxpayer’s task is to prove that premium payments actually received by it were not received as income it must show that a part of each premium came to it from the insured impressed with a trust. Such, it says, is the effect of the Pennsylvania statute. But that conception requires an unwarranted construction of the statutory scheme. The basic requirement of the statute is that the insuring company shall build a reinsurance reserve up to a required $500,000. This may be done by setting aside sums equal to specified percentages of premiums, or it may be done by setting aside sums out of surplus and undivided profits, or by utilizing reserves accumulated under a precedent statute, or by a combination of these methods. But the build up toward the required $500,000, however achieved, must be fast enough so that the fund will at no time be smaller than a stipulated percentage of premiums received. The required maintenance of a minimum proportional relationship is in itself not enough to make a part of any premium a trust res as it is received. It is much more significant that the insurer was explicitly authorized to use resources other than current premiums to establish and maintain the required fund. The flexible scheme for the accumulation of a reinsurance reserve must be considered whole, and so viewed cannot be described as imposing a trust upon premiums as received.
As a separate point, it is noteworthy that under the Pennsylvania statute, the income of the reinsurance reserve fund becomes the sole property of the taxpayer and can be used or disposed of as the taxpayer may see fit. In this very case the fund was invested in bonds. The resulting income was the unrestricted property of taxpayer. This is a significant distinction between the present situation and those cemetery association cases relied upon by taxpayer in which certain types of perpetual care funds have been regarded as trust funds excludible from cemetery association income. Commissioner of Internal Revenue v. Cedar Park Cemetery Ass’n, Inc., 7 Cir., 1950, 183 F.2d 553; American Cemetery Co. v. United States, D.C.D.Kan. 1928, 28 F.2d 918; Troost Avenue Cemetery Co. v. United States, D.C.D.Mo. 1927, 21 F.2d 194.
The Tax Court was correct in its conclusion that the entire amount of title insurance premiums received by taxpayer constituted income.
But even so, taxpayer says in its alternative argument, the transfer of the sum here in question from its unrestricted funds to the statutory reinsurance reserve fund amounted to a business expense deductible from gross income. We think, however, that in setting money aside in its reinsurance reserve fund taxpayer did not pay or incur expense within the meaning of the provision of Section 23 of the Internal Revenue Code, 26 U.S.C. § 23, which permits the deduction from gross income of ordinary business expenses incurred within the taxable year.
No payment was made to a third person as when a risk is reinsured. No fixed obligation to policyholders was involved. The insurer merely segregated and kept in its own custody, as a required safeguard against contingent liability, a portion of the Premiums collected. It is well settled that analogous voluntary segregation of reserves is not expense. Parkview Memorial Ass’n v. Commissioner, 1936, 34 B.T.A. 406; Springdale Cemetery Ass’n, 1925, 3 B.T.A. 223; Appeal of Pan-American Hide Co., 1925, 1 B.T.A. 1249. And the fact that this precaution is mandatory rather than voluntary does not make it any more the incur-cence of expense. Spring Canyon Coal Co. v. Commissioner, 10 Cir. 1930, 43 F.2d 78, 76 A.L.R. 1063, certiorari denied Spring Canyon Coal Co. v. Burnet, 284 U.S. 654, 52 S.Ct. 33, 76 L.Ed. 555. This failure to meet the concept of expense is very clear in the title insurance field because the protected obligation is so patently contingent. Unlike life insurance which insures against death liabilities certain to arise but uncertain only as to time, title insurance insures against defects which may or may not, at some future date, be found to have existed in real property titles at the time the policy was issued. Any liability which the title insurance company may have on its policies is, therefore, contingent and any reserve it may set up in the nature of self-insurance to meet this liability must be contingent rather than fixed. The attempted deduction of such a reserve, whether maintained voluntarily or in compliance with law, from gross income must be disallowed since it reflects no expenses paid or incurred.
The decision of the Tax Court will be affirmed.
. Insuring titles is insurance business. American Title Co. v. Commissioner, 1933, 29 B.T.A. 479, affirmed 3 Cir., 1935, 76 F.2d 332. In determining the tax liability of a company engaged in several activities including tbe insurance of titles, however, whether its gross income is determined by § 204 applicable to insurance corporations or by § 22(a) applicable to non-insurance corporations, 26 U.S.C. §§ 22(a), 204, depends on the activities which are the principal source of income during the taxable year. Bowers v. Lawyers Mortgage Co. 1932, 285 U.S. 182, 52 S.Ct. 350, 76 L.Ed. 690; Empire Title & Guaranty Co. v. U. S., 2 Cir., 1939,101 F.2d 69. Here the Tax Court found that only 9.4% of petitioner’s income during the taxable year was derived from the insurance business.
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_genapel2
|
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 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.
INCAS AND MONTEREY PRINTING AND PACKAGING, LTD., Plaintiffs-Appellants, v. M/V SANG JIN, her engines, tackle, apparel, etc., in rem, Joong Ang Shipping Co., Van Weelde Brothers Shipping Ltd. and Grundvig Chartering, Inc., Defendants-Appellees. In re INCAS AND MONTEREY PRINTING AND PACKAGING LTD., Petitioners.
Nos. 83-2571, 83-2627.
United States Court of Appeals, Fifth Circuit.
Dec. 3, 1984.
Rehearings and Rehearings En Banc Denied Jan. 4, 1985.
Vinson & Elkins, Harold K. Watson, Henry S. Morgan, Jr., Houston, Tex., Johnston, Adams, May, Howard & Hill, Alex T. Howard, Jr., Thomas S. Rue, Mobile, Ala., for plaintiffs-appellants.
Royston, Rayzor, Vickery & Williams, Bradley A. Jackson, Houston, Tex., for— M/V Sang Jin.
Clann & Pearson, Kathy A. Morrow, Edward J. Murphy', Houston, Tex., Clarkson S. Fisher, Jr., George J. Koelzer, Red Bank,. N.J., for — Van Weelde.
Bradley A. Jackson, Howard R. King, Edward J. Murphy, Kathy A. Morrow, Houston, Tex., George J. Koelzer, Red Bank, N.J., Hon. Ross N. Sterling, U.S. District Judge, Houston, Tex., Clarkson S. Fisher, Jr., Red Bank, N.J., for Joong Ang Shipping et al.
Before BROWN, GEE, and WILLIAMS, Circuit Judges.
JOHN R. BROWN, Circuit Judge:
This is an appeal from an order of the district court in an admiralty case requiring plaintiffs to post counter-security under Supplemental Admiralty Rule E(7), on pain of loss of its security for its original claim, which would likely destroy the in rem jurisdiction of the district court. We review the claims, vacate the district court order, and remand.
In the Beginning
The controversy spawning this legal action began in 1982, when plaintiffs arranged for the carriage of two consignments of paper aboard the M/V SANG JIN. Although the vessel was to proceed to East Africa, it instead made an unexpected stop in Pensacola, Florida, where plaintiffs’ cargo was discharged. Plaintiffs demanded possession of their cargo from defendants, Van Weelde Bros., the time charterers, and Joong Ang Shipping, the owners of the vessel. Defendants, however, refused delivery, claiming a lien on the cargo for the expense of discharging it in Florida.
Plaintiffs, seeking recovery of their cargo and damages for breach of contract of carriage, filed a complaint and had the M/V SANG JIN judicially arrested in Galveston on September 3, 1982 pursuant to Supplemental Admiralty Rule C. One week later, the district court entered an order requiring that security of $1,600,000 be posted for release of the vessel, and that plaintiffs post security of $125,000 for release of their cargo, in light of defendants’ lien for discharge expenses.
On September 17, 1982, defendant Van Weelde filed its answer to plaintiffs’ complaint, including counterclaims seeking $2,960,000 in damages. Van Weelde, the time charterer, alleged that plaintiffs had wrongfully seized the M/V SANG JIN with resultant commercial losses, including loss to its business reputation. On the same day, Van Weelde moved that plaintiffs be required to post counter-security for these counterclaims, as provided for in Supplemental Admiralty Rule E(7).
On September 24, 1982, the parties reached an agreement whereby plaintiffs’ cargo in Pensacola would be released without the posting of the $125,000 security required by the court’s order, on condition that plaintiffs agree to accept security for the vessel for $125,000 less than the $1,600,000 previously ordered by the court, and with plaintiffs’ agreement not to use the release of the cargo as an additional defense to Van Weelde’s lien against the cargo. On the same day, the court ordered that, defendants having posted security of $1,475,000 in the form of $375,000 deposited in the court registry and a letter of undertaking from the vessel owner’s Protection and Indemnity Club in the amount of $1,100,000, plaintiffs would be required to post equivalent counter-security for defendants’ counterclaims.
Plaintiffs having failed to post counter-security, defendants moved on October 4, 1982 that the court impose sanctions in the form of a release of the security posted by the vessel interests. Plaintiffs responded by requesting the court to reconsider its order requiring counter-security, a request which was denied by the court on March 16, 1983.
On September 13, 1983, the district court repeated its order of September 24, 1982 that plaintiffs post counter-security in the amount of $1,475,000. The court also ordered that the security posted by the vessel interests be released if counter-security was not posted within 10 days. On September 20, 1983, plaintiffs filed notice of appeal of the September 13, 1983 order. On September 22, 1983, this court granted a stay of the district court’s order, pending “further orders of the court.” Plaintiffs thereafter sought alternate relief from the district court’s order in the form of a petition for writ of mandamus. Ultimately, this court ordered the petition for writ of mandamus carried with the case pending determination of the appealability of the district court order of . September 13, 1983.
Appealability
Defendants first challenge the appealability of the September 13, 1983 order as lacking finality under 28 U.S.C. § 1291 (1982). That order required plaintiffs to furnish security for defendants’ counterclaims within 10 days, or else suffer the sanction of the release of defendants’ security for plaintiffs’ claims. We find the court’s order final, and hence appealable under § 1291; we further find that, even if not final, the order is nevertheless appealable under the Cohen doctrine.
Plaintiffs have invoked the trial court’s in rem jurisdiction by seizure of defendants’ vessel. Upon release of the vessel in exchange for the security posted by the vessel interests, plaintiffs’ in rem lien was transferred from the vessel to the fund representing the security. G. Gilmore and C. Black, The Law of Admiralty, § 9-89 (2d ed.1975). Thus, cancellation of the security would in effect put an end to plaintiffs’ complaint in rem, destroying the jurisdiction of the court and thus rendering moot any appeal therefrom. Seaboard and Caribbean Transport Corp. v. Hafen-Dampfschiffahrt A. G., 329 F.2d 538, 1964 A.M.C. 2109 (5th Cir.1964). See also L.B. Harvey Marine, Inc. v. M/V “RIVER ARC,” 712 F.2d 458, 459, 1984 A.M.C. 1588 (11th Cir.1983) (in maritime action, where res is no longer before the court, in rem jurisdiction destroyed); Taylor v. Tracor Marine, Inc., 683 F.2d 1361, 1362, 1983 A.M.C. 2968 (11th Cir.1982) (same holding), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983).
In Seaboard, we held that a decree in an in rem admiralty action releasing the bond put an end to the libel, and hence was a final decision and immediately appealable. 329 F.2d at 540,1964 A.M.C. at 2112. Similarly, in U.S. v. Vertol H21C, Registration No. N8540, 545 F.2d 648 (9th Cir.1976), an order releasing the certificate of deposit securing an in rem action against a helicopter was held appealable under 28 U.S.C. § 1291, primarily because “release of the helicopter (and the substituted security) ended the in rem action.” Id. at 650. Thus, where a court order vacates the attachment securing an in rem action, the order is final for purposes of § 1291.
Defendants further contend, however, that the order is not final because it merely reflected the court’s intention to enter sanctions if plaintiffs failed to post counter-security. It is true that the security posted by defendants has not yet been released due to an order of this court staying release of the security. But even if in rem jurisdiction has not yet been destroyed, the district court’s order is still appealable under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
Cohen created a narrow exception to the final judgment rule, permitting appeals of orders which finally determine rights separable from the merits of the action, and which are too important to be denied review. Id. at 546, 69 S.Ct. at 1225-26, 93 L.Ed. at 1536. In order to be appealable under the Cohen doctrine, an order must (1) conclusively determine the disputed question; (2) resolve' an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment. Coopers and Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351, 357-58 (1978) (footnote omitted); Oasis Oil and Refining Corp. v. Armada Transport and Refining, 719 F.2d 124, 126 (5th Cir.1983).
We believe such compelling considerations are shown by the record in the case before us. The Supreme Court has recognized that an order vacating an attachment has Cohen-type finality. Swift & Company Packers v. Compania Colombiana del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950). As the court there recognized, appellate review at a later date of an order releasing security “would be an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible.” 339 U.S. at 689, 70 S.Ct. at 865, 94 L.Ed. at 1210.
As previously discussed, entry of the order releasing the security for plaintiffs’ claim would destroy the trial court’s in rem jurisdiction. And even though that security has not yet in fact been released, we must remember that there is some flexibility built into the final judgment rule, and that practical, not technical considerations are to govern the principles of finality. Cohen, 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536; Oswalt v. Scripto, 616 F.2d 191, 194 (5th Cir.1980). For all practical purposes, the only remaining step necessary to end the present action is for the court formally to order the actual release of the security posted by the vessel interests, as it has specifically said it would do if counter-security is not posted. We can imagine no more perfect example of an over-technical application of the final judgment rule than to dismiss plaintiffs' appeal merely for want of one more order affecting the release of the security posted by defendants.
We therefore find the order in question appealable under 28 U.S.C. § 1291. Given the nature of the court’s order, and its practical effect on plaintiffs’ claim, we believe that appellate review at this point is not only appropriate, but is necessary if the order is to be reviewable at all.
Finally, the Merits
This brings us to plaintiffs’ contention that Van Weelde’s counterclaims are not the type for which counter-security may be required under Admiralty Rule E(7).
Defendant Van Weelde’s counterclaim asserts that plaintiffs (1) wrongfully seized the SANG JIN, (2) requested grossly excessive security, resulting in (3) interference with Van Weelde’s contractual obligations, and (4) disparagement of Van Weelde’s name in the business community. The cornerstone of these allegations is that plaintiffs had no right to employ the admiralty rules to arrest the SANG JIN in the first place. Since the admiralty is not concerned with common law labels as to theories of recovery, or causes of action, see Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550, 1957 A.M.C. 597 (1959), we are entitled to treat this broadly as a claim for wrongful seizure, whether denominated as such or as one for abuse of process, malicious prosecution, or all three.
In, Frontera Fruit Co. v. Dowling, 91 F.2d 293, 1937 A.M.C. 1259 (5th Cir.1937), we held that the right to recover damages for wrongful seizure of a vessel is based on a showing of bad faith, malice or gross negligence on the part of the libellant. Id. at 297, 1937 A.M.C. at 1266. Since that time, we have had occasion to decide, on the basis of Frontera, whether such bad faith existed as to warrant the award of damages for a wrongful seizure in admiralty. See e.g., Cardinal Shipping Corp. v. M/S SEISHO MARU, 744 F.2d 461 (5th Cir.1984); TTT Stevedores of Texas, Inc. v. M/V JAGAT VIJETA, 696 F.2d 1135 (5th Cir.1983); Tampa Ship Repair & Dry Dock Co. v. Esso Export Corp., 237 F.2d 506, 1956 A.M.C. 217 (5th Cir.1956). In none of these cases, however, were we required to decide the precise issue presented to us on this appeal: whether a counterclaim for wrongful seizure is an appropriate basis for requiring counter-security to be posted under Admiralty Rule E(7), or its predecessor, former Admiralty Rule 50. Upon examination of the intent of the Rule, we are of the opinion that counter-security should not be ordered for such a claim.
Under the terms of Rule E(7), counter-security may be required when a counterclaim is asserted which arises “out of the same transaction or occurrence” as the original libel. This language is identical to that defining compulsory counterclaims under F.R.Civ.P. 13(a). Thus, as Professor Moore has suggested, we can draw guidance on the proper scope of Rule E(7) by examining the test for counterclaims under F.R.Civ.P. 13(a). 7A J. Moore & A. Pelaez, Moore’s Federal Practice, E-727 (2d ed. 1983).
Under the broad test for Rule 13(a) adopted by this Circuit, a counterclaim is compulsory when there is any “logical relationship” between the claim and the counterclaim. Plant v. Blazer Financial Services, 598 F.2d 1357 (5th Cir.1979). See also 6 C. Wright & A. Miller, Federal Practice & Procedure § 1410 (1971) (indicating breadth of this test). However, even under this liberal standard, it is clear that an action in the nature of wrongful seizure or malicious prosecution does not lie as a compulsory counterclaim under F.R.Civ.P. 13(a). See, e.g., Olsen v. Puntervold, 338 F.2d 21 (5th Cir.1964) (malicious prosecution); U.S. General, Inc. v. City of Joliet, 598 F.2d 1050 (7th Cir.1979) (malicious prosecution). See generally 3 J. Moore, Moore’s Federal Practice ¶ 13.13, 13-78, n. 26 (2d ed.1984).
Such a counterclaim not “arising out of the same transaction or occurrence” as the original action for purposes of federal practice, and there being neither history nor practice in the admiralty suggesting any difference, we see no justification for applying Rule E(7) to a broader class of counterclaims than that permitted under F.R. Civ.P. 13(a). This is especially appropriate in light of the 1966 Unification of Admiralty and Civil Practice. We therefore conclude that, whether or not an action for wrongful seizure, abuse of process or malicious prosecution may be asserted as a counterclaim in admiralty practice, counter-security under Rule E(7) may not be required for such a claim.
This holding is supported by the decisions of the federal courts which have considered this precise question. In Amerada Hess Corp. v. S.S. ATHENA, 1984 A.M.C. 130 (D.Md.1984), the court denied defendant’s request for counter-security based on counterclaims alleging abuse of process and wrongful use of civil proceedings. In denying counter-security, the court reasoned that, since such a counterclaim would not be permitted under F.R.Civ.P. 13(a), it could not be the basis for requiring counter-security under Admiralty Rule E(7). Id. at 132.
A similar conclusion' was made under former Admiralty Rule 50 in Solomon v. Bruchhausen, 305 F.2d 941, 1963 A.M.C. 210 (2d Cir.1962), cert. denied sub nom Isbrandtsen v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499, 1963 A.M.C. 1646 (1963). There, the district court had ordered libellants to post counter-security for respondent’s cross-claim of abuse of process in the arrest of respondent’s vessels. The Second Circuit dismissed the cross-claim stating that an action for abuse of process could not be considered to have arisen out of the original action.
We thus decide that the district court improperly ordered the posting of security for defendants’ counterclaims. Having found appellate jurisdiction to decide this issue, plaintiffs’ petition for Writ of Mandamus in No. 83-2627 is mooted, and is therefore dismissed.
For the foregoing reasons, the district court’s order requiring appellant to post counter-security is vacated, and the cause remanded for further proceedings.
VACATED and REMANDED.
. We recite the facts as alleged in plaintiffs’ complaint.
. One consignment was taken on board in Savannah, Georgia, and the other in St. John, New Brunswick.
. Although the vessel sailed without issuing bills of lading, a third defendant, Grundvig Chartering, Inc., subsequently issued bills of lading as subcharterer. Defendant Van Weelde alleges that these bills of lading were fraudulently issued. Grundvig Chartering, named as a defendant in plaintiffs’ complaint, has yet to appear in this action.
. In its complaint, Incas invoked F.R.Civ.P. 9(h) to obtain the benefit of the Supplemental Rules for Admiralty.
. Defendant Joong Ang, who filed a Claim as Owner of the M/V SANG JIN, has made no counterclaims.
. Supplemental Admiralty Rule E(7) provides as follows:
(7) Security on counterclaim. Whenever there is asserted a counterclaim arising out of the same transaction or occurrence with respect to which the action was originally filed, and the defendant or claimant in the original action has given security to respond in damages, any plaintiff for whose benefit such security has been given shall give security in the usual amount and form to respond in damages to the claims set forth in such counterclaim, unless the court, for cause shown, shall otherwise direct; and proceedings on the original claim shall be stayed until such security is given, unless the court otherwise directs____
Thus, a counterclaim arising "out of the same transaction or occurrence” as the original claim is a prerequisite to the posting of counter-security under Rule E(7).
. Plaintiffs moved the court to amend its denial of reconsideration to permit an interlocutory appeal pursuant to '28 U.S.C. § 1292(b). On September 13, 1983, the court denied plaintiffs’ motion to so certify the order.
. The parties were not idle in the intervening months. During this time period, the court considered numerous discovery motions, as well as repeated motions by defendants to require plaintiffs to post security.
. The pertinent part of the court’s order is as follows;
It is, therefore,
ORDERED that plaintiffs will post security into the registry of the court in conformity with the court’s September 24, 1982, order within 10 days of the date of this Order. It is further ORDERED that upon plaintiffs failure to comply with the terms of this Order, Defendants motion for sanctions is GRANTED and the order of the court requiring defendants to post security is VACATED.
. For a full discussion of the effect of the substitution of security for a vessel’s release, see the opinion of Woolsey, J., in J.K. Welding Co. v. Gotham Marine Corp., 47 F.2d 332, 1931 A.M.C. 407 (S.D.N.Y.1931).
. Defendants cite our decision in Constructora Subacuatica Diavaz, S.A. v. M/V HIRYU, 718 F.2d 690 (5th Cir.1983) for the proposition that an order prospectively vacating a writ of attachment is not final within the meaning of § 1291. In that case, however, the court observed that bond for the release of the arrested vessel had yet to be fixed, nor did the record afford any basis for determining whether, when the bond was eventually fixed, it would be impossible as a practical matter for those required to post security to produce it. In the instant case, however, counter-security has already been required in the amount of $1,-475,000. Moreover, unlike the situation in Constructora, libellants here have made an attempt to post counter-security, and have at least indicated a prospective inability to meet the court’s demand. Thus, we believe this case is drawn closer to Swift & Co., than to Constructora.
. We are, of course, cognizant of our duty to strictly construe the collateral order doctrine. See, e.g. Anchor Hocking v. Willamette Indus., Inc., 694 F.2d 1041 (5th Cir.1983); In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir.1980), cert. denied sub nom, Mead Corp. v. Adams Extract Co., 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980); North American Acceptance Corp. v. Arnall, Golden and Gregory, 593 F.2d 642 (5th Cir.1979), cert. denied sub nom, Arnall, Golden and Gregory v. Smith, Cohen, et al., 444 U.S. 956, 100 S.Ct. 436, 62 L.Ed.2d 328 (1979).
. Our decision that the order is appealable under this section renders unnecessary any determination whether, as plaintiffs assert, it is appealable under 28 U.S.C. § 1292(a)(3), providing for appeal of certain orders in admiralty cases. We also need not consider plaintiffs’ petition for writ of mandamus to decide this question.
. In Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the Supreme Court stressed that even if an order meets all the other criteria for the Cohen doctrine, it is not appealable under § 1291 unless it would "be effectively unreviewable on appeal from a final judgment.” Id. at 376, 101 S.Ct. at 674, 66 L.Ed.2d at 580.
. Defendants also argue that even if the September 13, 1983 order is appealable, our review may only encompass the district court’s decision to release defendants' security, and that we cannot address the propriety of the court's decision to order counter-security in the first place. They maintain that since counter-security was first required by the order of September 24, 1982, any appeal of that decision is time-barred. See F.R.App.P. 4(a)(1). This argument ignores the fact that the very order from which plaintiffs’ appeal expressly repeats the directive that plaintiffs post counter-security for defendants’ counterclaim. See, supra note 9. The requirement that plaintiffs post counter-security being part of the September 13, 1983 order, it is properly before us for review. 28 U.S.C. § 2106.
Nor is the fact that plaintiffs’ Notice of Appeal refers only to the sanctions section of the September 13 order fatal to our jurisdiction. The requirement of F.R.App.P. 3(c) that a notice of appeal designate the judgment from which it is taken is not to be so strictly construed as to defeat an appeal where appellant’s overriding intent to appeal is clear. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see Comfort Trane Air Conditioning v. Trane Company, 592 F.2d 1373, 1390 at n. 15 (5th Cir.1979); U.S. v. Stromberg, 227 F.2d 903, 904 (5th Cir.1955).
. The pertinent portions of defendants’ counterclaim are as follows:
COUNT XXI
For further cause defendant, Van Weelde Bros. Shipping, Ltd., would show that Plaintiffs lack any standing to assert an in rem 'claim against the vessel. No rights or title to goods have accrued to Plaintiff since the bills of lading were fraudulently issued. Moreover, Plaintiffs derive their contract of carriage, if any exists, by virtue of unauthorized acts of a third party not through any actions of the owner of the vessel or his employees. The bills of lading in question bear neither the signature of the Master nor anyone authorized by him. Thus, Plaintiffs may have a claim against the wrongdoing party who issued the fraudulent bills but does not have a cause of action against those who neither knew of the fraud nor participated in it, neither have they any in rem action against the property of such innocent parties. Accordingly, Plaintiffs are liable for the wrongful seizure of the M/V SANG JIN and all damages arising or a result of Plaintiffs’ wrongful seizure ____
COUNT XXIII
For further cause Defendant, Van Weelde Bros. Shipping, Ltd., would show that the plaintiffs’ grossly excessive and improper demand for security has subjected Defendant, to unnecessary and unwarranted expenses. Accordingly, plaintiffs are liable for all of Defendant’s damages resulting from plaintiffs’ grossly excessive and improper demand for security____
. Admiralty Rule 50:
Whenever a cross-libel is filed upon any counterclaim arising out of the same contract or cause of action for which the original libel suit was filed, and the respondent or claimant in the original suit shall have given security to respond in damages, the respondent in the cross-libel shall give security in the usual amount and form to respond in damages to the claims set forth in said cross-libel, unless the court, for cause shown, shall otherwise direct; and all proceedings on the original libel shall be stayed until such security be given, unless the court otherwise directs.
. As the Supreme Court has stated,
Traditionally, admiralty has narrowly circumscribed the filing of unrelated cross-libels and defenses____[VJarious reasons have been offered for refusal to entertain unrelated defenses: protection of the seaman’s wage claims; preservation of relatively simple proceedings not affecting third-party rights; and the recognition that allowing cross-libels might deprive litigants of jury trials to which they would otherwise be entitled if the cross-libel were pressed in an independent proceeding.
United States v. Isthmanian SS Co., 359 U.S. 314, 320, 79 S.Ct. 857, 860-61, 3 L.Ed.2d 845, 849-50, 1959 A.M.C. 1332, 1337 (1959). Given this traditional narrow construction, the court concluded:
The law on this point in admiralty has been settled beyond doubt in the lower courts for many years and an Admiralty Rule of this Court recognizes this case law. We think that if the law is to change it should be by rule-making or legislation and not by decision.
Id. at 323, 79 S.Ct. at 862, 3 L.Ed.2d at 851.
. While the Solomon court held that a claim of wrongful seizure would not lie at all as a cross-claim in admiralty, 305 F.2d at 943, we do not decide that question. We merely hold that counter-security may not be required under Rule E(7) for such a claim. We observe, however, that other courts have reached the same conclusion as the court in Solomon. See, Maritime Terminals v. M/S JAN, 1978 A.M.C. 1236 (N.D.Ill.1978) (claim of wrongful arrest does not lie as cross-claim in admiralty); United States v. M/V PITCAIRN, 272 F.Supp. 518 (E.D.La.1967) (wrongful seizure claim does not arise out of the same cause of action as the original libel).
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:
|
sc_jurisdiction
|
F
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
GONDECK v. PAN AMERICAN WORLD AIRWAYS, INC., et al.
No. 919,
October Term, 1961.
Certiorari denied June 11, 1962.— Rehearing denied October 8, 1962
Rehearing and certiorari granted and case decided October 18, 1965.
Arthur Roth for petitioner.
Leo M. Alpert for respondents.
Per Curiam.
Petitioner’s husband, Frank J. Gondeck, was killed as a result of a jeep accident on San Salvador Island outside a defense base at which he was employed. The accident took place in the evening as Gondeck and four others were returning from a nearby town. The Deputy Commissioner of the Bureau of Employees’ Compensation, United States Department of Labor, awarded death benefits to petitioner in accordance with the terms of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U. S. C. § 1651 et seq. (1958 ed.). In support of the award, the Deputy Commissioner found, among other things, that, although Gondeck had completed his day’s work, he was subject to call for emergencies while off duty and was returning from reasonable recreation when the accident occurred. The District Court set aside the Deputy Commissioner’s order, and the Court of Appeals for the Fifth Circuit affirmed. United States v. Pan American World Airways, Inc., 299 F. 2d 74. The Court of Appeals acknowledged that Gondeck was subject to call, id., at 75, but found no benefit to the employer in Gondeck’s trip, and “no evidence that furnishes a link by which the activity in which Gondeck was engaged was related to his employment.” Id., at 77.
On June 11, 1962, we denied certiorari. 370 U. S. 918. On October 8, 1962, we denied a petition for rehearing. 371 U. S. 856. We are now apprised, however, of “intervening circumstances of substantial . . . effect,” justifying application of the established doctrine that “the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules.” United States v. Ohio Power Co., 353 U. S. 98,99. Subsequent to our orders in the present case, the Court of Appeals for the Fourth Circuit upheld an award to the survivors of another employee killed in the same accident. Pan American World Airways, Inc. v. O’Hearne, 335 F. 2d 70. In upholding the award, the court cited our decision in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504. In a subsequent case the Court of Appeals for the Fifth Circuit itself expressed doubt whether its decision in the present case had been consistent with Brown-Pacific-Maxon. O’Keeffe v. Pan American World Airways, 338 F. 2d 319, 325. The court also noted that, “The Gondeck case stands alone, except for a per curiam opinion.” Id., at 325. This Court reversed that per curiam judgment last Term, O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U. S. 359, so that the present case now stands completely alone.
In O’Keeffe we made clear that the determinations of the Deputy Commissioner are subject only to limited judicial review, and we reaffirmed the Brown-Pacific-Maxon holding that the Deputy Commissioner need not find a causal relation between the nature of the victim’s employment and the accident, nor that the victim was engaged in activity of benefit to the employer at the time of his injury or death. No more is required than that the obligations or conditions of employment create the “zone of special danger” out of which the injury or death arose. Since the Court of Appeals for the Fifth Circuit misinterpreted the Brown-Pacific-Maxon standard in this case, and since, of those eligible for compensation from the accident, this petitioner stands alone in not receiving it, “the interests of justice would make unfair the strict application of our rules.” United States v. Ohio Power Co., supra, at 99.
We therefore grant the motion for leave to file the petition for rehearing, grant the petition for rehearing, vacate the order denying certiorari, grant the petition for certio-rari, and reverse the judgment of the Court of Appeals.
It is so ordered.
Mr. Justice Fortas took no part in the consideration or decision of this case.
Mr. Justice Clark,
joining in the judgment.
I fully agree with my Brother Harlan “that litigation must at some point come to an end” and “that this decision holds seeds of mischief for the future orderly administration of justice . . . .” But with Cahill v. New York, N. H. & H. R. Co., 351 U. S. 183 (1956), on our books, no other conclusion can be reached.
Up until Cahill I thought that successive petitions for rehearing would not be received by the Court under its Rule 58 (4). This rule took the place of the old “end of Term” rule of Bronson v. Schulten, 104 U. S. 410, 415 (1882), abolished by the Congress in 1948, 28 U. S. C. § 452 (1958 ed.). Indeed, I doubted that the Court had the power to grant a successive petition for rehearing under a factual situation, as here, where a petition for certiorari had been denied over three years ago, 370 U. S. 918 (1962); a petition for rehearing had been denied, 371 U. S. 856 (1962); the mandate had issued more than three years before; and where petitioner had, about the same date, cancelled her appeal bond and been discharged of all liability thereunder. In Cahill, however, the Court through the device of a “motion to recall and amend the judgment” permitted a successive petition not only to be received but granted, despite the fact that the judgment thereby reopened had been previously paid. This paved the way for the grant of a successive petition for rehearing in United States v. Ohio Power Co., 353 U. S. 98 (1957), to make its judgment conform with this Court’s decision that same Term in United States v. Allen-Bradley Co., 352 U. S. 306 (1957), a companion case of Ohio Power in the Court of Claims.
The vice, of course, is the granting of successive petitions for rehearing in violation of Rule 58 (4), which was done for the first time in Cahill. It makes no difference that the rejection of finality be to correct alleged errors of our own or those below. Nor does it matter that the errors be corrected in the same Term, as in Cahill, or four Terms later, as here. In each instance the action violates Rule 58 (4) and that is the basis of my position.
I, too, as my Brother Harlan said in Ohio Power, “can think of nothing more unsettling to lawyers and litigants, and more disturbing to their confidence in the evenhand-edness of the Court’s processes, than to be left in . . . uncertainty ... as to when their cases may be considered finally closed in this Court.” At p. Ill (dissenting opinion). However, Cahill opened up this practice. It may be that Ohio Power and the present case are more objectionable on their facts, but they merely condone Cahill’s original vice. Until we can gain the vote of the majority to the contrary we are stuck with the practice. The outlook for this appears dim. We can only hope that this rule of “no finality,” which the Court varnishes with the charms of reason, will be sparingly used, or overruled by Congress, as was the “end of Term” rule. I, therefore, join in the judgment of the Court.
U. S. Supreme Ct. Rule 58 (2).
“Consecutive petitions for rehearings, and petitions for rehearing that are out of time under this rule, will not be received.”
Mr. Justice Black, joined by The Chief Justice, Mr. Justice Douglas and myself, dissented.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
sc_petitioner
|
019
|
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.
PAUL, DIRECTOR OF AGRICULTURE OF CALIFORNIA, et al. v. UNITED STATES.
No. 19.
Argued October 17-18, 1962. —
Decided January 14, 1963.
John Fourt, Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were Stanley Mosk, Attorney General, Lawrence E. Doxsee, Deputy Attorney General, and Roger Kent.
Solicitor General Cox argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Guilfoyle and Alan S. Rosenthal.
Briefs of amici curiae, urging reversal, were filed for the State of Mississippi by Joe T. Patterson, Attorney General; for the State of Nevada by Charles E. Springer, Attorney General, and Louis Mead Dixon, Special Deputy Attorney General; for the State of Oregon by Robert Y. Thornton, Attorney General, and Don Parker, Assistant Attorney General; for Consolidated Milk Producers of San Francisco, Inc., by Gerald D. Marcus; for the Dairy Institute of California et al. by Emil Steck, Jr., Thomas G. Baggot and Jesse E. Baskette; for Petaluma Cooperative Creamery by Joseph A. Rattigan; and for the Protected Milk Producers Association of Paramount, California, et al. by George E. Atkinson, Jr.
Mr. Justice Douglas
delivered the opinion of the Court.
The main question in this case is whether California can enforce her minimum wholesale price regulations as respects milk sold to the United States at three military installations (Travis Air Force Base, Castle Air Force Base, and Oakland Army Terminal) located within California and used for strictly military consumption, for resale at federal commissaries and for consumption or resale at various military clubs and post exchanges. Milk used for the first two categories of use is paid for with appropriated funds, while that used in the clubs and exchanges is purchased with nonappropriated funds. Prior to January 1959, the milk supplies purchased with appropriated funds and used at those installations were obtained as a result of competitive bidding and on terms below the minimum prices prescribed by the Director of Agriculture of California. The Director advised distributors that the State’s minimum price regulations were applicable to sales at Travis. Subsequently bids for milk-supply contracts at Travis were in strict compliance with California’s regulations, the added cost to the Federal Government being about $15,000 a month. Later that year California instituted a civil action in the state courts against a cooperative that had supplied milk at Travis below the state minimum price, seeking civil penalties and an injunction. Thereafter the United States brought this suit in the District Court. The complaint alleged that state price regulation of milk sales at Travis, a federal enclave, was barred by the Constitution, since Travis is subject to the exclusive jurisdiction of the United States. It also alleged that such regulation was an unconstitutional burden on the United States in the exercise of its constitutional power to establish and maintain the Armed Forces and to acquire and manage a federal enclave. The complaint asked that a three-judge court be convened.
Meanwhile, the Director of Agriculture of California warned distributors that the California regulation would be enforced at Castle and at Oakland. Bids for milk thereafter received at Castle were all at or above the state minimum price; and accordingly they were rejected. A new invitation for bids was issued, and one of those received was below the state minimum. Thereupon California sued the successful bidder for an injunction; and later it sued other like bidders. A similar experience was had at Oakland; bids at or above the minimum were rejected, and a contract with a distributor for a prior period was extended for three months with an estimated saving to the United States of over $30,000. California again instituted suit to enjoin the supplier from selling at below established minimum wholesale prices. The United States amended its complaint to include its purchases at Castle. As respects Oakland the United States commenced a separate action by a complaint substantially identical with the other one; and they were later consolidated.
Appellants denied that these three installations were federal enclaves giving the United States exclusive jurisdiction and that there was any conflict between the state regulatory scheme and the federal procurement policy. Appellants also moved that the District Court stay these actions pending determination of state-law questions by the state courts in the pending actions.
The three-judge District Court refused to stay the proceedings and granted the motion of the United States for summary judgment. 190 F. Supp. 645.. We postponed a determination of jurisdiction to the merits. 368 U. S. 965.
Here, as in United States v. Georgia Public Service Comm’n, post, p. 285, decided this day, the suit was one “required” to be heard by a three-judge court within the meaning of 28 U. S. C. § 1253 and therefore properly brought here by direct appeal. Apart from the question whether the three federal areas were subject to the exclusive jurisdiction of the United States, the issue as to whether or not the state regulatory scheme burdened the exercise by the United States of its constitutional powers to maintain the Armed Services and to regulate federal territory was a substantial federal question, as Penn Dairies, Inc., v. Milk Comm’n, 318 U. S. 261, Public Utilities Comm’n of California v. United States, 355 U. S. 534, and United States v. Georgia Public Service Comm’n, supra, make clear. A three-judge court was therefore required even if other issues that might not pass muster on their own were also tendered. See 28 U. S. C. § 2281; Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U. S. 73.
II.
The California Act authorizes the Director of Agriculture to prescribe minimum wholesale and retail prices “at which fluid milk or fluid cream shall be sold by distributors to retail stores, restaurants, confectioneries and other places for consumption on the premises.” The prohibitions run both against sales and against purchases; and both criminal and civil penalties are provided. The minimum wholesale prices, promulgated by the Director of Agriculture, have been enforced with respect to sales to the United States, as already noted.
In Public Utilities Comm’n of California v. United States, supra, we held that the federal procurement policy, which required competitive bidding as the general rule and negotiated purchase or contract as the exception, prevailed over California’s regulated rate system. That case, like United States v. Georgia Public Service Comm’n, supra, concerned transportation of commodities. But the federal policy at the times relevant here was the same for procurement of supplies and services. The statutes in effect at the time of the Public Utilities Comm’n of California case are still the basic provisions governing all procurement by the Armed Services out of appropriated funds. They require that contracts be placed by competitive bidding, the award to be granted “to the responsible bidder whose bid... will be the most advantageous to the United States, price and other factors considered.” There are statutory exceptions, the relevant ones being as follows:
“(a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances. If use of such method is not feasible and practicable, the head of an agency, subject to the requirements for determinations and findings in section 2310, may negotiate such a purchase or contract, if—
“(8) the purchase or contract is for property for authorized resale ;
“(9) the purchase or contract is for perishable or nonperishable subsistence supplies;
“(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;
“(15) the purchase or contract is for property or services for which he determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (A) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (B) the negotiated price is lower than the lowest rejected bid of any responsible bidder, as determined by the head of the agency; and (C) the negotiated price is the lowest negotiated price offered by any responsible supplier.”
The Armed Services Procurement Regulation speaks in unambiguous terms of a policy “to use that method of procurement which will be most advantageous to the Government — price, quality, and other factors considered.” The Regulation states, “Such procurement shall be made on a competitive basis, whether by formal advertising or by negotiation, to the maximum practicable extent....” Whatever method is used — formal advertising or negotiation — “competitive proposals” must be “solicited from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure such full and free competition as... to obtain for the Govérnment the most advantageous contract — • price, quality, and other factors considered.” If advertising for bids is used, the contract is to be awarded “to the lowest responsible bidder.” Moreover, even when advertising for bids is not used, competitive standards are not relaxed. The policy is “to procure supplies and services from responsible sources at fair and reasonable prices calculated to result in the lowest ultimate over-all cost to the Government.” “The fact that a procurement is to be negotiated does not relax the requirements for competition.” “Whenever supplies... are to be procured by negotiation, price quotations... shall be solicited from all such qualified sources of supplies or services as are deemed necessary... to assure full and free competition... to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.” The Regulation then specifies 20 separate considerations for the selection of a supplier in case of a negotiated procurement. The first of these is a “comparison of prices quoted.”
We have said enough to show that the Regulation does more than authorize procurement officers to negotiate for lower rates. It directs that negotiations or, wherever possible, advertising for bids shall reflect active competition so that the United States may receive the most advantageous contract.
While the federal procurement policy demands competition, the California policy, as respects milk, effectively eliminates competition. The California policy defeats the command to federal officers to procure supplies at the lowest cost to the United States by having a state officer fix the price on the basis of factors not specified in the federal law. Moreover, when the supply contract is negotiated because “it is impracticable to obtain competition,” to use the statutory words, it is the state agency, not the federal procurement officer and the seller, that determines the price provisions of the contract, if state policy prevails. The collision between the federal policy of negotiated prices and the state policy of regulated prices is as clear and acute here as was the conflict between federal negotiated rates and state regulated rates in Public Utilities Comm’n of California v. United States, supra. In that case we said that the Regulation then existing, which was promulgated under the same Act here involved, “sanction[ed] the policy of negotiating rates for shipment of federal property and entrust [ed] the procurement officers with the discretion to determine when existing rates'will be accepted and when negotiation for lower rates will be undertaken.” 355 U. S., at 542-543.
Penn Dairies, Inc., v. Milk Control Comm’n, supra, is not opposed. As we noted in United States v. Georgia Public Service Comm’n, supra, Congress, after the Penn Dairies decision and before Public Utilities Comm’n of California v. United States, revised and restated the federal procurement policy. As stated in the House Report, “... the bill represents a comprehensive revision and restatement of the laws governing the procurement of supplies and services by the War and Navy Departments. It holds to the time-tested method of competitive bidding. At the same time it puts within the framework of one law almost a century’s accumulation of statutes and incorporates new safeguards designed to eliminate abuses, assures the Government of fair and reasonable prices for the supplies and services procured and affords an equal opportunity to all suppliers to compete for and share in the Government’s business.”
The Regulation controlling the Penn Dairies decision stated, as does the present Act, that supplies might be purchased on the open market where it is “impracticable to secure competition.” 318 U. S., at 277. But, unlike the present Regulation, the earlier one declared that such a situation arose “when the price is fixed by federal, state, municipal or other competent legal authority.” Ibid. The earlier Regulation further stated that federal procurement officers should not require suppliers to comply with state price-fixing laws before it was judicially determined whether the latter were applicable to government contracts (id., at 276), a provision which the Court said manifested a federal “hands off” policy-respecting minimum price laws of the States. Id,., at 278.
The present Regulation makes no such allowances, contains no such qualifications, and provides for no such exception. Its unqualified command is that purchases for the Armed Services be made on a competitive basis; and it has, of course, the force of law. Public Utilities Comm’n of California v. United States, supra, at 542-543. California’s price-fixing policy for milk is as opposed to this federal procurement policy as was California’s rate-making policy in Public Utilities Comm’n of California v. United States, supra.
Policy-wise, it might be better if state price-fixing systems were honored by federal procurement officials. It is urged that if that were done substandard producers of some suppliers would lose the advantage they may enjoy in competitive bidding. Congress could of course write that requirement into the law. Congress has written into the Act certain provisions of that character. It has required that contractors or manufacturers pay not less than the minimum wage as determined by the Secretary of Labor to be the prevailing wage; that building contractors pay such minimum wages to laborers and mechanics; and that no laborer or mechanic doing any work for contractors and subcontractors on government contracts shall be required or permitted to work more than eight hours a day, unless one and a half times the basic rate is paid for overtime. The inclusion of these provisions, aimed as they are at substandard working conditions, shows that Congress has been alert to the problem. Their inclusion makes more eloquent the omission of any like requirement as respects prices or rates fixed by state law.
It is argued that the Act of September 10, 1962, 76 Stat. 528, changed the situation. California points to § 2306 (f), which requires contractors to submit cost or pricing data for any negotiated contract, but goes on to lift that requirement where “prices [are] set by law or regulation.” But this provision does not say, even equivocally, that federal procurement officers must abandon competitive bidding where prices are “set by law or regulation.” The Regulation makes competitive bidding the rule, as we have seen. Section 2306 (f) only provides for waiver of “cost or pricing data” under certain kinds of negotiated contracts if the prices of some commodities included in the contract have been “set by law or regulation.” That is to say, as, if, and when the procurement officer is authorized to accept prices “set by law or regulation,” he need not follow the requirements of § 2306 (f) concerning “cost or pricing data.”
California cites but builds no argument around § 2304 (g), also added in 1962. It is now suggested for the first time that § 2304 (g) requires federal procurement to follow state rate-fixing and state price-fixing. It provides in relevant part:
“In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which Jime of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered....”
Here again, the new statutory provision does not purport to say when rates or prices “fixed by law or regulation” govern federal procurement. At the time § 2304 (g) was added to the Act, the Regulation which we have discussed at length was in full force. That Regulation, unlike the one in Penn Dairies, eliminated the earlier provisions which had been construed to manifest a federal “hands off” policy respecting minimum price laws of the States. 318 U. S., at 278. The Regulation in force when this litigation started and in force when the 1962 Act was passed provides unequivocally for competitive bidding “to the maximum practicable extent,” as we have noted. That might well permit procurement officers under some circumstances to purchase at state-fixed prices. But competitive bidding is the rule, not the exception. There is not a word in the legislative history of the 1962 Act which indicates a congressional policy to uproot the Regulation or to change it. It was, indeed, repeatedly approved. See S. Rep. No. 1884, 87th Cong., 2d Sess.; H. R. Rep. No. 1638, 87th Cong., 2d Sess., Parts I and II; Cong. Rec., June 7, 1962, p. 9231 et seg. Four years before the 1962 Act was passed California Comm’n had held that state regulations cannot preclude the Federal Government from negotiating lower rates. This result was not once questioned in the legislative history of the 1962 Act, even though the instant case was being litigated during this entire period. That Act only reflects an effort to provide collateral accommodations as, if, and when federal procurement follows state price-fixing. The mandate of 10 U. S. C. § 2305 (a) is still unequivocal; and the statutory exceptions to competitive bidding contained in § 2304 (a), discussed above, remain unchanged.
The 1962 Act fails to show a congressional purpose to abandon competitive bidding. On the contrary the purpose, as stated in S. Rep. No. 1884, 87th Cong., 2d Sess., was to increase the efficacy of the competitive bidding system then in force.
Not only was the existing Regulation cited repeatedly with approval, but the aim of the Act was described in unambiguous terms:
“In general, the objectives of the changes are—
“(1) To encourage more effort to accomplish procurements by formal advertising;
“(2) To require a clearer justification before certain authorities to negotiate contracts are used;
“(3) To obtain more competition in negotiated procurement;
“(4) To provide safeguards for the Government against inflated cost estimates in negotiated contracts.” Id., p. 1.
The House received an equally unambiguous explanation from the floor manager of the bill:
“[TJhis bill... has for its chief purpose, an increase in competitive purchasing.... [OJnly 13 percent of purchasing is now done by sealed competitive bidding. That is clearly not enough. Competition must be increased; competition must be had even in negotiated purchasing; and all negotiated purchasing must be further reduced.” Cong. Rec., June 7, 1962, p. 9234.
If there had been a desire to make federal procurement policy bow to state price-fixing in face of the contrary policy expressed in the Regulation, we can only believe that the objectives of the Act would have been differently stated. In sum, the references to rates or prices “fixed by law or regulation” are merely minor collateral accommodations to those situations where, within the limits of the Regulation and the 1962 Act, the federal procurement official decides that the practical way to obtain the supplies or services is by following the state price-fixing or rate-fixing system.
California, however, says that whatever may be the federal policy as to purchases of milk for mess-hall use, purchases of milk for resale at federal commissaries stand on a different footing. These commissaries are “arms of the Government deemed by it essential for the performance of governmental functions” and “partake of whatever immunities” the Armed Services “may have under the Constitution and federal statutes.” Cf. Standard Oil Co. v. Johnson, 316 U. S. 481, 485. Purchases for resale at these federal commissaries are made from appropriated funds; and the procurement officers act under the same Regulation when they purchase milk for the commissaries as they do when they purchase it for mess-hall use. California points out, however, that the federal statute provides that where commodities are purchased for resale, they may be procured by negotiation rather than by formal advertising — a provision we have quoted above and which was written into the law because purchases for commissaries “are generally not made by specifications but by brand names.” Milk, however, does not fit the category of commodities for which that exception was designed. Moreover, the statutory exception to formal advertising is merely permissive; the procurement officer “may” negotiate for articles to be resold but he is not required so to do. He is free to purchase by formal advertising from the responsible bidder whose bid “will be the most advantageous to the United States.” Whether he negotiates milk contracts or uses competitive bidding is made dependent by the federal statute on his informed discretion, not on state price-fixing policies. Moreover, as, if, and when he negotiates, the Regulation, as already-noted, requires price quotations “from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure full and free competition... to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.” And, to repeat, the procurement officer when he negotiates is controlled by 20 separate factors, one of which is “comparison of prices quoted,” and none of which relates in any manner whatsoever to the price-fixing policies of a State.
The fact that the cost of products sold at commissaries benefits commissary purchasers does not make the commissary any the less a federal agency. Cf. Standard Oil Co. v. Johnson, supra. Congress authorizes the payment for commissary supplies from appropriated funds. The federal statutes dealing with procurement policies expressly make them applicable to all purchases “for which payment is to be made from appropriated funds.” Congress, to be sure, has provided that commissaries may not use any appropriated funds “unless the Secretary of Defense has certified that items normally procured from commissary stores are not otherwise available at a reasonable distance and a reasonable price in satisfactory quality and quantity to the military and civilian employees of the Department of Defense.” Here again, however, the question of what is a “reasonable price” is left to the discretion of a federal officer. Congress has not directed that commissaries be removed from the purview of federal procurement policies; nor has it adopted state price-fixing policies as federal policies when it comes to purchases for commissaries or otherwise.
III.
What we have said would dispose of the entire case but for the fact that some of the milk was purchased out of nonappropriated funds for use in military clubs and for resale at post exchanges. This brings us to the question whether Congress has power to exercise “exclusive legislation” over these enclaves within the meaning of Art. I, § 8, cl. 17, of the Constitution, which reads in relevant part: “The Congress shall have Power... To exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia and “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
The power of Congress over federal enclaves that come within the scope of Art. I,
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_method
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
Barbara Jean BERRY et al., Plaintiffs-Appellees-Cross-Appellants, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR, MICHIGAN, et. al., Defendants-Appellants-Cross-Appellees.
Nos. 71-1957 and 71-1958.
United States Court of Appeals, Sixth Circuit.
Nov. 1, 1974.
Robert P. Small, Small, Shaffer & Small, Benton Harbor, Mich., for defendant-appellant-cross-appellee.
Stuart J. Dunnings, Jr., Dunnings & Gibson, Lansing, Mich., Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Nathaniel R. Jones, New York City, for plaintiffs-appellees-cross-appel-lants.
Before PHILLIPS, Chief Judge and EDWARDS and PECK, Circuit Judges.
PECK, Circuit Judge.
Plaintiffs instituted this desegregation action against the School District of the City of Benton Harbor, Michigan, members of the local school board and the district’s chief administrative officer in 1967, alleging unconstitutional segregation and inferior educational opportunities for black students. The case was tried before the late Judge W. Wallace Kent, Western District, Michigan, in February 1970. In the findings of fact and conclusions of law announced in July 1971 the court found that although a racial imbalance existed in the school district, defendants had not created it and had no affirmative legal duty to adopt a system wide remedial plan. The court, however, did find defendants guilty of discrimination in three areas: (1) assignment of teaching positions; (2) use of different systems to establish learning groups at three junior high schools; and (3) budgeting for operational expenses on a per-pupil basis. The court ordered defendants to discontinue discriminatory practices in the above areas. Defendants perfected this appeal from the above findings and from the orders to desist, and plaintiffs perfected a cross-appeal claiming that the court erred in not finding de jure segregation and in not providing adequate remedies for the discrimination it found.
Defendant school district was formed in 1965 by a process of consolidation, annexation and attachment of separate school districts in and around Benton Harbor. It encompasses an area of 57 square miles, and in 1969 it enrolled approximately 12,000 students in 28 regular schools. The professional staff consisted of 470 teachers and 50 administrators. At the time of consolidation the school board adopted the existing attendance area boundary lines of the predecessor districts, the result of which was that by 1970, seven of the 28 schools were more than 80% black and 14 more than 80% white. Only 7 of 28 schools could be termed mixed. The overall student population was approximately 49% black and 51% white. Both before and after consolidation, however, all area students attended Bénton Harbor High School, which during the 1969-1970 school year was 40% black and 60% white.
The district court attributed pupil population in the schools in the consolidated district to “the racial complexion of the area served by the individual schools.” It also pointed out that the number and density of the black population had increased between 1965 and 1970, and that with few exceptions the predominately black neighborhoods contained less than adequate housing. Although defendants were not held responsible for the segregated housing patterns, the court stated that the “containment of blacks [caused] the percentage of students attending schools with a student body of fifty percent or more of the same race [to increase].” The defendants made no effort to alter attendance boundaries to achieve a better racial balance.
In 1970 there were approximately 470 teachers in the district, 83 (17.7%) of whom were black. Black teachers were actively recruited by the school district and the years 1965 through 1970 saw a steady improvement in the percentage of black teachers employed. But the district court found that the method used to assign the teachers was racially motivated and that a disproportionate number of black and generally inexperienced teachers were assigned to predominantly black schools resulting in a denial of equal educational opportunity to black students. Nearly 70% of the black elementary and junior high teachers were assigned to predominantly black schools, while 15 schools had 100% white faculties. The district court ordered defendants to desist from assigning teachers on the basis of race.
The court also found that the physical conditions in a number of the schools turned over to the consolidated district in 1965 were grossly inadequate and that all of the buildings operated by the district were generally crowded. It further noted that the median age for predominantly black schools was 43 years, while the median age for predominantly white schools was 17 years. In spite of a well recognized need for improved facilities, no new construction or substantial remodeling was undertaken in the elementary or junior high schools after consolidation due to lack of funds. The court ascribed the differences among the various schools to different types of land and economic development and wide variances in assessed valuation for taxes in the predecessor districts.
Defendants operated three separate schools for junior high level students; Fairplain Junior High School (predominantly white), Hull School (mixed), and Benton Harbor Junior High School (predominantly black). Two different methods were used to establish learning groups in the three units and this led the district court to the following conclusion :
“The tracking system as used at Benton Harbor Junior High School as differentiated from that used at Fair-plain Junior High School and Hull Junior High School, results in a denial of equal opportunity to the students at Benton Harbor Junior High School to achieve the same level of education in junior high school and high school as is afforded to the students at Fair-plain Junior High School and at Hull Junior High School. This system is improper and denies equal opportunity to the children who are attending Benton Harbor Junior High School.”
The court ordered the tracking system used at Benton Harbor Junior High School discontinued.
The district court received extensive evidence regarding the district’s budgeting procedures. It found that the budgeting of funds for operational expenses was done on a per-pupil basis and that as a result predominantly white schools which were generally in good condition were able to maintain that status while the older and more dilapidated facilities in predominantly black schools were not upgraded due to lack of funds. Defendants were ordered to revise this budgeting procedure.
A thorough review of the record convinces us that the district court’s findings that defendants were guilty of discrimination in the assignment of teachers and in the use of two different methods of establishing learning groups in the junior high schools were supported by the evidence. However, it is clear that the district court erred in finding discrimination in the budgeting procedures.
The district court made the following finding of fact:
“[T]he budgeting of funds is done by the Defendant on a per-student basis, as a result of which many of the schools with majority white students which came into the consolidated district with good facilities are in a position to maintain good facilities, and those schools which came into the consolidated district without good facilities do not have sufficient funds to improve the situation. The budgeting provides for $10.00 per child for operational expense.”
The Superintendent explained that the per-student allocation was used only for “instructional supplies, library and office supplies.” Teachers’ salaries, maintenance and repairs, and capital expenditures all came from different and separate funds.
The conclusion reached by the district court was apparently based upon the erroneous assumption that the allocation of $10.00 per-pupil per year for operational expenses was spent to maintain the school buildings, or could have been spent to upgrade some of the older facilities. The only evidence of record, however, was that new construction, renovation, and regular .maintenance had nothing to do with the operating budget. Thus we must conclude that the district court was clearly erroneous in finding defendants guilty of discrimination in this regard.
It is clear from a recital of the facts of record in this case that a number of important indicia of de jure segregation were present even though a dual school system was neither compelled nor authorized by law. The school system was in fact racially imbalanced, teachers were assigned on the basis of race, the physical condition of the predominantly black schools was generally inferior to the conditions in the predominantly white schools, and the method of assigning students to learning groups in the black junior high school deprived black students of an equal opportunity for an education. The Supreme Court has stated that discrimination in these areas of education constitutes a prima facie case of the existence of a dual school system. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). We are satisfied that a prima facie case was made out in this instance.
We recognize the difficulty in determining the quantum of state participation which is a prerequisite to a finding of a constitutional violation. “[T]he necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis.” United States v. Texas Education Agency, 467 F.2d 848, 864 (5th Cir. 1972), cited with approval in Keyes v. School District No. 1, Denver, Colorado, supra, 413 U.S. at 215, 93 S.Ct. 2686 (Douglas, J., concurring). The district courts are not without guidance in this difficult .task, however, as there have been a number of appellate decisions addressed to this problem. Although the relevant standards have not changed since Judge Kent rendered his decision in 1971, the Supreme Court has attempted to clarify the law in this area. For this reason, the issues presented by this case are particularly well suited to fresh consideration by the district court in light of recent case law. The question on remand will be whether defendants can successfully negate the prima facie case of de jure segregation that has been made against them.
Plaintiffs ask that we hold defendants’ 1965 adoption of the previously existing school attendance boundaries an independent act of deliberate segregation sufficient in itself to warrant an order for “all-out” desegregation. We decline to do so.
The instant suit was commenced after consolidation and no court action was pending against the school district prior to that time. There had been no judicial finding that defendants were operating a dual school system and the defendants had made no determination that action ought to be taken. Further, the attendance lines had existed in substantially the same form for a number of years prior to consolidation and before any complaint of segregation. In light of the above, we cannot say as a matter of law that defendants were under a duty to alter the attendance lines in 1965. Defendants’ decision, however, not to adopt new attendance boundaries in the face of a readily discernable pattern of residential segregation may be considered part of the cumulative evidence of a possible constitutional violation.
We note in passing that the district court stated that except for the specific areas in which it found discrimination “there [was] no' evidence that race [had] been the sole consideration in any act, decision, assignment, choice or program of Defendant District or its Board.” (Emphasis supplied.) It is not necessary to prove discriminatory motive, purpose, or intent ás a prerequisite to establishing an equal protection violation when discriminatory effect has been demonstrated. The “sole criterion” test has been rejected by the Supreme Court. Wright v. Council of City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1971); see United States v. Texas Education Agency, supra; Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F.Supp. 1245 (N.D.Ohio 1973). The question to be considered by the district court is whether defendants’ official acts resulted in a constitutionally impermissible dual school system.
For the reasons set forth hereinabove, the findings of the district court are affirmed in part and reversed in part and the orders entered pursuant thereto are vacated, and the cause is remanded to the district court for further proceedings consistent with this opinion.
. The latest statistics of record are for the 1969-1970 school year.
. The predominantly black schools operated at 103.6% capacity; the predominantly white schools operated at 96% capacity.
. All building programs proposed by the school board were defeated by district voters,
. The six criteria most often listed as indicia are composition of the student bodies, faculty, staff, transportation, extra-curricular activities, and facilities.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
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.
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL UNION NO. 89, et al. v. RISS & COMPANY, INC.
No. 180.
Argued February 19, 1963.
Decided March 18, 1963.
David Previant argued the cause for petitioners. With him on the brief were Herbert S. Thatcher and Ralph H. Logan.
H. Bemis Lawrence argued the cause and filed a brief for respondent.
Per Curiam.
Petitioners are a union and six of its members employed by the respondent interstate motor freight common carrier. The present action was brought in the United States District Court for the Western District of Kentucky, and jurisdiction was predicated on § 301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185. In their complaint, petitioners alleged that the respondent had refused to comply with a ruling of the Joint Area Cartage Committee, directing that the individual petitioners be reinstated with full seniority and back pay. The Committee’s ruling was asserted to have been handed down in accordance with the grievance procedures established in the collective bargaining agreement between the union and the employer. The relief demanded in the complaint included the reinstatement of the individual petitioners, with full back pay and fringe benefits to the time of reinstatement.
Respondent, after filing its answer, moved to dismiss the complaint. The District Court granted the motion on the pleadings as supplemented at pretrial conference by excerpts from the Local Cartage Agreement between the union and the employer. The District Court’s ground for dismissing the complaint was want of federal jurisdiction, a result deemed compelled by our decision in Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U. S. 437. The Court of Appeals for the Sixth Circuit affirmed, 298 F. 2d 341, but added two more grounds in support of the order of dismissal: (1) That the determination of the Joint Area Cartage Committee was not an arbitration award and so not enforceable under § 301; (2) That on the merits petitioners were not entitled to the relief ordered by the Joint Area Cartage Committee. We granted certiorari, 371 U. S. 810. We reverse and remand to the District Court for trial.
According to the allegations of the complaint, the six individual petitioners were discharged because they chose to respect and did respect a picket line established by another union at a place of business of respondent. Contending that such discharge violated Article IX of the Local Cartage Agreement, which provides in part that “it shall not be cause for discharge if any employee or employees refuse to go through the picket line of a union . . . ,” petitioners invoked the grievance machinery set up by the Agreement, and processed their grievances through the provided channels culminating in the Joint Area Cartage Committee’s determination. Article VIII, § 1 (e), of the Agreement provides: “It is agreed that all matters pertaining to the interpretation of any provisions of this contract shall be referred, at the request of any party at any time, for final decision to the Joint Area Cartage Committee . . . .”
If, as petitioners allege, the award of the Joint Area Cartage Committee is under the collective bargaining agreement final and binding, the District Court has jurisdiction under § 301 to enforce it, notwithstanding our Westinghouse decision. See Textile Workers v. Lincoln Mills, 353 U. S. 448,456, n. 6; United Steelworkers v. Pullman-Standard Car Mfg. Co., 241 F. 2d 547, 551-552 (C. A. 3d Cir. 1957). Plainly, this allegation cannot be rejected on the basis merely of what the present record shows. It is not enough that the word “arbitration” does not appear in the collective bargaining agreement, for we have held that the policy of the Labor Act “can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” United Steelworkers v. American Mfg. Co., 363 U. S. 564, 566; cf. Retail Clerks v. Lion Dry Goods, Inc., 369 U. S. 17. Thus, if the award at bar is the parties’ chosen instrument for the definitive settlement of grievances under the Agreement, it is enforceable under § 301. And if the Joint Area Cartage Committee’s award is thus enforceable, it is of course not open to the courts to reweigh the merits of the grievance. American Mfg. Co., supra, at 567-568.
Of course, if it should be decided after trial that the grievance award involved here is not final and binding under the collective bargaining agreement, no action under § 301 to enforce it will lie. Then, should petitioners seek to pursue the action as a § 301 suit for breach of contract, there may have to be considered questions unresolved by our prior decisions. We need not reach those questions here. But since the courts below placed so much reliance on the Westinghouse decision, we deem it appropriate to repeat our conclusion in Smith v. Evening News Assn., 371 U. S. 195,199, that “subsequent decisions . . . have removed the underpinnings of Westinghouse and its holding is no longer authoritative as a precedent.”
Reversed and remanded.
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_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
GORMAN LEONARD COAL CO. v. PENINSULAR STATE S. S. CORPORATION. MYSTIC TERMINAL CO. v. SAME.
Nos. 2797, 2798.
Circuit Court of Appeals, First Circuit.
June 15, 1933.
G. Philip Wardnor, of Boston, Mass., for appellants.
Fitz-Henry Smith, Jr., and Thomas H. Walsh, both of Boston, Mass., and Bigham, Englar, Jones & Houston, of New York City, for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
This is a suit to recover for damage alleged to have been done to the tank-top ceilings and other parts of the steamship Lake Gaiewood by the Mystic Terminal Company in discharging her. The libelant is the owner of the vessel; the Gorman Leonard Coal Company chartered her to carry a cargo of coal from Newport News to Boston, the 'charterer to do the loading and discharging. Tlie coal company arranged with the Mystic Company to discharge the steamer at Boston on its account. The libel charges that the discharging was negligently done and inflicted damage on the vessel beyond reasonable wear and tear. The district judge found for the libelant against the Mystic Company as primarily liable, and against the coal company as secondarily liable. Both respondents appealed.
The appeal presents no serious question of law. Neither party objects to the rulings of law on which the case was decided. The contention of the appellant is that the district judge was wrong in his findings of fact. The testimony was greatly in conflict, both as to the condition of the vessel at the time when she was loaded, and as to the damage, if any, done during the discharge. Several of the important witnesses testified orally, and the district judge had the advantage of seeing them on the stand. It was undisputed that, immediately on the completion of the discharge, a written statement of damage was handed by the master of the vessel to the stevedore. The mate of the steamer testified that he remonstrated to the stevedore while the discharge by the Mystic Company was in progress against the roughness with which it was being done. The stevedore denied this testimony. On an official survey two or three weeks later, the steamer was found in a damaged condition. In the interim she had carried other cargoes; and the respondents contended that such of the damage found on. the survey as did not antedate the discharge by the Mystic Company had been done in loading and discharging the later cargoes.
Grab buckets weighing about four tons were used by the Mystic Company in discharging the Lake Galewood. It cannot be doubted that the use of such heavy and powerful appliances on a vessel not specially built for carrying coal would bo likely to do damage unless they were very carefully handled. If the Mystic Company saw fit to use them, it was bound to see that requisite care was exercised. There was a strong suggestion that the discharge was hurried because it ran into Saturday afternoon. It would serve no useful purpose to go into the details of the evidence and the contradictions. In such a situation the conclusions of the district judge carry much weight (Merchants’ & Miners Transp. Co. v. Nova Scotia S. S. Corp., 40 F.(2d) 167 (C. C. A. 1), and we are by no means satisfied that they wore erroneous. He carefully discriminated between the various items of damage claimed; and ho allowed only those which he was satisfied were caused by negligence in handling the grab buckets. His decree must be affirmed.
The decree of the District Court is affirmed with costs to the appellee in this court.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? 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.
POULOS v. NEW HAMPSHIRE.
No. 341.
Argued February 3, 1953.
Decided April 27, 1953.
Hayden C. Covington argued the cause and filed a brief for appellant.
Gordon M. Tiffany argued the cause for appellee. With him on the brief were Louis C. Wyman, Attorney General of New Hampshire, and Henry Dowst, Jr., Assistant Attorney General. Mr. Tiffany, then Attorney General of New Hampshire, was also on a Statement Opposing Jurisdiction and a Motion to Dismiss or Affirm.
Mr. Justice Reed
delivered the opinion of the Court.
This appeal presents the validity of a conviction of appellant for conducting religious services in a public park of Portsmouth, New Hampshire, without a required license, when proper application for the license had been arbitrarily and unreasonably refused by the City Council. The conclusion depends upon consideration of the principles of the First Amendment secured against state abridgment by the Fourteenth.
Appellant is one of Jehovah’s Witnesses. Permission for appellant and another Witness, now deceased, was sought to conduct services in Goodwin Park on June 25 and July 2. They offered to pay all proper fees and charges, and complied with the procedural requirements for obtaining permission to use the park. When the license was refused on May 4, appellant nevertheless held the planned services and continued them until arrested. He was charged with violation of § 22 of the city ordinance set out below. On conviction in the Municipal Court he was fined $20 and took an appeal which entitled him to a plenary trial before the Superior Court. Before that trial appellant moved to dismiss the complaints on the ground that “the ordinance as applied was unconstitutional and void.” This motion on the constitutional question, pursuant to New Hampshire practice, was transferred to the Supreme Court. It ruled, as it had on a former prosecution under a different clause of an identical section, so far as pertinent, of a New Hampshire statute, against one Cox, State v. Cox, 91 N. H. 137, 143, 16 A. 2d 508, 513, that:
“The discretion thus vested in the authority [city council] is limited in its exercise by the bounds of reason, in uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways, is the statutory mandate. The licensing authority has no delegation of power in excess of that which the legislature granting the power has and the legislature attempted to delegate no power it did not possess.” State v. Derrickson, 97 N. H. 91, 93, 81 A. 2d 312, 313.
In Cox v. New Hampshire, 312 U. S. 569, we affirmed on appeal from the New Hampshire conviction of Cox, acknowledging the usefulness, p. 576, of the state court’s carefully phrased interpretive limitation on the licensing authority. The Supreme Court of New Hampshire went on to hold the challenged clause in this present prosecution valid also in these words:
“The issue which this case presents is whether the city of Portsmouth can prohibit religious and church meetings in Goodwin Park on Sundays under a licensing system which treats all religious groups in the same manner. Whether a city could prohibit religious meetings in all of its parks is a doubtful question which we need not decide in this case. What we do decide is that a city may take one of its small parks and devote it to public and nonreligious purposes under a system which is administered fairly and without bias or discrimination.” 97 N. H., at 95, 81 A. 2d, at 315.
Thereupon it discharged the case.
The result of this action was to open the case now here in the Superior Court for trial. At the conclusion of the evidence, appellant raised federal issues by a motion to dismiss the complaint set out below. The Superior Court passed upon the issues raised. It held that Cox v. New Hampshire, 312 U. S. 569, determined the validity of the section of the ordinance under attack; that the refusal of the licenses by the City Council was arbitrary and unreasonable, but refused to dismiss the prosecution on that ground because:
“The respondents could have raised the question of their right to licenses to speak in Goodwin Park by proper civil proceedings in this Court, but they chose to deliberately violate the ordinance.”
On appeal, the Supreme Court of New Hampshire affirmed. It held the ordinance valid on its face under Cox v. New Hampshire, 312 U. S. 569. While the Cox case involved the clause of the ordinance, § 22, relating to “parade or procession upon any public street or way,” the New Hampshire Supreme Court thought the present prosecution was “under a valid ordinance which requires a license before open air public meetings may be held.” This was the first ruling on the public speech clause. Cf. State v. Cox, 91 N. H., at 143, 16 A. 2d, at 513; Cox v. New Hampshire, 312 U. S., at 573. As the ordinance was valid on its face the state court determined the remedy was by certiorari to review the unlawful refusal of the Council to grant the license, not by holding public religious services in the park without a license, and then defending because the refusal of the license was arbitrary.
Appellant’s challenge on federal grounds to the action and conclusion of the New Hampshire courts is difficult to epitomize. By paragraph 3 of his motion to dismiss, note 3, supra, appellant relied on the principles of the First Amendment for protection against the city ordinance. In his statement of jurisdiction, the question presented, No. I, the illegal denial of his application for a license, was urged as a denial of First Amendment principles. In his brief, he phrases the issue differently as indicated below. We conclude that appellant’s contentions are, first, no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment; second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion. The abridgment would be because of delay through judicial proceedings to obtain the right of speech and to carry out religious exercises. The due process question raised by appellant as a part of the latter constitutional contention disappears by our holding, as indicated later in this opinion, that the challenged clause of the ordinance and New Hampshire’s requirement for following a judicial remedy for the arbitrary refusal are valid. This analysis showing an attack on the ordinance as applied as repugnant to the principles of the First Amendment and a determination of its validity by the New Hampshire Supreme Court requires us to take jurisdiction by appeal. The state ground for affirmance, i. e., the failure to take certiorari from the action refusing a license, depends upon the constitutionality of the ordinance.
First. We consider the constitutionality of the requirement that a license from the city must be obtained before conducting religious exercises in Goodwin Park. Our conclusion takes into consideration the interpretive limitation repeated from State v. Cox, quoted at p. 398 of this opinion. This state interpretation is as though written into the ordinance itself. Winters v. New York, 333 U. S. 507, 514. It requires uniform, nondiscriminatory and consistent administration of the granting of licenses for public meetings on public streets or ways or such a park as Goodwin Park, abutting thereon. The two opinions of the Supreme Court of New Hampshire do not state in precise words that reasonable opportunities for public religious or other meetings on public property must be granted under this ordinance to such religious organizations as Jehovah’s Witnesses. In the former appeal of this controversy in the Derrickson case, supra, New Hampshire decided that the city could exclude, without discrimination, all religious meetings from Goodwin Park, if it so desired, leaving that one park, among several, there being no showing of its unique advantages for religious meetings, as a retreat for quietness, contemplation or other nonreligious activities. The Supreme Court refused to determine whether religious meetings could be excluded from all parks at all times. That has not been decided in this appeal. Informed witnesses at this trial without contradiction testified that no public religious services were ever licensed in any Portsmouth park. There was no allocation of parks between religious and nonreligious meetings. The Superior Court held the refusal of this license arbitrary and unreasonable. Obviously the license required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved. While there was no assertion of the invalidity of the ordinance on its face, the Supreme Court determined the validity of the ordinance as applied. See Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 287; Charleston Assn. v. Alderson, 324 U. S. 182, 185-186. We can only conclude from these decisions that the Supreme Court of New Hampshire has held that the ordinance is valid and, as now written, made it obligatory upon Portsmouth to grant a license for these religious services in Goodwin Park. The appellant’s contention that the Council’s application of the ordinance so as to bar all religious meetings in Goodwin Park without a license, made the ordinance unconstitutional, was not sustained by the Supreme Court of New Hampshire. Appellant’s brief, p. 3, continues the claim in this Court as follows:
“This exception presented to the Supreme Court of New Hampshire the question. It is whether the ordinance as enforced by the City Council, under its policy to refuse religious meetings in the park, was a violation of the federal Constitution.”
By its construction of the ordinance the state left to the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech. There is therefore no place for narrowly drawn regulatory requirements or authority. The ordinance merely calls for the adjustment of the unrestrained exercise of religions with the reasonable comfort and convenience of the whole city. Had the refusal of the license not been in violation of the ordinance, the Supreme Court would not, we are sure, have required the appellant in its next application to go through the futile gesture of certiorari only to be told the Portsmouth Council’s refusal of a license was a valid exercise of municipal discretion under the ordinance and the Fourteenth Amendment. Such state conclusions are not invalid, although they leave opportunity for arbitrary refusals that delay the exercise of rights.
The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction. It is a non sequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquillity without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion. When considering specifically the regulation of the use of public parks, this Court has taken the same position. See the quotation from the Hague case (below) and Kunz v. New York, 340 U. S. 290, 293-294; Saia v. New York, 334 U. S. 558, 562. In these cases, the ordinances were held invalid, not because they regulated the use of the parks for meeting and instruction but because they left complete discretion to refuse the use in the hands of officials. “The right to be heard is placed in the uncontrolled discretion of the Chief of Police.” 334 U. S., at 560. “[W]e have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.” 340 U. S., at 294.
There is no basis for saying that freedom and order are not compatible. That would be a decision of desperation. Regulation and suppression are not the same, either in purpose or result, and courts of justice can tell the difference. We must and do assume that with the determination of the Supreme Court of New Hampshire that the present ordinance entitles Jehovah’s Witnesses to hold religious services in Goodwin Park at reasonable hours and times, the Portsmouth Council will promptly and fairly administer their responsibility in issuing permits on request.
Second. New Hampshire’s determination that the ordinance is valid and that the Council could be compelled to issue the requested license on demand brings us face to face with another constitutional problem. May this man be convicted for holding a religious meeting without a license when the permit required by a valid enactment — the ordinance in this case — has been wrongfully refused by the municipality?
Appellant’s contention is that since the Constitution guarantees the free exercise of religion, the Council’s unlawful refusal to issue the license is a complete defense to this prosecution. His argument asserts that if he can be punished for violation of the valid ordinance because he exercised his right of free speech, after the wrongful refusal of the license, the protection of the Constitution is illusory. He objects that by the Council’s refusal of a license, his right to preach may be postponed until a case, possibly after years, reaches this Court for final adjudication of constitutional rights. Poulos takes the position that he may risk speaking without a license and defeat prosecution by showing the license was arbitrarily withheld.
It must be admitted that judicial correction of arbitrary refusal by administrators to perform official duties under valid laws is exulcerating and costly. But to allow applicants to proceed without the required permits to run businesses, erect structures, purchase firearms, transport or store explosives or inflammatory products, hold public meetings without prior safety arrangements or take other unauthorized action is apt to cause breaches of the peace or create public dangers. The valid requirements of license are for the good of the applicants and the public. It would be unreal to say that such official failures to act in accordance with state law, redressable by state judicial procedures, are state acts violative of the Federal Constitution. Delay is unfortunate, but the expense and annoyance of litigation is a price citizens must pay for life in an orderly society where the rights of the First Amendment have a real and abiding meaning. Nor can we say that a state’s requirement that redress must be sought through appropriate judicial procedure violates due process.
It is said that Royall v. Virginia, 116 U. S. 572; Cantwell v. Connecticut, 310 U. S. 296, 306, and Thomas v. Collins, 323 U. S. 516, stand as decisions contrary to the New Hampshire judgment. In the Royall case two statutes were involved. One laid down the requirement that before attorneys could practice law in Virginia they had to obtain a special “revenue license.” At the time this statute was enacted, Virginia law permitted license fees to be paid in either “tax due coupons” or money. Subsequently Virginia passed another statute with which the Royall case was concerned. It provided that license fees could only be paid in “lawful money of the United States.” Royall tendered “tax due coupons” for the amount of the license fee, had them refused, and Royall then proceeded to practice law without the license. The statute requiring payment in money was held unconstitutional:
“Admitting this, it is still contended, on behalf of the Commonwealth, that it was unlawful for the plaintiff in error to practice his profession without a license, and that his remedy was against the officers to compel them to issue it. It is doubtless true, as a general rule, that where the officer, whose duty it is to issue a license, refuses to do so, and that duty is merely ministerial, and the applicant has complied with all the conditions that entitle him to it, the remedy by mandamus would be appropriate to compel the officer to issue it. That rule would apply to cases where the refusal of the officer was wilful and contrary to the statute under which he was commissioned to act. But here the case is different. The action of the officer is based on the authority of an act of the General Assembly of thé State, which, although it may be null and void, because unconstitutional, as against the applicant, gives the color of official character to the conduct of the officer in his refusal; and, although at the election of the aggrieved party the officer might be subjected to the compulsory process of mandamus to compel the performance of an official duty, nevertheless the applicant, who has done everything on his part required by the law, cannot be regarded as violating the law if, without the formality of a license wrongfully withheld from him, he pursues the business of his calling, which is not unlawful in itself, and which, under the circumstances, he has a constitutional right to prosecute. As to the plaintiff in error, the act of the General Assembly of the State of Virginia forbidding payment of his license tax in its coupons, receivable for that tax by a contract protected by the Constitution of the United States, is unconstitutional, and its unconstitutionality infects and nullifies the antecedent legislation of the State, of which it becomes a part, when applied, as in this case, to enforce an unconstitutional enactment against a party, not only without fault, but seeking merely to exercise a right secured to him by the Constitution....
“In the present case the plaintiff in error has been prevented from obtaining a license to practice his profession in violation of his rights under the Constitution of the United States. To punish him for practicing it without a license thus withheld is equally a denial of his rights under the Constitution of the United States, and the law, under the authority of which this is attempted, must on that account and in his case be regarded as null and void.” 116 U. S., at 582-583.
In Cantwell v. Connecticut, the statute in question forbade solicitation for religious causes without a license with this discretionary power in the secretary of the public welfare council:
“Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect.” 310 U. S., at 302.
We said, speaking of the secretary:
“If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.” Id., at 305.
In the Thomas case, a statute of Texas was involved that required labor union organizers to obtain an organizer’s card before soliciting membership. § 5, 323 U. S., at 519, note 1. He was enjoined from soliciting membership without the card and violated the injunction. Id., at 518. This Court concluded that Thomas was forbidden by the statute from making labor union speeches anywhere in Texas without a permit for solicitation of membership. Id., at 532 et seq. The Court treated the statute as a prohibition of labor union discussion without an organizer’s card anywhere within the bounds of Texas legislative power. It said:
“We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.” Id., at 540.
The Court allowed the unconstitutionality of the statute to be used as a complete defense to contempt of the injunction.
It is clear to us that neither of these decisions is contrary to the determination of the Supreme Court of New Hampshire. In both of the above cases the challenged statutes were held unconstitutional. In the Royall case, the statute requiring payment of the license fee in money was unconstitutional. In the Cantwell case, the statute had not been construed by the state court “to impose a mere ministerial duty on the secretary of the welfare council.” The right to solicit depended on his decision as to a “religious cause.” 310 U. S., at 306. Therefore we held that a statute authorizing this previous restraint was unconstitutional even though an error might be corrected after trial. In the Thomas case, the section of the Texas Act was held prohibitory of labor speeches anywhere on private or public property without registration. This made § 5 unconstitutional. The statutes were as though they did not exist. Therefore there were no offenses in violation of a valid law. In the present prosecution there was a valid ordinance, an unlawful refusal of a license, with remedial state procedure for the correction of the error. The state had authority to determine, in the public interest, the reasonable method for correction of the error, that is, by certiorari. Our Constitution does not require that we approve the violation of a reasonable requirement for a license to speak in public parks because an official error occurred in refusing a proper application.
Affirmed.
Schneider v. State, 308 U. S. 147, 160.
Constitution, First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Id., Fourteenth Amendment:
“... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Section 22. License Required. No theatrical or dramatic representation shall be performed or exhibited and no parade or procession upon any public street or way, and no open air public meeting upon any ground abutting thereon shall be permitted unless a license therefor shall first be obtained from the City Council.
“Section 23. License Form. Every such license shall be in writing and shall specify the day and hour of the permit to perform or exhibit, or of such parade, procession or open air public meeting.
“Section 24. Fee. The fee for such license shall be not more than Three Hundred Dollars for each day such licensee shall perform or exhibit or such parade, procession, or open air public meeting shall take place, but the fee for a license to exhibit in any hall shall not exceed Fifty Dollars.
“Section 25. Penalty. Any person, who violates section 22 of this Article shall be fined Twenty Dollars.”
“1. The undisputed evidence shows that the members of the city council and the city council itself acted arbitrarily, capriciously and without support of law and of fact when they denied the application made by Jehovah’s witnesses in behalf of the defendants to deliver the public talks upon the occasions in question.
“2. The undisputed evidence shows that the park in question is a public park, dedicated as such without any limitations in the deed of dedication or in the ordinances of the City of Portsmouth and the defendants had the legal right to deliver the talks in the park and it was the duty of the city council to issue to the defendants permits to use the public park in question for public meetings and public talks.
“3. If the ordinance is construed and applied so as to justify convictions of the defendants under the facts in this ease, then the ordinance is unconstitutional as construed and applied because it abridges the rights of the defendants to freedom of assembly, freedom of speech and freedom of worship, contrary to the Bill of Rights of the New Hampshire Constitution and the First and Fourteenth Amendments to the Constitution of the United States.”
State v. Poulos, 97 N. H. 352, 88 A. 2d 860.
“Is the construction of the laws of New Hampshire and the ordinance in question — so as to completely deny the appellant the right to challenge the federal constitutionality of the ordinance, as enforced, construed and applied in criminal proceedings brought to punish appellant for holding a meeting and giving a speech in the city park of Portsmouth without a permit, which was applied for and illegally denied according to the holdings of the courts below — an abridgment of the rights of appellant to freedom of speech and assembly contrary to the First and Fourteenth Amendments to the Constitution of the United States?”
“Is the administration and enforcement of the ordinance by the City Council, requiring a permit for holding meetings in the parks of Portsmouth so as to deny all applications made by religious organizations to hold religious meetings and deliver religious talks in the parks of Portsmouth, an abridgment of freedom of speech, assembly and worship in violation of the First and Fourteenth Amendments to the United States Constitution?”
“Does the construction and application of the ordinance and the law of New Hampshire so as to require appellant to apply for a writ of mandamus or certiorari as the only remedies to correct the unconstitutional administration of the ordinance, and also so as to deny the defense in the criminal prosecution that the construction and application of the ordinance by the City Council was in violation of his rights guaranteed by the federal Constitution, amount to an abridgment of freedom of speech, assembly and worship contrary to the First and Fourteenth Amendments to the United States Constitution?”
King Mfg. Co. v. Augusta, 277 U. S. 100; Jamison v. Texas, 318 U. S. 413. When the appeal was docketed we postponed determination of jurisdiction of the appeal to the hearing on the merits. 28 U. S. C. § 1257 (2); Rules of the Supreme Court, No. 12 (5).
State v. Derrickson, 97 N. H. 91, 94, 81 A. 2d 312, 314.
Niemotko v. Maryland, 340 U. S. 268, concurrence at 282: “A licensing standard which gives an official authority to censor the content of a speech differs toto cáelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like.”
“It has been conceded by the defense on this transfer, as well as on the first one, that the ordinance is valid on its face. It is identical in language with the statute that was construed as valid in State v. Cox, 91 N. H. 137, which was affirmed in Cox v. New Hampshire, 312 U. S. 569. It is not disputed that the ordinance applies to the park that was the scene of the open air meetings in question. No objection has been made to the application of the ordinance to the areas where the meetings took place, and no exception taken to any finding or ruling with respect thereto.” 97 N. H. 352, 354, 88 A. 2d 860, 861.
“Again we call attention to the fact that in this jurisdiction if a licensing statute is constitutional and applies to those seeking a license, the remedy here provided consists of proceedings against the licensing authority that has wrongfully denied the license.” 97 N. H., at 356, 88 A. 2d, at 862-863.
Distinguishing Hague v. C. I. O., 307 U. S. 496, where a defense of unconstitutionality was allowed in a prosecution for holding a public meeting without a license, the State Court said: “Permits had been refused for public meetings, but, unlike the case at bar, the prosecutions were contemplated under ordinances that were invalid.” 97 N. H., at 356-357, 88 A. 2d, at 863.
“The remedy of the defendant Poulos for any arbitrary and unreasonable conduct of the city council was accordingly in certiorari or other appropriate civil proceedings.” 97 N. H., at 357, 88 A. 2d, at 863.
This conclusion follows the rule in State v. Stevens, 78 N. H. 268, 269-270, 99 A. 723, 724-725, that where a license statute is valid an erroneous refusal of the license cannot be attacked collaterally on prosecution for acting without a license.
Constitutionally protected right to circulate publications does not include door-to-door canvassing for subscriptions contrary to the reasonable limitations of a municipal ordinance. See Breard v. Alexandria, 341 U. S. 622, 641.
Lovell v. Griffin, 303 U. S. 444, 451:
“The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation ‘either by hand or otherwise.’ There is thus no restriction in its application with respect to time or place; It is not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the City Manager.”
In considering a required permit in Hague v. C. I. O., 307 U. S. 496, Mr. Justice Roberts, in considering an ordinance that gave the Director of Public Safety discretion as to issue of park permits, p. 502, wrote:
“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” Pp. 515-516.
Schneider v. State, 308 U. S. 147, 160-161:
“Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.”
Cantwell v. Connecticut, 310 U. S. 296, 306-307:
“Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury. Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.”
In considering conviction, for an unlicensed religious parade, under a statute with provisions similar to this ordinance, we said:
“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions.” Cox v. New Hampshire, 312 U. S. 569, 574.
“If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constitutional right.” Id., at 576.
Near v. Minnesota, 283 U. S. 697, 712; Breard v. Alexandria, 341 U. S. 622, 641; First Amendment.
It may be that in some states, the proof of proper application and unlawful refusal is a sufficient defense. It is also true that others punish activities without a license, following an unlawful refusal. Commonwealth v. McCarthy, 225 Mass. 192, 114 N. E. 287; State v. Stevens, 78 N. H. 268, 99 A. 723; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627; City of Montpelier v. Mills, 171 Ind. 175, 85 N. E. 6; Commonwealth v. Gardner, 241 Mass. 86, 134 N. E. 638; State v. Orr, 68 Conn. 101, 35 A. 770; City of Malden v. Flynn, 318 Mass. 276, 61 N. E. 2d 107. A close parallel exists between unlawful refusals and failure to apply for license on the ground that such application would be unavailing. Such a defense is not allowed. “It is well settled that where a licensing ordinance, valid on its face, prohibits certain conduct unless the person has a license, one who without a license engages in that conduct can be criminally prosecuted without being allowed to show that the application for a license would have been unavailing.... In short, the individual is given the choice of securing a license, or staying out of the occupation, or, before he acts, seeking a review in the civil courts of the licensing authority’s refusal to issue him a license. Likewise in the case at bar
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
|
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 "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.
ANCHOR LINE LIMITED et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents.
No. 16257.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 6, 1961.
Decided Feb. 1, 1962.
Mr. Ronald A. Capone, Washington, D. C., with whom Messrs. Elmer C. Maddy, New York City, and Robert H. Binder, Washington, D. C., were on the brief, for petitioners.
Mr. Edward Schmeltzer, Federal Maritime Commission, with whom Messrs. Robert E. Mitchell, Deputy Gen. Counsel, Federal Maritime Commission, and Irwin A. Seibel, Dept, of Justice, were on the brief, for respondents. Mr. Richard A. Solomon, Dept, of Justice, also entered an appearance for respondent United States.
Before Bazelon, Bastían and Burger, Circuit Judges.
BAZELON, Circuit Judge.
In a report and order, decided December 14, 1959, and served March 2, 1960, the Federal Maritime Commission held that allegations of a complaint, charging petitioners with violations of § 15 of the Shipping Act, had not been sustained. After the complainants in that case filed a review petition in this Court, the Commission reopened the proceedings. Subsequently the Commission moved to dismiss the petition, but its motion was denied. Upon the original record and oral argument, the Commission entered a “second report and order,” decided January 23, 1961, and served the following day, wherein it vacated its first report and order and held that petitioners had engaged in activities in violation of § 15 of the Act. Petitioners bring the instant petition to review and set aside the “second report and order.”
Petitioners contend first that the Commission lacked authority to reopen the proceedings because a petition to review the first order was then pending in this Court. We think, however, that the pendency of a review petition does not automatically bar reopening of an administrative proceeding. Wrather-Alvarez Broadcasting Inc. v. Federal Communications Comm., 101 U.S.App.D.C. 324, 248 F.2d 646 (1957). See Frontier Airlines Inc. v. Civil Aeronautics Board, 104 U.S.App.D.C. 78, 259 F.2d 808 (1958); WORZ, Inc. v. Federal Communications Comm., 106 U.S.App.D.C. 14, 268 F.2d 889 (1959). It is true that when an agency seeks to reconsider its action, it should move the court to remand or to hold the case in abeyance pending reconsideration by the agency. We do not condone the failure to follow that procedure. But since this failure was not prejudicial in the circumstances of the present ease, we do not disturb the Commission’s action in reopening the proceedings.
Petitioners also contend that the Commission failed to make findings in compliance with its rule that a reopening will be ordered if the Commission “finds such action is required by changed conditions in fact or law or by the public interest.” 46 C.F.R. § 201.261 (1958) (emphasis supplied). But petitioners failed to raise this objection before the Commission, and we find no compelling reason to consider it. United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952); Albertson v. Federal Communications Comm., 100 U.S.App.D.C. 103, 243 F.2d 209 (1957); Barclay Home Prod. v. Federal Trade Comm., 100 U.S.App.D.C. 46, 241 F.2d 451, cert. denied, 354 U.S. 942, 77 S.Ct. 1399, 1 L.Ed.2d 1537 (1957).
Petitioners also complain that the Commission’s findings respecting their violations of § 15 are not supported by substantial evidence and reasons. We think the report and order under review, printed sub nom., Maatschappij “Zeetransport” N.V. (Oranje Line) v. Anchor Line Ltd., in Pike & Fischer Shipping Reg. 211 (decided Jan. 23, 1961), cite ample evidence and reasons to support the Commission’s conclusions. Accordingly, the order is
Affirmed.
. The Shipping Act of 1910 provides that “the board may reverse, suspend, or modify upon such notice and in such manner as it deems proper, any order made by it.” Shipping Act § 25, 39 Stat. 736 (1916), 46 U.S.C.A. § 824 (1958).
. See Wrather-Alvarez Broadcasting Co. v. Federal Communications Comm., supra. Cf. Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952).
. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); National Labor Relations Board v. Southland Mfg. Co., 201 F.2d 244 (4th Cir. 1952); Minkoff v. Payne, 93 U.S.App. D.C. 123, 210 F.2d 689 (1953). Petitioners have directed our attention to alleged discrepancies between a few statements in the Board’s second report and order and certain advertisements appearing in the record. These discrepancies, if such they be, are too insubstantial to affect our decision.
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_direct2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
NUNES v. UNITED STATES.
Circuit Court of Appeals, First Circuit.
February 2, 1928.
No. 2128.
1. Criminal law <@=>1044 — Motion to quash search warrant and suppress evidence, admitted without objection, held unavailable on appeal.
Where defendant knew of search and seizure of still and liquor before trial, but made no objection to admission of oral testimony as to such facts, or introduction in evidence of things seized, his motion, after completion of government’s testimony, to quash warrant and suppress evidence, was too late, and cannot be availed of in appellate court.
2. Criminal law <@=3394 — Intoxicating liquors <@=3248 — Affidavit for search warrant held not insufficient, nor evidence obtained inadmissible, in absence of showing that place was defendant’s private dwelling, or things seized his property (National Prohibition Act, tit. 2, § 25 [27 USCA § 39]).
Where evidence disclosed that place searched was not occupied by defendant as his private dwelling, motion to quash warrant did not state that it was such, and he made no claim that still and liquor seized were his property, affidavit cannot be held insufficient to justify issuance of warrant, under National Prohibition Act, tit. 2, § 25 (27 USOA § 89), nor evidence of search and seizure, and things seized inadmissible.
In Error to the District Court of the United States for the District of Rhode Island; George F. Morris, Judge.
Antonio Nunes, alias, was convicted of possessing unregistered stills and carrying on the business of a distiller without giving bond, and with intent to defraud the United States of taxes, and he brings error.
Affirmed.
William W. Blodgett, of Pawtucket, R. L, for plaintiff in error.
Joseph E. Fitzpatrick, Asst. U. S. Atty., of Providence, R. I. (John S. Murdock, U. S. Atty., of Providence, R. L, on the brief), for the United States.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
The defendant was indicted in six counts for violating laws relating to the revenue. He was found guilty and sentenced upon counts 1, 2, and 5. In the first count he was charged with unlawfully and knowingly having in his possession and control four stills set up for production of spirituous liquors, without having registered the same (Rev. St. § 3258 [26 USCA §' 281; Comp. St. § 5994]); in the second, with carrying on the business of a distillery, without giving bond (Rev. St. § 3281 [26 USCA § 306; Comp. St.(§ 6021]); and, in the fifth, with carrying on the business of a distiller with intent to defraud the United States of the tax on the product (Revenue Act 1926, title 7, § 701 [26 USCA §§ 192,206]).
Alter the government had completed the presentation of its testimony, all of which was admitted without exception or objection, the defendant filed the following motion:
“And now comes the defendant in the above-entitled cause, and moves that the search warrant used in obtaining evidence ip. said case be quashed, and the evidence obtained thereunder be suppressed, because he says that the premises searched under said search warrant and in which the evidence was seized was a private dwelling h'ouse, and that the affidavit on which said search warrant was issued did not allege that a sale of an intoxicating beverage had been made.”
The motion was denied and the defendant excepted. Its denial is the only error assigned now relied upon.
Under this assignment it is contended on behalf of the defendant that the affidavit upon which the search" warrant was based was inadequate in that it 'did not set out facts sufficient to show that the dwelling house was used for the sale of intoxicating liquor or in part as a store, shop, saloon, restaurant, hotel, or boarding house, as required by section 25, title 2,' of the National Prohibition Act (27 USCA §' 39); and (2) that the motion to quash and suppress the evidence was seasonably made.
It appeared in evidence that the defendant and his wife owned a dwelling house at No. 1306 Broad street, Central Falls, Rhode Island; that it was a four-tenement house, each tenement being rented to different families; that the cellar was rented to one Fernandez; that defendant and his wife occupied a room on the fourth floor, rented of a tenant; that the search and seizure made by the officers was confined to the cellar- and the first floor; that they seized four stills, which were in operation, and a large quantity of intoxicating liquor; and that the stills and liquor were found in the cellar. In addition to oral evidence of the above facts, one of the stills and a sample bottle of the liquor seized were put in evidence. It also appeared that at the time of the seizure the defendant and his wife were about the premises and knew of the search and seizure.
In view of the fact that the defendant knew of the search and the seizure of the still 'and liquor prior to the trial, and made no objection to the admission of the oral testimony relating to the search and seizure, or to the introduction in evidence of the things seized, his motion to quash the warrant and to suppress the evidence was made too late, and cannot be availed of, as he had adequate opportunity to present the matter raised by his motion in advance of the trial. Segurola v. United States, 275 U. S. -, 48 S. Ct. 77, 72 L. Ed. -, decided November 21, 1927.
In that case it was said:
“The principle laid down by this court in Adams v. New York, 192 U. S. 585, 24 S. Ct. 372, 48 L. Ed. 575, and recognized as proper in Weeks v. United States, 232 U. S. 383, 395, 34 S. Ct. 341, 58 L. Ed. 652, 656, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and in Marron v. United States, No. 185, 275 U. S. -, 48 S. Ct. 74, 72 L. Ed. -, October term, 1927, decided this day, applies to render unavailing, under the circumstances of this case, the objection to the use of the liquor as evidence based on the Fourth Amendment. This principle is that, except where there has been no opportunity to present the matter in advance of trial (Gouled v. United States, 255 U. S. 298, 305, 41 S. Ct. 261, 65 L. Ed. 647, 651; Amos v. United States, 255 U. S. 313, 316, 41 S. Ct. 266, 65 L. Ed. 654, 656; Agnello v. United States, 269 U. S. 20, 34, 46 S. Ct. 4, 70 L. Ed. 145, 149), a court, when engaged in trying a criminal case, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property, which are material and properly offered in evidence, because the court will not in trying a criminal cause permit a collateral issue to be raised as to the source of competent evidence. To pursue it would be to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent of it. In other words, in order to raise the question of illegal seizure, and an absence of probable cause in that seizure, the defendants should have moved to have, the whisky and other liquor returned to them as their property and as not subject to seizure or use as evidence. To preserve their rights under the Fourth Amendment, they must at least have seasonably objected to the production of the liquor in court. This they did not do, hut waited until the liquor had been offered and admitted, and then for tho first time raised the question of legality of seizure and probable cause as a ground for withdrawing the liquor from consideration of the jury. This was too late.”
This disposes of the case, hut as the evidence discloses that the place searched was not occupied by the defendant as his private dwelling, and the motion fails to state that it was his private dwelling, and as no claim was made by tho defendant either in his evidence or in the motion that the still and liquor seized were his properly, no ground appears upon which it can be said that the affidavit was insufficient to justify the issuance of the warrant and that the evidence should have been rejected, even if objection had been seasonably made. Klein v. United States (C. C. A.) 14 F.(2d) 35, 36; Agnello v. United States, 269 U. S. 20, 23, 46 S. Ct. 4, 70 L. Ed. 145. In the latter ease the admission in evidence of narcotics seized at Agnello’s home by officers of the United States without a warrant, though a violation of his constitutional rights, was held not to he a violation of the constitutional rights of the other defendants, whose homes were not searched,, and did not render the evidence inadmissible as against them.
The judgment of the District Court is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_counsel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine 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 of America, Plaintiff-Appellee, v. Richard Henry BRYAN, Defendant-Appellant.
No. 74-1347
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Aug. 5, 1974.
Rehearing Denied Sept. 4, 1974.
Richard Henry Bryan, pro se.
H. M. Ray, U. S. Atty., Alfred E. Moretón, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.
Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
Bryan and his codefendant Ballard were tried and convicted of armed robbery of a federally insured bank. We affirmed their convictions. United States v. Ballard, 5 Cir. 1970, 423 F.2d 127. The mandate from this court issued on April 9, 1970, and was filed in the district court on April 10, 1970. On December 9, 1972, Bryan filed his first motion for modification of his sentence, which the district court denied for want of jurisdiction since the motion had not been filed within 120 days of receipt of the mandate of affirmance as required by Rule 35, F.R.Crim.P. On December 5, 1973, Bryan wrote the sentencing judge a letter again requesting modification. Treating the letter as a petition for reduction of sentence pursuant to Rule 35, the court again denied relief for want of jurisdiction, and Bryan appealed. We affirm.
Bryan seeks to have his sentence modified pursuant to 18 U.S.C.A. § 4208(a) (2). This would make him eligible for parole at such time as the board of parole may determine. Such a modification would make the sentence less onerous, since he would otherwise be eligible for parole only after serving one-third of his twenty-two year sentence. 18 U.S.C.A. § 4202.
Rule 35 provides in pertinent part: The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment ....
Bryan argues that the 120 day time limit should not be applied, since he is not asking for a reduction of the sentence but rather a modification to make him eligible for parole sooner. We agree, as did the district court, with Chief Judge Keady’s analysis in Banks v. United States, N.D.Miss.1973, 365 F.Supp. 594. In that case Banks made the same argument Bryan makes here, but Chief Judge Ready held that “the alteration of a sentence to include the provisions of 18 U.S.C.A. § 4208(a)(2) is in effect a reduction in sentence,” so that the sentencing court is without jurisdiction to make the modification more than 120 days after the receipt of the mandate of affirmance. See also United States v. Granville, 5 Cir. 1972, 456 F.2d 1073; United States v. Gorman, 5 Cir. 1970, 431 F.2d 632; United States v.Mehrtens, 5 Cir. 1974, 494 F.2d 1172.
Affirmed.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_appstate
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Lee WILLIAMS, Appellee, v. Arthur L. McKENZIE, Warden, West Virginia State Penitentiary, Appellant (two cases).
Nos. 77-1679, 77-1711.
United States Court of Appeals, Fourth Circuit.
Argued March 8, 1978.
Decided May 3, 1978.
John R. Hoblitzell, Charleston, W. Va. (Kay, Casto & Chaney, Charleston, W. Va., on brief), for Lee Williams.
Frederick J. George, Deputy Atty. Gen., Charleston, W. Va. (Chauncey H. Browning, Jr., Atty. Gen., and John L. MacCorkle, Asst. Atty. Gen., Charleston, W. Va., on brief), for Arthur L. McKenzie.
Before WINTER and HALL, Circuit Judges, and FIELD, Senior Circuit Judge.
PER CURIAM:
This case presents an appeal by the State from a decision of the district court below granting a writ of habeas corpus to Lee Williams, a prisoner incarcerated in the West Virginia State Penitentiary, on grounds that an unduly suggestive pre-trial photographic display occurred and a cross-appeal by the petitioner from an order entered by the district court denying the issuance of the writ of habeas corpus due to alleged suppression of exculpatory evidence by the office of the Kanawha County, West Virginia prosecutor.
On the appeal, we reverse the district court’s order which granted the writ of habeas corpus to Williams concerning the alleged impermissibly suggestive identification of him prior to the state court trial. Accordingly the judgment in Appeal No. 77-1679 is reversed and the case is remanded with directions that the district court enter an order denying the petition for writ of habeas corpus on this ground.
On the cross-appeal, while we hold that we can entertain petitioner’s cross-appeal from the order entered by the district court holding that there was no suppression of exculpatory evidence in the state trial court below, we are nevertheless compelled to reverse the judgment in Appeal No. 77-1711, and remand to the district court for reconsideration concerning exhaustion of available state court remedies on the exculpatory evidence issue.
I.
On December 23,1971, in the early afternoon, Sam Shaar, the proprietor of a small grocery store in the City of Charleston, West Virginia, was sitting by his stove when two negro men came into the store. Mr. Shaar was 78 years old, wore glasses, and was in failing health suffering from bone cancer. A cash register was located at the end of the counter in the store approximately 20 feet away from him.
One of the individuals who came in was tall and the other was short. The short one walked toward the cash register and the tall one walked to a position behind Shaar. One of the two apparently asked for some “t-bones” and Shaar informed them that he did not carry fresh meat. The short individual nearest the cash register then opened it and began taking money out. When Shaar asked him what he was doing the tall individual behind him shot Shaar in the shoulder with a .25 caliber pistol. Shaar fainted.
The individuals fled the scene and almost immediately thereafter the Charleston City Police Department was notified of the shooting and commenced an investigation. Detectives McGinnis and Mahan immediately went to the hospital and questioned Mr. Shaar while he was in the emergency room. According to an “Activity Report” of the Charleston Police Department, dated December 23, 1971, and made a part of the record on this appeal, Detectives Mahan and McGinnis were informed by Shaar that his assailant was a colored male, young, about 6'1" with an orange CPO jacket on, and this was the individual who shot him, but that he did not get any money.
Also mentioned in the Activity Report of December 23,1971, was an eye witness who said she saw a black male run from the scene and cut between her house and another house running eastward. This woman did not testify at the State trial however.
Thereafter, on December 28, 1971, two additional detectives of the Charleston City Police Department, namely Detectives Frye and Leonard filed an additional “Activity Report”. These detectives had gone to the hospital to see Mr. Shaar on December 28, 1971, to see if he could identify some possible suspects in the robbery. The detectives took four pictures with them. Two were of the suspected robbers. All the pictures were of individuals of approximately similar height, build, complexion and race.
At this time, Mr. Shaar identified the petitioner, Lee Williams, as the person who shot him at the time of the armed robbery. Williams was identified as the taller of the two individuals. Shaar also separately identified one Robert Lee Brooks, II, as the individual who went through his cash register. Brooks was identified as the shorter of the two.
II.
Arrest warrants were thereafter prepared for Williams and Brooks. Williams was arrested, indicted, tried and convicted of armed robbery by the then Intermediate Court of Kanawha County, West Virginia. The conviction occurred on May 1, 1972. Williams appealed to the Circuit Court of Kanawha County, but discretionary review was denied. No appeal was taken to the Supreme Court of Appeals of the State of West Virginia.
Thereafter, Williams filed original petitions for a writ of habeas corpus in the Supreme Court of Appeals of the State of West Virginia. Collateral review was denied in March and June of 1976.
Next, Williams filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of West Virginia on October 12, 1976. Following a Report and Recommendation of the United States Magistrate, to whom the matter had been referred, petitioner was given leave to amend and clarify the allegations contained in his pro se petition. Petitioner filed a clarification. As clarified, petitioner essentially alleged:
1. That he was denied due process of law by virtue of the photographic and in-court identification of him by Sam Shaar, the victim of the crime; and
2. That neither he nor his counsel were present at one particular stage of the state court trial which was conducted in the armed robbery case.
The district court issued an order to show cause, and counsel was appointed. An evidentiary hearing was held on December 22, 1976, and the case was fully briefed in the court below.
Following the completion of testimony, the district court awarded the writ of habeas corpus, and ruled in three particulars, as follows:
First. The photographic identification conducted by the detectives in the hospital on December 28, 1971, was impermissibly suggestive leading to a grave likelihood of irreparable misidentification;
Second. The initial Activity Report of December 23, 1971, reflecting the summary of the detectives’ first interview with Mr. Shaar in the hospital constituted exculpatory evidence and it had not been furnished to counsel for the defendant prior to trial. The district court further held that exhaustion of state court remedies was not required concerning the exculpatory evidence issue since its alleged suppression was not discovered until the proceedings leading to the petition for a writ of habeas corpus in federal district court;
Third. The district court held that although the defendant was not present momentarily for a few seconds during his trial, he was actually standing in a doorway adjacent to the courtroom, and his absence for a momentary time period was not prejudicial to him. The state trial judge, when he noted that the defendant was standing in the doorway with his counsel, immediately cut off remarks being made by the prosecutor and the parties were given an adequate opportunity to object to this essentially technical violation of West Virginia law. The district court expressly found that the absence was for not more than a few seconds.
Following the issuance of the writ by the district court, the Warden of the West Virginia State Penitentiary filed a timely notice of appeal.
After the Warden’s notice of appeal was filed the district court reopened the record on the Warden’s oral motion, and the court took additional evidence concerning its second holding that exculpatory evidence had been withheld from the defendant during his state trial. Testimony of the prosecuting attorney for Kanawha County, who was chief trial counsel in the prosecution of the petitioner was taken. The district court then rescinded, in part, its previous order granting the writ of habeas corpus on the exculpatory evidence point.
Thus, the district court concluded that the Kanawha County prosecuting attorney did in fact make his entire file available to trial counsel for the petitioner prior to his state trial which file included the activity report summarizing the December 23, 1971 interview of Mr. Shaar and his initial description of the assailant. Consequently, although the writ was awarded, it was awarded only on grounds relating to the suggestiveness of the photographic identification.
The petitioner cross-appealed from the revised holding of the district court concerning exculpatory evidence. Essentially, petitioner contends that the district court erred in finding that the exculpatory evidence was not in fact withheld. Alternatively, if the district court was correct in concluding that the entire file of the Kanawha County prosecuting attorney was made available to trial counsel for the defendant in state court, then, that attorney is guilty of incompetence because he did not cross-examine Mr. Shaar about the apparent inconsistent descriptions given initially and then at trial or attempt to impeach him through the testimony of the two detectives who elicited the first description of the assailant.
III.
APPEALABILITY — APPEAL NO. 77-1711
A threshold question of appealability is presented in this case. The state filed a timely notice of appeal from the district court order issuing the writ of habeas corpus. Notwithstanding that notice of appeal, and the general rule that the filing of such a notice deprives the district court of jurisdiction to act further in most instances in a case formerly before it, the district court nevertheless.reopened the habeas case for the taking of the additional testimony of the Prosecuting Attorney of Kanawha County concerning the exculpatory evidence issue. Presumably, the motion leading to a reopening of the case was made pursuant to Rule 60(b), Federal Rules of Civil Procedure.
Thereafter, as noted, the district court reversed its previous ruling, denied habeas relief on the exculpatory issue, and the petitioner then noted a cross-appeal.
The first question presented is whether we can even entertain petitioner’s cross-appeal concerning exculpatory evidence in light of the State’s earlier notice of appeal. 7 J. Moore & J. Lucas, Moore’s Federal Practice, § 60.30[2], at 419-24 (2d ed. 1975); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2873 (1973); cf. Rakes v. United States, 163 F.2d 771 (4th Cir. 1947) (interpreting the “newly discovered evidence” rule under F.R.Cr.P. 33).
We hold that on the facts of this particular case, and especially since the appeal was not docketed in this court at the time the district judge reopened the habeas hearing for the taking of additional testimony, that the entertainment of the F.R.C.P. 60(b)(2) motion was appropriate.
Support for our holding is drawn from the recent ruling of the Supreme Court in Standard Oil of California v. United States, 429 U.S. 17, 97 S.Ct. 31-2, 50 L.Ed.2d 21 (1976). To us, the pre-mandate leave to proceed under Rule 60(b)(2) in the district court below upon the facts presented to it is sufficiently analogous to the post mandate appellate leave requirement struck down in Standard Oil to afford proper jurisdiction in the court below to proceed with reopening of the habeas case. We caution, however, that a Rule 60(b)(2) motion is not a procedural vehicle , for an automatic retrial de novo once a party has lost in the district court below and a notice of appeal has been filed. This is especially true when the record does not reflect why the evidence sought to be introduced pursuant to Rule 60(b)(2) was otherwise unavailable at the first hearing.
We hold only, on this record, that the reopening of the suit was not error, and, that the substance of petitioner’s cross-appeal is properly before us.
IV.
EXCULPATORY EVIDENCE — APPEAL NO. 77-1171
Through the diligent efforts of counsel appointed in the district court, petitioner discovered, and asserted in the habeas case below that the first description of his assailant by Mr. Shaar, as contained in the initial Activity Report of December 23, 1971, constituted exculpatory evidence. Counsel for petitioner presented testimony from Williams’ state trial counsel to the effect that he was not furnished with copies of the police report and the police investigation into the shooting of Mr. Shaar nor did he have any idea whether there was any conflict between the information contained in that report and Mr. Shaar’s testimony at trial.
Based upon this testimony, the district court initially concluded that the evidence was exculpatory and had been suppressed.
Thereafter, the motion to reopen, discussed above in Part III of this opinion was filed, and testimony of the Prosecuting Attorney for Kanawha County, who was chief prosecution counsel in the trial of Williams was thereafter taken, and the district judge accordingly reversed his prior holding. He concluded that the evidence, although exculpatory, was not in fact suppressed.
Petitioner countered by arguing alternatively, that if the initial Activity Report was not suppressed, then Williams’ state trial counsel was guilty of ineffective assistance of counsel, and the writ should nevertheless have issued because of counsel’s failure to utilize Shaar’s first description of his assailant for cross-examination and as impeachment material. Presumably Shaar could have been questioned about his comments to the detectives who first investigated the case, and then they could have been called to the stand to testify that Shaar’s trial testimony was inconsistent with this first description of his assailant. See: Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977).
On this cross-appeal, petitioner again argues in the alternative as he did in the district court below. We decline to address those issues since the district court also found that exhaustion of state court remedies had not occurred regarding the exculpatory evidence issues. We disagree with the district court that the mere discovery of the issue during the prosecution of a writ of habeas corpus, under 28 U.S.C. § 2254 is alone enough to dispense with the exhaustion requirement.
Petitioner had not alleged, nor was there any showing made in the record in the district court that there was no longer a state court remedy available to Williams or that exhaustion would have been futile for some pther reason. See: e. g., 28 U.S.C. § 2254(b). Upon remand, the district court may allow petitioner to file a second amended petition for a writ of habeas corpus, if he chooses to do so, and in lieu of proceeding to seek collateral review in the state courts, petitioner should be notified of his apparent failure to exhaust his state court remedies. He should be advised that his failure to properly plead justification for such non-exhaustion of state court remedies will result in the dismissal of his petition for a writ of habeas corpus on the exculpatory issues.
V.
THE IDENTIFICATION — APPEAL NO. 77-1679
With the benefit of the trial transcript from the state court trial before it, and with the benefit of live testimony taken during the plenary hearing, the district court principally concluded that based upon the facts presented in the instant appeal: (1) the photographic display of the four possible suspects (including the two who were ultimately identified as the robbers) shown to Mr. Shaar in the hospital on December 28, 1971, was unduly suggestive; and (2) that from the totality of the circumstances presented in the case, there was a very substantial likelihood of irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977), decided after the district court entered its order granting habeas relief on the identification issue.
While we are solicitous of the careful analysis made by the district judge concerning the facts presented to him, we disagree that the photographic identification was unduly suggestive. Consequently, we need not look to whether or not the totality of the circumstances gave rise to a substantial likelihood of irreparable misidentification. On that point, while the testimony of Sam Shaar is indeed weak, it was sufficient to be admissible, and thereafter its weight was for the jury. We perceive no due process violation.
The district court predicated its finding of suggestiveness upon certain key facts: (1) that only four photographs were shown to Shaar by the detectives; (2) that Shaar was asked if the pictures were of “the two fellows that robbed and shot him.” (State Court trial testimony of Detective Leonard, Tr. 106, A-194); and (3) that when he gave the first description of his assailants to the detectives on December 23, 1971 when he had just been shot, he mentioned only one assailant with an orange CPO jacket. Thus, in light of Shaar’s physical condition and mental state, which were concededly rather poor, the use of only four photographs together with the mention of two suspects made the photographic display unduly suggestive.
However, when the testimony of Detective Leonard which was taken during the state trial out of the presence of the jury is closely analyzed, the suggestiveness disappears. Shaar obviously knew there were two robbers without prompting from Leonard. When he viewed the four photographs, he did not simply identify Williams as one robber and Brooks as the other.
Instead, as Leonard recapped, Shaar identified Williams as the one who shot him and Brooks as the one who cleaned out the cash register. Leonard testified:
He looked at Floyd Hairston’s picture, put it aside. He looked at June Bug Brown’s picture and placed it aside. He got to the picture of Lee Williams. He stated that “this is the big fellow, this is the fellow that shot me.” He put that aside. He went to the last picture, which was Robert Lee Brooks. He said, “This is the fellow that cleaned out the cash register, this is the shorter fellow.” (State Trial testimony, Tr. 30, A-118).
This is persuasive evidence that Shaar remembered the duo even before any suggestive comments by Detective Leonard.
Finally, there is no per se requirement that at least six photographs should have been shown to Shaar. See Manson v. Brathwaite, supra, decided after the district court ruled on the suggestiveness aspect of this case.
77-1679 — REVERSED AND REMANDED WITH DIRECTIONS TO DENY THE WRIT.
77-1171 — REVERSED AND REMANDED FOR RECONSIDERATION OF EXHAUSTION OF AVAILABLE STATE COURT REMEDIES.
. This third holding is not the subject of either the appeal or cross-appeal before us.
. The motion was orally made on the basis of “newly discovered evidence.” F.R.C.P. 60(b)(2). To us, there is a substantial question presented concerning the sufficiency of the allegations contained in that oral motion made by the State under F.R.C.P. 60(b)(2). That Rule requires that the “newly discovered evidence [was such that] by due diligence [it] could not have been discovered in time to move for a new trial under Rule 59(b), [i. e. within 10 days of the entry of judgment].”
In the first hearing before the district court on the federal habeas corpus, although the assistant prosecuting attorney who tried the case was present, he was not called to negate the testimony of state trial counsel on the suppression of exculpatory evidence. No evidence was presented until the State reopened the case with the testimony of the prosecuting attorney himself. No showing of unavailability was made on the record before us. See F.R.C.P. 60(b)(2); 7(b).
Because of our disposition of the cross-appeal, post, in part IV of this opinion, we need not further discuss any inadequacy of the oral motion made under F.R.C.P. 60(b)(2).
. Disregarding exhaustion for the moment, had the district court not ruled upon the state’s motion to reopen due to newly discovered evidence under F.R.C.P. 60(b)(2), an appeal could have been rendered largely academic. We hold only that permission of this court was not a necessary precondition for the district court to entertain the Rule 60(b)(2) motion.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
sc_casesource
|
025
|
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.
CAMPBELL, aka SKYYWALKER, et al. v. ACUFF-ROSE MUSIC, INC.
No. 92-1292.
Argued November 9,1993
Decided March 7, 1994
Souter, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 596.
Bruce S. Rogow argued the cause for petitioners. With him on the briefs was Alan Mark Turk.
Sidney S. Rosdeitcher argued the cause for respondent. With him on the brief were Peter L. Felcher and Stuart M. Cobert.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Steven F. Reich, Steven R. Shapiro, Marjorie Heins, and John A Powell; for Capitol Steps Production, Inc., et al. by William C. Lane; for the Harvard Lampoon, Inc., by Robert H. Loeffier and Jonathan Band; for the PEN American Center by Leon Friedman; and for Robert C. Berry et al. by Alfred C. Yen.
Briefs of amici curiae urging affirmance were filed for the National Music Publishers’ Association, Inc., et al. by Marvin E. Frankel and Michael S. Oberman; and for Fred Ebb et al. by Stephen Rackow Kaye, Charles S. Sims, and Jon A Baumgarten.
Briefs of amici curiae were filed for Home Box Office et al. by Daniel M. Waggoner, P. Cameron DeVore, George Vradenburg, Bonnie Bogin, and Richard Cotton; and for Warner Bros, by Cary H. Sherman and Robert Alan Garrett.
Justice Souter
delivered the opinion of the Court.
We are called upon to decide whether 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” may be a fair use within the meaning of the Copyright Act of 1976,17 U. S. C. § 107 (1988 ed. and Supp. IV). Although the District Court granted summary judgment for 2 Live Crew, the Court of Appeals reversed, holding the defense of fair use barred by the song’s commercial character and excessive borrowing. Because we hold that a parody’s commercial character is only one element to be weighed in a fair use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of copying, we reverse and remand.
I
In 1964, Roy Orbison and William Dees wrote a rock ballad called “Oh, Pretty Woman” and assigned their rights in it to respondent Acuff-Rose Music, Inc. See Appendix A, infra, at 594. Acuff-Rose registered the song for copyright protection.
Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs are collectively known as 2 Live Crew, a popular rap music group. In 1989, Campbell wrote a song entitled “Pretty Woman,” which he later described in an affidavit as intended, “through comical lyrics, to satirize the original work....” App. to Pet. for Cert. 80a. On July 5, 1989, 2 Live Crew’s manager informed Acuff-Rose that 2 Live Crew had written a parody of “Oh, Pretty Woman,” that they would afford all credit for ownership and authorship of the original song to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use they wished to make of it. Enclosed with the letter were a copy of the lyrics and a recording of 2 Live Crew’s song. See Appendix B, infra, at 595. Acuff-Rose’s agent refused permission, stating that “I am aware of the success enjoyed by ‘The 2 Live Crews’, but I must inform you that we cannot permit the use of a parody of ‘Oh, Pretty Woman.’ ” App. to Pet. for Cert. 85a. Nonetheless, in June or July 1989, 2 Live Crew released records, cassette tapes, and compact discs of “Pretty Woman” in a collection of songs entitled “As Clean As They Wanna Be.” The albums and compact discs identify the authors of “Pretty Woman” as Orbison and Dees and its publisher as Acuff-Rose.
Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement. The District Court granted summary judgment for 2 Live Crew, reasoning that the commercial purpose of 2 Live Crew’s song was no bar to fair use; that 2 Live Crew’s version was a parody, which “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison song” is; that 2 Live Crew had taken no more than was necessary to “conjure up” the original in order to parody it; and that it was “extremely unlikely that 2 Live Crew’s song could adversely affect the market for the original.” 754 F. Supp. 1150, 1154-1155, 1157-1158 (MD Tenn. 1991). The District Court weighed these factors and held that 2 Live Crew’s song made fair use of Orbison’s original. Id., at 1158-1159.
The Court of Appeals for the Sixth Circuit reversed and remanded. 972 F. 2d 1429, 1439 (1992). Although it assumed for the purpose of its opinion that 2 Live Crew’s song was a parody of the Orbison original, the Court of Appeals thought the District Court had put too little emphasis on the fact that “every commercial use... is presumptively... unfair,” Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 451 (1984), and it held that “the admittedly commercial nature” of the parody “requires the conclusion” that the first of four factors relevant under the statute weighs against a finding of fair use. 972 F. 2d, at 1435, 1437. Next, the Court of Appeals determined that, by “taking the heart of the original and making it the heart of a new work,” 2 Live Crew had, qualitatively, taken too much. Id., at 1438. Finally, after noting that the effect on the potential market for the original (and the market for derivative works) is “undoubtedly the single most important element of fair use,” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985), the Court of Appeals faulted the District Court for “refus[ing] to indulge the presumption” that “harm for purposes of the fair use analysis has been established by the presumption attaching to commercial uses.” 972 F. 2d, at 1438-1439. In sum, the court concluded that its “blatantly commercial purpose... prevents this parody from being a fair use.” Id., at 1439.
We granted certiorari, 507 U. S. 1003 (1993), to determine whether 2 Live Crew’s commercial parody could be a fair use.
II
It is uncontested here that 2 Live Crew’s song would be an infringement of Acuff-Rose’s rights in “Oh, Pretty Woman,” under the Copyright Act of 1976, 17 U. S. C. § 106 (1988 ed. and Supp. IV), but for a finding of fair use through parody. From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts____” U. S. Const., Art. I, §8, cl. 8. For as Justice Story explained, “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Emerson v. Davies,. 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote, “while I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science.” Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng. Rep. 679, 681 (K. B. 1803). In copyright cases brought under the Statute of Anne of 1710, English courts held that in some instances “fair abridgements” would not infringe an author’s rights, see W. Patry, The Fair Use Privilege in Copyright Law 6-17 (1985) (hereinafter Patry); Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) (hereinafter Leval), and although the First Congress enacted our initial copyright statute, Act of May 31,1790,1 Stat. 124, without any explicit reference to “fair use,” as it later came to be known, the doctrine was recognized by the American courts nonetheless.
In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841), Justice Story distilled the essence of law and methodology from the earlier cases: “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” Id., at 348. Thus expressed, fair use remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act, in which Justice Story’s summary is discernible:
Ҥ 107. Limitations on exclusive rights: Fair use
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and “(4) the effect of the use upon the potential market for or value of the copyrighted work.
“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” 17 U. S. C. § 107 (1988 ed. and Supp. IV).
Congress meant § 107 “to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way” and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks and citation omitted).
The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms “including” and “such as” in the preamble paragraph to indicate the “illustrative and not limitative” function of the examples given, § 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and
Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Pérlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter).
A
The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1). This factor draws on Justice Story’s formulation, “the nature and objects of the selections made.” Folsom v. Marsh, supra, at 348. The enquiry here may be guided by the examples given in the preamble to §107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see § 107. The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede^] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court’s equal division. Benny v. Loew’s Inc., 239 F. 2d 532 (CA9 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U. S. 43 (1958). Suffice it to say now that parody has an obvious claim to trans-formative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. See, e. g., Fisher v. Dees, 794 F. 2d 432 (CA9 1986) (“When Sonny Sniffs Glue,” a parody of “When Sunny Gets Blue,” is fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (SDNY), aff’d, 623 F. 2d 252 (CA2 1980) (“I Love Sodom,” a “Saturday Night Live” television parody of “I Love New York,” is fair use); see also House Report, p. 65; Senate Report, p. 61 (“[U]se in a parody of some of the content of the work parodied” may be fair use).
The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as “a song sung alongside another.” 972 F 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” or as a “composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.” For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. See, e.g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. See ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987).
The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioners’ suggestion that any parodie use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodie and nonparodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.
Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew’s “Pretty Woman” contains parody, commenting on and criticizing the original work, whatever it may have to say about society at large. As the District Court remarked, the words of 2 Live Crew’s song copy the original’s first line, but then “quickly degenerate] into a play on words, substituting predictable lyrics with shocking ones... [that] derisively demonstrate] how bland and banal the Orbison song seems to them.” 754 F. Supp., at 1155 (footnote omitted). Judge Nelson, dissenting below, came to the same conclusion, that the 2 Live Crew song “was clearly intended to ridicule the white-bread original” and “reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses.” 972 F. 2d, at 1442. Although the majority below had difficulty discerning any criticism of the original in 2 Live Crew’s song, it assumed for purposes of its opinion that there was some. Id., at 1435-1436, and n. 8.
We have less difficulty in finding that critical element in 2 Live Crew’s song than the Court of Appeals did, although having found it we will not take the further step of evaluating its quality. The threshold question when fair use is raised in defense of parody is whether a parodie character may reasonably be perceived. Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (circus posters have copyright protection); cf. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F. Supp. 267, 280 (SDNY 1992) (Leval, J.) (“First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed”) (trademark case).
While we might not assign a high rank to the parodie element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes ■the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.
The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew’s fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly culled from Sony, that “every commercial use of copyrighted material is presumptively... unfair....” Sony, 464 U. S., at 451. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.
The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term “including” to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into “purpose and character.” As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U. S., at 561; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that “[n]o man but a blockhead ever wrote, except for money.” 3 Boswell’s Life of Johnson 19 (G. Hill ed. 1934).
Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a “sensitive balancing of interests,” 464 U. S., at 455, n. 40, noted that Congress had “eschewed a rigid, bright-line approach to fair use,” id., at 449, n. 31, and stated that the commercial or nonprofit educational character of a work is “not conclusive,” id., at 448-449, but rather a fact to be “weighed along with other[s] in fair use decisions,” id., at 449, n. 32 (quoting House Report, p. 66). The Court of Appeals’s elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the “fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” 471 U. S., at 562. But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor
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Answer:
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sc_caseorigin
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087
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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.
STOLT-NIELSEN S. A. et al. v. ANIMALFEEDS INTERNATIONAL CORP.
No. 08-1198.
Argued December 9, 2009
Decided April 27, 2010
Auto, J., delivered the opinion of the Court, in which Roberts, C. J., and Scaua, Kennedy, and Thomas, JJ., joined. Ginsberg, J., filed a dissenting opinion, in which Stevens and Breyer, JJ., joined, post, p. 688. Sotomayor, J., took no part in the consideration or decision of the case.
Seth P. Waxman argued the cause for petitioners. With him on the briefs were Edward C. DuMont, Steven F. Cherry, Christopher E. Babbitt, Daniel S. Volchok, Christopher M. Curran, J. Mark Gidley, Peter J. Carney, Eric Grannon, Charles C. Moore, Richard J. Rappaport, Amy B. Manning, Tammy L. Adkins, Angelo M. Russo, Richard C. Siefert, Richard Gluck, and Paul S. Hoff.
Cornelia T L. Pillard argued the cause for respondent. With her on the brief were Bernard Persky, J. Douglas Richards, Benjamin D. Brown, Christopher J. Cormier, Michael J. Freed, Steven A. Kanner, Michael D. Hausfeld, Hilary K. Ratway, Solomon B. Cera, W. Joseph Bruckner, and Aaron F. Biber.
Briefs of amici curiae urging reversal were filed for the Association of Ship Brokers & Agents et al. by William J. Honan, Samuel Spital, and Patrick V. Martin; for the Chamber of Commerce of the United States of America by Carter G. Phillips, Paul J. Zidlicky, Robin S. Conrad, and Amar D. Sarwal; for CTIA-The Wireless Association by Evan M. Tager and Michael F. Altschul; for DRI-The Voice of the Defense Bar by Jerrold J. Ganzfried and Jennifer R. Bagosy; and for the Equal Employment Advisory Council by Rae T. Vann and Judith A. Lampley.
Briefs of amici curiae urging affirmance were filed for the American Antitrust Institute et al. by Dan E. Gustafson, Albert A. Foer, and Richard M. Brunell; for the American Association for Justice et al. by Jeffrey R. White, Julie Nepveu, and Michael Schuster; for Dub Herring Ford Lincoln-Mercury, Inc., by Richard D. Faulkner, James D. Blume, and Shelly L. Skeen; for the Lawyers’ Committee for Civil Rights Under Law et al. by Sarah Crawford, Adam Klein, Lewis M. Steel, Vincent A Eng, and Dina Lassow; for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur; and for Public Justice, E C., et al. by F. Paul Bland, Jr., Seth E. Mermin, Arthur H. Bryant, and Michael J. Quirk.
Briefs of amici curiae were filed for the American Arbitration Association by Eric P. Tuchmann, William K. Slate II, Patricia A Millett, and Michael C. Small; and for Public Citizen, Inc., by Scott L. Nelson and Deepak Gupta.
Justice Alito
delivered the opinion of the Court.
We granted certiorari in this case to decide whether imposing class arbitration on parties whose arbitration clauses are “silent” on that issue is consistent with the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq.
I
A
Petitioners are shipping companies that serve a large share of the world market for parcel tankers — seagoing vessels with compartments that are separately chartered to customers wishing to ship liquids in small quantities. One of those customers is AnimalFeeds International Corp. (hereinafter AnimalFeeds), which supplies raw ingredients, such as fish oil, to animal-feed producers around the world. Animal-Feeds ships its goods pursuant to a standard contract known in the maritime trade as a charter party. Numerous charter parties are in regular use, and the charter party that AnimalFeeds uses is known as the “Vegoilvoy” charter party. Petitioners assert, without contradiction, that charterers like AnimalFeeds, or their agents — not the shipowners— typically select the particular charter party that governs their shipments. Accord, Trowbridge, Admiralty Law Institute: Symposium on Charter Parties: The History, Development, and Characteristics of the Charter Concept, 49 Tulane L. Rev. 743, 753 (1975) (“Voyage charter parties are highly standardized, with many commodities and charterers having their own specialized forms”).
Adopted in 1950, the Vegoilvoy charter party contains the following arbitration clause:
“Arbitration. Any dispute arising from the making, performance or termination of this Charter Party shall be settled in New York, Owner and Charterer each appointing an arbitrator, who shall be a merchant, broker or individual experienced in the shipping business; the two thus chosen, if they cannot agree, shall nominate a third arbitrator who shall be an Admiralty lawyer. Such arbitration shall be conducted in conformity with the provisions and procedure of the United States Arbitration Act [i e., the FAA], and a judgment of the Court shall be entered upon any award made by said arbitrator.” App. to Pet. for Cert. 69a.
In 2003, a Department of Justice criminal investigation revealed that petitioners were engaging in an illegal price-fixing conspiracy. When AnimalFeeds learned of this, it brought a putative class action against petitioners in the District Court for the Eastern District of Pennsylvania, asserting antitrust claims for supracompetitive prices that petitioners allegedly charged their customers over a period of several years.
Other charterers brought similar suits. In one of these, the District Court for the District of Connecticut held that the charterers’ claims were not subject to arbitration under the applicable arbitration clause, but the Second Circuit reversed. See JLM Industries, Inc. v. Stolt-Nielsen S. A., 387 F. 3d 163, 183 (2004). While that appeal was pending, the Judicial Panel on Multidistrict Litigation ordered the consolidation of then-pending actions against petitioners, including AnimalFeeds’ action, in the District of Connecticut. See In re Parcel Tanker Shipping Servs. Antitrust Litigation, 296 F. Supp. 2d 1370, 1371, and n. 1 (2003). The parties agree that as a consequence of these judgments and orders, AnimalFeeds and petitioners must arbitrate their antitrust dispute.
B
In 2005, AnimalFeeds served petitioners with a demand for class arbitration, designating New York City as the place of arbitration and seeking to represent a class of “[a]ll direct purchasers of parcel tanker transportation services globally for bulk liquid chemicals, edible oils, acids, and other specialty liquids from [petitioners] at any time during the period from August 1, 1998, to November 30, 2002.” 548 F. 3d 85, 87 (CA2 2008) (internal quotation marks omitted). The parties entered into a supplemental agreement providing for the question of class arbitration to be submitted to a panel of three arbitrators who were to “follow and be bound by Rules 3 through 7 of the American Arbitration Association’s Supplementary Rules for Class Arbitrations (as effective Oct. 8, 2003).” App. to Pet. for Cert. 59a. These rules (hereinafter Class Rules) were developed by the American Arbitration Association (AAA) after our decision in Green Tree Financial Corp. v. Bazzle, 539 U. S. 444 (2003), and Class Rule 3, in accordance with the plurality opinion in that case, requires an arbitrator, as a threshold matter, to determine “whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class.” App. 56a.
The parties selected a panel of arbitrators and stipulated that the arbitration clause was “silent” with respect to class arbitration. Counsel for AnimalFeeds explained to the arbitration panel that the term “silent” did not simply mean that the clause made no express reference to class arbitration. Rather, he said, “[a]ll the parties agree that when a contract is silent on an issue there’s been no agreement that has been reached on that issue.” Id., at 77a.
After hearing argument and evidence, including testimony from petitioners’ experts regarding arbitration customs and usage in the maritime trade, the arbitrators concluded that the arbitration clause allowed for class arbitration. They found persuasive the fact that other arbitrators ruling after Bazzle had construed “a wide variety of clauses in a wide variety of settings as allowing for class arbitration,” but the panel acknowledged that none of these decisions was “exactly comparable” to the present dispute. See App. to Pet. for Cert. 49a-50a. Petitioners’ expert evidence did not show an “inten[t] to preclude class arbitration,” the arbitrators reasoned, and petitioners’ argument would leave “no basis for a class action absent express agreement among all parties and the putative class members.” Id., at 51a.
The arbitrators stayed the proceeding to allow the parties to seek judicial review, and petitioners filed an application to vacate the arbitrators’ award in the District Court for the Southern District of New York. See 9 U. S. C. § 10(a)(4) (authorizing a district court to “make an order vacating the award upon the application of any party to the arbitration... where the arbitrators exceeded their powers”); Petition To Vacate Arbitration Award, No. 1:06-CV-00420-JSR (SDNY), App. in No. 06-3474-cv (CA2), p. A-17, ¶ 16 (citing § 10(a)(4) as a ground for vacatur of the award); see also id., at A-15 to A-16, ¶ 9 (invoking the District Court’s jurisdiction under 9 U. S. C. §203 and 28 U. S. C. §§1331 and 1333). The District Court vacated the award, concluding that the arbitrators’ decision was made in “manifest disregard” of the law insofar as the arbitrators failed to conduct a choice-of-law analysis. 435 F. Supp. 2d 382, 384-385 (SDNY 2006). See Wilko v. Swan, 346 U. S. 427, 436-437 (1953) (“[T]he interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation”); see also Petition To Vacate Arbitration Award, supra, at A-17, ¶ 17 (alleging that the arbitration panel “manifestly disregarded the law”). Had such an analysis been conducted, the District Court held, the arbitrators would have applied the rule of federal maritime law requiring that contracts be interpreted in light of custom and usage. 435 F. Supp. 2d, at 385-386.
AnimalFeeds appealed to the Court of Appeals, which reversed. See 9 U. S. C. § 16(a)(1)(E) (“An appeal may be taken from... an order... vacating an award”). As an initial matter, the Court of Appeals held that the “manifest disregard” standard survived our decision in Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U. S. 576 (2008), as a “judicial gloss” on the enumerated grounds for vacatur of arbitration awards under 9 U. S. C. § 10. 548 F. 3d, at 94. Nonetheless, the Court of Appeals concluded that, because petitioners had cited no authority applying a federal maritime rule of custom and usage against class arbitration, the arbitrators’ decision was not in manifest disregard of federal maritime law. Id., at 97-98. Nor had the arbitrators manifestly disregarded New York law, the Court of Appeals continued, since nothing in New York case law established a rule against class arbitration. Id., at 98-99.
We granted certiorari. 557 U. S. 903 (2009).
II
A
Petitioners contend that the decision of the arbitration panel must be vacated, but in order to obtain that relief, they must clear a high hurdle. It is not enough for petitioners to show that the panel committed an error — or even a serious error. See Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57, 62 (2000); Paperworkers v. Misco, Inc., 484 U. S. 29, 38 (1987). “It is only when [an] arbitrator strays from interpretation and application of the agreement and effectively ‘dispenséis] his own brand of industrial justice’ that his decision may be unenforceable. ” Major League Baseball Players Assn. v. Garvey, 532 U. S. 504, 509 (2001) (per curiam) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960)). In that situation, an arbitration decision may be vacated under § 10(a)(4) of the FAA on the ground that the arbitrator “exceeded [his] powers,” for the task of an arbitrator is to interpret and enforce a contract, not to make public policy. In this ease, we must conclude that what the arbitration panel did was simply to impose its own view of sound policy regarding class arbitration.
B
1
In its memorandum of law filed in the arbitration proceedings, AnimalFeeds made three arguments in support of construing the arbitration clause to permit class arbitration:
“The parties’ arbitration clause should be construed to allow class arbitration because (a) the clause is silent on the issue of class treatment and, without express prohibition, class arbitration is permitted under Bazzle; (b) the clause should be construed to permit class arbitration as a matter of public policy; and (c) the clause would be unconscionable and unenforceable if it forbade class arbitration.” App. in No. 06-3474-cv (CA2), at A-308 to A-309 (emphasis added).
The arbitrators expressly rejected AnimalFeeds’ first argument, see App. to Pet. for Cert. 49a, and said nothing about the third. Instead, the panel appears to have rested its decision on AnimalFeeds’ public policy argument. Because the parties agreed their agreement was “silent” in the sense that they had not reached any agreement on the issue of class arbitration, the arbitrators’ proper task was to identify the rule of law that governs in that situation. Had they engaged in that undertaking, they presumably would have looked either to the FAA itself or to one of the two bodies of law that the parties claimed were governing, i. e., either federal maritime law or New York law. But the panel did not consider whether the FAA provides the rule of decision in such a situation; nor did the panel attempt to determine what rule would govern under either maritime or New York law in the ease of a “silent” contract. Instead, the panel based its decision on post -Bazzle arbitral decisions that “construed a wide variety of clauses in a wide variety of settings as allowing for class arbitration.” App. to Pet. for Cert. 49a-50a. The panel did not mention whether any of these decisions were based on a rule derived from the FAA or on maritime or New York law.
Rather than inquiring whether the FAA, maritime law, or New York law contains a “default rule” under which an arbitration clause is construed as allowing class arbitration in the absence of express consent, the panel proceeded as if it had the authority of a common-law court to develop what it viewed as the best rule to be applied in such a situation. Perceiving a post-Bazzle consensus among arbitrators that class arbitration is beneficial in “a wide variety of settings,” the panel considered only whether there was any good reason not to follow that consensus in this case. App. to Pet. for Cert. 49a-50a. The panel was not persuaded by “court cases denying consolidation of arbitrations,” by undisputed evidence that the Vegoilvoy charter party had “never been the basis of a class action,” or by expert opinion that “sophisticated, multinational commercial parties of the type that are sought to be included in the class would never intend that the arbitration clauses would permit a class arbitration.” Id., at 50a-51a. Accordingly, finding no convincing ground for departing from the post-Bazzle arbitral consensus, the panel held that class, arbitration was permitted in this ease. App. to Pet. for Cert. 52a. The conclusion is inescapable that the panel simply imposed its own conception of sound policy.
2
It is true that the panel opinion makes a few references to intent, but none of these shows that the panel did anything other than impose its own policy preference. The opinion states that, under Bazzle, “arbitrators must look to the language of the parties’ agreement to ascertain the parties’ intention whether they intended to permit or to preclude class action,” and the panel added that “[tjhis is also consistent with New York law.” App. to Pet. for Cert. 49a. But the panel had no occasion to “ascertain the parties’ intention” in the present case because the parties were in complete agreement regarding their intent. In the very next sentence after the one quoted above, the panel acknowledged that the parties in this case agreed that the Yegoilvoy charter party was “silent on whether [it] permitted] or preelude[d] class arbitration,” but that the charter party was “not ambiguous so as to call for parol evidence.” Ibid. This stipulation left no room for an inquiry regarding the parties’ intent, and any inquiry into that settled question would have been outside the panel’s assigned task.
The panel also commented on the breadth of the language in the Vegoilvoy charter party, see id., at 50a, but since the only task that was left for the panel, in light of the parties’ stipulation, was to identify the governing rule applicable in a case in which neither the language of the contract nor any other evidence established that the parties had reached any agreement on the question of class arbitration, the particular wording of the charter party was quite beside the point.
In sum, instead of identifying and applying a rule of decision derived from the FAA or either maritime or New York law, the arbitration panel imposed its own policy choice and thus exceeded its powers. As a result, under § 10(b) of the FAA, we must either “direct a rehearing by the arbitrators” or decide the question that was originally referred to the panel. Because we conclude that there can be only one possible outcome on the facts before us, we see no need to direct a rehearing by the arbitrators.
III
A
The arbitration panel thought that Bazzle “controlled” the “resolution” of the question whether the Vegoilvoy charter party “permitís] this arbitration to proceed on behalf of a class,” App. to Pet. for Cert. 48a-49a, but that understanding was incorrect.
Bazzle concerned contracts between a commercial lender (Green Tree) and its customers. These contracts contained an arbitration clause but did not expressly mention class arbitration. Nevertheless, an arbitrator conducted class arbitration proceedings and entered awards for the customers.
The South Carolina Supreme Court affirmed the awards. Bazzle v. Green Tree Financial Corp., 351 S. C. 244, 569 S. E. 2d 349 (2002). After discussing both Seventh Circuit precedent holding that a court lacks authority to order classwide arbitration under § 4 of the FAA, see Champ v. Siegel Trading Co., 55 F. 3d 269 (1995), and conflicting California precedent, see Keating v. Superior Court of Alameda Cty., 31 Cal. 3d 584, 645 P. 2d 1192 (1982), the State Supreme Court elected to follow the California approach, which it characterized as permitting a trial eourt to “order class-wide arbitration under adhesive but enforceable franchise contracts,” 351 S. C., at 259, 266, 569 S. E. 2d, at 357, 360. Under this approach, the South Carolina court observed, a trial judge must “[b]alanc[e] the potential inequities and inefficiencies” of requiring each aggrieved party to proceed on an individual basis against “resulting prejudice to the drafting party” and should take into account factors such as “efficiency” and “equity.” Id., at 260, and n. 15, 569 S. E. 2d, at 357, and n. 15.
Applying these standards to the case before it, the South Carolina Supreme Court found that the arbitration clause in the Green Tree contracts was “silent regarding class-wide arbitration.” Id., at 263, 569 S. E. 2d, at 359 (emphasis deleted). The court described its holding as follows:
“[W]e... hold that class-wide arbitration may be ordered when the arbitration agreement is silent if it would serve efficiency and equity, and would not result in prejudice. If we enforced a mandatory, adhesive arbitration clause, but prohibited class actions in arbitration where the agreement is silent, the drafting party could effectively prevent class actions against it without having to say it was doing so in the agreement.” Id., at 266, 569 S. E. 2d, at 360 (footnote omitted).
When Bazzle reached this Court, no single rationale commanded a majority. The opinions of the Justices who joined the judgment — that is, the plurality opinion and Justice Stevens’ opinion — collectively addressed three separate questions. The first was which decisionmaker (court or arbitrator) should decide whether the contracts in question were “silent” on the issue of class arbitration. The second was what standard the appropriate decisionmaker should apply in determining whether a contract allows class arbitration. (For example, does the FAA entirely preclude class arbitration? Does the FAA permit class arbitration only under limited circumstances, such as when the contract expressly so provides? Or is this question left entirely to state law?) The final question was whether, under whatever standard is appropriate, class arbitration had been properly ordered in the case at hand.
The plurality opinion decided only the first question, concluding that the arbitrator and not a court should decide whether the contracts were indeed “silent” on the issue of class arbitration. The plurality noted that, “[i]n certain limited circumstances,” involving “gateway matters, such as whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy,” it is assumed “that the parties intended courts, not arbitrators,” to make the decision. 539 U. S., at 452. But the plurality opined that the question whether a contract with an arbitration clause forbids class arbitration “does not fall into this narrow exception.” Ibid. The plurality therefore concluded that the decision of the State Supreme Court should be vacated and that the case should be remanded for a decision by the arbitrator on the question whether the contracts were indeed “silent.” The plurality did not decide either the second or the third question noted above.
Justice Stevens concurred in the judgment vacating and remanding because otherwise there would have been “no controlling judgment of the Court,” but he did not endorse the plurality’s rationale. Id., at 455 (opinion concurring in judgment and dissenting in part). He did not take a definitive position on the first question, stating only that “[ajrguably the interpretation of the parties’ agreement should have been made in the first instance by the arbitrator.” Ibid. (emphasis added). But because he did not believe that Green Tree had raised the question of the appropriate decisionmaker, he preferred not to reach that question and, instead, would have affirmed the decision of the State Supreme Court on the ground that “the decision to conduct a class-action arbitration was correct as a matter of law.” Ibid. Accordingly, his analysis bypassed the first question noted above and rested instead on his resolution of the second and third questions. Thus, Bazzle did not yield a majority decision on any of the three questions.
B
Unfortunately, the opinions in Bazzle appear to have baffled the parties in this case at the time of the arbitration proceeding. For one thing, the parties appear to have believed that the judgment in Bazzle requires an arbitrator, not a court, to decide whether a contract permits class arbitration. See App. 89a (transcript of argument before arbitration panel) (counsel for Stolt-Nielsen states: ‘What [Bazzle] says is that the contract interpretation issue is left up to the arbitrator, that’s the rule in [Bazzle]”). In fact, however, only the plurality decided that question. But we need not revisit that question here because the parties’ supplemental agreement expressly assigned this issue to the arbitration panel, and no party argues that this assignment was impermissible.
Unfortunately, however, both the parties and the arbitration panel seem to
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169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_initiate
|
C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
KINGSPORT PUBLISHING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 18048.
United States Court of Appeals Sixth Circuit.
Sept. 4, 1968.
Edwin O. Norris, Kingsport, Tenn., (David W. Zugschwerdt, F. Allan Kelly, Kingsport, Tenn., on the brief), for petitioner. Hunter, Smith, Davis, Norris, Waddey & Treadway, Kingsport, Tenn., of counsel.'
Nancy M. Sherman, N. L. R. B., Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel-Mallet-Prevost, Asst. Gen. Counsel, on the brief), for respondent.
Before CELEBREZZE, PECK and McCREE, Circuit Judges.
PECK, Circuit Judge.
In this action Kingsport Publishing Company, hereinafter the “Company,” petitioned for review, and the National Labor Relations Board cross-petitioned for enforcement of an order of the Board dated June 21, 1967 (165 NLRB No. 116), which held the Company to be in violation of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended (29 U.S.C. § 158(a) (5) and (1) ), upon a charge of unilaterally altering a condition of employment during the course of negotiations with the Union for a new collective bargaining agreement.
The Company and the Union executed a collective bargaining agreement on November 1, 1962, which extended through October 31, 1964. On August 25, 1964, the Union notified the Company by letter that “on October 31 any agreement — written, oral or implied — or any conditions of employment or other understanding now in effect between the [Company] and [the Union] will terminate,” and offered to meet with the Company to negotiate an agreement with respect to wages, hours and other terms and conditions of employment. A number of bargaining sessions were held between September, 1964, and November, 1966, at which time no agreement had been consummated.
On June 22, 1965, approximately eight months after the expiration of the 1962 contract, employee Ivil Lytz was discharged by the Company for refusal to carry out a foreman’s instructions and for deliberately ignoring posted instructions regarding holiday shifts. (It is not contended that this discharge was discriminatory or that it constituted an independent violation under the Act.) The Union then took the position that the Company should reinstate Lytz and process his discharge in accordance with the grievance procedure contained in the contract which terminated in October, 1964. The Company refused the request to so process the grievance, and the Union thereafter rejected the Company’s offer to discuss the discharge during contract negotiations. The Union subsequently filed the unfair labor practice charges upon which the complaint underlying the order on review was based.
It is the Board’s position that a grievance procedure constitutes a mandatory subject for collective bargaining (N.L.R.B. v. United Nuclear Corp., 381 F.2d 972 (10th Cir. 1967); N.L.R.B. v. Celotex Corp., 364 F.2d 552 (5th Cir.), cert. denied, 385 U.S. 987, 87 S.Ct. 601, 17 L.Ed.2d 450 (1966); N.L.R.B. v. Century Cement Mfg. Co., Inc., 208 F.2d 84 (2d Cir. 1953) ), and that the Company violated the Act by unilaterally altering, or stated more precisely, by abandoning the grievance procedure provided in the expired 1962 contract. See N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Fibreboard Paper Products Co. v. N.L.R.B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).
It is clear that no bad faith motive or anti-union sentiment is imputable to the Company by any of its actions, as evidenced by the non-discriminatory nature of the discharge and the Company’s offer to discuss the grievance in question at bargaining negotiations or to process it in accordance with the new grievance procedure tentatively agreed upon once the new contract was executed. Moreover, the Company did not attempt to substitute a new grievance procedure in lieu of the one contained in the expired contract during the course of negotiations. Compare Industrial Union of Marine & Shipbuilding Wkrs. v. N.L.R.B., 320 F.2d 615, at 620 (3rd Cir. 1963), cert. denied, Bethlehem Steel Co. v. N.L.R.B., 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). The unfair labor practice charge in this case rests solely upon the Company’s refusal to process the grievance relating to Lytz’s discharge in accordance with the provisions of the 1962 collective bargaining contract.
The grievance procedure contained in the 1962 contract between the Company and the Union provided for binding arbitration as the final step in the settlement of any dispute. The Board, by adopting the Trial Examiner’s findings and conclusions, held that “it would, of course, seem totally inconsistent to hold that a grievance procedure would survive a contract but the arbitration clause, the final and binding part of that procedure, would not.” While congressional policy favors the settlement of labor disputes by the arbitral process rather than by economic warfare (See Section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrier & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)), arbitration nevertheless rests upon a contractual basis. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Amalgamated Clothing Workers v. Ironall Factories Co., Inc., 386 F.2d 586 (6th Cir. 1967). . Thus, although the Board by its order would require the Company to process the grievance in dispute in accordance with the provisions of the 1962 collective bargaining contract, the Board does not refute the Company’s contention that neither party to the contract could successfully have brought suit under Section 801 of the Labor Management Relations Act to compel arbitration. Cf. Procter & Gamble Independent Union v. Procter & Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963).
The Company argues that the Union, by its letter of August 25, 1964, fully terminated all working conditions and other understandings under the contract then in effect. The Board, however, found that the letter “was no more than required by Section 8(d) of the Act.” While we disagree with the Board’s conclusion, since it seems quite clear that the language used went far beyond anything required by Section 8(d), we find it unnecessary to decide whether the Union’s letter, standing alone, constituted a “clear and unmistakable” waiver (Dura Corp. v. N.L.R.B., 380 F.2d 970 (6th Cir. 1967) ) of the alleged statutory right to bargain about any change regarding a condition of employment.
There is little evidence in the record establishing the extent to which the formal grievance procedure was actually employed by the parties during the effective term of the 1962 contract, and what evidence there is shows that the grievance arising out of Lytz’s discharge was to be the first to be formally processed “outside of normal negotiations.” As stated in N.L.R.B. v. Frontier Homes Corp., 371 F.2d 974, 980-981 (8th Cir. 1967):
“An expired contract in the Labor-Management field must be viewed in light of its effect upon the past operation of the plant and the entire industrial pattern which has been established, in part, by it, together with the customs, practices, and traditions of the. industry and the Company. Expired contract rights affecting mandatory bargaining issues, therefore, have no efficacy unless the rights have become a part of the established operational pattern and thus become a part of the status quo of the entire plant operation.”
Because of the absence of evidence of prior use of the grievance procedure, it certainly cannot be said that the grievance machinery was part of the “established operational pattern” at the Company’s plant, or that the Company unlawfully upset the status quo by resisting attempts to settle the grievance by means other than direct negotiations with the Union. Cf. N.L.R.B. v. Katz, supra at 746, 82 S.Ct. 1107.
In accordance with the foregoing, it is here determined that the Board’s conclusion that the Company unlawfully refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act was unwarranted. Accordingly, enforcement of the Board’s order requiring the Company to reinstate Lytz with back pay and to process the grievance in accordance with the expired 1962 contract should be denied.
Enforcement denied.
Kingsport Typographical Union No. 940, an affiliate of the International Typographical Union.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_freeinfo
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court rule in favor of the government when the administrative action in question related to the agency's providing information to those who request it? For example, Freedom of Information, issues of governmental confidentiality, or "government in the sunshine". 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".
FIDELITY GUARANTEE MORTGAGE CORPORATION, Plaintiff, Appellant, v. Howard T. REBEN, Defendant, Appellee.
No. 86-1739.
United States Court of Appeals, First Circuit.
Argued Dec. 2, 1986.
Decided Jan. 21, 1987.
Arthur H. Goldsmith, Boston, Mass., for plaintiff, appellant.
William J. Kayatta, Jr., Portland, Me., with whom Ralph I. Lancaster, Jr. and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me. were on brief, for defendant, appellee.
Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.
BOWNES, Circuit Judge.
Plaintiff-appellant Fidelity Guarantee Mortgage Corporation (Fidelity) appeals from an award of attorney’s fees and costs to defendant-appellee Howard T. Reben pursuant to 42 U.S.C. § 1988. In order to understand the issues, a history of the case is necessary.
I.
Fidelity, a Massachusetts corporation authorized to do business in Maine, opened an office in Portland, Maine, in February of 1980 for the purpose of dealing in residential mortgage loans. In July 1980, the superintendent of the Maine Bureau of Consumer Credit Protection, Barbara Reid Alexander, notified Fidelity pursuant to Me.Rev.Stat.Ann. tit. 9-A, § 6-108 that it was in violation of Maine law prohibiting charging interest in excess of 12.25% on consumer loans without Bureau approval. Alexander issued a cease and desist order at the same time. Between June and September 1980, thirty consumer actions were brought against Fidelity in the federal district court based on its violation of Maine law. Defendant Reben represented the plaintiffs in twenty-one of those cases.
In 1981, Fidelity brought a civil rights action under 42 U.S.C. § 1985 in state court against Alexander. Fidelity alleged that Alexander, her assistant Harry Giddinge, and Reben had conspired to deprive it of equal protection and of its privileges and immunities under federal law. The complaint was dismissed on April 2, 1982, by the state court on the authority of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).
On July 9, 1982, Fidelity commenced this 42 U.S.C. § 1983 action against Alexander, Giddinge, and Reben. The allegations of the complaint pertinent to defendant Reben state:
14. After July 11, 1980, Defendants, BARBARA REID ALEXANDER and HARRY W. GIDDINGS, [sic] encouraged and counseled consumers who had obtained residential mortgage loans from Plaintiff to bring civil actions against Plaintiff for which said Defendants knew or had good reason to know that Plaintiff had a good and valid statutory defense under Title 9-A, MRSA. During the same period, said Defendants also advised consumers, or caused consumers to be encouraged, counseled and advised that they should retain Defendant, HOWARD T. REBEN, to represent them in actions against Plaintiff.
15. After July 11, 1980, Defendants BARBARA REID ALEXANDER, HARRY W. GIDDINGE and HOWARD T. REBEN acted in concert and conspired to deprive Plaintiff of lawful defenses available in consumer actions under the laws of the State of Maine and further to deprive Plaintiff [sic] other rights available under state and federal law.
16. During the period September, 1980 through June, 1981, thirty consumer actions, now pending before this Court, were filed against Plaintiff in various state courts. Defendant HOWARD T. REBEN represents consumers in twenty-one of these actions.
18. Defendants acted in conspiracy with the intent of destroying Plaintiffs business in Maine. As a result of Defendants’ actions, Plaintiff lost so much of its business in Maine that it was forced to close its Portland branch on or about September 28, 1981.
Damages in the amount of five million dollars were sought.
In his answer to Fidelity’s complaint, Reben admitted that after July 11, 1980, some consumers were referred to him by the Maine Bureau of Consumer Protection and that he represented twenty-one consumers in actions pending in the federal district court. He denied the allegations in paragraph fifteen of the complaint charging that he had conspired with Alexander and Giddinge to deprive Fidelity of lawful defenses under Maine law.
On September 9, 1982, Reben took the depositions of Richard M. Arakelian, senior vice-president of Fidelity, and Herbert M. Jacobs, Fidelity’s counsel. Arakelian and Jacobs appeared for Fidelity as its designees. Arakelian was asked to state in detail the nature and basis of the complaint by Fidelity against Reben and the information Fidelity had as the basis for its complaint. Arakelian stated that the only facts he had as a basis for the complaint were that the Bureau of Consumer Protection referred a large number of consumers to Reben and the lawsuits Reben brought were all virtually identical. Jacobs, who had heard the questions asked Arakelian, was asked if he had any “other additional information or facts of supplementation that you care to add____” The only additional information was a copy of a letter from Alexander to a Nicholas Scaccia referring him to Reben concerning a consumer complaint.
On the basis of the depositions, Reben asked Fidelity to dismiss the complaint. Fidelity refused and served a notice to take Reben’s deposition. Reben responded by moving for a protective order and filing a motion to dismiss the complaint. On May 24, 1983, plaintiff’s attorney, James Cooper, withdrew from the case. He was replaced by Attorney Arthur H. Goldsmith who had filed an appearance on May 23. A magistrate’s hearing on Reben’s motions was scheduled for May 25, 1983. On the eve of the hearing, Fidelity moved to amend its complaint. The motion was granted and, on May 27,1983, Fidelity filed a twenty-four-page amended complaint. The magistrate, in an opinion dated May 27, 1983, held that the deposition testimony of Fidelity by Arakelian and Jacobs showed that there was no factual basis for plaintiff’s cause of action against Reben. The magistrate considered the additional allegations in the amended complaint and found that they “cannot overcome the plaintiff’s deposition testimony concerning the nature of its action against the defendant Reben.” The magistrate recommended that Reben’s motion to dismiss the complaint be treated as a motion for summary judgment and be granted.
The most serious allegations in the amended complaint state:
43. During the period August — September 29, 1980, Defendants Alexander, Giddinge and Reben met together, counselled, discussed and planned a strategy for the hearings on Plaintiff’s application.
45. Defendant Reben advised Defendants Alexander and Giddinge that whatever findings or conclusions Alexander wanted to make with respect to Plaintiff’s license application, Alexander must avoid finding that the Plaintiff’s failure to have obtained a supervised lender’s license was “unintentional or the result of a bona fide error notwithstanding the maintenance of procedures reasonably calculated to avoid any such violations or error.”
46. Defendant Reben so advised Defendants Alexander and Giddinge because Defendant Reben knew that such a finding of an unintentional failure or bona fide error would result in no civil liability on the part of the Plaintiff, as provided for in 9-A M.R.S.A. S. 5.201(8), in Defendant Reben’s civil actions against Plaintiff.
50. Defendant Reben attended the public hearings as a behind-the-scenes advis- or to Defendant Alexander.
51. Defendant Alexander conducted the hearings in anything but an impartial, fair, objective, disinterested and unbiased manner.
70. Defendant Reben, in providing secret advice and consultation to Defendants Alexander and Giddinge, assisted and participated in the deprivation of Plaintiff’s rights.
85.....
Defendant Alexander had also been secretly advised by Defendant Reben not to consider or give any credence to Plaintiff’s statutory defense of an unintentional failure to obtain a supervised lender’s license under 9-A M.R.S.A. S. 5.201(8). 91. Defendant Giddinge, in concert with Defendant Reben, urged and counselled Defendant Alexander not to rule upon Plaintiff’s defense of an unintentional failure to obtain a license, knowing that such a ruling would bar Defendant Reben’s civil actions against the Plaintiff.
After the recommendation of the magistrate that plaintiff’s motion for summary judgment be granted was filed, plaintiffs counsel filed an affidavit under Federal Rule of Civil Procedure 56(f) opposing the motion for summary judgment and asking for further discovery. The affidavit stated in pertinent part:
10. Fidelity’s complaint against Reben is that Reben, having received referrals from the Bureau, and having filed suit, met with, counselled, advised, discussed and planned strategy for the Fidelity hearings with state officials responsible for making a fair and impartial decision on Fidelity’s application and otherwise charged with providing Fidelity with due process of law. (Amended Complaint, para. 43-47). It is the private advocacy resulting in the alleged deprivation of Fidelity’s civil right to a fair hearing, coupled with Reben’s undiscovered role in soliciting or encouraging private referrals, that forms the basis for Fidelity’s civil rights action against Reben. Fidelity requires discovery to develop these claims.
11. The Magistrate’s Recommendation to dismiss the action against Reben is premature. Discovery should be permitted to develop facts supportive of Fidelity’s claims; and that genuine issues of material fact exist such that the Summary Judgment recommendation against Fidelity and in Reben’s favor should be reversed. Completion of discovery should flesh out the true basis behind Reben’s involvement with the Bureau and representation of twenty-one of Fidelity’s borrowers.
Reben filed an affidavit stating, inter alia:
Specifically, and without conceding that any particular acts alleged would in any way be improper if in fact committed by me, I did not advise Defendants Alexander and Giddinge as alleged in paragraph 45 and 46 of the amended complaint. Additionally, I never counseled or advised or “conspired” with Bureau officials concerning their regulatory proceedings against Fidelity.
On December 19, 1983, a hearing was held before the district court on the magistrate’s recommendation. Despite the court’s questions about the factual basis for the allegations in the amended complaint and its pointed reference to Federal Rule of Civil Procedure 11, Fidelity’s attorney insisted that he be allowed an opportunity for discovery prior to the hearing on Reben’s motion for summary judgment. The court granted Fidelity’s discovery request, but warned plaintiff’s counsel that if discovery proved fruitless it would be disposed to impose sanction under Rules 11 and 37.
On January 10, 1984, local counsel for Fidelity, Peter K. Sampson, moved for leave to withdraw. In his affidavit, Attorney Sampson gave as reasons that his advice concerning the proposed deposition of Reben and the prosecution of the action was “no longer sought or heeded by either plaintiff or co-counsel, and that I have no control over Plaintiff’s future cause of action” and “to protect myself from the possibility of sanctions being sought against me for matters over which I have no control.” Sampson’s motion to withdraw as counsel for Fidelity was granted. No Maine attorney took Sampson’s place and the case proceeded solely with present counsel, Arthur H. Goldsmith of Massachusetts.
An amended notice to take Reben’s deposition was filed and Fidelity also noticed the depositions of Superintendent Alexander and her assistant, Giddinge. Alexander’s deposition was taken on February 17, 1984. She flatly denied conspiring with Reben or having any communications with him of the type alleged in the complaint. Reben asked again that the action against him be dismissed. Fidelity at first refused and then offered to dismiss the suit if Reben would waive any right to the benefit of sanctions under Rule 11. This offer was refused by Reben. On June 22, 1984, Fidelity moved to dismiss “all claims and appeals” against Reben “with prejudice and without costs.”
A hearing on pending motions was held before the magistrate on November 2, 1984. The magistrate granted the motions of both Reben and Fidelity to dismiss “without prejudice and without ruling on the question of costs and attorney’s fees.” Fidelity filed an objection to that part of the magistrate’s report which granted Reben’s motion to dismiss. The district court overruled Fidelity’s objection to the magistrate’s report and final judgment was entered dismissing the action against Reben on February 12,1985. This was more than two and one-half years after the commencement of the action on July 9, 1982.
Reben moved for attorney’s fees and the imposition of sanctions on March 29, 1985. Fidelity objected and a hearing on the motion was held on September 13, 1985. Subsequent to the hearing, Reben waived any claims for fees and sanctions against counsel for Fidelity. On February 27, 1986, the court issued a written memorandum and order. It concluded “that Fidelity’s action against Reben was frivolous, unreasonable, and groundless from the outset and that, in any event, Fidelity continued to litigate after it clearly became so. The Court holds that Reben is entitled to an award of attorneys’ fees and costs under 42 U.S.C. § 1988.”
After a subsequent hearing, the court, on May 30, 1986, assessed attorney’s fees in the amount of $16,682.86. This was the sum which Reben’s insurance carrier paid to the attorneys who represented him throughout the case. No sanctions were imposed. After unsuccessfully moving to alter or amend the judgment under Federal Rule of Civil Procedure 59, Fidelity appealed.
II.
Fidelity attacks the award of attorney’s fees on the following grounds: (1) that as a civil rights’ plaintiff who sought to dismiss its own case it should not have been ordered to pay the amount of attorney’s fees billed to an insurance company; (2) that the claim for attorney’s fees was not timely filed under the district court’s local rules; (3) that a civil rights defendant is not entitled to fees for work on the case and time spent pursuing his claim for fees when the actual recipient of the fees is an insurance company that had no expectation of recovering such fees; (4) that the district court’s computation of attorney’s fees was clearly erroneous; and (5) that the district court abused its discretion by denying motions of plaintiff, by awarding fees for time spent after plaintiff sought to dismiss its action and by refusing to amend its order.
We find at the outset that Fidelity had absolutely no factual basis for the allegations made against Reben in the original and amended complaint. We agree with the district court that Fidelity “continued to litigate after it became clear that the claims were baseless.” Our reading of the record confirms the district court’s finding that in bringing this action and continuing to pursue it, Fidelity sought to blunt the effect of the suits brought against it by Reben and bring about a favorable resolution of those actions. In short, the record leads us to conclude that Fidelity’s civil rights action against Reben was not bona fide, but a counterattack against the consumer actions. There can be little question that under the pertinent law the district court was well within its discretion in awarding defendant attorney’s fees. In the seminal case in this area, the Court held that “a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The Court then cautioned district court judges against assessing attorney’s fees against plaintiffs simply because they do not ultimately prevail. Id. at 422, 98 S.Ct. at 700. In language that is directly applicable to the facts of this case, it stated:
Hence, a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense.
Id. (footnote omitted). Unlike Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980), where the Court found no “such finding” to support the fee award, the facts and the findings of the district court here amply support a fee award. Cf. Olitsky v. O’Malley, 597 F.2d 303, 305 (1st Cir.1979) (where action not frivolous, unreasonable, groundless or vexatiously brought, district court did not abuse its discretion in denying attorney’s fees).
We reject Fidelity’s argument that because an insurance company is the ultimate recipient of the attorney’s fee award, it should be treated differently than an award to an individual. We have found no cases making such a distinction.' In fact, the only case we have found directly on point is to the contrary:
The Supreme Court concluded in Christiansburg Garment Co. v. EEOC, supra, 434 U.S. at 420, 98 S.Ct. at 699, that the purpose of awarding attorneys’ fees to a defendant in a civil rights case is to deter frivolous or harassing litigation; the fact that a defendant is insured is irrelevant to this purpose.
Ellis v. Cassidy, 625 F.2d 227, 230 (9th Cir.1980). Cf. Duncan v. Poythress, 750 F.2d 1540, 1543 (11th Cir.1985), (court held that “the financial need of the litigant is not the determinative factor in awarding fees under section 1988”). (Footnote omitted.) In a case such as this, where the plaintiff had no factual basis for the complaint and the only reason for persisting in prosecuting the suit was for harassment, an award of attorney’s fees can and should be made to deter such conduct in the future and it makes no difference that the recipient of the fee award is defendant’s insurance carrier rather than the defendant individually.
The next question is the amount of the award. Our examination of the affidavits and other material filed by defendant fully supports the district court’s fee award. In conformity with Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984), the fee was calculated according to the prevailing market rate in the Portland, Maine community. Defendant’s attorney kept and included with the affidavits contemporaneous time records as required under Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 951-52 (1st Cir.1984). Fidelity has not seriously challenged the reasonableness of the time spent, the reasonableness of the hourly rates, or the reasonableness of the expenses claimed. Id. at 952-57. And there is no basis for such a challenge. Nor is there any legal basis for Fidelity’s position that defendant is not entitled to recover fees incurred in obtaining fees authorized under section 1988. Such “pursuit fees” are recoverable to the extent that they are reasonable. Id. at 957-58. See also Cruz v. Hauck, 762 F.2d 1230, 1233-34 (5th Cir.1985); Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 924-25 (3d Cir.1985); Laffey v. Northwest Airlines, Inc. 746 F.2d 4, 29-30 (D.C.Cir.1984), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985).
The next issue is a variation on the prior one. Fidelity contends that fees should not be assessed against it for the time period after it sought to dismiss its own action. We find no basis in equity or law for the proposition that a mea culpa confession limits the prevailing party’s basis for a fee award under section 1988. On December 19,1983, Fidelity was warned by the district court about the consequences of proceeding without any factual basis for its allegations. It insisted on being given the right to further discovery. Six months later, on June 22, 1984, it finally admitted that it had no basis for its motion against defendant by moving to dismiss all claims against him “with prejudice and without costs.” (Emphasis added). Fidelity started this law suit without any basis and it persisted in it until it was convinced that it could no longer serve any purpose. It ill behooves Fidelity to now claim that the additional time spent by defense counsel in obtaining what was due defendant under section 1988 should not be counted against it. Fidelity’s decision to terminate an ill conceived and wrongly prosecuted law suit cannot serve to limit the consequences of a course of action it initiated and persistently followed.
Fidelity’s reliance on Evans v. Jeff D., — U.S. -, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986), is woefully misplaced. In that case, the Court found that the district court did not abuse its discretion in upholding a fee waiver in a class action settled by a consent decree where the decree secured plaintiffs broader injunctive relief than they could have reasonably expected to achieve at trial. Id. 106 S.Ct. at 1545. In no way did the Court suggest or intimate that a plaintiff had a right to limit its liability for attorney’s fees under section 1988 by dismissing a civil rights action it had wrongfully brought and prosecuted.
The final issue is whether the claim for attorney’s fees was timely filed under Maine District Court Rule 30, which provides:
Any claim for attorney fees shall be filed with the Court and served upon opposing counsel, together with supporting memorandum and affidavits, within 45 days after entry of judgment. For good cause shown on motion filed within such period, the Court may extend the time for filing the claim for attorney fees.
This rule must be construed in light of Federal Rule of Civil Procedure 6(a) which provides in pertinent part:
(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rule of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.
Judgment was entered on February 12, 1985. Under Rule 6(a), the forty-five-day period began to run the next day, February 13. The motion for attorney’s fees was filed on March 29, exactly forty-five days later. Fidelity argues that because its counsel did not receive a copy of the motion until April 1, service was late because it was not made within the forty-five-day period of the local rule. This ignores, however, the controlling provisions of Federal Rule of Civil Procedure 5(a). “Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him____ Service by mail is complete upon mailing.” There is no question that a copy of the motion for attorney’s fees was mailed to Fidelity’s counsel on March 29, 1985. The filing of the motion and service of a copy upon opposing counsel met the forty-five-day requirement of Maine District Court Rule 30.
Fidelity makes an additional procedural attack on the motion based upon Local Rule 30. It claims that because the motion did not contain any affidavit evidence of the amount of fees claimed, it was defective and should have been rejected by the district court. No precedent has been cited for this proposition; the argument is pitched upon the grounds of reasonableness and procrastination and delaying tactics by the defendant — the case of a colorblind pot calling a white kettle black. We reject this argument. It is within the discretion of the district court to determine when the supporting affidavits shall be filed. Where the entitlement to any attorney’s fees is hotly contested, the district court may, as it did here, determine that question before reaching the computation of the award. See Lund v. Affleck, 587 F.2d 75, 77 (1st Cir.1978); Sargeant v. Sharp, 579 F.2d 645; 648 (1st Cir.1978). See also Local Rule 1(c) (court may relax local rules in exceptional circumstances when justice so requires). We see no prejudice to either party in such a two-step approach to the question of attorney’s fees. Indeed, in cases where the judge determined either that no attorney’s fees would be appropriate or imposed limits on them, this approach would eliminate the vain effort that would otherwise be spent in determining their amount.
We have considered all of Fidelity’s other arguments and find them to be so flimsy as not to require discussion.
Affirmed.
Since there was no factual or legal basis for this appeal, double costs and attorney’s fees in the amount of $1,000 are assessed against Fidelity. Fed.R.App.P. 38.
Defendant shall file a motion for attorney’s fees and costs attendant upon this appeal along with supporting affidavits within sixty days hereof with the clerk of this court. Fidelity shall have thirty days to file responsive pleadings. Such fees are awarded under 42 U.S.C. § 1988.
So ordered.
. Fidelity raises two other issues that do not warrant discussion: (1) that the court was not warranted in verbally chastising plaintiff s counsel; and (2) that the court erred in issuing execution on the judgment when it did.
Question: Did the court rule in favor of the government when the administrative action in question related to the agency's providing information to those who request it? For example, Freedom of Information, issues of governmental confidentiality, or "government in the sunshine".
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appel1_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
HEALD v. UNITED STATES (three cases).
Nos. 3791, 3792, 3793.
United States Court of Appeals Tenth Circuit.
July 7, 1949.
Rehearing Denied July 28, 1949.
Isaac Mellman, Denver, Colo., for appellants.
Henry E. Lutz, Assistant United States Attorney, Denver, Colo. (Max M. Bulkeley, United States Attorney, Wray Colo., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
Appellants were indicted, tried, and convicted in the United States District Court for the District of Colorado under 18 U.S.C.A. § 88 [now § 371]. The indictment charged them with conspiring to violate the False Claim Statute, 18 U.S.C.A. § 80 [now §§ 287, 1001], and with conspiring to violate Title III, Servicemen’s Readjustment Act, 38 U.S.C.A. §§ 694 and 694a. Numerous assignments of error are urged for reversal.
It is first contended that the indictment was insufficient to state an offense in that it merely alleged conclusions and not facts as to the objects of the conspiracy and that the violation of the Servicemen’s Readjustment Act is not an offense against the United States. Abbreviated, the indictment charged that appellants conspired, combined, confederated, and agreed together and with each other to defraud the Government by violating the provisions of Title 18, Sections 80 and 88, and Title 38, Sections 694 and 694a, U.S.C.A. It charged in substance that the defendants, as owners or brokers of those certain residential premises mentioned therein, conspired and agreed that they would, by the fraudulent means set out, cause the United States, acting by and through its Veterans Administration, an agency of the United States, to guarantee in part a loan under the provisions of Sections 694 and 694a, Title 38 U.S.C.A., in the sum of $9,600 to be made by the Silver State Savings and Loan Association of Denver, Colorado; that they would knowingly, willfully, falsely and fraudulently represent to the Silver State Savings and Loan Association that they would sell the house to John C. Hess, a veteran, eligible for the benefits of Subehapter IT of the Servicemen’s Readjustment Act, 38 U.S. C.A. §§ 694-964j, and his wife, for $10,600 when in truth and in fact they would be and were selling it to him for the sum of $11,500, which loan the United States, acting through the Veterans Administration, would not guarantee were the true facts known; that appellants conspired by fraudulent means, set out, to impair and obstruct the Veterans Administration in the exercise of its governmental function of guaranteeing loans for homes to Veterans under Sections 694 and 694a, Title 38, United States Code Annotated; that the Silver State Savings and Loan Association was a member of the Federal Home Loan Bank system; that the permitted selling price of the premises in question, as fixed and appraised by the Veterans Administration, was $10,600, as the appellants well knew; that they would exhibit to the Loan Association an alleged pretended contract with Hess, dated June 14, 1947, calling for the sum of $10,-600 as the selling price, although they would also then and there have in their possession another and different contract dated June 13, 1947, providing for the payment by Hess of $11,500, and that by means of exhibiting such fictitious and pretended contract the said defendants would.procure the Silver State Savings and. Loan Association to make a loan of $9,600 on the premises and would cause the United States, acting by and through the Veterans Administration, to guarantee such loan to the extent of $4,000. The indictment then set out .specific overt acts which., it is alleged were committed in furtherance thereof.
'■ 18 U.S.C.A. § 88, provides: “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, ór both.”'
38 U.S.C.A. § 694, relates to the eligibility of Veterans for loans, and Section 694a describes the condition under which such a loan will be guaranteed. Thus, among other things, it.provides: “That the price paid or to be paid ,by the veteran for such property or for -the cost of construction, repairs, or alterations does not exceed the reasonable value thereof as determined by proper appraisal made by an appraiser designated by the Administrator.” ;
It is difficult to see how the alleged offense could be more clearly charged. The gist of the offense charged was that appellants conspired to defraud the United States by inducing the Veterans Administration, through fraudulent representations, to guarantee, in part, a loan to Hess on a house he was purchasing from them, which loan it would not and could not guarantee were the true facts known. In order to be eligible for a guaranteed loan under the above Act, the price paid by the veteran must not- exceed the reasonable value thereof as determined by a proper appraisal made by an appraiser designated by the Administrator. Concealing the actual selling price for the purpose of obtaining a guaranteed loan which could not be obtained were such price known, impairs the functions of the Veterans Administration and conspiring to do so states an offense against the United States. Haas v. Henkel, 216 U. S. 462, 30 S.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112. Hammerschmidt v. U. S., 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed 968. This is true even though pecuniary or property loss to the Government is not contemplated or does not result. Berenbeim v. U. S. 10 Cir., 164 F.2d 679.
It is true, as contended by appellants, that the sale' of the house was not a matter which was within the jurisdiction of the Veterans Administration, but passing upon applications for guaranteed loans in connection with such sales was within its jurisdiction, and the false representations which appellants caused to be made pertained to matters within its administration as an agency of the United States. Todorow v. United States, 9 Cir., 173 F.2d 439.
Neither is there any merit in the contention that no deception was practiced on the United States and as a consequence it was not defrauded. In Berenbeim v. United States, supra [164 F.2d 683], we said: “ * * * A scheme designed to interfere with or obstruct a department or an agency of the government in respect of one or more of its lawful functions by deceit, craft, chicanery, or trickery, attended by an overt act of one or more of the conspirators in furtherance of the purpose, comes within the statute, even though pecuniary or property loss to the government is not contemplated and does not result.”
It is next urged that the evidence was insufficient to submit the case to the jury and that the court erred in overruling appellants’ motion for a directed verdict at the conclusion of the government’s evidence and again at the conclusion of all of the evidence. True, there was no direct evidence of an agreement among the appellants. But as has been said times without number, conspiracies rarely, if ever, are established from direct evidence. Conspiracies by their very nature must generally be established in large part from conversations, admissions, conduct, and the natural inferences to be drawn therefrom, and it is sufficient if the circumstances, acts, and conduct of the parties are of such character that the minds of reasonable men can conclude therefrom that an unlawful agreement or understanding exists.
Tested by this rule there is ample evidence in the record not only to warrant submitting the case to the jury but also to sustain its verdict. A brief resume shows these facts.
E. Clifford Heald and Louise B. Heald are husband and wife, and Bradley Heald is their son. E. Clifford Heald is a lawyer. Bradley Heald was the builder and seller of some 40 houses known as the Heald project. Louise B. Heald was the sales agent of the houses, on commission, and executed as broker one of the sales contracts pertaining to the house in question. E. Clifford Heald, along with one Ginsberg owned the lots on which the houses were built and these two from time to time deeded the houses to Bradley Heald so as to enable him to execute deeds to persons.
By letter to the Veterans Administration dated February 20, 1947, Bradley Heald requested an appraisal of the 40 houses in the Heald Project, the letter stating that the houses were being constructed under Priorities Regulation 33 for preferential sale to veterans. The houses were all appraised by the Veterans Administration on March 17, 1947, and the reasonable value of each was appraised at $10,600 by the official appraisers. The Healds were notified of this appraisal April 4, 1947.
Pursuant to an advertisement in a local paper offering these houses for sale, John C. Hess, a veteran, contacted Louise B. Heald on June 12, 1947, and asked her if the houses would take a G. I. loan. He received an affirmative reply. She represented the sale price to be $11,500, and Hess immediately gave her a check for $500 as a down payment and arranged to see E. Clifford Heald the next day lo complete the deal. On June 13, 1947, Hess went to the office of E. Clifford Heald where a receipt and option agreement, prepared prior to his arrival, calling for a consideration of $11,500 was signed by Hess and E. Clifford Heald. The contract recited that the option was to be exercised provided the buyers could obtain a loan for $9,600. It was signed, “Heald Investment Company, Broker, by E. C. Heald.” Hess testified that he signed several other documents at the same time which E. Clifford Heald advised him were copies of the $11,500 contract. It developed, however, that on this occasion Hess actually had signed another and different contract bearing the date of June 14, 1947, calling for a purchase price of $10,600. This contract was signed by Louise B. Heald. Although this contract bore Hess’ signature, he testified that he had never seen it until before the grand jury and that he did not know that he had signed it; that it was not a copy of the contract he signed; and that at no time had the sum of $10,600 been discussed with E. Clifford Heald as a purchase price of the premises. He further testified that on June 26, 1947, he went to the Investment Company’s office and gave E. Clifford Heald a cashier’s check in the amount of $900 in the presence of Bradley Pleald. Also, on June 26, 1947, E. Clifford Heald took the $10,600 contract to the Silver State Savings and Loan Association and closed the transaction. The Loan Closing Sheet, prepared by Bradley Heald, indicated the sale price of the houses to be $10,600. A loan of $9,600 was made to Hess and his wife, four thousand of which was guaranteed by the Veterans Administration. The warranty-deed executed by Bradley Heald to Hess and his wife bore cancelled revenue stamps in the total sum of $12.75, which, translated into selling price, indicated a consideration of $11,500. Otis A. King, President of the Silver State Savings and Loan Company, testified that E. Clifford Heald came to the office prior to the date of the closing of the transaction and left an agreement calling for a consideration of $11,500 and that King called him over the ’phone and told him that he knew that a transaction like this could not go through the office; that he was incensed over him bringing such a transaction to his office and informed him that he couldn’t honor or countenance a deal of that kind; that he returned the $11,500 contract to Heald; that a few days later Heald called him and said that they had decided to sell the property for $10,-600. He further testified that at the time of the closing of the transaction, the warranty deed was prepared before it was brought to his office and that the Healds provided and placed the revenue stamps thereon.
The evidence thus disclosed that all the Healds knew the actual selling price to Hess was $11,500; they also knew that the house could not take a G. I. loan if sold for more than $10,600; they all knew that such a loan was necessary or there could be no sale. Finally, they all had some part to play in the transaction with the Loan Association in which the representation was made that the sale was for $10,600. E. Clifford Heald performed the slight of hand trick with the two contracts, the false one of the two having been executed, “Heald Investment Company by Louise B. Pleald,” and the other, “Heald Investment Company by E. C. Heald.” Bradley Heald executed the Loan Closing Statement reciting the false consideration. Thus all three from this evidence, if believed by the jury as it was, had a part to play in the scheme -to defraud.
It is urged the trial court committed reversible error in permitting Earl E. Beuthel to serve as a juror. At the time Beuthel was reached in the process of excusing prospective jurors, appellants apparently had been mistakenly informed by the court that they had remaining one of their ten peremptory challenges. They thereupon peremptorily challenged Beuthel. When, upon objection by Government’s counsel, it was discovered that they had exhausted their peremptory challenges, Beuthel, after having been excused, was recalled to the jury box by the court. Appellants complain of the order of the court in recalling the juror but made no further attempt to interrogate him or to challenge him for cause. They here contend that the service of this juror, after he had been mistakenly challenged, was prejudicial to them. It was not the duty of the court to keep track for them of the number of their challenges. The court’s inadvertence in excusing Beuthel does not absolve them of blame in the matter nor does it follow as a matter of course that appellants’ peremptory challenge of this juror created a prejudice in his mind. It is, of course, possible that this could have resulted but it was their duty to search the mind of the juror, and to examine him in order to determine if any bias or prejudice existed on his part, and having failed to do so they may not now be heard to complain.
We have treated in detail the main assignments of error upon which appellants rely for reversal. In addition to those already discussed, a number of others are urged which do not merit a lengthy detailed discussion. Thus, it is urged that the -trial court erred in excluding competent evidence, in admitting incompetent and prejudicial evidence, in unreasonably curtailing the right of cross examination, and in making prejudicial statements. A careful examination of the record fails to support these claims and fails to disclose any abuse of discretion or error by the trial court with respect thereto.
It is also urged the trial court erred in failing to declare a mistrial because of improper remarks by Government counsel in his argument to the jury. Not only was no objection made by appellants’ attorney to any of the remarks now complained of at the time they were made, but in his opening remarks to the jury on behalf of appellants, their counsel complimented the Government’s attorney by stating that, “He is a most able lawyer and a most convincing advocate, and beyond all, he is a gentleman. And so it is a pleasure to try a case against him or with him.”
While there are exceptions to the rule, the general rule is that counsel may not remain silent while an argument is being made, interpose no objections thereto, and after a verdict has been returned or on appeal, for the first time predicate error upon improper or prejudicial remarks by opposing counsel in his argument to the jury. We find no exceptional circumstances in the argument set up which would warrant us in noting this objection for the first time on appeal to this court.
Finally it is urged the trial court erred in its instructions to the jury and in refusing requested instructions by appellants. it is urged the trial court erred in charging the jury that the cause was between the United States and appellants and not between them and the Silver State Savings and Loan Association, or between Hess and appellants. What we have set out with respect to the sufficiency of the indictment disposes of this contention. As already pointed out, the conspiracy was committed against the United States through its agent, The Veterans Administration. The court’s instructions are criticized in many other respects which need not be noted in detail. A reading of the instructions in their entirety reveals that the issues of fact and applicable principles of law were adequately presented to the jury. The charge that the trial court failed to accord the appellants an impartial trial is wholly without merit.
In our courts, appellants Bradley Heald and E. Clifford Heald filed a motion to remand for a new trial on the grounds of newly discovered evidence. The alleged newly discovered evidence was that in a subsequent trial in the United States District Court for the District of Colorado, entitled United States v. E. Clifford Heald and Bradley Heald, based upon the same transaction involved in this case, King, the President of the Silver State Savings and Loan Association, testified that the deed evidencing the sale of the house by Bradley Heald to Hess was prepared in the office of the Loan Association and that appellants procured and delivered to the Loan Association the revenue stamps which were attached to the deed; whereas, in this case, King testified that the deed was prepared and the revenue stamps were put thereon previous to the closing of the transaction in the office of the Loan Association, and that King stated that his testimony in the trial in this case was erroneous as to those details.
A circuit court has no power to-grant a new trial. It may remand a case to the trial court for its consideration of such a motion. In passing upon such a motion, we view the evidence presented in support, thereof in light of the legal tests neces-. sary to entitle one to a new trial on the ground of newly discovered evidence. These tests are well established. They are set out in detail in Johnson v. United States, 10 Cir., 32 F.2d 127, 130, and will not be elaborated on herein. It is sufficient to say that in addition to other requirements, a new trial will not be granted on, the grounds of newly discovered evidence unless the newly discovered evidence is of such a nature that on the new trial it would probably bring about a different result.
The evidence in question fails to meet this test. Whether the deed was prepared in the office of the Lqan Company and whether revenue stamps were attached there, or whether these acts were performed before the parties came there, has no direct or vital bearing, on the question of conspiracy. These acts were at most incidental, in the closing transaction and have very little probative value, if any, on the important question whether appellants conspired and confederated together to defraud the United States. They are not of sufficient force to lead us to conclude, that they probably would bring about a different result on a second trial.
The motion to remand is, therefore, overruled, and the judgment appealed from is affirmed.
Glasser v. U. S., 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Cruz v. U. S., 10 Cir., 106 F.2d 828; Reavis v. U. S., 10 Cir., 106 F.2d 982; Oliver v. U. S., 10 Cir., 121 F.2d 245; Bacon v. U. S., 10 Cir., 127 F.2d 985; Madsen v. U. S., 10 Cir., 165 F.2d 507.
Young v. U. S., 10 Cir., 168 F.2d 212; Garhart v. U. S., 10 Cir., 157 F.2d 777.
Zito v. U. S., 7 Cir., 64 F.2d 772; King v. Leach, 5 Cir., 131 F.2d 8; Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432; Wassum v. Feeney, 121 Mass. 93, 23 Am.Rep. 258; People v. Marconi, 118 Cal.App. 683, 5 P.2d 974; 50 C.J.S., Juries § 252, page 1014.
U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 239, 60 S.Ct. 811, 84 L.Ed. 1129; New York Cent. R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Metropolitan Life Ins. Co. v. Banion, 10 Cir., 106 F.2d 561; Pietch v. U. S., 10 Cir., 110 F.2d 817, 129 A.L.R. 563; Estep v. U. S., 10 Cir., 140 F.2d 40; Vendetti v. U. S., 9 Cir., 45 F.2d 543.
Evans v. United States, 10 Cir., 122 F.2d 461; Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C.A.
Long v. United States, 10 Cir., 139 F.2d 652; Evans v. United States, 10 Cir., 122 F.2d 461; 23 C.J.S., Criminal § 1461, page 1253; 39 Am.Jur., Section 165, page 172.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_respond2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
S. S. WHITE DENTAL MFG. CO. v. J. A. FISCHER CO., Inc., et al.
No. 81.
Circuit Court of Appeals, Second Circuit.
Dec. 5, 1938.
Paul & Paul, of Philadelphia, Pa., and Darby & Darby, of New York City (John Hogg Austin and Henry N. Paul, Jr., both of Philadelphia, Pa., of counsel), for appellant.
Mock & Blum, of New York City, for appellees.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The suit is on claims 1, 2, 8, 9 and 10 of U. S. Patent No. 1,649,310 granted on November 15, 1927 to Emmet A. Joline for a flexible shaft. The plaintiff is the sole owner of the patent. The defendants make and sell flexible shafting. If the claims are valid and they have infringed, they have done so in the Southern District of New York where they do business at the same address.
The patent relates to shafting flexible enough to be suitable for use in transmitting power where conditions are not right for straight line transmission. The shafting is ordinarily enclosed in a flexible casing whose characteristics do not materially affect the flexibility of the shafting itself and permit its use for the transmission of power from a source of supply to an element not in alignment with it. The use of such an assembly as the driving means for an automobile speedometer provides a good practical illustration of its largely accepted use.
Before Joline entered the patent field with his flexible shaft, there were many of them in use. His claimed departure from what was well known and long established practice is confined to the swaging of the terminals of his shaft in such a way that the wire strands out of which the shaft was made were so pressed together that they would not fray or unravel in use. The preferred way to make a flexible shaft of the kind to which Joline was attentive is to wind a plurality of strands of wires closely around a core. It was common practice to solder the ends to prevent unwinding and to put on a ferrule or sleeve to form an attaching tip. Joline said in his specifications: “The principal objects of my invention are to provide a flexible shaft with terminal tips that will efficiently prevent the accidental displacement of the strands of the fabricated shaft, and that will tend greatly to decrease the cost of production of such shaft”.
What he did was to swage the ends into the shape wanted for the terminal tips by the use of sufficient pressure to squeeze the wires together so tightly that they remained interlocked in use without the addition of solder or anything else to hold them in place. What he claimed is well enough shown for present purposes by claim 1 which reads: “1. A coiled wire flexible shaft having its terminals swaged, and the wire strands forming the shaft so distorted and interlocked thereby as to of themselves maintain said terminals inert and the shaft intact.”
It seems that with the lightening of speedometer parts it has been possible to use Joline’s cheaper flexible shaft satisfactorily. It does not, however, appear to be an inventive advance beyond Veeder’s United States patent No. 1,421,623 granted July 4, 1922 for a flexible shaft and method of manufacturing it.
Veeder used a shaft of the time honored construction of wires coiled upon a core. Over this he put a closely fitting cylindrical tube and said, “the tube and shaft are then swaged into polygonal form (preferably square) whereby additional security against the uncoiling or opening of the coils of the shaft is obtained and at the same time the end portion of the shaft is given a form which assures driving engagement with the coacting member.” This was shown as a way to obviate the use of solder. Veeder recognized that solder would, of course, provide added security against uncoiling but disclosed that its use was not necessary. He said in his specifications: “It is generally desirable to fill with solder the coils of the shaft to be covered before the tube is placed, but the swaging may suffice if the inner as well as the outer coils of wire are distorted so as to prevent uncoiling.”
Such a disclosure leaves nothing new in what Joline did. The urge for cheapness of manufacture doubtless prompted the omission of the tube. At most it was but the non-inventive act of leaving off a part used to cover the wire; omitting the function of that part; and relying only upon distortion by swaging to form the terminal tip and prevent uncoiling. Richards v. Chase Elevator Company, 159 U.S. 477, 16 S.Ct. 53, 40 L.Ed. 225; Anchor Cap & Closure Corporation v. Linhardt, 8 Cir., 56 F.2d 542. When the old act of swaging was performed on the ends to such an extent that the wires were “distorted so as to prevent uncoiling” as Veeder stated they might be, Joline but followed Veeder. This did not rise to the level of invention. Kilbourne v. W. Bingham Co., 6 Cir., 50 F. 697. And so all claims in suit are held invalid.
Decree affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_counsel2
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Larry Wayne JONES, Ronney David Briggs, Jerry Wayne McKee, Terry Gene Howell, and Dennis Earl Jordan, Appellants, v. James MABRY and Vernon Housewright, former Directors, Arkansas Department of Correction, A.L. Lockhart, Director, and Jerry Campbell, Ronald Dobbs, and Henry Cowan, Appellees.
No. 82-2439.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 3, 1983.
Decided Nov. 30, 1983.
Rehearing Denied Dec. 29, 1983.
H. Edward Skinner, Little Rock, Ark., for appellants.
Steve Clark, Atty. Gen. by C.R. McNair, III, Asst. Atty. Gen., Little Rock, Ark., for appellees.
Before BRIGHT, ARNOLD and FAGG, Circuit Judges.
This case was argued on September 13, 1983. The last post-argument brief was filed on October 3, 1983.
ARNOLD, Circuit Judge.
Larry Wayne Jones, Ronney David Briggs, Jerry Wayne McKee, Terry Gene Howell, and Dennis Earl Jordan, inmates of the Arkansas Department of Correction, brought this action for damages and an injunction against the Director and certain employees of the Department. They allege that they were placed in a special High Security Risk (HSR) classification, with privileges substantially curtailed, without a hearing, and that they were thus deprived of their liberty without due process of law, in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment. The District Court held that the placement of plaintiffs in the HSR classification was a reasonable response to a situation legitimately believed by correctional officials to be an emergency, and that neither state law, administrative regulations, nor past practice had created any “liberty interest” entitling plaintiffs, as a matter of federal constitutional law, to a hearing. We affirm.
I.
Our summary of the facts is taken mainly from the recommended findings and conclusions of the Magistrate to whom this case was referred for an evidentiary hearing. The District Court adopted these findings, and they are not clearly erroneous. All five plaintiffs were confined in the maximum^ security building, known as the East Building, at the Cummins Unit of the Arkansas State Penitentiary. Late in 1978 Jordan was one of a group of inmates who gathered in the dayroom of the East Building and refused to return to their cells. Guards with shotguns and tear gas had to be called in to restore order. On January 1,1979, the other four plaintiffs were part of a group who attempted to escape. Hostages were taken, and ten prisoners, including Briggs, McKee, and Howell, managed to get out of the building before being recaptured. After the inmates had all been subdued, Jerry Campbell, then Warden of the Cummins Unit, alarmed at the apparent loss of control over the maximum-security building, created a new high-security-risk classification, applicable only within the East Building. This classification was not referred to in any of the then-extant handbooks or regulations of the Department. It was essentially an ad hoc reaction to what Campbell took to be a danger of spreading mutiny-
Campbell convened the Cummins Unit Classification Committee, consisting of five correctional officers, to review the files of all inmates in the East Building. Campbell’s memorandum creating the new HSR classification mentioned only one criterion for placement in it — propensity for violence, but he orally advised the Committee that other criteria, arguably distinct, should also be considered, including participation in mutinous activities (here he no doubt had in mind the take-over of the dayroom) and potential for escapes. The Committee placed a number of inmates, including all five plaintiffs here, in the HSR category. As a result, they were forced to wear leg irons and shackles when out of their cells; they were strip-searched whenever entering or leaving their cells; they were required to eat in their cells; and their television, day-room, work, movie, shower, and exercise privileges were restricted. The classification was to be reviewed by the Assistant Warden every 60 days. The inmates were not allowed to attend the meeting, to call witnesses, or to rebut the Committee’s finding that each was an HSR. (Inmates were, however, allowed to be present at the 60-day reviews of their files.) The wearing of leg irons, the most serious of the disabilities imposed, continued until May 16, 1979, for any out-of-cell movement within the East Building, and until October 16, 1979, for movement in the prison yard.
II.
Plaintiffs first argue that they have been deprived of liberty without due process of law, that is, without a hearing at which they could tell their side of the matter. One might think that being required to wear leg irons is a deprivation of “liberty” in anyone’s language, and that the only issue should be whether plaintiffs got the process that was due before being subjected to such a “grievous loss.” But that has not been the course of recent adjudication by the Supreme Court. It has required that some “liberty interest,” created by state law, regulation, or practice, be identified, before passing on to the question of what process is “due.” See Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976): “We reject at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause .... Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.”
To supply this requirement plaintiffs point to p. 74 of the Inmate Handbook in effect in January of 1979. The relevant part reads:
Any action which may adversely affect an inmate, such as an increase in security or loss in time-earning status (class), or which lessens an inmate’s privileges will be accompanied by due process arrangements.
It is hard to disagree with plaintiffs’ claim that this provision covered their situation. They did not, by reason of being classified HSR, lose “time-earning status,” but they certainly suffered “an increase in security” and a lessening of “privileges.” The Supreme Court’s recent opinion in Olim v. Wakinekona, _ U.S. _, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), however, is fatal to this argument. There, the Supreme Court held, in a case dealing with a similar provision in Hawaii’s prison regulations, that “an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.” Olim, 103 S.Ct. at 1748 n. 12. There must be, in addition, some state-created substantive limitation on the prison officials’ discretion, a representation, for example, that the HSR classification would be imposed only on the occurrence of certain acts or events. The Inmate Handbook contained no such representation.
In their post-argument brief plaintiffs contend, citing Hewitt v. Helms, _ U.S. _, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), that the needed substantive limitation on official discretion can be found in the terms of the Warden’s memorandum creating the HSR classification. This directive indicated that the criterion for placing an inmate in HSR would be “propensity for violence.” The State of Arkansas replies that this language is measurably less specific than the Pennsylvania prison regulation held to create a “liberty interest” in Hewitt. We need not pursue that line of argument, because we reject plaintiffs’ reliance on the administrative directive for other reasons. The directive was issued on January 5, 1979, after all of the conduct that triggered official action had occurred. It was not, so far as these plaintiffs were concerned, a prospective statement setting forth the conditions under which inmates would or would not be classified as HSR in the future. It was simply an explanation, issued virtually simultaneously with the creation of the new classification and the placement in it of certain inmates, of what the new classification was all about. It could not have created any expectation on which plaintiffs relied. Moreover, the directive did not purport to be and in fact was not an exhaustive statement of the substantive criteria for inclusion in HSR. The Committee considered other factors, for example likelihood of escape, which may overlap with propensity for violence but are not identical to it. It is also important that the decision to place someone in HSR is more a prediction of likely future conduct than a simple finding of specific past conduct. It is thus a kind of decision less susceptible of justification or refutation under specific substantive criteria. On balance, we conclude that under the most recent guidance from the Supreme Court neither the Inmate Handbook nor the Warden’s administrative directive created a “liberty interest” entitling plaintiffs to any particular process. It is not claimed that HSR decisions were discriminatory or based on some constitutionally prohibited reason.
III.
Plaintiffs next argue that even if the State of Arkansas’s prison regulations and practices did not create a liberty interest in their case, they were entitled to due process because the imposition of the HSR classification was intended to punish them. The courts have distinguished between “punitive segregation, including punitive isolation which is imposed by way of punishment for past misconduct,” and “administrative segregation^ which] is not punitive and ... looks to the present and the future rather than to the past.” Kelly v. Brewer, 525 F.2d 394, 399 (8th Cir.1975). “It is safe to say that in all prisons, except perhaps some extremely minimum security institutions, it is found to be absolutely necessary for a number of non-punitive reasons to segregate individual inmates from the general prison population, and to hold them in segregated status for varying or indefinite periods of time.” Ibid. As long as there is a-procedure for reviewing periodically the situations of inmates who are in administrative segregation, see id. at 400, and there was such a procedure with respect to the HSR classification, due process is satisfied, and no pre-deprivation hearing is required by the federal constitution. If, on the other hand, an inmate is deprived of privileges or placed in a special confinement status in order to punish him for past misconduct, then due process requires some kind of hearing beforehand. Just as pretrial detainees “may not be punished prior to an adjudication of guilt in accordance with due process of law,” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979), so inmates who have been duly convicted of crime may not be subjected to additional punishment, not contemplated in their sentence of imprisonment, without due process of law.
It is not always easy to distinguish between “punishment” and the imposition of disabilities for administrative or regulatory purposes. An inmate who is forced to wear leg irons every time he leaves his cell may well regard his condition as punishment. The Supreme Court has set out the following test for distinguishing punishment from administrative or regulatory action by prison authorities:
A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Thus, if a particular condition or restriction of ... detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal— if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon [inmates]. Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.
Bell v. Wolfish, supra, 441 U.S. at 538-39, 99 S.Ct. at 1873-74 (citations omitted).
The District Court held that the action taken in this case was not punitive, and we agree. It needs to be remembered that the East Building is a special facility. It houses three groups of inmates: those condemned to die, those on administrative segregation, and those on punitive segregation for violations of rules of the institution. Thus, all of the inmates in the East Building, by definition, already present special security problems. On September 9, 1978, the inmates in one wing of the building flooded their cells and destroyed the plumbing and fixtures. Later, two inmates escaped by going out the back door. In October 1978, a group of inmates, including the plaintiff Jordan, gathered in the dayroom, refused to return to their cells, and had to be forcibly removed. This series of incidents reached its climax in the January 1, 1979, escape attempt, which included the taking of hostages. We cannot say that the prison authorities’ reaction to this situation was excessive or exaggerated. It is for them, not us, to make this sort of decision in the first instance, and the courts should intervene only when complaining inmates have carried the burden of proving a clear excess on the part of the defendant officials. These issues, at bottom, are questions of judgment and degree, and on such questions we should be slow to substitute our judgment for that of the officials who must deal with the situation first-hand.
Although courts can no longer remain aloof from inhumane conditions within penitentiaries, the judiciary nonetheless must avoid any attempt to mandate administrative details or requirements. Control of the administrative details of state prisons lies exclusively in the hands of state officials.
Goff v. Menke, 672 F.2d 702, 705 (8th Cir.1982).
Perhaps the most troublesome aspect of the HSR classification was its indefinite duration. It may be, as plaintiffs argue, that they were kept in leg irons longer than necessary, and that the emergency created by the escape attempt had been successfully dealt with before the HSR classification was finally discontinued. Again, the question is not what we would have done had we been in charge of the Cummins Unit of the Arkansas State Penitentiary in January of 1979. It is easy enough, with hindsight, to criticize the reaction of prison officials. Our task is only to decide whether the Federal Constitution was violated, and we are not persuaded that it was. ‘ Under all the circumstances, we believe that the action taken was intended to prevent future escapes and to maintain security within the East Building, and that the means employed were not so clearly disproportionate, when measured against these purposes, as to deserve condemnation as “punitive.” Plaintiffs argue, brief for appellants p. 27, that “[t]he adoption of the HSR classification [was] an attempt by prison officials ... to ‘gain the upper hand,’ that is, to make it easier for them to assert and enforce their authority and dominance over the inmates in the East Building.” We cannot disagree with that characterization, but neither can we agree that such a purpose was improper. The security of the building requires that prison officials have control over it. In short, we reject plaintiffs’ claim that the HSR classification was imposed as punishment.
IY.
Finally, plaintiffs argue that the conditions to which they were subjected were so harsh as to constitute cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the states by the Fourteenth Amendment. Much that we have already said is relevant to explain why we also disagree with this contention. While the measures taken were sharp, even harsh, we cannot agree that they were cruel or barbaric. In Pickens v. Mabry, No. 79-1794 (8th Cir. May 1, 1980) (per curiam), an unpublished opinion, we discussed this same escape incident and the creation of the new HSR classification. That was an action brought by another inmate, not one of the plaintiffs here, involved in the escape attempt. The District Court dismissed Pickens’s complaint, and we affirmed. We said, among other things:
[T]he leg irons requirement was imposed as a security measure in response to the emergency situation that existed in the Cummins Unit after the events of January 1,1979. We note that since that time the requirement has been eased considerably, and now Pickens is required to wear them only when he leaves his building. Under these circumstances, the measure cannot be said to be so excessive or barbaric as to constitute cruel and unusual punishment.
Slip op. p. 2.
Local Rule 8(i) of this Court reads as follows:
CITATION OF UNPUBLISHED OPINION. No party may cite an opinion that was not intended for publication by this or any other federal or state court, except when the cases are related by virtue of an identity between the parties or the causes of action.
In their briefs before this Court, both sides have cited Pickens and argued its effect. It was also cited by the District Court, understandably enough, since it affirmed a judgment of that very court. We see no impropriety in this use of an unpublished opinion. For one thing, the cause of action asserted in Pickens and that asserted here are identical, so citation of the case by the parties is not a violation of Rule 8(i). For another, the Rule does not say that this Court may not cite its own unpublished opinions, and indeed it would be a curious rule of law that would prevent a court from referring to its past decisions, whether published or not. A fundamental duty of courts of justice is to decide like cases alike, and that duty obtains whether a decision has been mailed to West Publishing Company or not. If we were today to announce a different result with respect to the same HSR classification that was before us in Pickens, we would have a difficult time indeed explaining ourselves to the public and the bar.
In any case, and entirely apart from the unpublished opinion in Pickens, we are not persuaded that the measures taken here violated the Eighth Amendment. For reasons already stated, we think they were not so unreasonable or excessive as to be clearly disproportionate to the need reasonably perceived by prison officials at the time. Ordinarily prisoners are entitled to a reasonable amount of exercise, see Campbell v. Cauthron, 623 F.2d 503 (8th Cir.1980), but that rule is not invariable. Here, there were extraordinary circumstances justifying the curtailment for a time of exercise and other privileges.
V.
We thank appointed counsel for appellants for his thorough and persistent representation of their interests. The judgment of the District Court is Affirmed.
. The Hon. Garnett Thomas Eisele, Chief Judge, United States District Court for the Eastern District of Arkansas.
. The Hon. Henry L. Jones, Jr., United States Magistrate for the Eastern District of Arkansas.
. The HSR classification no longer exists. Current regulations require a hearing before an inmate is placed in a segregation classification, except in an emergency, and even then a hearing must be held promptly. They also specify substantive criteria for imposing the classification. Admin.Reg. § 836 (Dec. 30, 1981). The predecessor of this regulation has been held to create a federally protected liberty interest. Finney v. Mabry, 528 F.Supp. 567 (E.D.Ark.1981). Thus, plaintiffs no longer need any injunctive relief. They are pursuing this case solely to obtain a money judgment against the officials who placed them in HSR.
. It is not clear what good a hearing would have done plaintiffs. They do not deny doing the acts that provoked the creation of the HSR classification. Separate disciplinary proceedings were held, and loss of statutory good time resulted. Plaintiffs were permitted to appear before the disciplinary committee, and they do not now complain that that committee failed to accord them due process. In addition, the plaintiff Briggs was convicted of escape in a state court in connection with the incident on January 1, 1979.
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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